17-008093 v Aviva Insurance Canada, 2018 CanLII 110941

Licence Appeal Tribunal

Date: 2018-07-20

Tribunal File Number: 17-008093/AABS

Case Name: 17-008093 v Aviva Insurance 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 Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Zenan Babb, Paralegal, for the Applicant

Monica Pathak, Counsel, for the Respondent

HEARD in Writing on June 15, 2018

OVERVIEW

1[The applicant] was involved in an automobile accident on October 16, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2[The applicant] applied to the Licence Appeal Tribunal (the "Tribunal") when the disputed benefits were denied by Aviva.

3Aviva denied [the applicant]'s claims for medical benefits because it determined that all of her injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² ("the MIG"). [The applicant]'s position is the opposite.

4If I find [the applicant]'s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.

5If Aviva's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

6[The applicant]'s initial appeal included a claim for income replacement benefits (IRBs) that was subsequently withdrawn.

7[The applicant]'s initial appeal included a claim for an award under Regulation 664, Automobile Insurance³ ("Regulation 664") because Aviva unreasonably withheld or delayed payments to her. Her submissions do not mention this issue, and therefore I consider that part of her appeal abandoned.

ISSUES

8The issues before me are:

(1) Are [the applicant]'s injuries considered predominantly minor injuries as defined in s. 3(1) of the Schedule, and therefore subject to treatment within the MIG?

(2) If [the applicant]'s injuries are not predominantly minor, then I must decide whether or not she is entitled to receive:

(a) A medical benefit in the amount of $3,133.06 for chiropractic services recommended by Active Clinics in a treatment plan submitted December 30, 2015, and denied by the respondent on January 6, 2016?

(b) A medical benefit in the amount of $1,796.00 for physiotherapy services recommended by Active Clinics in a treatment plan submitted March 22, 2016, and denied by the respondent on Aug. 30, 2016?

(c) A medical benefit in the amount of $1,328.10 for chiropractic services recommended by Active Clinics in a treatment plan submitted April 12, 2016, and denied on August 30, 2016?

(d) A medical benefit in the amount of $2,256.60 for other goods and services recommended by Excel Medical Diagnostics in a treatment plan submitted October 16, 2017, and denied on Oct. 26, 2017?

(e) A medical benefit in the amount of $2,568.48 for other goods and services recommended by Excel Medical Diagnostics in a treatment plan submitted October 6, 2017, and denied on October 26, 2017?

(f) $133.36 for prescription expenses submitted February 10, 2016 and denied on April 12, 2016?

(g) $17.60 for prescription expenses submitted April 12, 2016, and denied on May 13, 2016?

(h) $325.00 representing HST costs of for preparing an accounting report submitted March 2, 2017, and denied on October 16, 2017?

(3) Is Aviva liable to pay [the applicant] an award under Regulation 664, Automobile Insurance⁴ ("Regulation 664") because it unreasonably withheld or delayed payments to the applicant?

(4) Is [the applicant] entitled to interest for the overdue payment of benefits?

FINDINGS

9[The applicant]'s injuries are predominantly minor, and governed by the MIG. Her appeal is denied.

REASONS

10Section 3(1) of the Schedule defines a minor injury as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury." The MIG defines what these terms mean in more detail.

11Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

12The onus is on the applicant, [the applicant], to show that her injuries fall outside of the MIG.⁵

13[The applicant] seeks to be removed from the MIG on the basis of an injury diagnosed in 2017 (see the paragraph 14ii. below) and on the grounds that she sustained psychological injuries and suffers chronic pain as the result of the accident.

14I find that [the applicant] failed to meet the onus on her in this matter. I reviewed the evidence submitted with her brief and found:

i. No evidence from any contemporaneous medical report or record that [the applicant] suffered anything but soft-tissue injuries that fall within the definition of "minor injury" prescribed by the Schedule. All of the contemporaneous evidence from treating and assessing medical practitioners confirmed that [the applicant] sustained soft-tissue injuries in the accident.

ii. [The applicant] was diagnosed with a full thickness tearing of the posterior insertion supraspinatus identified in an MRI on September 17, 2017 – almost two years after the accident. Her bald statement that this injury "prohibits the respondent from taking the position that [her] injuries fall within the MIG", unaccompanied by any evidence or analysis of causative link to the accident, offers me no basis for such a finding.

iii. No persuasive evidence and no analysis in her submissions to support [the applicant]'s implied assertion that her psychological conditions were caused by the accident.⁶ The report of Dr. Cheryl Walker, psychologist, dated November 27, 2017, assumes the accident as the cause of [the applicant]'s psychological challenges, based on [the applicant]'s self-reporting. This weakens the report's probative value, given other evidence in the submission that [the applicant] was experiencing a deterioration in her physical health unrelated to the accident, identified in a series of diagnostic images and reports over the course of 2017. This is important because the psychological conditions noted by Dr. Walker were explicitly linked to pain and physical impairment and [the applicant] has not proven (see below) that her chronic pain problems arose as a result of the accident.

iv. No evidence that [the applicant] suffers from chronic pain⁷ as the result of the accident given:

(a) [The applicant] fails to explain how problems which were diagnosed after the accident and clearly identified by medical practitioners as "degenerative conditions" are related to the accident. Her submissions highlight these conditions and rather than discussing possible exacerbation, seems to assert causation – at odds with her own evidence.

(b) [The applicant] has not been given any diagnosis of chronic pain. The medical records do describe "self-reporting" of chronic pain complaints; however, in my view medical observations of patient complaints that clearly assume accident causation and do not assess other causes or factors despite records thereof, are insufficient to establish chronic pain for the purposes of removing [the applicant] from the MIG.⁸

(c) [The applicant] fails to address Aviva's surveillance evidence, which shows [the applicant] going about work and carrying out a number of ordinary activities of daily living without apparent difficulty, refuting any claim that pain has significantly disrupted or disabled [the applicant]'s pre-accident activities of daily life. Such a disruption is a key test for a finding of chronic pain sufficient to remove an applicant from the MIG.⁹

15I have not included an analysis of Aviva's submissions. I consider it unnecessary for the following reasons:

i. [The applicant]'s submissions simply failed to establish a persuasive basis for meeting the onus of proof on her.

ii. My reading of Aviva's submissions was that they largely coincide with my own analysis of [the applicant]'s case, with the addition of the surveillance information noted above. [The applicant] did not make a Reply submission to rebut Aviva's analysis or evidence.

iii. Aviva conducted insurer's examinations (IEs) with [the applicant], but did not use them in its submissions and [the applicant] did not address the merits of the IEs in her submissions. Accordingly, I see no reason to conduct a review or analysis of the IE evidence.

16Having concluded that [the applicant] has not proven that her entitlement to be removed from the MIG, it is unnecessary for me to consider her claims for medical benefits.

CONCLUSIONS

17[The applicant]'s injuries are predominantly minor and governed by the MIG. Her appeal is dismissed. Accordingly, there is no interest on overdue payments owing to her.

Footnotes

1. 1O.Reg. 34/10
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3R.R.O. 1990, Reg. 664
4. 4R.R.O. 1990, Reg. 664
5. 5Scarlett v. Belair, 2015 ONSC 3635 para.24
6. 6Psychological injuries may remove an applicant from the MIG. [The applicant] did not expressly cite her psychological issues as reasons for removing her from the MIG. However, noting that her submissions included many mentions of psychological injuries, I decided to review her evidence on this "exemption criterion".
7. 7Chronic pain may remove an applicant from the MIG. [The applicant] did not expressly cite chronic pain as a reason for removing her from the MIG. However, noting that her evidence included many mentions of chronic pain, I decided to review her evidence on this "exemption criterion".
8. 8I found the reasoning in 000045 v. Aviva, 2016 CanLII 60728 (ON LAT), cited by Aviva, to be helpful in this matter.
9. 9This is widely accepted, and derived from criteria cited in YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), cited by the respondent in this matter.```