Amina Abukar v. Aviva General Insurance, 2020 CanLII 72514

Amina Abukar v. Aviva General Insurance

Citation: Amina Abukar vs. Aviva General Insurance, 2020 ONLAT 19-008052/AABS

Released Date: 09/21/2020

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:

Amina Abukar

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Amina Abukar, Applicant Nivedita Misra, Counsel

For the Respondent: Kelvin Brown, Counsel

Heard by way of written submissions: In Writing

OVERVIEW

1The applicant was involved in an automobile accident on April 26, 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”).

2The parties participated in a case conference and were unable to resolve the issues in dispute.

ISSUES

3The issues in dispute were identified and agreed to as follows:

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 receive a medical benefit in the amount of $2,565.00 for chiropractic treatment recommended by Knead Wellness in a treatment plan submitted June 27, 2017 and denied on July 25, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,995.33 for a psychological assessment recommended by Knead Wellness in a treatment plan submitted August 3, 2017 and denied on August 8, 2017?

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

RESULTS

4The applicant’s injuries are predominantly minor injuries as defined in s. 3 of the Schedule.

5The applicant is not entitled to receive a medical benefit in the amount of $2,565.00 for chiropractic treatment recommended by Knead Wellness in a treatment plan submitted June 27, 2017 and denied on July 25, 2017?

6The applicant is not entitled to receive a medical benefit in the amount of $1,995.33 for a psychological assessment recommended by Knead Wellness in a treatment plan submitted August 3, 2017 and denied on August 8, 2017?

7The applicant is not entitled to interest.

BACKGROUND

8The applicant was injured in a motor vehicle accident on April 26, 2017. On April 27, 2017, the applicant had X-Rays of the cervical and of the lumbar spine due to her complaints of breathing problems and neck pain. The X-Rays of the cervical spine showed “early degenerative changes”. The X-ray of the lumbar spine results were unremarkable.¹

9On October 27, 2017 the applicant underwent an ultrasound of her right ankle where it was noted “intermediate grade partial thickness tear”. On January 3, 2019, because the applicant was complaining of pain in both her knees and ankles, the applicant’s family doctor, Dr. M. Hack, requisitioned X-rays of her knees and ankles. The knee radiographs reflected “mild bilateral osteoarthritis and the ankle radiographs reflected “calcaneal spurring bilaterally”. ²

ANALYSIS

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 (MIG)?

10I find that the applicant’s injuries fall within the MIG for the reasons set out below.

11Section 3(2) of the Schedule describes a minor injury as one or more of a strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury. Section 18 of the Schedule limits the benefits to $3,500.00, unless a health practitioner determines and provides compelling evidence that the the insured person had a pre-existing medical condition that was documented by a health practitioner before the accident, and that will prevent the insured person from receiving maximum recovery from the minor injury if the insured person is subject to the $3,500.00.

12The onus is on the applicant to show entitlement to medical benefits in excess of the $3 500.00 limit under the MIG.³

13The applicant has pre-existing medical conditions of type 2 diabetes, hypertension, hypoglycemia and cholecystectomy. However, there is no evidence before me to show these pre-existing conditions will prevent her from recovering from her injuries.

14Dr. Jugnundan, physician, in his Insurer’s Examination (“IE”) report dated July 20, 2017, diagnosed the applicant with soft tissue injuries to her chest, neck, back, and knees.⁴ Dr. Jugnundan on July 25 ,2017, in a Paper Review Report opined that the applicant suffered from predominantly minor injuries as defined in the Schedule.⁵

15There is no medical evidence from the applicant showing that she sustained other than minor injuries. The evidence of the X-rays and ultra sound do not relate those issues examined as being caused by the accident.

16The applicant has provided no medical evidence that she has chronic pain, even though she claims to have chronic pain.

17Chronic pain can be a sequelae of soft tissue injuries.⁶ In order to be removed from the MIG on the basis of chronic pain requires the applicant to prove that her chronic pain is not merely a sequelae of the soft tissue injuries, but that it is the applicant’s predominant injury.⁷ A diagnosis of chronic pain without any discussions of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that chronic pain is more than a sequelae.⁸

18There has been no medical evidence put before the Tribunal as to any discussion of the level of the applicant’s pain, its effect on the applicant’s function or whether the pain is bearable without treatment. In addition, 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.

19The applicant has failed to produce medical evidence required to meet the test of chronic pain to take the injuries out of the MIG.

Is the applicant entitled to receive a medical benefit in the amount of $2,565.00 for chiropractic treatment recommended by Knead Wellness in a treatment plan submitted June 27, 2017 and denied on July 25, 2017?

20I find that the applicant is not entitled to receive a medical benefit for chiropractic treament for the reasons set out below.

21Section 15 of the Schedule requires all medical and rehabilitation expenses to be paid by an insurer, if they are reasonable and necessary.

22In 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.^{9 10} The treatment plan must identify goals that are reasonable; the goals are being met to a reasonable degree and the overcall cost (not just financial but also investment of time, etc.) of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.¹¹

23Section 15 of the Schedule requires all expenses to be incurred, except where section 3(8) applies.

24The applicant has not set out any submissions relating to the treatment goals, whether they are being met, or the costs of the plans considering the success of this treatment or whether the expense has been incurred.

25Dr. Jugnundan in his report dated July 20, 2017 noted that the applicant had been attending chiropractic treatment sessions twice weekly, since a few days post-accident, but the therapy only helped the applicant on a temporary basis for a day or two.

26I find therefore, if the expense has not been incurred and there are no submissions made under section 3(8) do not need to go to the next step to see whether the benefits asked for, are reasonable and necessary.

27In the alternative, even looking at the benefit claimed, based on the evidence, I find that the treatment plan proposed, is not reasonable and necessary.

Is the applicant entitled to receive a medical benefit in the amount of $1,995.33 for a psychological assessment recommended by Knead Wellness in a treatment plan submitted August 3, 2017 and denied on August 8, 2017?

28I find that the applicant is not entitled to receive a medical benefit for a psychological assessment for the reasons set out below.

29The applicant has not provided any medical evidence of a psychological diagnosis or impairment.

30Dr. F Salerno, psychologist, on an IE, assessed the applicant and determined that no DAM-5 diagnosis was warranted, and that the applicant had no ongoing accident related psychological impairment.¹²

31Paragraphs [23], [24], and [26] also apply to the claim for this benefit.

INTEREST

32As no benefits are owing, there is no interest owing.

CONCLUSION

33For the reasons set out above, the application is dismissed.

Released: September 21, 2020

_____________________________

Robert Watt

Adjudicator

Footnotes

1. 1Applicant’s submissions Tab 2 Dr. Hack Clinical notes and records.
2. 2Dr. Hack’s Clinical Notes and Records entry dated January 3 and 10, 2019 Tab 3.
3. 3Scarlett v. Belair Insurance 2015 ONSC 3635.
4. 4Respondent’s submissions Tab G.
5. 5Ibid Tab H.
6. 6B.U. v. Aviva 2015 CanLII 96167(Ont Lat) Tab 9.
7. 7LJ v. TD Insurance 2018 CanLII 13142(ONT LAT) Tab 10.
8. 8YXY v. The Personal 2017 CanLII 59515 (ONT LAT) Tab 11.
9. 9Tab 30 D.J. v Aviva Insurance Canada 2016 CanLII 93136 (ON LAT) at para 34-36.
10. 10Tab 31 A.K. v. Aviva Canada 2017 CanLII 93460 (ON LAT) at para 16-18.
11. 1116---1732 v Wawanesa Mutual Insurance Company, 2017 CanLII 81594 (ONT LAT) at para 21 Tab R.
12. 12Tab N p11.