S.K. v. Aviva Insurance Canada, 2020 CanLII 30404

Citation: S.K. vs. Aviva Insurance Canada, 2020 ONLAT 19-003326/AABS

Tribunal File Number: 19-003326/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[S.K.]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Patricia Conway

APPEARANCES:

For the Applicant: Christina Campole

For the Respondent: Alex Hartwig

HEARD: in writing February 12, 2020

REASONS FOR DECISION

OVERVIEW

1The applicant was in an automobile accident on November 17, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”). The applicant was denied certain benefits by the respondent and applied to the Licence Application Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The applicant was driving his motor vehicle south when he was hit by a vehicle making a left-hand turn. He was wearing a seat belt. He did not lose consciousness and the air bags did not deploy. He called 911 and was told to drive the vehicle to a collision centre. He went to a clinic that evening, Doctors’ Urgent Care and Family Medicine, complaining of neck and back pain, and was assessed by a doctor as having muscle sprain.

3He returned to work as a production worker in a bakery but stopped after two weeks because, he claimed, the lifting, pulling and pushing required by the job aggravated his injury.

4He went to physiotherapy initially three times a week but, after four weeks, decreased treatment to once a week. The insurer, Aviva, paid for the treatments up to $3,500 but declined to pay more. Aviva also paid income replacement benefits (“IRBs”) to the applicant but stopped on October 14, 2017, after receiving independent medical reports on the applicant’s condition and, on their basis, terminated the benefit.

ISSUES

5The issues to be decided in this appeal are:

I. Does the injury sustained by the appellant in the accident fall within the minor injury category under the SABS?

II. If the answer is “no”, is the appellant entitled to the three sets of chiropractic treatments he seeks, set out in OCF 18 forms denied by the insurer on March 23, 2017, May 10, 2017 and July 28, 2017?

III. Is the appellant entitled to IRB from the date of the insurer’s denial, October 14, 2017, to the date he started work at another job on January 15, 2018?

IV. Is the appellant entitled to interest on any of the money he is claiming?

RESULT

6The applicant’s injuries are minor injuries as defined by the SABS.

7Hence the insurer’s obligation to pay for medical/rehabilitation services is limited to the $3,500 it has already paid. The applicant is not entitled to the three rounds of chiropractic treatments he seeks.

8The applicant was not substantially unable to perform the essential tasks of his employment between October 14, 2017 and January 15, 2018. The insurer has no obligation to pay IRBs.

9There is no amount owing to the applicant so there is no interest payable.

LAW

10Section 3(1) of the SABS defines an impairment that is predominantly 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”.

11The applicant has the burden of proving, on a balance of probabilities, that the injuries he sustained in the motor vehicle accident fall outside the minor injury guidelines (“MIG”): see Scarlet v Belair Insurance, 2015 ONSC 3635.

12The applicant must offer credible medical evidence of an objective impairment resulting from the motor vehicle accident to prove he falls outside the MIG.

13Section 5(1) of the SABS sets out the criteria for eligibility for an IRB within 104 weeks after the accident. The applicant must prove that he has sustained an impairment as a result of the accident such that he is substantially unable to perform the essential tasks of his employment.

14The statements made in a proposed plan of treatment (OCF 18) are not, without corroborating medical evidence, proof of the truth of the statements made regarding the applicant’s medical condition, nor proof of the applicant’s need for the treatment he seeks: see T.T. v Certas Direct Insurance Company, 17-003571/AABS.

EVIDENCE

Issue 1: Did the motor vehicle accident cause injuries that fall outside the Minor Injury Guideline (MIG)?

15The applicant went to a walk-in clinic on the evening of the accident. He was examined by a doctor and diagnosed as having suffered a back and neck sprain. He returned on November 21 and, after reassessment, was diagnosed with a sprain. The doctor reported no neurological signs. The doctor prescribed daily exercise and analgesics as required. An ultrasound was performed on his left shoulder/arm, which showed an inflamed bicep tendon.

16The applicant had chiropractic and massage therapy three times a week for four weeks, then once a week for another four months until the cost nearly reached $3,500, the limit payable by an insurer under the MIG guidelines.

17The applicant submitted another proposed treatment plan in March 2017 for continued chiropractic and massage therapy. The OCF 18, completed by a chiropractor, stated that the applicant was improving, but still had limited range of motion. It asserted that the applicant’s injuries fell outside the MIG. The insurer paid a part of this claim to reach the $3,500 mark, and denied the rest, as well as the two subsequent claims for the same kind of treatment.

18The applicant did not submit any independent medical evidence to substantiate that his injuries are non-MIG. I have read the notes and records made of his visits to the Doctors’ Urgent Care and Family Medicine clinic and find no statement or suggestion that the applicant’s injury is beyond minor. In submissions, the applicant suggests that the inflamed tendon noted on the ultrasound performed on his left shoulder/arm immediately following the accident is a pre-existing condition that has prevented his full recovery. However, the ultrasound was performed after the accident. No evidence has been tendered by the applicant to support the suggestion that this is a pre-existing injury. There is no other evidence to support this submission, and I reject it. In any case, the applicant has offered no evidence that the inflamed tendon would or will hamper his recovery.

19Applicant’s counsel submits that the applicant suffers from chronic pain and a psychological impairment and that these conditions take him out of the MIG. I find no evidence of either chronic pain or psychological impairment in the evidence tendered by the applicant. The evidence indicates to me that the contrary is the case. For example, on November 26, 2016, the clinical records from his treatment provider quote the applicant as stating that the pain is controlled with medication. In January 2017, the applicant states that he is suffering from anxiety from the accident. Cipralex is prescribed. The next note says” anxious mood controlled with meds…denies any psych problems.” In April 2017, the clinical notes record that he reports constant pain in his right shoulder and upper back, with intermittent lower back pain. At the same time, the applicant states that there is a 60% improvement in his condition. These are the applicant’s report of his condition. There is no medical evidence, from any of the providers or assessors, that these two conditions were ever diagnosed.

20The insurer required the applicant to undergo assessments in April 2017 after the applicant asserted that his injuries fell outside the MIG. The resulting reports are before me, but do not establish his injuries are more than soft tissue injuries, sprained muscles or tendons within the MIG. For example, an orthopaedic specialist, Dr. Gandhi, reports that the applicant is complaining of neck pain, cervical pain and bilateral posterior shoulder pain but notes that the neck pain is much improved since the accident. He concludes that there is no objective evidence of musculoskeletal impairment and diagnoses cervical and bilateral shoulder strain – clearly within the MIG.

21The lengthy psychological assessment of Dr. S. Mor, retained by the insurer in the spring of 2017 reports that the applicant feels he is 60% better and optimistic about further recovery, that his life enjoyment is the same as prior to the accident, and that although his sleep is sometimes disturbed and he is anxious about driving, he feels he is getting better. The assessment concludes that the applicant demonstrates “no clinically significant psychological impairment”.

22The latest medical or treatment note tendered into evidence by the applicant is dated July 25, 2017. The applicant has offered no medical evidence of his condition after that date. All I have are his counsel’s submissions that he suffers from chronic pain and has ongoing psychological complaints. The applicant is required to offer compelling evidence of a continuing impairment. I find that the applicant has failed to discharge the onus of proof on him. He has provided no evidence that would justify removing him from the MIG.

Issue 2: Is the applicant entitled to the three rounds of chiropractic treatment he seeks?

23The SABS limits the insurer’s obligation to pay medical/rehabilitation benefits in the case of minor injuries to a total of $3,500. The insurer has already paid that amount for the applicant’s treatment. Accordingly, the applicant’s claim for further chiropractic/massage treatment is denied.

Issue 3: Is the applicant entitled to IRB for the period between October 14, 2017 and January 15, 2018?

24To establish his entitlement, the applicant must satisfy the Tribunal, on a balance of probabilities, that in the period for which he seeks benefits he was suffering from an injury that substantially prevented him for performing the essential tasks of his employment.

25The applicant returned to work as a production worker at a bakery shortly after the accident. His work required lifting trays of croissants from shelves and placing the croissants on a conveyor belt.

26The applicant reported that the pain from the injury he suffered during the accident was aggravated by pulling and lifting heavy weights at his employment.

27His treating chiropractor advised him to take some time off work to heal. The applicant quit his job. The chiropractor submitted to the insurer a form stating that the applicant was substantially unable to perform the essential tasks of his employment and that the disability was expected to last 9 to 12 weeks.

28The respondent required the applicant to undergo comprehensive assessments in the spring of 2017 to determine whether the applicant’s injuries fell outside the MIG, and whether he was substantially unable to perform the essential tasks of his employment so that a continuation of his IRBs was warranted. The assessments were performed by an orthopaedic specialist, Dr. Ghandi, whose conclusions I have already referred to, as well as by a multidisciplinary team including a kinesiologist, a physiotherapist, and a psychologist, Dr. Mor.

29The kinesiologist carried out an in-clinic job site analysis, listing the tasks that the applicant reported he had to perform as a production worker at the bakery. She noted that the task causing difficulty was lifting trays of croissants off racks located from four feet above the floor to one foot above the floor. He had to lift the trays and carry them to a conveyor belt and unload the trays, placing the croissants on the conveyor belt. She concluded that this was categorized as “light work” according to objective standards. She and the physiotherapist then carried out an assessment of the applicant, noting any limitations in his strength and range of motion. They noted that his right shoulder abduction was” below normal” and his right shoulder strength was “slightly limited”. They noted that the applicant reported intermittent pain on the right side of his neck and through the right shoulder, and that his left shoulder was painful during range of motion testing. They concluded that the applicant met the strength demands of the job but “not the positional demands of elevated work required on an occasional basis”. The report goes on to conclude that the applicant is not substantially unable to perform the essential tasks of his employment.

30I conclude that from the perspective of the assessors, a finding that a person is substantially unable to perform the essential tasks of his employment requires an inability that is much greater than the applicant’s problem with lifting trays. It would have been helpful had the conclusion been elaborated on, but I surmise that the assessors believed that this task was so occasional as not to be “essential” to his work. His job duties could easily be modified so that he did not have to lift the top trays, or he could be provided with a stool that he could step up on. I see no reason not to rely on the opinion of these assessors, experts in their fields. In addition, there is no evidence to the contrary from the applicant; there is the bare assertion that his IRBs should be continued.

31Bearing in mind that the applicant bears the burden of proof, I am satisfied on a balance of probabilities that he was able to perform the tasks of his pre-injury employment in the autumn of 2017. I am not suggesting that he should have gone back to his job at that time. I simply conclude on the evidence before me, that he could have done so. There is some report in the file that the applicant decided to look for work that was more suitable to his capabilities, and indeed he found such work in the spring of 2018.

32The applicant’s claim to IRBs from 14 October 2017 to 15 January 2018 is denied.

CONCLUSION

33I have found that the applicant suffered predominantly minor injuries from the motor vehicle accident on November 16, 2016. He was able to perform all the essential tasks of his employment on October 14,2017 and thereafter. He has not proved on a balance of probabilities any entitlement to further benefits from the insurer for his injuries in the November 16, 2016 motor vehicle accident. The appeal is dismissed.