Citation: M.A. vs. Aviva General Insurance Company, 2020 ONLAT 18-011678/AABS

Released Date: 04/15/2020 File Number: 18-011678/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. A.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Paralegal

For the Respondent:

Brendan Sheehan, Counsel

HEARD: In Writing

December 9, 2019

1The applicant, M.A., was involved in an automobile accident on October 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). M.A. was denied certain benefits by the respondent, Aviva, and thus applied to the Licence Appeal Tribunal (the “Tribunal”). Specifically, M.A. seeks funding for an income replacement benefit (“IRB) and medical benefits.

2Aviva denied M.A.’s claims because it took the position that her 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 M.A.’s claim for an IRB on the basis that he did not meet the test for entitlement to an IRB. M.A. disagrees with Aviva’s denials.

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

ISSUES

4The issues to be decided are as follows:

i. Are M.A.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?

ii. Is M.A. entitled to receive an income replacement benefit in the amount of $319.16 per week for the period July 18, 2018 to date and ongoing?

5If M.A.’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 $1,816.74 for chiropractic treatment, recommended by Complete Rehab Centre in a treatment plan dated May 23, 2018, and denied on May 22, 2018, reasonable and necessary?

ii. Is the medical benefit in the amount of $1,591.12 for chiropractic treatment, recommended by Complete Rehab Centre in a treatment plan dated July 13, 2018, and denied on July 17, 2018, reasonable and necessary?

iii. Is the medical benefit in the amount of $1,365.50 for chiropractic treatment, recommended by Complete Rehab Centre in a treatment plan dated August 9, 2018, and denied on August 9, 2018, reasonable and necessary?

iv. Is the medical benefit in the amount of $1,299.74 for chiropractic treatment, recommended by Complete Rehab Centre in a treatment plan dated February 26, 2018, and denied on March 12, 2018, reasonable and necessary?

v. Is the cost of examinations in the amount of $2,460.00 for a psychological assessment, recommended by Dr. Madhu Bhardwaj in a treatment plan dated March 12, 2018, and denied on July 17, 2018, reasonable and necessary?

vi. Is the cost of examinations in the amount of $2,460.00 for a chronic pain assessment, recommended by Complete Rehab Centre in a treatment plan dated August 2, 2018, and denied on August 3, 2018, reasonable and necessary?

vii. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to M.A.?

viii. Is M.A. entitled to interest on any overdue payment of benefits?

RESULT

6Based on the evidence before me, I find that M.A.’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.

7Further, I find that M.A. is not entitled to an IRB for the period of July 18, 2018 and ongoing.

8As a result, M.A. is not entitled to interest or an award, and the application is dismissed.

LAW

Minor Injury Guideline

9The 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).

10The onus is on the applicant to show that his injuries fall outside of the MIG.²

11M.A. 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 M.A. sustain physical injuries that remove him from the MIG?

12Although M.A. 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 M.A.’s physical injuries fall within the MIG.

Family Physician Clinical Notes and Records

13My finding that M.A.’s physical injuries fall within the MIG is supported by the following evidence:

i. The first post-accident visit to his family physician was on October 10, 2017. M.A. complained of neck, shoulder, and back stiffness. Family Physician Dr. Dulku noted a decrease in the flexion and extension of M.A.’s lower back, though he did not indicate the severity of the decrease. Dr. Dulku diagnosed him with Whiplash Associated Disorder and a back sprain. He recommended M.A. engage in range of motion exercises and physiotherapy;³

ii. M.A. followed up with Dr. Dulku on October 17, 2017. He complained of acute low back pain but denied any radiation or numbness. Dr. Dulku again recommended physiotherapy;⁴

iii. M.A. informed Dr. Dulku on December 22, 2017 that he was experiencing lower back pain that radiated into his left leg. However, M.A. advised that he had discontinued the medications prescribed. Although Dr. Dulku queried the possibility of a nerve root compression, straight leg raising testing was negative and M.A. exhibited normal power and reflexes in both legs. An MRI was ordered;⁵

iv. On February 11, 2018, Dr. Sharma recommended that M.A. participate in regular exercise. There is no evidence that M.A. abided by Dr. Sharma’s recommendations;⁶

v. M.A. underwent an MRI of the lumbar spine on March 9, 2018. Imaging was normal;⁷

vi. On June 22, 2018, M.A. presented to Dr. Al-Husari with complaints of ongoing lower back pain. He was provided with a nerve block and reported an 98% immediate benefit. Dr. Al-Husari encouraged him to do 30 minutes of fast walking per day.⁸ Despite M.A.’s reports to Dr. Al-Husari, he subsequently advised Dr. Dulku on June 24, 2018 that the pain injections did not help, and he did not want to return for further treatment;⁹

vii. On July 20, 2018, M.A. followed up with Dr. Dulku with ongoing complaints of left knee pain. He exhibited normal range of motion on testing. M.A. was diagnosed with a knee strain and referred for diagnostic imaging.¹⁰ M.A. underwent an x-ray and ultrasound of his left knee on the same day. Imaging revealed a small joint effusion and mild tendinosis of the pes answerine tendon was noted. The imaging results were otherwise normal.¹¹ On July 23, 2018, M.A. followed up with Dr. Dulku to review the imaging. Dr. Dulku again referred M.A. to physiotherapy as a result.¹²

14Despite further subjective reports of pain, no further objective testing was conducted from July 2018 to date. Limited treatment has been recommended for M.A.’s alleged accident-related injuries.

15My finding that M.A. did not suffer physical injuries that would remove him from the MIG is further supported by the following evidence:

i. M.A. followed up with Dr. Sharma on January 19, 2019 for his annual physical examination. His neck was non-tender with full range of motion, as were all upper and lower extremities. M.A. confirmed that he had normal mood and affect. Dr. Sharma again recommended M.A. get regular exercise;¹³

ii. On the June 24, 2019 visit to Dr. Dulku, M.A. reported headaches for the past 2-3 months. On physical examination, he exhibited full strength in all four extremities. There was no mention of any ongoing accident-related concerns;¹⁴ and

iii. The next visit to the family physician was on October 27, 2018, when M.A. complained of light-headedness. There is no evidence that ties this presenting complaint to the accident.

16I find that the medical evidence submitted by M.A. confirms that his physical injuries are predominantly minor. M.A. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided for in the MIG.

17As such, I do not need to determine whether the chiropractic treatment plans are reasonable and necessary.

Did M.A. sustain psychological injuries that remove him from the MIG?

18For the reasons that follow, I find that the evidence does not support the conclusion that M.A.’s psychological impairments would remove him from the MIG.

Dr. Bhardwaj report

19M.A. relied on a psychological report¹⁵ produced by Dr. Bhardwaj to support his claim of a psychological impairment as a result of the accident.

20Dr. Bhardwaj performed a series of objective tests in reaching his conclusion about M.A.’s psychological impairments. Of note were the Beck Anxiety and Depression Inventory and the SCL Symptom Checklist 90-Revised test.

21Through this objective testing, Dr. Bhardwaj opined that M.A. suffered from moderate anxiety and moderate-severe depression. Dr. Bhardwaj concluded that M.A. was suffering from Adjustment Disorder with Mixed Anxiety and Depression.

Dr. Mor report

22Aviva relied on its s. 44 assessor report¹⁶ in support of its position that M.A. did not suffer significant psychological impairment that would remove him from the MIG. To aid in coming to a diagnosis, Dr. Mor conducted similar tests to those done by Dr. Bhardwaj. Specifically, Dr. Mor performed the Beck Depression and Anxiety Inventories, The Patient Pain Profile and the SCL Symptom Checklist 90-Revised test.

23As a result of Dr. Mor’s testing, he concluded that M.A.: a) fell within the moderate range for the Beck Inventories; b) scored within the below average range on the depression, and anxiety scales and in the average range on the somatization scale; and c) regarding the SCL Symptom Checklist, the “highest relative elevation was note on the somatization scale. This was followed by obsessive-compulsive, interpersonal sensibly, depression, and anxiety scales”.

24It’s unclear from Dr. Mor’s report what the SCL Symptom Checklist testing actually reveals about M.A.’s psychological well-being. Despite this, M.A. denied any problems with depression, anxiety, or need of psychological intervention during the assessment.

25The conclusions of Drs. Bhardwaj and Mor are contradictory. As such, I must consider M.A.’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 M.A.’s claim.

26I prefer the report of Dr. Mor because the objective findings determined that M.A.’s impairment did not warrant a diagnosis. This is consistent with M.A.’s self-report that he did not suffer from any psychological impairment.

27M.A. 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 M.A.’s injuries do not fall outside of the MIG, I need not determine whether the claimed psychological assessment plan is reasonable and necessary.

Does M.A. suffer from chronic pain as a result of the accident?

28For the reasons that follow, I find that M.A. has not met his onus to persuade me that he suffers from chronic pain as a result of his accident-related injuries.

29M.A. submits that a diagnosis of chronic pain takes him out of the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. M.A. submits he has chronic pain and relies on the November 18, 2018 report of Dr. Siddiqui, Chronic Pain Specialist. Dr. Siddiqui reports that chronic pain continues for more than the normal recovery period (which is about six months), despite appropriate medical, physical or psychological treatment. He also states that chronic pain is subjective and can exist without any objective findings. Signs of chronic pain are employment issues, pain catastrophizing, psychosocial problems, mood disturbance and fear of movement.

30Aviva asks that little weight be given to Dr. Siddiqui’s opinion because he did not provide an opinion that M.A. was unable to return to work due to chronic pain. Further, Dr. Siddiqui concluded that M.A. exhibited normal range of motion throughout his neck, shoulders and thoracolumbar spine, which does not support that M.A. suffers from chronic pain. I agree with Aviva’s position for the following reasons.

31Aviva submits that for chronic pain to take M.A. out of the MIG, it should be assessed against six criteria described in the American Medical Association (“AMA”) Guides.

32According to the AMA Guides, at least three of the criteria must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse, or family.

(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contracts.

(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.¹⁷

33Aviva submits, and I agree, that M.A.’s evidence does not support a finding of chronic pain. For example:

i. M.A. has not provided a prescription summary, to which Aviva submits an adverse inference must be drawn. I draw an adverse inference from M.A.’s failure to produce the prescription summary. In the complete absence of any explanation for this failure, I conclude that either this document does not exist, or it does not support M.A.’s position;

ii. M.A. has returned to almost all of his pre-accident activities;

iii. There is no evidence of psychological complaints to the family physician; and

iv. M.A. reported to the s. 44 assessor, Dr. Mor, that “he feels that he is coping emotionally, and he denied feeling depressed or anxious”. M.A. further denied changes to his self-esteem and confidence, or suicide ideation. M.A. has resumed driving and denied any significant symptoms of posttraumatic stress disorder.

34As M.A. has not satisfied at least three of the criteria set out by the AMA Guides, he cannot be found to suffer from chronic pain as a result of the accident. Consequently, I do not find that M.A. suffers from chronic pain as a result of the accident.

Is M.A. entitled to an income replacement benefit?

35An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident, as set out in section 5(1) of the Schedule.

36Based on the evidence, M.A. has not established that he suffers from a substantial inability to perform the tasks of his employment.

37The Disability Certificate (“OCF-3”), completed by Chiropractor Dr. Jessa, stated that M.A. met the test for an IRB because of the injuries he sustained in the car accident. On a balance of probabilities, it is reasonable to conclude that someone who is diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal. Based on the OCF-3, the anticipated duration that the impairments would prevent M.A. from working was 9-12 weeks.

38M.A. attended a series of assessments¹⁸ by healthcare professionals retained by Aviva. The assessors determined that M.A. suffered from strains and sprains. The assessors concluded that M.A. did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Consequently, Aviva denied him IRBs in a letter dated July 17, 2018.

39M.A. has not produced any of the documentary records substantiating his alleged loss of income. M.A. has not submitted his 2018 tax returns, nor has he provided the complete employment file of [a grocery store] or [an Employment Agency], despite Aviva’s requests for same.

40M.A. alleges that he attempted a return to work in December 2018 but was unable to complete the essential tasks of his employment. M.A. has not provided evidence to substantiate this claim. Instead, he relies on a request made to [an Employment Agency] on December 3, 2018 with which he is seeking full-time employment. There is no evidence that he attempted to return to work at that time and was unable to due to ongoing impairment. Significantly, M.A. advised the s. 44 assessor, that he did not wish to return to working at [a grocery store] because he “did not want to work in the cold”.

41I am persuaded by the evidence that M.A. does not suffer a substantial inability to complete the essential tasks of his employment.

Does M.A. suffer a complete inability to engage in any employment during the post-104 period?

42Having determined that M.A. did not suffer a substantial inability to perform the essential tasks of his employment after July 17, 2018, I am unable to find that he suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience beyond 104 weeks after the accident

AWARD

43Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.

44M.A. contends that Aviva unreasonably withheld payment of the treatment plans. I have already found that M.A. is not entitled to the treatment plans, therefore Aviva cannot be found to have unreasonably withheld payment of same. As such. M.A. is not entitled to an award.

CONCLUSION

45M.A. has not met the onus on him to prove his injuries are not predominantly minor. As such, M.A. 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. M.A. is not entitled to an award. The claim is dismissed.

Released: April 15, 2020