[B.J.] v. Aviva General Insurance, 2020 CanLII 14468

[B.J.] vs. Aviva General Insurance, 2020 ONLAT 18-009347/AABS

Citation: [B.J.] vs. Aviva General Insurance, 2020 ONLAT 18-009347/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:

[B.J.]

Appellant(s)

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Sancia Pinto

Appearances:

For the Appellant:

Linda To, Paralegal

For the Respondent:

Sophia Chaudri, Counsel

Heard:

In Writing on April 29, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on July 14, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The parties were unable to resolve the issues in dispute at the case conference held on January 29, 2019, and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal by April 5, 2019. A review and consideration of all those documents forms the basis for this decision.

ISSUES

3The issues in dispute are as follows:

i. Did the applicant sustain predominantly minor injuries as defined in s. 3(1) of the Schedule, and therefore subject to treatment within the Minor Injury Guideline (“MIG”)?

ii. If the applicant’s injuries are not within the MIG, then I must determine the following issues:

a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $564.05 for chiropractic and massage treatment recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted on November 2, 2016 and denied on November 3, 2016?

b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1328.10 for chiropractic and massage treatment recommended by Complete Rehab Centre in an OCF-18 submitted on March 16, 2017 and denied on March 21, 2017?

c. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1328.10 for chiropractic treatment recommended by Complete Rehab Centre in an OCF-18 submitted on July 20, 2017 and denied on July 25, 2017?

d. Is the applicant entitled to a cost of examination benefit in the amount of $2460.00 for a psychological assessment recommended by Dr. Jon Mills in an OCF-18 submitted on April 13, 2017 and denied on April 10, 2017?

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

RESULTS

4I find that the applicant’s injuries fall within the MIG as defined under the Schedule.

5Based on my findings above, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

6The applicant’s request for interest is denied as there are no benefits owing.

The Law

7The MIG establishes a framework for the treatment of minor injuries. Section 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.” The Schedule also defines what these terms for injuries mean in s. 3(1).²

8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for predominantly minor injuries to $3,500.

9The onus for establishing entitlement to medical benefits in excess of the $3,500 limit for predominantly minor injuries is on the applicant, who must show on a balance of probabilities that her injuries fall outside of the MIG.³

Issue 1: The Minor Injury Guideline

10The applicant argues that the Minor Injury Guideline does not apply because she suffers from an injury that is not predominantly minor. The applicant submits that she suffers from chronic pain and a psychological impairment, both of which are considered more than a predominantly minor injury. The applicant does not directly argue or provide compelling evidence to establish that she suffered any pre-existing injuries that would remove her from the MIG. The applicant’s own admissions to her healthcare practitioners and medical experts about her pre-accident health confirm that she did not suffer any impairments before the subject accident that would preclude her recovery within the MIG limits.

11The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the MIG.

12After reviewing both parties’ submissions and evidence, I find that the applicant has failed to meet the onus on her to prove that she should be removed from the MIG based on chronic pain or psychological impairments because the medical records and reports she relies on are unpersuasive.

Chronic Pain Syndrome

13The applicant submits that she suffers from chronic pain, which removes her from the MIG, as the prescribed definition of “minor injury” does not include chronic pain conditions.

14The applicant submits that the disability certificate completed by chiropractor, Dr. Jessa on July 15, 2016 indicates sprain and strain of the cervical, thoracic, lumbar spine and shoulder girdle and disorder of initiating and maintaining sleep. In addition, the family doctor records from Dr. Chung and Dr. Jones support consistent and ongoing pain complaints from the time of the accident until present.

15In assessing the applicant’s claim of chronic pain, I have applied the following criteria:

i. The insured person suffers severe and constant pain - more than simple ongoing or recurrent, sporadic pain.

ii. The insured person’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The pain is not a clinically associated sequela to minor injuries.

iv. The insured person’s pain causes functional impairment or disability. It significantly disrupts or disables pre-accident activities of daily living. ⁴

16The applicant’s submissions indicate that she suffers from ongoing pain but fails to set out a persuasive argument that this amounts to a chronic pain condition that could remove her from the MIG.

17In reviewing both the family doctors’ records, there are sporadic entries of the applicant complaining about muscle spasms, headaches, neck and low back pain. The totality of medical records before me does not support that the applicant suffers severe and constant pain or that it significantly disrupts or disables her from carrying out her pre-accident activities of daily living.

18The family doctors, Dr. Jones and Dr. Chung, did not refer the applicant to any specialists.⁵ The only prescription medication provided to the applicant was in March of 2018 when the applicant requested a muscle relaxer with 20 tablets and no repeats. There is no formal diagnosis of chronic pain syndrome by the family doctors or any other treating specialist. With respect to the applicant’s functionality and activities of daily living, she reported to the family doctor Dr. Jones that she was working “crazy hours” and is on her feet all day albeit with some discomfort. She further reported that her pain complaints although still present is now less.⁶

19My review of psychologist, Dr. Mills’ report notes that the applicant further reported that she resumed work two weeks after the accident with modified hours and duties for about 2-3 months and since then has resumed regular hours and duties. The applicant reported to medical practitioner, Dr. Mula that she can shop for groceries, continues to drive, cook, engage in her caregiving activities and most housekeeping duties. Dr. Mula further concludes that she has no restriction with range of motion and there is no evidence for bony or neurological injury as a result of the subject motor vehicle accident.⁷ In addition, the x-ray imaging of the lumbar spine of December 30, 2016 indicates that there were no significant radiographic abnormalities of the lumbar spine.⁸

20I find that there is insufficient compelling medical evidence that the applicant’s physical injuries even rise to the level of chronic pain and that it would prevent her from achieving maximal recovery, if limited to the $3,500 MIG cap. The medical records before me do not show that the applicant had significant accident-related physical problems or chronic pain issues causing functional impairment or disability.

21The applicant’s records from the family doctors indicate that the applicant did not complain of any significant accident-related physical problems or persistent chronic pain issues causing functional impairment or disability over the course of several appointments that would convince me that her injuries fall outside of the MIG.

22Dr. Mula’s report reinforces my conclusion that the applicant suffers from a predominantly minor physical injury.

23I conclude that the applicant has provided insufficient evidence to meet the onus on her on a balance of probabilities to show why she should be removed from the MIG on the basis of chronic pain.

Psychological Impairment

24Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

25The applicant claims that she sustained psychological injuries as a result of the accident that place her claims outside of the MIG.

26Having considered the evidence and submissions of both parties, I find that the applicant has failed to establish on a balance of probabilities that her psychological injuries are more than a minor injury and qualify her for benefits outside of the MIG.

27The applicant’s claim of a psychological impairment is based on a psychological assessment conducted on April 17, 2017 by psychotherapist, Robin Dhaliwal supervised by Dr. Jon Mills.⁹ I am left with some uncertainty as to who performed the psychological testing, as the report is signed by Robin Dhaliwal, registered psychotherapist and Dr. Mills, psychologist. It is unclear if Dr. Mills even met with the applicant as the report does not specify what role, if any, Dr. Mills had in the testing and/or ultimate prognosis noted below.

28The applicant was administered five separate psychological tests. Based on these tests, the applicant was diagnosed as suffering from adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, persistent and specific phobia – situational type (motor vehicles). The conclusion of the report notes that the applicant’s injuries fall outside of the MIG and possess a significant barrier to her functioning. To address her current psychological symptoms the recommendation was for a minimum of ten sessions of psychotherapy to address her clinical symptoms. The report concludes by stating that the applicant’s prognosis appears fair, that she was generally psychologically stable, with no evidence of psychotic symptoms or thought disorder.

29Other than the above noted psychological report, the applicant has not provided persuasive medical documentation suggesting that the applicant suffers from any psychological injuries or impairment

30In contrast with the applicant’s psychological report, the respondent relies on the report of psychologist, Dr. Michael Schwartz dated May 25, 2017. Dr. Schwartz confirms that a psychological diagnosis is not applicable given the lack of serious symptomatology. The applicant reported to Dr. Schwartz that she continued to drive, even on a highway and disagrees that she had “depression” and did not express a need for the treatment recommended.¹⁰

31In reviewing the records of both family doctors, I do not find any compelling reference in the medical records submitted by the applicant that indicate she consulted with her treating physicians about psychological impairments or that she suffered a psychological injury that warranted an assessment. Furthermore, there is no notation in these records that indicate that the applicant was prescribed any medication or referred to any treatment to address any psychological complaints. I place the most weight upon the clinical notes and records of these treating physicians, which demonstrate insufficient persuasive evidence that the applicant complained to her family doctors of psychological impairments despite attending the family doctor’s office on several occasions since the accident.

32This is further bolstered by the report from Dr. Schwartz, where he notes that the results from the psychometric tests were suggestive of some symptoms of anxiety and somatic concern and preoccupation as well as some anxiety related to travel in a car. He further concluded that these symptoms were not found across every test and were not severe when they were identified.

33I do not place much weight on the diagnosis of the applicant’s medical psychological assessors as they did not have any of the applicant’s medical records available for review at the time the applicant was assessed, and I find the report does not provide a persuasive analysis of the applicants self-reported difficulties. In addition, the applicant’s self-reporting symptoms formed the entire basis of Dr. Mills’ report and all the testing administered were subjective tests. Crucially, in reviewing the family physician’s clinical notes and records, I saw little or no complaint by the applicant of a psychological impairment resulting from the accident. The family physician’s clinical notes and records contradict the applicant’s self-reporting psychological symptomology to the applicant’s psychological assessor.

34I prefer and place more weight on the report of the respondent’s assessor, Dr. Schwartz, as he was provided with and did review the medical records relating to the applicant’s medical history. In addition, Dr. Schwartz administered a number of objective psychometric tests, among other methods of analysis. He did not just rely on the applicants self-reporting symptomology. On the other hand, the applicant’s medical psychological assessor did not conduct any objective psychometric tests, nor did he provide a cogent analysis of the applicant’s self-reported difficulties. The inclusion of psychometric tests produces a more sustained analysis. As a result, I find that Dr. Schwartz was better situated and better informed, and therefore find his opinion as to the applicant’s psychological symptoms to be more reliable, objective and persuasive.

35After reviewing the submissions and evidence in totality, I find that there is insufficient compelling medical evidence before me to remove the applicant from the MIG. In conclusion, I am not satisfied the applicant suffers from a psychological impairment or a physical injury that is not predominantly minor.

Issue 2 – Disputed Treatment Plans

36Based on the totality of evidence before me, I have found that the applicant sustained predominantly minor injuries that fall within the MIG. As the result of my finding on the MIG issue, it is unnecessary for me to determine whether remainder of the treatment plans for specific medical benefits and the cost of examination claims are reasonable and necessary.

37Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

38In this case, the applicant is not entitled to interest because no payment is due from the insurer.

CONCLUSION

39For the reasons set out above, I find that:

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

ii. The applicant is not entitled to interest as no payments are overdue.

iii. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2O. Reg. 34/10. Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24.
4. 4Criteria and following checklist were derived in from YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT).
5. 5Various Clinical Notes and Records of Dr. Chung and Dr. Jones, Applicant Brief Tab 7-10.
6. 6Clinical Notes and Records of Dr. Jones, April 30, 2018.
7. 7Physician Assessment Report of Dr. Mula, April 25, 2017.
8. 8Lumbar Spine X-Ray, December 30, 2016.
9. 9Psychological Assessment Report by Dr. Jon Mills, April 17, 2017.
10. 10Psychological Assessment Report by Dr. Michael Schwartz, May 25, 2017.