17-006787 v Aviva Insurance Canada, 2018 CanLII 110953

DECISION

Date: 2018-07-19

Tribunal File Number: 17-006787/AABS

Case Name: 17-006787 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

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel for the Applicant: Val Chowbay

Counsel for the Respondent: Patrick Sinclair

Written Hearing on: May 7, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on January 8, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for medical benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s 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 exactly the opposite.

3If the respondent’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 medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 limit has been exhausted.

ISSUES

4Do the applicant’s injuries fall within the MIG?

5If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $2,290.58 for physiotherapy services recommended by North Toronto Rehab in a treatment plan dated September 25, 2015, denied by the respondent on October 8, 2015?

ii. Is the applicant entitled to a medical benefit in the amount of $2,794.63 for physiotherapy services recommended by North Toronto Rehab in a treatment plan dated July 7, 2015, denied by the respondent on March 2, 2016?

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

RESULT

6I find that the applicant’s injuries fall within the definition of minor injury. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.

ANALYSIS

The Minor Injury Guideline

7Section 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.”

8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

9The onus is on the applicant to show that her injuries fall outside of the MIG³.

Does the applicant suffer from Chronic Pain Syndrome?

10The applicant’s position is that she sustained ongoing non-minor injuries as a result of the accident which include: chronic low back pain, annular tear, central canal stenosis, diffuse disc bulge, driving anxiety, and post traumatic headaches. It is the applicant’s position that she suffers from chronic pain as a result of the accident and this should remove her from the MIG.

11The respondent’s position is the injuries sustained by the applicant are within the MIG and the applicant has not discharged her burden of proof that her ongoing low back pain was caused by the accident.

12I find the injuries sustained by the applicant are “predominately minor injuries” as defined by the Schedule and are clinically associated sequela to the soft tissue injuries sustained as a result of the accident for the following reasons:

13I find the applicant’s injuries fall within the MIG as supported by the conclusions reached within the report of Dr. E. Dessouki, Orthopedic Surgeon dated August 4, 2015. Dr. Dessouki conducted a clinical interview and performed cervical and lumbosacral spine assessments to address the applicant’s complaints of pain in her neck and lower back. It was concluded by Dr. Dessouki that the applicant sustained cervical and lumbar strains, which fall within the MIG. I am unable to find the conclusions reached by Dr. Dessouki are implausible at the time in which the assessment was done on the applicant. I do not accept the applicant’s submission that Dr. Dessouki did not review relevant medical documentation which included: the applicant’s OHIP records and the Markham Stouffville Hospital records. Dr. Dessouki referenced the records of Markham Stouffville Hospital within his report and noted the details of the applicant’s post-accident visit to her family doctor which took place on January 28, 2015. These were the only two post-accident entries contained in the OHIP summary provided to the respondent. Therefore I find Dr. Dessouki did have the relevant medical information when he reached his conclusion that the applicant sustained predominantly minor injuries and that no further physical rehabilitation treatment was required.

14There is evidence before me that the applicant’s back pain had significantly improved by March 2016. The applicant produced a copy of a consultation report dated March 28, 2016 by Dr. S. Kachooie, Physiatrist. It is noted within this report that the applicant is limited with standing, sitting, lifting, housekeeping, and cooking duties. The applicant was diagnosed with “post-traumatic lower back pain”. Dr. Kachooie prescribed Vimovo for her back pain and noted the applicant would benefit from manual therapy, a stretching program, low impact aerobic exercise, and weight loss for her back pain. The report further noted that the applicant’s headaches and neck pain had resolved, low back pain has improved 90% since the accident, and the applicant reported having some pain free days. There is no evidence of radiculopathy noted by Dr. Kachooie. I am not persuaded by this report that the applicant suffers from chronic low back pain as a result of the accident. Dr. Kachooie noted the applicant’s back pain has improved 90% since the time of the accident. It is also recommended by Dr. Kachooie that low impact exercise and weight loss would be beneficial in reducing the applicant’s back pain.

15The clinical note and record (“CNR”) of the applicant’s family doctor, Dr. S. Devi dated April 6, 2017 noted the applicant experienced a fall at work in February 2017 in which she fell forwards and used her hands to brace herself. Dr. Devi noted the applicant had taken Vimovo that day for back pain but had been busy and could not see Dr. Devi prior to this date. The CNR of Dr. Devi, dated May 19, 2017 noted the applicant’s back pain is worse and it was noted that the back pain was at 5-6/10 on a Visual Analogue Scale (“VAS”) but the pain had increased to 7-8/10. The applicant was referred back to Dr. Kachooie. I find this evidence provides support that the pain in the applicant’s back increased in the months following the fall at work.

16Dr. Kachooie referred the applicant for an MRI to address right side low back pain. An MRI report dated September 7, 2017 referenced pain in a different area from what was noted within the hospital record dated January 12, 2015, four days following the accident. This record noted a small mass/swelling on the left side of the applicant’s back at the mid-scapular area. The MRI noted mild degenerative disc disease most pronounced at L3-4 and L4-5 where there is a small diffuse disc bulge. The MRI further noted evidence of epidural lipomatosis causing mild central canal stenosis and moderate bilateral neural foraminal stenosis. At the L5-S1, the MRI noted a mild diffuse disc bulge and an annular tear. This MRI was ordered by Dr. Kachooie seven months after the applicant experienced a fall at work following an increase in the intensity of the applicant’s complaints of low back pain. The MRI reveals degenerative changes and no evidence has been led by the applicant that the mild central canal stenosis and moderate bilateral neural foraminal stenosis were caused by the accident. There has been no evidence provided to indicate whether the annular tear is a partial or a full-tear. A partial tear will not warrant removal from the MIG. The MRI was done 2 years and nine months following the accident and there has been no evidence produced by the applicant which provides an opinion that the disc bulges or the annular tear were caused by the accident.

17The CNR of Dr. Devi dated November 23, 2017 reported the applicant complained of shoulder and back pain and noted the applicant moves heavy boxes once per week at work. This evidence does not support the applicant suffers from a functional impairment as she continued to move heavy boxes once per week as part of her job.

18The applicant relies on the CNR of Dr. Devi dated February 2, 2018 which noted the applicant experiences back pain on a daily basis and Dr. Devi provided a diagnosis of chronic low back musculoskeletal pain, post-accident. A progress letter dated March 26, 2018 from Dr. Devi noted the applicant’s ongoing low back pain interferes with her activities of daily living, her conjugal relationship, her social life, and her recreational activities. Dr. Devi noted the applicant has driving anxiety. The respondent obtained an addendum report from Dr. Dessouki dated March 29, 2018 in which Dr. Dessouki opined the MRI findings were not consistent with the examination he conducted on the applicant on July 20, 2015 which revealed no evidence of musculoskeletal impairment. The report further noted that the updated CNRs of Dr. Devi and the consultation report of Dr. Kachooie dated March 28, 2016 did not change the conclusion reached by Dr. Dessouki in his report dated August 4, 2015. I prefer the evidence provided within the addendum report of Dr. Dessouki as he provided an opinion that the degenerative changes and epidural lipomatosis causing mild central canal stenosis and moderate bilateral neural foraminal stenosis are not the result of the motor vehicle accident. I am not persuaded by Dr. Devi’s diagnosis which links the applicant’s chronic low back pain to the accident. Dr. Devi relies on the increase in the frequency and intensity of the applicant’s self-reporting of her low back pain. The progress letter dated March 29, 2018 lists the applicant’s activities of daily living which have been impacted by her low back pain. However, the CNRs of Dr. Devi note additional factors experienced within the applicant’s life which are non-accident related. The CNRs also reference a fall at work in February 2017, and the applicant moving heavy boxes at work in November 2017. With this evidence before me, I cannot find the cause of the applicant’s chronic low back pain is result of the accident.

19The applicant raises driving anxiety as an impairment resulting from the accident for the first and only time in Dr. Devi’s progress letter dated March 26, 2018. Driving anxiety was never mentioned previously within Dr. Devi’s CNRs. As there has been no further evidence provided to substantiate this, I afford little weight to the applicant suffering from driving anxiety as a result of the accident. I cannot find any further evidence provided by the applicant that she suffers from a psychological impairment as a result of the accident.

Conclusion

20As I have found the applicant’s injuries to fall within the MIG, I do not need to determine whether the proposed medical benefits are reasonable and necessary.

21Since there is no outstanding payment of benefits, there is no basis for interest.

22The applicant’s appeal on all issues in dispute before the Tribunal is dismissed.

Released: July 19, 2018

___________________

Kimberly Parish

Adjudicator

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. R.S.O. 1990, c. I.8. (the “Insurance Act”).
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24