Citation: K.J. vs. Aviva Insurance Canada, 2020 ONLAT 19-000434/AABS

Released Date: 06/18/2020

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:

K.J.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Anna Korolkova, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By way of written submissions

OVERVIEW

1[K.J] (the “applicant”) was involved in an automobile accident on November 12, 2016, and sought benefits from Aviva Insurance Company (the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

ii. If the answer to the first question is no, is the applicant entitled to the following benefits:

a) Is the applicant entitled to receive a medical benefit in the amount of $2,546.89 for chiropractic treatment, recommended by Downsview Healthcare Inc., in a treatment plan dated November 14, 2016, and denied by the respondent on March 13, 2017?

b) Is the applicant entitled to receive a medical benefit in the amount of $1,232.12 for chiropractic treatment, recommended by Downsview Healthcare Inc., in a treatment plan dated February 17, 2017, and denied by the respondent on March 13, 2017?

c) Is the applicant entitled to receive a medical benefit in the amount of $1,680.44 for chiropractic treatment, recommended by Downsview Healthcare Inc., in a treatment plan dated March 29, 2017, and denied by the respondent on May 1, 2017?

d) Is the applicant entitled to receive a medical benefit in the amount of $1,239.65 for chiropractic treatment, recommended by Downsview Healthcare Inc., in a treatment plan dated May 21, 2017, and denied by the respondent on June 20, 2017?

e) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. I do not find the treatment plans to be reasonable and necessary as a result of the applicant’s accident related impairments. Interest is not payable as I do not find that any payments are overdue.

BACKGROUND

5On November 12, 2016, the applicant was a passenger in a vehicle that was involved in a collision with a vehicle making a left-hand turn. As a result of her accident related impairments, she took approximately three months off work from her employment as a pharmacy assistant.

6Following the accident, the applicant commenced treatment pursuant to the MIG. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

7I find the applicant’s impairments fall within the MIG.

8Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that her impairments are not minor and not subject to the $3,500.00 cap.

10The applicant argues that her impairments do not fit within the definition of the MIG because she suffers from chronic pain syndrome and a psychological impairment as a result of the accident. Further, she argues that her accident related impairments remain unresolved and she requires further treatment as a result. She relies on the clinical notes and records (“CNRs”) of Dr. Humphrey, a general practitioner at a walk-in clinic and Dr. Varathalingam, her family doctor. She also relies on a disability certificate (OCF-3), the treatment plans themselves and a chiropractic medical legal report dated April 8, 2019 prepared by Dr. Pivtoran, chiropractor, in support of her position that her impairments are not minor.

11The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs relied upon by the applicant do not support that she sustained a psychological impairment or suffers from chronic pain syndrome as a result of the accident. Further, the report of Dr. Pivtoran should be given little weight as there was no objective evidence to back up his findings and it is beyond the scope of his expertise as a chiropractor to opine on the applicant’s psychological status. The respondent relies on the physiatry insurer examination (“IE”) of Dr. Boulias who determined that applicant’s accident related impairments are minor. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

12The applicant submits that she did not have any pre-existing health issues that would prevent her from achieving maximum medical recovery within the MIG, so she is not removed from the MIG as a result of a pre-existing condition.

13I do not find that the CNRs of Dr. Humphrey or Dr. Varathalingam support the applicant’s position that she suffers from chronic pain syndrome or any accident related psychological impairment. The CNRs of Dr. Humphrey supports that the applicant went to a walk-in clinic a day following the accident complaining of right elbow/arm pain. The doctor recommended that the applicant apply a cold compress. The CNRs of Dr. Varathalingam demonstrate that the applicant attended her family doctor’s office on November 17, 2016 complaining about right elbow, arm and right shoulder pain. On Dr. Varathalingam’s recommendation, the applicant had an x-ray of her right arm and the results were normal.

14Between December 10, 2016 to January 23, 2019, the applicant attended Dr. Varathalingam’s office approximately fourteen times. Her complaints to her family doctor ranged from side effects from contraceptive medication, symptoms of the common cold and stress and anxiety relating to balancing her employment responsibilities and caring for her two children. There are a few references in the family doctor’s CNRs regarding the applicant suffering from anxiety and depression relating to family and marital stressors. However, none of the CNRs refer to the accident as being the cause for any of the applicant’s psychological complaints during this time period. One CNR in March 2018 refers to the applicant complaining of severe back pain, however, the entry indicates no fall or injury and does not mention the accident. In my view, these CNRs do not support the applicant’s position that she suffers from chronic pain, chronic pain syndrome or any accident related psychological impairment that would remove her from the MIG.

15The respondent submitted the applicant’s post-accident OHIP summary which demonstrates that the applicant made very few visits to her family doctor about any accident related complaints.

16The applicant heavily relied on a disability certificate and medical legal report prepared by Dr. Pivtoran, chiropractor. The disability certificate dated November 18, 2016 diagnosed the applicant with brachial radiculitis (right); shoulder sprain/strain of the joints and ligaments (right); thoracic sprain/strain of joints and ligaments (right); head – post traumatic headaches; dizziness; behaviour - acute stress reaction; behaviour – symptoms and signs involving emotional state. In my view, the physical impairments listed by Dr. Pivtoran on the OCF-3 fit within the MIG. Further, no explanation was provided by Dr. Pivtoran about what brachial radiculitis is, how it is diagnosed and how it removes the applicant from the MIG. In addition, I agree with the respondent that it is not within Dr. Pivtoran’s scope as a chiropractor to render a psychological diagnosis. Dr. Pivtoran’s report dated April 28, 2019 indicates that the applicant’s accident related injuries have become chronic which will prevent her from achieving maximum medical recovery within the MIG.

17I did not find Dr. Pivtoran’s report persuasive as his conclusions and diagnosis were either outside the scope of his expertise and were not supported by any objective evidence. He states that the applicant’s injuries are chronic. However, there is no objective evidence in the CNRs of the applicant’s family doctor to support same. The applicant maintains she should be removed from the MIG because she suffers from chronic pain syndrome. However, this diagnosis is not supported as no expert has diagnosed the applicant with chronic pain syndrome and the evidence does not support that the applicant suffers from chronic pain as a result of the accident. Consequently, I do not find that the applicant suffers from chronic pain or chronic pain syndrome that would remove her from the MIG.

18Likewise, the applicant did not submit any persuasive evidence that she suffers from an accident related psychological impairment. Her family doctor’s CNRs do not link the accident to any of her psychological complaints. In addition, I agree with the respondent that it is beyond Dr. Pivtoran’s scope as a chiropractor to provide an opinion on the applicant’s psychological status. What I found lacking from the applicant’s evidence was a report from a psychological expert diagnosing the applicant with any accident related psychological impairment. Further, the applicant’s complaints about stress, anxiety and depression do not mention the accident as the cause. Therefore, I do not find that the applicant sustained a psychological impairment that would remove her from the MIG.

19By contrast, the respondent relied on the physiatry IE of Dr. Boulias dated April 25, 2017 which determined that the applicant sustained uncomplicated soft tissue injures as a result of the accident. Dr. Boulias opined that the applicant’s impairments were minor and subject to treatment within the MIG. I preferred the opinion of Dr. Boulias over Dr. Pivtoran as it was more consistent with the other medical evidence before me.

20For the above-reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident related impairments do not fit within the MIG.

Is the applicant entitled to any portion of the disputed treatment plans?

21To date, the respondent has approved $3,127.00 of treatment of the $3,500.00 MIG limit. This leaves a balance of $373.00 left within the MIG for treatment.

22The applicant is not entitled to payment of any of the disputed treatment plans as I have determined that her impairments fit within the MIG. Further, based upon the evidence before me I do not find that the applicant has proven on a balance of probabilities that additional treatment is required. I found the evidence relied on by the applicant supporting the need for ongoing physical treatment insufficient. For the reasons already highlighted I did not find Dr. Pivtoran’s report persuasive, nor did I find any of the CNRs support the need for additional treatment.

23The applicant submitted the treatment plans themselves and the CNRs of Downsview HealthCare Inc between November 2016 to June 27, 2017. In my view, the treatment plans on their own are insufficient as the applicant did not submit any objective evidence to back up her complaints. Further, I did not find the Downsview HealthCare Inc. progress notes helpful as they do not note any progress or state that treatment was helpful to the applicant in any way.

24For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that additional chiropractic treatment is reasonable and necessary as a result of her accident related impairments.

ORDER

25For all of the above reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit;

ii. The applicant is not entitled to any of the disputed treatment plans as I do not further chiropractic treatment to be reasonable and necessary as a result of the applicant’s accident related impairments; and,

iii. The applicant is not entitled to interest as I do not find any payments are overdue.