[A. B.] v. Aviva Insurance Canada, 2019 CanLII 94128

Citation: [A. B.] vs. Aviva Insurance Canada, 2019 ONLAT 18-002697/AABS

Date: August 28, 2019

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:

[A. B.]

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

Appearances:

For the Appellant:

Omar Makhatadze, Paralegal

For the Respondent:

Cara Boddy, Counsel

Heard: In Writing Hearing:

June 18, 2019

OVERVIEW

1The applicant was involved in an automobile accident on November 27, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg 34/10 (the ''Schedule''). The applicant was denied certain benefits by the respondent, Aviva Insurance Canada (“Aviva”), and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant asserts that the nature of the impairments she sustained in the accident entitle her to medical and rehabilitation benefits to a limit of $50,000. In this application she is seeking approximately $10,000 worth of treatment and an assessment that may lead to entitlement to further treatment. Aviva asserts that the applicant sustained only minor injuries in the accident and that the Schedule limits her to a maximum treatment amount of $3,500.

3The first step in approaching this analysis is to determine whether the applicant sustained predominantly minor injuries in the accident. If I conclude that she did, then the further treatment she seeks exceeds the $3,500 policy limit. If I find that her injuries are not predominantly minor, then I must examine the treatment plans she has submitted to determine whether they are reasonable and necessary.

4The applicant bears the onus, on a balance of probabilities, to establish that her injuries are not minor. She alleges that her injuries are not minor because she has a psychological condition and she has chronic pain. She further alleges she has a documented pre-existing condition that would prevent her from achieving maximal recovery if she is subject to the $3,500 limit. I find that the applicant has failed to satisfy her onus. I find that she suffers from predominantly minor injuries and that there is no evidence of a pre-existing condition that would limit her recovery.

ISSUES:

5The issues to be determined are:

i. Did the applicant sustain predominantly minor injuries as defined in s.3 of the Schedule, subject to treatment within the $3,500 limit? If no;

(a) Is the applicant entitled to receive a medical benefit in the amount of $3,454.30 for physiotherapy treatment recommended by Brampton Civic Care Centre in a treatment plan submitted on June 15, 2016, denied by the Respondent on June 22, 2016?

(b) Is the applicant entitled to payments for the cost of examination in the amount of $2,198.00 for chronic pain assessment conducted by Brampton Civic Care Centre in a treatment plan submitted on September 19, 2016, and denied by the Respondent on October 3, 2016?

(c) Is the applicant entitled to payments for the cost of examination in the amount of $1,995.33 for a psychological assessment conducted by Brampton Civic Care Centre in a treatment plan submitted September 26, 2016, and denied by the Respondent on October 26, 2016?

(d) Is the applicant entitled to receive a medical benefit in the amount of $3,454.30 for physiotherapy treatment recommended by Brampton Civic Care Centre in a treatment plan submitted on October 27, 2016, denied by the Respondent on October 31, 2016?

(e) Is the applicant entitled to receive a medical benefit in the amount of $2,444.19 for psychological treatment recommended by Brampton Civic Care Centre in a treatment plan submitted on April 15, 2017, and denied by the Respondent April 19, 2017?

ii. Is the applicant entitled to interest pursuant to the Schedule?

EVIDENCE AND ANALYSIS

6The dispute between the parties revolves around each party’s assessment of the severity of the applicant’s injuries, particularly whether the applicant’s injuries are predominantly minor. The term “minor injury” is defined in s. 3 of the Schedule 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.”

7By virtue of s. 18, the applicant is entitled to a maximum of $3,500 for treatment if she suffered from an impairment that is “predominantly” a minor injury. Impairment is defined in s. 3 of the Schedule to mean: “loss or abnormality of a psychological, physiological or anatomical structure or function.” The use of the word “predominantly” to qualify “minor injury” indicates that the impairment need not arise exclusively from minor injuries. Where, as here, an applicant for benefits alleges there are other impairments that do not fall within the definition of minor injury, it is necessary to examine the extent to which those impairments, and any related loss of function, displaces the predominance of the minor injuries in the applicant’s overall condition.

8The $3,500 coverage limit for minor injuries does not apply if an applicant has a pre-existing condition, documented by a health professional before the accident, that will prevent the applicant from achieving maximal recovery if subject to the $3,500 limit.

9In the current case. there is general agreement in the evidence that the applicant’s physical injuries consisted of sprains, strains, whiplash associated disorder and contusion. To this list the applicant adds chronic pain and a psychological condition and argues that neither of these conditions are caught by the definition of minor injury. Aviva argues that, notwithstanding that the applicant is still feeling pain after a lapse of many months from the date of the accident, that pain is not causing any impairment. Aviva argues that the applicant did not sustain a diagnosable psychological condition as a result of the accident, and, if she did, it is so minor as to have no impact on the applicant’s functioning.

Are the applicant’s injuries Minor Injuries as defined by the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)?

10On November 30, 2015 the applicant filed an Application for Accident Benefits (“OCF-1”). In it she listed her complaints arising from the accident as:

1. Headaches

2. Neck- Cervical Spine and Muscles pain

3. Shoulder and Arms pain with numbness on fingers

4. Mental Injuries - Dizziness, Nausea, Nervousness and Irritability.

There may be further injuries to declare, however, the above information is all that is known at this time without a detailed Disability Certificate (OCF-3), a copy which will be provided immediately upon receipt.

11On the same date, November 30, 2015, the applicant filed a Disability Certificate (“OCF-3”) prepared by a chiropractor, Dr. Marco Curcio. Dr. Curcio sets out a list of nine injuries. Of the nine items on the list, eight are described as sprain, strain, whiplash associated disorder and contusion. The ninth item is described as headache. It would appear from this list that minor injuries predominate.

12Of note in the OCF-3 are the conclusions that Dr. Curcio reaches about the applicant’s abilities to function. He notes that the applicant suffered from a substantial inability to perform the essential tasks of her employment, act as a primary caregiver or complete housekeeping and home maintenance tasks and a complete inability to live a normal life. He notes that the applicant returned to work against advice. Other evidence indicates that the applicant returned to work three days after the accident and has worked continually since and that she continued to act as a primary caregiver to her 8-year-old daughter. These facts call into question Dr. Curcio’s findings.

13Dr. Curcio recommended further investigation in two areas: a functional ability evaluation and a psychological assessment. The latter recommendation is puzzling since Dr. Curcio did not note any apparent psychological issues in the OCF-3. The applicant’s complaints of possible accident-related psychological issues to her family physician are sparse. On the day of the accident, the applicant told her family physician that she felt scared to drive. Thereafter there is no mention of accident-related psychological issues. Approximately four months after the accident, on March 22, 2016, the applicant informed her family physician that she had anxiety. There is nothing in the physician’s notes that ties this anxiety in any way to the accident, despite the physician noting on several occasions that the intermittent back pain the applicant suffered originated with the accident.

14On February 18, 2017, approximately 15 months post-accident, the applicant was examined by Dr. Khal Efala, an orthopaedic surgeon and pain specialist. His report is dated February 27, 2017. Dr. Efala’s report is replete with internal inconsistencies. It follows a standard format with a section addressing the applicant’s subjective information and history about her complaints and pain levels. It then reviews objective information gleaned from a physical examination, particularly range of motion data. Dr. Efala draws conclusions from the subjective and objective information about the applicant’s functional impairments and makes treatment recommendations.

15The history and subjective section of the report notes that the applicant was working on modified duties for 36 hours/week. She was able to look after her daughter and deal with her own needs, although with some reported difficulty. In terms of caregiving, she stated she had difficulty taking her daughter to recreational activities, although exactly why is not explained. It also notes that the applicant was, throughout the time since the accident, the primary caregiver to her daughter. Her social life had diminished somewhat from her pre-accident social life.

16Dr. Efala asked the applicant to describe her areas of pain. She complained of neck pain, back pain and right hip pain. The doctor noted that she walked with an antalgic gait on the right side, i.e., she limped. When asked to describe the severity of her pain on the Visual Analogue Scale at the time of the assessment she noted 5 out 10 for her neck, 7 out of 10 for her back, and 9 out of 10 for her right hip. The upper end of the scale, 10, is rated as the worst possible pain imaginable, so it is to be expected that 7/10 would be the cause of some significant impairment and 9 out of 10 would be almost totally disabling. Notwithstanding these self-reports, Dr. Efala noted that the applicant displayed no pain behaviours during the assessment other than the limp.

17In the physical examination of the applicant, Dr. Efala noted pain in several areas on palpitation. Of note is the fact that he does not record pain arising from the movement, even at the end-ranges of motion testing. He found that the applicant has complete normal range of motion and normal alignment of the cervical spine, lumbar spine and hips, symmetrical bilaterally. A neurological examination of the upper and lower extremities showed that reflexes and strength were symmetrical bilaterally and unremarkable.

18In the section entitled “Diagnostic Impression,” Dr. Efala finds that the applicant suffered from:

i. Post traumatic cervical spine dysfunction with musculo-ligamentous injury.

ii. Chronic pain of the neck.

iii. Post traumatic lumbar spine dysfunction with musculo-ligamentous injury.

iv. Chronic pain of the back.

v. Right hip pain, not yet diagnosed.

19Nothing in Dr. Efala’s report calls into question the fact that the applicant’s initial injuries were minor injuries as defined in the Schedule. While the report mentions headaches, ringing in the ears and anxiety, his report does not address these issues in any detail. What is perhaps most puzzling is that, despite finding that the applicant had full range of motion in her cervical and lumbar spine areas and therefore no dysfunction, Dr. Efala found that she has a “dysfunction” of those areas of the body.

20Several pages of Dr. Efala’s report are devoted to many of the potential accident benefits the applicant might be entitled to under the Schedule and finding that the applicant meets each and every test, despite clear evidence in the applicant’s history to the contrary. He found that the applicant suffered a substantial inability to perform the essential tasks of her employment despite that fact she had returned to work and had been working at that time for 15 months. Similarly, Dr. Efala found that the applicant was incapable of providing caregiver services and personal care, despite that fact that she had been carrying out these activities since the accident. The report notes some limitations in lifting and carrying but raises those limitations to substantial inability.

Psychological Impairments

21The applicant submits that she has a psychological impairment that extends the impairments she suffered in the accident beyond the scope of the definition of minor injury. She relies on a psychological assessment conducted by Dr. Nina Belyakova dated March 28, 2017. Dr. Belyakova concluded:

i. Ms. [B's] presentation is consistent with DSM-5 and ICD-10 criteria for the diagnoses of Adjustment Disorder, Unspecified.

ii. According to American Medical Association Classification Table of Impairments Due to Mental and Behavioral Disorders her condition is consistent with Class 2: Mild Impairment (Impairment levels are compatible with most useful functioning).

22While Aviva retained its own psychologist, Dr. Mark Mandel, to complete a psychological assessment, given Dr. Belyakova’s finding, I do not need to consider his finding that the applicant suffers from no diagnosable psychological condition further. The applicant carries the onus of advancing evidence to show that her psychological condition is such that the impairments arising from her physical injuries may no longer be considered to predominate. An impairment is defined as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” I read Dr. Belyakova’s report as supporting the respondent’s assertion that the diagnosed psychological condition does not represent a significant loss of function. Her condition does not inhibit useful functioning or change the fact that the predominant feature of her injuries is that they are minor.

Pre-existing Condition

23According to s. 18 of the Schedule the applicant would not be subject to the $3,500 treatment limit if her health practitioner determines and provides compelling evidence that she has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent her from achieving maximal recovery from the minor injury if the insured person is subject to the limit. The process for receiving treatment beyond the limit on grounds of a pre-existing condition has two steps. The applicant must establish first that she has a pre-existing condition and then that the pre-existing condition will prevent maximum medical recovery if she is subjected to the $3,500 limit. I find the applicant has failed on both branches of this test.

24The first step the applicant must satisfy is that she has a pre-existing condition. The applicant pointed to no evidence that, at the time of the accident, she was suffering from a condition likely to inhibit recovery. She relied on a single entry in her family doctor’s clinical notes and records from two years prior to the accident which stated:

C/O Back ache, upper backache-6 months

Lower back and middle back

No injury or accident

She thinks its due to her weight and Breast size

25There are no clinical notes indicating any follow-up visit or further complaints of back pain. In their absence, over a two-year period, it is not unreasonable to conclude that the condition had resolved and, thus, did not inhibit her ability to recover within the $3,500 treatment limit. In fact, in her examination with Dr. Efala, the applicant advised him that she had “no other medical problems.”

26Notwithstanding that finding, the applicant does nothing more than simply point to this entry and maintain that it is a pre-existing condition that would inhibit her recovery. She had failed to provide any evidence or opinion on the nature of this condition and how it would inhibit recovery if she was subject to the $3,500 limit. It is far from self-evident how it would do so. In this, the applicant failed to lead evidence to satisfy the second step in the test.

Chronic Pain

27The applicant asserts, and Dr. Efala finds, that she has chronic pain and, thus, her injuries are not minor. What Dr. Efala did not conclude, despite both the applicant and respondent stating that he did in their submissions, is that the applicant has chronic pain syndrome, a physical and psychosomatic disorder characterized by debilitating diffuse pain lasting after the clinical cause of the initial pain has resolved

28The definition of minor injury includes “the clinically associated sequelae” of the minor injury. In his report, Dr. Efala finds that the pain the applicant continues to complain of is a clinically associated sequela of her injuries. He does so by the definition he uses of chronic pain and by his description of the expected recovery time from injuries such as the applicant sustained.

29In the definition section of his report, Dr. Efala defines chronic pain without reference to its severity or its impact on function. He defines it as:

Chronic pain is a complex multifaceted phenomenon. It has been defined as unremitting pain lasting greater than six months or simply as pain that extends beyond an expected period of healing." (Uhl R et al., Management of Chronic Musculoskeletal Pain, J Am Acad Orthop Surg 2014; 22: 101-110)

30A review of the applicant’s medical records indicates that her pain was not reported as unremitting to her family doctor. She stopped taking painkilling medication within two months of the accident. Her family doctor prescribed pain killers because of the potential for flare up of pain symptoms, not because they were unremitting. Finally, the family doctor describes the applicant’s back pain as intermittent. There is some question, then, of whether the applicant meets Dr. Efala’s definition of chronic pain.

31Dr. Efala also notes that the recovery time for the applicant’s sprain and strain injuries may be 12 to 24 months. In other words, this type of recovery time is not abnormal and, in my view, would be a clinically associated sequela of a minor injury.

CONCLUSION

32Having reviewed all the evidence, I find that the applicant suffered predominantly minor injuries as a result of the accident. There is disputed evidence that the applicant suffers from a mild psychiatric condition which, by definition, does not inhibit her from carrying out most useful functions and her injuries are predominantly minor injuries.

ORDER

33I find that the applicant is entitled to treatment within the $3,500 limit set out in s. 18 of the Schedule.

34The applicant is denied treatment above the $3,500 limit, including the five treatment plans set out in the issues section above to the extent that they exceed the $3,500 limit.

35The applicant is not entitled to interest.