Released Date: 05/07/2020 File Number: 19-004737/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:
[M.K.]
Appellant
And
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Avvy Go
Appearances:
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on November 19, 2016. While travelling through a roundabout, the applicant’s vehicle stopped quickly to avoid another vehicle and was subsequently rear ended. The applicant was able to drive his vehicle from the scene, but the vehicle was subsequently determined to be a write off. While noting an onset of low back pain approximately two hours after the accident, the applicant sought medical consultation by his family physician some months after the accident. The applicant returned to his work as a framer for a consultation company following the accident and continues to work on a full-time basis.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent paid for some medical benefits and declined to fund certain treatment. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3According to the Case Conference Report for a case conference held on October 22, 2019, the issues in dispute identified and agreed to were as follows:
a) Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and are therefore subject to the $3,500 limit for treatment in the Minor Injury Guideline (“MIG”)?
b) Is the applicant entitled to payments for the cost of examinations in the amount of $2,881.50 for a Psychological Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan dated February 13, 2019 and denied by the respondent on February 22, 2019?
c) Is the applicant entitled to interest on any overdue payment of benefits?
d) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
4Another issue listed in the Case Conference Report is whether the applicant is entitled to a medical and rehabilitation benefit in the amount of $1,385.00 for chiropractic treatment recommended by Spinetec in a treatment plan (OCF-18) submitted on January 25, 2019, and denied on March 18, 2019.But the same Case Conference Report also indicated that the respondent agreed to approve the chiropractic treatment and thus it would not be an issue in dispute in the hearing. In its submission, the respondent confirmed that they have agreed to pay up to the MIG limit for incurred treatment and that there was $1,600 remaining in the MIG limit at that time. The respondent further noted that counsel for the applicant agreed to withdraw the disputed item relating to the chiropractic treatment as this amount was approved and will be paid once incurred. The respondent finally submitted that to date nothing has been submitted to indicate that the treatment was incurred.
5Notwithstanding the above, the applicant continued to list this item as a matter under dispute in their written submission. However, as a result of the respondent’s stated agreement to pay the $1,385.00 for chiropractic treatment, I find that this benefit is not under dispute and I will not be addressing this claim in my decision.
RESULT
6For the reasons set out below, I find that the applicant is not entitled to the benefit claimed and as such no interest is payable. I also find the applicant is not entitled to any award.
ANALYSIS
Issue 1: Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
7The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, and collectively are referred to as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. The definition of MIG does not include any psychological or psycho-emotional impairment.
8The applicant has the burden of proving that his injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s. 18 of the Schedule.
9In this case, the applicant claims that he should be removed from the MIG because his injuries, including chronic pain and psychological issues, are not predominantly minor in nature. The applicant also submits that he has pre-existing issues stemming from his WSIB incident that is not sufficiently treatable under the MIG.
10Based on the evidence before me, I find that the applicant’s injuries fall within the MIG.
Applicant’s Claim regarding Chronic Pain and Pre-existing Injuries
11Relying on a decision by Executive Chair Linda Lamoreaux in T.S. v. Aviva General Insurance Canada1, the applicant argued that chronic pain is not captured by the Schedule’s minor injury impairment level as the legislature opted to not include chronic pain in the definition of “minor injury”. The applicant put forward “a simple definition for chronic or persistent pain” as “pain that continues when it should not”. The applicant submitted that the accident occurred more than three years ago, and yet he continues to experience pain to this day despite having undergone treatment for his injuries.
12The applicant was assessed by Dr. Drew, an orthopaedic Surgeon, on February 25, 2019, as part of an Insurer’s Examination (“IE”) to assess the $1,385.00 chiropractic treatment plan. In arguing that he has “ongoing symptomology related to the accident”’ as well as “re-aggravated symptoms from his previous workplace injury”, the applicant relied on Dr. Drew’s report and stated: “As Dr. Drew points out, [the applicant] reports temporary improvement with the treatment he receives. In the case of excruciating chronic pain, any amount of relief, even if only temporary, is beneficial.”
13The applicant also relied on a report by Sandra Fraser, a Registered Nurse, dated March 28, 2019. The report noted that Dr. Drew “agrees that [the applicant] does suffer from pain, that his pain has worsened since the motor vehicle accident”, and that he “has had no sustained improvement in his symptoms.” Further, the applicant submitted Ms. Fraser opined that if the applicant’s pain and medical condition have not improved, then it is likely there is a need for intervention and ongoing medical care. Ms. Fraser also stated that “delayed attention towards restoration of a person’s medical condition following a car accident only extends the time needed to achieve recovery of muscle tone, pain management and a person’s well being”.
14I have had the opportunity to review the various medical reports including the IE reports, the report by Ms. Fraser and a few pages of clinical notes from the applicant’s family physician that were submitted along with this appeal. I find these reports do not support the applicant’s claim that he has chronic pain or that the pre-existing injuries have prevented the achievement of the applicant’s maximum recovery if subject to the MIG.
15As the respondent has pointed out, case law2 from this Tribunal has endorsed the following criteria for chronic pain as outlined by the American Medical Association Guides:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence of prescription drugs or other substances.
Excessive dependence on health care providers, spouse or family.
Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain.
Withdrawal from social milieu, including work, creation, or other social contracts.
Failure to restore pre-injury function after a period of disability, such that the physical incapacity is insufficient to pursue work, family, recreational needs.
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours.
16In this case, many of the above criteria are not met.
17I note first of all, a discrepancy between the applicant’s submissions and the evidence as to when he first sought medical treatment after the accident. The applicant submitted that he first saw his family physician regarding his low back pain about a month after the accident. The records provided by the applicant from his physician, however, suggest that the first entry following the accident of November 19, 2016 is on March 6, 2017, when the physician noted, “Here re: back pain. Mentions he pulled out his back over a year ago, then mentioned an accident that occurred, someone rear-ended him.” It was on that day that the applicant’s physician diagnosed lumbar strain.
18I also note that the applicant returned to work full time as a framer for a construction company right after the accident and continues his employment there to this date. A note from his family physician of March 6, 2017 indicated that he was cleared for light duty with a restriction of “no lifting greater than 100 pounds for the next three weeks.” A CT scan done in March 2017 also identified no abnormalities.
19The applicant was examined by Dr. Mohammed Nikkhou, a neuropsychologist, on March 13, 2019, about 15 months after the accident. During this examination, the applicant reported back pain due to a work-related accident in March 2016 for which he took a few days off and took pain medication. The applicant also reported that he almost recovered but had slight discomfort prior to the accident, but it was manageable.
20The applicant reported to Dr. Nikkhour that he did attend chiropractic treatment at Spinetec once a week approximately 9 months after the accident. The applicant did not report seeking any other treatment from any other healthcare practitioners. He does not do any physiotherapy exercises at home and rarely takes any over-the-counter medication for pain. He reported some benefit from treatment and that he is still progressing in terms of recovery. He reported feeling overall 50% better physically but still feeling pain in his lower back on the left side.
21The applicant also reported to Dr. Nikkou that he has a maximum of 8 hours of sleep but wakes up 1-2 times during the night due to back pain. The applicant reported that he does not feel disabled, but his back pain affects his ability to enjoy his normal life at the same level as he did prior to the accident. The applicant stated that he believes his condition is recoverable but does not know how long it will take. He also reported that continuing with current physical treatment will be enough for him, and that he just needs time to recover. He also reported that he is still able to do all the activities at work but at a slower place and that he feels limited to lifting heavy objects over 75 pounds.
22The applicant reported that he continues his social activities in the same level he did prior to the accident and that his partner is supportive of him.
23As noted above, the applicant was also examined by Dr. Drew. Dr. Drew’s report confirmed some of the same findings as noted in Dr. Nikkou’s report, including the weekly chiropractic treatment received by the applicant, which has consisted of manipulation and massage therapy, and that the applicant has not undergone any exercises. The treatment provides “temporary relief of his symptoms”. With respect to the previous workplace related low back injury, the applicant stated to Dr. Drew that his back pain had partially improved but was recurrent in nature and still present at the time of the accident. The applicant reported that as a result of the accident, the intensity of his symptoms has worsened.
24After performing a physical examination of the applicant, Dr. Drew opined that “from an orthopaedic perspective, [the applicant] has subjective reports of pain and reduced range of motion, particularly into forward flexion. There were no other signs of impairment from an objective musculoskeletal perspective”. While concluding that the applicant has sustained an unresolved strain/sprain of the lumbar spine that was related to the accident, Dr. Drew concluded that the applicant “has reached maximal medical improvement”, and the doctor has no further recommendations regarding ongoing treatment.
25The applicant also relies on the report of Ms. Fraser, registered nurse, dated March 28, 2019. It would appear that Ms. Fraser wrote this report primarily to “object to Dr. Drew’s assessment” of the applicant. Nothing in Ms. Fraser’s report would suggest that she has personally examined the applicant at all. Rather, she offered an opinion as to why Dr. Drew’s report should not be relied on by the insurance company to deny the applicant the chiropractic treatment sought. Given that Ms. Fraser has never examined the applicant and the respondent has already approved the treatment plan in question, I decide to give Ms. Fraser’s report no weight.
26I finally consider the psychological issue that the Applicant may be facing, as one of the indicators for chronic pain.
27Dr. Nikkou administered a number of tests on the Applicant and concluded that there was an invalid profile with a “significant tendency to exaggerate the symptoms overall and with respect to symptoms concerning neurologic impairment, affective disorder and amnesic disorder.” Dr. Nikkou also made some findings with respect to the applicant’s psychological condition which includes subclinical features of adjustment reaction (i.e. subclinical anxiety and symptoms including sleep difficulties, irritability and being concerned about his health, financial strains and ability to lead a normal life).
28Dr. Nikkou found the applicant is experiencing “mild emotional concerns” mainly due to his reported persistent pain and physical limitation. Notably, Dr. Nikkou found no indication from his current daily functioning or from his test results that would suggest the problems are of a substantive nature from a psychological viewpoint. Dr. Nikkou opined that while the applicant continues to experience a subclinical degree of post-Motor Vehicle Accident adjustment reaction, this does not appear to be severe. His clinical profile is inconsistent with a significant MVA-related psychological disorder. While the applicant reported a moderate level of depression subjectively, Dr. Nikkou noted the finding is significantly inconsistent with the results of the objective measure which shows no elevation on major depression scale as well as having a mild level of dysthymia in this case.
29Based on all of the above, applying the evidence to the criteria for chronic pain as set out in M.F.X. v. Certas3, there is no evidence to suggest that the applicant has become dependent on prescription drugs or other substances since the accident, or excessively dependent on health care providers, spouse or family. The applicant did report some avoidance of physical activity due to pain but has continued to work on a full-time basis, albeit with some limitations. Similarly, there have not been any significant finding with respect to the applicant’s psychological health. Thus, while the evidence would support that the applicant does have some unresolved strain/sprain of the lumbar spine, it does not rise to the level of chronic pain, as the term is defined by the American Medical Association and adopted by this Tribunal in prior cases.
30Further, as noted by the respondent, this Tribunal has considered the level of functionality of applicants who claim to suffer from chronic pain. Even where the credibility of the applicant is accepted, claimants have been found to fall with the MIG if the functional impairment is not significant.4
31In this case, the objective evidence suggests that the applicant does continue to experience some level of pain associated with his lumbar strain/sprain, but the evidence does not show that the applicant’s functional impairment is significant.
32Thus, I find that the applicant’s claim that he suffers from chronic pain is not supported by the evidence.
33With respect to the pre-existing injuries, section 18(2) of the Schedule allows an applicant to receive treatment outside of the MIG if he has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximum recovery from the minor injury. As noted in A.B.-H v. Travelers5, to rely on this provision, the applicant must demonstrate that the pre-existing condition prevents the achievement of maximal recovery if subject to the MIG. The applicant did not make any specific submission in this regard, other than reiterating that he still experiences ongoing pain with no lasting improvement over 2 years post-accident.
34The applicant has provided little evidence that would assist me in understanding how his pre-existing medical condition will prevent him from achieving maximum recovery from the minor injury. I can only look to the two IE reports, neither of which opine on this issue. Even the reports that the applicant relied on, including the notes from his family physician and the report from Ms. Fraser, did not shed any light on whether and how the pre-existing injuries may have prevented the achievement of the applicant’s maximum recovery if subject to the MIG. Without such evidence, I find that the applicant has not discharged the burden of proving that his injuries fall outside of the MIG.
35The respondent has approved the $1,385.00 chiropractic treatment for the applicant. If he has not done so already, I encourage the applicant to make use of the treatment in order to assist him with his recovery process.
Psychological Issues
36I have dealt with some of the evidence of psychological issues in the context of my finding with respect to chronic pain.
37In addition to the above, I note the applicant reported his emotional state to Dr. Nikkou. He stated that he feels physically limited, and that his financial issues and becoming bankrupt were his main concerns. He denied feeling sadness but has become more sensitive and irritable than before the accident due to the back pain. He reported no pedestrian or passenger anxiety and does not receive any treatment for emotional issues.
38Citing 16-001934 v Aviva Insurance Company of Canada,6 the applicant submitted that he needs not prove that he in fact suffers from a psychological impairment, but is only required to prove, on a balance of probabilities that it is reasonable and necessary to explore the possibility that he suffers from a psychological impairment.
39My reading of the decision does not support the applicant’s position. The decision in question is a reconsideration of a previous decision which confirmed the denial of a chronic pain assessment by the insurer. In granting the reconsideration request, Member Sewrattan found the assessment to be reasonable because the medical evidence sufficiently established that the applicant suffered from injuries about his spine. The Member reached that conclusion based on medical reports submitted by the parties. As such, the assessment is necessary as it is the only way to determine the applicant suffers from chronic pain.
40Here, the applicant has not provided sufficient evidence to show he suffers from any severe or significant MVA-related psychological disorder or impairment.
41Based on the evidence, I therefore find that the applicant has not demonstrated that he suffers a psychological impairment as a result of the accident.
Conclusion on MIG
42On the basis of the above findings, I therefore find the applicant’s injuries fall within the MIG.
Issue 2: Is the applicant entitled to payments for the cost of examinations in the amount of $2,881.50 for a Psychological Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan dated February 13, 2019 and denied by the respondent on February 22, 2019?
43According to the respondent, $1,900.00 of medical/rehabilitation benefits have been paid to the applicant. The respondent has, as previously noted, approved the $1,385.00 in chiropractic service, leaving $215.00 to be claimed within the MIG.
44As I have found the applicant’s injuries fall within the MIG, I therefore find the applicant is not entitled to the payment of $2,881.50 for psychological assessment.
Issue 3: Is the applicant entitled to interest for the overdue payment of benefits?
45In view of my findings above, I find the applicant is not entitled to any interest.
Issue 4: Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
46The applicant did not make any submission on this issue. The respondent submitted that the applicant has only used about $1,900 under the MIG treatment despite the approval of the $1,385.00 for chiropractic treatment plan. The respondent submitted that where an applicant has not availed himself of approved treatment it would be illogical to order a special award on the basis that the insurer had unreasonably withheld treatment. I agree.
47Further, as I have found the applicant is not entitled to the benefit claimed for the reasons outlined above, I also find that he is not entitled to any award.
FINDING & ORDER
48The applicant is not entitled to the benefits claimed and as such there is no interest owing. The applicant is not entitled to any award.
Released: May 7, 2020
___________________________
Avvy Go
Adjudicator
Footnotes
- T.S. v Aviva General Insurance Canada, 2018 CanLII 39445 (ON LAT).
- M.F.X. v. Certas, 18-004282/AABS, May 8, 2019.
- Ibid
- C.R. v. Aviva, 18-002086/AABS, February 15, 2019
- 17-001856 v. Travelers, 2018 CanLII 13173 (ON LAT) at paras 34-35.
- 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464 (ON LAT).