M.M.S. v. Aviva General Insurance Company, 2019 CanLII 58166

Tribunal File Number: 18-006861/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:

M.M.S.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

PANEL:

Poeme Manigat, Adjudicator

APPEARANCES:

For the Applicant:

Joseph Lam, Counsel

For the Respondent:

David E.W. Koots, Counsel

HEARD:

In Writing on: March 18, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on May 18, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when her claims for benefits were denied by the respondent, Aviva Insurance.

2The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fell within the Minor Injury Guideline² (“MIG”). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.

4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries would have been exhausted.

5The applicant also claims income replacement benefits (IRB).

ISSUES

6Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

7If the applicant’s injuries are not within the MIG, then I must determine the following:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $334.06 ($1,296.99 less $962.93 previously approved) for chiropractic treatment recommended by Physio Fix and Fitness in a treatment plan submitted on July 27, 2016, and denied on August 11, 2016?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,151.22 for a psychological assessment recommended by Physio Fix and Fitness in a treatment plan submitted on August 4, 2016, and denied on August 15, 2016?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $334.06 ($1,296.99 less $962.93 previously approved) for chiropractic treatment recommended by Physio Fix and Fitness in a treatment plan submitted on July 27, 2016, and denied on August 11, 2016?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,151.22 for a psychological assessment recommended by Physio Fix and Fitness in a treatment plan submitted on August 4, 2016, and denied on August 22, 2016?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,630.02 for chiropractic treatment recommended by Physio Fix and Fitness in a treatment plan submitted on Augusts 10, 2016, and denied on August 22, 2016?

vi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,047.42 for acupuncture treatment recommended by Physio Fix and Fitness in a treatment plan submitted on August 10, 2016, and denied on August 22, 2016?

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

8Is the applicant entitled to IRBs in the amount of $242.31 weekly, from May 25, 2016 to March 1, 2017?

RESULT

9I find that M.M.S.’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans.

10I find that the applicant is not entitled to IRBs.

ANALYSIS

The Minor Injury Guideline

11Section 3(1) of the Schedule defines a “minor injury” as “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.” The MIG defines in detail what these terms for injuries mean.

12Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

13M.M.S. argues that her injuries fall outside the MIG because of both physical and psychological injuries. The onus is on M.M.S. to show that her injuries fall outside the MIG³.

Did the applicant sustain minor physical injuries?

Accident-related injuries - physical

14I find that the evidence establishes that M.M.S. sustained accident-related physical injuries; however, these injuries are categorized as minor.

15On the date of the accident, the applicant visited her family physician, Dr. Sameera Benjamen, who diagnosed her with chronic post-traumatic myofascial pain in the shoulders, cervical and lumber spine and anxiety.⁴

16On July 22, 2016, M.M.S. attended an examination completed by Dr. Julie Millard, a physiatrist/Insurer Examination Assessor. Dr. Millard reported that M.M.S. suffered a mild impairment in range of motion, which remains within functional range. She further stated that M.M.S. had a spine sprain/strain.⁵ Dr. Millard concluded that M.M.S.’s injuries were minor.

17Dr. Benjamen’s letter dated January 28, 2019⁶ details, in part, the physical pain felt by M.M.S.; however, it does not provide compelling evidence to support the position that M.M.S.’s injuries fall outside the MIG.

18M.M.S. completed a pre-screening interview on July 19, 2016, where Dr. Nina Belyakova, a psychologist, documented the applicant’s physical complaints including constant pain in the lower back, neck, shoulders, arms and hands⁷. The pre-screening interview was conducted by another person, Ms. Mila Popova, a psychotherapist working under the direct supervision of Dr. Belyakova.

19M.M.S. relies on the complaints reported at the pre-screening interview on July 19, 2016 in support of her position that her injuries fall outside the MIG⁸. For the reasons that follow, I place very little weight on Dr. Belyakova’s pre-screening interview with the applicant with respect to the physical aspect of the applicant’s injuries. First, there is no indication that Dr. Belyakova met the applicant in person, as the interview was conducted by Ms. Popova. Second, Dr. Belyakova’s expertise is in psychology, therefore her opinion with respect to the physical pain felt by the applicant is not persuasive. Third, the above-noted examination completed by Dr. Julie Millard, a physiatrist with the specialized expertise to assess the physical injuries of the applicant, states that the applicant’s injuries are minor. Fourth, Dr. Millard met with the applicant in person to complete the physical assessment, which forms the basis of her report⁹.

20Based on the evidence before me, the applicant did not prove on a balance of probabilities that her physical injuries fall outside the MIG.

Criteria for Pre-Existing Condition

21The applicant argues that she has a pre-existing condition, a broken left arm, for which she had surgery in 2008. The applicant provided a clinical note and record from Dr. Handelsman who diagnosed her with posttraumatic fibromyalgia¹⁰. Aside from Dr. Handelsman’s clinical note and record which dates back to January 30, 2013, there is no medical evidence before me to prove that the applicant’s pre-existing condition was documented by a health practitioner before the accident.

22In order to claim that a pre-existing condition will prevent the applicant from achieving maximal recovery from the minor accident-related injuries with the cap imposed by the MIG, the pre-existing condition has to be documented by a health practitioner before the accident. The only documentation available to satisfy this condition is Dr. Handelsman’s note. The applicant’s treating family doctor stated unequivocally that she is not aware of any pre-existing condition with the applicant. Notwithstanding the clinical note and record of Dr. Handelsman, I find the statement of Dr. Benjamen, denying the existence of any pre-existing condition with the applicant, very compelling.

23Based on the above reasons, I find that the applicant did not have a pre-existing condition that could prevent her from achieving maximal recovery from the minor accident-related injuries. In the alternative, I find that if the applicant had a pre-existing condition, it resolved by the date of the accident. The fact that the last medical documentation pertaining to the applicant’s pre-existing condition dates back to January 2013 is compelling.

Accident-related injuries - psychological

24The parties focused their submissions on opposing psychological reports and M.M.S.’s self-reporting. For the reasons below, I find that M.M.S. did not suffer from any accident-related psychological injuries that are not considered minor in nature.

25M.M.S. relies on the results of the pre-screening interview conducted by Dr. Belyakova on July 19, 2016¹¹. Dr. Belyakova opined that the applicant needed a complete and thorough psychological assessment in order to determine the severity of M.M.S.’s psychological impairments.

26Dr. Belyakova diagnosed M.M.S. with Adjustment Disorder with Mixed of Anxiety and Depressed Mood, Specific Phobia, Situational Type (Driver Related).

27The respondent relies on Dr. Hannah Rockman’s psychological impairment assessment, conducted on July 12, 2016¹² to refute M.M.S.’s claim that she suffered a psychological impairment resulting from the accident. Dr. Rockman reported that due to the over endorsement and inconsistency in M.M.S.’s responses during the test, she was unable to offer a diagnosis. Dr. Rockman concluded that the results of her assessment provided no evidence to support M.M.S.’s complaints of psychological sequelae.

28As stated earlier, there is no clear evidence confirming that Dr. Belyakova met M.M.S. during the pre-screening interview, upon which her diagnosis is based - this is problematic. Consequently, I am assigning less weight to Dr. Belyakova’s diagnosis.

29Dr. Rockman examined M.M.S. for two and half hours and put her through various tests to determine whether or not she had any psychological impairment. Despite the validity concerns raised by M.M.S.’s responses, Dr. Rockman was confident that no evidence existed to substantiate the claim that M.M.S. had a psychological impairment.

30M.M.S. argued she performed poorly on the written part of the tests administered by Dr. Rockman because she had difficulties with the written component. Despite M.M.S.’s reasoning, the onus of proving that M.M.S. has a psychological impairment rests with her. I find that M.M.S. failed to prove that she suffered from a psychological impairment resulting from the accident.

31M.M.S. is limited to $3,500.00 in benefits available under the MIG - which has been exhausted - and I therefore do not need to address the question of whether the treatment plans are reasonable and necessary.

Is the applicant entitled to IRBs?

32Prior to the accident, M.M.S. was employed as a full time administrative assistant at her husband’s mechanic shop [.]M.M.S. submits that her duties included communicating with clients and suppliers, handling correspondence, and invoicing. M.M.S. also drove and delivered orders/parts to clients’ worksites and picked up cheques/payments. M.M.S. confirmed that her primary work location was her home. Following the accident, M.M.S. complained of headaches, difficulty concentrating and experiencing anxiety when driving. M.M.S. argued that her physical and psychological impairments prevented her from working. M.M.S. argued that as a result of the accident, she was unable to work for a period of 40 weeks and is therefore seeking IRB for that period.

33M.M.S. relies on Dr. Benjamen’s medical opinion dated May 24, 2016¹³ to support her position that she was incapable of working. Dr. Benjamen’s opinion is based on the symptoms reported by M.M.S. and her assessment of her injuries when meeting with her. Dr. Benjamen’s medical opinion with respect to M.M.S.’s ability to perform the essential duties of her employment is brief in her report dated May 24, 2016. This opinion is not based on a detailed evaluation of M.M.S.’s work duties and physical demands. On the contrary, Dr. Kominek’s assessment is a comprehensive evaluation of M.M.S.’s employment duties and physical strength and limitation. The fact that Dr. Kominek’s assessment in regards to M.M.S.’s ability to perform the essential duties of her employment is consistent with two other health practitioners - who also assessed M.M.S. - is convincing. I find the applicant has not proven that she suffers a substantial inability to perform the essential tasks of her pre-accident employment.

34The respondent relies on Dr. Paul Kominek¹⁴, Dr. Rockman and Dr. Millard’s assessments to deny M.M.S.’s claim for IRB. Dr. Rockman concluded that from a psychological perspective, there is no compelling evidence that M.M.S. could not perform the essential tasks of her employment¹⁵.

35Dr. Millard established that from a musculoskeletal point of view, M.M.S. does not suffer a substantial inability to perform the essential tasks of her employment¹⁶.

36Dr. Kominek found that M.M.S.’s work activities required low strength demands. Dr. Kominek assessed M.M.S.’s physical demand strength level to be light to medium and concluded that she was able to perform the essential tasks of her pre-accident employment¹⁷.

37I accept the respondent’s argument that the only medical opinion supporting M.M.S.’s claim that she cannot work is that of Dr. Benjamen that was provided shortly after the accident. The subsequent medical opinions offered by Dr. Rockman, Dr. Millard and Dr. Kominek suggest the opposite.

38M.M.S. argued that she is unable to do certain tasks of her pre-accident job such as driving, delivering parts and invoicing. In order to properly evaluate M.M.S.’s ability to perform the essential duties of her employment, it is necessary to ascertain if driving, delivering parts and invoicing constitute a substantive part of her employment. The evidence provided by M.M.S. does not clearly show the proportion of M.M.S.’s employment constituting these activities. The evidence produced by the applicant is insufficient to substantiate her claim that she is unable to perform the essential tasks of her pre-accident employment.

39M.M.S. confirmed that her primary work location was her home. However, when being assessed by Dr. Kominek, M.M.S. stated that no work modifications were available. I find it unlikely that no work modifications were available for M.M.S. given the fact that her primary work location was her home. No evidence was submitted in support of any efforts made for work modifications in M.M.S.’s home.

CONCLUSION

40For the reasons outlined above, I find that:

i. The applicant sustained minor injuries that fall within the MIG. Accordingly, the applicant is not entitled to the treatment plans claimed in this application.

ii. The applicant is not entitled to IRBs.

iii. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4OCF-3 dated May 24, 2016 by Dr. Sameera Benjamen - Disability Certificate
5. 5Insurer Examination – Physiatry Assessment by Dr. Julie Millard, dated August 16, 2016
6. 6Letter from Dr. Sameera Benjamen, dated January 28, 2019
7. 7OCF-18 date July 19, 2016 by Dr. Nina Belyakova – Treatment and Assessment Plan
8. 8Ibid.
9. 9Dr. Millard, supra note 5
10. 10Dr. Handelsman report, dated January 30, 2013
11. 11Dr. Belyakova, supra note 7
12. 12Insurer Examination –Psychological Assessment by Dr. Rockman, dated August 16, 2016
13. 13Dr. Benjamen, supra note 4
14. 14Insurer Examination – Functional Abilities Evaluation and Work Demands by Dr. Kominek, dated August 16, 2016
15. 15Dr. Rockman, supra note 12
16. 16Dr. Millard, supra note 5
17. 17Dr. Kominek, supra note 14