V. G. v. Aviva Insurance Canada, 2019 CanLII 22214

Tribunal File Number: 18-002569/AABS

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:

V. G.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Appellant: Michael Yermus, Counsel

For the Respondent: Brittanny K. Tinslay, Counsel

HEARD In Writing on: November 6, 2018

OVERVIEW

1V.G., the applicant, was injured as a passenger in an automobile accident on September 7, 2015 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Aviva Insurance Canada (“Aviva”). Aviva denied V.G.’s claims because it had determined that all of V.G.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”).¹ V.G.’s position is that she has had “unremitting” pain since the accident and that a diagnosis of chronic pain places her injuries outside of the MIG. V.G. also argues that her injuries fall outside of the MIG as she was diagnosed with Chronic Pain Syndrome.

2V.G. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on March 23, 2018. The parties were unable to resolve their dispute at a case conference held on June 25, 2018, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

3The following issues are to be decided:

1. Did the V.G. sustain predominantly minor injuries as defined under the Schedule?

2. If the answer to issue 1 above is “no,” then I must determine the following issues:

(a) Is V.G. entitled to a medical benefit in the amount of $2,265.00 for chiropractic treatment recommended by [a Rehabilitation Centre] in a treatment plan submitted on November 10, 2016, and denied by Aviva on November 16, 2016?

(b) Is V.G. entitled to a medical benefit in the amount of $1,864.05 for physiotherapy treatment recommended by a [Rehab Clinic] in a treatment plan submitted on March 23, 2016, and denied by Aviva on April 1, 2016?

(c) Is V.G. entitled to interest on any overdue payment of benefits?

RESULT

4Based on the evidence before me, I find that V.G. has not been diagnosed with chronic pain syndrome, does not suffer from chronic pain or ongoing pain that is accompanied by a functional impairment or disability and, therefore, she sustained predominantly minor injuries as defined by the Schedule. As such, it is unnecessary for me to consider the reasonableness of the treatment plans or the issue of interest because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.²

PRELIMINARY ISSUE: Exclusion of Evidence

5Aviva objected to V.G. relying upon the following documents as evidence, as they were not served on Aviva by September 10, 2018 as directed by the Tribunal:

(i) Report by Dr. Andrew Woo, Chiropractor, dated October 3, 2018;

(ii) Diagnostic imaging from October 22, 2012; and

(iii) Clinical notes and records (CNRs) of Dr. Karla, family physician.

6V.G. submits that she was not able to provide the “report and clinical notes and records” to Aviva by September 10, 2018 as “the documents were not available.”³ V.G. relies upon paragraph [4][vi] of the Tribunal’s Direction, which states that the hearing adjudicator will be the final decision-making authority regarding the exchange of documents for use at this hearing. V.G. argues that Aviva has not shown how it is prejudiced by the late service of the documents set out above and requests that the documents be allowed in as evidence.

7The Direction limited the evidence for this hearing to documents previously exchanged between the parties by September 10, 2018 and stated that no additional or new evidence may be submitted for use at the hearing beyond this date. V.G. did not dispute Aviva’s evidence that the documents were served on it on October 9, 2018, which is clearly beyond the deadline in the Direction.

8Rule 9.4 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) states that if a party fails to comply with a direction with respect to disclosure, the party may not rely on the document as evidence without the consent of the Tribunal. Rule 3.1 of the Rules also requires me to facilitate a fair, open and accessible process and to allow effective participation by all parties.

9Failure to make disclosure as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions. While Aviva did make brief submissions on the documents it sought to exclude, it did so only with the qualification that its first request is that they be excluded.

10V.G. has not provided any explanation for the delay in the service of these documents beyond stating that they were “not available.” I do not agree that they were “not available” for the following reasons:

(i) While Dr. Woo’s two page report is dated October 3, 2018, the report does not state that V.G. was examined at any time by Dr. Woo for the preparation of his report and only refers to his initial assessment, which took place on November 8, 2016. Dr. Woo never provided services or treated V.G. after this initial assessment and V.G.’s treatment at the [Rehabilitation Centre] ended in June 2017. I was not provided with any other reasons as to why Dr. Woo’s report could not be completed and exchanged in accordance with the deadline set by the Tribunal given that no further assessments were completed of V.G. for its preparation;

(ii) The diagnostic imaging from October 22, 2012 was printed on August 17, 2017, and, therefore, was clearly in existence prior to the document exchange deadline; and

(iii) Dr. Karla’s CNRs appear to be printed via an electronic medical record system on November 17, 2016, which was also well before the document exchange deadline.

11I am also not persuaded by V.G.’s argument that because Aviva has not shown prejudice as a result of the late service that the documents should be allowed as evidence. V.G. submits that Aviva’s submissions were served on October 23, 2018 and that Aviva has not scheduled an insurer’s examination (IE) or requested an adjournment of the hearing to address Dr. Woo’s report. In my opinion, V.G. has identified the prejudice to Aviva in only having two weeks to schedule an IE and to obtain a report and prepare its submissions. Further, while Aviva has not requested an adjournment of the hearing to address the late disclosure, it has requested other relief in the form of excluding evidence which is provided for under the Rules. The fact that Aviva did not request an adjournment of this hearing does not persuade me to allow in the evidence either, as the deadlines set out in the Direction were clear and were missed by V.G., not Aviva. V.G. did not bring a motion prior to the hearing seeking an extension to the document exchange date in the Direction once she became aware of her failure to comply with the Direction. In fact, V.G. did not request any relief for her failure to meet the document exchange deadline in her initial submissions and only did so in reply to Aviva raising the issue in its responding submissions.

12In my opinion, directions from the Tribunal should be followed and when they are not without sufficient or persuasive reasons, there should be consequences. I am granting the relief sought by Aviva by striking, or excluding, the following records from the hearing record: Report by Dr. Andrew Woo, Chiropractor, dated October 3, 2018; Diagnostic imaging from October 22, 2012; and Clinical notes and records (CNRs) of Dr. Karla, family physician.

13Even if I were incorrect in excluding the evidence as requested by Aviva, its inclusion would not change my conclusions and findings in this matter for the following reasons:

(i) Dr. Woo’s report is extremely limited and lacks specifics. For example, his very general concluding statement is as follows: “given the diagnosis and physical findings, it is reasonable to treat this patient as recommended in the submitted and denied treatment plan to try and restore function through conservative rehab care (my emphasis added).” It is unclear which treatment plan Dr. Woo is referring to, as there are two treatment plans in dispute. Dr. Woo also does not recommend chiropractic or physiotherapy treatment specifically, only “conservative rehab care.” All of the other information contained in Dr. Woo’s report is also contained in the CNRs from the [Rehabilitation Centre] and is, therefore, duplicitous;⁴

(ii) V.G. does not claim that her pre-accident injuries prevent her from recovering within the MIG. V.G. has simply noted in her submissions that her pre-accident health, as evidence in the diagnostic imaging from October 22, 2012, included degenerative disc disease in the cervical and thoracic spine with minimal scoliosis identified in the cervical spine to convex to the left and in the mid thoracic spine convex to the right. Therefore, this evidence is irrelevant;⁵ and

(iii) Only three pages of Dr. Karla’s CNRs were submitted as evidence. V.G. saw Dr. Karla for the first time after the accident on October 27, 2015 and reported discomfort and intermittent pain on the left side of her neck, back pain and left leg. V.G. saw Dr. Karla again on November 7, 2015 and reported ongoing back pain. V.G. attended again on December 14, 2015 and on December 21, 2015 and there is no reports of accident related symptoms on these dates in Dr. Karla’s CNRs. V.G.’s next visit is on February 1, 2016 where V.G. reports shoulder pain and no back pain is reported. There were no further entries in the CNRs beyond this date. The limited CNRs do not provide a diagnosis and only show that V.G. attended her family doctor three times in almost a five month period following the accident for accident related complaints.⁶

ANALYSIS

The Minor Injury Guideline

14The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) 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 terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the MIG.

15Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

16The onus is on V.G. to show that her injuries fall outside of the MIG.⁷ In this case, V.G. argues that she should be removed from the MIG because she has been diagnosed with chronic pain and chronic pain syndrome. V.G. also made submissions regarding the constitutionality of the MIG.

Chronic Pain

17V.G. argues that her “unremitting” pain at 36 months post-accident and diagnosis of chronic pain places her injuries outside of the MIG. V.G. also argues that her injuries fall outside of the MIG as she was diagnosed with Chronic Pain Syndrome.⁸

18V.G. received treatment at the [Rehabilitation Centre] from November 8, 2016 to June 27, 2017 where she reported post-concussive symptoms including dizziness, memory problems, concentration difficulties, blurred vision as well as ongoing pain in her right arm, shoulder, neck, lower back, aggravated with repetitive movement as well as difficulties with her activities of daily living and house chores. While V.G. made brief submissions on sustaining post-concussion syndrome, I place little weight on this argument as Dr. Woo’s November 8, 2016 assessment noted that V.G. did not hit her head in the accident and he was the only medical professional to diagnose her with post-concussion syndrome. Additionally, V.G. did not argue that she should be removed from the MIG as a result any alleged post-concussion syndrome and, therefore, it does not form part of my decision.

19V.G. reports that while attending treatment at the [Rehabilitation Centre], she had persistent pain in her neck and low back which was somewhat relieved after treatment lasting a few days only to return. V.G. submits that she was forced to stop her treatment as a result of Aviva’s denial for funding.⁹

20V.G. relies upon Arruda v. Western Assurance Co.¹⁰ where the applicant’s injuries were unresolved at 20-months post-accident and the applicant was taken out of the MIG as a result of a diagnosis of chronic pain. V.G. also relies upon V.C. v RBC General Insurance Company¹¹ which applied Arruda and concluded that the applicant’s physical injuries were not minor and therefore fell outside of the MIG.

21Aviva argues that V.G. has not established that her injuries fall outside of the MIG.

22Aviva submits that complaints of pain or discomfort alone are not enough to remove an applicant from the MIG unless the pain is functionally disabling and is not sequelae of minor injuries.¹² Further, Aviva’s position is that V.G. has not been formally diagnosed with chronic pain syndrome and argues that V.G. has failed to establish that her pain complaints are anything other than sequelae of her soft tissue injuries as in 17-000640/AABS and in 16-000045 v Aviva Canada.¹³ Aviva argues that the case law that V.G. relies upon is distinguishable as V.G. has not been diagnosed with chronic pain syndrome or chronic pain by a physician or treating practitioner.

23I agree with Aviva’s position that an applicant is not automatically removed from the MIG as a result of any ongoing pain alone at any level. Typically, ongoing pain also must be accompanied by some functional impairment or disability and it must be of a severity that it causes suffering, distress or is accompanied by functional impairment or disability. A diagnosis of chronic pain 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 would be sufficient to remove an applicant from the MIG. In this case, there is neither. There is no diagnosis and no evidence of functional impairment.

24I agree with Aviva’s position that V.G. has not been diagnosed with chronic pain syndrome. Dr. Woo’s diagnoses of V.G. in his November 8, 2016 assessment, which is contained in the [Rehabilitation Centre’s] clinical notes and records (CNRs), do not include chronic pain syndrome, which I also agree with Aviva is likely beyond the scope of Dr. Woo’s expertise as a chiropractor. V.G. has not relied upon any other medical evidence that diagnoses her with chronic pain syndrome.

25Furthermore, while there is evidence of V.G.’s pain intensity at the time that the treatment plans were submitted, there is no evidence of any functional impairment. For example, Dr. Woo reports in his November 8, 2016 assessment notes that V.G’s pain intensity is a 7-8/10, with the frequency of pain being “daily” and noting that the duration of pain is “constant.”¹⁴ Dr. Woo also notes that bending, lifting and prolonged postures are aggravating factors. However, Dr. Woo also reports that V.G. cares for her grandchildren.¹⁵ Dr. Woo notes that V.G. is taking over the counter medicine and that she was prescribed naproxen but did not use it.¹⁶

26On June 27, 2017, there is also an entry in the “Physio Daily Visit Form” of [Rehabilitation Centre] CNRs by Mamta Shah, registered physiotherapist, which states, “her [V.G.’s] pain level is 8/10 and aggravated due to her repetitive move and has difficulties with her ADL [activities of daily living] and house chores.”¹⁷ No additional information is provided as to how V.G.’s activities of daily living have been affected.

27Aviva relies upon Dr. Dimitrios Polyvos Chiropractic Assessment Report dated May 6, 2016¹⁸ in which V.G. is consistent in her pain reporting along the left side of her neck and left shoulder at an intensity of 8/10 and pain in her low back (left side) that is intermittent but can increase to an intensity of 9/10 with aggravation.¹⁹ Dr. Polyvos, however, reported that prior to the accident and at the time of his report, V.G. was working part-time as a babysitter.²⁰ V.G. also self-reported to Dr. Polyvos that she was independent with her personal care activities.²¹ Dr. Polyvos did not diagnose V.G. with chronic pain or chronic pain syndrome.

28At best, the evidence demonstrates that V.G.’s pain is ongoing to the time that the treatment plans in dispute were submitted. However, V.G. has failed to prove on a balance of probabilities that her ongoing pain is of a significant level or is accompanied by some functional impairment or disability and is not merely sequelae or a symptom of her minor injuries. I have only been provided with non-specific statements that V.G. has difficulties with her activities of daily living and household chores. V.G. also self-reported that she is independent with her personal care in November 2016 and continues to baby-sit, both pre- and post-accident, on a part-time basis. This is the only information that has been provided that speaks to the effect of V.G.’s pain on her level of function.

29I also place some weight on the evidence that the applicant has not taken any pain medication since the accident for her injuries beyond over-the-counter medication use despite being prescribed and advised to take naproxen. The lack of use of any pain medication beyond over-the-counter medicine with no evidence provided about the frequency of use of the over-the-counter pain medicine also leads me to conclude that V.G’s pain is not of a significant level and is not of a severity that it is causing her suffering or distress.

30V.G. also argues that Aviva has an ongoing duty to assess and reassess a claim as new information is available and, in this case, Aviva has failed to provide any evidence disputing her diagnosis of chronic pain. As I find no evidence supporting V.G.’s argument that she has been diagnosed with chronic pain (or chronic pain syndrome), the onus never shifts to Aviva to disprove an entitlement to benefits²² and, as such, I place no weight on this argument.

Constitutionality of the MIG

31V.G. also made submissions regarding the constitutionality of the MIG and relied upon the decision of Abdirahman Abyan v. Sovereign General Insurance Company²³ where the FSCO Arbitrator held that, “the effect of the MIG arbitrarily discriminates against MVA victims who suffer chronic pain as a clinically associated sequelae to the MVA.”²⁴ V.G. relies upon this decision which found that the MIG violated section 15 of the Canadian Charter of Rights and Freedoms²⁵ and this violation was not justified under section 1 of the Charter.

32V.G. made no further submissions on the constitutionality of the MIG or requested any relief under the Charter.

33I agree with Aviva that V.G. failed to comply with Rule 11 of the Rules as she has not submitted any evidence that she served the Attorney General of Canada or the Attorney General of Ontario with a Notice of Constitutional Question. Additionally, aside from quoting passages from Abdirahman Abyan, V.G. made no further submissions on this issue and requested no relief. As such, I agree with Aviva that V.G.’s submissions on the constitutionality of the MIG are irrelevant and will not be considered.

CONCLUSION

34For all of the reasons set out above, I find:

(i) V.G. has not met her burden of proving on a balance of probabilities that she did not sustain a minor injury as defined in the Schedule as a result of the accident and, therefore, she is not removed from the MIG. Accordingly, it is not necessary to determine whether or not the treatment plans in dispute are reasonable and necessary because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG have been exhausted;

(ii) V.G. is not entitled to interest; and

(iii) The application is dismissed.

Released: February 28, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Aviva states in its November 16, 2016 correspondent to V.G., which V.G. has included in her materials, “the policy limit for a minor injury is $3500 which you have already reached.” This was not disputed by V.G. in her submissions.
3. 3V.G.’s reply submissions, para. 2.
4. 4Submissions of the Applicant, tabs 3 and 4.
5. 5Submissions of the Applicant, tab 7.
6. 6Submissions of the Applicant, tab 5.
7. 7Scarlett v. Belair, 2015 ONSC 3635, at para. 24 (Div. Ct.).
8. 8Submissions of the Applicant, page 9, para. 42.
9. 9Submissions of the Applicant, page 3, para. 12.
10. 10FSCO A13-003926 (“Arruda”).
11. 112017 CanLII 59504 (ON LAT) at paras. 11 and 18.
12. 1217-004982/AABS v Certas Home and Auto Insurance Company, 2018 CanLII 13154 (ON LAT), Respondent’s Brief of Authorities, tab 5, para. 25 and 17-000640/AABS v TD Insurance Meloche Monnex (ON LAT), Respondent’s Brief of Authorities, tab 6, para. 40 (“17-000640/AABS”).
13. 132016 CanLII 60728 (ON LAT).
14. 14Clinical Notes and Records from the [Rehabilitation Centre], Submissions of the Applicant, tab 4, page 1.
15. 15Ibid.
16. 16Ibid.
17. 17Ibid. at page 3.
18. 18Chiropractic Assessment Report of Dr. Dimitrios Polyvos, dated May 6, 2016, Respondent’s Submissions, tab 6.
19. 19Ibid.
20. 20Ibid. at page 4.
21. 21Ibid.
22. 22Supra note 7.
23. 23FSCO A16-003657 (“Abdirahman Abyan”).
24. 24Ibid. at page 36.
25. 25Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”).