S.J. v. Aviva Insurance Canada, 2020 CanLII 12714

Citation: S.J. vs. Aviva Insurance Canada, 2020 ONLAT 19-000440/AABS

Released Date: January 29, 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:

S.J.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Shannon Braun

APPEARANCES:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: by Teleconference: September 9, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on November 12, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent.

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

3If the applicant’s injuries do not fall within the MIG, I must address the issue of whether the medical benefits claimed are reasonable and necessary. If the respondent’s position is correct, it will be unnecessary to conduct an analysis of whether the benefits are reasonable and necessary, as the applicant has already exhausted the $3,500.00 MIG limit prescribed by the Schedule for the treatment of minor injuries.²

ISSUES

4Did the applicant sustain predominantly minor injuries as defined by the Schedule?

5If the applicant’s injuries are not within the MIG, is he entitled to the following:

i. $2,546.89 for chiropractic treatment, recommended by Downsview Healthcare Inc. in a treatment plan dated November 14, 2016 and denied on April 21, 2017?

ii. $1,711.53 for chiropractic treatment, recommended by Downsview Healthcare Inc. in a treatment plan dated March 29, 2017 and denied on April 21, 2017?

iii. $1,299.86 for chiropractic treatment, recommended by Downsview Healthcare Inc. in a treatment plan dated May 21, 2017 and denied on June 5, 2017?

iv. interest on any overdue payment of benefits?

RESULT

6I find the applicant’s injuries fall within the MIG and, as such, there is no need to consider the reasonableness and necessity of the treatment plans claimed. Moreover, no interest is payable, as there are no outstanding payments owed to the applicant.

ANALYSIS

The Minor Injury Guideline

7Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

8The onus is on the applicant to show that his injuries fall outside of the MIG.³

Chronic pain – the applicant’s position

9The applicant argues he should be removed from the MIG because he has developed chronic pain as a result of the accident. Chronic pain conditions are not included within the prescribed definition of “minor injury”, nor are such conditions considered sequelae to minor injuries.⁴ Chronic pain is defined as pain that persists 3-6 months after the initial trigger or injury.⁵

10The applicant submits that, prior to the accident, he had no musculoskeletal complaints. Afterward, he developed muscle stiffness in his neck, axial spine and left shoulder. His physician referred him for x-rays (which came back negative) and physiotherapy. He notes that despite participating in the recommended treatment, his injuries persisted, as predicted by his chiropractor, who initially opined in November 2016 that the applicant’s “complicated clinical picture would likely preclude maximum medical recovery within the 12 week time period”.⁶

11In support of his position, the applicant relies upon various treatment plans (OCF-18s) and disability certificates (OCF-3s) referencing “chronic” injuries as well as a medical-legal report dated April 8, 2019, all authored by his treating chiropractor, Dr. Pivotran.

12An OCF-3 dated November 19, 2016 lists the following diagnoses: cervical sprain/strain; lumbar spine sprain/strain; shoulder sprain/strain of joints and ligaments (bilateral); thoracic sprain strain of joints and ligaments; behaviour - acute stress reaction; and behaviour - symptoms/signs involving emotional state. It is noted that multiple injuries, multifocal pain, emotional disturbances, anxiety, impairment of sleep, dependent children and a demanding job combined to create a complicated clinical picture. On the basis of scientific literature and his own clinical experience, Dr. Pivotran opined the applicant was unlikely to achieve maximum medical recovery within a 12 week period. It is further noted that “although not medically recommended, the applicant reports return to employment with a modified workload”.

13A subsequent OCF-3 dated February 21, 2017 lists the following diagnoses: cervical spine strain/sprain – chronic; lumbar spine strain/sprain – chronic; shoulder sprain/strain of joints and ligaments (bilateral); thoracic spine strain/sprain – chronic; and behaviour – symptoms and signs involving emotional state (emphasis mine). It is opined that the applicant’s condition has a “clear tendency toward chronicity, therefore recovery within 12 weeks time period cannot be assured”. Again, it is noted that the applicant reported return to employment with a modified workload.

14OCF-18s dated November 14, 2016, March 21, 2017 and May 18, 2017 all indicate that the applicant’s accident-related impairments affect his ability to carry out his tasks of employment and activities of normal life and that the applicant reported difficulties with lifting, bending, carrying, stooping and overhead activities as well as prolonged sitting, standing and walking.

15When asked if the applicant’s employer would be able to provide suitable modified employment, Dr. Pivotran opines in the November 2016 and March 2017 OCF-18’s, “no – the applicant is too symptomatic”. However, he indicated in the OCF-3 dated February 21, 2017 the applicant could return to work on modified hours and/or duties. There is no explanation for the reversal of this opinion in the subsequent March 2017 OCF-18, nor is there any explanation with respect to the previous and consistent notations that the applicant had, in fact, returned to work following the accident.

16For the purposes of the April 2019 report, Dr. Pivotran indicates that he did not re-examine the applicant and instead based his conclusions on the findings of his most recent evaluation (May 18, 2017) and a review of available medical documentation including his own previous notes, various OCF-18s and the IE assessments of Dr. Loritz, general practitioner and Dr. McCutcheon, psychologist. It does not appear from the list of documentation that he reviewed clinical notes and records of the applicant’s family physician.

17In his report, Dr. Pivotran reiterates his initial opinion of November 2016 that, if limited by the MIG, the applicant would not likely achieve maximum medical recovery. It is noted that, as of the last evaluation in May 2018, the applicant’s treatment had resulted in marked progress but he had not reached maximum medical recovery and still required ongoing care for his accident-related injuries, which had become chronic.⁷

18Although the applicant’s submissions indicate that a specialized “chronic assessment” was requested by Dr. Pivotran on May 25, 2017, the purpose of which was to explore additional treatment options, there is no evidence the applicant ever sought any treatment for chronic pain nor is there any evidence of a referral to or assessment by a chronic pain specialist.

Chronic pain – the respondent’s position

19To rebut the applicant’s claim, the respondent relies upon the multidisciplinary IE report of Dr. Loritz, general practitioner, who examined the applicant on March 29, 2017 and Dr. McCutcheon, psychologist, who examined the applicant on March 21, 2017.

20Dr. Loritz’s physical examination of the applicant did not reveal any restrictions in range of motion nor any objective impairments of a musculoskeletal or neurological nature. He opined the applicant “sustained uncomplicated myofascial sprain/strain injuries of the cervical spine (whiplash WAD1) and axial spine and that these injuries meet the criteria of a minor injury as defined in the SABS”.⁸

21Dr. Loritz notes the applicant reported intermittent neck and upper back muscle stiffness of variable intensity, which developed with prolonged postural positions and eased with stretching. He further reported that his mid and lower back symptoms had resolved. Finally, he reported that he had returned to work without any lost time or accommodations and described himself as independent with respect to both self-care and completing usual housekeeping tasks.⁹

22The applicant’s reporting with respect to his physical impairments were largely the same to Dr. McCutcheon, who noted that he reported experiencing stiffness and tightness in his neck and between his shoulder blades; he did have lower back pain, but it has improved; he shares household chores with his wife and is independent with self-care activities; and did not miss any work after the accident.¹⁰

23It is worth noting, with respect to psychological impairment, Dr. McCutcheon opined the applicant did not experience any DSM-IV psychiatric disorder or psychological impairment as a result of the accident. She added there was no indication from his general presentation or any of the psychometric testing performed that he was struggling with significant emotional difficulties as a result of his accident. While she acknowledged that it was possible for him to be experiencing some mild emotional turmoil related to his pain, there was no indication that such turmoil was of a substantive or impairing nature.¹¹

24The respondent called attention to the OHIP summary and the records of the applicant’s family physician, which reveal that, at no time did the applicant complain of any psychological symptoms. It was submitted that this lack of evidence supports the finding of Dr. McCutcheon with respect to the absence of any psychological impairment.

25With respect to the applicant’s physical injuries and his claim respecting chronic pain, the respondent once again called attention to the lack of evidence within the OHIP entries and the records of the family physician. It is noted that there was only one visit to his family physician on December 10, 2016, during which the applicant complained of left upper back and shoulder pain related to the accident. Thereafter, for the entirety of 2017 and 2018, there are no complaints of any ongoing pain or accident-related injuries. It is argued that this lack of evidence supports the conclusion of Dr. Loritz with respect to the minor nature of the applicant’s injuries.

Chronic pain - analysis

26I found the evidence of Dr. Pivotran to be somewhat unreliable for a number of reasons and as such, I gave it less weight. With respect to his April 2019 report, he did not re-examine or even re-interview the applicant, but rather, revisited an examination which took place two years prior (May 18, 2017). The records he reviewed did not include any updated information, nor did they include the clinical notes and records of the applicant’s family physician.

27In addition, although the OCF-18s and OCF-3s indicate the applicant’s impairments affected his ability to carry out the tasks of his employment and his activities of normal life, there is no elaboration on these statements nor any evidence to support them. At times, these documents were internally inconsistent with respect to the applicant’s ability to return to work (as previously discussed). Moreover, these documents were inconsistent with the applicant’s own reporting to the IE assessors in and around the same time period with respect to his ability to return to work without lost time or accommodation, his ability to engage in normal activities of daily living and the resolution of his lumbar and thoracic spine symptoms.

28Finally, while I acknowledge Dr. Pivotran’s use of the term “chronic” to describe the applicant’s injuries, there is no evidence to suggest the applicant had been diagnosed with a chronic pain condition. Although diagnosis of a chronic pain condition is not required, there must be evidence to establish the existence of chronic pain warranting removal from the MIG. In this case, there is no compelling evidence that the applicant suffered from ongoing pain. He reported only intermittent neck and shoulder pain to the IE assessors with resolved thoracic and lumbar symptoms. While I acknowledge that he may have experienced intermittent pain lasting beyond 3-6 months, there is no evidence that such pain caused a functional impairment/disability which adversely affected his pre-accident activities of daily living, affected his ability to carry out the tasks of his employment or amounted to a chronic level.

29Overall, I am not persuaded the applicant provided sufficient evidence to demonstrate that he should be removed from the MIG on the basis of chronic pain. If his injuries were anything more than minor in nature, I would have expected there to be consistent visits to his family physician and complaints with respect to ongoing pain and related dysfunction, attempts at specialized pain management treatments/specialist referrals, etc. Instead, the physician makes no mention of pain complaints, save and except for one entry shortly following the accident, in December 2016. Moreover, the applicant’s self-reporting to the IE assessors suggests that his pain was not of a constant or severe nature, that his functionality was not adversely affected and some of his impairments had, in fact, resolved.

30It should be noted that the applicant did not raise an argument that he should be removed from the MIG on the basis of a pre-existing condition, a psychological injury/impairment, etc., nor is there any evidence before me to suggest that this should be the case.

CONCLUSION

31For the reasons outlined above, I find the applicant’s injuries fall within the MIG and it is unnecessary to address the question of whether the treatment plans claimed are reasonable and necessary. As there are no outstanding payments owed to the applicant, no interest is payable.

32The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s submissions, page 2, para 7 “the Applicant applied for and received physiotherapy from Downsview Healthcare Inc. in the amount of $6,069.60 of which the Respondent funded only $3,634.86”.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24.
4. 4See TS v. Aviva, 2017 CanLII 59495 (ON LAT) Reconsideration decision issued by Executive Chair L. Lamoreaux.
5. 5See Nova Scotia Workers Compensation Board v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504.
6. 6OCF-3, November 19, 2016, page 4.
7. 7Report of Dr. Pivotran, Applicant’s submissions Tab 11, page 5.
8. 8Report of Dr. Loritz, Respondent’s submissions Tab 10, pages 6-8.
9. 9Report of Dr. Loritz, Respondent’s submissions Tab 10, pages 5-6.
10. 10Report of Dr. McCutcheon, Respondent’s submissions Tab 15 pages 11-13.
11. 11Report of Dr. McCutcheon, Respondent’s submissions Tab 15, page 16.