17-005179 v Aviva Insurance Company of Canada, 2018 CanLII 81910

17-005179 v Aviva Insurance Company of Canada

Date: 2018-06-04

Tribunal File Number: 17-005179/AABS

Case Name: 17-005179 v Aviva Insurance Company of 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

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Bobby Sidhu, Representative

For the Respondent: Timothea Leung, Counsel

Heard in person on: March 5, 6, & 7, 2018

OVERVIEW

1The applicant was injured in an automobile accident on June 17, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $233.57 from March 20, 2017 onwards?

3. Is the applicant entitled to receive medical benefits recommended by Caledon Rehab Centre as follows:

a. $1,297.30, less $1,049.51 approved, for a physiotherapy treatment plan dated October 22, 2016;

b. $1,077.84 for a physiotherapy treatment plan dated December 16, 2016; and

c. $1,077.84 for a physiotherapy treatment plan dated April 19, 2017?

4. Is the applicant entitled to payments for the cost of examinations for assessments proposed by Caledon Rehab Centre as follows:

a. $2,750.00 for an orthopaedic assessment proposed April 19, 2017; and

b. $2,750.00 for a chronic pain assessment proposed April 19, 2017?

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

RESULT

3I find that the applicant sustained a minor injury as defined under the Schedule.

4The applicant is not entitled to payment for the cost of examinations or the medical benefits claimed because the applicant has exhausted the funding provided for under the MIG.

5That applicant is not entitled to any additional income replacement benefits.

6No interest is owed.

BACKGROUND

7The applicant was driving a vehicle which had a mutual side impact collision with a large truck. The applicant’s car was propelled forward by the truck as a result of the collision and came to a stop when the applicant’s car struck a commercial building. The applicant was taken to the hospital from the scene of the accident and was diagnosed with back, shoulder, and knee strains, and was provided pain medication and released. The applicant visited Dr. N. Shenouda, family physician, a few days following the accident and was prescribed pain medication and physiotherapy.

8Following the accident, the applicant engaged in and completed treatment under the MIG, which the respondent approved and funded. The applicant received an income replacement benefit (IRB) until March 19, 2017, when the respondent ceased the benefit on the recommendation in three Insurer’s Examination Reports. The applicant also sought treatment plans and assessments outside of the MIG and the respondent denied funding for them. The applicant disputes the respondent’s denials of the IRB, treatment plans and assessments, and the respondent’s determination that the applicant’s injuries are within the MIG.

THE MINOR INJURY GUIDELINE

9The 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.

10The applicant was diagnosed with chronic pain by Dr. H. Jacobs, physician, which, the applicant submits, warrants treatment outside of the MIG. In addition, the applicant’s evidence suggests the applicant was diagnosed with sciatica and requires treatment outside of the MIG.

11The respondent submits that the applicant may be experiencing ongoing or chronic pain, but the applicant does not suffer from chronic pain syndrome, which has a component of a psychological injury. The respondent takes the position that ongoing pain is sequelae of the applicant’s soft tissue injuries, is within the MIG, and that there is no diagnosis of chronic pain syndrome or a psychological injury to warrant treatment beyond the MIG. The respondent relies on the Tribunal’s decision in T. S. v Aviva¹ as precedent that chronic pain, absent a diagnosis of a psychological injury, is within the MIG.

Psychological Injury

12The respondent’s position that the applicant does not suffer a psychological injury as a result of the accident is supported by the psychological assessment report of Dr. H. Rockman commissioned by the respondent.

13The applicant agrees that there are no psychological injuries as a result of the accident and insists that chronic pain is not an injury included in the MIG and that the applicant should not be subject to the funding limit of $3,500.00 provided by the MIG.

Sciatica

14The applicant presented evidence of a diagnosis of sciatica by the applicant’s family physician, Dr. Shenouda. This was supported by the testimony of the applicant’s physiotherapist, N. Patel, who advised that the physiotherapy treatment the applicant received was focused on the applicant’s sacroiliac joint dysfunction. This position was also supported by the clinical notes and records of Dr. Shenouda in an entry dated June 17, 2016 where the family physician suspected the applicant had sciatica and then later confirmed the diagnosis in an entry dated September 16, 2016. Lastly, the disability certificate dated July 4, 2016 has sprain and strain of sacroiliac joint as an injury.

15The respondent takes the position that the applicant was misdiagnosed with sciatica by Dr. Shenouda and relied on the opinion of Dr. Khaled who testified to this position. Dr. Khaled opined that the applicant did not experience a loss of nerve function and a loss of power which is associated with sciatica. Dr. Khaled’s findings in the January 6, 2017 physician assessment were that the applicant had normal nerve and leg function.

16After hearing the witness testimony and after review of the submissions and medical evidence, I find that the applicant suffered a sprain/strain of the sacroiliac joint. I prefer the opinions of Dr. Jacobs and Dr. Khaled over Dr. Shenouda’s because Dr. Shenouda’s diagnosis of sciatica is not supported by the diagnostic imaging in the evidence and is outweighed by the combined opinions of Dr. Jacobs and Dr. Khaled. The opinions presented by both the applicant and respondent conclude that the applicant does not suffer from any nerve injury or dysfunction. In the July 25, 2017 report commissioned by the applicant, Dr. Jacobs ruled out any neurological injury. Dr. Khaled, through the January 19, 2017 physician assessment report and direct testimony at the hearing, ruled out a diagnosis of sciatica, found that the applicant did not lose any nerve function or power in the sacroiliac joint, and confirmed that the applicant had normal nerve function at the assessment.

Chronic Pain

17The applicant submits that chronic pain is not an injury within the MIG and that the MIG funding limit should not apply. The diagnosis of chronic pain is in the chronic pain assessment report by Dr. Jacobs, dated July 25, 2017, for an assessment that occurred on June 20, 2017.

18The respondent disputes the applicant’s position that chronic pain is an injury outside of the MIG and submits that the applicant has suffered only minor injuries and that the applicant’s ongoing pain is sequelae of the minor injuries. In other words, the respondent submits that chronic pain is an injury included in the MIG.

19In the report dated July 25, 2017, Dr. Jacobs states that the applicant has chronic pain and that the applicant is outside the MIG because of ongoing problems due to chronic pain related to pathology in the spine. Dr. Jacobs’s report states that the applicant is found to have cervicogenic headaches, occipital neuralgia bilaterally (inflamed nerves which commonly cause pain in the base of the skull), and joint pain in the lumbar and cervical spine.

20The respondent submits the June 13, 2017 physicians report of Dr. F. Siddiqui, physician, as evidence that the applicant’s injuries are minor and that the applicant is subject to the MIG. Dr. Siddiqui found that the applicant sustained cervicogenic headaches, whiplash associated disorder II, lumbar sprain/strain, and trapezius strain/sprain and found the injuries to fall within the MIG. Dr. Siddiqui’s findings are virtually the same as Dr. Khaled’s witness testimony at the hearing and in the physician report dated January 19, 2017.

21Considering the evidence and for the following reasons, I find that the applicant’s chronic pain is sequelae of the soft tissue injuries suffered as a result of the accident. I agree with and adopt Adjudicator Ferguson’s interpretation of the MIG and conclusion that ongoing pain is sequelae of soft tissue injuries.²

22The totality of the evidence suggests that all of the injuries the applicant was diagnosed with appear to fall within the MIG as they are predominantly sprains and/or strains. The applicant does not have any neurological or psychological injuries and has not suffered from any fracture. The applicant’s key piece of evidence, the chronic pain assessment report by Dr. Jacobs, restates that the applicant suffers from headaches, pain in the base of the skull, and joint pain in the lumbar and cervical spine. The injuries diagnosed by Dr. Jacobs fall within the MIG. Dr. Jacobs goes on to state that a neurological examination with the applicant was within normal limits, effectively ruling out any diagnosis of a neurological injury, which would exclude the applicant from the funding limit provided in the MIG.

ENTITLEMENT TO AN INCOME REPLACEMENT BENEFIT

23The applicant claims entitlement to an IRB for the period from March 20, 2017 to-date and ongoing. During the first 104 weeks after an accident, an IRB is payable to an insured who is substantially unable to perform the essential tasks of employment as a result of the impairment.

24The applicant claims a disability as a result of the accident in that the applicant cannot endure prolonged sitting involved in the work at a travel agency and is unable to maintain a standing position and keep up with the quick pace in the fast food restaurant that the applicant also worked in. The applicant submits that the impairments prevent the applicant from performing the essential tasks of employment.

25The applicant’s leading evidence in support of a claim for IRB’s are the clinical notes and records of Dr. Shenouda. Dr. Shenouda’s records indicate the applicant made intermittent complaints of pain following the accident. The applicant also submitted the treatment and assessment plans proposed by the applicant’s physiotherapist, N. Patel. The treatment and assessment plans created in October and December 2016 indicate that the applicant had an impairment that affected the applicant’s ability to carry out the tasks of life and work. This inability to work was also noted in Patel’s April 2017 treatment and assessment plans, one of which mentions the applicant may need retraining.

26The respondent submits that the applicant has normal range of motion and is not impaired from performing the essential tasks of employment at both the travel agency and the fast food restaurant. The respondent referred to the February 14, 2017 executive summary of the reports of Dr. Khaled, physician, Dr. H. Rockman, psychologist, and occupational therapist, C. Chan dated January 6, January 16, and January 25, 2017 respectively. The respondent submits that the assessors came to a consensus that the applicant could return to work at both jobs before March 20, 2017.

27The applicant submits that the respondent’s evidence should be discounted because the applicant believes the assessors are inherently biased as a result of the ongoing referral relationship between the assessment company and the insurer. The applicant suggests that the respondent’s assessors are likely to render an opinion in favour of the respondent because of this relationship.

28The respondent disputes this and suggests that its assessors are more credible than that of the applicant’s. The respondent submits that its assessors are credible because they performed objective testing, used interpreters, and were subject to cross-examination at the hearing to test the findings in their respective reports.

29I find no credibility issues with the respondent’s assessors and accept the findings in the reports. The applicant has not provided any evidence that indicates the respondent’s assessors lack credibility.

30For the following reasons, I find the applicant is not entitled to any additional IRBs. The respondent’s evidence is from expert opinions that are more current than the applicant’s evidence. The respondent’s evidence outweighs the applicant’s evidence because the applicant has not provided any expert evidence, or evidence from a family physician, to suggest that, as of the March 20, 2017 stoppage of the benefit, the applicant is impaired to the extent that the applicant cannot substantially perform the essential tasks of employment at the fast food restaurant or at the travel agency. The applicant’s family doctor does not make any recommendation to refrain from work and the primary reason for most of the visits with Dr. Shenouda were unrelated to the applicant’s injuries or pain as a result of the accident. In the applicant’s medical record, the most recent recommendation to avoid work is from the applicant’s physiotherapist in November 2016 where it was estimated the impairment would resolve within 9-12 weeks. The timing outlined in physiotherapist Patel’s prognosis for recovery is in line with the respondent’s date of denial. The treatment and assessment plans submitted by physiotherapist Patel do not hold enough weight for me to discount the respondent’s expert’s opinion.

CONCLUSION

31Based on the medical evidence before me, I find that the applicant’s injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.

32The applicant is not entitled to the medical benefits or the costs of examinations being claimed.

33The applicant is not entitled to any further IRBs.

34No interest is payable as no payments went overdue.

Footnotes

1. 117-000835 v Aviva General Insurance, 2017 CanLII 59495 (ON LAT).
2. 217-000835 v Aviva General Insurance, 2017 CanLII 59495 (ON LAT).```