Released Date: 03/11/2020
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:
[P.Y.]
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Aminder Hayher, Paralegal
For the Respondent:
Dale Stuckless, Counsel
HEARD: In Writing
July 6, 2019
DECISION
OVERVIEW
1On January 29, 2016, the applicant was involved in an automobile accident (the “Accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2Specifically, the applicant sought medical benefits for physiotherapy treatment and the cost of an examination which were denied by the respondent on the basis that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and thus, fall within the Minor Injury Guideline2 (the “MIG”). The respondent also took the position that the treatment and cost of examination were not reasonable nor necessary.
3The applicant disagreed with the respondent’s position and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) to resolve the dispute.
ISSUES IN DISPUTE
4The issues in dispute are:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $1,816.74 for physiotherapy treatment recommended by Complete Rehab Centre in a treatment plan submitted on July 10, 2017, and denied on August 24, 2017?
iii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan dated June 22, 2017 and denied by the respondent on November 30, 2017?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to an award under Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5Based on the submissions and evidence filed, I find as follows:
i. The applicant sustained predominantly minor injuries as defined under the Schedule.
ii. The medical benefits for physiotherapy and the cost of examinations for a psychological assessment are not reasonable nor necessary.
iii. As no benefits are owing to the applicant, no interest is payable.
iv. As no benefits were withheld, the applicant is not entitled to an award.
PRELIMINARY MATTERS
a) Page Length of Submissions
6The respondent brought a motion to vary the Tribunal’s Order of February 13, 2019 to increase the page length of its submission. The applicant initially opposed the request and then submitted in his reply submissions that if the respondent’s submissions exceeded the page limits then the applicant requests that he too be allowed to exceed the page limits.
7Based on the submissions, I allow both parties’ submissions to be entered in their entirety.
b) Adding the issue of an award
8The respondent opposes the addition of entitlement to an award under Ontario Regulation 664 as an issue in dispute. It argues that the first time it was aware that the applicant was seeking same was when it received the applicant’s written submissions.
9The applicant responds that there is no bar to adding the issue of an award at any point in the proceeding. Further the applicant submits that the respondent has not shown that it was prejudiced by the adding of this issue nor did the respondent in their written submissions, despite exceeding the page limits, provide any submissions regarding the issue of an award.
10Based on my ultimate finding that no benefits were withheld, I find that the issue of adding the award to this matter is moot.
MINOR INJURY
11Section 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.”
12The jurisprudence has established that the onus is on the applicant to show that his injuries fall outside of the MIG.3
c) Does the applicant have a psychological impairment as a result of the accident?
13Psychological impairments or injuries resulting from the accident are not part of the definition of minor injury provided for in the Schedule. The applicant submits that he sustained a psychological impairment as a result of the accident and therefore he should be removed from the MIG.
14The applicant relies on the report of Scott Gosse, Psychological Associate who diagnosed the applicant with Adjustment Disorder.
15The respondent submits that the applicant sustained no psychological impairments or injuries as a result of the accident and relies on the report of Dr. McCutcheon, Psychologist.
16Based on the evidence, I find on a balance of probabilities that the applicant did not sustain any psychological impairments as a result of the accident.
17The applicant saw Dr. McCutcheon at the request of the respondent, on September 23, 2017. Dr. McCutcheon noted that the applicant did not display any evasiveness or embellishment during her interview with him. As per the report, the applicant reported that he had issues with pain but did not endorse any psychological symptoms. Dr. McCutcheon concluded that, while it was possible that the applicant is experiencing some mild emotional turmoil related to his pain, this turmoil is not substantive or impairing in nature.4
18The applicant relies on the report of Mr. Gosse whose report I do not find persuasive. The applicant saw Mr. Gosse (and Sandeep Kaur who assessed the applicant) on October 28, 2017, one month following the assessment of Dr. McCutcheon. This time, the applicant reported that his emotional functioning has been adversely impacted since the accident and he now reported feelings that he did not report to Dr. McCutcheon one month earlier. As well Mr. Gosse finds that the applicant’s physical pain impedes his ability to work, however Mr. Gosse’s report notes that the applicant continues his employment as he did pre-accident.5
19I am not persuaded by the report of Mr. Grosse and prefer the report of Dr. McCutcheon. I question Mr. Grosse’s report of the applicant’s host of emotional issues that were never previously reported and not elsewhere corroborated in the evidence. I find that the information in Dr. McCutcheon’s report as relayed to her in her assessment only one month before the appointment with Mr. Goose is consistent with the medical information that was available as of September 23, 2017.
20There are no notations in the family doctors’ records of the applicant reporting any emotional or psychological issues following the accident.
21Therefore, I find that on a balance of probabilities that the applicant did not sustain a psychological impairment as a direct result of the accident and therefore he remains within the MIG.
d) Does the applicant have pre-existing conditions?
22The applicant submits that his injuries also fall outside of the MIG because he suffers from pre-existing conditions. He submits that he suffers from a pre-existing psychological condition and a pre-existing back injury.
23Based on the evidence submitted, I find that the applicant does not have a pre-existing psychological condition or physical condition that would take him out of the MIG.
24The applicant provided his OHIP summary to demonstrate a pre-existing psychological condition. However, the last notation of any psychologically related treatment/assessment/visit in the OHIP summary is in 2013 and the notation simply provides the code and not a documented pre-existing condition.
25As noted in the report of Dr. McCutcheon, the applicant reported to her that he had no psychiatric history prior to the accident and he never attended counselling for emotional or adjustment disorders or prescribed antidepressant or anti-anxiety medication. 6
26The applicant has provided no further information or evidence with respect to a pre-existing psychological condition. As well the applicant has provided absolutely no evidence of back pain in the years leading up to the accident.
27I therefore find that the applicant does not have a pre-existing psychological or physical condition that requires treatment outside of the MIG.
e) Does the applicant have chronic pain?
28The applicant submits that as a result of the accident he sustained chronic pain as diagnosed by his family doctor, Dr. Larson. Based on this diagnosis, the applicant submits that his injuries cannot be treated within the MIG.
29The respondent submits that the applicant does not have any ongoing injuries or impairments as a result of the accident, and that any pain the applicant is experiencing is clinically associated sequelae from the soft tissue injuries sustained by the applicant therefore placing the applicant in the MIG.
30I am guided by the decision of TS and Aviva7 which accepted that chronic pain, if established, removes a claimant from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. Moreover, chronic pain, if established, should not be included in the MIG definition as a sequelae to minor injuries.8
31I disagree with the respondent’s interpretation of TS and Aviva that the Tribunal only accepted chronic pain syndrome and not just chronic pain and that chronic pain (as opposed to chronic pain syndrome) is insufficient to remove an applicant from the MIG. I note that paragraph 20 of the TS and Aviva decision specifically states chronic pain and not chronic pain syndrome:
“minor injury” does not encompass an impairment such as chronic pain because chronic pain is not included in the definition and does not fit into the MIG’s 12 week treatment program.’9
32Based on the evidence, the applicant has not established that he suffers from chronic pain as a result of injuries sustained in the accident.
33One month following the accident, the applicant attended at a rehab center for physiotherapy and massage. In those notes there are notations of lower back pain. However, the rehabilitation center noted in a re-examination in November (the year is illegible, however it is either 2016 or 2017 as the applicant did not return to physical therapy after 2017):“L/S: full L/S ROM in all directions – no pain.”
34Further in June of 2017, at another reassessment from the rehabilitation center, the applicant reported almost at a zero on the pain scale and that his pain is very mild.
35The above is consistent with the clinical notes and records of the same time period. On March 24, 2016, two months post-accident the applicant sees Dr. Goyal his family doctor and this is the first time he reports to his family doctor that he was involved in an accident and that he sustained injuries. Following this visit, there are no further notations regarding any accident related injuries, let alone back pain.
36In September of 2016, the applicant sees Dr. Larson, who becomes his family doctor. From September 2016 all through 2017 and the beginning of 2018, the applicant makes no complaints with respect to accident related injuries.
37On June 3, 2018, two and half years following the accident, he reports to Dr. Larson that he was involved in an accident in 2016 and he reports he has pain in his neck, shoulder and back. This is the first time any pain is reported in the clinical notes and records of Dr. Larson.
38Dr. Larson on June 3, 2018 diagnosed the applicant with lumbar osteoarthritis and not chronic pain. Dr. Larson in his recommendation to the applicant states that he should begin physiotherapy and in what appears to be a notation to a physiotherapy states 30 sessions of physiotherapy because of chronic back pain. This is the only time the word chronic pain appears in the medical documents.
39Further Dr. Larson in his notes of August 4, 2018 states again that the applicant has osteoarthritis and that it is possible that it was exacerbated/expedited by the accident.
40Based on the above, I am not persuaded that the applicant sustained chronic pain as a result of the accident. One aside notation of chronic pain by a family doctor is not enough to take the applicant out of the MIG especially when the doctor provides no further discussion of the symptoms, its effects on the applicant’s functionality and/or the treatment that has already been undertaken.
41Further I am also not convinced on a balance of probabilities that the ongoing pain in the lower back is as a result of the accident. Based on the evidence provided the applicant stopped attending any treatment as of July 4, 2017. For one year he makes no complaints of any pain to any parts of his body. One year later in June of 2018 he tells the family doctor about his lower back pain and his doctor does not link the pain to the accident but instead diagnoses the applicant with osteoarthritis in his lumbar spine and then after the x-ray of the lumbar spine again confirms the degeneration and states that the applicant has osteoarthritis that is not causally linked to the accident and only that it is possible (not probable) that the accident exacerbated/expedited the osteoarthritis.
42Based on the above, I find that the applicant remains within the MIG.
43The applicant has the onus of proving on a balance of probabilities that, pursuant to section 15 of the Schedule, the medical benefits sought are reasonable and necessary and incurred as a result of the accident.
44The first treatment plan in dispute is for physiotherapy treatment recommended by Complete Rehab Centre in a treatment plan submitted on July 10, 2017 and denied on August 24, 2017.
45Based on my analysis above I find that the applicant has not proven on a balance of probabilities that the treatment plan with respect physiotherapy is reasonable or necessary.
46As noted above, the treating doctor’s clinical notes and records are devoid of any ongoing complaints of accident related injuries or sequalae. Further, as noted above, I find that the complaints of back pain in June of 2018 are not accident related but related to the diagnosis of osteoarthritis and while I appreciate that his treating physician is recommending physiotherapy for the applicant’s back, the physician is doing so without connecting the back pain to the accident.
47Further the family physician makes no notations that the applicant has already undergone physiotherapy and I am not persuaded that the family physician has been provided with a full picture of the applicant’s accident related injuries and treatment and therefore I give minimal weight to the recommendation made by the family physician with respect to physiotherapy and its reasonableness in the circumstances.
48Therefore, I find that the physiotherapy treatment recommended by Complete Rehab Centre in a treatment plan submitted on July 10, 2017 and denied on August 24, 2017 is not reasonable nor necessary.
49With respect to the cost of the examination for a psychological assessment recommended by Complete Rehab Centre in a treatment plan dated June 22, 2017 and denied by the respondent on November 30, 2017, again, the onus is on the applicant to show that the assessment is reasonable and necessary.
50I have noted that, with the exception of the report of Mr. Grosse, that the applicant has not provided any evidence that he suffers from any emotional issues as a result of the accident. Therefore, I find, in keeping with my findings above, that the applicant has not shown on a balance of probabilities that the psychological assessment in dispute is reasonable or necessary.
51The applicant submitted that because the respondent did not respond to the treatment plan for the psychological assessment within ten business days as contemplated in section 38(8) of the Schedule then pursuant to subsection (11) then respondent is precluded from taking the position that the insured person has an impairment to which the MIG applies.
52The respondent submits that the intention of section 38(11) is that if an insurer fails to respond within ten business days then the insurer has to pay for the goods and services described in the treatment plan and incurred until the insurer provides notice pursuant to section 38(8).10
53I find that both the applicant and the respondent are correct in their interpretations of the consequences of a late response to a treatment plan. The respondent is precluded from taking the position that the treatment plan for the psychological assessment is not payable because the applicant is in the MIG, but the respondent is not precluded from taking the position that the (psychological assessment) treatment plan is not reasonable or necessary.
54If the applicant had incurred the expense of the psychological treatment plan prior to the respondent providing notice, then the respondent would be liable to pay the treatment plan based on what was incurred prior to proper notice as contemplated by the Schedule.
55However, the applicant did not incur expenses associated with the psychological assessment treatment plan prior to the late notice.
56Therefore, the treatment plan for the psychological assessment is not payable.
AWARD AND INTEREST
57As I have found that there are no benefits owing to the applicant, there is therefore, no interest payable.
58Further, given the findings that the applicant is not entitled to the benefits in dispute, it cannot be said that the respondent unreasonably withheld the benefits and therefore, the issue of an award is moot.
CONCLUSION
59The applicant’s appeal is dismissed in its entirety.
Released: March 11, 2020
Monica Chakravarti
Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/04 issued pursuant to s. 268.3(1.1) of the Insurance Act
- Scarlett v Belair Insurance, 2015 ONSS 3635 (Div.Ct.).
- Tab 17, Respondent’s Submissions (Report of Dr. McCutcheon) page 8.
- Applicant’s submissions Tab 6, Psychological Assessment report of Dr. [sic] Scott Gosse
- Supra 4, page 4
- 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT)
- Ibid at para 23
- Ibid at para 20
- It should be noted that the respondent had already taken the position that the applicant’s injuries were within the MIG and did so when faced with an earlier treatment plan for physiotherapy.