17-003692 v Aviva General Insurance, 2018 CanLII 83501

Date: 2018-08-23

Tribunal File Number: 17-003692/AABS

Case Name: 17-003692 v Aviva General Insurance

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 General Insurance

Respondent

DECISION

ADJUDICATOR: APPEARANCES:

Meray Daoud

For the Applicant:

P.Y., Applicant Christopher D.J. Hacio, Counsel Alina Kaganovich, Student-At-Law

For the Respondent:

Ken Yip, Counsel Kristen Krepps, Claims Representative

Heard In Person:

December 7, 8 & 20, 2017

OVERVIEW

1The applicant, was involved in an accident on January 13, 2016, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). The applicant's claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") to resolve the matter.

ISSUES IN DISPUTE

2The issues to be decided at this hearing are:

a. Did the applicant suffer predominantly minor injuries as a result of the January 13, 2016 motor vehicle accident?

If I find that the applicant does not suffer from minor injuries then I must also consider the following:

b. Is the applicant entitled to receive payment of a medical benefit for the following treatment plans for physiotherapy, recommended by Prime Health Care Inc.:

I. $3,327.60 submitted to the respondent on January 29, 2016;

II. $2,308.50 submitted to the respondent on April 14, 2016; and

III. $1,886.80 submitted to the respondent on January 5, 2017.

c. Is the applicant entitled to receive payment for cost of examinations for the following assessments recommended by Prime Health Care Inc.:

I. $2,000.00 for a psychological assessment submitted to the respondent on March 28, 2016;

II. $1,230.92 for an assessment of attendant care needs submitted to the respondent on February 10, 2016;

III. $2,000.00 for a temporomandibular joint assessment submitted to the respondent on February 29, 2016.

d. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O.1990?

RESULT

3Based on the totality of the evidence before me, I find that:

a. The applicant sustained predominately minor injuries.

b. The applicant is not entitled to any of the treatment plans.

c. The applicant is not entitled to any of the cost of examinations.

d. The applicant is not entitled to an award pursuant to section 10 of Ontario Regulation 664.

ANALYSIS

Minor Injury Guideline:

4The Minor Injury Guideline (the MIG) establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in section 3 of the Schedule as "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The Schedule also defines what these terms for injuries mean.

5Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.

6The onus is on the applicant to show that her injuries fall outside of the MIG.

7The applicant submits that the following injuries she sustained as a result of the accident take her out of the MIG:

a. Chronic Pain Syndrome;

b. Physiological Impairments;

c. Jaw Injury; and

d. Post-Traumatic Headaches.

8I will address each of these below, referring to the relevant medical evidence and oral testimony presented during this hearing.

a) Chronic Pain Syndrome

9The applicant submitted that her injuries are not minor, because she has been diagnosed with Chronic Pain Syndrome.

10Although I am not bound by FSCO decisions, I agree with the reasoning in Ali and Ferozuddin and Certas², which the applicant relies on, that, when chronic pain causes functional impairment or disability, it takes one out of the MIG.

11In order for chronic pain to be more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity resulting in suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain syndrome without any discussion of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae.

12The applicant relies on an Orthopaedic report completed by Dr. M. West. Orthopaedic Surgeon, dated July 20, 2017 wherin he diagnoses the applicant with Chronic Pain Syndrome. Dr. M. West states that in his medical opinion, the applicant's injuries fall outside of the MIG as she has had multiple deep soft tissue injuries to her spine as well as injury to her knee. He goes on to say that as a result, she has developed chronic pain and that these injuries have persisted for over a year and a half since the accident. He notes that she has also developed concurrent psychological and emotional problems as a result of this accident.

13Dr. M. West arrived at the diagnosis of Chronic Pain Syndrome, but provided no objective medical findings to support this.

14Although Dr. M. West addressed, to some degree, the severity of pain under each of the current symptoms listed in his report, it certainly lacked in terms of addressing frequency and duration of pain of each of the reported complaints.

15It is also important to note that Dr. M. West opines that the applicant's persistent back and knee injuries have resulted in chronic pain syndrome, and during his testimony he noted that that the knee injury was the main concern. However, I do not see any medical evidence to show that the applicant has received any treatment for a knee injury. Her physiotherapy records from Prime Health were submitted and there is no mention of knee complaints, nor is there any notations of treatment given for a knee injury.

16Within Dr. M. West's report he goes through the applicant's pre-accident lifestyle activities including employment, housekeeping and home maintenance as well as family, social and recreational activities. Dr. M. West, however, does not discuss the applicant's post-accident activities and any affect the injuries, if any, have on the applicant's function.

17The only mention of post-accident activities included in Dr. M. West's report is with respect to the applicant's employment under the section "Income Replacement Benefits/Income Loss". He writes that the applicant was off work for approximately 3 weeks post-accident then returned with modifications and restrictions and eventually stopped working at her pre-accident place of employment as of April 2016 as she found it hard to drive to and from work as it exacerbated her lower back symptoms. Dr. M. West goes on to say that she began another job from April-June 2016 but was unable to continue that type of employment and returned to her pre-accident job with ongoing modifications and pain.

18During cross-examination at the hearing, Dr. M. West testified that he would look to post-accident activities to make a diagnosis of chronic pain. He testified that there are notations with respect to post-accident social, recreational, exercise, weight training, visiting friends, driving, cycling, cooking and road trips within his hand written notes, not within his report. He testified that there is an arrow pointing downward next to them which means they are diminished. He also testified that he did not know what the applicant's dominant activity is and whether the dominant activity is mentioned within his report or notes.

19Dr. M. West, did not review the applicant's family physician's clinical notes and records, nor the physiotherapy records from Prime Health Care while completing his report and coming to the conclusions/diagnoses within it. Although Dr. M. West had an opportunity to review the CNR's of Dr. Choy at the hearing, I am not satisfied with his response, that if anything, they support his diagnosis.

20There are very few entries within the clinical notes and records of the applicant's family physician, Dr. Choy, since the date of the accident. Other than the initial post-accident entry of January 29, 2016 where there is a notation of headaches, chin pain, jaw locks, left shoulder pain, left wrist, left thumb, upper and lower back pain, both knees pain and right ankle, there is no other evidence before me, within these records, which show the state of the applicant's condition.

21Also, within Dr. Choy's records there is a physical examination record of May 6, 2017, a mere two months prior to Dr. M. West's report, stating that the applicant's spine is non-tender and all her joints move well. There is no other notation within this physical exam of any other issues, injuries or complaints. The only mention related to the accident, within this record, is the notation of "MVA Jan 13/2016, assessed at ER".

22This is simply not sufficient. The brief notation of post-accident activities within Dr. M. West's hand written notes does not provide me with a comprehensive overview as to what exactly the applicant's functional limitations are, if the accident-related injuries are the main reason for any limitations and whether these limitations were taken into consideration when arriving at his chronic pain syndrome diagnosis, Further, this diagnosis is not corroborated by any of the other medical records before me.

23Within her evidence given at the hearing, the applicant testified that her issues with focus and concentration affect her schooling and has had an effect on her performance. She testified that she did a two month placement in the summer at a cancer centre but the transfers and positioning of patients exacerbated her pain and that she always needed help as it was as though they were "dead weight" and her evaluators weren't impressed that she always needed help. She also testified that she drives short distances and only when necessary, that she doesn't help out around her home as much as she did pre-accident and that her social and leisure activities have been affected since the accident due to her limitations.

24Other than the applicant's self-reporting, which is subjective, I have no objective corroborating evidence before me to show any functional limitations which her accident-related injuries may have caused.

25Diagnostic imaging were also submitted by the applicant, however the results, overall, were unremarkable.

26The respondent submitted an Insurer's Examination report completed by Dr. Nesterenko, General Practitioner, dated April 5, 2016. Within her report Dr. Nesterenko opines that the applicant suffered from the following:

a. cervical spine sprain/strain- WAD I/II

b. thoracolumbar spine sprain/strain

c. left upper extremity soft-tissue injury

d. bilateral hip sprain/strain

e. right knee sprain/strain

f. right foot/ankle sprain/strain

27Dr. Nesterenko states that the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries and she had functional ranges of motion. She goes on to say that in her opinion, the applicant sustained injuries from the subject accident that are "minor" as defined in the schedule.

28During her testimony, Dr. Nesterenko stated that she does not agree with Dr. M. West's conclusion that the applicant suffers from chronic pain syndrome. She noted that Dr. M. West did not review the applicant's family physician CNR's, that there are very few visitations to her doctor, and this is not in line with someone who has chronic pain syndrome. She also noted that usually a conclusion of chronic pain would be drawn after more testing is done.

29The applicant submitted that Dr. Nesterenko's credibility is questionable, that she is not in a position to comment on chronic pain as she saw the applicant less than three months post-accident, and that the opinion of Dr. M. West should be favoured over hers, as he is an orthopedic surgeon while she is a general practitioner.

30I found Dr. Nesterenko's testimony credible, and her report quite thorough. Albeit, I agree that her report did not address chronic pain, and due to the date of the assessment, she may not have been in a position to do so, however, I do not find her conclusions contradictory to the applicant's evidence before me.

31Indeed, even Dr. M. West testified that he believes that Dr. Nesterenko's report was thorough and that some GP's are very good at doing musculoskeletal assessments, although he cannot comment on this specific doctor.

32Based on the totality of the evidence before me, I find that the applicant does not suffer from chronic pain syndrome with accompanying functional limitations but rather suffered soft tissue injuries and associated sequalae as a result of the accident, which is corroborated by diagnostic imaging, the clinical notes and records of the treating physicians and the reports of independent assessors. This falls within the definition of minor injury. I do not find that there is sufficient evidence to allow me to draw the conclusion that the applicant's soft-tissue injuries are of a severity resulting in functional impairment.

33Based on the evidence that the applicant has presented, I find that the applicant has not met the burden that, on a balance of probabilities, she sustained anything other than minor injuries. Therefore, I find that the applicant sustained predominately minor injuries, as defined under the Schedule, as a result of the accident.

b) Psychological Impairments

34The applicant also submits that she sustained psychological impairments sustained from the accident, which include depression, anxiety and nervousness when travelling in a vehicle, and that these take her out of the MIG. Further the applicant submits that she has been suffering from a lack of sleep, change in appetite and subsequent weight gain and a decline in concentration and memory.

35I find that there is evidence that the applicant suffers from some psychological symptoms as a result of the accident. However, psychological symptoms alone do not take you out of the MIG. The applicant has the onus of showing that she has a psychological impairment and not just psychological symptoms or sequelae arising from the soft tissue injuries.

36The applicant submitted a Psychological Pre-Screen Interview Report, completed by Dr. Shaul, Supervising Psychologist and Ms. Iliois, Therapist, dated January 13, 2016. This report was genrated entirely based on a series of questions asked to the applicant during the screening process. This report goes through the self-reported symptoms and difficulties as a result of these symptoms, which the applicant noted. As this was merely a self-report pre-screen to determine if a more thorough assessment is warranted, no objective testing was conducted and no diagnosis was made within the report. Simply, I cannot place much weight on this report as it does not provide me with evidence to show that the applicant's reported psychological symptomology are anything other than just that, symptoms or sequelae arising from the soft tissue injuries.

37Without the presence of an objective medical opinion providing a basis to indicate the excistence of a psychological impairment, I am unable to conclude that the applicant suffers fro a psychological impairment that is not subject to the MIG.

38The respondent submitted a Psychological Independent Examination Report completed by Dr. C. West dated July 18, 2016. Dr. C. West used multiple methods of assessment including administering psychological tests, with validity testing, during the assessment. Dr. C. West was unable to make a DSM-IV or DSM 5 diagnosis. He states that he is of the opinion that the applicant is not evidencing any psychological or emotional symptomology of suffcient severity so as to warrant a DSM-IV or DSM 5 diagnosis. He continues to say that she appears to be evidencing some difficuty coping and adjusting in general following the subject MVA but it is his opinon that these concerns are present at a subclincal/subsyndromal level that they would fail to satisfy the threshold for a diagnosis of mental disorder at the present time. He concludes that he finds the applicant's injuries fall within the MIG at the present time.

39Dr. C. West testified at the hearing that the results of the applicant's testing says that there was an over endorsement of symptomology and not that she is malingering.

40I find Dr. C. West's testimony was credible and his report comprehensive. I have no evidence to rebut Dr. C. West's conclusions or present an alternative opinion.

41In his Orthopeadic report of July 20, 2017, Dr. M. West, diagnoses the applicant with post traumatic anxiety and stress with depressive episodes but declines to comment further on this diagnosis as this is beyond his scope of specialty. I do not place much weight on this diagnosis as Dr. West's specialty is orthopeadics.

42I have no other evidence before me that any treating physicians or independent assessors provide a psychological diagnosis or present objective evidence that the applicant suffers from a psychological impairment as a result of the accident, nor any evidence that the applicant has been receiving treatment for same.

43The applicant has not provided sufficient medical evidence to demonstrate that she is unable to recover under the MIG as a result of her psychological symptoms. Therefore, she has not met the onus of establishing her entitlement beyond the MIG limits.

c) TMJ

44Further, the applicant submits that her injuries take her out the minor injury guideline as she has sustained an injury to her jaw which continues to persist.

45I have no evidence before me to substantiate that the jaw pain which the applicant is experiencing is more than a soft tissue injury, nor do I have evidence that the applicant received any treatment for this pain.

46Dr. M. West, in his report of July 20, 2017 diagnoses the applicant with TMJ pain, but declines to comment further as this was outside of the scope of his specialty.

47The applicant has not provided sufficient medical evidence to demonstrate that her jaw pain does not consitute a "minor injury" as defined. Therefore, she has not met the onus of establishing her entitlement beyond the MIG limits.

d) Post-Traumatic Headaches

48Finally, the applicant submits that she developed severe post traumatic headaches as a result of the accident, that persist, and this does not fall under the definition of a "minor injury".

49I have no evidence before me that the headaches that the applicant may suffer from are not sequelae from her soft-tissue injuries and therefore, the applicant has not met the onus of establishing her injuries do not fall within the MIG.

Medical Benefits and Cost of Examinations:

50Since I have found that the applicant sustained predominately minor injuries, I do not need to determine whether the treatment plans and cost of examinations in dispute are reasonable and necessary. The applicant is entitled to a maximum of $3,500 for medical and rehabilitation benefits less amounts paid.

Award under Ontario Regulation 664 (O/Reg 664)

51Section 10 of O/Reg 664 states that an amount of up to 50 per cent, with interest, on all amounts owing, may be awarded if an insurer has unreasonably withheld or delayed payments.

52As I have found that the medical benefits and cost of examinations in dispute are not payable, the respondent could not have unreasonably withheld or delayed payments and as such, no award shall be granted.

Costs:

53The applicant sought their costs for this proceeding.

54The Tribunal has the authority to award costs to a party, under rule 19.1 of the LAT Rules as follows:

(19.1) Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatious[ly] or in bad faith, the party may request to the Tribunal for costs.

55The applicant submits that costs should be awarded to her, as the respondent acted in a frivolous and vexatious manner by bringing a motion to change the format of the hearing, which the applicant had to defend. The applicant's position is this motion was without merit and amounted to an abuse of process.

56I do not agree with the applicant's position. I do not see that the respondent's conduct in bringing a motion to change the format of the hearing amounted to frivolous or vexatious behaviour. The applicant may disagree with the basis on which the motion was brought, however, this is certainly not grounds to award costs in this circumstance.

57The applicant further submits that the respondent acted unreasonably by failing to produce the adjustor's log notes to the applicant by the exchange of documents date consented to at the case conference. The respondent produced these records on December 7, 2017 at the commencement of this hearing.

58The threshold for awarding costs is a high one. Although a party producing important documents at a very late stage in the proceeding is strongly discouraged, in the case before me, I do not find it sufficient enough to meet the test. The respondent's behaviour, while not exemplary, is simply not enough to trigger an award for costs.

ORDER

59The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Ruqia Rahim Ali and Bakidar Ferozuddin and Certas Direct Insurance Company (FSCO A13-002459 and A13-002460), March 23, 2016