Citation: D.M.V. v. Aviva General Insurance, 2020 ONLAT 19-001024/AABS

Released Date: 11/23/2020

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:

D.M.V.

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Sareena Samra

Counsel

For the Respondent:

Leanne Zabudsky

Counsel

HEARD By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1D.M.V. (“applicant”) was involved in an automobile accident on February 6, 2017 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Aviva General Insurance (“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 paid benefits to the $3,500.00 funding limit and denied other benefits. The respondent stopped paying income replacement benefit (“IRB”) to the applicant effective January 2, 2017 when it determined her ineligible.

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

ISSUES

4The issues to be decided are:

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

ii. Is the applicant entitled to an IRB in the weekly amount of $307.13 for the period from January 2, 2018 to August 15, 2018, 2018, submitted on February 13, 2017, denied on January 2, 2018?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,858.33 for chiropractic treatment recommended by VIP Heath Care Clinic, in a treatment plan (OCF-18) submitted on August 25, 2017 and denied on April 26, 2018?

iv. Is the applicant entitled to the expense of medication in the amount of $91.52, submitted on March 9, 2017, denied on June 26, 2017?

v. Is the applicant entitled to the expense of medication in the amount of $76.74, submitted on April 18, 2017, denied on June 26, 2017?

vi. Is the applicant entitled to the expense of medication in the amount of $166.56, submitted on May 9, 2017, denied on June 26, 2017?

vii. Is the applicant entitled to the expense of medication in the amount of $156.29, submitted on November 15, 2017, denied on March 7, 2018?

viii. Is the applicant entitled to the expense of medication in the amount of $84.77, submitted on January 31, 2018, denied on March 7, 2018?

ix. Is the applicant entitled to the expense of medication in the amount of $123.22, submitted on April 12, 2018, denied on April 19, 2018?

x. Is the applicant entitled to the expense of medication in the amount of $116.33, submitted on June 22, 2018, denied on August 1, 2018?

xi. Is the applicant entitled to the expense of medication in the amount of $47.18, submitted on December 11, 2018, denied on January 29, 2019?³

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

RESULT

5I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the MIG limit has been exhausted, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan. I find that the applicant is not entitled to an IRB in the amount of $307.13 per week, or in any other amount, for the period in dispute. I find that the applicant is not entitled to the medication expenses in any amount for any of the periods in dispute. No interest is payable.

LAW

6The 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.

7To 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.

8The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

9An 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? After 104 weeks post-accident the test for eligibility for IRB changes.

10The onus is on the applicant to establish entitlement to IRB on a balance of probabilities.

11Section 15 of the Schedule provides that, subject to s. 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident for certain services and medication.

12The onus is on the applicant to establish entitlement on a balance of probabilities.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

13The applicant submits that her injuries are not minor and that she suffers from chronic pain and psychological sequelae has a “severe and prolonged injury” as a result of the accident and requires further treatment taking her outside the MIG.

14I 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 was taken by ambulance to Humber River Hospital, where she complained of neck, back and chest pain. She was released with pain medication. On February 11, 2017, the applicant saw Dr. Lau, her family physician, who noted that she complained about her right neck, right arm, low back and chest pain and recommended heat and physiotherapy. On February 24, 2017, Dr. Lau noted that the applicant complained of pain in her right neck, right arm and low back “less with physiotherapy”, and recommended heat and ice. Dr. Lau deferred x-ray. On March 23, 2017, the applicant saw Dr. Lau who noted “less ache pains now on r neck r arm and low bk. Have rx and physio”. The applicant saw Dr. Lau several more times from April to September 2017 and did not complain of accident-related injuries or pain.

15In the March 1, 2017 OCF-3, Disability Certificate, Dr. Policastro, the applicant’s chiropractor, describes her injuries as whiplash associated disorder [WAD3] with complaints of neck pain with neurological signs, sprain and strain of lumbar spine, superficial injury of thorax and myalgia injury, multiple sites.

16Although the applicant’s new chiropractor, Dr. Lam, described the presence of neck pain with neurological signs, as well as lumbar disc disorders with radiculopathy in an August 25, 2017 OCF-18 treatment plan, I give this little weight because Dr. Lam cannot medically diagnose and there is no medical diagnosis from Dr. Lau or any other physician supporting Dr. Lam’s view.

17There 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 submits that she suffers from chronic pain and psychological injury that removes her from the MIG.

Does the applicant have chronic pain and psychological injury as a result of the accident?

18I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain and psychological injury justifying treatment beyond the MIG.

19The applicant submits that she has continued to report her limitations as a result of the injuries she suffered in the accident and relies on various medical records including those of Dr. Lau and Dr. Lam to take her out of the MIG.

20Although there is some reference to right neck, right arm and low back pain in the notes of Dr. Lau, these do not continue after March 2017. There is no evidence that Dr. Lau referred the applicant to a specialist for further investigation of chronic pain arising from the accident. There is no diagnosis of chronic pain from any physician.

21The chiropractic comments of Dr. Lam in the disputed treatment plan do not constitute a medical diagnosis of chronic pain and are not supported by any other records of Dr. Lam or any physician. The disputed treatment plan, without supporting medical evidence, is insufficient to establish chronic pain resulting from the accident.

22The applicant submits that Dr. Lau referred her for a psychological assessment and therapy due to an anxiety disorder following the accident. Dr. Lau’s March 12, 2019 referral states “dx: anxiety disorder nyd”. There is no explanation from Dr. Lau as to whether this constitutes a diagnosis and the term “nyd” raises doubt as to whether anxiety disorder has yet been diagnosed particularly when considered with the request for “psychologic assessment…” This referral is not addressed to any specific physician, psychologist or other mental health professional, is made more than two years after the accident, contains vague, unspecific and unexplained language and does not connect any anxiety the applicant is experiencing to the accident. For these reasons, I give this referral little weight and find that it is insufficient to establish a psychological impairment resulting from the accident on a balance of probabilities. Further, there is no evidence before me that the applicant attended any psychological assessment or therapy or was diagnosed with a psychological injury resulting from the accident. None of the applicant’s other records filed are sufficient to establish that she suffers psychological injury resulting from the accident.

23The applicant relies on several cases in support of the proposition that where chronic pain is proven to exist or where there is a documented pre-existing issue affecting recovery the MIG does not apply.⁵ The applicant also submits that the respondent failed to reassess the claim as new information became available from doctors, assessors and treatment providers and relies on the Arruda⁶ case to support her argument. None of those cases are binding on me. Furthermore, in this case there has been no chronic pain or psychological sequelae arising from the accident established. I find there is no evidence to establish that the respondent has failed to reassess the claim as new information became available.

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

Is the Applicant Entitled to IRB in the amount of $307.13 per week from January 2, 2018 to August 15, 2018?

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

25The applicant says she stopped working after the accident because of the injuries she sustained. The applicant received IRB until January 2, 2018 when the respondent determined her to be ineligible. The applicant claims from that date to August 15, 2018, a period less than 104 weeks post-accident.

26The applicant submits that the essential tasks of her employment involved prolonged periods of standing, upper body and hand co-ordination as well as concentration and focus but has failed to file sufficient proof of the essential tasks of her employment. Her employer’s OCF-2 dated March 1, 2017, confirms that the applicant was a production line packer but contains no information at all under the heading “Essential Tasks of Job”.

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

27Further, I find that the applicant is not eligible for IRB based on a lack of medical evidence establishing she has substantial inability to complete the essential tasks of her pre-accident employment.

28The applicant relies on the March 1, 2017 disability certificate of Dr. Policastro in which he states that the applicant is substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident and states the applicant cannot return to work on modified hours and/or duties. However, Dr. Policastro gives no explanation in the disability certificate for either of these statements other than to describe the applicant’s injuries, which are minor. Further, Dr. Policastro states that the anticipated duration of the applicant’s disability is 9-12 weeks. This period of time expired some months before January 2, 2018, the date on which the applicant’s ongoing entitlement to IRB was ended by the respondent.

29Dr. Lau did not restrict the applicant’s ability to work after the accident. However, Dr. Lam’s comments in the disputed treatment plan are insufficient to establish entitlement to IRB without more support.

30Although the applicant submits that she “has not returned to work”, Dr. Lau’s records suggest that the applicant had returned to work by January 27, 2018 at which time he noted “work more stress”. Dr. Lau’s November 29, 2018 and May 24, 2019 records for the applicant also refer to her working.

31Dr. Lau’s March 12, 2019 referral to psychological assessment and therapy is not persuasive evidence of the applicant’s substantial inability to complete the essential tasks of her employment. Dr. Lau does not refer to the applicant’s inability to work or to the accident in his referral. Further, March 12, 2019 is after the end of the period for which the applicant claims IRB.

32Dr. Lau has not opined that the applicant suffers a substantial inability to complete the essential tasks of her pre-accident employment nor has any other physician. Taken as a whole, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for IRB. Even if there may be some tasks of her 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 her pre-accident employment. The onus of proof is on the applicant and I find that she has failed to meet it.

33The applicant also submits that the applicant’s physical and psychological injuries prevent her from maintaining employment in a competitive workforce and that her past work experience qualifies her for only production line work and relies on another decision⁷. Here, the applicant submitted no medical evidence in support of this claim nor any evidence as to the applicant’s education, training, past work experience or qualifications. Further, the evidence before me establishes that the applicant has returned to work. The decision cited is not binding on me and I decline to follow it. There is no evidentiary basis here put forward by the applicant to support such an argument.

Is the Applicant Entitled to $1,858.33 for Chiropractic Treatment?

34Having found that the applicant’s injuries fall within the MIG and given that the respondent has funded the full limits of the MIG, it is not necessary to decide the reasonableness and necessity of this disputed treatment plan.

Is the Applicant Entitled to the Medication Expenses Claimed?

35I find that the applicant has failed to establish that these expenses are reasonable and necessary as a result of injuries she sustained in the accident.

36It is clear from the records of Dr. Lau that the applicant was seeking treatment from Dr. Lau after the accident for a variety of non-accident related conditions and medication was being prescribed for other conditions such as blood pressure. For example, on February 11, 2017 when the applicant first saw Dr. Lau after the accident, Dr. Lau’s note shows only heat and physiotherapy prescribed but does reference continuing blood pressure medication prescription. On February 24, 2017 Dr. Lau notes “rx rpt for pain” without noting the name of the medicine and discusses the applicant’s new blood pressure prescription. On March 23, 2017 Dr. Lau does not appear to prescribe medication for accident-related injuries but does review new blood pressure medication with the applicant. Although the applicant saw Dr. Lau several more times from April to September 2017, she did not complain of accident-related injuries or pain and does not appear to have been prescribed pain medication for them by Dr. Lau according to his records.

37The onus is on the applicant to establish that these expenses are reasonable and necessary as a result of her accident-related injuries. This is necessary, especially as in this case, where there are medical consultations for non-accident related medical issues in the same time frame as accident-related injuries. Although the applicant submits that “Dr. Lau prescribed courses of medication to address the applicant’s injuries”, the applicant has failed to establish by evidence which, if any, of the medications, prescription or otherwise, are accident-related. This is the applicant’s onus and she has failed to meet it.

Interest

38As no benefits are payable, no interest is payable.

ORDER

39For 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. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan. I find that the applicant is not entitled to an IRB in the amount of $307.13 per week, or in any other amount, for the period in dispute. I find that the applicant is not entitled to the medication expenses in any amount for any of the periods in dispute. No interest is payable. The applicant’s claim is dismissed.

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 medication expenses claimed by the applicant in issues iv through xi are collectively referred to as “medication expenses”.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
5. 5Ali and Ferozuddin and Certas Direct Insurance Company, FSCO A13-002459; A13-002460, 2015-03-23; 17-007300, C.G. v. The Guarantee Company of North America 2020, CanLII 40333 (ON LAT).
6. 6Arruda and Western Assurance Company, FSCO A13-003926, 2015-07-27.
7. 7Burgess v. Pembridge, FSCO A11-001160, 2013-06-14.