Applicant v. Aviva Insurance Company of Canada, 2018 CanLII 110928

Court File and Parties

Date: 2018-06-14 Tribunal File Number: 17-004147/AABS Case Name: 17-004147 Aviva Insurance Company of Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

and

Aviva Insurance Company of Canada

Respondent

Decision

Adjudicator: Brian Norris

Appearances: Counsel for the Applicant: Maria Mikhailitchenko, Victoria Polyakevch Counsel for the Respondent: David Koots

Heard In Writing: December 11, 2017

OVERVIEW

1The applicant was injured in an automobile accident on April 25, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Are the applicant's injuries predominantly minor injuries as defined in the Schedule and subject to the $3,500.00 funding cap on treatment within the Minor Injury Guideline (MIG)?

2. Is the applicant entitled to receive weekly income replacement benefits (IRBs) in the amount of $300.80 from May 6, 2016 to September 24, 2016?

3. Is the applicant entitled to receive medical benefits recommended by [the physiotherapy clinic] as follows; a. $3,450.40 for a physiotherapy treatment plan dated June 3, 2015; b. $3,358.92 for a physiotherapy treatment plan dated September 1, 2015; and c. $3,087.92 for a physiotherapy treatment plan dated March 17, 2016?

4. Is the applicant entitled to payment for the cost of examinations in the amount of $1,696.11 for a psychological assessment proposed by [the physiotherapy clinic] in a treatment and assessment plan dated December 17, 216?

5. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3I find that the applicant sustained a minor injury as defined under the Schedule.

4The applicant is not entitled to the medical benefits and costs of examinations claimed because the applicant has exhausted the funding provided for under the MIG.

5That applicant is not entitled to any additional income replacement benefits.

6The applicant is not entitled to interest as no payments are overdue.

BACKGROUND

7The applicant was struck from behind while driving on the highway. The applicant did not seek medical attention immediately following the accident but met with Dr. J.G. Fuller, family physician, about five days after the accident. Dr. Fuller diagnosed the applicant with neck and back sprains, advised the applicant to stretch and use ice and heat to treat the injuries, recommended the applicant engage in physiotherapy, and provided the applicant with pain medication samples.

8Following the accident, the applicant engaged in treatment at [the physiotherapy clinic] that the respondent paid for. The applicant also sought treatment and assessments outside the MIG and the respondent denied funding for them. The applicant received IRBs until May 6, 2016, when the respondent suspended the benefit on the grounds that the applicant did not attend at a section 44 insurer assessment to determine ongoing eligibility for IRBs. Subsequently, on June 22, 2016, the applicant attended at the section 44 assessment which produced a report dated July 6, 2016, denying the IRB. The applicant disputes the respondent's denials of an IRB, treatments and assessments, and the respondent's determination that the applicant's injuries are within the MIG.

THE MINOR INJURY GUIDELINE

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The applicant's position on the applicability of the MIG is twofold. First, the applicant submits that an exacerbation to a pre-existing knee injury warrants removal from the MIG and because the pre-existing injury precludes the applicant from recovering within the MIG. Second, the applicant takes the position that the MIG should not apply because the applicant was diagnosed with psychological conditions such as adjustment disorder with mixed anxiety and depressed mood and specific phobia – situational type vehicular travel, which are not included in the MIG.

Pre-Existing Knee Injury

11The applicant's position is that the applicant's pre-existing knee injuries have been aggravated and warrant removal from the MIG. The applicant provided the clinical notes and records of Dr. Fuller to substantiate the claim. The applicant submits that Dr. Fuller's records show that the applicant's pre-existing knee issues were manageable prior to the accident and that, after the accident, the applicant's knee injuries significantly interfered with work, mobility, and daily activities.

12The respondent submits that the applicant's pre-existing knee injuries were not aggravated by the accident and are not significant enough to preclude recovery within the MIG. The respondent also submits that there is no evidence to suggest that the pre-existing knee injuries would impact the applicant's ability to recover within the MIG and the $3,500.00 funding limit it provides.

13Upon review of the evidence and submissions, I find that the applicant's pre-existing knee injuries were not exacerbated by the accident and did not preclude recovery within the MIG. Clinical notes and records show that the applicant attended Dr. Fuller's office five days after the accident and complained of neck and back pain. During the visit with Dr. Fuller, the applicant did not complain of knee pain or any injury to the knee as a result of the accident. Unlike other the records from other visits to Dr. Fuller where the family physician attributes the applicant's complaints to a specific cause, Dr. Fuller's records do not connect any amount of the applicant's knee pain to the accident and does not suggest that the pre-existing knee injuries were aggravated or that the knee injuries would preclude recovery of the soft tissue injuries. There is an entry related to applicant's knee complaints about a month after the accident however, Dr. Fuller attributed the complaints to a change in the applicant's footwear and a recommendation is made for the applicant to get insoles.

14The clinical notes and records from [the physiotherapy clinic] occasionally note a sore left knee however the records do not indicate that the sore knee impacted recovery. Additionally, the records show that the predominant areas which the applicant received treatment for were the neck, back and shoulders – not the knee.

15Considering the lack of evidence to support the applicant's claim that the pre-existing knee injury was exacerbated as a result of the accident or that the prior knee injury would preclude recovery of the applicant's soft tissues injuries, I conclude that the applicant's pre-existing knee issues were not exacerbated by the accident and did not preclude the applicant's recovery within the MIG.

Psychological Injury

16The applicant commissioned an assessment by M. Chiodo, psychological associate, which took place on August 3, 2016, with a final report issued on August 30, 2016. The conclusion of the assessment and report diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type, vehicular travel. The assessor recommended the applicant commence 12 sessions of psychological treatment with a focus on cognitive behaviour treatment. The applicant submits that the diagnosis confirms the applicant suffered a psychological injury as a result of the accident, which falls outside the MIG and is not subject to the $3,500.00 funding cap.

17The respondent submits that I should reject the applicant's argument because the respondent commissioned two psychological assessments and reports by Dr. J. Clewes, psychologist, which concluded that the applicant did not suffer from an accident-related DSM-IV diagnostic condition. The respondent's first assessment took place on June 22, 2016 and included a clinical interview and psychometric testing. The second psychological assessment took place on October 18, 2016, where Dr. Clewes concluded there was no overt evidence of undue anxiety symptoms.

18Psychological injuries that require treatment are not included in the MIG and a finding of such an injury would remove the applicant from the MIG.

19The psychological evaluation and report provided by the applicant indicates that the areas the applicant has the most difficulty with are dealing with pain and vehicular travel anxiety. In the report, the applicant complains that pain impacts concentration and alertness, as well as passenger anxiety which leaves the applicant unsure about the ability to resume work as a driving examiner and the financial effects from not working. The report also notes that the applicant reported a reduction in participation in physical or social activities as much as prior to the accident due to fears of reinjuring the knee.

20The respondent's reports provide a view of the applicant's recovery. The assessment conducted in June 2016 acknowledges the applicant's pain complaints and has a reference to the applicant's concern with returning to work as a driving examiner. The applicant's pain complaints and concern with returning to work were significantly diminished by the second assessment in October 2016. By the October assessment, according to the applicant's own reports, the knee pain had significantly improved and that physiotherapy was no longer required for any injuries. Dr. Clewes also noted that, despite previous complaints of driving and passenger phobia, the applicant drove to the October assessment and did not show any overt evidence of anxiety symptoms from driving.

21As previously noted, the applicant's report indicates areas of concern with respect to the applicant's psychological health and makes a recommendation for psychological treatment. Of the concerns outlined, one is related to anxiety as a passenger in a vehicle and the impact of this on the applicant's employment. The applicant was able to drive at the time of the assessment and, less than two months after the June 22, 2016 assessment and without the benefit of any psychological treatment, the applicant has reemployed and is no longer a driving instructor.

22Another area of concern, as indicated in the applicant's psychological assessment report, is the applicant's withdrawal from social activities involving physical activity. These concerns appear to be unrelated to any injury as a result of the accident and are related to knee issues pre-dating the subject accident.

23The applicant refers to Dr. Fuller's clinical notes and records in support of the conclusion that the applicant suffers from a psychological injury which would warrant removal from the MIG. The applicant highlights a note regarding sleep disturbance in a June 2015 entry and the resulting prescription of a sleep aid in support of the position. The applicant also referred to the clinical notes and records of [the physiotherapy clinic], submitting that the records show complaints of sleeping disturbances and nervousness following the accident.

24The respondent's submits that the note from a June 1, 2015 visit to Dr. Fuller where the applicant complains of disturbed sleeping, is the only note in support of a psychological injury. The respondent elaborates that Dr. Fuller's complete entry goes on to state "no depressive symptoms". The respondent presents that Dr. Fuller's records address a psychological injury in the form of stress disorder and as a result of a January 2017 accident and that the absence of any similar entries prior indicate a lack of a psychological injury as a result of the April 25, 2015 accident.

25Considering the submissions and evidence, I find that the applicant did not suffer from a psychological injury as a result of the 2015 accident which would warrant removal from the MIG. The applicant's predominant complaints are pain related and generally unassociated with the applicant's injuries from the subject accident. Dr. Fuller's records minimally address any psychological complaints as a result of the accident and, absent any ongoing psychological complaints, the prescription of an antidepressant commonly used to treat insomnia on its own is not enough for me to find that the applicant's injuries are not within the MIG. I prefer the evidence of Dr. Clewes over M. Chiodo because the former has completed more psychology training and is more qualified to render an opinion on the applicant's psychological health. Additionally, I prefer the assessment methodology of by Dr. Clewes over M. Chiodo's because Dr. Clewes used a personality assessment screener prior to administering any formal tests to determine the appropriate tests to conduct during the assessment. M. Chiodos did not use a screening tool to determine the appropriate tests and, it appears, simply tested for anxiety and depression without conducting any general analysis as to which tests to administer.

26An analysis on entitlement to the medical benefits claimed in issues numbered 3 and 4 is not required because I have found the applicant's injuries fall within the MIG and because the applicant has exhausted the monetary funding limit provided by the MIG.

ENTITLEMENT TO AN INCOME REPLACEMENT BENEFIT

27During the first 104 weeks after an accident, an IRB is payable to people who are unable to perform the essential tasks of employment as a result of the impairment suffered as a result of an accident. Pursuant to section 44, the respondent is permitted to have a medical professional examine the applicant in order to determine if the applicant continues to be entitled to the benefit.

28The applicant submits that the respondent stopped payment of IRBs prematurely and claims entitlement to an IRB for the period from May 6, 2016 to-September 24, 2016, when the applicant found work with a new employer. Alternatively, the applicant submits that the respondent must pay the applicant's IRBs up to the release of the assessment report on July 11, 2016, pursuant to the decision in C.T. v Aviva.¹

29The respondent submits that it properly denied IRBs and that it correctly suspended payment of benefits as a result of the applicant's failure to attend a section 44 assessment and pursuant to section 37(7).

30The applicant does not provide a reason for not attending the assessment and does not dispute the validity of the section 44 notice provided by the respondent. Instead, the applicant disputes the respondent's decision to suspend the benefit and takes the position that the benefit is payable until the respondent provides the applicant with a copy of the section 44 report.

Non-compliance period

31As noted above, the applicant submits that, regardless of the outcome of the section 44 insurer's examination, the applicant is entitled to IRBs up to July 11, 2016 when the respondent provided the applicant with the section 44 examination report from the assessment which occurred on June 20, 2016.

32The respondent submits that the applicant is not entitled to IRBs during the period May 6, 2016 to July 11, 2016 because the applicant failed to attend a properly scheduled section 44 assessment and that it suspended the benefit pursuant to section 37(7).

33I agree with the respondent and find that the applicant is not entitled to IRBs during the period May 6 to July 11, 2016. The applicant did not attend a properly scheduled section 44 assessment and did not provide a reason for not attending the assessment. Section 37(7) provides that the respondent may make a determination that the insured person is no longer entitled to IRBs because the applicant failed to attend the section 44 assessment. Section 37(8) provides that once the applicant has complied with section 44(9) the respondent shall reconsider the applicant's entitlement. Upon reconsideration of the benefit and pursuant to section 37(8), the respondent shall pay the benefit including the amounts withheld if it determines that the applicant is still entitled to the benefit. The respondent determined that the applicant was not entitled to the benefit and therefore, was not required to pay the amounts which were withheld.

The period following the section 44 assessment

34After the applicant attends the section 44 assessment and pursuant to section 37(8), the respondent shall reconsider the applicant's entitlement to the benefit and resume payment of the benefit if the applicant is found to be entitled to the benefit.

35The applicant submits that vehicular travel anxiety prevented the applicant from returning to pre-accident employment as a driving instructor and claims entitlement until September 24, 2016, when the applicant found new employment in a different field. The applicant submits that the medical evidence in Dr. Fuller's records, including the medications prescribed, support the applicant's claim.

36The respondent submits that the applicant is able to return to pre-accident employment as early as May 6, 2016 and no later than June 22, 2016 when the psychological assessment took place. The respondent relies on the opinions represented in the following section 44 reports;

1. An orthopaedic assessment report by Dr. B. Taromi, orthopaedic surgeon, dated May 4, 2016 from an assessment which took place on February 17, 2016;

2. A functional abilities evaluation report by D. Rodie, physiotherapist, and D. Morris, Kinesiologist, dated May 4, 2016 from an assessment which took place on February 19, 2016;

3. A job site analysis report by D. Monck, kinesiologist, dated May 4, 2016 from an assessment which took place February 23, 2016; and

4. A psychological assessment report by Dr. Clewes, dated July 6, 2016 from an assessment which took place June 22, 2016.

37The respondent submits that, according to the psychological assessment report, the applicant does not suffer from any significant psychological symptoms limiting the applicant's ability to engage in pre-accident activities. From a physical perspective, the respondent submits that the functional abilities evaluation report concluded that the applicant had no physical or functional limitation which would prevent the applicant from preforming the pre-accident employment. The orthopaedic assessment concluded the applicant had function range of motion and could return to work. Lastly, the job site evaluation concluded that the applicant's employment was mostly sedentary and is considered as requiring limited strength.

38Considering the submissions and evidence before me, I find that the applicant is not entitled to any IRBs in addition to those which have already been paid. The respondent's cumulative assessments are helpful in determining the extent of the applicant's impairments, however, Dr. Fuller's clinical notes and records are more so. Historically, the applicant has seen Dr. Fuller regularly for various health related matters, including whether or not to limit work as a result of an injury. In April 2015, prior to the accident, Dr. Fuller recommended the applicant take two weeks off work because of medical issues. Similarly, the applicant sought and received Dr. Fuller's medical opinion regarding a return to work following a subsequent accident in 2017. Despite these examples of Dr. Fuller advising the applicant about whether or not to return to work, there are no recommendations for the applicant to refrain from work before, during, or shortly after the period the applicant claims IRBs. Unlike after the 2017 accident where Dr. Fuller frequently associates the applicant's physical and psychological complaints to the accident, Dr. Fuller does not connect any of the applicant's medical complaints to the 2015 accident. In the fall of 2015 it is noted in the clinical notes and records of Brampton Civic Care Centre Inc. that the injuries impact the applicant's ability to work however, there are no notes indicating the same during the period in which the applicant claims IRBs and there are no recommendations for the applicant to refrain from work during this period.

CONCLUSION

39Based on the medical evidence before me, I find that the applicant's injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.

40That applicant is not entitled to any further IRBs.

41No interest is payable as no payments went overdue.

ORDER

42The appeal is dismissed.

Footnotes

1. 1C.T. v. Aviva Insurance Canada, 2017 CanLII 33633 (ON LAT)