Roberta Tassell v. Aviva General Insurance, 2020 CanLII 58822

Citation: Roberta Tassell vs. Aviva General Insurance, 2020 ONLAT 19-007347/AABS

Released Date: 08/17/2020

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:

R.T.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Jeffrie R. Crannie, Counsel

For the Respondent: Doug Letto, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 25, 2017 and sought benefits 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”).

ISSUES IN DISPUTE

2The issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to receive income replacement benefits in the amount of $400.00 per week for the period May 23, 2019 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $2,822.00 for physiotherapy treatment recommended by Lifemark MainWest & Logwood in a treatment plan (OCF-18) submitted on May 8, 2019 and denied on May 21, 2019?

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

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payments of benefits?

RESULTS

3The applicant is not entitled to receive income replacement benefits in the amount of $400.00 per week for the period May 23, 2019 to date and ongoing.

4The applicant is not entitled to a medical benefit in the amount of $2,822.00 for physiotherapy treatment recommended by Lifemark MainWest & Logwood in a treatment plan (OCF-18) submitted on May 8, 2019 and denied on May 21, 2019.

5The applicant is not entitled to interest or to an award.

BACKGROUND

6The applicant was rear ended on November 25, 2017. She never attended at the hospital but complained of pain in her neck and right shoulder. The applicant worked pre-accident as a general labourer on the factory line at a commercial bakery, Arytza Limited. The applicant worked 11 hour shifts 4-5 times per week. She worked for a further five months after the accident until April 20, 2018. On April 20, 2018 Dr. Brunner (family doctor) wrote the applicant a note indicating that she could not return to work due to disability. The applicant was independent in her self care and daily living.¹

7The applicant had a pre-accident medical history. Her family doctor, Dr. Brunner’s clinical notes indicate that on December 2, 2014, the applicant reported severe back of head pain. Dr Bruner at this time provided the applicant with a note indicating that she was totally disabled from work from December 2-7 2014². Dr. Brunner wrote her another note on February 9, 2015 that indicated a period of total disability from work from February 6-12 2015.³On April 13, 2017 the applicant was having hernia repair and Dr. Brunner wrote a note indicating that the applicant would be disabled from working from April 24 – July 2 2017⁴ Dr. Brunner provided another note on June 29, 2017 relating to the hernia repair, that the applicant would be totally disabled until July 30, 2017.⁵

8The applicant attended at her family doctor, Dr. R. Brunner on December 4, 2017, who provided to her prescriptions for physiotherapy for musculoskeletal and myofascial pain, and message therapy for myofascial pain relating to neck/shoulder, girdle/back soft tissue injuries.⁶

9Ms. McTaggart, physiotherapist, found on January 19, 2018 that the applicant had: WAD 2, shoulder strain sprain, thoracic sprain/strain and lumber sprain/strain.⁷

10On July 4, 2018 an x-ray of Ms, Tassell’s C-spine was completed by Dr. B. Birchenough (radiologist). In his report he opined that the applicant was suffering from degenerative disc disease in the cervical spine from C-3 to c-7 which would be in keeping with a woman of her age group.⁸ On August 13, 2018 an MRI of the right shoulders showed multilevel degenerate disc diseases with the most significant at C5 and C-6,7.⁹

11Dr. P. Bansal physician, on an IE, in his report dated April 16, 2019¹⁰ indicated that the applicant suffered uncomplicated soft tissue injuries and that she did not suffer a substantial inability to complete the essential tasks of her pre-accident employment. The report also indicate that the applicant had reached maximum medical improvement for accident related injuries. Dr. Bansal also noted in his report “that there was self limited range of motion and reports of pain which in itself does not constitute ongoing injury or impairment.” His second report dated July 11, 2019 confirmed the same diagnosis.¹¹

12A report from the Minerva Comprehensive Pain Management Program found that the applicant has full range of motion in her neck and shoulders; that there are no areas of muscle weakness and normal trunk rotation, that shoulder rotation and gait are all normal.¹² The plan recommended that she return to work.

13The applicant did receive IRB in the amount of $400.00 per week from April 28, 2018 until May 22, 2019 and LTD benefits from Great Western Life from August 20, 2018, until May 19, 2019.

14Dr. B. Lone, family physician, took over Dr. Brunner’s practice and diagnosed on May 17, 2019 that the applicant had chronic neck pain.¹³ Dr. Lone completed a Non Work Related Modified Duties Physician’s Form on July 9, 2019.¹⁴ That form indicated that the applicant had full body limitations to stair/ladder climbing, bending and twisting and right upper body functionality limitations for all activities except wrist movements and elbow movements. The expected duration was 3-6 months.

ANALYSIS

IRB BENEFIT

15I find that the applicant is not entitled to a continuing IRB for the reasons set out below.

16Section 5 of the Schedule requires employment by the applicant at the time of the accident and as a result of the accident a substantial inability to perform the essential tasks of that employment within the first 104 weeks of the accident. After the first 104 weeks of the accident, the insured must show a complete inability to engage in any employment or self employment for which she is reasonably suited by education, training or experience.

17Section 58 (1) of the Schedule requires the applicant to make reasonable efforts to return to the employment which she was engaged in at the time of the accident or obtain employment for which she is reasonably suited by education, training or experience. If the applicant fails to make reasonable efforts to seek employment, then the insurer can stop payment of the IRB benefit.

18The applicant’s position is that the pain she suffers from, is an impairment preventing her from returning to work.

19There has been no medical evidence put before the Tribunal as to any discussion of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment. There have been general medical statements that the applicant has pain and can’t work. A lot of this evidence of the pain is from the self-reporting of the applicant. There is no evidence before the Tribunal that the applicant has met any three of the criteria for a diagnosis of chronic pain, set out in the case of M.N.M. and Aviva Insurance, Tribunal file No; 17-007825/AABS. That case sets out six criteria described in the American Medical association (AMA) Guides which state that at least three of them must be met for a diagnosis of chronic pain:

a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse or family;

c. Secondary physical deconditioning due to disuse and/ or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu including work, recreation, or other social contacts;

e. 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.

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behavior.

20Dr. Lone in a general way, indicates the functioning ability of the applicant in the Non Work Related Modified Duties Physician’s Form. I can’t put much weight on this report, as it consists mostly of the applicant’s self-reporting. Ms. McTaggart also indicates that the applicant is unable to perform the essential tasks of her employment because of the sprain/strain. She also fails to go into any detail as set out in paragraph [19] above.

21The applicant did not stop working until after five months after the accident. This would indicate to the Tribunal that her injuries were minor to allow her to continue working. Dr. Bansal in his report indicates that the applicant suffered soft tissue injuries and did not suffer a substantial inability to complete the essential tasks of her pre-accident employment. Dr. Bansal’s report indicated that “there was self-limited range of motion and reports of pain.” The Minerva Report found that the applicant had full range of motion in her neck and shoulders; that there were no areas of muscle weakness and trunk rotation and shoulder rotation and gait were normal.

22I accept the medical evidence of Dr. Bansal as it is objective and indicates that the applicant did not suffer a substantial inability to complete the task of her pre-accident employment. The medical evidence is supported by the Minerva Comprehensive Pain Management Program report on the applicant’s functioning ability.

23Another difficulty I have is that the applicant had substantial medical problems pre-accident. How much of the pre-accident medical problems prevented her from working for periods of time post-accident? There is no evidence to differentiate the medical problems including pain and when it started. The applicant had medical problems pre-accident and probably those problems continued to persist after the accident. The applicant must show that the accident prevented her from engaging in the post-accident activities.¹⁵

24There is not enough evidence before the Tribunal to show a substantial inability to perform the essential tasks of that employment within the first 104 weeks of the accident or a complete inability after the 104 weeks.

25There is no evidence before the Tribunal to show what efforts the applicant has made to go back to work.

26The onus is on the applicant to show that she meets the requirements of the Schedule. I find that the applicant has not provided evidence to the Tribunal to show, on a balance of probabilities that she meets the requirements under Sections 5 and 58(1) of the Schedule.

Is the applicant entitled to a medical benefit in the amount of $2,822.00 for physiotherapy treatment recommended by Lifemark MainWest & Logwood in a treatment plan (OCF-18) submitted on May 2, 2019 and denied on May 21, 2019?

27I find that the proposed treatment plan is not reasonable and necessary for the reasons given below.

28Section 15 of the Schedule requires all medical and rehabilitation expenses to be paid by an insurer, if they are reasonable and necessary.

29In order to establish that goods and services are reasonable and necessary, an insured person has to show that the goods and services requested will have a rehabilitative purpose or at a minimum lead to a reduction of pain. This is proven through primary care records from a family doctor as an example or on the recommendation of a medical expert qualified for that purpose.^{16 17} A treatment plan without recommendations for that treatment, from a qualified health practitioner is insufficient to establish entitlement.¹⁸

30The OCF-18 in issue does not comment on why physiotherapy (20 sessions) and massage treatment (10 sessions) were necessary. It also does not provide what relief may result from the proposed physiotherapy/massage treatment other than to reduce pain. Further Dr. Bansal in his report indicated that the applicant has reached maximum medical recovery for her accident related injuries. He questioned the proposed treatment when there was no accident related musculoskeletal orthopaedic or neurological injury.¹⁹

31I accept Dr. Bansal’s report which indicates that the applicant has reached maximum medical recovery for her accident related injuries

32The applicant has not provided evidence to show that the proposed treatment plan is reasonable and necessary.

INTEREST/AWARD

33As there are no benefits owing there is no interest owing.

34The applicant has put forth no evidence to show that the insurer has unreasonably withheld or delayed payments of benefits. I find therefore that no award is owing.

CONCLUSION

35For the reasons set out above, the application is dismissed.

Footnotes

1. 1Tab 10 Dr. Brunner’s CNRs -June 12 2018
2. 2Tab 18 Dr. Brunner CNR-December 2 2014
3. 3Tab 19; dr. Brunner CNR-February 9 2015
4. 4Tab 20 Dr. Brunner CNR-April 13 2017
5. 5Tab 22 Dr. Brunner CNR-June 29, 2017
6. 6Tab 2 Dr. Brunner’s CNRS -December 4, 2017
7. 7Tab 13, Report of Ms. McTaggart P 187
8. 8Tab 11n Radiologist Consultation Report of Dr. Birchenough dated July 4, 2018
9. 9Tab 10 MRI dated august 13, 2018
10. 10Tab 11 Report of Dr. Bansal dated April 16, 2019
11. 11Tab 13-IR report of Dr. Bansal dated July 11 2019.
12. 12Tab 29 Report of Dr. C. Richards dated January 21, 2020
13. 13Tab 19, Report of Dr. Lone dated May 17, 2019.
14. 14Tab 26 Non Work Related Modified Duties Physician’s Form dated July 9, 2019
15. 15Tab 27-State Farm and Sabadash, 2019 ONSC 1121 para 31-34
16. 16Tab 30 D.J. v Aviva Insurance Canada 2016 93136 (ON LAT) at para 34-36
17. 17Tab 31 A.K. v. Aviva Canada 2017 93460 (ON LAT) at para 16-18
18. 18Tab 32 17-002689/AABS v. Aviva Insurance Canada 2018 CanLII 2311(ON LAT) at para 15
19. 19Tab 12 Report of Dr. Bansal dated April 16, 2019