Citation: J.J.X. vs. Aviva General Insurance, 2020 ONLAT 19-002558/AABS

Released Date: 04/22/2020

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:

J. J. X.

Applicant

and

Aviva General Insurance

Respondent

Derek Grant

For the Applicant:

Ivan Yau, Paralegal

For the Respondent:

Danielle Wilkinson, Counsel

Heard by way of written submissions

1The applicant, J.J.X., was involved in an automobile accident on November 15, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). J.J.X. was denied certain benefits by the respondent, Aviva, and thus applied to the Licence Appeal Tribunal (the “Tribunal”). Specifically, J.J.X. seeks funding for a non-earner benefit (“NEB”) and medical benefits.

2Aviva denied J.J.X.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline¹ (“the MIG”). Further, Aviva denied J.J.X.’s claim for a NEB on the basis that J.J.X. did not suffer a complete inability to carry on a normal life. J.J.X. disagrees with Aviva’s denials.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. J.J.X. argues that his injuries take him out of the limits set by the MIG. Based on treatment that J.J.X. has received to date, the MIG limit has been exhausted.

PRELIMINARY ISSUE

Adjuster’s log notes

4J.J.X. claims that he received Aviva’s adjuster log notes from the date of loss to October 28, 2017. J.J.X. submits that he has not received log notes beyond October 28, 2017 and that, as a result, he is in an unfair position.

5Aviva submits that J.J.X. never requested the log notes and that the Tribunal never ordered their production. Aviva contends that J.J.X. has not made a claim for a special award, in which case the notes would normally be relevant. Further, Aviva submits that J.J.X.’s position has not been adversely affected by the lack of more recent log notes. Moreover, Aviva highlights that the log notes referenced by J.J.X. in his submissions are not the log notes of J.J.X.’s claim, but rather the log notes of the related claim of Q.Y.F.

6A review of the Tribunal Order dated September 19, 2019 shows that there was no request or order made to produce the adjuster log notes. J.J.X. does not provide any further submissions on the impact of not having the adjuster’s log notes beyond October 28, 2017.

7J.J.X.’s initial submissions were not due until January 13, 2020, giving him almost three months to request the log notes he now wants. There is no evidence that J.J.X. ever made such a request.

8As such, I find that J.J.X has not been prejudiced by not having log notes beyond October 28, 2017. I make no finding that Aviva is required to produce the log notes beyond October 28, 2017. Therefore, my decision will be based on the evidence before me.

ISSUES

9The issues to be decided are as follows:

(i) Are J.J.X.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?

(ii) Is J.J.X. entitled to receive a non-earner benefit (‘NEB’) in the amount of $185.00 per week for the period December 15, 2016 to date and ongoing?

10If J.J.X.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:

(i) Is the medical benefit in the amount of $1,280.62 for physiotherapy treatment recommended by Allied Physio and Rehab in a treatment plan (OCF-18) submitted on April 10, 2017, and denied on April 26, 2017, reasonable and necessary?

(ii) Is the medical benefit in the amount of $990.00 for physiotherapy treatment recommended by Allied Physio and Rehab in an OCF-18 submitted on September 17, 2017, and denied on October 16, 2017, reasonable and necessary?

(iii) Is the medical benefit in the amount of $2,200.00 for physiotherapy treatment recommended by Allied Physio and Rehab in an OCF-18 submitted on November 3, 2017, and denied on November 29, 2017, reasonable and necessary?

(iv) Is the medical benefit in the amount of $2,000.00 for psychological assessment recommended by Perfect Choice Psychological Services in an OCF-18 submitted on May 31, 2018, and denied on June 29, 2018, reasonable and necessary?

(v) Is the medical benefit in the amount of $1,964.62 for chiropractic services recommended by Darren Hylton in an OCF-18 submitted on April 26, 2018, and denied on August 9, 2018, reasonable and necessary?

(vi) Is J.J.X. entitled to interest on any overdue payment of benefits?

RESULT

11Based on the evidence before me, I find that J.J.X.’s physical and psychological injuries meet the definition of “minor injury” under the Schedule. He is therefore subject to treatment within the MIG limit, which has been exhausted. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

12Further, I find that J.J.X. is not entitled to a NEB for the period of December 15, 2016 and ongoing.

13As a result, J.J.X. is not entitled to interest.

LAW

Minor Injury Guideline

14The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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 terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s. 3(1).

15The onus is on the applicant to show that his injuries fall outside of the MIG.²

16J.J.X. argues that his injuries go beyond the definition of “minor injury” because he sustained physical and psychological impairments which remove him from the MIG.

Did J.J.X. sustain physical injuries that remove him from the MIG?

17Although J.J.X. has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Aviva confirms that J.J.X.’s physical injuries fall within the MIG.

Family Physician Clinical Notes and Records

18My finding that J.J.X.’s physical injuries fall within the MIG is supported by the following evidence:

(i) There are no records from any family physician to support the physical injury claims made by J.J.X.;

(ii) J.J.X. relies on his treatment plans to support his claims for physical treatment. There is no other medical evidence suggesting that his physical injuries are not minor. In fact, J.J.X.’s treating chiropractor diagnosed J.J.X. with injuries that would be considered predominantly ‘minor’;

(iii) J.J.X. was assessed by a s. 44 assessor who diagnosed J.J.X. with minor injuries.³ In addition, the s. 44 assessor determined that J.J.X. suffered predominantly minor injuries; and

(iv) Dr. Bhargava’s examination revealed a full range of motion in the neck, shoulders and lower back. Dr. Bhargava’s diagnosis of J.J.X. was “WAD I and lumbar spine myofascial sprain and strain.” Dr. Bhargava determined that, from an orthopaedic perspective, J.J.X. suffered from predominantly minor injuries.⁴

19I find that the medical evidence submitted by J.J.X. confirms that his physical injuries are predominantly minor. J.J.X. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.

20As such, I do not need to determine whether the physical treatment plans are reasonable and necessary.

Did J.J.X. sustain psychological injuries that remove him from the MIG?

21For the reasons that follow, I find that the evidence does not support the conclusion that J.J.X.’s psychological impairments remove him from the MIG.

Dr. Browne report

22J.J.X. relied on a psychological report⁵ produced by Dr. Browne to support his claim of a psychological impairment as a result of the accident.

23Dr. Browne performed a series of questionnaire tests in reaching her conclusion about J.J.X.’s psychological impairments. Dr. Browne opined that J.J.X. suffered a mild-to-moderate psychological impairment as a result of the accident. Based on the results, Dr. Browne diagnosed J.J.X. with “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.

24Through this objective testing, Dr. Browne opined that J.J.X. suffered from moderate anxiety and moderate-severe depression. Dr. Browne concluded that J.J.X. was suffering from Adjustment Disorder with Mixed Anxiety and Depression.

Dr. Seon report

25Aviva relied on its s. 44 assessor report⁶ in support of its position that J.J.X. did not suffer a significant psychological impairment that would remove him from the MIG.

26As a result of Dr. Seon’s testing and J.J.X.’s self-reporting, she opined that J.J.X.’s accident-related psychological complaint “is not of the magnitude to warrant a psychological diagnosis in direct relation to the injuries sustained in the subject accident”.⁷ Dr. Seon concluded that, in the absence of a psychological diagnosis, J.J.X.’s injuries are considered ‘minor’ and that the MIG applies.

27The conclusions of Drs. Browne and Seon are contradictory. As such, I consider the evidence of J.J.X.’s self-reporting in determining whether he suffered a psychological impairment as a result of the accident. I find that the medical evidence and self-reporting do not support J.J.X.’s claim.

28J.J.X. denied any significant psychological impairment that negatively interfered with his social, educational or overall level of functioning. At the time of the s. 44 assessment with Dr. Seon, J.J.X. denied any significant symptoms of anxiety, depression or post-traumatic stress. J.J.X. also denied any significant symptoms of anxiety, or panic or avoidance behaviour travelling in or operating a vehicle.

29I prefer the report of Dr. Seon because the objective findings – that J.J.X.’s impairment did not warrant a diagnosis – is consistent with J.J.X.’s self-reporting that he did not suffer from any significant psychological impairment that would require treatment beyond the MIG limit.

30J.J.X. has not met his onus to establish that he suffered a significant psychological impairment that would remove him from the MIG limit. Because I have found J.J.X.’s injuries do not fall outside of the MIG, I need not determine whether the claimed psychological assessment plan is reasonable and necessary.

Is J.J.X. entitled to a non-earner benefit?

31In order to receive a NEB, J.J.X. must prove that he suffers a complete inability to carry on a normal life.⁸ A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.⁹ Based on the evidence, J.J.X. has not established that he suffers from a complete inability to carry on a normal life.

32J.J.X. reported to Dr. Seon that,

He continues to attend the gym twice a week, which he enjoys...J.J.X. stated that he shares household responsibilities with his roommate, stating on occasion he cooks. J.J.X. denied any difficulty with sitting for prolonged periods of time. J.J.X. has remained independent with tending to his activities of daily living. He reported his physical symptoms of pain have had no interference in his educational studies.

At the time of the subject accident, J.J.X. was attending [The College] on a full-time basis. He reported he returned to school within a few days of the subject accident on a full-time basis, however switched to another college for full-time studies. Having completed the first semester, J.J.X. expressed interest in completing the program.

33J.J.X. has not produced any medical evidence that supports he suffers a complete inability to carry on a normal life. The evidence shows that J.J.X. has returned to substantially all of his pre-accident activities, including socially. J.J.X.’s self-reporting shows that he has not suffered any significant psychological impairment as a result of the accident, which also does not support a claim of a complete inability to carry on a normal life.

34I find the test for NEB demands more evidence of impaired functionality and inability than J.J.X. provided. J.J.X. has failed to meet his onus to prove that he suffers a complete inability to carry on a normal life as a result the accident. Consequently, I find J.J.X. is not entitled to payment for the NEB.

CONCLUSION

35J.J.X. has not met the onus on him to prove his injuries are not predominantly minor. As such, J.J.X. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no overdue payment of benefits. The claim is dismissed.

Released: April 22, 2020