Citation: Racine vs. Aviva Insurance Company, 2020 ONLAT 20-002502/AABS

Released Date: 12/17/2020

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:

Marie J. Racine

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Yousef Jabbour, Counsel

For the Respondent:

Petros Yannakis, Counsel

HEARD:

By teleconference on November 26, 2020 and by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, M.J.R., was involved in an automobile accident on April 22, 2018, when her vehicle, while preparing to make a left turn through an intersection, was struck by another left-turning vehicle in front of it that reversed when the left-hand turn light turned green. M.J.R. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The respondent, Aviva, denied M.J.R. certain benefits. She then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES IN DISPUTE

3I am to decide the following issues:

i. Are the applicant’s injuries predominantly minor and subject to treatment within the Minor Injury Guideline (“MIG”)?² If not, then:

ii. Is the applicant entitled to receive medical benefits in the amount of $2,348.60 for physiotherapy services recommended by Activa Clinics in a treatment plan submitted February 14, 2019 and denied by the respondent on April 19, 2019?

iii. Is the applicant entitled to receive the cost of an examination in the amount of $2,680.00 for an Orthopedic Assessment recommended by complete Rehab Centre in a treatment plan submitted September 26, 2019 and denied by the respondent on September 27, 2019?

iv. Is the applicant entitled to receive the cost of an examination in the amount of $2,460.00 for a Psychological Assessment recommended by Complete Rehab Centre in a treatment plan submitted September 5, 2019 and denied by the respondent on September 5, 2019?

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

RESULT

4M.J.R. has failed to discharge her onus of establishing, on a balance of probabilities, that she sustained an impairment as a result of the accident that is not predominantly a minor injury as defined in s. 3 of the Schedule. As such, she is not entitled to medical benefits exceeding the $3,500.00 monetary limit for treatment of minor injuries under the MIG. This limit has already been exhausted.

5As M.J.R. has not established entitlement to medical benefits in excess of the MIG limit, it is unnecessary for me to consider whether she is otherwise entitled to the medical benefits in dispute. In other words, I need not consider whether the benefits she seeks are reasonable and necessary as a result of the accident.

6Since no benefits are owing, no interest is payable, and the application is dismissed.

ANALYSIS

7Section 3 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.”

8Under s. 18(1) of the Schedule, an insurer is only liable to pay medical and rehabilitation benefits in respect of an insured person who sustains an impairment that is predominantly a minor injury up to a monetary limit of $3,500.00 in accordance with the MIG.

9It is well-established in the case law that an applicant bears the onus of establishing entitlement to treatment beyond the MIG on a balance of probabilities.³

10If an applicant can establish entitlement to treatment beyond the $3,500.00 MIG limit, they must then demonstrate that, pursuant to s. 15(1) of the Schedule, any medical benefits they seek are reasonable and necessary as a result of the accident.

11Under s. 18(2) of the Schedule, an applicant will not be subject to the funding limit in the MIG if their health practitioner provides compelling evidence of a pre-existing medical condition, documented before the accident, that will prevent them from achieving maximal recovery from a minor injury if subject to the MIG limit.

12M.J.R. submits that she is entitled to the benefits in dispute because her accident-related injuries were non-minor. She submits that, as a result of the accident, she sustained headaches, chronic pain, and psychological injuries, which fall outside the definition of a minor injury. In the alternative, M.J.R. submits that she is entitled to treatment outside the MIG on account of her pre-existing depression and neck pain, which will prevent her from achieving maximal recovery from her soft tissue injuries if she is held to the MIG.

13Aviva submits that M.J.R.’s accident-related injuries were predominantly minor, and that it properly denied her claims for treatment outside the MIG. It submits that there is no compelling evidence documented before the accident of a pre-existing medical condition preventing M.J.R. from achieving maximal recovery within the MIG. Aviva submits that the Tribunal should reject as unreliable M.J.R.’s psychological and chronic pain diagnoses.

14For the reasons set out below, I find that M.J.R.’s impairment is predominantly a minor injury. M.J.R. has not met her onus of establishing on a balance of probabilities that she sustained headaches or chronic pain beyond the clinically associated sequelae of her minor, soft tissue accident-related injuries. Additionally, the evidence M.J.R. has tendered as to her accident-related psychological injures is insufficient to warrant removal from the MIG. Finally, while M.J.R. has presented evidence from her family physician of pre-existing depression and neck pain, the evidence does not establish that she is prevented from achieving maximal recovery from her minor injuries if held to the MIG limit.

Headaches and chronic pain

15M.J.R. submits that she has suffered ongoing pain and associated functional impairment since the accident. She submits that she has had persistent headaches and torticollis since the accident, resulting in limited range of motion and disturbed sleep that affects her activities of daily living. She also submits that she has had consistent neck, shoulder and back pain since the accident. She submits that her pain has had a significant impact on all areas of her life including physical, emotional and cognitive functioning, and has limited her ability to engage in employment, housekeeping and caregiver activities.

16On March 29, 2019, M.J.R. visited her family physician, Dr. Baldeep Takhar, to report that she had been suffering from headaches almost daily for a year after the accident, with associated sensitivity to light and sound and vision changes, causing pain at a level of 9/10 at its worst. She also reported that she had had several falls after the accident. Dr. Takhar described M.J.R.’s reported headache symptoms as “neuralgia type” and formally assessed M.J.R. as suffering from “likely” migraine headaches. Her physical examination detected no observable abnormalities.

17Aviva submits that Dr. Takhar’s clinical note of March 29, 2019 should be given little weight because M.J.R. reported these symptoms for the first time the day before she was scheduled to be assessed by Dr. Pankaj Bansal, Aviva’s IE assessor. It relies on the opinion of Dr. Bansal for its position that M.J.R. suffered no demonstrable physical impairment as a result of the accident. It submits that M.J.R. has never received a diagnosis of chronic pain syndrome and has only presented evidence of subjective pain complaints which, on their own, are insufficient to warrant intervention outside the MIG limit.

18Other than the March 27, 2019 visit, the only other reference to post-accident headaches in the clinical notes and records of Dr. Takhar’s clinic is on May 14, 2018, when M.J.R. reported persistent left occipital headaches. The complete clinical notes and records from Dr. Takhar’s office are only in evidence because Aviva filed them. From 2015 to the end of 2018, it appears that M.J.R. visited Dr. Takhar another three or four times after May 14, 2018 and made no mention of headaches. At no time did Dr. Takhar refer M.J.R. for follow-up with a specialist regarding her headaches, though there are referrals for gynecological, immunological, and ophthalmological issues recorded during this time. Neither party has tendered the clinical notes and records of the family physician for the period of 2019 preceding M.J.R.’s March 29 visit of that year.

19M.J.R. submits that she regularly reported her headaches to her chiropractor, Dr. Michael Rumeo, and his colleagues at Activa Clinic Kitchener, where she attended for treatment from May 2018 to October 2018 and again from February 2019 to April 2019. She also submits that, by a year after the accident, when she stopped attending Activa for treatment, her headaches had not resolved. While I accept Dr. Rumeo’s records as evidence of the persistence of M.J.R.’s headaches, this evidence does not assist in determining whether M.J.R.’s symptoms where more than the sequelae of her soft tissue injuries.

20The only other evidence before me from a qualified medical practitioner is the IE report of Dr. Bansal, who opined based on his May 30, 2019 assessment that M.J.R. showed no valid signs of ongoing musculoskeletal, orthopaedic or neurologic injury. Dr. Bansal concluded that M.J.R. sustained uncomplicated, soft tissue-type injuries as a result of the accident consisting of post-traumatic headaches, mechanical neck pain and mechanical back pain. When questioned, Dr. Bansal confirmed that these diagnoses are synonymous with soft tissue injuries.

21Some doubt arises from the fact that M.J.R. visited her family physician several times in the year after the accident, when she was reportedly suffering from daily headaches at times causing her severe pain, and that she only mentioned those headaches twice: once three weeks after the accident, and again the day before she was to be examined by Dr. Bansal. However, I accept that M.J.R. was consistently reporting headaches to Dr. Rumeo throughout this period.

22The only formal diagnosis associated with M.J.R.’s headaches is Dr. Takhar’s assessment that M.J.R. was suffering from “likely migraine [headaches]”. Dr. Takhar’s physical examination showed no abnormalities, and the headaches did not appear to warrant specialized intervention or follow-up, because Dr. Takhar ordered no treatment and made no referral in relation to the complaint, though she made an unrelated gynecological referral the same day. On the basis of the available evidence, I can do no more than to find, on a balance of probabilities, that M.J.R.’s headaches were the sequelae of her minor, soft tissue accident-related injuries.

23M.J.R. submits that, in addition to her headaches, she developed chronic pain as a result of the accident. M.J.R. submits that this Tribunal has held that a diagnosis of chronic pain syndrome exceeds the definition of a “minor injury” in the Schedule: see 17-000835 v. Aviva General Insurance Canada.⁴ M.J.R. also relies on the Tribunal’s decision in 16-000438 v The Personal Insurance Company,⁵ which held that when chronic pain causes functional impairment and disability, it takes an applicant out of the MIG.

24M.J.R. directs me once again to the clinical notes and records of Dr. Rumeo, and the disputed Treatment and Assessment Plan (OCF-18) for physical treatment completed by him, which, she submits, show that her pain complaints persisted for longer than the 12-week treatment phase contemplated in the MIG.

25On this point, M.J.R. argues that s. 18(1) of the Schedule inherently implies that if a person has not maximally recovered from their accident-related injuries in 12 weeks, more treatment should be made available. A plain reading of the provision does not support this interpretation, expressly or by implication. The Schedule as a whole, and by reference, the MIG, does not indicate legislative intent to grant blanket entitlement to additional medical and rehabilitation benefits to individuals who do not report maximal recovery in that timeframe. The functional restoration approach set out in the MIG is oriented towards limiting, not extending, dependency on passive, facility-based care for the treatment of soft tissue injuries.

26In his testimony, Dr. Rumeo stated that all he could note when preparing the treatment plan was that M.J.R.’s pain had become chronic, as in acute versus chronic, based on the timeline of her symptoms. He testified that he had never diagnosed M.J.R. with chronic pain syndrome, as it would be outside his scope of practice to do so. He testified that it is his practice to corroborate a person’s subjective reports with his physical examination, putting the whole picture together, but he also testified that a lot of what he noted in the treatment plan about M.J.R.’s functional limitations and barriers to recovery came from M.J.R.’s subjective reports. When asked if it was accurate to say that his recommendations for treatment were aimed at treating subjective reports of pain, he answered yes, that his recommendations were about trying to get that pain reduced.

27As this Tribunal held in M.A. v. Aviva Insurance Canada,⁶ chronic pain that is not functionally disabling is a mere sequela of minor injuries and is covered by the MIG. The language of the MIG, which describes a functional restoration approach to the treatment of minor injuries to “help the insured person to reduce or manage his/her pain and associated psycho-social symptoms,” indicates that a degree of pain and psycho-social symptoms associated with minor injuries can be expected.

28Dr. Rumeo’s evidence is that, in preparing the disputed treatment plan, he relied on M.J.R.’s subjective reports of her pre- and post-accident functioning. Dr. Madhu Bhardwaj, a psychologist who assessed M.J.R. on September 17, 2019, also gave evidence that she based her report on M.J.R.’s subjective reporting of her pain and functional limitations.

29I find that M.J.R. has not been entirely forthright with her assessors, and as such I am unable to place significant weight on her subjective reports. To Dr. Bhardwaj, M.J.R. reported that she sustained a hairline fracture to her neck and shoulder as a result of the accident, and that this was revealed in an x-ray. M.J.R.’s OHIP summary from the relevant time period shows no record of any x-ray. Under cross-examination, M.J.R. stated that she was not aware of whether she had an x-ray; that she went to see her family doctor who sent her to receive an x-ray; and that the x-ray report was sent to her doctor and her doctor told her it showed a hairline fracture. In view of the OHIP records, M.J.R.’s evidence on this point is unreliable. M.J.R. also reported to Dr. Bhardwaj that she was treated in hospital after the accident. The evidence shows that no such hospital visit took place.

30M.J.R.’s pain complaints do not warrant removal from the MIG based on their chronicity alone. M.J.R. has not presented evidence capable of establishing that her pain has resulted in functional impairment justifying removal from the MIG. There is no evidence that M.J.R. has ever received a diagnosis of chronic pain syndrome from a qualified medical practitioner. I am only able to rely on M.J.R.’s self-reports about her pain and functional limitations, and then only to a limited extent, as there is insufficient objective, verifiable evidence to corroborate her reports. M.J.R.’s employment activity before and after the accident does not clearly establish a reduction in functioning. I accept that M.J.R. reports persistent pain, but I am unable to conclude based on the evidence presented that her pain is more than the sequelae of her minor accident-related injuries.

Psychological injury

31M.J.R. submits that as a result of the accident she developed adjustment disorder with mixed anxiety and depression and post-traumatic stress. Because psychological conditions are not included in the definition of a “minor injury” under the Schedule, she submits that she should be removed from the MIG limit for medical and rehabilitation benefits.

32M.J.R. directs me to the Psychological Assessment of Dr. Bhardwaj, Psychologist, completed September 17, 2019. Dr. Bhardwaj diagnosed M.J.R. with adjustment disorder and recommended 10 sessions of counselling. M.J.R. submits that Aviva has never requested an IE Psychological Assessment, and that it has no medical opinion upon which to base its denial of the assessment she requests.

33Aviva submits that little weight should be placed on the assessment of Dr. Bhardwaj because she failed to conduct validity testing to screen for malingering, and because of inconsistencies and falsehoods in M.J.R.’s subjective reports upon which Dr. Bhardwaj based her opinion. Aviva submits that M.J.R.’s failure to report accident-related psychological symptoms of any kind to her family physician raises doubt as to the veracity of her claim of psychological injury.

34Under cross-examination, M.J.R. was asked directly about the absence of references in the clinical notes and records of Dr. Takhar’s clinic to psychological symptoms and complaints. She testified that she had experienced depression in the past and had felt comfortable disclosing psychological symptoms to her family physician. Her evidence was that she brought up her psychological symptoms on several occasions, very often, on numerous occasions after the accident to Dr. Takhar’s assistant. To the absence of notes in the records, she stated she does not know what he jots down. She testified that she did not have her antidepressant medication renewed after the accident because she declined to pursue depression medication, but that she reported how she was feeling very often.

35I find M.J.R.’s testimony on this point unconvincing. The absence of recorded reports to her family physician in the approximately eight-month post-accident period for which there are records cannot reasonably be explained by a complete failure on the part of Dr. Takhar or her staff to properly document encounters with M.J.R. The detail of the clinical notes on various health issues, including a past depressive episode, cast doubt on M.J.R.’s purported frequent reports of psychological concerns to Dr. Takhar and her assistant.

36I have already outlined the shortcomings in M.J.R.’s subjective reports about the nature of her accident-related injuries and the treatment she has received for them. Dr. Bhardwaj did not engage in a review of M.J.R.’s medical records. Since Dr. Bhardwaj premised her adjustment disorder diagnosis on a clinical interview with M.J.R. and self-administered psychometric testing (questionnaire-based tools conducted without validity testing to screen for malingering), I am unable to place significant weight on her conclusions. Under cross-examination, Dr. Bhardwaj gave evidence that she did not see any reason to conduct validity testing, and that she used her clinical judgment to determine whether M.J.R. was telling the truth. She testified that she sometimes conducts validity testing, but did not in this case because she did not feel that it necessary. M.J.R. submits that Dr. Bhardwaj is experienced, and she knows when test results are valid or not.

37I find Dr. Bhardwaj’s evidence about the validity of her psychometric testing results unpersuasive. The failure to conduct available validity testing significantly undermines the weight of her assessment. M.J.R.’s submission that Aviva has no medical opinion upon which to rely in deciding whether she has psychological issues confuses the onus M.J.R. has to establish that her injuries are non-minor. Aviva does not need to positively disprove M.J.R.’s entitlement to benefits. M.J.R. must meet her onus on a balance of probabilities. With respect to psychological injuries and impairments justifying removal from the MIG, she has not none so.

Pre-existing medical conditions

38M.J.R. takes the position that she should not be subject to the MIG funding limit pursuant to s. 18(2) of the Schedule, citing her pre-accident complaints to Dr. Takhar of neck pain and depression. M.J.R. only filed clinical notes and records from three visits with Dr. Takhar, none of which occurred before the accident. For the pre-accident medical records of M.J.R.’s family physician, I look to the evidence tendered by Aviva, which shows that on March 8, 2016, M.J.R. visited Dr. Takhar with complaints of feeling down and sad, with low mood, motivation and concentration. She reported having missed two weeks of work. Dr. Takhar assessed her as having depression and prescribed Paxil.

39Then, on May 2, 2017, Dr. Takhar referred M.J.R. for a chest x-ray and a cervical spine x-ray, noting that she had been experiencing severe pain on swallowing and tenderness on touching her neck. In the referral notes, Dr. Takhar referenced a prior instance in which M.J.R. was strangled. The x-rays took place on May 3, 2017, revealing no active parenchymal disease and slight narrowing of the disc space at the L4 to L5 level, a finding which was unchanged compared to a previous examination of April 21, 2014.

40M.J.R. argued in closing submissions that her accident-related injuries aggravated her pre-existing conditions. I make no finding as to whether M.J.R. experienced aggravation or worsening of her pre-existing conditions as a result of the accident. On its own, evidence of aggravation of pre-accident symptoms or conditions does not satisfy the test set out in s. 18(2) of the Schedule.

41While I accept M.J.R.’s evidence that she suffered from depression in 2016 and had neck pain in 2017, she has not established that these pre-accident complaints meet the threshold for removal from the MIG under s. 18(2) of the Schedule. Specifically, M.J.R. has not demonstrated through compelling medical evidence that a depressive episode or complaints of neck pain before the accident arise from conditions that would prevent her from achieving maximal recovery from her minor injuries if held to the $3,500.00 MIG treatment limit.

42To conclude, M.J.R. has not presented compelling evidence from a health practitioner of a pre-existing medical condition documented before the accident that would prevent her from achieving maximal recovery if subject to the $3,500.00 funding limit for the treatment of minor injuries.

CONCLUSION

43M.J.R. sustained an impairment as a result of the accident that is predominantly a minor injury.

44M.J.R. is not entitled to further medical benefits.

45M.J.R. has not established entitlement to the benefits claimed in this application. No interest is owing. The application is dismissed.

Footnotes

1. 1Ontario Regulation 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 3Scarlett v. Belair Insurance Company, 2015 ONSC 3625.
4. 42018 CanLII 83520 (ON LAT).
5. 52017 CanLII 59515 (ON LAT).
6. 62019 CanLII 101601 (ON LAT).