Evaristo v. Aviva Insurance Canada, 2020 CanLII 98731

Citation: Evaristo vs. Aviva Insurance Canada, 2020 ONLAT 19-007730/AABS

Released Date: 11/30/2020

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:

Erellen Evaristo

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Marc Golding, Counsel

For the Respondent:

Andrew Smith, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant, E.E., was involved in a motor vehicle accident on October 12, 2016 and sustained injuries. She sought benefits from the respondent, Aviva, for medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). Aviva denied the benefits because it concluded that E.E.’s injuries were predominately minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”). E.E. disagreed with Aviva and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

2As per the Tribunal’s Order of December 4, 2019, the parties agreed that the following issues are in dispute:

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

ii. If the applicant did not sustain a predominantly minor injury,

a. Is the applicant entitled to a medical benefit in the amount of $3,916.76 for chiropractic services recommended by New Wave Health Centre as set out in a treatment and assessment plan dated October 24, 2016 and denied by the respondent on March 6, 2017?

b. Is the applicant entitled to a medical benefit in the amount of $2,730.22 for chiropractic services recommended by New Wave Health Centre as set out in a treatment and assessment plan dated December 19, 2016 (no denial date indicated in the application)?

c. Is the applicant entitled to the cost of an examination in the amount of $2,000.00 for a psychological assessment recommended by Toronto Central Diagnostics as set out in a treatment and assessment plan dated January 6, 2017 and denied by the respondent on August 25, 2017?

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

RESULT

3E.E. has not demonstrated that her impairments warrant treatment beyond the MIG. Accordingly, E.E is not entitled to the treatment plans and no interest is payable.

ANALYSIS: Applicability of the MIG

4The onus is on E.E. to prove on a balance of probabilities that she did not suffer predominantly minor physical injuries as a result of the accident and that she should be entitled to medical and rehabilitation benefits outside of the MIG.

5The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00.

6Under Section 18(2) an applicant may receive payment for treatment beyond the limits, but she must provide compelling medical evidence from a medical practitioner of a pre-existing medical condition documented before the accident, and evidence that remaining within the confines of the MIG will prevent maximal medical recovery.

7Similarly, an applicant may provide evidence of a psychological impairment or chronic pain to escape the MIG.

8E.E. submits that based on the diagnostic images reported in a report of October 24, 2016, her injuries include moderate degenerative disc disease at C5-6 and moderate uncovertebral arthrosis at C5-6 and therefore her injuries are not “minor.” As well, E.E. submits that she suffers from pre-existing medical conditions, chronic pain and psychological impairments which warrant removal from the MIG.

9Aviva maintains that the injuries sustained by E.E. are minor and continue to be minor. Aviva notes that E.E. saw her family doctor a total of three times following the accident, with the final visit in 2017. Aviva points out that there is no diagnosis of chronic pain, that in 2017 E.E. herself states that her pain has resolved and that there is no medical opinion tendered that the degenerative disc disease or the uncovertebral arthrosis is accident related. Aviva submits that based on the medical evidence, which includes Insurer’s Examinations (“IEs”) for physiatry and psychology done pursuant to section 44 of the Schedule, that E.E. should remain in the MIG.

10I agree with Aviva. I find the evidence does not support removal from the MIG because the findings on the diagnostic imaging do not show accident related impairments but rather show degenerative changes that existed pre-accident and provides a finding of the lower spine without any information as to whether the findings to the lower spine are accident related changes or an impairment.

11Specifically, the evidence shows that following the accident, E.E. attended at New Wave Health Clinic and radiological “DICOM” images were obtained on October 24, 2016. The findings of the imaging on the cervical spine were disc disease, arthrosis, postural alterations, elongated C7 transverse process and, with respect to the lower spine, the findings were Grade 1 isthmic spondylolistheses at L5-S1 with anterior limbus bone at L5.

12In the initial assessment completed by Dr. Kerr, chiropractor, dated October 24, 2016, he noted that E.E. has pre-existing degenerative disc disease and arthrosis in the spine, and that she also has pre-existing spondylolisthesis. An ultrasound done on July 11, 2015 (pre-accident) of the neck showed degenerative disc disease, narrowing of the disc space and reversal of normal lordosis. E.E. has not provided any evidence to show that the findings of the cervical spine of October 24, 2016 differ from the findings of the earlier ultrasound of July 11, 2015. With the exception of the Grade 1 isthmic spondylolistheses at L5-S1, I find that the balance of the findings in the radiological report of October 24, 2016 are in keeping with the earlier findings of the ultrasound. In other words, the findings on the cervical spine were pre-existing findings and therefore not accident related.

13With respect to the findings of the L5-S1, E.E. has provided no medical evidence to show that the findings of L5-S1 are significant, limiting her or correspond to any subjective complaints of pain or impairment. There are no medical reports or information from E.E. that interpret the results of the findings at the L5-S1. There is no information provided to advise if the findings at the L5-S1 are accident related, degenerative, genetic etc. There simply is a report that there were findings on the imaging reported on October 24, 2016. Similarly, there are no subjective complaints to the lower back from E.E. that would allow me to make an inference that the L5-S1 is an accident related impairment. E.E. reported to her family doctor on December 14, 2016 that her lower back pain was “occasional.” To Dr. Oshidari, the physiatrist who conducted the IE on February 15, 2017, E.E reported no back pain and no limitations related to her lower back. To Dr. Schwartz, the psychologist who conducted the IE on July 21, 2017, E.E. reported no back pain and reported no limitations, no issues or anything at all related to her lower back. I find E.E. has provided no medical reports to explain, let alone show, that the findings of L5-S1 are of such a degree to warrant removal from the MIG.

14I find that E.E. has not proven that as a result of the accident she sustained anything other than predominantly minor physical injuries.

15E.E. also submits that she has pre-existing issues to her knee and neck and a pre-accident diagnosis of sleep apnea, that warrant removal from the MIG under section 18(2) of the Schedule. Aviva submits that the pre-existing injuries are not of such a nature to prevent E.E. from achieving maximal medical recovery within the MIG.

16I agree with Aviva. E.E. has provided no reports or evidence to show that her pre-existing issues with her knee, sleep or neck were affected by the accident or how keeping her in the MIG would prevent maximal medical recovery, as required by section 18(2). While I acknowledge that prior to the Accident E.E. has documented degenerative changes in her cervical spine and she was diagnosed with crepitus in her knee and sleep apnea, E.E. has not shown that the pre-existing issues to her knee, neck or sleep were effecting her pre and post-accident, nor has she demonstrated how remaining within the confines of the MIG will prevent maximal medical recovery. The mere existence of pre-existing issues is not enough under section 18(2) of the Schedule to warrant removal from the MIG.

17E.E. as well has not provided evidence that the injuries sustained, and the pain experienced following the Accident have now become chronic in nature. As noted above E.E. reported to her family doctor on December 14, 2016 that her lower back pain was “occasional.” She reported to Dr. Oshidari, on February 15, 2017, that she had “intermittent” pain to her neck, and right shoulder there are no further mention of pain. To Dr. Schwartz, the psychologist who conducted the IE on July 21, 2017, E.E. reported that she has not taken any pain medications and stated that she is pain-free. Her family doctor’s clinical notes and records make no mention of chronic pain or chronic pain syndrome.

18E.E. also submits that she sustained psychological injuries as a result of the accident. The basis for E.E.’s position seems to be her request that her family doctor sign a referral for psychological treatment, however, no notes or reports were provided as evidence to substantiate a diagnosis or referral. Further, the report of Dr. Schwartz, the IE psychologist, dated July 11, 2017, did not find any psychological injuries or diagnosis. Therefore, I find that E.E has not met her burden to prove that she sustained psychological impairments as a result of the Accident that justify removal from or treatment beyond the MIG.

19I find that E.E. has not discharged her burden to show that her injuries are not minor and that they warrant treatment outside of the MIG. I find that E.E. sustained minor physical injuries as defined in the Schedule. I also find that E.E.’s pre-existing medical conditions do not warrant treatment outside of the confines of the MIG. Lastly, I find that E.E. has not proven that as a result of the Accident she has chronic pain or that she has psychological impairments that warrant removal from the MIG.

20The parties agreed at the outset that if I find that E.E. sustained minor injuries and remains confined to the MIG I need not consider the treatment plans in dispute. As I have found that E.E remains confined to the MIG I will not undertake the analysis of the disputed treatment plans and no interest is therefore payable as no benefits are payable.

CONCLUSION

21E.E. has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As E.E.’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.