17-004824 v Aviva Insurance Canada, 2018 CanLII 81880

Licence Appeal Tribunal

Date: 2018-05-30

Tribunal File Number: 17-004824/AABS

Case Name: 17-004824 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: Matthew M. Létourneau

APPEARANCES:

For the Applicant: Suhaib Ibrahim, Counsel

For the Respondent: Timothea T. Leung, Counsel

Heard in Writing: February 20, 2018

OVERVIEW

1The applicant was involved in an automobile accident on May 4, 2015. She sought benefits pursuant to Statutory Accident Benefits Schedule – Effective September 1, 2010, O Reg 34/10 (“Schedule”).

2The respondent refused to pay the applicant’s request for physiotherapy treatment, the costs of examinations, and various out of pocket expenses and interest on overdue amounts. Following these denials, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of these disputes.

3The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline¹ (“the MIG”). The applicant takes the opposing view.

4The respondent argues that even if the applicant’s injuries are outside of the MIG, they are not reasonable and necessary, and therefore not payable.

5The applicant’s position is that her injuries are outside of the MIG and not subject to the $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule. Further, the applicant takes the position that the claimed benefits are reasonable and necessary.

ISSUES

6The issues in dispute in this written hearing are:

(i) Has the applicant sustained minor injuries - as defined under the Schedule - as a result of the accident and which are subject to treatment within the $3,500.00 limit on benefits under the Schedule and the MIG”?

(ii) If not, is the applicant entitled to payment for the following Treatment and Assessment Plans (“OCF-18”), specifically:

(a) An OCF-18 dated July 17, 2015 in the amount of $2,147.00 for the cost of examination of an in-home attendant care needs assessment recommended by Access Rehab Inc., denied by the respondent on August 14, 2015?

(b) An OCF-18 dated August 20, 2015 in the amount of $2,206.48 for physiotherapy services, recommended by Kelly Spears of Lake Country Physiotherapy, denied by the respondent on August 25, 2015?

(c) An OCF-18 dated June 16, 2016 in the amount of $554.75 ($1,790.75 less $1,236.00 approved) for physiotherapy services, recommended by Kelly Spears of Lake Country Physiotherapy, denied by the respondent on July 11, 2016?

(iii) Is the applicant entitled to payment of various expenses listed in an OCF-6 dated June 23, 2016, including parking, massage treatment, prescriptions and heat patches for the total amount of $470.98 ($513.48 less $42.50 approved)?

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

RESULT

7The applicant submits that she was diagnosed with and requires treatment of a psychological impairment and chronic pain syndrome which would bring her injuries outside of the scope of the MIG.

8I find that the applicant’s injuries resulting from the accident are predominantly minor injuries as defined by the Schedule. This determination limits the insurer’s liability to the funding limit of $3,500.00 as prescribed by s. 18 of the Schedule and read in conjunction with the MIG.

9The applicant has failed to prove that she sustained a psychological or other injury resulting from the accident that would remove her from the MIG. The evidence shows that her injuries are covered by the definition of “minor injury” under s. 3 of the Schedule.

10The applicant is therefore not entitled to the physiotherapy treatment claimed, nor is she entitled to the cost of examination for an attendant care assessment.

11I also find that she is not entitled to the expenses as requested in the OCF-6 of June 23, 2016 for various expenses, including parking, massage treatment, prescriptions and heat patches.

12The applicant is not entitled to interest on any amounts incurred to-date pursuant to section 51 of the Schedule. No payments went overdue, so no interest is payable.

FACTS

13An accident involving the applicant occurred on May 4, 2015. The applicant reported that her vehicle was rear-ended while making a lane change onto a secondary highway.

14The applicant went to the hospital and was discharged after observation.

15The applicant submitted to the insurer a Disability Certificate (OCF-3) dated June 1, 2015 which was completed by Ms. K. Spears, physiotherapist at Lake Country Physiotherapy. The Disability Certificate reports injuries arising from the applicant’s accident of May 4, 2015 including headache, whiplash associated disorder (“WAD”) II with neck pain with musculoskeletal signs, sprain and strain of thoracic spine as well as pain in the forearms and shoulders.

ANALYSIS

Issue (i) – Are the applicant’s injuries predominantly minor?

16The applicant must prove that her injuries resulting from the accident are not predominantly minor in order to be entitled to the medical and rehabilitation benefits claimed in her application. If I determine that her injuries are minor, her treatment will be subject to the $3,500.00 funding limit on benefits pursuant to s. 18 of the Schedule. If I find that the injuries are not minor, the applicant will be entitled to her claims for treatment plans and expenses that she can demonstrate are reasonable and necessary.

17s. 3(1) of the Schedule defines a “minor injury” as meaning “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”.

18The applicant submits that her injuries do not predominantly consist of minor injuries as she has developed a psychological impairment or chronic pain syndrome as a result of the accident. She submits that these injuries require treatment outside of the limits of the MIG.

19The respondent submits that the applicant’s injuries are predominantly minor in nature and therefore subject to the MIG. The respondent refutes the applicant’s claim that she suffers from chronic pain syndrome or psychological impairment arising from the accident.

20The case law has established that the burden is on the applicant to provide evidence that the MIG was incorrectly invoked by the insurer and that the applicant is entitled to the disputed claims².

i. Psychological Impairment

21The applicant submits that she suffers from a psychological impairment as a result of the accident which is outside of the MIG.

22I agree with the applicant that evidence of psychological impairments resulting from an accident may bring her outside of the MIG. The MIG framework covers specific “minor injuries” and the Tribunal interprets the definition of this term under s. 3 of the Schedule as excluding psychological impairments³.

23I must therefore determine whether the applicant has shown evidence of psychological injuries resulting from the accident.

24In support of her psychological injury claim, the applicant relies primarily on her family physician, Dr. E. Catford’s clinical evaluations of May 12, 2015, June 23, 2015 and August 11, 2015. I have considered these evaluations which reference suspected Post-Traumatic Stress Disorder (“PTSD”) and a referral to counselling for anxiety, in addition to an assessment of physical injuries resulting from the accident. The applicant also referred me to the notes of several physicians and treatment providers regarding an incidence of continued anxiety since her accident. The applicant submits this as evidence of stress, anxiety and PTSD resulting from the accident and constituting a psychological impairment treatable as a non-minor injury.

25The respondent rebuts the applicant’s psychological impairment claim in submitting that there is no diagnosis of this or if there is an impairment, it is not due to the accident. Specifically, the respondent points to Dr. Catford’s clinical notes ruling out PTSD as well as other evidence showing that anxiety was school related or due to non-accident causes, showing improvement of anxiety symptoms and other examples where the applicant self-reported psychological improvement or no impairment at all.

26On a balance of probabilities, I find that the applicant’s evidence does not show a psychological impairment caused by the accident. Her self-reporting to her family physician, Dr. Catford, and the clinical conclusions do not conclusively show psychological impairment resulting from the accident. Even if the applicant were to show a psychological impairment, I conclude that the evidence does not show that it results from the accident. Specifically,

a. Dr. Catford’s initial medical evaluations of May 12, 2015 and June 23, 2015 only show “suspected” symptoms consistent with PTSD or anxiety disorder;

b. The applicant reported to Dr. Catford on June 23, 2015 that the nightmares she experienced were not regarding the accident itself, but were about school and her fiancé;

c. Any suspected PTSD was ruled out by November 5, 2015, when Dr. Catford clearly indicates that the applicant showed “no criteria for PTSD at present”; and

d. The applicant was referred by Dr. Catford to counselling sessions for anxiety on August 11, 2015. The applicant did not attend the initial scheduled sessions in May 2016. She met with Ms. Sheila Wedderspoon-Kaija on November 21, 2016, who’s clinical notes reveal that the applicant wanted to proceed with counselling after reporting stressful dealings with the lawyers while on holiday and wanting help in difficult situations. She commenced counselling sessions for anxiety with Mr. D. Afram, MSW, RSW of Couchiching Family Health Team on January 10 and continued for 6 weeks until February 14, 2017. The clinical notes of Mr. Afram show the applicant’s pre-score on the BAI test was 21 (high end of low anxiety) and her post score was 8 (very low anxiety).

27The above does show some level of anxiety for the applicant. What I must determine is whether this anxiety is an impairment resulting from the accident. The cause of the anxiety evidently includes her schooling, her family and relationships and was often due to situational causes as indicated by social worker, Ms. S. Wedderspoon-Kaija’s clinical notes of March 8, April 13 and November 21, 2016, by the applicant’s self-reporting and during the counselling sessions with Mr. Afram.

28In reviewing the above, I find that by November 5, 2015 – six months from the accident – the family physician had ruled out PTSD as a diagnosis, stating, “no criteria for PTSD present” and had noted that the applicant was sleeping well, jogging, exercising, vacationing and was scoring very high in academic coursework.

29The 7 months that elapsed between the referral to counselling and the time of the counselling sessions greatly impacts my ability of testing whether the family physician’s suspicions of psychological impairment were linked to the accident or not. The applicant has therefore failed to establish a causal connection between the accident and her claim of psychological impairments. Even if I found evidence of psychological impairment – which I do not in the present matter – any previous psychological impairment, whether caused by the accident or not, had evidently improved.

30As indicated above, the applicant’s family physician’s initial evaluation of suspected psychological impairment is later ruled out in her clinical notes. Rather, the reports about the applicant’s counselling sessions along with the applicant’s self-reporting of improving symptoms to her treatment professionals and of her return to her active lifestyle can only demonstrate that the accident did not cause a psychological impairment, or that the applicant’s anxiety was situational and caused by other factors mentioned by her to her treating professionals.

31I find on a balance of probabilities that there is no psychological impairment resulting from the accident that supports the applicant’s claim.

ii. Chronic Pain Syndrome

32The applicant submits that she suffers from chronic pain, including headaches and soft tissue injuries, including whiplash (WAD II) and upper back pain with musculoskeletal signs, sprain and strain of thoracic spine.

33More specifically, the applicant submits that she suffers from chronic pain syndrome that cannot be treated in the MIG and relies on several decisions in support of her claim⁴. The applicant states that her continuous visits to her family physician and reports of chronic pain are sufficient evidence of a diagnosis of chronic pain syndrome.

34The respondent disputes the applicant’s claim that she suffers from chronic pain syndrome due to the accident. The respondent submits that any evidence of chronic pain in the clinical notes and records refer only to sequelae of soft tissue injuries that are covered by the MIG, that the applicant has reported recovery in line with the MIG and that there is simply no evidence of chronic pain syndrome.

35My review of the application of the cases submitted by the applicant regarding chronic pain syndrome support the approach by which consistent and clear evidence of chronic pain syndrome can prove that the applicant’s injuries are not predominantly minor.

36For example, in Arruda, chronic pain syndrome was claimed and evidenced by the applicant and was not contested by the respondent. The adjudicator held that the evidence supported removal from the MIG. In 17-000081/AABS, the adjudicator was persuaded by evidence of a Chronic Pain Specialist supporting chronic pain syndrome specifically and which showed that the injuries were not minor and required further treatment. Finally, in 16-004674/AABS, chronic pain syndrome was founded on the basis of a pain specialist, chiropractor and chronic pain specialist providing specific evidence noting chronic pain syndrome which clearly impacted rehabilitation. I find that these decisions are different than the present case and are not persuasive.

37I find that the present case is more similar to 17-000835 v Aviva General Insurance, 2017 CanLII 59495 (ON LAT). In that case, the adjudicator found that there were reports of chronic pain, but that these were limited to sequelae of soft tissue related injuries. The adjudicator also found that the inconsistent reporting of the applicant led to the conclusion that the applicant lacked evidence to show whether the chronic pain was linked to sequelae of minor injuries as per s. 3(1) of the Schedule or whether it was evidence of chronic pain syndrome outside of the MIG.

38The applicant’s treating physicians and treatment providers do state that she was experiencing some degree of ongoing upper neck pain. While this may be, the nature of the pain is evidently sequelae of soft tissue strains, sprains or whiplash. In particular,

a. The applicant’s family physician did not initially treat her for chronic pain and did not send her to a referral for chronic pain assessment;

b. Dr. T MacLean, from the applicant’s family physician’s clinic, was asked for a second opinion regarding chronic neck pain and concussion, but indicated she was unable to do so and referred the applicant to Concussion Care North instead, who in turn were unable to provide confirmation of either;

c. The applicant was also referred to Dr. Rajput, a radiologist, who’s consultation notes of May 3, 2016 show that the applicant’s neck and upper back pain continued. The exam showed full range of motion and the ultrasound showed no significant abnormality. Dr. Rajput concluded the pain was likely due to muscle spasms. For this, he noted she was taking anti-inflammatories, massages and physiotherapy. He suggested an optional treatment of therapeutic spinal injections for neck pain, which the Applicant elected to have administered on April 14, 2016;

d. Physiotherapy was also recommended and on April 21, 2016, the physiotherapist, Ms. Spears, found that the applicant suffered from chronic WAD II pain and headaches; and

e. On May 10, 2017, the applicant’s family physician again referred the applicant to physiotherapy, delivered by Junction Rehab Physiotherapists, who noted that the applicant experienced oculomotor dysfunction and ongoing cervical tension chronically post-accident.

39I find that the applicant had chronic neck pain due to the accident.

40The nature of the applicant’s chronic pain is clearly related to soft tissue sprains, strains or other minor injuries. The applicant’s injuries therefore fall within the MIG. The applicant does not provide a specific diagnosis of chronic pain syndrome. Rather, the applicant submits that I must take into consideration the above medical notes of “chronic pain”, the number of visits the applicant made to her family physician, the ongoing physiotherapy sessions she attended and the totality of her injuries, including psychological, in order to determine that she has chronic pain syndrome that takes her out of the MIG.

41I am not persuaded that the applicant has any evidence allowing me to make a finding that she suffers from chronic pain syndrome. Further, the applicant has not been able to clearly show that the medical references to “chronic pain” in her case were not predominantly minor soft tissue injuries, as noted above. The family physicians’ clinical notes show that the applicant was recovering from soft tissue neck strains and recovery was largely successful, as would be expected of soft tissue sequelae as defined by the Schedule and the MIG. In particular,

a. The applicant’s family physician initially noted strains on May 12, 2015, but observed on June 23, 2015 that the applicant’s neck was doing much better;

b. The Orthopaedic Surgeon, Dr. McKenzie, in his insurer examination of September 28, 2015, detected no impairment and found that the WAD Cervical Spine Injury could be treated within the MIG;

c. The Radiologist, Dr. Rajput observed on November 24, 2015 a full range of motion, ultrasound showing no significant abnormality and that the neck pain was likely due to muscle spasms;

d. Dr. Rajput later treated the applicant with an optional spinal injection which led to a self-reported improvement by the applicant to her family physician, Dr. Catford on May 10, 2017; and

e. The self-reporting of the applicant shows that – between the date of the accident and the hearing – she resumed her active life style, including lifting weights, vacationing, schoolwork, moving furniture, kayaking, jogging and housework.

42Given my reading of the above-noted clinical notes and records contesting the Applicant’s evidence (especially the compelling report of Dr. McKenzie), the application of the Schedule, the cases on this issue and the applicant’s self-reporting of improving conditions and return to her active lifestyle, I find that the injuries the applicant sustained, including the ongoing pain, are minor soft tissue injuries covered by the MIG or are a direct result of such injuries.

43I find that the applicant’s injuries are predominantly minor. Treatment for her injuries is therefore limited to the MIG. The applicant is therefore not entitled to any of the treatment at issue, as listed under issue ii, above.

Issue (iii) – Is the applicant entitled to OCF-6 expenses of June 23, 2016.

44The applicant claims various expenses submitted in an OCF-6, dated June 23, 2016, totalling $470.9 ($513.48 less $42.50 approved). The expenses include massage treatment, parking, prescriptions and heat patches.

45The respondent disputes these claims as they are above the amounts allotted for a minor injury under the Schedule and the MIG or suffered from procedural defects, such as duplication of previously claimed amounts.

46The respondent provided evidence that the applicant was advised of these obstacles, but the applicant has not provided evidence that would explain these procedural defects, that would take these expenses outside of the MIG or that would even show that they are reasonable and necessary.

47Therefore, the claim for the expenses in the OCF-6 of June 23, 2016 is denied.

Issue (iv): Is the applicant entitled to interest for the overdue payment of benefits pursuant to [section 51](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html#sec51_smooth) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)?

48As I find that the applicant is not entitled to any of the amounts claimed in this application, the applicant is not entitled to interest for the overdue payment of this benefit pursuant to section 51 of the Schedule.

CONCLUSION

49For the reasons above, I find that the applicant’s impairment is predominantly minor.

50The applicant is not entitled to further benefits beyond the $ 3,500.00 limit.

51The applicant’s appeal is dismissed.

Released: May 30, 2018

_______________________________

Matthew M. Létourneau,

Adjudicator

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s 268.3 (1.1) of the Insurance Act, RSO 1990, c I.8.
2. 2See Scarlett v Belair, 2015 ONSC 3635 (Div Ct), see also Applicant v Unifund, 2017 Canlll 77341 (ONLAT) (“Belair”).
3. 3DJ v Aviva, 2016 CanLII 93136 (ONLAT) at para 17.
4. 4Belair, supra, footnote 1; Arruda v Western Assurance Company, FSCO A13-003926 (“Arruda”); 17-000081 v RBC General Insurance Company, 2017 CanLII 59504 (ON LAT) (“17-000081/AABS”) and 16-004674 v The Co-operators, 2017 CanLII 77361 (ON LAT), 2017 CarswellOnt 18141 (“16-004674/AABS”).