17-001414 v Aviva Insurance Canada, 2018 CanLII 39454

Date: 2018-02-22

Tribunal File Number: 17-001414/AABS

Case Name: 17-001414 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

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Norma Barron, counsel

For the Respondent: Amit Kwatra, counsel

HEARD: In Person and Written hearing on October 11, 2017

OVERVIEW

1The applicant, [applicant], was injured in an automobile accident on August 31, 2014 when she attempted to avoid a collision with a car in front of her. She lost control of her vehicle and collided with the guardrail. She sought benefits from the respondent, Aviva Insurance Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“Schedule”).

2The respondent denied the applicant benefits, finding that her injuries were minor, as defined in the Schedule. The applicant subsequently submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The parties participated in settlement discussions at the case conference on June 1, 2017, but were unable to resolve the issues in dispute.

4With the consent of both parties, a written and an in-person hearing was scheduled for October 11, 2017.

ISSUES IN DISPUTE

5The following issues are in dispute:

1. Is the applicant entitled to receive a weekly non-earner benefit in then amount of $185.00 per week for the period from March 1, 2015 to date and ongoing?

2. Are the applicant’s injuries predominantly minor injuries subject to treatment within the Minor Injury Guideline (“Guideline”)?

3. If the answer to issue number two is no, then I must decide:

a. Is the applicant entitled to receive a medical benefit in the amount of $2,045.95 for occupational therapy services recommended by Janice Kim occupational therapist, in a treatment plan dated April 30, 2015, denied by the respondent on May 25, 2015?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,489.00 for physiotherapy services recommended by Scarborough Physio & Rehab Clinic in a treatment plan dated May 15, 2015, denied by the respondent on May 25, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for psychological services recommended by Dr. Natasha Browne , psychologist, in a treatment plan dated May 15, 2015, denied by the respondent on June 1, 2015?

d. Is the applicant entitled to receive a medical benefit in the amount of $829.30 for occupational therapy services recommended by Scarborough Physio & Rehab Clinic in a treatment plan dated April 7, 2015, denied by the respondent on April 24, 2015?

e. Is the applicant entitled to receive a medical benefit in the amount of$1,452.00 for physiotherapy services recommended by Scarborough Physio & Rehab Clinic in a treatment plan October 6, 2016, denied by the respondent on October 17, 2016?

f. Is the applicant entitled to payments for the cost of examinations in theamount of $2,000.00 for an orthopaedic assessment, recommended by Scarborough Physio & Rehab Clinic in a treatment plan dated April 14, 2015, denied by the respondent on April 24, 2015?

g. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a neurological assessment, recommended by Oshawa Physiotherapy and Rehabilitation clinic in a treatment plan dated December 3, 2016, denied by the respondent on February 11, 2016?

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

RESULT

6Based on the totality of the evidence before me, I find that:

1. The applicant is not entitled to non-earner benefits.

2. The applicant sustained predominately minor injuries as defined under the Schedule and has not proven that she had a pre-existing medical condition documented prior to the accident which would prevent her from achieving maximum recovery, if the benefits are limited to the Guideline cap.

3. Since the answer to issue two is yes, the applicant is not entitled to the medical benefits or costs of examinations in dispute.

4. The applicant is not entitled to interest as there are no benefits owing.

ANALYSIS

Issue 1: Is the applicant entitled to receive a weekly non-earner benefit in the amount of $185.00 per week for the period from March 1, 2015 to date and ongoing?

7Based on the evidence and the medical reports submitted, I find that the applicant has submitted no evidence to show that she has “suffered a complete, continuous inability to carry on a normal life” post-accident, compared to her pre-accident activities.

8Section 12(1)1 of the Schedule sets out the requirements for entitlement to a non-earner benefit:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

Section 3(7)(a) of the Schedule defines “complete inability” as:

A person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

9In relation to the issue of defining impairment, the Court of Appeal in Heath v. Economical² states:

It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase ‘continuously prevents’, means that the claimant must prove disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.

10In relation to the issue of ongoing pain, jurisprudence indicates that ongoing pain as a result of an accident is not sufficient to meet the non-earner benefit test. Non-earner benefits are not intended to compensate an insured person from having to engage in post-accident activity with pain and discomfort ³.

Changes in activities after the accident

11At the time of the accident, the applicant was not employed and was not attending school. The applicant admitted that she last attended school in 2011-2012. She was intending to go back to school in the fall of 2014 to complete some courses, but the programs were not available, so she thought about going back to school in January 2015.

12In both her affidavit and in her testimony, the applicant indicated that she was having difficulty performing various activities such as sitting, standing, walking and driving and required the use of a cane.

13However, the applicant testified that she can do her children’s hair; can carry light bags between 5-10 lbs.; can carry groceries up to 5 pounds; can do light cleaning but cannot clean the floors; cannot bend to do dishes but can rinse the dishes; that her children help her do a lot of the heavier tasks; that her doctors have all advised her to do more physical activities; and that her mother and children help her do the laundry because she has severe pain in her back when she bends down.

14The applicant’s evidence was that she can groom herself. She gave evidence that she cannot sit longer than 30 minutes, where before the accident she could sit for over 45 minutes. Her evidence was that she has to take the stairs five at a time before resting, whether she goes up or down the stairs.

15The applicant’s evidence is that she cannot walk her children to school or to their after-school programs like she used to. She used to walk to the park with her children but cannot now because of the pain. Now she drives the children to the park.

Medical evidence

16Ms. Janice Kim, an occupational therapist, confirmed that the applicant had almost full functional movements in her neck, upper extremities and lower extremities. Ms. Kim made these findings even though she recommended therapy treatment. Mr. Farah Hameed, another occupational therapist, finds the applicant to have the strength and range of motion required to engage in routine personal care, housekeeping and caregiving activities.

17In his report dated March 14, 2016, Dr. H. Aliyarzadeh a pain specialist indicated that the applicant told him that she functioned mostly independently at home. The applicant denies making this statement.

18The Surveillance Report and video by K. Wruck & Associates dated June 20, 2017 shows the applicant driving, socializing, attending a gas station to refuel, and carrying food. During this surveillance time, the applicant showed no apparent signs of disability or use of assistive devices like a cane.

19I accept both of the reports from the occupational therapists as to the functional abilities of the applicant. As these reports are independent, and have similar findings relating to the functional movements of the applicant, I find them to be credible and afford them greater weight than the applicant’s testimony alone. Both reports confirm that the applicant has almost full functional movements and these findings, when combined with the report of Dr. H. Aliyarzadeh and the surveillance report from K. Wruck & Associates, provide compelling evidence that the applicant is not suffering from a complete, continuous inability to carry on a normal life.

20Based on the evidence above, I find that the applicant can function to carry on a normal life, but with some adjustments. As a result, I find that she is not entitled to a non-earner benefit.

Issue 2: Are the applicant’s injuries predominantly minor injuries subject to treatment within the Minor Injury Guideline?

21After reading the documentary evidence and hearing the cross-examination of the applicant, I find that the applicant sustained minor injuries in the accident.

22I reach the above conclusion for the following reasons:

a) while the applicant required stitches for lacerations to her left breast, she did not seek other medical treatment until one to two months post-accident;

b) the reports of occupational therapists, Janice Kim and Farah Hameed, indicate that the applicant has full functional movement; and

c) there is no other evidence, medical or otherwise, submitted by the applicant to show that her injuries were not minor injuries in order to establish her entitlement to coverage beyond the $3,500 Guideline cap.

Applicability of the Guideline

23The term “minor injury” is defined in section 3(2) of the Schedule 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. In respect of an insured person who sustains a predominately minor injury, section 18(1) of the Schedule limits the recovery for medical and rehabilitation benefits under the Guideline to $3,500.

24Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the insured person from achieving maximal recovery if benefits are limited to the Guideline cap.

25The Divisional Court in Scarlett v. Belair Insurance⁴, reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability and not an exclusion from coverage. The court stated that the onus of establishing entitlement beyond the cap rests with the claimant. Therefore, the applicant must establish her entitlement to coverage beyond the $3,500 for minor injuries.

Applicant’s Affidavit Evidence

26The accident occurred on August 31, 2014, when the applicant attempted to avoid a collision with a car in front of her. She lost control of her vehicle and collided with the guardrail. Following the accident, approximately two hours later, the applicant was driven to the hospital by a friend, where she received stitches for lacerations to her left breast and was discharged.

27The applicant claims that as a result of the accident she suffers from: headaches, dizziness, blurry vision, neck pain, back pain, right shoulder, arm and elbow pain, right knee and ankle pain, numbness, knee pain, concussion, anxiety, depression, sleeping difficulties, fatigue, concentration and memory difficulties and chronic pain.

28In her affidavit, she claims she has difficulties with sitting, standing, walking, pushing, pulling, climbing stairs, bending, lifting, and doing repetitive movements with her right arm/shoulder. Her mother helps her with the laundry as she cannot handle heavy loads. She has difficulty with some personal care activities like washing and drying her hair, and shaving. She has not returned to school or any form of employment.

29The applicant also claims that she experienced difficulties caring for her children, including doing their hair, walking them to the park and school, taking them to after school programs and assisting them with their homework.

30The applicant states that she uses a cane to assist her when the pain is severe, wears a back brace and compression stockings. She feels socially withdrawn, does not wear heels and becomes easily irritable and frustrated.

31The respondent’s position is that the applicant’s injuries fall under the Guideline, and therefore she is not entitled to any further benefits as she has already exhausted the $3,500 cap for minor injuries.

Cross-examination of applicant at the in-person hearing

32The applicant indicated that she did not seek treatment until one to two months after the accident. She indicated that she had been in good health before the accident and suffered no pain. She said that she did not experience any medical issues prior to the 2014 accident.

33The applicant admitted that she had some neck pain before the accident. She indicated that before the accident she had no issues with her left knee, thoracic pain, or depression. She said that she finished treatment in early 2014, and that there were some minimal medical issues left to deal with.

Medical Evidence

34The applicant sees her family physician, Dr. Boutros, for her ongoing pain. She has also been seen by Dr. Rabinovitch, an ophthalmologist, Dr. G. Gronkowska, a psychologist, and Dr. J. Wong, a physiatrist.

35In his report dated June 26, 2017, Dr. Wong diagnosed the applicant with chronic pain consisting of: myofascial injury of the cervical spine paraspinal muscles; myofascial injury of the thoracic spine muscles; myofascial injury of the lumbar spine paraspinal muscles and the upper sacral spine gluteal muscles; right elbow lateral epicondylitis; left side breast laceration; worsening insomnia and psychological problems.

36In his report, Dr. Wong also noted that the applicant had advised him that she was involved in two previous accidents which occurred on December 1, 2011, and October 29, 2012. As a result of those accidents, she suffered from neck and upper back pain, a left knee injury and headaches. She apparently was still experiencing intermittent pain from these accidents when she was involved in the accident for which she is claiming benefits. The applicant advised Dr. Wong that she was suffering from arthritis in her left knee since 2014, pre-accident. She also told Dr. Wong that she was having headaches a couple of times a month and would wake up once a night pre-accident. Post-accident, she was waking up four-five times per night. She advised Dr. Wong that she had pre-existing neck and back pain and a history of depression and anxiety, which seemed to get worse post-accident. The applicant denies that she made these statements to Dr. Wong.

37The CNRs of Victoria Medical Group dated February 13, 2013, February 27, 2013 and March 5, 2014 show that the applicant was having issues with her back, neck and left shoulder and was receiving treatment prior to the accident.

38Dr. Aliyarzadeh, a pain specialist doctor, indicated in his report dated March 14, 2016, that the applicant had degenerative joint disease and that she told him that she functioned mostly independent at home. In her cross-examination, the applicant denied that she ever saw him or stated that she could function independently at home.

39In his report dated October 4, 2016, Dr. David D’Sousza, a pain specialist, also confirmed the applicant had degenerative issues.

40In her report dated March 15, 2016, Dr. Grace Gronkowska, psychologist, recommended that the applicant seek a 10-12 week plan to deal with psychological issues associated with soft -tissue injuries.

41In her report dated April 9, 2015, Janice Kim, an occupational therapist, indicated that the applicant had almost full functional movements in the neck and upper extremities and lower extremities; that the applicant could perform self-care, dressing and undressing, but might need some attendant care for parts of her grooming; that the applicant had full mobility in walking, as well as going up and down stairs.

42In his Orthopaedic Surgery Assessment report dated November 21, 2016, the orthopaedic surgeon, Dr. Gilbert Yee, was of the opinion that additional facility-based treatment would not be effective and that additional physiotherapy would not be reasonable or necessary.

43In an Occupational Therapy In-Home Assessment Report dated June 9, 2015, Farah Hameed stated that the applicant indicated that she was independent in the performance of her self-care tasks and did not require assistance. This report also indicated that the applicant had sufficient strength and range of motion required to engage in routine personal care, housekeeping and caregiving activities.

44In his June 9, 2015 report, Dr. Bently (practising in physical medicine and rehabilitation) indicated that the applicant’s injuries fell within the Guideline . His opinion was based on his clinical examination where he found no identifiable accident related neuromuscular impairment.

Pre-Existing Medical Condition

45The evidence relating to the applicant’s pre-accident and post-accident injuries is contradictory. This makes it difficult to assess whether the applicant’s pre-accident injuries take the applicant out of the Guideline. What the applicant told Dr. Wong about her pre-accident injuries conflicts with what the applicant stated under cross-examination. Her oral evidence was that by the time of the accident, she had no pre-accident injuries. There were no medical reports submitted indicating that she had pre-accident injuries. I will accept the testimony of the applicant under oath that she had no pre-existing major medical conditions, particularly given the lack of any medical reports indicating that she had any pre-accident injuries.

46In any event, the applicant failed to submit any evidence prepared by a health practitioner to show that she had a pre-existing medical condition before the accident that will prevent her from achieving maximal recovery if she is subject to the $3,500 limit in the Guideline. All of the pre-accident evidence submitted was what she told to her doctors. The lone exception are the CNRs of Victoria Medical Group. The CNRs of the Victoria Medical group were based on actual observations of the applicant and therefore I find that these reports are compelling evidence of some pre-existing minor medical issues. None of the medical reports, however, gave the opinion that these pre-existing medical conditions would prevent her from achieving maximal recovery. Therefore, there was no evidence to suggest that the Guideline should not apply to the applicant.

47I therefore find that the applicant‘s pre-accident injuries have not met the Schedule requirements for taking her injuries out of the Guideline. Having determined that the applicant’s injuries fall within the Guideline, I do not have to consider the treatment plans in dispute as she has already exhausted the $3,500 cap for minor injuries. As no benefits are deemed payable, the applicant is not entitled to interest.

ORDER

48For the reasons given above, the application is dismissed.

Footnotes

1. 1O.reg.34/10
2. 2Heath v. Economical Mutual Insurance Company 2009 ONCA 391
3. 3See for e.g. Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457; Cook v Pilot 2005 CarswellOnt.2697(May9, 2005 FSCO arb. Dec. A03-001085)
4. 4Scarlett v. belair ONSC 3635