Daniel Christie v. Aviva Insurance Canada, 2021 CanLII 13193

Citation: Christie vs. Aviva Insurance Canada, 2021 ONLAT 19-009562/AABS

Released: January 18, 2021

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:

Daniel Christie

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

For the Respondent:

Michael McChesney, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on February 11, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

3The issues to be decided in the hearing are:

1. Is the applicant entitled to $11,134.76 for a chronic pain program, recommended by Polyclinic Rehabilitation in a treatment plan submitted on April 24, 2018, and denied on July 5, 2018?

2. Is the applicant entitled to $1,175.00 for chiropractic treatment, recommended by Bloor Avenue Chiropractic in a treatment plan (OCF-18) submitted on November 14, 2018, and denied on December 14, 2018?

3. Is the applicant entitled to $1,553.72 for massage therapy treatment, recommended by Massage Matters in a treatment plan (OCF-18) submitted on February 3, 2019 and denied on February 8, 2019?

4. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

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

RESULTS

4The applicant is not entitled to the chronic pain program.

5The applicant is not entitled to $1,175.00 for chiropractic treatment.

6The applicant is not entitled to $1,553.72 for massage therapy.

7The applicant is not entitled to an award.

8The applicant is not entitled to interest.

BACKGROUND

9The applicant was involved in a rear-end motor vehicle accident on February 11, 2016. The applicant did not go to the hospital and the damages were minimal to the car ($712.40). Emergency services did not attend at the accident and the applicant drove away from the accident on his own. The applicant was suffering from chronic pain before the accident and had been off work since January 5, 2016. He returned to work one month after the accident and is presently working.

10A few days after the accident, the applicant attended Infinity Health Centre complaining of neck pain, limited range of motion, headaches and back pain. He saw Dr. R. Awan, physiatrist, who diagnosed the applicant with decreased neck extension range of motion (50%), decreased shoulder bilaterally, decreased lumbar extension range of motion, degenerative disc disease and degenerative joint disease.¹

11An MRI taken on March 21, 2017 showed slight overgrowth of the uncovertebral joint on the right C4/5, along with a mild foraminal narrowing. At C5/6, a small osteochondral bar projected to the right. At the C6/7, the MRI showed an overgrowth of the uncovertebral joint on the right with moderate foraminal narrowing.² These results were the same as the MRI taken on April 15, 2015.

12The applicant thereafter saw Dr. K. Rod, a chronic pain specialist who diagnosed the applicant with: chronic pain syndrome, chronic cervicogenic headaches, chronic cervical zygapophyseal joint pain, chronic left shoulder pain, chronic left arm sprain/strain, chronic left elbow pain/strain, chronic upper back pain-cervical sprain, chronic mid back pain.³

13In February 2019, the applicant saw Dr. L Picard, a neurologist, who noted that he had a slowly progressive cognitive impairment, especially with respect to short term memory.⁴ The applicant has consistently undergone chiropractic, physiotherapy and message therapy.

Pre-accident history

14The applicant has an extensive pre-accident medical history. In 1990, he sustained a concussion in a prior motor vehicle accident. In 1992, he sustained another concussion after falling out of a moving vehicle. In 1992, he also suffered a partial tear of his right Achilles tendon. In 1997, he suffered a left shoulder dislocation and in 1999 he suffered a left elbow dislocation.⁵

15In 2004 and in 2005, the applicant was involved in two accidents where he reported that at the time of the accident at issue, he had only recovered 20% from the previous accidents.⁶ On April 15, 2015, the applicant went for imaging of his cervical spine due to his complaining of chronic pain. The imaging revealed intervertebral osteochondrosis, mild to moderate osteoarthrosis of the uncovertebral joints and right foraminal stenosis.⁷

16The applicant visited his family doctor, Dr. A. Cho, on January 4, 2016 regarding his neck pain. Dr. Cho noted that the applicant had been experiencing neck pain for over 10 years despite receiving chiropractic treatment on a weekly basis and had not sustained any improvement.^8,9

17The applicant visited Dr. Awan on January 20, 2016 who found cervical myofascial pain, degenerative disc disease, degenerative joint disease cervicogenic headaches and rotator cuff weakness with scapulothoracic dyskinesis and trapezial hiking. Dr. Awan examined the applicant again on January 24, 2017 and made the same comments. There were no notes in the records of Dr. Awan that the applicant’s symptoms had been exacerbated by the accident.¹⁰

18The applicant attended at Synergy Rehab on June 24, 2016 and reported that he had started practicing yoga, working out at the gym using dumbbells and battle ropes.¹¹ The notes from Athlete’s Care sports Medicine Centre dated April 5, 2017 suggest that the applicant had been hiking, playing basketball and swimming.¹² The notes from Athlete’s Care Medicine Centre dated September 11, 2017, indicate that the applicant was playing basketball, hiking and going to the gym doing lunges and squats.¹³

19In June 2018, Dr. Tepperman, general practitioner, assessed the applicant’s neck flexion as 90%, extension 90%, rotation as 100% and lateral flexion bilaterally as 80%. This showed that the issues of functioning of the neck improved from 50% cervical spine range of motion from Dr. Awan’s reports in 2016 and 2017.¹⁴ Dr. Tepperman prepared a section 44 paper review, dated November 30, 2018, where he concluded that there was no substantial evidence of musculoskeletal impairment or neurological impairment as a result of the accident. The applicant had reached maximum medical recovery and there was no indication for institutionally based therapy.¹⁵

ANALYSIS

CAUSATION

20The first issue is whether the applicant’s injuries claimed resulted from the February 11, 2016 accident. Section 3 of the Schedule requires the impairment to be caused by the use or operation of an automobile. The applicant must show, on a balance of probabilities, that he would not have suffered his injuries “but for” the accident.¹⁶

21The accident that the applicant was involved in on February 11, 2016 was a very minor accident. Very little damage was done to the car and the applicant was not required to attend for medical assistance. His medical complaints after the accident at issue were the same as his pre-accident medical complaints.

22I find it is clear from the medical evidence that the applicant had the same medical issues pre-accident, as he had post-accident. The applicant admitted after the accident in 2016, that he had recovered only 20% from his previous accidents.

23There has been no breakdown before me by the applicant of the medical history pre-accident and post-accident to show what, if any, medical issues, were exacerbated and/or caused by the accident at issue. As it is the applicant’s burden to demonstrate that his impairments are a direct result of the subject accident, I find he has not met that burden.

24I therefore find that the injuries pre-accident were the same post-accident and that the accident did not exacerbate the pre-accident injuries. In my view, Dr. Awan’s reports of January 2016 and January 24, 2017 confirm this finding.

25On the causation ground alone, the applicant’s application is dismissed. I will, however, address the other issues as well.

Is the applicant entitled to $11,134.76 for a chronic pain program, recommended by Polyclinic Rehabilitation in a treatment plan submitted on April 24, 2018 and denied on July 5, 2018?

26Section 15 of the Schedule requires all medical benefits to be reasonable and necessary in order to be payable.

27Part 9 of this treatment plan indicates that the goals are pain reduction, increased strength, increased range of motion and a return to activities of normal living. Since the plan was submitted, I find the applicant has returned to work, attends yoga, goes to the gym, plays tennis and basketball, and was also hiking. The medical records also show that his pain has been reduced.

28Since the applicant is now doing more physical activities and is also able to do them, I find the goals of the treatment plan have been mostly accomplished.

29I find it is also unclear as to what medical issues the treatment plan is addressing, the applicant’s pre-accident issues or post-accident issues? I find the treatment plan is not clear and the applicant’s submissions do not provide analysis to meet his burden of proof.

30I find therefore that this plan is not necessary and reasonable.

Is the applicant entitled to $1,175.00 for chiropractic treatment recommended by Bloor Avenue Chiropractic in a treatment plan (OCF-18) submitted on November 14, 2018, and denied on December 14, 2018?

31The goals under Part 9 of this treatment plan are pain reduction, increased strength, increased range of motion and a return to activities of normal living. I find that my comments under paragraphs [28] and [29], above, also apply to this plan, as the applicant is now doing more physical activities and is also able to do them, I find the goals of the treatment plan have been mostly accomplished

32In his report dated November 30, 2018, Dr. Tepperman indicated that the applicant has reached maximum medical recovery and did not recommend institutionally based therapy.

33On the evidence, I see no reason to interfere with Dr. Tepperman’s opinion and I find therefore that this plan is not necessary and reasonable.

Is the applicant entitled to $1,553.72 for massage therapy treatment recommended by Massage Matters in a treatment plan (OCF-18) submitted on February 3, 2019 and denied on February 8, 2019?

34The goals under Part 9 of this treatment plan are pain reduction, increased strength, increased range of motion and a return to activities of normal living. Again, I echo my comments made under paragraphs [28], [29], above, as I find they also apply to this plan, as the applicant is now doing more physical activities and is also able to do them without restriction, I find the goals of the treatment plan have been mostly accomplished

35Further, in his report, Dr. Tepperman indicated that the applicant has reached maximum medical recovery and did not recommend institutionally based therapy.

36Again, on the evidence, I find no reason to interfere with the opinion of Dr. Tepperman. I find therefore that this plan is not necessary and reasonable.

Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

37I find that there is no evidence before me that the respondent unreasonably withheld or delayed the payment of benefits. Further, as no benefits are overdue, it follows that the Tribunal cannot grant an award.

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

38There are no benefits owing so the applicant is not entitled to any interest.

CONCLUSION

39For the reasons set out above, the application is dismissed.

Footnotes

1. 1Clinical Records and Notes of Dr. Awan, Tab 3 submissions of the applicant.
2. 2Ibid.
3. 3Chronic Pain report Dr. K. Rod, Tab 4 of the applicant’s submissions.
4. 4Clinical Notes and Records of Dr. L. Picard, Tab 5 of the applicant’s submissions.
5. 5Tab E p. 4 of the respondent’s submissions.
6. 6Tab F p7. of the respondent’s submissions.
7. 7Tab G of the respondent’s submissions.
8. 8Tab H of the respondent’s submissions.
9. 9Tab 2 of applicant’s submissions, p. 7, 34.
10. 10Tab J of the respondent’s submissions.
11. 11Tab K of the applicant’s submissions.
12. 12Tab M of the applicant’s submissions.
13. 13Tab N of the applicant’s submissions.
14. 14Tab F of the applicant’s submissions
15. 15Tab r of the respondent’s submissions
16. 16Sabadash v State Farm et al 2019 ONSC,1121 Tab D of respondent’s submissions