R.K. v. Aviva Insurance Company, 2020 CanLII 69926

R.K. v. Aviva Insurance Company, 2020 CanLII 69926

Citation: R.K. vs Aviva Insurance Company, 2020 ONLAT 19-006017/AABS

Released date: August 31, 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.K.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Sjawal Bhutta, Counsel

HEARD: In Writing

By way of written Submissions

OVERVIEW

1The applicant claims that as a result of the accident on November 8, 2017 she sustained a number of physical and psychological injuries. On the basis of those injuries, she sought accident benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant applied for medical benefits for chiropractic services and the cost of a psychological and an orthopaedic assessment, all of which were denied by the respondent on the basis that the applicant injuries are within the Minor Injury Guideline (“MIG”). The respondent further maintains the treatment plans in dispute are not reasonable and necessary.

2The applicant maintains that her injuries of chronic pain and psychological impairment remove her from the confines of the MIG. She maintains further that she is entitled to the benefits in dispute as they are reasonable and necessary.

ISSUES IN DISPUTE

3The issues are as follows:

a. Did the applicant sustain a predominantly minor injury as defined under the Minor Injury Guideline limiting her to a $3,500 cap on treatment?

b. If the applicant’s injuries are found to be outside of the Minor Injury Guideline, is the applicant entitled to the disputed medical benefits and the cost of the examinations because they are reasonable and necessary:

i. Is the applicant entitled to receive a medical benefit in the amount of $2861.72 for chiropractic treatment recommended by Dr. Rahim Jessa, Complete Rehab Centre in a treatment plan dated November 27, 2017, submitted on January 3, 2018 and denied by the respondent on January 18, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,348.05 ($1858.05 less the approved amount of $510) for chiropractic treatment recommended by Complete Rehab Centre in a treatment plan¹ submitted February 27, 2018, and denied by the respondent on March 12, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,634.35 for treatment recommended by Complete Rehab Centre in a treatment plan² dated April 30, 2018, submitted May 30, 2018, and denied by the respondent on June 12, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,410.66 for chiropractic treatment recommended by Complete Rehab Centre in a treatment plan³ dated July 17, 2018, submitted July 24, 2018, and denied by the respondent on August 20, 2018?

v. Is the applicant entitled to payment for the cost of an examination in the amount of $2680 for an orthopaedic assessment recommended by Dr. Michael West, from Complete Rehab Centre in a treatment plan⁴ dated May 14, 2018, submitted July 11, 2018, and denied by the respondent on August 10, 2018?

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,262.72 for chiropractic treatment recommended by Complete Rehab Centre in a treatment plan⁵ submitted October 22, 2018, and denied by the respondent on November 1, 2018?

vii. Is the applicant entitled to payment for the cost of an examination in the amount of $2460 for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan⁶ submitted June 11, 2018 and denied by the respondent on June 18, 2018?

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

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

RESULT

4For the reasons set out below, I find that the applicant’s impairment falls within the MIG. Based on the evidence, I find the MIG limit has been exhausted. As such, the applicant’s entitlement is limited to a maximum of $3,500 (the MIG limit) for medical benefits and the assessments. As the injuries are within MIG, it is not necessary to consider whether the medical benefits and the assessments claimed are reasonable and necessary. The claim for an award is dismissed. The claim for interest is dismissed.

PRE-HEARING MOTION AND MOTION DECISION

5The respondent brought a motion dated May 26, 2020 objecting to the applicant’s reply submissions. The respondent seeks an order excluding the applicant’s reply submissions dated March 20, 2020 (the notice identifies paragraphs 2, 4 to 6, 10 to 16, 17, 18 and 19 to 22) on the basis that the applicant in these paragraphs submits new arguments and caselaw not set out in her written hearing submissions and is a reformulation of her arguments, both of which are not allowed. It requests an order that the reply submissions be struck from the record as the applicant is “splitting a case” contrary to the Court of Appeal decision in Alcock, Laight & Westwood Ltd. v. Patten affirmed by the Supreme Court of Canada in R. v. Krause.⁷ The respondent refers to the principle as stated by Adjudicator Punyarthi in the Tribunal decision of L.B. Economical,⁸ the right of reply is limited; new evidence is not permitted because the respondent does not have the opportunity to respond. The applicant contests these allegations as set out in her responding materials dated June 9, 2020 and requests costs in the amount of $500. At the motion, an order was issued on consent that the matter be heard by the hearing adjudicator.

6Based on a review of the motion materials and submissions, I order that the reply be struck from the record. The arguments raised by the applicant in her reply raises new arguments, case law and reformulates her position. For example, arguments on the application of sections 38(8) and 38(10) were not advanced by the applicant in her initial written submissions. In addition, the arguments on chronic pain are reformulated in paragraphs 20 and 22 of the reply. The applicant’s claim for costs is dismissed.

PRELIMINARY ISSUE

7In its written submissions, the respondent raises a preliminary issue and seeks an order excluding the clinical notes of the family doctor found at tabs N, O and P of the applicant’s written submissions on the basis that these documents were not served on the respondent at any time prior to the hearing contrary to Rule 9.2 of the Tribunal Rules of Practice and Procedure. The respondent raises prejudice if this evidence is allowed. It argues it has not been provided an opportunity to asses the evidence prior to the hearing.⁹ The applicant disputes these allegations. She states the medical records from her family doctor were submitted on August 2018 and October 2019.¹⁰

8I do not agree that the documents were served on the respondent as suggested. The medical records at Tab O are dated November 4, 2019 and the records at Tab P are dated January 29, 2020. It is not possible to have served these in August 2018 or October 2019. The same applies for the documents at Tab N as these are notes from 2019 and it is not possible to have served them in August 2018. The records from Tab O and P are excluded from evidence. With respect to the notes at Tab N, a letter dated October 3, 2019 was attached to the reply and it indicated notes from visits of May 16, 2019, November 25, 2018 and July 23, 2018 were attached. The notes at Tab N¹¹ however include notes with different dates being March 12, 2019, June 18, 2019, August 7, 2019 and August 20, 2019. The applicant has not presented any evidence to establish the notes at Tab N were served on the respondent. I accept the submissions of the respondent. I exclude the medical records from Tab N from the evidence.

THE LAW - THE MINOR INJURY GUIDELINE

9The main consideration in this appeal is whether the applicant’s injuries fall within the MIG.

10MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. Section 18(1) limits recovery within the MIG to $3500.

The Applicant’s Injuries

11The applicant attended at the emergency department of the Etobicoke General Hospital on the day of the collision complaining of severe neck pain, left arm pain and low back pain. She was prescribed medication and advised to follow up with her family doctor. She attended at her family doctor on November 9, 2017 with the same complaints. He noted she had tenderness and stiffness in her left shoulder. The family doctor prescribed medication and recommended physiotherapy.

12The Disability Certificate (OCF-3)¹² dated November 27, 2017 by Dr. Jessa, chiropractor, states the applicant returned to work due to financial constraints. Dr. Jessa suggested she obtain a consultation with another specialist. The evidence indicates the only other consultation the applicant obtained was with Dr. Michael West, discussed below. The OCF-3 refers to self reports by the applicant of difficulties sleeping, driver anxiety, irritability, and stated the applicant sustained a cervical sprain and a left shoulder strain. It also refers to a left knee injury, TMJ and an injury to the abdomen. The hospital records and family doctor notes (at least until the note dated June 5, 2019) make no reference to a knee or abdomen injury or TMJ from the accident. The OCF-3 also states the applicant did not sustain any inability to carry on the activities of a normal life and that the disability was expected to be from 9 to 12 weeks.

13The applicant relies on the records of his family doctor from 2017¹³, 2018 and 2019 to support her ongoing complaints of pain to the neck and left shoulder. The notes support these complaints. She is diagnosed with cervical and left shoulder strain as a result of the accident. However, references to lower and upper back strain in these notes are not consistent. The notes of December 1 and 6, 2018, for example, refer only to cervical strain and the doctor continued to prescribe medication and physiotherapy.¹⁴

14An X-Ray dated December 7, 2018 of the neck was normal.¹⁵

15The clinical notes and records from Complete Rehab Centre¹⁶ document ongoing treatment throughout 2017, 2018 and up to April 2019 for ongoing pain in the upper and lower back and neck. They also refer to headaches, sleep problems and stress. She received massage and acupuncture treatment.

Did the applicant sustain a psychological impairment to remove her from MIG?

16The applicant submits that her injuries are not minor, since, as a result of the accident, she suffered a psychological impairment which takes her out of the MIG.

17No evidence was presented by the applicant to support a claim of a psychological impairment sustained by the applicant from the accident. The applicant refers to the family doctor notes to support her position. A review of these notes indicates there is no reference to a psychological impairment. The applicant refers to the OCF-3 completed by a chiropractor. The chiropractor refers to anxiety and sleep issues, but this does not amount to a psychological impairment. A chiropractor also is not qualified to opine on psychological injuries. There is also no psychological diagnosis to support the claim.

18The applicant also refers to the report of Dr. West, orthopaedic surgeon, discussed below, to support the claim of a psychological impairment. Dr. West is an orthopaedic surgeon and he acknowledges in his report that this type of diagnosis is beyond his medical specialty. I find he lacks the medical qualifications to opine on psychological issues arising from the accident.

19As a result of the above, I find the applicant’s injuries are not out of the MIG on the basis of a psychological impairment.

Chronic Pain

20The applicant submits the medical evidence establishes the applicant suffers from chronic pain which takes her out of the MIG.

21I note the family doctor makes no reference to chronic pain syndrome in his clinical notes. Neither does the OCF-3. The notes of the family doctor refer to ongoing pain but that is not sufficient to establish chronic pain.

22A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain. In this appeal, however, there is a diagnosis of chronic pain. On July 21, 2018, Dr. Michael West, an orthopaedic surgeon, examined the applicant. He stated in his report there were no signs of physical distress. The applicant sat comfortably. She seemed depressed. She reported ongoing back pain, neck and left shoulder pain. He diagnosed the applicant with left shoulder strain, myofascial strain, cervical strain, headaches, insomnia, post traumatic anxiety and stress with depressive episodes, post traumatic insomnia and fatigue and chronic pain syndrome.¹⁷ He indicated the applicant had developed concurrent psychological and emotional issues from the accident. The applicant relies of the report of Dr. West to support her chronic pain diagnosis to take her out of the MIG.

23The respondent questions Dr. West’s diagnosis of chronic pain and submits the report should be given little weight.¹⁸ It relies on the Tribunal decision of 16-000438 v. The Personal Insurance Company¹⁹ where the adjudicator held that an applicant to be removed from MIG on the basis of chronic pain must prove on a balance of probabilities that her “chronic pain is more than just a sequelae or a symptom arising from her minor injuries.” …“it must be chronic pain syndrome or continuous … and it must be of a “severity that it causes suffering and distress accompanied by functional impairment or disability”.²⁰ I agree with the respondent that little to no evidence was presented of a functional impairment.²¹ One of the treatment plans refers to the applicant’s impact on repetitive activity, specifically that she experiences some difficulty bending and twisting.²² The family doctor records do not outline any functional impairment. The OCF-3 indicated the opposite; there was no impact on the applicant’s activities of daily living. The notes from Complete Rehab also do not identify or explain any functional impairment. The applicant maintains that the injuries impacted all facets of her normal life including the emotional, physical and cognitive sphere,²³ but no evidence is presented to support that. As outlined by the respondent, the applicant has returned to work, and she has resumed driving and shopping. Dr. West, in his report, states the applicant cannot do gardening, travel and watch TV as she used to. I find that this is not rise to the level of functional impairment required to establish chronic pain. Based on the totality of the evidence, I find that there is not sufficient evidence that the pain the applicant states she is experiencing causes suffering and distress accompanied by functional impairment or disability.

24The respondent also objects to the diagnosis based on the American Medical Association (the AMA) criteria²⁴ to diagnose chronic pain. The AMA has stated that three of the six criteria must be met in order to find there is a chronic pain diagnosis. The six criteria include:

a. Use of prescription drugs beyond the recommended duration and or abuse of 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 contracts,

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, and,

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

25It argues that, even if one accepted the AMA criteria, the applicant did not present evidence or arguments that she met three of the stated criteria. As stated above, the applicant returned to work one week after the accident, she has resumed driving and shopping and, with the help of her daughter, has resumed performing housekeeping duties. I find that if one accepted the AMA criteria, the applicant does not meet three of the stated criteria.

26I also note that Dr. West was not provided the family doctor clinical notes for review. This, I find, limits the weight to be assigned to his report. The applicant also indicates the family doctor notes refer to “chronic” pain injections. The notes only indicate that she received injections.

27The respondent relies on its section 44 insurer examination (“IE”) orthopaedic assessment by Dr. Jacqueline Auguste dated February 27, 2018²⁵ which concluded the applicant suffered only soft tissue injuries as a result of the accident. The respondent submits that the applicant has been diagnosed with only soft tissue injuries as a result of the accident and has returned to a functional level that makes a diagnosis of chronic pain untenable. Dr. Auguste’s examination showed that the applicant had normal range of motion. Her injuries fell within the MIG. There were only a cervical and lumbar spine strain with no compelling evidence of musculoligamentous or neurological impairments. The applicant questions the report and its value and claims the respondent improperly denied the treatment plans as it relied solely on Dr. Auguste’s report. I find it was entitled to rely on the report of its IE assessor. No other argument was advanced by the applicant to discredit her report and I make no such finding.

28With respect to Dr. West’s diagnoses that the applicant has sustained post traumatic anxiety and stress with depressive episodes and post traumatic insomnia and fatigue, I find that Dr. West’s medical specialty as an orthopaedic surgeon does not qualify him to diagnose the applicant with these conditions. As a result, I give his report little weight.

29I find based on the totality of the evidence that the applicant did not suffer a chronic pain impairment to take her out of the MIG. Her injuries are within MIG.

Are the Treatment Plans Reasonable and Necessary?

30As I have determined the applicant’s injuries fall within the MIG, it is not necessary to determine of the treatment plans are reasonable and necessary.

An Award under Ontario Regulation 664 (O/Reg 664)

31The applicant claims an award under Section 10 of Ontario Regulation 664 that states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.

32As there are no amounts owing, there is no basis to find an insurer has unreasonably withheld or delayed payments. The claim for an award is dismissed.

Interest

32Since I found no benefits are payable, the applicant is not entitled to interest.

CONCLUSION

33For the reasons outlined, I find that the applicant’s injuries are predominately minor injuries. Based on the evidence, I find MIG limits have been exhausted. As I find the injuries are within MIG, it is not necessary to consider whether the medical benefits and the assessments claimed are reasonable and necessary. The claim for an award is dismissed. The claim for interest is dismissed.

Released: August 31, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1Although the index of the applicant’s submissions refers to the OCF-18, the treatment plan was not submitted into evidence by the applicant or the respondent.
2. 2Although the index of the applicant’s submissions refers to the OCF-18, the treatment plan was not submitted into evidence by the applicant or the respondent.
3. 3Although the index of the applicant’s submissions refers to the OCF-18, only one page of the treatment plan was submitted into evidence by the applicant.
4. 4Although the index of the applicant’s submissions refers to the OCF-18, the treatment plan was not submitted into evidence by the applicant or the respondent.
5. 5Although the index of the applicant’s submissions refers to the OCF-18, the treatment plan was not submitted into evidence by the applicant or the respondent.
6. 6Although the index of the applicant’s submissions refers to the OCF-18, the treatment plan was not submitted into evidence by the applicant or the respondent.
7. 7Notice of Motion, paragraph 3, Alcock, Laight & Westwood Ltd. v. Patten, 1966 CanLII 282 (ON CA), [1966] O.J. No. 1067, paragraph 8 and R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, motion materials of the respondent.
8. 8L.B. v Economical, LAT (2019) 18-001471, motion materials of the respondent.
9. 9Written submissions of the respondent, paragraphs 5, 6 and 7.
10. 10Written response of the applicant to the notice of motion, paragraph 2.
11. 11The notes are listed in the index and paragraph 11 of the applicant’s written submissions.
12. 12Disability certificate dated November 27, 2017, written submissions of the applicant, tab F.
13. 13Written submissions of the applicant, paragraphs 7, 8, 9 and 11.
14. 14Clinical Notes of the family doctor, tab L.
15. 15Written submissions of the applicant, tab M.
16. 16Clinical Notes and Records of Complete Rehab Center, tab G of the applicant’s written submissions.
17. 17Chronic Pain Assessment Report of Dr. Michael West, orthopaedic Surgeon, dated July 22, 2018, tab Q, written submissions of the applicant.
18. 18Written submissions of the respondent, paragraph 14.
19. 1916-000438 v. The Personal Insurance Company, LAT (2017), written submissions of the respondent, Tab 4.
20. 2016-000438 v. The Personal Insurance Company, LAT (2017), written submissions of the respondent, Tab 4, paragraph 29.
21. 21Written submission of the respondent, paragraphs 14 and 15.
22. 22OCF-18 in the amount of $2861.72, by Dr. Jessa.
23. 23Written submissions of the applicant, paragraph 18.
24. 24Written submissions of the respondent, paragraph 16 which sets out the six criteria to be met under the AMA.
25. 25Orthopaedic assessment by Dr. Jacqueline Auguste dated February 27, 2018, written submissions of the respondent, paragraph 11, tab 3.