Licence Appeal Tribunal
Tribunal File Number: 17-002638/AABS
Case Name: 17-002638 v Aviva Insurance Company
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:
[The Applicant]
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: David E.W. Koots, Counsel
Written Hearing: March 21, 2018
Overview
1The applicant, was involved in an automobile accident on December 12, 2014, suffering neck, lower back, shoulder, chest and knee injuries. He sought a number of benefits, including an Income Replacement Benefit (IRB), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (Schedule).
2The respondent, Aviva, denied the benefits on the basis that [the applicant’s] impairments fall within the Minor Injury Guideline (MIG), that he has not proven entitlement to an IRB and that the proposed treatment and assessment plans are not reasonable and necessary. [The applicant] submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
3The matter proceeded to a Case Conference, but the parties were unable to resolve the issues and proceeded to this hearing.
ISSUES
4The following issues, as outlined in the Case Conference Order of Adjudicator Msosa, must be determined by the Tribunal:
i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period August 1, 2015 to January 1, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,265.00 for physiotherapy services, recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated September 26, 2016, denied by the respondent on October 15, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,613.37 for psychological services, recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated April 28, 2016, denied by the respondent on September 2, 2016?
iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for an orthopedic assessment, recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated December 29, 2015, denied by the respondent on January 25, 2016?
v. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a psychological assessment, recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated December 29, 2015, denied by the respondent on January 25, 2016?
vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
5Although not contained in the Order of Adjudicator Msosa, the parties have expended considerable effort on submissions related to the issue of whether [the applicant’s] injuries are predominately minor injuries as defined by the Schedule and therefore subject to the $3,500 funding limits of the MIG. As MIG determination was indicated in the initial application as an issue in dispute and also acts as a threshold issue that will inform many of the other issues in dispute here, I have considered the parties’ submissions on this issue, provided analysis and a determination below.
RESULT
6For the reasons that follow, I make the following determinations:
7[The applicant’s] injuries are predominately minor injuries that can be treated within the limits of the MIG. As such, the proposed treatment and assessment plans in dispute are not reasonable and necessary. Further, I find that [the applicant] has not proven that he is entitled to an income replacement benefit for the period in dispute. As a result, I find that no award or interest for overdue benefits is payable.
ANALYSIS
Are [the applicant’s] injuries predominately minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
9In the decision of Scarlett v. Belair Insurance,2 the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
10[The applicant] submits that the injuries he sustained in the accident are not minor injuries and that his psychological impairments and chronic pain take him out of the MIG. He contends that without further treatment, he is unlikely to achieve maximal recovery and relies on several OCF-18’s,3 two assessment reports and clinical notes and records in support of his argument.4 In response, Aviva maintains that [the applicant’s] injuries fall within the MIG on the basis that the actual injuries from the accident are minor, that [the applicant’s] left shoulder pain is unrelated to the accident and that he does not have a valid psychological diagnosis to remove him from the MIG. In support of its arguments, Aviva relies on several s. 44 Insurer’s Examinations.5 After reviewing all of the documentation, I find that [the applicant’s] injuries are predominately minor injuries.
11On review of the OCF-3 and OCF-18’s, the diagnosis of [the applicant’s] injuries from the accident fall squarely within the definition of minor injuries, as they are identified as sprain and strains of the cervical spine, lumbar spine, shoulder joint and knee. The minor nature of [the applicant’s] injuries is confirmed in Dr. Harrington’s s. 44 Report, where [the applicant] is diagnosed with similar issues and it is indicated that his prognosis for recovery is good. Further, during Dr. Fung’s s. 44 examination, [the applicant] self-reported an 85% improvement since the accident, leading Dr. Fung to conclude that his injuries were minor and there was no objective clinical finding to support ongoing impairment related to the accident.
12The recurring pain and impairment to [the applicant’s] left shoulder seems to be the only injury that may remove [the applicant] from the MIG, based on his consistent self-reporting post-accident, Dr. Abuzgaya’s s. 25 diagnosis of “left shoulder rotator cuff tendonitis, adhesive capsulitis and possible rotator cuff pathology” and the fact that [the applicant] was referred for an x-ray when his shoulder pain persisted. Aviva argues that [the applicant’s] left shoulder pain is causally unrelated to the accident and, in any event, is insufficient to remove [the applicant] from the MIG. I find that the injury is not sufficient to remove [the applicant] from the MIG for the following reasons.
13Aviva submits that the left shoulder injury diagnosed by Dr. Abuzgaya on June 1, 2016 is unrelated to the accident that occurred in December 2014. In Dr. Harrington’s Report from April 14, 2016, [the applicant] demonstrated “full range of pain-free movement of both shoulders.” Aviva also directs me to the clinical notes and records of Dr. Selvananthan, where there is no mention of left shoulder pain during the ten appointments [the applicant] attended between the date of the accident and April 18, 2016, which was 16 months post-accident. It was not until June 27, 2016 that Dr. Selvananthan ordered the left shoulder x-ray and ultrasound. The results of the x-ray were unremarkable and the ultrasound only revealed possible left bicipital tendonitis.6 Further, specific notations related to the left shoulder and left shoulder pain do not begin to appear in the “Chiro Daily Visit Forms” until May 12, 2016 and not until April 25, 2016 in the “Physio Daily Visit Forms” from Scarborough Physiotherapy.7 Aviva does not offer a competing theory on causation, just the implication that it was exacerbated sometime in spring 2016.
14I do not have sufficient evidence to determine causation. Regardless, the burden of proof still lies with [the applicant] to show that his left shoulder pain is related to the accident. I have no reason to doubt [the applicant’s] contention that he suffered some sort of injury to his left shoulder due to the accident and that it is getting worse with the passage of time. The problem for [the applicant], however, lies in the diagnosis. On [the applicant’s] evidence, he is suffering from tendonitis, adhesive capsulitis and potential rotator cuff pathology in his left shoulder which requires ongoing physiotherapy. On Aviva’s, it is conceded he suffers from tendonitis but that it is an otherwise unremarkable injury. In the absence of evidence that there is a complete or even partial tear in [the applicant’s] shoulder, tendonitis—the inflammation or irritation of a tendon—is captured within the definition of minor injury under the Schedule and can be treated within the MIG.
15Yet, [the applicant] submits that his shoulder pain is persistent and well beyond what could be characterized as the “acute stage” of pain contemplated by the MIG, directing me to jurisprudence supporting his assertion that his pain is chronic and therefore beyond the MIG. If [the applicant’s] injuries fall within the definition of the MIG, he can still be considered to be out of the MIG in accordance with s. 18(2) of the Schedule. The standard for excluding an impairment on the basis of a pre-existing condition or chronic pain is well-defined and strict. Evidence of either will not automatically exclude [the applicant’s] impairment from the MIG. The Schedule requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.
16The onset of increasing pain in [the applicant’s] left shoulder over a year removed from the accident is consistent with adhesive capsulitis—or colloquially, frozen shoulder—which, left untreated, could prove debilitating for [the applicant] in his personal life and in his employment as a baker. Aviva’s theory surrounding [the applicant’s] delayed complaints of shoulder pain ironically supports this. However, I am concerned that this diagnosis appears only in the Report of Dr. Abuzgaya and nowhere else. The reports of Dr. Harrington and Dr. Fung do not mention adhesive capsulitis. The x-ray and ultrasound reports of June 26, 2016 do not mention adhesive capsulitis. None of the OCF-18’s mention adhesive capsulitis or provide direction on how [the applicant] might overcome it. Dr. Selvananthan’s clinical notes and records are also silent. All told, the lone diagnosis from Dr. Abuzgaya is not sufficient to meet the compelling standard necessary for [the applicant] to escape the MIG, as it is trumped by the myriad evidence suggesting otherwise. As a result, I find on a balance of probabilities that [the applicant’s] physical injuries are predominately minor injuries, treatable under the MIG.
Does [the applicant] have psychological injuries that would remove him from the MIG?
17Psychological impairments, if established, fall outside the MIG, because the MIG only covers “minor injuries” and the definition does not include psychological impairments. I find [the applicant] does not have a psychological diagnosis that would take him out of the MIG for the following reasons.
18[The applicant] submits that his psychological impairments alone justify removing him from the confines of the MIG, based on the Report and OCF-18 submitted by Dr. Gronkowska, dated January 25, 2016. [The applicant] submits that he is moderately depressed and has mild anxiety, as well as “intense psychological distress to internal or external cues” and was diagnosed with Adjustment Disorder with Depressed Mood, with a recommendation that he undergo counselling. In response, Aviva relies on the s. 44 Psychological Examination and Report of Dr. Nikkhou, dated August 26, 2016. In the Report, Dr. Nikkhou indicates that [the applicant] reported that he is “not in need of any additional intervention and is not interested in psychological therapy” and “reports no current anxiety, depression or irritability,” a finding that was confirmed by [the applicant’s] scores in the psychometric testing. Further, Dr. Nikkhou indicates that [the applicant] reports no mental or emotional problems related to driving or travel. Notably, Dr. Gronkowska’s Report indicates the opposite: that [the applicant] suffers from severe passenger anxiety and nervousness in a vehicle.
19Both Dr. Gronkowska and Dr. Nikkhou conducted a slate of psychometric testing and clinical interviews with [the applicant], resulting in different diagnoses. I have no reason to doubt the qualifications or methods of either doctor, but must assign weight. After reviewing both reports, I prefer the Report of Dr. Nikkhou, as I find that it is a more comprehensive account of [the applicant’s] psychological and emotional state. For example, it is well-documented throughout the file that [the applicant’s] wife underwent brain surgery to remove a tumour in the months before Dr. Gronkowska’s assessment. I find it odd that this piece of information is missing from a psychological report and that Dr. Gronkowska was able to attribute all of [the applicant’s] emotional and psychological impairment solely to an accident that occurred a year and a half prior, without mention of [the applicant’s] wife’s brain tumour or how it may affect his emotional state. Instead, Dr. Gronkowska includes the minor details from the results of the Beck Anxiety Inventory: [the applicant] being moderately distressed by wobbliness in his legs, [the applicant] being mildly troubled by feeling hot, heart pounding or racing, hands trembling, feeling shaky, and indigestion or discomfort in abdomen.8 Dr. Gronkowska’s analysis of [the applicant’s] post-traumatic stress disorder symptoms also makes no mention of [the applicant’s] wife’s brain tumour. This omission, in my opinion, casts some doubt on the report, given that such a significant life event is absent.
20In any event, while I am sympathetic to [the applicant] and his wife’s situation, I consider Dr. Gronkowska’s diagnosis to be an amplification of [the applicant’s] symptoms. In contrast, I find that Dr. Nikkhou’s psychometric test results and subsequent diagnosis are proportional to [the applicant’s] reported symptoms. As a result, I follow his recommendation that [the applicant] does not have any significant psychological impairments that would remove him from the MIG.
Are the treatment and assessment plans in dispute reasonable and necessary?
21According to Scarlett, the onus is on the applicant to prove entitlement. As it is my finding that [the applicant] has not met his onus to show that his injuries are outside of the MIG, there is no need for me to conduct an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary.
Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period August 1, 2015 to January 1, 2016?
22[The applicant] submits that he is entitled to payment of an IRB in the amount of $372.48 per week, based on the income he earned in the 52 weeks pre-accident. [The applicant] cites his 2014 and 2015 income tax records9 as proof of quantum and the notes of Dr. Woo and SPARC as proof of entitlement. In response, Aviva contends that [the applicant] has not actually proven that he missed work as a result of the accident and that he is not entitled to the IRB. It relies on the original OCF-1, the notes of Dr. Selvananthan, the Report of Dr. Nikkhou and [the applicant’s] own self-reporting during various assessments.
23In order to trigger entitlement to an IRB, [the applicant] must prove, among other things, that as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks of the accident, pursuant to s. 5(1) of the Schedule. This test encompasses three considerations that [the applicant] must prove on a balance of probabilities: Was [the applicant] employed at the time of the accident? Is his absence related to the accident? And, does he suffer from a substantial inability to perform the essential tasks of his pre-accident employment? I find that [the applicant] has not provided evidence of his inability to perform the essential tasks of his pre-accident employment or that he missed work as a result of the accident.
24Aviva directs me to Part 8 of the OCF-1 submitted by [the applicant], where it indicates that [the applicant’s] injuries did not prevent him from working. This was evidently the reason behind Aviva’s denial on October 1, 2015. Additionally, Aviva submits that [the applicant] never submitted his Employment Insurance file or his employment file, despite Adjudicator Msosa ordering the production of both and Aviva pre-paying for the production of [the applicant’s] employment file. [The applicant] offers no argument or explanation to rebut Aviva’s submissions on this issue. Although I have no reason to doubt that [the applicant] was indeed employed at the time, I concur with Aviva that these documents are essential pieces of evidence to determine causation. Put another way: the documents are necessary to determine whether [the applicant] missed time at work, how long he missed work for and whether his absence was related to the accident or on grounds of compassionate care due to his wife’s surgery.
25Aviva also highlights several instances of [the applicant’s] self-reporting to various assessors that seem to contradict his assertion that he is entitled to an IRB. For example: during the s. 25 assessment with Dr. Abuzgaya, [the applicant] reported that he returned to his employment two days after the accident on regular hours and duties; during Dr. Nikkhou’s psychological examination, [the applicant] stated that he continued to work after the accident for one year and then stopped to take care of his wife; during Dr. Fung’s examination, [the applicant] reported that he took two days off of work and then returned on full duties. In his brief submission on IRB entitlement, [the applicant] does not address these discrepancies and relies solely on Dr. Woo’s note that he was unable to continue with his work tasks from July 11, 2015 to January 2016 and SPARC’s clinical note indicating that he “still has pain in his low back especially when working (long hours standing at [work])”. SPARC’s clinical note is not evidence that [the applicant] missed time from work and Dr. Woo’s note is contradicted by [the applicant’s] own self-reporting to several different assessors. In the absence of corroborating evidence—no paystubs or OCF-2 were submitted either—proving that [the applicant] missed work as a result of the accident, it is difficult to determine that [the applicant] is entitled to an IRB. As a result, I find that [the applicant] has not proven on a balance of probabilities that he missed work as a result of the accident and therefore I do not embark on an analysis of whether he is unable to perform the essential tasks of his employment as a result of the accident. Accordingly, I find he is not entitled to an IRB for the period in dispute.
Is [the applicant] entitled to an award under s. 10 of O. Reg. 664?
26[The applicant] submits that he is entitled to an award from the Tribunal under s. 10 of Ontario Regulation 664 because Aviva unreasonably withheld or delayed payments. I disagree. Based on my findings, Aviva’s decision to deny entitlement was reasonable and as such, [the applicant] is not entitled to an award.
Is [the applicant] entitled to interest on the overdue payment of benefits?
27Having determined that no benefits are overdue, [the applicant] is not entitled to interest pursuant to s. 51 of the Schedule.
CONCLUSION
28For the reasons above, I find that [the applicant’s] injuries are predominately minor injuries as defined by the Schedule. As such, the treatment and assessment plans are not reasonable and necessary. Further, I find that [the applicant] is not entitled to an income replacement benefit for the period in dispute or an award under O. Reg. 664. As no benefits are overdue, [the applicant] is not entitled to interest. This application is dismissed.
Released: April 25, 2018
_____________________________
Jesse A. Boyce, Adjudicator
Footnotes
- O. Reg. 34/10.
- 2015 ONSC 3635.
- Primarily the Treatment and Assessment Plans by SPARC and Dr. Gronkowska, respectively, both dated January 25, 2016, Applicant’s Book of Exhibits, Tab 6 and 8; OCF-18 dated April 28, 2016, Tab 10.
- Orthopaedic Assessment of Dr. Abuzgaya, dated June 1, 2016, Applicant’s Book of Exhibits, Tab 7; Psychological Assessment of Dr. Gronkowska, dated May 30, 2016, Ibid., Tab 9.
- Report of Dr. Harrington, OS, dated April 14, 2016, Respondent’s Book of Authorities, Tab 12; Report of Dr. Fung, GP, dated September 22, 2016 and Paper Review, dated October 26, 2016, Id., Tabs 4 and 13; Psychological Report of Dr. Nikkhou, Psychologist, dated August 26, 2016, Id., Tab 3.
- Applicant’s Book of Authorities, Tab 5.
- Respondent’s Book of Authorities, Tab 2, at pages 8 and 11.
- Report of Dr. Gronkowska, pages 5-6.
- Applicant’s Book of Authorities, Tabs 26-27.