S.W. v. Aviva Insurance Company of Canada, 2020 CanLII 69923

Citation: S.W. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-000365/AABS

Released: September 2, 2020

Tribunal File Number: 19-000365/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:

S.W.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Muhammad M. Alam, Counsel

For the Respondent: Robert H. Rogers, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 26, 2016. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2At issue between the parties is the applicant’s claims for various medical benefits, psychological assessments, and other assessments. The applicant, her claims being denied, applied to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of these claims.

3The applicant argues that her injuries, chronic pain and psychological difficulties, take her out of the Minor Injury Guideline (“MIG”) under the Schedule. As such, she claims that she is entitled to the proposed treatment and assessment plans because they are reasonable and necessary.

4The respondent disagrees. It argues that the applicant has suffered only minor injuries, and is therefore subject to the limit on treatment imposed by the MIG.

ISSUES

5The issues to be decided are:

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

ii. If she did not, is the applicant entitled to the following claimed benefits:

a. Medical and rehabilitation benefits as recommended by Liruma Rehabilitation Centre;

b. Psychological services as recommended by Gozlan Psychology Professional Corporation;

c. Assessments as recommended by Pearson Medical Assessments?

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

RESULT

6I find that the applicant has not satisfied her onus to demonstrate that the accident caused or exacerbated injuries that would take her out of the MIG. There is no evidence that her left breast lymphadenopathy was exacerbated by the accident aside from a temporal correlation. There is no question that the applicant is experiencing some pain still and that pain comes with some psychological effects, but neither her reported chronic pain or psychological symptomology rise to the level of a severity or diagnosis as a syndrome that the applicant must demonstrate in order to meet her onus.

BACKGROUND

7The applicant was involved in an accident on November 26, 2016. She was the driver of a car, and as she was passing through an intersection a vehicle ran a red light and hit her passenger side. The impact caused her car to spin and it was then struck by another car on the driver’s side. Her airbags did not deploy, and the applicant was taken to hospital by ambulance. She was at the time of the accident, and remains, a retiree.

8The applicant visited her family physician two days after the accident where she described the variety of pains she was experiencing. She was diagnosed with suspected acute neuropraxia from a neck injury sustained in the accident. In particular the applicant complained of pain and bruising to her chest and right breast, lower back and upper right quadrant pain, discomfort, and headaches with pain and numbness along left side of head. She was prescribed pain medication and physiotherapy.

9The family physician’s notes indicate several follow up appointments over the next two years. The notes indicate that physiotherapy and massage therapy have helped her pain recovery, and she was prescribed more to further assist.

10The applicant began attending physiotherapy two weeks after the accident, and continued for at least a year.

11In mid-2016, well before the accident, the applicant was also found to have lymph nodes in her left breast. This was later diagnosed as lymphadenopathy. Many of the appointments after the accident were also with respect to the lymphadenopathy, including scans and ultrasounds.

ANALYSIS

i. Did the applicant sustain predominantly minor injuries as defined under the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)?

12The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a minor injury as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. A minor injury also includes any clinically associated sequelae to the injuries noted above. An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits. An applicant may escape the MIG under s. 18(2) if they can demonstrate that a pre-existing condition documented by a health practitioner prevents maximal medical recovery.

13The respondent argues that chronic pain and psychological conditions are associated sequelae to minor injuries the applicant suffered in the accident. As a result, according to the respondent, chronic pain and psychological conditions do not take an applicant out of the MIG. I disagree. The case law is abundant with examples in which the Tribunal has found that, in certain cases, psychological conditions and chronic pain syndrome are sufficient to remove an applicant from the MIG, or more accurately, chronic pain and psychological conditions are not associated sequelae to injuries suffered in an accident. These cases include those cited below.

14I agree, however, that the applicant has not made out her onus to prove that the injuries she suffered take her out of the MIG.

Lymph Nodes

15Section 18(2) of the Schedule provides that an applicant can fall outside of the MIG if his or her health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition, which will prevent the applicant from achieving maximal recovery with the $3,500 limit. The use of the term ‘compelling evidence’ does not change the burden of proof. It remains a civil standard, but the sufficiency of the evidence to meet that standard must be determined on the facts of each individual case.¹

16The applicant claims that her “nymph nodes” [sic] have been worsened as a result of the accident. I find no evidence to support this claim other than a temporal coincidence. The applicant complained of bruising to her right breast as a result of the accident, whereas the lymphadenopathy is in her left breast. Further, there is no evidence that an endocrinological disorder can be worsened by a motor accident.

17Lastly and most pertinent here, there is no evidence that the lymphadenopathy discovered in the applicant’s left breast many months before the accident somehow prevents the applicant from achieving maximal recovery of the injuries she sustained in the accident.

18As such, I cannot conclude that the applicant’s pre-existing lymphadenopathy is sufficient to take the applicant out of the MIG.

19As additional analysis I consider whether the applicant’s complaint of a bruising-related cyst on her right breast takes her out of the MIG. Again, I find it does not. The evidence with respect to the cause of the cyst is circumstantial at best. But, even if I take it at its best, which I am prepared to do, it is in essence scar tissue remaining from the clear and accident-caused bruise on her right breast. This is, in my opinion, related sequelae to the minor injury (bruising) that the applicant suffered in the accident.

Psychological Conditions

20For this Tribunal to find that an applicant is removed from the MIG by virtue of psychological injury, the applicant must show an actual psychological impairment.² Some case law has required that the impairment be severe or extreme.³

21The applicant was assessed by a psychologist, Dr. Oren Gozlan on October 3, 2017. Dr. Gozlan’s initial diagnosis was adjustment disorder with anxiety and depression, Somatoform disorder, irritability and anger, sleep disorders, phobias, and limitation of activities due to disability. On March 19, 2018 Dr. Gozlan confirmed much of the initial diagnosis, concluding that the applicant has “adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder.” Dr. Gozlan recommended 16 sessions of psychotherapy.

22The applicant underwent a physician assessment on November 22, 2017 by Dr. Mandel. Dr. Mandel conducted a series of tests on the applicant and concluded that the applicant did display some depressive symptoms. She also scored average on scales for several psychological conditions when compared with other chronic pain reporting patients. Dr. Mandel also noted that there was a lack of consistent objective information to support a diagnosis or to indicate substantial psychological impairment.

23I accept that the applicant does suffer from some psychological symptomology. I do not, however, find that this symptomology is sufficient to remove the applicant from the MIG. Even if the applicant’s psychological symptoms were the result of or exacerbated by the accident, which it is not clear they are, they do not rise to the level of a severe or extreme impairment.

24The applicant is, for the most part, able to carry about her daily routine. She experiences some difficulty and discomfort in some activities, and this is accompanied by a lack of motivation. I do not find this to be severe or extreme.

Chronic Pain

25This Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take an applicant out of the MIG.⁴ An explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects an applicant’s day-to-day life.

26The applicant argues that the pain of which she first complained to her doctor after the accident has become chronic.

27On February 9, 2018, nearly 15 months after the accident, the applicant’s family physician diagnosed her with “MVA and neck/shoulder (pain)”. The family physician prescribed “chronic pain management, physiotherapy and massage therapy”.

28Another insurance note from the same physician approximately a year later notes that the applicant’s pain has become chronic. In May 2019, the family physician diagnosed the applicant as having “chronic pain”.

29I note that, although the applicant’s family physician indicates chronic pain, the physician does not at any point diagnose the applicant with chronic pain syndrome. As stated earlier, such a diagnosis is not necessary, but it may in many cases be sufficient to find that an applicant is out of the MIG. Otherwise the applicant must demonstrate that the chronic pain she is experiencing affects her daily life in a significant way.

30On June 24, 2019 the applicant was seen by a chronic pain specialist, Dr. Igor Wilderman. Dr. Wilderman concluded that the applicant “has been diagnosed with chronic pain disorder” and that her injuries fall outside of the MIG because she has chronic pain and a psychological component to her injuries. Dr. Wilderman concludes that the applicant meets 5 out of the 6 criteria for development of a chronic pain syndrome.⁵ Dr. Wilderman also concluded that the applicant’s injuries interfere with her former and current daily life.

31In the normal course, the applicant’s evidence would likely support a finding that she has chronic pain that removes her from the MIG. In this case, however, I find that the applicant’s evidence is tainted by what the respondent has disclosed about Dr. Wilderman. Recently Dr. Wilderman has been the subject of a disciplinary decision before the College of Physicians and Surgeons of Ontario as a result of what is described as, among other things, displaying a lack of skill, knowledge, and judgment. The College also noted that Dr. Wilderman has questionable ethics and billing practices and did not adhere to chronic pain management guidelines.

32I also note that Dr. Wilderman, in assessing the applicant’s chronic pain, only reviewed two documents: Dr. Gozlan’s psychological assessment, and an in home assessment from December 2017, despite the availability of the applicant’s extensive medical records and reports. This does not inspire confidence in either the thoroughness or objectiveness of Dr. Wilderman’s review.

33While the findings against Dr. Wilderman were made almost a year before Dr. Wilderman’s report about the applicant, most troubling in the College’s report is a finding that Dr. Wilderman is unwilling to acknowledge deficiencies in his practice, including the risks that procedures he employs pose to his patients. The applicant did not present an affidavit from Dr. Wilderman to assist the Tribunal in understanding his methods of practice. As a result, the evidence about Dr. Wilderman raises significant questions about the reliability of his report and the methods he employed in conducting his assessment. I put little weight on Dr. Wilderman’s report.

34The applicant also underwent a physician assessment report on September 29, 2017, as requested by the respondent. Dr. Boucher, who completed the assessment, examined the applicant with mostly unremarkable findings. He did note a moderately decreased range of motion in the cervical spine. All other movements were normal or close to normal with some pain or tenderness on certain motions. He diagnosed her with lumbosacral myofascial strain as a result of the accident.

35Based on the evidence before me I prefer Dr. Boucher’s report. Therefore, I do not find that the applicant suffers from chronic pain syndrome such that her injury warrants her removal from the MIG.

Conclusion

36Based on the evidence before me I find that the applicant has not satisfied her onus to demonstrate that the accident caused or exacerbated injuries that would take her out of the MIG. There is no evidence that her left breast lymphadenopathy was exacerbated by the accident aside from a temporal correlation. There is no question that the applicant is experiencing some pain still and that pain comes with some psychological effects, but neither her reported chronic pain or psychological symptomology rise to the level of a severity or diagnosis as a syndrome that the applicant must demonstrate in order to meet her onus. Much of the applicant’s case with respect to chronic pain is hampered by an unreliable report by Dr. Wilderman.

ii. Is the applicant entitled to the claimed benefits?

37Having found that the applicant falls within the MIG, it is not necessary for me to consider whether the applicant is entitled to the claimed benefits.

CONCLUSION

38For the reasons above, I find that the applicant has not satisfied her onus to demonstrate that she is entitled to benefits beyond the MIG.

39The application is dismissed.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635, at para. 27.
2. 217-004796 and 17-004801 v. Certas Direct Insurance Company, 2018 CanLII 97830, at paras. 24-27.
3. 317-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142.
4. 417-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142
5. 5As set out by the American Medical Association guide, 4th and 6th editions.