M.V. v. Aviva General Insurance Company, 2020 CanLII 63604

M.V. v. Aviva General Insurance Company

Citation: M.V. v. Aviva General Insurance Company, 2020 ONLAT 18-011523/AABS

Released Date: 08/21/2020

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:

M.V.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Joyann Oliver, Paralegal

For the Respondent:

Maggie Morgan, Counsel

Heard By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1M.V. (“applicant”) was involved in an automobile accident on June 25, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 30 years old at the time of the accident.

2Aviva General Insurance Company (“respondent”) determined that 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 stopped paying $400.00 per week income replacement benefit (“IRB”) to the applicant December 11, 2016 when it determined him ineligible.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

PRELIMINARY ISSUE – APPLICANT’S MOTION TO AMEND APPLICATION

4On May 5, 2020 the applicant brought a motion to amend his application to:

i. Claim IRB from December 11, 2016 to July 18, 2018 (instead of from December 12, 2016 and ongoing), and

ii. Remove the claim for reimbursement of costs for Dr. Waxer’s psychological assessment³

5On May 6, 2020 the Tribunal notified the parties that the motion would be heard at the written hearing of this matter.

6The applicant’s motion is allowed. The respondent did not file any responding material or make written submissions on the motion. I find that the amendments are minor, uncontested by the respondent and I allow them in order to ensure efficient, proportional and timely resolution of the merits of this application as provided in Rule 3.1 of the Tribunal’s Rules.⁴

ISSUES

7After the above amendment, the issues to be decided are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to receive an IRB in the weekly amount of $400.00 for the period from December 11, 2016 to July 18, 2018?

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

RESULT

8I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No interest is payable.

LAW

9The 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 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

10To be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence, provided by a health practitioner, that was documented before the accident, that the applicant has a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.

11The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁵

12An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?

13The onus is on the applicant to establish his or her entitlement to IRB on a balance of probabilities.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

14The applicant submits that that he has a “severe and prolonged injury” which has persisted since the date of the accident and requires further treatment taking him outside the MIG. The applicant’s submissions also addressed whether certain treatment plans, not before me in this hearing, are reasonable and necessary.

15I find that the applicant’s physical injuries from the accident are minor injuries because none of the applicant’s medical reports and records indicate any physical injuries arising from the accident other than soft tissue injuries. After the accident, the applicant went to [the Hospital] where he complained of pain in the left forearm, wrist, shoulder and lower back pain. He was diagnosed with musculoskeletal pain, prescribed Ibuprofen, follow-up with his general practitioner was recommended and he was discharged. No diagnostic imaging was done. On June 27, 2016, the applicant saw Dr. Lambotharan, his family doctor, who diagnosed sprain type injuries, prescribed pain medications and referred the applicant to physiotherapy.

16In 2017, the applicant complained of back pain to Dr. Lambotharan on some five visits together with shoulder pain on one visit. However, on the May 30, 2017 visit for back pain, Dr. Lambotharan noted he was doing delivery work and handling weights. Dr. Lambotharan ordered an x-ray of the lumbar spine, done on August 16, 2017, which noted mild Grade 1 anterolisthesis of L5 on S1 and multiple surgical clips and mesh in the right lower quadrant, in keeping with previous surgery. Dr. Lambotharan did not make any recommendations following the x-ray. Dr. Lambotharan’s July 2019 note indicates the applicant’s last visit was August 2018 which appears to be the one time the applicant saw Dr. Lambotharan in 2018.

17Dr. Nallapaneni, the applicant’s surgeon, diagnosed the applicant’s inguino-scrotal hernia and repaired it by surgery in October 2016. Dr. Nallapaneni notes in his September 2, 2016 report to Dr. Lambotharan that the applicant first noticed a bulge in right groin area “5-6 years ago”. There is no mention of the accident in Dr. Nallapaneni’s report. Based on these records, I find that the applicant’s hernia, surgery and swelling after the surgery do not arise from the accident nor is there any indication his hernia was aggravated by the accident.

18There 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 he suffers from chronic pain and psychological injury that removes him from the MIG.

Does the applicant have chronic pain and psychological injury 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 chronic pain and psychological injury justifying treatment beyond the MIG.

20The applicant submits that his medical records, including the report of Dr. Brooks, family physician, made November 26, 2017 take him out of the MIG. Although there is some reference to back and shoulder pain in the notes of Dr. Lambotharan, there is no evidence of further investigation of chronic pain until the applicant saw Dr. Brooks in October 2017, more than a year after the accident. In his report, Dr. Brooks does not comment on the fact that Dr. Lambotharan did not arrange for investigation of chronic pain. Dr. Brook’s summary indicates whiplash injury to the applicant’s neck and mid thoracic to lower lumbar regions that are “now chronic due to the car crash”, difficulty sleeping since the accident, ongoing problems from the hernia surgery, depression and high anxiety due to the accident, and “Pain Disorder Associated with General Medical Conditions”. Dr. Brooks states that this refers to “the various physical factors that resulted from this whiplash accident…It is unfortunate that the pain symptoms, which developed from this accident have become chronic…” Dr. Brooks also indicates that the applicant is suffering from “depression and high anxiety due to the accident in question”.

21There are a number of issues with Dr. Brooks report which undermine its reliability. Firstly, Dr. Brooks does not indicate in his summary of credentials any qualifications that he is a chronic pain specialist. Dr. Brooks’ curriculum vitae is not attached to his report, although he does state it is available on request. Secondly, Dr. Brooks reports that the applicant subjectively rated two of his three pain complaints, specifically neck pain and shoulder pain, as 3 out of 10, and his lower back pain as 6 out of 10, yet concludes that the applicant has “chronic pain syndrome” and has had “disabling pain for 17 months”. This statement is also inconsistent with the May 2017 note made by the applicant’s treating physician Dr. Lambotharan that the applicant was doing delivery work and handling weights. Thirdly, Dr. Brooks does not provide a definition of chronic pain syndrome or adequately explain the chronic pain criteria he applied to reach his conclusion. Fourthly and most importantly, Dr. Brooks states the applicant’s “…right inguinal hernia repair in October of 2016 and his diagnosis of a large hydrocele in August of 2017 would make it impossible for him to return to his type of work when compounded with his impairments from the accident in question.” This indicates that Dr. Brooks partly attributes the applicant’s medical conditions to his hernia surgery and complications, which are unrelated to the accident, rendering his report unhelpful to my analysis of whether the alleged chronic pain arises from and is causally connected to the accident. Lastly, Dr. Brooks does not indicate what led to his conclusion that the applicant has depression and high anxiety due to the accident in question other than the applicant’s self-reporting. Dr. Brooks reports that neurological testing was unremarkable. For these reasons I give Dr. Brooks report little weight.

22The applicant also relies on the records of Dr. Peter Waxer, the applicant’s psychologist, who talked to the applicant on January 5, 2019. Although Dr. Waxer wrote that his impression is that the applicant suffers from both a persistent somatic symptom disorder with predominant pain as well as specific phobia (situational type – vehicular), Dr. Waxer qualifies his opinion by indicating a formal psychological assessment will confirm. This report is insufficient to establish a psychological impairment resulting from the accident on a balance of probabilities. Dr. Waxer’s report is not supported by Dr. Lambotharan’s records, which do not record any psychological complaints, any prescriptions for medication for psychological conditions or a referral to a psychiatrist.

23The applicant’s reporting of pain is not continuous. The applicant was able to work and lift weights in May 2017 according to Dr. Lambotharan’s records. The applicant did not bring forward any evidence to corroborate his self-reported inability to perform personal and household tasks. The applicant’s OHIP summary, in the absence of an explanation from a physician, and the treatment plans are insufficient to establish chronic pain resulting from the accident.

24Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Is the Applicant Entitled to IRB in the amount of $400.00 per week as claimed?

25At the time of the accident the applicant had been employed as a full-time delivery truck driver at [an Appliance Company] since February 2015. The applicant says he stopped working after the accident because of the injuries he sustained. The applicant received IRB until December 11, 2016 when the respondent stopped paying based on IE assessments.

What were the applicant’s accident-related injuries?

26The applicant submits that he suffered whiplash, back pain, shoulder pain, mild grade 1 anterolisthesis of L5 on S1 as shown on his August 17, 2017 x-ray, chronic pain syndrome, and psychological conditions including what Dr. Brooks described as “depression and high anxiety” and what Dr. Waxer described as persistent somatic symptom disorder with predominant pain as well as specific phobia (situational type – vehicular), all resulting from the accident and that these injuries are preventing him from working. To support his position, the applicant relies on his various medical records including of complaints of back and shoulder pain to Dr. Lambotharan, the x-ray results from August 17, 2017, and the reports of Dr. Brooks and Dr. Waxer. The applicant also submits that no credence should be given to the IE reports of Dr. Dessouki and Dr. Zakzanis.

What were the essential tasks of the applicant’s employment?

27According to his employer’s OCF-2 dated July 12, 2016, the applicant was “warehouse staff”. The job description is “handling freight/loading and offloading trucks/labour” and the essential tasks are “heavy repetitive lifting”. Other employment records show that deliveries were made with another employee.

Does the applicant suffer a substantial inability to complete the essential employment tasks?

28I find that the applicant does not suffer a substantial inability to complete the essential employment tasks based on a lack of medical evidence.

29The applicant concedes in his submissions that he would occasionally complain of back pain prior to the accident but says his visits to Dr. Lambotharan in relation to back pain increased after the accident. Dr. Lambotharan’s records show complaints of back pain made on two occasions in 2016, five occasions in 2017 and one occasion in 2018 and complaints of shoulder pain made on two occasions in 2017. However, on the May 30, 2017 visit for back pain, Dr. Lambotharan noted the applicant was doing delivery work and handling weights. Dr. Lambotharan noted in July 2019 the applicant’s last visit was in August 2018.

30Although the applicant relies on the x-ray results from August 17, 2017, Dr. Lambotharan, who ordered the x-ray, did not make any recommendations following the x-ray or refer the applicant to any other physician.

31I attribute little weight to the reports of Dr. Brooks and Dr. Waxer for the reasons outlined above.

32Although the applicant submits that no credence should be given to the IE reports of Dr. Dessouki, orthopaedic surgeon, and Dr. Zakzanis, psychologist, I find these two reports more persuasive than the applicant’s medical evidence for the following reasons. Dr. Dessouki assessed the applicant in September 2016 and Dr. Zakzanis assessed the applicant in November 2016, relatively close in time to the accident. Both assessors are medical specialists who assessed the applicant specifically in respect of entitlement to IRB.

33Further, Dr. Dessouki addressed the applicant’s employment tasks with the applicant and was told that he carried out his employment duties with the help of another employee and a trolley. Dr. Dessouki physically examined the applicant and opined that the applicant had functional range of motion of his cervical spine, shoulders and lumbar spine and that overall, there is no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the accident. More specifically, Dr. Dessouki diagnosed thoracolumbar strain and right shoulder strain and opined that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. I accept his opinion.

34Further, Dr. Zakzanis addressed the applicant’s employment tasks with the applicant and noted “[the applicant] stated explicitly that he is not disabled from working as a result of psychological symptomatology.” Dr. Zakzanis also noted that the applicant “explained that he has never seen his family doctor with psychological complaints, such as depression or anxiety.” Dr. Zakzanis also noted that the applicant had reportedly driven to the assessment. Dr. Zakzanis did objective psychological testing, interviewed the applicant and made behavioural observations. Based on this, Dr. Zakzanis opined that he found no objective evidence of any psychological disorder and therefore no condition on which a claim of psychological impairment or disability could be based as a result of the June 25, 2016 accident. He also noted “the obtained results were consistent with [M.V]’s self-report of no significant psychological concerns”. In answer to the question, “Does a disability presently exist as a result of any MVA-related impairment that would cause the claimant to suffer a substantial inability to perform the essential tasks of his pre-accident employment?”, Dr. Zakzanis answered “No psychological disability was identified.” I accept his opinion.

35The applicant’s family doctor has not opined that the applicant suffers a substantial inability to complete the essential tasks of his pre-accident employment. Taken together, the weight of the evidence from the respondent’s IE assessors is that the applicant has no substantial ongoing injury as a result of the accident. Even if there may be some tasks of his employment that the applicant might not be able to return to, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. The onus of proof is on the applicant and I find that he has failed to meet it.

Interest

36As no benefits are payable, no interest is payable.

ORDER

37For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. I also find that the applicant is not entitled to an IRB as claimed. The applicant’s claim is dismissed. No interest is payable.

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. 3The Tribunal’s case conference Order made April 24, 2019 states that this issue and the applicant’s claim for $2,200.00 for chronic pain assessment recommended by Finch Health Centre Inc., in a treatment plan (OCF-18), submitted on October 23, 2017 and denied on October 25, 2017 were resolved at the case conference. This treatment plan is not in issue before me, even though it is referenced in the applicant’s submissions as noted in the respondent’s submissions, para 1.
4. 4Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017.
5. 5Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.