Citation: Atuahene vs. Aviva Insurance Canada, 2020 ONLAT 19-009219

Released Date: 12/03/2020

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:

Emmanuel Atuahene

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Ilia Estrah, Counsel

For the Respondent:

Kasia Kosacka, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

[ 1 ] Emmanuel Atuahene (“applicant”), was involved in an automobile accident on October 21, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by Aviva Insurance Company (“respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

[ 2 ] The respondent determined 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 has already approved treatment up to the monetary limits of the MIG. The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary. The respondent also submits that the applicant’s application is statute barred for failure to attend an insurer’s examination under s. 44 of the Schedule. The applicant’s position is the opposite.

ISSUES

[ 3 ] The issues to be decided in this hearing are:

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 a medical benefit in the amount of $3,090.00 for chiropractic treatment recommended by in a treatment plan (OCF-18) submitted on February 6, 2018 and denied on by the respondent on February 20, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $2,575.12 for chiropractic services recommended in a treatment plan submitted on June 30, 2018 and denied by the respondent on July 17, 2018?

iv. Is the applicant entitled to an examination expense, in the amount of $2,000.00 for a psychological assessment, recommended in a treatment plan (OCF-18) submitted on June 18, 2018, and denied by the respondent on August 31, 2018?

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

vi. Is the applicant barred from proceeding with his claim for medical benefits ii and iii as listed above as he failed to submit to an insurer’s examination under s. 44 of the Schedule?

RESULT

[ 4 ] The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been approved by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans and issue vi. No interest is owed.

LAW

The Minor Injury Guideline

[ 5 ] The 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.

[ 6 ] To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

[ 7 ] The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

[ 8 ] As the applicant can only be successful on the issues in dispute if he can prove that his injuries caused by the accident are not minor, I will determine that issue first.

ANALYSIS

Did the applicant have a pre-existing medical condition that would remove him from the MIG?

[ 9 ] I find there is no compelling medical evidence, documented pre-accident that establishes the applicant should not be subject to the MIG because of his pre-existing back pain or that this condition prevents maximal recovery within the funding limits of the MIG.

[ 10 ] The applicant submits that he reported back pain to Dr. Nizran, his family physician, on May 28 and October 8, 2015 and it was noted as tenderness in the lower back muscles. Post-accident, the applicant reported his pain as severe and the frequency in reporting to Dr. Nizran significantly increased. The applicant also submits that prior to the accident he was able to play sports and be employed but post-accident was prevented from doing both.

[ 11 ] There are only two notes of pre-accident back pain both of which were diagnosed as mechanical back pain. On May 28, 2015, Dr. Nizran records that the applicant lifted a heavy object at work, noted “tenderness over right lumbar area” and diagnosed mechanical back pain. Dr. Nizran “explained proper posture” to the applicant and noted “no radiation, no deformity of spine, able to walk on tiptoe and heels.” No further investigation was recommended by Dr. Nizran. On October 8, 2015, the applicant complained of pain on left side of lower back for two weeks. “Mild tenderness along lat margin L spine” was noted. Mechanical back pain was diagnosed and “no radiation to legs, no deformity of spine, able to walk on tiptoe and heels” noted. The notes record “symptomatic treatments, red flags explained”. No further investigation was recommended. These two complaints of back pain, one on the right and one on the left side, are the only evidence put forward of his alleged pre-existing medical condition.

[ 12 ] The applicant did not point to any post-accident record of Dr. Nizran indicating that the applicant’s pre-existing back pain is a barrier to recovery or expressing any concerns regarding his healing. As a result, I find that the applicant has not brought forward sufficient medical evidence that he had pre-existing medical condition, back pain, that will prevent him from achieving maximal recovery within the MIG.

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

[ 13 ] I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG.

[ 14 ] The applicant submits that his medical records, including those of Dr. Nizran, and Drs. Agyemang and Pivtoran and to the respondent’s assessors take him out of the MIG. The applicant’s medical evidence does not support his submissions.

[ 15 ] The applicant did not seek medical attention at the time of the accident. The first post-accident visit to Dr. Nizran was December 2, 2016. At that time Dr. Nizran noted the accident, that the applicant is in school and felt pain, his work is affected, and he went to a walk-in clinic three times for pain. Although Dr. Nizran notes the applicant’s complaints of pain on this date and in his records discussed below, Dr. Nizran at no time diagnoses chronic pain and does not arrange for investigation of chronic pain by any specialist.

[ 16 ] To the contrary, on January 3, 2017 Dr. Nizran notes that the applicant says his pain is improved, he is planning to return to work soon and denies any current flareup. Dr. Nizran advises the applicant to consider returning to work as he has “significant improvement”. On March 13, 2017, Dr. Nizran notes that the applicant plays soccer again, but when he started jogging, his low back pain occurred. The March 2017 result of imaging of the applicant’s lumbar spine with obliques was normal. Dr. Nizran’s June 6, 2018 note records that the applicant is playing soccer but complains of back pain and “noted severe pain”. Dr. Nizran does not opine that this pain is caused by the accident.

[ 17 ] Dr. Nizran in his December 28, 2016 OCF-3, disability certificate, indicates cervical, lumbar and elbow strain consistent with his clinical records but does not indicate chronic pain. Dr. Pivtoran in his June 14, 2018 OCF-3, disability certificate, indicates that the applicant has chronic pain as a result of the accident. However, as a chiropractor, Dr. Pivtoran cannot diagnose. The applicant also complained of pain to Dr. Agyemang, applicant’s chiropractor. However, as a chiropractor, Dr. Agyemang cannot diagnose.

[ 18 ] The applicant also submits that he meets three of the six criteria in the AMA guidelines for chronic pain that the Tribunal has relied on before⁴ and that another adjudicator found chronic pain despite the applicant not being diagnosed with chronic pain syndrome.⁵ I disagree that the applicant’s evidence demonstrates that he meets any of the criteria sometimes used to establish a diagnosis of chronic pain syndrome.⁶

[ 19 ] With respect to the AMA criteria, the applicant’s evidence does not establish that he has used or abused prescribed medication. There is no evidence of excessive dependence on health care providers given some nine visits to his family physician over a two-year period. There is no evidence of secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain except the uncorroborated self-reporting of the applicant. There is insufficient evidence of social withdrawal or failure to restore pre-injury function such that the applicant cannot pursue work, family or recreational needs given that the applicant continued in school, sometimes played sports and was able to continue with his usual family relations. There is also insufficient evidence of development of psychosocial sequelae given that there is no medical diagnosis of anxiety or depression by his treating doctor and no referral for specialized medical treatment was made by Dr. Nizran.

[ 20 ] With respect to the S.W. case, it is not binding on me. More importantly, the adjudicator in that case determined that the evidence before him was sufficient to establish chronic pain syndrome. Here, I do not.

[ 21 ] The applicant’s reporting of pain is not continuous. The applicant’s pain is not debilitating as he has continued to attend school, to play soccer at times, and was advised by Dr. Nizran to consider a return to work. Dr. Nizran noted on June 7, 2018 that the applicant was doing Uber and driving his mother to work.

[ 22 ] Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Does the applicant have psychological impairment as a result of the accident?

[ 23 ] I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment as a result of the accident justifying treatment beyond the MIG.

[ 24 ] The applicant submits that his psychological impairment as a result of the accident should remove him from the MIG. The applicant relies on records of Dr. Nizran and the pre-screen interview of Dr. Shaul, his psychologist which he submits is consistent with his reporting to Dr. Nizran and testing completed. The evidence of Dr. Nizran does not support this.

[ 25 ] On January 3, 2017 Dr. Nizran noted that the applicant has “no other issues”. On March 13, 2017 the applicant complained to Dr. Nizran that “past 3 weeks he says he cant sleep” and noted “?sleep issues-Hysteria? – discussed plan – relaxation technique”. Dr. Nizran does not link this to the accident.

[ 26 ] The applicant complained to Dr. Nizran on June 7, 2018 that he thinks there is something wrong with him, he forgets things easily, he is scared that he keeps forgetting, says he tends to think too much, maybe this is causing headaches, says he is easily annoyed and angered and is “unable to sleep takes his mom to work at 5am”. At this time the applicant completed a GAD-7 form for Dr. Nizran. Dr. Nizran did not, as the applicant suggests, make a diagnosis but instead noted “mixed anxiety and depressive symptoms” and “counselling supportive listening”. There is no diagnosis of psychological impairment from Dr. Nizran and no referral to a medical specialist. Further, Dr. Nizran does not link these psychological symptoms to the accident. Still further, in the evidence before me, there is no indication that the applicant saw Dr. Nizran or any other physician about these symptoms again.

[ 27 ] Dr. Pivtoran in his June 14, 2018 disability certificate indicates that the applicant has “behaviour- symptoms and signs involving emotional state and nonorganic sleep disorders” as a result of the accident. However, as a chiropractor, Dr. Pivtoran cannot diagnose psychological issues.

[ 28 ] Dr. Shaul, applicant’s psychologist, did a psychological pre-screen interview on June 7, 2018. At that time the applicant reported ongoing headaches, pain in his neck, shoulders, elbow and back, sleep difficulties, fatigue, irritability and frustration due to constant pain and inability to do the things he used to do, anger at how his relationship deteriorated since the accident, worry about the impact of his pain on future functioning, decline in concentration and memory, reduced ability to focus and maintain his train of thought. Dr. Shaul’s opinion is insufficient to establish that the applicant suffered psychological injury as a result of the accident. In the pre-screen interview Dr. Shaul does not diagnose any psychological injury to the applicant as a result of the accident but instead opines only that “it is imperative to further asses and evaluate Mr. Atuahene’s current psychological status….to fully understand the impact…” of the accident.

[ 29 ] I prefer the evidence of the respondent’s psychologist Dr. Ratti because he assessed the applicant in August 2018 specifically with respect to the MIG, conducted testing, did an approximately two-hour clinical interview with the applicant and reviewed numerous medical records including Dr. Shaul’s June 18, 2018 OCF-18, treatment plan for a psychological assessment. Dr. Ratti opined that the applicant did not sustain a psychological impairment from the accident and there are no psychological concerns that would place him outside the MIG. This opinion corroborates Dr. Nizran’s view that the applicant does not have any psychological impairment that requires anything beyond supportive listening.

[ 30 ] The applicant relies on a case in which another adjudicator found a claimant’s injuries to be outside the MIG based on psychological symptomology alone.⁷ With respect to the 17-005791 case, it is not binding on me. More importantly, the adjudicator in that case determined that the evidence before him was sufficient to establish psychological issues. Here, I do not. The principle that psychological injury from an accident can remove an applicant from the MIG, subject to proof of same, is not in dispute here. Here, the applicant’s proof is insufficient to establish psychological injury resulting from the accident.

[ 31 ] Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from psychological impairment as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant, and he has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

[ 32 ] Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the chiropractic treatment plan and cost of examination in dispute are reasonable and necessary.

Is the Applicant Barred from Proceeding with his issue ii and iii claims?

[ 33 ] Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the applicant is barred from proceeding with his claim for chiropractic medical benefits in issues ii and iii for failure to submit to an insurer’s examination under s. 44 of the Schedule.

Interest

[ 34 ] As no benefits are payable, no interest is payable.

ORDER

[ 35 ] For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been approved by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans and issue vi. No interest is owed. The applicant’s claim is dismissed.

Released: 12/03/2020

_______________________

Avril A. Farlam

Vice Chair

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4A.V. v. Certas Home and Auto Insurance Company (ON LAT).
5. 5S.W. v. Aviva General Insurance, 2020 CarswellOnt, 6885 (ON LAT).
6. 617-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT), para 6.
7. 717-005791 v. Aviva Insurance Company, 2018 CarswellOnt 19848, para 19, 20.