W. I. v. Aviva Insurance Canada, 2018 CanLII 76440

17-003597 v Aviva Insurance Canada

Date: 2018-04-18 Tribunal File Number: 17-003597/AABS Case Name: 17-003597 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:

[The Applicant]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Applicant: Lisa Bishop, Counsel For the Respondent: Patrick M. Baker, Counsel

Heard in writing: November 7, 2017

OVERVIEW

1On August 3, 2015, the applicant, W. I., was involved in a motor vehicle accident, when her vehicle was struck from behind.

2The applicant applied for medical benefits, specifically, two treatment plans related to physiotherapy services, and the cost of examination for a psychological assessment, that were denied by the respondent, Aviva Insurance Canada. The denial was based upon the respondent’s position that the applicant’s injuries were predominately minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “Guideline”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

3The applicant disagreed, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

ISSUES IN DISPUTE

4The following issues are in dispute:

(a) Are the applicant’s injuries predominately minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the Guideline?

(b) Is the applicant entitled to receive a medical benefit in the amount of $320.94 ($1,336.99 minus $1,016.05 approved) for physiotherapy and massage therapy services recommended by Ali Kanji, physiotherapist of Ajax Rehabilitation Centre, in a treatment plan dated November 18, 2015, and denied by the respondent on December 2, 2015?

(c) Is the applicant entitled to receive a medical benefit in the amount of $2,652.38 for physiotherapy services and massage therapy recommended by Ali Kanji, physiotherapist of Ajax Rehabilitation Centre, in a treatment plan dated December 18, 2015, and denied by the respondent on January 13, 2016?

(d) Is the applicant entitled to payment for the cost of examination in the amount of $1,997.64 for a psychological assessment, recommended by Grace Gronkowski, psychologist, in a treatment plan dated May 3, 2016, and denied by the respondent on June 10, 2016?

(e) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(f) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based upon a review of the totality of the evidence presented, I find that:

(a) The applicant’s injuries fall within the Guideline and are predominately minor injuries.

(b) The applicant does not have a pre-existing medical condition that would prevent maximal recovery under the Guideline.

(c) As the applicant’s injuries are within the Guideline, it is not necessary to consider the reasonableness of the treatment plans or the issue of interest.

(d) The applicant is not entitled to an award.

DISCUSSION

The Applicability of the Guideline

6The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) 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 “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.

7Section 18 further provides that the $3,500.00 limit does not apply to an insured person “if her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500.00 limit.”

8In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisonal Court reviewed the minor injury provisions in the Schedule, and found that they were a limit on an insurer’s liability, but not an exclusion from coverage, and thus the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. Applying Scarlett, the onus is on the applicant to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.

A. Did the applicant sustain a predominately minor injury?

9I find that the applicant sustained an impairment that is predominately a minor injury for the following reasons.

10The medical evidence from both parties suggests that the applicant’s injuries fall within the definition of a “minor injury” as listed in section 3(1) of the Schedule. I will summarize the evidence of the injuries below.

11In the three treatment plans at issue in this hearing, the applicant’s injuries are listed as: sprain and strain of lumbar spine, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, tension-type headache and muscle strain. In addition, in all three treatments plans the service provider has responded in the affirmative to the question of whether the impairment is predominately a minor injury as referred to in the Guideline. There is no indication in the treatment plans that the impairment is anything other than predominately a minor injury.

12One day after the accident, on August 4, 2015, the applicant’s family physician, Dr. Risa Bordman, notes that a physical examination reveals that the applicant maintained an 80% range of motion in her neck, with tenderness along the lumbar spine and paraspinals. Dr. Bordman diagnosed the applicant with cervical and lumbar strain. She notes that the applicant is experiencing pain, and recommends physiotherapy/massage, and Advil or Motrin. On January 7, 2016, Dr. Bordman notes that the applicant is experiencing lower back pain, headaches, and diagnosis ongoing musculoskeletal strain and anxiety.

13The June 13, 2016 and July 13, 2016 clinical notes and records of Dr. Christine Li, a family medicine resident working in Dr. Bordman clinic, reveal that she came to a diagnosis that the applicant has back pain. She notes that the applicant may have fibromyalgia, but does not make that diagnosis.

14On July 23, 2016, Dr. Shafik Dharamshi, the respondent’s Insurer Examination (“IE”) assessor, conducted a physical evaluation of the applicant, and prepared a report (the “Dharamshi Report”). He diagnosed whiplash associated disorder grade II/persistent myofascial pain, and lumbosacral musculoligamentous/persistent myofascial pain. He noted that the applicant suffered minor injuries, and that her injuries can be managed within the Guideline.

15The applicant has failed to provide convincing evidence that her injuries are not predominately minor. Accordingly, I conclude that the applicant’s injuries fall within the Guideline.

B. Does the applicant have a psychological impairment that would take her outside of the Guideline?

16In support of a psychological impairment that would take the applicant outside of the Guideline, she points to the note of Dr. Bordman, the day after the accident, wherein it is noted that the applicant was experiencing emotional upset, and advised the applicant to increase her dosage of the anti-depressant Effexor.

17In September 2016, the respondent’s psychologist IE assessor, Dr. Arnold Rubenstein, conducted a psychological evaluation of the applicant (the “Rubenstein Report”). He noted that she has a history of anxiety and depression, and marital problems predating the accident. He states that absent the subject motor vehicle accident, she would likely remain vulnerable to episodic anxiety and depression. He concluded that the applicant had not sustained any diagnosable psychological impairment as a direct result of the motor vehicle accident.

18The applicant counters that Dr. Rubenstein stated that his testing was not reliable or valid. However, I note that Dr. Rubenstein found that the applicant over endorsed symptoms relevant to somatic, affective and cognitive function. Specifically, she endorsed a high rate of symptoms rarely found in neurological disorders, highly atypical for patients with genuine psychiatric or cognitive disorders, and both illogical and rarely reported in actual psychiatric patients. He advised that the psychological evaluation revealed that the applicant was not reliable as an informant. He states that his opinions in his report are based upon his psychometric findings, in conjunction with a document review of medical evidence on file, and the clinical interview.

19I find the Rubenstein Report convincing. Dr. Rubenstein’s findings, drawn from test data, indicate no evidence to warrant any diagnosis according to the criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition. Dr. Rubenstein concludes that the applicant did not sustain any diagnosable psychological impairment as a direct result of the subject accident. I find that the applicant has not provided any convincing evidence to the contrary. The applicant provides medical evidence of psychological issues, but has failed to provide sufficient evidence to establish a causal connection between the impairment and the accident. I find that the applicant has not established on a balance of the probabilities that her psychological impairment was caused by the subject motor vehicle accident. She has not met her burden.

20Given the above, it is my finding that the applicant has injuries that fall within the definition of “minor injury” as per the Schedule.

21However, if the applicant can establish a pre-existing medical condition that will prevent her from achieving maximal medical recovery under the Guideline, then she can escape the $3,500 limit.

C. Pre-existing conditions

22I find that the applicant has not satisfied her onus, and has not met the requirements to establish a pre-existing condition in order to be removed from the Guideline.

23In accordance with section 18(2) of the Schedule, in order to be removed from the Guideline, the applicant must establish the following:

(a) There was a pre-existing medical condition;

(b) The pre-existing medical condition was documented by a health practitioner before the accident; and

(c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit.

24The applicant asserts several pre-existing medical conditions: (i) injuries from prior motor vehicle accidents in 2009 and 2011; (ii) a workplace injury in 2013; and (iii) a psychological impairment.

(i) Motor vehicle accidents

25With regard to the 2009 motor vehicle accident, I note that the applicant has not provided any medical evidence to demonstrate she sustained injuries as the result of a 2009 motor vehicle accident. The applicant makes the assertion in her submissions, but does not provide any medical notes or records to substantiate the assertions. Furthermore, the accident is self-reported by the applicant to the IE assessors, Drs. Dharamshi and Rubenstein, who both mention it in their respective reports, and note that the applicant states that she sustained soft tissue injuries which were resolved prior to the date of the accident at issue. Thus, the applicant has not met any of the three requirements.

26With regards to the 2011 motor vehicle accident, the applicant has provided a Disability Certificate, dated June 1, 2011, which listed that applicant’s injuries, including, sprain and strain of thoracic spine and lumbar spine, subluxation complex (vertebral) cervical, thoracic and lumbar region, muscle strain in pelvic region and thigh, and tension-type headache. The applicant does not point to any medical records indicating that these injuries persisted to the date of the accident at issue.

27Even if I were to find that she has met the first two requirements, the applicant has not provided any evidence to show that her pre-existing condition will prevent maximal recovery if she is subject to the Guideline. I am not convinced that the applicant has met her burden to establish that her injuries from the two prior motor vehicle accidents constitute documented pre-existing medical conditions that will prevent maximal recovery if she is subject to the $3,500 limit.

(ii) Workplace Injury

28With regards to the workplace accident, the applicant points to a December 16, 2013 clinical note from Dr. Bordman wherein it is noted that the applicant suffered a workplace injury to her neck, right shoulder, arm and back. She had apparently been hit on the right upper back area by a forklift. She experienced restricted range of motion on her right shoulder.

29The respondent counters with a January 29, 2014 clinical note from Dr. Bordman in which it is noted that the applicant’s injuries are resolved, and she feels ready to return to work. The respondent asserts that there is no evidence to suggest that these injuries complained of persisted to the time of the subject accident. I agree. The applicant has not provided sufficient details or convincing medical evidence.

30The applicant has not met her burden that she has a pre-existing condition that cannot be treated within the Guidelines with respect to her workplace injuries.

(iii) Psychological Impairment

31The applicant lastly asserts a psychological impairment as a pre-existing medical condition which was exacerbated by the subject motor vehicle accident. The applicant submits that she has suffered from depression since at least 2012. She has been taking the anti-depressant Effexor for about 4 years, and was referred to the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”), for depression and generalized anxiety disorder.

32The December 8, 2014 clinical notes and records from Ontario Shores indicate the applicant reported being most bothered by anxious symptoms, and constantly worrying about her health and the well-being of her children. The applicant self-reports that she had a mental breakdown in 2012 when her brother left home, and views that as a trigger for her depressive/anxiety issues. She has also experienced marital problems, and feels that her parents were not supportive. She is diagnosed with major depressive disorder and anxiety disorder. She was provided with a list of mental health and crisis supports in the region, and information on group and individual counseling. No evidence was provided showing that the applicant undertook any of the supports.

33I find that the applicant has met the first two requirements for a pre-existing condition, in that she has established a pre-existing medical condition with regards to her depression and generalized anxiety disorder, and the condition is documented by medical professionals prior to the subject accident.

34With regards to the third requirement, the applicant states in her submissions that her pre-existing psychological condition prevents her from achieving maximal recovery under the Guideline limits. However, she fails to point to any convincing medical evidence or an opinion of a medical practitioner that draws the conclusion that the applicant’s pre-existing condition since 2012 is preventing her from achieving maximal recovery from her minor injuries. Without such evidence, and based upon the submissions alone, I am not prepared to draw a conclusion that the applicant’s pre-existing psychological condition prevents her from achieving maximal medical recovery within the Guideline. On a balance of probabilities, the applicant has not established the third requirement.

D. The treatment plans, interest and an award under Regulation 664

35The evidence establishes that the respondent has approved treatment up to the $3,500.00 Guideline limit. I note by letter dated December 8, 2015, the respondent advised that it was partially approving the treatment plan seeking physiotherapy and massage therapy services recommended by Ali Kanji on November 18, 2015, up to the $3,500 limit. Thus, the amount of $1,016.05 was approved, and the remaining amount of $320.94, which exceeds the limit, is part of the subject of this Application. There are no submissions to the contrary.

36As I have found that the applicant’s injuries fall within the Guideline, I do not have to make a determination on whether the treatment plans are reasonable and necessary. Consequently, interest is not payable as there are no amounts owing. As I have found that there are no amounts owing, the respondent did not unreasonably withhold or delay any payments and therefore an award is not warranted.

ORDER

37After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that the application is denied in its entirety.