S.K. v. Aviva Insurance Canada, 2019 CanLII 76839

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.K.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Applicant: W. Ryan Moriarty, Counsel; Domenic Pellegrino, Counsel

For the Respondent: David E.W. Koots, Counsel

Heard IN WRITING: November 19, 2018

OVERVIEW

1The applicant, ("S.K."), was injured in an automobile accident on August 27, 2015 (the "accident") and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule") from Aviva Insurance Canada ("Aviva"), the respondent.

2Aviva denied S.K.'s claims because it had determined that all of S.K.'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 As a result, S.K. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3The parties were unable to resolve their dispute at the case conference held on July 16, 2018, and the matter proceeded to a written hearing on November 19, 2018.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did S.K. sustain predominately minor injuries as defined under the Schedule?

(ii) If the answer to issue (i) is "no," then:

(a) Is S.K. entitled to receive a medical benefit in the amount of $857.61 for assistive devices recommended by Remik Zakzewski, occupational therapist, in a treatment plan submitted on February 7, 2018, and denied by Aviva on March 6, 2018?

(b) Is S.K. entitled to payment for the cost of an examination in the amount of $2,030.07 for an in-home occupational therapy assessment recommended by Remik Zakzewski, occupational therapist, in a treatment plan submitted on May 10, 2017 and denied by Aviva on July 24, 2017?

(c) Is S.K. entitled to payment for the cost of an examination in the amount of $2,259.78 for an orthopaedic assessment recommended by Dr. Michael West, orthopaedic surgeon, in a treatment plan submitted on November 8, 2017 and denied by Aviva on March 14, 2018?

(d) Is S.K. entitled to interest on any overdue payment of benefits?

(iii) Is S.K. entitled to an award under Ontario Regulation 664 because Aviva unreasonable withheld or delayed the payment of benefits?

RESULT

5I find that S.K.'s injuries fall within the MIG and, therefore, it is unnecessary to consider the reasonableness and necessity of the treatment plan for assistive devices, the cost of the examinations or the issue of interest because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted. I also find that S.K. is not entitled to an award in this matter.

ANALYSIS

Did S.K. sustain predominately minor injuries as defined under the Schedule?

a) The Minor Injury Guideline ("MIG")

6The 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 defined in the Schedule.

7Section 18(1) of the Schedule limits entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on S.K. to show that her injuries fall outside of the MIG.² In this case, S.K. argues that her physical injuries sustained in the accident are not "minor injuries" as defined in the Schedule. In the event that I find that her physical injuries are "minor injuries," S.K. argues in the alternative that she should be removed from the MIG because she has been diagnosed with chronic pain syndrome.

9I find the physical injuries that S.K. sustained from the accident are "minor injuries" as defined in the Schedule and that S.K. is not removed from the MIG as a result of chronic pain syndrome. Therefore, her treatment entitlement remains within the financial limits of the MIG of $3,500.00.

b) Physical Injuries

10I find that S.K. has failed to prove on a balance of probabilities that her physical injuries from the accident are not "minor injuries" as defined in the Schedule.

11S.K. argues that her injuries are not "minor" because she sustained the following injuries as a result of the accident:

(i) a full thickness tear of her left supraspinatus tendon with impingement; and

(ii) Whiplash Associated Disorder ("WAD") that exhibited objective, definable and clinically relevant neurological signs.

12Aviva disagrees and argues that S.K.'s left rotator cuff injury is not accident related and, in the event that I find that it is, S.K. only suffered a partial tear, which is still a "minor injury" as defined by the Schedule. Aviva also argues that although S.K. had post-accident numbness, it was only first documented in April 2016 and it did not lead to a diagnosis that warrants a removal from the MIG.

Left Shoulder Injury

13I find that S.K. has proven on a balance of probabilities that her left shoulder partial rotator cuff tear and impingement with biceps tenosynovitis were sustained as a result of the accident. However, because the tear was only partial, S.K. is not removed from the MIG on this basis because her impairment falls under the definition of a "strain" in section 3(1) of the Schedule which, in turn, still falls under the definition of a "minor injury."

14After the accident, S.K. first attended her family doctor, Dr. Jackie Bellaire, on August 31, 2015. In her clinical notes and records (CNRs), Dr. Bellaire records on this date that S.K.'s left shoulder was higher than her right, and that S.K. had "ongoing trapezius" pain.³ S.K. was referred to physiotherapy at this time.

15S.K. submitted CNRs from East Toronto Orthopaedic and Sports Injury Clinic Inc. which stated that S.K. reported pain in her "upper shoulder" and ongoing on/off shoulder tightness on September 9, 2015.⁴ A diagram provided of the same date has circled both shoulders and upper back and I accept that this circle indicates one of S.K.'s pain locations. S.K. received treatment from this clinic on her shoulders on numerous occasions starting in September 2015 and throughout December 2015 to March 2016 and beyond.

16During this time, S.K. continued to attend at her family doctor with pain related complaints. Dr. Bellaire CNRs record "trap muscles sore" and trapezius tender in an October 27, 2015 entry, and refers to "bilat Trap tenderness" and a trapezius strain on December 3, 2015. On January 4, 2016, Dr. Bellaire records, "Traps bilat less tense than previous but remain tender to palpation," and Dr. Bellaire refers S.K. to acupuncture for trapezius tension and neck pain on January 4, 2016. Dr. Bellaire also notes ongoing "trap discomfort but mild improvement" on January 18, 2016. On March 4, 2016, Dr. Bellaire notes, "L shoulder worse – stiff, limited ROM above shoulder in extension/abduction" and diagnoses a rotator cuff injury.

17S.K. submitted as evidence a left shoulder ultrasound report dated March 14, 2016.⁵ In this report, a full-thickness tear of S.K.'s left supraspinatus tendon is observed and there is no evidence of rotator cuff tendon impingement.

18This initial diagnosis was corrected by Dr. Diane Nam, orthopaedic surgeon, following her review of the March 14, 2016 ultrasound report and a subsequent MRI report. Dr. Nam opined that S.K. sustained a left partial rotator cuff tear and that she suffered mainly from impingement. Dr. Nam's diagnosis was confirmed in an Operative Report dated April 21, 2017 following surgery on S.K.'s left shoulder. Dr. Nam's post-operative diagnosis was left shoulder partial rotator cuff tear and impingement with biceps tenosynovitis and Dr. Nam stated, "we then took the opportunity to inspect the rotator cuff to confirm that the tear was in fact partial and not full, and this was confirmed."

19Given the totality of the evidence before me, I disagree with Aviva that the first documented left rotator cuff complaint from S.K. did not occur until March 4, 2016 in Dr. Bellaire's CNRs. Aviva fails to acknowledge the shoulder pain complaints and treatments received by S.K. as recorded in the East Toronto Orthopaedic and Sports Injury Clinic Inc. CNRs that started in September 2015 and continued in December 2015 and beyond. Furthermore, Aviva acknowledges in its submissions that the trapezius and latissimus muscle groups play a role in shoulder movement,⁶ and S.K. made continuous pain complaints to Dr. Bellaire about pain in her trapezius starting four days after the accident. Aviva, however, claims that these muscles are part of the back and are "not related to the rotator cuff partial tear," but does not refer me to any medical opinion or evidence to support this position.

20I also give little weight to Dr. Eric Silver's insurer's examination (IE) Physician Assessment Report dated July 24, 2017,⁷ in which Dr. Silver opines that S.K.'s shoulder injury was not accident related because his initial opinion is solely based on the absence of a shoulder injury listed on various OCF forms submitted to Aviva. While I accept that S.K. did not list any specific shoulder injuries in her initial OCF forms, the absence of an injury listed on documents does not preclude it from being present. I also give little weight to Dr. Silver's addendum dated November 9, 2017 in which he maintained his original opinion and further concluded that his original opinion was strengthened by S.K. first mentioning any shoulder pain to Dr. Bellaire on March 4, 2016. As I have explained above, this is incorrect as S.K. reported shoulder pain to East Toronto Orthopaedic and Sports Injury Clinic Inc. long before March 2016.

21Finally, my finding that S.K.'s shoulder injury is as a result of the accident is supported by the lack of any shoulder complaints by S.K. in her OHIP Summary dating back to August 30, 2012.⁸

22Despite my finding that S.K.'s shoulder injury is as a result of the accident, I also find that S.K. only sustained a partial rotator cuff tear and this injury still falls within the definition of a "minor injury" in the Schedule as the definition of a "strain" includes partial tears.⁹ As such, S.K. is not removed from MIG as a result of her left shoulder injury.

WAD with Neurological Signs

23I find that S.K. has failed to prove on a balance of probabilities that she sustained a WAD injury with definable and clinically relevant neurological signs as a result of the accident that would remove her from the MIG. While S.K. made complaints of numbness and tingling, there has been no definable neurological signs such that a diagnosis has been made despite the fact that she was referred to and seen by a neurologist. I also agree with Aviva that the decision that S.K. relies upon to support her position, 17-001473 v Unica Insurance Inc.,¹⁰ is not relevant in this situation, as the applicant in that matter sustained a concussion whereas here, there is no evidence that S.K. sustained a concussion as a result of the accident.

c) Chronic Pain Syndrome

24I find that S.K. has failed to prove on a balance of probabilities that she is removed from the MIG as a result of chronic pain syndrome.

25Both parties relied upon the decision of Arruda v. Western Assurance Co.,¹¹ and Aviva submitted various other previous Tribunal decisions for certain propositions concerning chronic pain. Neither party, however, referred to Executive Chair Linda Lamoureux's reconsideration decision in T.S. v. Aviva General Insurance Canada,¹² in which the insured person was removed from the MIG as a result of being diagnosed with chronic pain syndrome following the reconsideration. Executive Chair Lamoureux found that the Tribunal erred in its interpretation of section 3 of the Schedule and found that chronic pain, if established, should not be included in the MIG's definition as a sequelae to minor injuries.

26S.K. argues that her chronic pain removes her from the MIG as she has been diagnosed with chronic pain syndrome as a result of the accident. In support of her argument, S.K. relies upon the AB Orthopaedic Assessment Report by Dr. Michael West, orthopaedic surgeon, dated February 6, 2018.¹³ In his report, Dr. West diagnoses S.K. with, among other injuries, chronic pain syndrome.¹⁴

27I am unable to give weight to Dr. West's report for several reasons. First, it lacks important details, such as information on how long his assessment of S.K. was and what credentials he has to diagnose chronic pain syndrome. There is no specific training or education outlined in the statement of qualifications portion of his report to substantiate his expertise in this area. Second, and most importantly, although Dr. West diagnoses S.K. with chronic pain syndrome, he provides no discussion, criteria or definition that S.K. met for this diagnosis aside from a brief statement that S.K.'s symptoms have persisted "far beyond the normal expected time of healing."¹⁵

28I find that S.K. has failed to prove on a balance of probabilities that she suffers from chronic pain syndrome as I cannot give weight to Dr. West's diagnosis in his February 6, 2018 report. Additionally, S.K. has failed to refer me to any other evidence that supports a diagnosis of chronic pain syndrome and, therefore, she is not removed from the MIG on this basis.

29As I have found that S.K.'s injuries as a result of the accident fall within the MIG, it is unnecessary to determine whether or not the treatment plan for assistive devices and the cost of the examinations are reasonable and necessary as the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG have been exhausted.¹⁶

Interest

30As there are no overdue benefits owing, interest is not payable pursuant to section 51(2) of the Schedule.

Award

31Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

32As I have found that there are no benefits owing, and S.K. has not provided any evidence on any other previous delays or withholding of benefits by Aviva under the MIG, S.K. has failed to prove on a balance of probabilities that she is entitled to an award in this matter.

CONCLUSION

33For the reasons outlined above, I find:

(i) S.K. sustained predominately minor injuries as defined under the Schedule and she is not removed from the MIG as a result of a chronic pain syndrome. Accordingly, it is not necessary to determine whether or not the treatment plan for assistive devices and the cost of the examinations are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) S.A. is not entitled to interest or an award; and

(iii) The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant's Submissions, tab 4.
4. 4Applicant's Submissions, tab 6.
5. 5Applicant's Submissions, tab 3.
6. 6Respondent's Written Submissions at para. 28.
7. 7Ibid. at page 7.
8. 8Applicant's Submissions, tab 7.
9. 9Section 3(1).
10. 102017 CanLII 69462 (ON LAT) at para. 23 [17-001473].
11. 11[2015] O.F.S.C.D. No. 177 (FSCO).
12. 122018 CanLII 83520 (ON LAT).
13. 13Applicant's Submissions, tab 12.
14. 14Ibid. at page. 9.
15. 15Ibid. at page 10.
16. 16Correspondence from Aviva to S.K. dated June 23, 2017 that was submitted to the Tribunal with Aviva's Response.