Citation: Henry vs. Aviva General Insurance, 2020 ONLAT 19-007521/AABS

Released Date: 10/27/2020

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:

Leosha Henry

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Kathryn McRae Hill, Paralegal

For the Respondent:

Mohamed Hashim, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, (“L.M.”) is a 24-year-old woman who was involved in an automobile accident on March 23, 2018, when, as she was passing through an intersection, her vehicle was struck on the driver’s side by a vehicle attempting a left turn. The force of the collision caused L.H.’s right knee to hit the dashboard of her vehicle.

2Later that day, L.H. attended a hospital emergency department complaining of headaches and pain in her neck, back, and right knee. She underwent an x-ray, had her knee wrapped and was given an intramuscular injection of Toradol, an anti-inflammatory drug, for pain. She was then discharged for follow up with her family physician.

3L.H. sought benefits from the respondent, (“Aviva”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ Aviva paid benefits in accordance with the Minor Injury Guideline (“MIG”)² which limits funding for medical and rehabilitation benefits to $3,500.00. L.H. claimed claimed benefits in excess of this monetary limit which Aviva denied.

4L.H. then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES TO BE DECIDED

5I am to decide the following issues:

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 MIG?

ii. Is the applicant entitled to a medical benefit in the amount of $1,289.02 for physiotherapy treatment recommended by Revive Health Centres Inc. in a treatment plan (OCF-18) submitted on August 11, 2018 and denied on September 8, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,000.71 for physiotherapy treatment recommended by Revive Health Centres Inc. in a treatment plan (OCF-18) submitted on November 12, 2018 and denied on November 26, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $3,641.09 for psychological treatment recommended by Novo Medical Services in a treatment plan (OCF-18) submitted on March 26, 2019 and denied on April 9, 2019?

v. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a chronic pain assessment recommended by Novo Medical Services in a treatment plan (OCF-18) submitted on December 4, 2018 and denied on January 25, 2019?

vi. Is the applicant entitled to a cost of examination in the amount of $2,090.00 for a social work assessment recommended by Novo Medical Services in a treatment plan (OCF-18) submitted on April 29, 2018 and denied on April 30, 2019?

vii. Is the applicant entitled to a cost of examination in the amount of $1,995.33 for a psychological assessment recommended by Novo Medical Services in a treatment plan (OCF-18) submitted on December 20, 2018 and denied on January 18, 2019?

viii. Is the applicant entitled to a cost of examination in the amount of $1,643.70 for a driver re-integration assessment recommended by Novo Medical Services in a treatment plan (OCF-18) submitted on May 3, 2019 and denied on June 9, 2019?

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

RESULT

6The evidence shows that L.H. sustained predominantly minor injuries as defined in s. 3 of the Schedule. As such, the treatment of her injuries is subject to the MIG. The funding available to L.H. under the MIG has been exhausted. As a result, she is not entitled to payment for the disputed benefits. Since no benefits are owing, no interest is payable.

ANALYSIS

7To be eligible for the benefits claimed in this application, L.H. must demonstrate that her accident-related injuries were not predominantly minor. Section 3(1) of the Schedule defines a “minor injury” 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.”³ If I determine that L.H.’s injuries are minor injuries, her treatment will be subject to the $3,500.00 funding limit for medical and rehabilitation benefits pursuant to s. 18 of the Schedule.

8L.H. submits that she is entitled to the treatment plans in dispute because she had pre-existing conditions that would affect her recovery and ongoing chronic pain and psychological issues as a result of the accident. She submits that the disputed treatment plans are reasonable and necessary.

9Aviva submits that L.H.’s injuries are minor injuries subject to treatment within the MIG. It submits that L.H. has failed to adduce evidence of injuries arising from the accident that warrant further treatment.

10L.H. bears the onus of establishing that her injuries are not predominantly minor and fall outside the treatment limit in the MIG.⁴

11As follows, I find on a balance of probabilities that L.H. sustained predominantly minor injuries as a result of the accident, injuries that are subject to the $3,500.00 funding limit in the MIG. That funding has been exhausted and it is unnecessary for me to consider whether the disputed treatment and assessment plans are reasonable and necessary.

L.H.’s pre-existing conditions do not warrant removal from the MIG

12On the day of the accident, L.H. was given an x-ray in the emergency department that showed an unfused apophysis in the superior lateral portion of her patella.⁵

13Two weeks later, on April 5, 2018, L.H. was assessed by Dr. Justin Hodgins, an orthopedic surgeon. Dr. Hodgins determined that L.H.’s had likely sustained a bone bruise or contusion as a result of the accident, and that her bipartite patella was a “red herring,” concluding, “I do believe she has had this for the rest of her life.”⁶ Dr. Hodgins observed L.H. limping but found no swelling at the site of injury. L.H.’s range of motion was normal. Dr. Hodgins recommended physical therapy, occasional anti-inflammatories and ice. He anticipated L.H.’s symptoms would likely resolve and return to baseline in four to six weeks.

14On April 18, 2019, L.H. visited her family physician, Dr. Tom Bacher. She did not disclose the accident at that visit. She did so three months after the accident, on June 28, 2018, when she again visited Dr. Bacher. He diagnosed her accident-related injuries as lumbar facet irritation and a mild right knee contusion.⁷

15Dr. Bacher saw L.H. again on August 2, 2018. At that visit, he referred L.H. to a physiatrist for an assessment of her neck and lower back pain symptoms. L.H. did not see Dr. Ko until March 2020, and the records of that consultation are not in evidence before me.

16On March 16, 2020, L.H. was seen by Dr. Jennifer Gordon, Physical Medicine and Rehabilitation Specialist. Dr. Gordon conducted a postural exam that showed no gross abnormalities. L.H.’s gait was normal. Upon examining L.H.’s spine, Dr. Gordon observed some pain and guarding and 25-30% reduced range of motion on forward flexion. L.H.’s range of motion in the hips and knees was normal. Dr. Gordon concluded that L.H.’s pain was likely myofascial in nature.⁸

17Upon review of the medical evidence, I conclude that L.H. sustained minor, soft tissue injuries as a result of the accident. To justify removal from the MIG under s. 18(2) of the Schedule, an insured person must provide compelling evidence of a pre-existing medical condition that will prevent them from achieving maximal recovery if subject to the MIG limit.

18L.H. has made no submissions and has presented no evidence as to how her pre-existing condition, a bipartite patella, satisfies this requirement. L.H.’s medical records note pre-existing gynecological diagnoses as well, but I am left with no submissions as to whether, or how, these conditions prevent her recovery from her accident-related injuries.

L.H.’s pain and psychological symptoms do not warrant removal from the MIG

19L.H. submits that the evidence shows she suffers from ongoing chronic pain and psychological issues as a result of the accident. The jurisprudence of this Tribunal establishes that chronic pain and psychological symptoms may be grounds for removal from the MIG if an applicant can demonstrate that these symptoms are more than mere clinically associated sequelae (or clinically associated consequences) of otherwise minor injuries.

20L.H. bears the onus of demonstrating, on a balance of probabilities, that her pain and psychological complaints warrant removal from the MIG. As I will explain, she has not demonstrated this to be the case.

21At the time of the accident, L.H. was 21 years old, living with her young son in a basement apartment while studying full-time at community college. Two weeks after the accident, L.H. returned to school. She graduated six months later, in September 2018, with a “90-93% average.”⁹

22L.H.’s employment history is limited. However, as a component of her studies, she completed a full-time work placement during the summer following the accident. That placement ended in September 2018. In April 2019, L.H. secured a temporary position as a receptionist, working 32 hours a week. By September 2019, she had received notice that this contract was ending. At times when she has been unemployed, L.H. has relied on Ontario Works for income.¹⁰

23L.H. directs me to consider the following expert reports in support of her position:

i. Psychological Report of Dr. Romeo Vitelli, Psychologist, dated February 28, 2019: Dr. Vitelli diagnosed L.H. with Generalized Anxiety Disorder, Major Depressive Disorder, and Specific Phobia – Situational Type – Vehicular, and opined that she is at risk for developing Somatic Symptom Disorder;

ii. Driver Reintegration Evaluation of Ms. Maya Quinsey, Psychotherapist (under the supervision of Dr. Ilya Gladshteyn, Psychologist), dated September 9, 2019: Ms. Quinsey reported that L.H. endorsed anxiety symptoms in the severe range;

iii. Biopsychosocial Assessment of Ms. Nazila Isgandarova Psychotherapist and Social Worker, dated September 4, 2019: Ms. Isgandarova opined, “it sounds like [L.H.] is still in the early stages of her recovery; she will likely require further treatment before any improvement occurs […] It deems [sic] that Ms. Henry’s losses can be permanent and devastating, and she may never recover psychosocially, emotionally, and physically without an appropriate professional, comprehensive intervention rendered;”¹¹

iv. Orthopedic Surgery Assessment Report of Dr. Tajedin Getahun, dated September 25, 2019: Dr. Getahun opined, “Ms. Henrey’s [sic] injuries have resulted in loss of competitive advantage in the workforce”; her injuries are not in the MIG and are consistent with the development of chronic pain syndrome; these factors preclude L.H. from achieving maximal medical recovery within the MIG. ¹²

24Aviva relies on two Section 44 Insurer’s Examination (IE) reports: a Physiatry Assessment conducted by Dr. Julie Millard on September 21, 2018 and a Psychological Assessment conducted by Dr. Terra Seon on September 25, 2018. Both reports are dated October 10, 2018:

i. Dr. Millard concluded that L.H. sustained a soft tissue musculoligamentous sprain injury to her cervical and lumbar spine as well as sprain/strain injury to her right knee. L.H. also developed post-traumatic headaches, though she reported taking over-the-counter Tylenol and Advil daily for more than three months, and medication overuse may be contributing to the headaches;

ii. Dr. Seon concluded that L.H. had emotional difficulties following the accident, but her presentation is not of the magnitude to warrant a psychological diagnosis in relation to the accident. Her psychological difficulties do not impair her functioning.

25I have carefully reviewed and considered the various clinical assessments. First, I conclude that there is almost no evidence in support of a chronic pain syndrome diagnosis or chronic pain symptoms warranting removal from the MIG. Dr. Getahun does not directly diagnose L.H. with chronic pain syndrome but opines that her symptoms are “consistent with the development of chronic pain syndrome” (emphasis added).¹³ This is not a conclusive diagnosis. Beyond noting L.H.’s difficulty with prolonged sitting, he does not substantiate his opinion that she has lost competitive advantage in the workforce. He further opines that L.H.’s injuries preclude her from achieving maximal medical recovery within the MIG. This does not assist me, as being precluded from maximum recovery relates to the legal threshold for removal from the MIG due to a pre-existing condition, as discussed above.

26Throughout the reports before me, I find references to L.H.’s pain complaints. I do not doubt that she experiences pain. However, the evidence establishes that despite ‘constant’ discomfort, L.H. resumed many of her pre-accident daily activities soon after the accident, including full-time study, household chores, childcare, full-time employment and driving. L.H. clearly exhibited resilience in the face of lingering pain. However, I see no evidence of lasting pain-related impairment related to the accident. I cannot conclude, for example, that L.H.’s struggle with intermittent employment is in any way related to the accident. L.H. has made no submissions to this effect. In fact, she has made almost no submissions on this issue at all, other than to recite the contents of the medical reports. Based on the evidence, I find that L.H.’s pain complaints are the clinically associated sequelae of her minor injuries.

27The clinical notes and records of L.H.’s family physician, Dr. Bacher, indicate that her soft tissue injuries had largely resolved within a matter of weeks. In finding that L.H.’s accident-related pain complaints were no more than the clinically associated sequelae of her minor injuries, I place significant weight on Dr. Hodgins’ orthopedic surgery consultation report. This OHIP-covered consultation was conducted two weeks after the accident. The report and its recommendations confirm the minor nature of L.H.’s injuries.

28As to L.H.’s psychological concerns, I defer to the opinion of Dr. Seon. I cannot conclude on the evidence before me that L.H.’s emotional and psychosocial difficulties warrant diagnosis and intervention beyond the MIG limit as a direct result of the accident. Ms. Quinsey’s report offers no new conclusions and is of little evidentiary value. I give limited weight to the opinions of Ms. Isgandarova, because they contradict clear evidence of L.H.’s psychosocial functioning. Within months of the accident, L.H. had completed a full-time work placement and graduated from community college with a ‘90-93% average’. She continued to independently care for herself and her young child. These facts simply do not accord with Ms. Isgandarova’s finding that L.H. suffered “permanent and devastating” losses as a result of the accident from which “she may never recover psychosocially, emotionally, and physically”.¹⁴

29I do not accept the diagnoses of Dr. Vitelli. They are not corroborated in the clinical notes and records of L.H.’s family physician, which are notably silent on psychological complaints warranting psychiatric treatment or referrals. His conclusion that L.H. is “substantially unable to perform her usual pre-accident household, employment and home maintenance activities” is unsubstantiated. L.H. continued to function at a high level despite her acknowledged difficulties with diminished sleep, heightened irritability, anger and stress.

30Given L.H.’s life stressors identified in the reports before me, including sole parenting on a precarious income, it is understandable that L.H. has struggled to cope in the time since the accident. However, I must assess the evidence on a balance of probabilities to determine whether L.H.’s psychological condition is more than the expected clinical consequences of her minor accident-related injuries. For the reasons set out above, I conclude that it is not. For the treatment of L.H.’s accident-related injuries, the MIG applies.

ORDER

31As a result of the accident L.H. sustained predominantly minor, soft tissue injuries. She does not qualify for benefits in excess of the $3,500.00 funding limit in the MIG. Aviva is not liable to pay the benefits in dispute and no interest is payable.

32The application is dismissed.

Released: October 27, 2020

_______________________

Theresa McGee

Vice-Chair

Footnotes

1. 1Ontario Regulation 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 3Schedule, s. 3(1).
4. 4Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
5. 5Applicant’s Brief, Tab B: Clinical notes and records of Scarborough Rouge Hospital.
6. 6Applicant’s Brief, Tab B: Clinical notes and records of Scarborough Rouge Hospital.
7. 7Applicant’s Brief, Tab B: Clinical notes and records of Scarborough Rouge Hospital.
8. 8Applicant’s Brief, Tab B: Clinical notes and records of Pinpoint Health.
9. 9Respondent’s Brief, Tab 26: Section 44 Psychological Assessment Report at p. 11.
10. 10Applicant’s Brief, Tab B: Dr. Gladshteyn Driver Reintegration Evaluation dated September 9, 2019.
11. 11Applicant’s Brief, Tab B: Biopsychosocial Assessment of Ms. N. Isgandarova at pp. 11-12.
12. 12Applicant’s Brief, Tab B: Orthopedic Surgery Assessment report.
13. 13Applicant’s Brief, Tab B: Orthopedic Surgery Assessment report.
14. 14Applicant’s Brief, Tab B: Biopsychosocial Assessment of Ms. N. Isgandarova at p. 12.