Released Date: 06/22/2020
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. S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Clifford Singh
Counsel
For the Respondent:
Emily M. Hill
Counsel
HEARD: In Writing
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant J. S. (“applicant”), was involved in a pedestrian automobile accident on November 22, 2011 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The date of the accident was listed on the application as September 9, 2015 but both parties in their submissions agree that the correct date is November 22, 2011. The applicant was denied certain benefits by the respondent Aviva Insurance Canada (“respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
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 and, even if the MIG is found not applicable, the applicant is not entitled to the disputed treatment plans because they are not reasonable and necessary. The applicant has received benefits to the full limits of the MIG. The applicant has applied to the Tribunal for dispute resolution.
PRELIMINARY ISSUE – REPONDENT’S EVIDENTARY OBJECTION
3The respondent requests that the Tribunal dismiss the applicant’s claim or, in the alternative, that the applicant be precluded from including any new evidence in his reply submissions because he failed to submit as evidence at this hearing any of the OCF-18 treatment plans in dispute and has made factual allegations without supporting evidence. I decline to dismiss the applicant’s claim on the preliminary procedural objection from the respondent and will decide this hearing on the basis of the evidence and submissions before me from both parties. As no reply submissions were filed, the request to strike evidence in them is moot.
4The respondent also requests that the Tribunal exclude from the applicant’s evidence the records of [The Hospital] which were not given to the respondent until January 27, 2020 in breach of the Tribunal’s case conference Order made September 11, 2019, which required the parties to exchange evidence by January 16, 2020. I do not have the applicant’s response to this request as no reply submissions were filed. While a breach of any Tribunal Order is not to be taken lightly, given that this evidence was sent to the respondent ten days late but more than a month before the respondent was required to file its submissions and the respondent does not argue it was prejudiced by the late filing, I allow the [The Hospital] records as evidence.
ISSUES
5The issues to be decided in this hearing are:
i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
ii. Is the applicant entitled to payment for the cost of examinations in the amount of $2,881.50 for a physiatry assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted June 11, 2018 and denied on December 12, 2018?
iii. Is the applicant entitled to payment for the cost of examinations in the amount of $2,486.00 for a functional abilities evaluation, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted June 11, 2018 and denied on December 12, 2018?
iv. Is the applicant entitled to payment for the cost of examinations in the amount of $7,571.00 for a neuropsychological assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted June 11, 2018 and denied on December 12, 2018?
v. Is the applicant entitled to payment 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 submitted June 11, 2018 and denied on December 12, 2018?
vi. Is the applicant entitled to receive a medical benefit in the amount of $6,726.55 for chiropractic treatment, acupuncture and physiotherapy, recommended by Spinetec Health Care Solutions in a treatment plan submitted July 6, 2018 and denied on July 10, 2018?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
6The 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. No interest is owed. There is no special award.
LAW
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
ANALYSIS
10I find that the applicant’s physical injuries are minor injuries. The accident occurred when the 26 year old applicant was hit by a vehicle while walking in a parking lot. Although the applicant submits his physical injuries are not minor and that he went to the [The Hospital] at the time of the accident, there are no hospital records in evidence.
11On March 12, 2012, the applicant went to [The Health Clinics] for a mental health/suicide crisis risk assessment. An appointment was made for the applicant for a few days later at St. Leonard’s and he was advised to follow up with his physician. The only reference to the accident is found in the applicant’s medical history where it is noted “hit by car Nov/11-chronic pain”.
12The applicant relies on an excerpt from the respondent’s November 26, 2018 physiatry assessment report of Dr. Clifford. However, this report does not establish that the applicant’s physical injuries from the accident were anything other than predominantly minor. Dr. Clifford concludes that the applicant would likely have sustained soft tissue injuries and may also have sustained a concussion. Dr. Clifford opines that any soft tissue injuries sustained in the accident have long since healed and would be considered to be predominantly minor injury. Although Dr. Clifford states that the applicant “may have sustained a concussion,” there is no such diagnosis at the time of the accident. Dr. Clifford’s conclusion in his 2018 report does not prove the applicant suffered a concussion at the time of the accident on the balance of probabilities.
13Imaging records of the applicant’s spine from [Ontario Health Clinics] in April, 2012 revealed no fractures and was normal except for mild degenerative disc disease L4-5 and mild thoracic scoliosis. Although the applicant complained of back pain, at that time his physical examination was normal and he had good range of motion. On May 31, 2012, the applicant’s family physician Dr. Raja confirmed this even though the applicant said he had pain.
14There is nothing in the medical evidence before me that establishes the applicant had anything other than sprain and strain type physical injuries from the accident. These fall within the definition of “minor injury”. However, the applicant argues that other conditions remove him from the MIG.
Did the applicant have a pre-existing medical condition that would remove him from the MIG?
15The applicant has brought forward no 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.
16The applicant relies on an excerpt from the respondent’s November 26, 2018 psychology and neurocognitive assessment report by Dr. Lubinsky who noted that “Although Mr. Scott’s primary health practitioner has not provided compelling evidence of pre-existing medical conditions, records from [The General Hospital] indicate that Mr. Scott has longstanding psychiatric difficulties including ADHD, depression, angry outbursts leading to assault charges, anxiety, bipolar disorder, and alcohol abuse. In my opinion, this history may indeed prevent Mr. Scott from achieving maximal medical recovery with the Guideline Limits. While I agree that Mr. Scott appears to be suffering from significant psychological distress, which likely affects his day-to-day functioning, it is my opinion that this is likely not accident-related apart from ongoing symptoms of pedestrian anxiety.”
17Despite this mention of past psychiatric difficulties and the comment that only symptoms of pedestrian anxiety are likely accident-related, Dr. Lubinsky’s opinion, in the end, is that the applicant does not meet the criteria for full diagnosis Specific Phobia (pedestrian anxiety) and from a psychological perspective, the applicant suffers from a predominantly minor injury.
18I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing medical condition.
Does the applicant have psychological impairment as a result of the accident?
19I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment as a result of the accident justifying treatment beyond the MIG. The weight of the medical evidence is that while the applicant has experienced psychological issues, they are not a result of the accident.
20The Ontario Health Clinics notes from the applicant’s March 2012 visit do not record any accident-related complaints. On April 5, 2012, the records show that the applicant has a “Hx of depression/angers easily/stressed for years…pt would like to see psychiatrist” and that he was referred to “psych” by Dr. Raja. There is no record made of a causal connection between the accident and this referral. To the contrary, the applicant is noted to have had these issues for years. Dr. Raja notes on August 23, 2012 that “pt’s complaints are largely subjective; he did have a psych appt scheduled for his emotional problems but he was a no-show”.
21The applicant relies on an excerpt from the respondent’s November 26, 2018 psychology and neurocognitive assessment report by Dr. Lubinsky who noted that “Although Mr. Scott’s primary health practitioner has not provided compelling evidence of pre-existing medical conditions, records from [The General Hospital] indicate that Mr. Scott has longstanding psychiatric difficulties including ADHD, depression, angry outbursts leading to assault charges, anxiety, bipolar disorder, and alcohol abuse. In my opinion, this history may indeed prevent Mr. Scott from achieving maximal medical recovery with the Guideline Limits. While I agree that Mr. Scott appears to be suffering from significant psychological distress, which likely affects his day-to-day functioning, it is my opinion that this is likely not accident-related apart from ongoing symptoms of pedestrian anxiety.” Again, despite this mention of past psychiatric difficulties and the comment that only symptoms of pedestrian anxiety are likely accident-related, Dr. Lubinsky, in the end, concludes that the applicant does not meet the criteria for full diagnosis Specific Phobia (pedestrian anxiety) and from a psychological perspective, the applicant suffers from a predominantly minor injury.
22The [The Hospital] records from November 15, 2012 notes show that the applicant had psychological issues pre-accident. It is noted that the applicant “[c]omplains of always being anxious or depressed. ‘Rage issues’ – some improvement in the past 2 years after attending anger management workshops required for parole….He also mentions nightmares and flashbacks of when he was hit by a car in a parking lot, believing the driver intended to harm him.” These records show the applicant’s self-reporting including that the applicant “[b]elieves he has an acquired brain injury from being beaten up in jail.” There is insufficient medical evidence connecting these complaints to the accident. No diagnosis was made by a physician at this hospital visit.
23There is no medical evidence that the applicant sought any further medical treatment for some five years until April, 2017 when the applicant asked his new family physician Dr. Mokone for a referral to a psychiatrist.
24The burden of bringing forward persuasive medical evidence of his alleged psychological impairment as a result of the accident is on the applicant and he has not met his burden.
Does the applicant have chronic pain as a result of the accident?
25I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain as a result of the accident justifying treatment beyond the MIG.
26There is reference to chronic pain in the March 12, 2012 [The Health Clinic] notes, and reference to pain in the April, May, and August 2012 [Ontario Health Clinics] notes. Also, in the summer of 2012, the applicant told respondent’s orthopaedic surgeon Dr. Soriano that he suffered from neck, lower back, right knee and right shoulder pain. These appear to be largely based on the applicant’s subjective self-reporting. The applicant’s physicians could not find an objective basis for his pain. For example, the May 31, 2012 note of T. Spaxman is “I could find nothing by way of signs of illness that would justify disability but I cannot suggest that the patient does not have pain…I do not feel this patient warrants any long term disability benefit unless he was found to warrant this after a complete occupational therapy assessment.” Dr. Raja notes on August 23, 2012 that “pt’s complaints are largely subjective; he did have a psych appt scheduled for his emotional problems but he was a no-show”. No physician referred the applicant for further investigation of pain or to a chronic pain specialist. There is no diagnosis of chronic pain by any chronic pain specialist. The reference in the [The Health Clinic] notes to “hit by car Nov/11-chronic pain” is a note of the applicant’s medical history, not evidence of a medical diagnosis of chronic pain.
27For some five years the applicant did not seek any medical treatment which would seem to be inconsistent with chronic pain. In April, 2017 the applicant saw his new family physician Dr. Mokone who noted complaints of back and neck pain and that he asked for a referral to a psychiatrist. Dr. Mokone noted the applicant’s normal gait and that his back and neck examinations were normal. In early 2018, the applicant complained of pain to Dr. Mokone, who arranged for a lumbar spine x-ray. That imaging was normal.
28The applicant relies on the July 3, 2018 note from his chiropractor Dr. Paton who indicates the applicant has chronic back pain, headaches and post-concussion syndrome ongoing since the accident. This evidence is not persuasive. Dr. Paton is a chiropractor who cannot medically diagnose. Dr. Paton’s note is more than six years post-accident and is insufficient to causally connect the applicant’s condition to the accident especially since the applicant had not sought medical treatment from 2012 to 2017.
29The January 16, 2020 records from [The hospital] emergency department note that the applicant has a history of low back pain “after stretching in bed…says pain is worse in last 3 days.” Lumbar strain, herniated disc affecting left leg was diagnosed on January 16, 2020. The January 19, 2020 records show that the applicant has “acute or chronic” pain over years but hasn’t seen a general practitioner yet and was wanting pain medication. This evidence is not persuasive. This diagnosis is more than seven years post-accident with many intervening events including incarceration and other injuries that the applicant reported may have taken place. These records are insufficient to causally connect the applicant’s pain to the accident which took place in 2011.
30The burden of bringing forward persuasive medical evidence of his alleged chronic pain as a result of the accident is on the applicant and he has not done so.
Medical Benefit: Are the treatment plans reasonable and necessary?
31Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
32As no benefits are payable, no interest is payable.
Special Award
33Section 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.
ORDER
34For the reasons outlined above, I find that the applicant’s injuries are predominantly minor injuries that fall within the MIG as defined by the Schedule. As no benefits are payable, no interest is payable. There is no special award. The applicant’s claim is dismissed.
Released: June 22, 2020
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/19
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.