T.D.M. v. Aviva Insurance Canada, 2020 CanLII 35469

Citation: T.D.M. v. Aviva Insurance Canada, 2020 ONLAT 18-006760/AABS

Tribunal File Number: 18-006760/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

[T.D.M.]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Leanne W. Zabudsky, Counsel

HEARD by way of written submissions

OVERVIEW

1The applicant, [T.D.M.] (“applicant”), was involved in an automobile accident on December 29, 2016 (“accident”), and sought benefits from the respondent, Aviva Insurance Canada (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary or that their costs have been incurred. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to receive medical benefits in the amount of $2,200.00 for psychological services recommended by Pilowsky Psychological Professional Corporation in a treatment plan submitted May 9, 2017, and denied by the respondent on August 4, 2017?

ii. Is the applicant entitled to receive medical benefits in the amount of $3,129.48 for psychological services recommended by Pilowsky Psychological Professional Corporation in a treatment plan submitted July 14, 2017, and denied by the respondent on August 4, 2017?

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

iv. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 treatment limit within the Minor Injuries Guideline (MIG)?

v. Is the applicant entitled to an award under R.R.O. 664 because the respondent unreasonably withheld or delayed payment of a benefit?

RESULT

4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been expended. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. There is no special award. No interest is owed.

BACKGROUND

5The applicant’s vehicle was rear-ended by another vehicle on December 29, 2016 and, as a result, she alleges that she suffers from lower and upper back pain and neck pain and psychological complaints. The applicant was also injured in an accident in 2018, after the treatment plans at issue in this hearing were submitted and denied.

6The applicant made a claim for accident benefits. The respondent characterized the applicant’s injuries as falling within the MIG and refused to pay for the disputed psychological treatment plans. The respondent has already approved funding to the full limits of the MIG.

LAW AND ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in Section 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.” Under section 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

8To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury.” The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

9The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

10As the applicant can only be successful on the issues in dispute if she can prove her injuries are not minor, I will determine issue iv first.

11I find that the applicant’s physical injuries are minor injuries. The applicant relies on various medical records and reports, including the Disability Certificate, OCF-3, by Dr. Sarathy dated January 10, 2017. The Disability Certificate notes injuries including whiplash associated disorder with complaint of neck pain, sprain and strain of thoracic spine, lumbar spine and shoulder joint. These fall within the definition of “minor injury.” However, the applicant argues that other conditions remove her from the MIG.

Did the applicant have a pre-existing medical condition that would remove her from the MIG?

12The applicant submits that Dr. Pilowsky, her psychologist, noted her pre-existing medical condition, diabetes, in the May 4, 2017 treatment plan. Despite this mention of diabetes, I find there is no medical evidence before me that establishes the applicant should not be subject to the MIG because of her diabetes or that this condition prevents maximal recovery within the MIG funding limits.

Does the applicant have psychological impairment as a result of the accident?

13Likewise, I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG.

14The applicant submits that the July 2017 diagnosis from applicant’s psychologist, Dr. Pilowsky, of major depressive disorder and symptoms of post traumatic stress disorder takes her out of the MIG. Dr. Pilowsky also submitted the two treatment plans in dispute. The applicant argues that, in another case,⁴ the Tribunal preferred the BDI-II testing and the Pain Patient Profile testing, the same tests administered by Dr. Pilowsky on the applicant.

15The respondent submits that Dr. Pilowsky based her conclusions on subjective reports and failed to indicate that she conducted any validity testing. The respondent also submits that, in other cases,⁵ the Tribunal has rejected the opinion of Dr. Pilowsky specifically because she did not do validity testing.

16According to the evidence before me, the applicant did not contact her family physician, Dr. Attica, until some three months after the accident and, when she did, the only reported accident-related symptom was back pain. The applicant did not report to Dr. Attica any psychological issues arising out of the accident and did not discuss Dr. Pilowsky’s July 2017 diagnosis with Dr. Attica even though she reported to Dr. Attica on February 14, 2018 that she had been in another motor vehicle accident. No psychological referrals or treatments were made by Dr. Attica. I find Dr. Attica’s medical records to be key. Dr. Pilowsky’s opinion is not corroborated by Dr. Attica.

Does the applicant have chronic pain as a result of the accident?

17I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG. Although there is some reference to chronic back pain in the notes of Confederation Medical, there is no evidence of further investigation of chronic pain. There is no evidence that the applicant consulted Dr. Attica about chronic pain. There is no diagnosis of chronic pain by any chronic pain specialist. The applicant argues that the absence of visiting her family doctor in not indicative that there is no pain and may be indicative that her injuries are in fact chronic. This argument is not persuasive. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

18Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Special Award

19Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there is no award under Ontario Regulation 664.

20The applicant submits that the respondent failed in its fiduciary/good faith obligation to the applicant under s. 16 to rehabilitate her.⁶ I find that the respondent did not fail in any obligation to the applicant. The respondent disputed the treatment plans for the reasons it expressed. Also, the applicant raises as an “other issue” that the Tribunal made an Order on April 5, 2019 extending the deadline for the applicant to make her submissions. The applicant made this request because she needed “more time to consider…an offer by the respondent.” The respondent withdrew the offer by letter faxed April 4, 2019. This submission does not relate to any of the issues before me, but I have considered it as part of the course of conduct of the respondent. The fact that the respondent withdrew it’s offer prior to the April 5, 2019 Order does not appear to be in breach of the Tribunal’s Order or procedure or in any way improper and should not form the basis of any relief to the applicant.

Interest

21As no benefits are payable, no interest is payable.

CONCLUSION

22For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. Therefore, I do not need to consider whether the treatment plans in dispute are reasonable and necessary. There is no special award. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (C.A.) para. 24.
4. 4M.G. v. Primmum Insurance Company, Tribunal File Number 16-002951/AABS.
5. 516-000670 v. Aviva Insurance Company, 2017 CanLII 39433 ONLAT, para 25-29; 17-005761 v. RBC Insurance, 2018 CanLII 76430 ONLAT, para 24.
6. 6Beltrame v. Dominion of Canada General Insurance Co., FSCO A12-001522, para 40.```