S.S.L. v. Aviva Insurance Company, 2019 CanLII 72200

Tribunal File Number: 18-005543/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:

S.S.L.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

For the Applicant: P. Anthony Drake, Lawyer

For the Respondent: Annemarie N. White, Lawyer

Written Hearing: February 11, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on October 1, 2015 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.

2The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”). The applicant’s position is exactly the opposite.

ISSUES

3Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the MIG?

4The other substantive issues to be decided are:

(i) Is the applicant entitled to receive a medical benefit in the amount of $2,200 for a psychological assessment, recommended by Somatic Assessments & Treatment Clinic Inc. in a treatment plan submitted February 22, 2018, and denied by the respondent on February 28, 2018?

(ii) Is the applicant entitled to receive interest on the overdue payment of benefits?

RESULT

5I find the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall with the MIG.

6I find the applicant is not entitled to receive a medical benefit in the amount of $2,200.00 for a psychological assessment.

7As I have denied the applicant’s claim for benefits, there is no interest payable.

ANALYSIS

The Minor Injury Guideline

8Section 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.”

9Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries up to $3,500.

10Section 18(2) of the Schedule provides the provision if an insured provides documented pre-accident medical evidence from a health practitioner which shows a pre-existing medical condition which prevents an insured from achieving maximum medical recovery under the MIG, then the limit of $3,500.00 does not apply. The onus is on the applicant to show that her injuries fall outside of the MIG².

Did the applicant sustain predominantly minor injuries?

11I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule because:

(i) The existence of the applicant’s pre-existing condition of cervical disc disease does not provide compelling evidence that the applicant has not reached maximum medical recovery within the MIG;

(ii) The applicant did not sustain a psychological impairment as a result of the accident and;

(iii) The applicant does not suffer from chronic pain as a result of the accident.

12The applicant argues that she should be removed from the MIG because she has:

(a) a pre-existing medical condition in her cervical spine and still experiences pain from a motor vehicle accident which occurred six years prior to the subject accident;

(b) psychological impairments from the subject accident which prevent her from recovering within the MIG and;

(c) chronic pain in her neck from the subject accident which has not resolved with treatment under the MIG.

13The respondent argues the applicant should not be removed from the MIG because:

(i) The applicant has not produced compelling evidence that she had a pre-existing injury which prevents her from achieving maximum medical recovery within the MIG and;

(ii) The medical evidence does not support that the applicant’s injury is not predominantly a minor injury.

Does the Applicant Have a Pre-existing Condition?

14I find the applicant has established she has a pre-existing condition based on the October 2015 x-ray and the diagnosis of Dr. Woo and Dr. Counti. However, I do not find this evidence to be compelling that it would prolong her recovery within the MIG.

15The applicant relies on the diagnosis from her family doctor; Dr. D. Woo who reviewed an x-ray taken of the applicant’s neck following the accident. His clinical note and record of October 7, 2017, (“CNR”) noted as a result of this x-ray that she had moderate to severe degenerative disc disease in C4-5-6 areas of her neck, and noted neck pain from a prior car accident six years earlier.

16The applicant underwent physical treatment with Dr. P. Counti, chiropractor from November 2015 to February 2016 and the $3,500 MIG limit for treatment was consumed. The applicant further relies on the treatment plan (“OCF-18”) dated January 30, 2016, submitted by Dr. Counti which noted the applicant cannot be treated within the MIG due to the pre-existing cervical disc disease and psychosocial factors. The applicant submitted that the respondent failed to obtain an opinion by way of insurer’s examination (“IE”), or a paper review to further review the opinion produced by Dr. Counti. The applicant submitted the respondent ought to have done so prior to denying the applicant further treatment outside the MIG.³ Further, the applicant submitted a valuation of the possibilities, rather than a balance of probabilities⁴ should have been the respondent’s consideration that the applicant’s cervical disc disease prevented her from recovering within the MIG.

17The respondent submitted the applicant’s decoded OHIP summary from October 1, 2012 - May 6, 2016 noted several visits to Dr. Woo for issues unrelated to this accident. The last entry is dated August 11, 2018 and there are no complaints relating to the injuries to the neck and low back within the OHIP summary beyond October 7, 2015. Further, Dr. Counti has failed to elaborate how the applicant’s pre-existing condition of cervical disc disease would affect her response to treatment; he only opined that it could.

18I find the applicant has not met her onus that her pre-existing condition of cervical disc disease has prevented her from achieving maximum medical recovery within the MIG. I am not persuaded by Dr. Counti’s evidence as it did not explain how the pre-existing condition of cervical disc disease would affect her response to treatment, or specifically explain why the MIG was insufficient for her being able to reach maximum medical recovery. There was no explanation provided by Dr. Counti regarding what psychosocial factors impacted the applicant and how they were a barrier to her recovery. I have reviewed the jurisprudence and case law submitted by the applicant and I do not find it persuasive. There is no obligation imposed by the Schedule which requires an insurer to conduct IEs or seek a medical expert opinion to probe an applicant’s claims or substantiate the reasons for its denial.

Does the Applicant Have a Psychological Impairment?

19Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

20I find the applicant does not have a psychological impairment which would warrant her removal the MIG for the following reasons:

i. The OCF-18 dated January 30, 2016, issued by Dr. Counti noted the applicant suffered from a non-organic sleep disorder. However, the next time the applicant addresses the issue regarding her sleep is February 19, 2018 when she sees Dr. McDowall, psychologist for a psychological consultation. There has been no explanation provided for this significant gap in time;

ii. Dr. McDowall’s psychological consultation report dated February 19, 2018 was based on the applicant’s self-reporting interview in which the applicant reported: persisting pain in her neck, shoulders and back, poor sleep due to flashbacks and nightmares of the accident, poor concentration, and irritability. The report concluded the applicant’s physical pain and psychological challenges affected her activities of daily living, she should be removed from the MIG, and a full psychological assessment was recommended. I afford little weight to the psychological consultation report of Dr. S. McDowall, psychologist which was done 28 months after the accident and two years after she last saw Dr. Counti. Further, the CNRs of Dr. Woo does not reference any psychological complaints following the subject accident.

Does the Applicant Suffer from Chronic Pain?

21I do not find the applicant suffers from chronic pain as a result of the accident because the only pain complaints made to Dr. Woo from the subject accident were on October 2, 7, 2015. I do not find the evidence supports the applicant suffers from a functional impairment. I afforded little weight to Dr. McDowall’s consultation report for the reasons provided above.

22The applicant relied on jurisprudence that noted chronic pain persists beyond the normal healing time and that sufferers of chronic pain are impaired by conditions which cannot be supported by objective findings⁵. I find this case to be distinguishable from the reference noted within Ali and Certas. The applicant submitted she had been suffering from pain as a result of the accident for eleven months when Dr. Counti submitted the OCF-18 dated January 30, 2016. I find this submission inaccurate as the date of loss was October 1, 2015. The applicant further submitted that she had been in pain for three years prior to seeing Dr. McDowall in February 2018, but there were no documented pain complaints beyond January 30, 2016 when the applicant saw Dr. McDowall. Due to the limited reporting of pain complaints, there is no compelling evidence that the applicant suffers from a functional impairment as a result of the accident, I do not find the applicant suffers from chronic pain as a result of the accident.

Is the Psychological Assessment Reasonable and Necessary?

23I find the psychological assessment in the amount of $2,200.00 is not reasonable and necessary because I do not find the evidence establishes that the applicant suffers from a psychological impairment as a result of the accident.

24The applicant relies on Dr. McDowall’s psychological consultation report of February 19, 2018 that the applicant suffers from a psychological impairment as her neck pain, and other ongoing physical impairments had not resolved since the accident. While it is recognized that pain relief is a legitimate medical and rehabilitative goal,⁶ I find the applicant in the case before me made complaints of pain relating to the accident on two occasions right after the accident in 2015, last noted with Dr. Counti on January 30, 2016, and then not again until February 2018 with Dr. McDowall. Adjudicators can disagree with the conclusions reached by IE assessors regarding the need for further facility based treatment.⁷ In the case before me, I find the limited reporting to medical professionals establishes that the applicant was not suffering from ongoing pain to the level it was causing her psychological impairment. Therefore, I find this treatment plan is not reasonable and necessary.

CONCLUSION

25For the reasons outlined above, I find that:

a. The applicant sustained predominantly minor injuries that fall within the MIG.

b. The psychological assessment claimed is not reasonable and necessary, and the applicant is not entitled to this claimed benefit.

c. I have denied the applicant’s claim for benefits, there is no interest payable. Her application is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 3Thangarasa and Gore Mutual, FSCO A02-001360, paras 158-159
4. 4Graham v. Rourke, 1990 CanLII 7005 (ON CA), 1990, CANLII7005 (ONCA)
5. 5Ali and Certas, FSCO A13-002459, A13-002460, March 23, 2016, para 35
6. 6Violi and Co-operators, FSCO A98-000670, August 20, 1999, para 19
7. 716-000536 and Co-operators General Insurance Company, 2016 CANLII 933133 (ONLAT), para 14```