Tribunal File Number: 17-008622/AABS
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:
M.V.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
APPEARANCES:
Dawn J. Kershaw
For the Applicant: M.V., Applicant
Lyndsay Caruana, Paralegal
For the Respondent: Maggie Morgan, Counsel
Held In-Writing: May 22, 2018
OVERVIEW
1On July 12, 2015, the applicant was preparing to make a left hand turn and an oncoming car hit the front driver’s side of the car. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2Because the respondent refused to pay for certain medical benefits, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
3I must decide the dispute based on the written materials the parties have filed with the Tribunal.
ISSUES IN DISPUTE
4The disputed claims in this hearing are:
i. Are the applicant’s injuries considered primarily minor injuries as defined in s. 3.1 of the Schedule, and therefore subject to treatment within the Minor Injury Guideline (MIG) limit of $3500 (Issue 1)?
ii. If the applicant’s injuries are not considered primarily minor injuries, is the applicant entitled to payment in the amount of:
a. $2460.00 for a psychological assessment recommended by Dr. Jon Mills in a treatment plan dated November 26, 2015, denied by the respondent on January 28, 2016 (Issue 2);
b. $1609.85 for physiotherapy services recommended by Complete Rehab Clinic in a treatment plan dated December 17, 2015, denied by the respondent on January 28, 2016 (Issue 3); and
c. $1374.87 for physiotherapy services recommended by Complete Rehab Clinic in a treatment plan dated May 26, 2016, denied by the respondent on June 23, 2016 (Issue 4).
iii. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $186.00 per week from February 19, 2016 to date and ongoing, denied by the respondent on February 19, 2016 (Issue 5)?
iv. Is the applicant entitled to interest on any overdue payments (Issue 6)?
RESULT
5Based on the evidence before me, I find:
i. The applicant’s injuries are primarily minor injuries as defined in s. 3.1 of
the Schedule, and therefore subject to treatment within the Minor Injury Guideline (MIG) limit of $3500 (Issue 1);
ii. Because of the MIG limits, the applicant is not entitled to payment for the treatment set out in the three treatment plans (Issues 2 to 4);
iii. The applicant is not entitled to an IRB (Issue 5); and
iv. The applicant is not entitled to interest as there are no outstanding amounts payable.
REASONS FOR DECISION
ISSUE 1 - MINOR INJURY GUIDELINE
6The 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.
7Section 18(2) of the Schedule provides exceptions to the $3500 limit. Pursuant to that section, the applicant takes the position that he is exempt from the MIG limit because he had one of the following:
a pre-existing condition that prevents him from achieving maximal recovery from the minor injury under the MIG or the cap;
a psychological injury that is not mere sequelae of his soft tissue injuries.
8Having reviewed the medical evidence regarding the applicant’s injuries, I have determined that the applicant falls within the MIG and is subject to its $3,500.00 funding limit, for the reasons that follow.
The applicant’s physical injuries
9The applicant sustained injuries primarily to his left arm. On July 13, 2015 his family doctor stated he had soft tissue injuries and recommended physiotherapy. He also noted pain in the applicant’s back, knees, ankles and both shoulders on August 4, 2015. He commenced physiotherapy in about July 2015 and appears to have still been getting physiotherapy in January 2016.
10The applicant submitted more than 100 pages of physiotherapy records and all his doctor’s clinical notes and records, but did not pinpoint for what period of time he received treatment. The January 26, 2016 physiotherapy note states he should continue physiotherapy, and in September 2017, it appears his family doctor referred him to physiotherapy again, but it is not clear when he ceased attending after the January 2016 note. The January 2016 note stated the applicant had a tender neck and low range of motion in his shoulder.
11The onus is on the applicant to demonstrate that he has physical injuries that do not come within the MIG. In this case, the applicant did not provide any evidence that supported anything other than soft tissue injuries. Therefore, the only way he can rely on his physical injuries to remove him from the $3500 MIG limit is to demonstrate that he had pre-existing injuries that meet the following conditions:
i. The applicant’s health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing medical condition will prevent him from achieving maximal recovery (MMR) from the minor injury.
12I turn now to a consideration of these factors.
Pre-existing, documented medical condition and MMR
13The clinical notes and records of the applicant’s family doctor, Dr. Poonah, refer to pain and swelling in the applicant’s shoulder in December 2014 and April 2015. The applicant also relies on the notes of Dr. Paleksic who saw the applicant in August 2015 to substantiate a pre-existing shoulder condition.
However, her note states that the applicant had a couple of days of shoulder pain in April 2015 that his ultrasound was then normal and his pain resolved. Dr.
Poonah’s clinical note also says the applicant’s x-ray was normal. I find that the applicant has not proved that he had a pre-existing shoulder condition at the time of the accident that would prevent him from reaching maximal medical recovery under the MIG.
14It appears that the applicant also argues that because he reported pre-existing numbness and paraesthesia in his feet and toes in 2007, this constituted a pre- existing injury. He also submits his past medical history, being diabetic and deconditioned, should take him out of the MIG. I was provided with no further, more specific information. With respect to the pre-existing numbness and paraesthesia, I have no specifics and no information about whether these complaints existed as at the date of the accident and therefore find that no health practitioner had documented that the applicant had these pre-existing complaints before the accident.
Conclusion - Pre-existing, Documented Medical Condition
15I find that the applicant did not have pre-existing physical injuries that remove him from the MIG limit.
Chronic Pain
16At the end of his reply submissions, the applicant submits that because his doctor stated “chronic pain” in his clinical note, dated April 2016, he should be exempt from the MIG. Leaving aside the fact that the applicant raised this only in reply, I find that the mere mention of chronic pain in one clinical note is not sufficient medical support for the applicant’s removal from the MIG limits.
17I turn now to a consideration of whether or not the applicant had psychological injuries that would mean he should be exempt from the MIG limits.
THE APPLICANT’S PSYCHOLOGICAL INJURIES
18The applicant takes the position that psychological injuries exempt him from the MIG limits. The emergency room record on the day of the accident refers to anxiety. The applicant’s chiropractor completed a Disability Certificate eight days later on July 20, 2015 and recommended a psychological assessment because the applicant complained of severe anxiety, frustration, depressed mood, irritability, reclusiveness and poor sleep quality. He also completed a Minor Injury Treatment Discharge Report on October 28, 2015 and said the applicant should be exempt from the MIG and had severe depression that would benefit from psychological intervention.
19Other than the chiropractor, it appears the applicant saw his family doctor, Dr.
Poonah, three times from the date of the accident to January 26, 2016 and not at all between January 26, 2016 and April 2017. Dr. Poonah made no mention of any psychological issues in the three visits between the date of the accident and April 2017 and did not refer the applicant to a psychiatrist until October 16, 2017, more than two years after the accident, which is also after a second motor vehicle accident. The applicant’s submissions refer to Dr. Poonah’s March 1, 2018 note, two and a half years after the accident, in which he stated he would refer the applicant to a psychiatrist. As of the date of the applicant’s submissions, he apparently was awaiting a psychiatric appointment. However, Dr. Poonah’s notes did not provide any insight into why his clinical notes made no mention of any psychological issues in the applicant before October 2017.
20The applicant underwent an insurer’s examination by a psychologist, Dr.
Rubenstein, on January 18, 2016. The testing resulted in invalid findings, and included endorsing a high rate of symptoms of depression and anxiety that do not generally occur in a constellation even in an atypical mood or anxiety disorder.
21Most importantly, the applicant’s family doctor did not make note of any psychological issues until October 2017, more than two years after the accident and after a second motor vehicle accident. The applicant did not provide any information about any medication for any psychological issues. In sum, the applicant did not provide compelling evidence that he had psychological issues that resulted from this accident. The onus is on the applicant to prove that he is out of the MIG, but he failed to provide sufficient and timely medical evidence to support a psychological condition that would remove him from the applicability of the MIG.
22The only references to depressive symptoms came from the chiropractor who had the applicant complete a questionnaire, but who does not treat psychological issues. I prefer the results of the testing done by the psychologist, Dr.
Rubenstein, who is trained to conduct such testing and whose expertise is in psychology.
23The applicant also opined that there were cultural difficulties that led to the invalid results in Dr. Rubenstein’s report, but he did not provide any details, and I find no basis upon which to make such a finding.
24In addition, while the applicant took issue with the fact that the applicant’s medical notes had not been sent to Dr. Rubenstein for comment, he did not explain why this would have made any difference given Dr. Rubenstein’s findings and the fact that his family doctor made no reference to psychological issues until more than two years after the accident.
25Given the above findings, I find the applicant has not proved that he has psychological issues that would exempt him from the MIG limits.
ISSUES 2 TO 4 - TREATMENT PLANS
26Because I find that the applicant’s injuries are within the MIG, the MIG limits apply and have been exhausted, and I need not determine whether the applicant is entitled to the treatment set out in the treatment plans.
27I turn now to the issue of income replacement benefits.
ISSUE 5 - INCOME REPLACEMENT (FEBRUARY 19, 2016 AND ONGOING)
28I must determine if the applicant, who was a taxi driver, is entitled to an income replacement benefit (IRB) in the amount of $186.00 per week from February 19, 2016 to date and ongoing. The applicant received an IRB from July 20, 2015 to February 19, 2016 in the amount of $186 per week.
29The applicant submits that he cannot perform the essential tasks of his pre- accident employment because he feels responsible for his customers’ safety, must transport customers any distance they want and cannot sit for the required length of time without being able to exit the taxi and stretch.
30The applicant’s written submission asks that the respondent pay him IRB in the total amount of $13,466.40, but it is unclear what period of time this represents. He states that the $13,466.40 is “to reflect the outstanding amount for the 104 weeks” but goes on to say “from July 12, 2017 to date and ongoing”.
31The respondent states it terminated the IRB effective February 19, 2016 on the basis of the orthopaedic assessment.
32Pursuant to sections 5 and 6 of the Schedule, the applicant is entitled to income replacement benefits (IRB) if he was employed at the time of the accident and within 104 weeks of the accident suffers a substantial inability to perform the essential tasks of his employment as a taxi driver.
33The applicant argues that by paying IRB for a period of time, the respondent acknowledges that the applicant’s injuries resulted from the accident, and because his family doctor states as of March 1, 2018 that he requires psychiatric treatment, the respondent should continue paying the applicant an IRB.
34The applicant submits he suffers from anxiety, and specifically driving anxiety, as well as depression and cannot return to his pre-accident employment. The applicant acknowledges he drives short distances, but submits that this is not the same as driving a taxi for a living, which required him to drive longer distances at times as requested by customers.
35The only medical information I have from the applicant is the records of the physiotherapist and chiropractor, Dr. Mills and Dr. Jessa; and the family doctor, Dr. Poonah. I have spent a considerable amount of time reviewing these notes to the extent I was able, but some of this documentation was undated.
36The applicant referred me to the Disability Certificates completed by Dr. Jessa on July 20, 2015 and by Dr. Poonah on August 4, 2015. Dr. Jessa said the applicant suffered a complete inability to carry on a normal life and the expected duration of his impairment was 9 to 12 weeks. Dr. Poonah stated the applicant had suffered a complete inability to carry on a normal life and the expected duration was greater than 12 weeks.
37The applicant takes the position that he cannot sit in his taxi for the required amount of time. Dr. Poonah’s clinical note of August 4, 2015 referred to the applicant having back pain, but his clinical notes of September 15, 2015 and January 26, 2016 did not. Almost 15 months after Dr. Poonah’s note had last mentioned back pain, his April 21, 2017 clinical note referred to the applicant’s back pain as having worsened.
38The applicant’s physiotherapist’s clinical notes described the applicant’s back and neck pain in late 2015 and as of May 26, 2016 as intermittent, achy and stiff. The notes also referred to the applicant having neck, back, shoulder and right arm pain due to muscle tightness.
39In July 2015, the physiotherapist administered a neck disability test in which he stated he could drive as long as he wanted with moderate neck pain. In November 2015, the physiotherapist administered another neck disability test and it stated that the applicant could not drive as long as he wanted because of moderate neck pain. A physiotherapy clinical note dated December 17, 2015 stated that the applicant returned to work for a few days but could not tolerate it, but did not specify why. The physiotherapist also administered a psychological assessment pre-screening questionnaire in which the applicant said he had returned to work part-time, but this form is undated.
40The applicant provided no specifics about his inability to work, and most importantly provided no information about his inability to work as of the date his IRB was terminated in February 2016. The Disability Certificates provided some information, but the most recent was Dr. Poonah’s dated August 4, 2015 in which he stated the expected duration of the applicant’s disability was greater than 12 weeks, but since that time he provided no further convincing medical evidence. .
41The applicant provided no medical information that satisfied me on a balance of probabilities that he was unable to work from a physical perspective. He also provided no convincing medical documentation to support his inability to work from a psychological perspective on a balance of probabilities. As indicated, he submitted Dr. Poonah’s clinical note of October 16, 2017 in which he referred the applicant to a psychiatrist more than two years after the accident. The applicant also submitted a short letter from Dr. Poonah, dated March 1, 2018 in which he stated that the applicant had not been working since the accident and would be referred to a psychologist or psychiatrist. Dr. Poonah also stated the applicant’s health remained the same since the accident with neck, shoulder and back pain, but at no time did he set out why the applicant could not work.
42The applicant takes the position that the respondent should have done a Functional Abilities Evaluation. The respondent referred the applicant to an IE with an orthopaedic surgeon, Dr. Auguste, who saw the applicant on February 3, 2016. She assessed the applicant as having suffered minor injuries and stated he did not suffer a substantial inability to perform the essential tasks of his employment.
43Having considered all the medical evidence, I find the applicant has not satisfied me on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his employment. Dr. Poonah’s evidence is not persuasive because although he states that the applicant has not worked since the accident, he does not say why. He reports that the applicant has neck, back and shoulder pain, but does not explain how those interfere with his ability to work. He also referred the applicant to a psychiatrist but did not do so until well after the accident.
44As a result, I find that the applicant has not met the burden of proving that he cannot perform the essential tasks of his employment and therefore should be entitled to IRB.
INTEREST (ISSUE 6)
45Because there are no outstanding amounts payable, the applicant is not entitled to interest.
CONCLUSION
46The applicant’s claim is dismissed.