17-007959 v. Aviva Insurance Canada, 2018 CanLII 110947

17-007959 v Aviva Insurance Canada

Date: 2018-07-18 Tribunal File Number: 17-007959/AABS Case Name: 17-007959 v Aviva Insurance Canada

In the matter of an Application for Dispute Resolution 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: Robert Watt

APPEARANCES: Counsel for the Applicant: Gursharan Sidhu
Counsel for the Respondent: Mark Vella Representative for the Respondent: Jennifer Walters Assistant Representative for the Respondent: Patrick Sinclair

HEARD In-Person: May 17, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 12, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').

2The applicant was denied certain benefits by the respondent and submitted an application to the License Appeal Tribunal-Auto Accident Benefits Service (the “Tribunal”).

3The parties participated in a case conference, but were unable to resolve the issues in dispute.

4With the consent of the parties an in-person hearing was scheduled for May 17, 2018.

ISSUES IN DISPUTE:

5Is the applicant entitled to receive a weekly income replacement benefit in the amount of $317.37 from January 22, 2017 to date and ongoing?

6Is the applicant entitled to payment of $2,200.00 for the cost of a chronic pain assessment?

RESULT

7The applicant is not entitled to receive a weekly income replacement benefit in the amount of $317.37 from January 22, 2017, to date and ongoing?

8The applicant is not entitled to receive the payment of $2,200.00 for the cost of a chronic pain assessment.

BACKGROUND

[9] Prior to the accident the applicant worked at [a] Warehouse. Her job was to label packaging of clothing items on an assembly line. Before the accident she worked for the following periods: i. From February 2013 to July 2014 when she was laid off ii. From January 3, 2015 to March 2015 iii. From July 18, 2016 until August 12, 2016 (date of accident)

10After the accident, she complained of headaches, depression and lower back pain. She sought medical attention and was put on pain medication. She stopped the medication because she was breast feeding her youngest child.

11She continued to see her family doctor, as well as Dr. Niesbska for physiotherapy, Dr. Czok, a physiatrist, and Dr. Karmy for her headaches.

12The applicant indicated in her evidence that she can’t go back to work because of the lower back pain. None of the applicant’s doctors has indicated to the applicant that she couldn’t go back to work. The applicant admitted that her former place of employment has work for her, if she returns, and that she wants to work. She classified herself as a general labourer.

13The applicant worked in 2016 from July 18 until August 12, on a forty hour week. In 2015, the applicant worked from January 3, until March 2015. Her job required little lifting. The applicant’s evidence at the in person hearing indicated that she had not contacted her former employer since the accident, to go back to work.

14The applicant on August 16, 2016, four days after the accident, had an x-ray that revealed no fractures. On August 25, 2016, the applicant had an MRI that showed only soft tissue injury and was given some medication. In November 2016, the applicant had an ultra sound on her right shoulder. The findings showed no medical issues.

15Dr. Alan Kruger, did an Insurer’s Examination (IE). In his report dated December 20, 2016, he found no evidence of any underlying medical issues that would inhibit or delay the applicant’s recovery or prevent her from going back to work. He found no evidence of any neurological or radicular findings and indicated that the applicant suffered soft tissue injuries as a result of the accident. In an addendum report dated April 10, 2017, whereby Dr. Kruger reviewed the report of Dr. Jon Mills (psychologist) and the report of Dr. Al-Jazrawi, he opined the same results as in his former report. In his oral testimony, Dr. Kruger indicated that “the best course for patients with soft tissue injury is to normalize their life by going back to work”.

16The applicant saw Dr. Nadir Al-Jazrawi, a chronic pain management specialist on January 30, 2017. His report was finished on July 25, 2017. He had no recollection of the applicant and indicated that he would normally spend 1 hour for the assessment. He reviewed no other medical reports other than a psychological report from Dr. Jon Mills, dated June 19, 2017. He relied on the applicant self- reporting, on what the tasks were that she did at work.

17Dr. Nadir Al-Jazrawi found after a visual examination that the neck and shoulder were normal . His conclusion was that the claimant was suffering from chronic pain in the neck, shoulder (right side) and lower backs as well as headaches. He opined that the claimant also suffers from depression, anxiety and PTSD. He found that “all other examinations were unremarkable”.

18Dr. Al-Jazrawi testified at the hearing that a patient with soft tissue injury should not go back to work. However he also testified that the applicant could go back to work if she were allowed to take breaks every fifteen minutes. His report did not relate any of his findings to the test for Income Replacement, Benefit, as he testified that he did not know the test.

19The prescription summary of [the] Pharmacy, during the period of August 20, 2013, to April 20, 2013 showed that the applicant had received pre- accident medication for depression.

20Dr Anna Czok (Physical Medicine and Rehabilitation) in her report dated June 13 2017, indicated that the applicant has almost normal range of motion of the cervical spine and both shoulders. The applicant in her oral testimony disagreed with Dr. Czok’s conclusions. The applicant had visited Dr Czok at least four times and she admitted that the doctor had never advised her not to return to work.

21The applicant admitted in her oral testimony on cross examination, that no doctor since January 2017, told her that she wasn’t to go back to work.

ANALYSIS

22To be entitled to an IRB in the first 104 weeks after the accident, the applicant must prove on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her employment as a result of the accident. To be entitled to an IRB after 104 weeks, the applicant must prove on a balance of probabilities that, as a result of the accident, she suffered a complete inability to engage in any employment or self- employment for which she is reasonably suited by education, training or experience. ¹

23I find that the evidence does not support any finding of a substantial inability to perform the essential tasks of employment. The medical evidence is overwhelming that the applicant can go back to work.

24Both Dr. Al-Jazrawi and Dr. Kruger conclude in their reports that from a musculoskeletal perspective, the applicant suffered soft tissues injuries that would be consistent with minor injuries as defined by Schedule. Although Dr. Al-Jazrawi did not address the issue of IRB directly in his report, his evidence at the hearing supported Dr. Kruger’s evidence that the applicant could go back to work.

25The applicant’s admission that no doctor told her that she could not go back to work, clearly also indicates that there was no substantial inability to not go back to work, from a medical perspective. The applicant admitted in her direct evidence that there is work back at her place for her to do, but she has not contacted them because of continuous pain in her lower back.

26Dr. Czok’s findings that the applicant has almost normal range of motion of the cervical spine and both shoulders, again support the other doctors’ findings that there are no medical reasons why the applicant cannot go back to work.

27At the hearing, neither party addressed, the second issue as to whether the applicant is entitled to receive the payment of $2,200.00, for the cost of a chronic pain assessment.

28The Schedule requires a medical benefit to be reasonable and necessary. There is no evidence before me to show that this assessment is reasonable and necessary. The onus is on the applicant. The applicant has not shown that on a balance of probability, that the assessment is reasonable and necessary.²

ORDER

29The application is dismissed.

Footnotes

1. 1S 5(2)(6) Schedule
2. 2S 15(1) Schedule