R.S. v. Aviva Insurance Company, 2019 CanLII 27817

Licence Appeal Tribunal

Date: 2019-01-11 Tribunal File Number: 17-008532/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:

R.S. Applicant

and

Aviva Insurance Company Respondent

DECISION

PANEL: Brian Norris, Adjudicator

APPEARANCES:

For the Applicant: Syed M. Raza, Counsel

For the Respondent: Mark Vella, Counsel

HEARD: In Writing on : August 1, 2018

OVERVIEW

1The applicant was injured in an automobile accident on February 15, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

2The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Has the applicant sustained a "minor injury" as defined under the Schedule as a result of the accident?

2. Is the applicant entitled to medical benefits recommended by Spinal Touch Wellness Centre as follows; a. $1,318.00 for a treatment plan dated March 23, 2017; and b. $999.20 for a treatment plan dated March 23, 2017?

3. Is the applicant entitled to a medical benefit in the amount of $1,837.00 for a physiotherapy treatment plan submitted by New Hope Physiotherapy and dated June 20, 2017?

4. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?

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

6. Is the applicant entitled to the cost of disbursements in the amount of $630.00?

7. Is the applicant entitled to legal costs in the amount of $3,000.00?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

5The applicant is not entitled to any of the disputed treatment plans.

6The applicant is not entitled to an award under Ontario Regulation 664.

7Neither party is entitled to costs or disbursements.

BACKGROUND

8The applicant was a driver in a vehicle which was struck from behind while travelling forward. The collision jerked the applicant forward and back. The applicant did not immediately seek medical help following the accident and, instead, the applicant chose to proceed to work. The applicant visited Dr. S. Fahim, family physician, the following day, exhibiting signs of nervousness and complaining of neck and back pain and headaches. Dr. Fahim prescribed physiotherapy for the accident-related injuries.

9The applicant's course of treatment following the visit with Dr. Fahim is unclear because the applicant has not provided any treatment records. Similarly, I have no submissions indicating what treatment was incurred following the accident.

10Ultimately, the respondent characterized the applicant's injuries as falling within the MIG. This same position was also maintained by respondent's two s. 44 assessors. While not entirely clear, it appears that the respondent denied the disputed treatment plans on the basis, in part, that the applicant has been approved for treatment up to the $3,500.00 MIG funding limit.

THE EVIDENCE

11Before I address the parties' arguments on the issues, I must first address the parties' submissions on the evidence before me.

12The applicant takes issue with the evidence presented by the respondent. The applicant argues the s. 44 insurer's examination reports by Dr. M. Hanna, physician, and Dr. C. Boulias, physiatrist, should be given no weight because the assessors did not have access to Dr. Fahim's clinical notes and records. The applicant believes the two assessors would have come to a different finding had they had the opportunity to review these records.

13The respondent disputes this position, arguing the applicant did not provide it with Dr. Fahim's clinical notes and records until May 30, 2018 – some two years after Dr. Hanna's assessment, almost two months after Dr. Boulias's assessment, and the day before the deadline to exchange evidence for this hearing. Additionally, the respondent submits the diagnoses made by Dr. Hanna and Dr. Boulias are the only expert opinions I should consider because the opinion of the applicant's expert witness, Dr. I. Wilderman, physician, is largely based on the applicant's self-reporting and does not include a review of any other records than bilateral hip and shoulder ultrasounds.

14I reject the applicant's request to assign no weight to the respondent's reports for two reasons. First, the respondent could not have had the s. 44 assessors review Dr. Fahim's clinical notes and records given that those documents were not available. Second, the applicant fails to appreciate that the applicant's own assessor, Dr. Wilderman, did not review Dr. Fahim's clinical notes and records either. That is to say, if I were to accept the applicant's argument and discount the weight of the s. 44 reports, I would have to apply the same discount to the applicant's key piece of evidence and, ultimately, deprive this hearing of the three most relevant pieces of evidence. I will address the strength of the medical evidence while I address the MIG and entitlement to the disputed medical benefits.

THE MINOR INJURY GUIDELINE & MEDICAL BENEFITS

15The 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.

16If the applicant's injuries are deemed to be minor in nature and falling within the MIG, there are two avenues for the applicant to obtain medical treatment outside the MIG:

1. Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example; or
2. Establish the applicant has a documented pre-existing injury which would preclude recovery within the confines of the MIG.

Did the applicant sustain any accident-related injuries which fall outside the MIG?

17The applicant claims to have developed a chronic pain condition with a psychological component which cannot be treated within the MIG. The psychological component, as submitted by the applicant, includes symptoms of depression, anxiety, and post-accident distress. The applicant submits these injuries prevent the applicant from returning to the same level of functioning as before the accident. In support of this position, the applicant refers to the numerous complaints of pain documented in Dr. Fahim's clinical notes and records, as well as Dr. Wilderman's findings in the report dated his April 24, 2017.

18The respondent's counter-arguments can be summarized in four points:

1. Dr. Hanna and Dr. Boulias opined in their s. 44 reports that the applicant's injuries fall within the MIG;
2. The objective testing before me, namely the ultrasound of the right shoulder, indicates only a partial thickness tear in the subscapularis tendon, which falls in the MIG;
3. Dr. Wilderman's opinion should be discounted given that it relies largely on the applicant's self-reporting; and
4. There is no objective evidence showing that the applicant suffers from a psychological injury.

19On a balance of probabilities and for the following reasons, I find the applicant's accident-related injuries fall within the MIG.

20First, Dr. Fahim's clinical notes and records do not indicate an accident-related injury which is not captured under the MIG. The only reference to a psychological injury, which may be considered outside the MIG, is the September 23, 2016 record which notes the applicant was nervous and may be having post-traumatic stress disorder. There is no follow-up to this note. This clinical note, absent any other evidence of a psychological injury, does not establish the applicant has a psychological injury as a result of the accident.

21Second, the combined and harmonious findings of Dr. Boulias and Dr. Hanna outweigh that of Dr. Wilderman. Dr. Wilderman found the applicant had, as a result of the accident, developed fibromyalgia, depression, severe post-traumatic stress disorder, and has a chronic pain condition with a psychological component. However, when provided with the same information and upon conducting their own examinations, both Dr. Boulias and Dr. Hanna concluded the applicant's injuries as a result of the accident are within the MIG. Dr. Boulias makes no mention of any complaints of a psychological nature and, when provided with a copy of the Schedule's definition of a minor injury, Dr. Hanna maintained that the applicant's injuries as a result of the accident fall within the MIG.

22Lastly, I find Dr. Wilderman's opinion less persuasive than the opinions in the s. 44 insurer's examinations. Dr. Wilderman opines the applicant suffers from a chronic pain disorder that is associated with significant and reliable impairment of function. However. Dr. Wilderman does not provide evidence the applicant has a significant functional impairment. In fact, the applicant shows no signs of such drastic physical or psychological impairment; the applicant has returned to work and continues to drive. Further, I find Dr. Wilderman's conclusion that the applicant suffers from depression and PTSD is without proper investigation. Dr. Wilderman relied only on the applicant's responses to standard questionnaires and did not provide any validity testing or investigation to test the applicant's answers. Lastly, Dr. Wilderman relies solely on the applicant's self-reports to conclude the applicant's physical and psychological functioning has changed significantly since the accident. Dr. Wilderman's conclusion of a change in functioning is not based on any objective information regarding the applicant's pre-accident health status to evidence this change. The flaw with this approach is highlighted in the simple discrepancy wherein Dr. Wilderman reports the applicant was off work for three to four months while, in fact, the balance of the evidence before me indicates that the applicant was off work for only two to three weeks.

Does the applicant have a documented pre-existing injury which would preclude recovery within the MIG?

23The applicant takes the position that a history of hyperlipidemia (high cholesterol) is a documented pre-existing injury which prevents the applicant from reaching maximum recovery within the MIG. The applicant also highlights several entries in Dr. Fahim's records which note the applicant complained of arm, shoulder, neck, and back pain prior to the accident.

24The respondent counters that the applicant has not provided any compelling evidence that a pre-existing condition would prevent the applicant from achieving maximal medical recovery.

25I have reviewed the evidence and submissions and find the applicant does not have a pre-existing medical condition which would preclude recovery within the MIG. There is no evidence to suggest the applicant's pre-existing hyperlipidemia would impact the applicant's recovery from soft tissue injuries. The clinical notes and records of Dr. Fahim show the applicant's hyperlipidemia was well-known prior to the subject accident yet Dr. Fahim does not comment on how, if at all, this would impact the applicant's recovery. Similarly, none of the expert medical reports before me reveal the applicant's hyperlipidemia as a barrier to recovery. Likewise, noting complaints of back and shoulder pain prior to the accident is not sufficient to remove the applicant from the MIG. The applicant must present evidence that the pre-existing condition limits the applicant's ability to recover if subjected to the MIG. The applicant has failed to do this.

THE DISPUTED TREATMENT PLANS

26Pursuant to s. 15, and subject to the monetary limits outlined in s. 18 of the Schedule, the respondent is liable to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant.

27The applicant claims entitlement to the disputed treatment plans but did not provide any submissions as to why is entitled to them or why the disputed treatment plans are reasonable and necessary. In fact, the applicant did not even submit the disputed treatment plans as evidence for this hearing.

28In its response, the respondent raised this issue of the applicant's lack of submissions and evidence to address the disputed treatment plans. The respondent submits that, as a result of the failure to provide submissions in favour of the disputed treatment plans, the applicant has failed to prove they are reasonable and necessary.

29The applicant made submissions in reply but did not address this position or submit the treatment plans as evidence.

30Due to the lack of evidence or submissions in favour of the disputed treatment plans, I find they are not reasonable and necessary.

WERE ANY PAYMENTS UNREASONABLY DELAYED OR WITHHELD?

31The applicant requests an award equal to 50% of all the denied benefits to date. The applicant makes this request pursuant to section 10 of Regulation 664. The applicant did not provide any reasons for this request.

32The respondent submits the claim for an award is not properly at issue before me but nevertheless pointed out the applicant has not provided any evidence to support the claim.

33Pursuant to section 10 of Regulation 664, an award may be granted if l find that the respondent has unreasonably withheld or delayed payment of a benefit.

34I find no evidence to indicate the respondent unreasonably withheld or delayed payment of a benefit and make no such award for this reason. With this finding in mind, coupled with the applicant's decision not to make any submissions on the topic, I need not consider whether the issue is properly before me.

COSTS & DISBURSEMENTS

35In the initial written submissions, the applicant requested an order that the respondent pay disbursements in the amount of $630.00 for the production of clinical notes and records and the application fee with the Tribunal. The applicant also requested an order that the respondent pay legal fees of the applicant in the amount of $3,000.00. The applicant did not provide any reasons for these requests. The respondent held the Tribunal does not have jurisdiction to award disbursement of legal costs as plead by the applicant.

36Costs are addressed in rule 19.1 of the Common Rules of Practice and Procedure. Rule 19.1 provides that costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

37Although it is generally accepted that the Tribunal does not award disbursement costs, such costs are not expressly addressed in the Common Rules of Practice and Procedure. The parties did not make substantial submissions regarding the Tribunal's jurisdiction to award the costs of disbursements and, for this reason, I decline to make a finding on the Tribunal's jurisdiction.

38At any rate, I reject the applicant's request for an order awarding the cost of disbursements because the applicant has not provided any reasons for me to make such an order. I will, however, refer the parties to the order dated May 16, 2017 which notes the respondent's request for Dr. Wilderman's and Dr. Fahim's clinical notes and records and states the respondent agrees to pay the applicant's reasonable costs of production.

39Similar to the request for the costs of disbursements, there is no evidence or submissions before me to substantiate that either party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding. For this reason, I find neither party is entitled to costs of this proceeding.

CONCLUSION

40Based 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.

41The disputed treatment plans are found not reasonable and necessary due to a lack of evidence in favour of them.

42The applicant is not entitled to an award under Ontario Regulation 664.

43Neither party is entitled to costs or disbursements.