Girgis v. Aviva General Insurance, 2021 CanLII 19486

Licence Appeal Tribunal

Citation: Girgis v. Aviva General Insurance, 2021 ONLAT 19-008458/AABS
Released Date: 02/18/2021

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:

Mariam Lamei Girgis
Applicant

and

Aviva General Insurance
Respondent

DECISION

ADJUDICATOR:
Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant:
Savannah V. Chorney, Counsel

For the Respondent:
Kimberley J. Tye, Counsel

HEARD:
Via written submissions

OVERVIEW

1The applicant was injured in an accident on January 8, 2017, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva paid benefits up to the $3,500.00 limit prescribed by the Minor Injury Guideline (“MIG”) but denied the benefits in dispute based on its determination that the applicant’s injuries were predominantly minor injuries, subject to treatment within the MIG. The applicant argues that she suffers from chronic pain and psychological impairments as a result of the accident that warrant removal from the MIG. She submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues remain in dispute:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the MIG?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,977.05 for physiotherapy treatment, recommended by Mackenzie Medical in a treatment plan dated May 11, 2017, and denied by the respondent on July 19, 2017?

c. Is the applicant entitled to receive a medical benefit in the amount of $4,463.83 for psychological treatment, recommended by Dr. N. Sharma in a treatment plan dated October 15, 2017, and denied by the respondent on October 27, 2017?

d. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Verity Medical Assessments in a treatment plan dated October 7, 2017, and denied by the respondent on November 8, 2017?

e. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, interest, an award or costs are payable.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with s. 3(1). An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that an applicant may be removed form the MIG if they can demonstrate that chronic pain or psychological conditions cause functional impairment that necessitates treatment beyond the limit. In all cases, the burden of proof lies with the applicant to demonstrate that their accident-related impairments justify removal from the MIG on a balance of probabilities.

5The applicant submits that she has developed psychological impairments and chronic pain syndrome as a result of the accident that warrant removal from the MIG. To this end, she directs the Tribunal to the excerpted clinical notes of her family physician, Dr. Awad, her treatment records from Mackenzie Medical, an OCF-18 for psychological assessment based on a screening interview by Dr. Sharma and an orthopaedic assessment by Dr. Ogilvie-Harris. In response, Aviva asserts that from a physical perspective, the applicant sustained soft-tissue injuries and has not demonstrated that her pain causes functional impairment. From a psychological perspective, Aviva submits that there is insufficient evidence to suggest that a psychological condition resulted from the accident. In turn, Aviva submits that the applicant has failed to meet her burden to prove that her accident-related impairments are outside of the MIG and relies on the s. 44 report of Dr. Weisleder.

6With great respect to the applicant, I agree with Aviva that there is limited evidence that the applicant sustained psychological impairments as a result of the accident that would justify removal from the MIG on this basis. I agree with Aviva that on review of Dr. Awad’s notes, there are no reports of any psychological issues arising from the accident, including anxiety, depression or emotional distress. Further, I agree that at no point post-accident has Dr. Awad diagnosed the applicant with any psychological impairment warranting a psychological assessment or treatment or made a referral to investigate same. In a similar vein, during the June 2017 assessment, Dr. Weisleder did not find make any findings or referrals related to potential psychological impairment. The treatment notes from Mackenzie Medical also do not refer to any psychological or emotional complaints.

7The evidence on which the applicant does rely is, in my view, unpersuasive evidence of a psychological condition as a result of the accident. It comes in the form of an OCF-18 recommending a psychological assessment in which Dr. Sharma’s results from a “brief” screening interview are contained in the additional comments section. Dr. Sharma characterizes the applicant’s psychological condition as “extreme emotional distress” but does not offer a diagnosis despite listing many of her complaints. Problematically, as above, I find these complaints are not echoed elsewhere in the documentation, and are particularly absent from Dr. Awad’s notes, which it does not appear were reviewed by Dr. Sharma.

8In any case, I disagree with the applicant that an opinion from an admittedly “brief” pre-screen interview appended to an OCF-18 constitutes sufficient evidence of an accident-related psychological impairment warranting removal from the MIG. I find this is especially so given the complete dearth of evidence to support the pre-screening findings of “extreme emotion distress”, as there are no corroborating or contemporaneous complaints from Dr. Awad’s notes, and it appears that the pre-screen was not prompted by a recommendation from an independent practitioner with knowledge of the applicant’s file. Accordingly, I find that the applicant has not demonstrated that removal from the MIG on psychological grounds is warranted.

9Turning to her physical injuries, while the applicant did not reference her Disability Certificate in her submissions, I find there is limited indication in the medical evidence that her physical injuries as a result of the accident are not predominantly minor, as defined by s. 3(1). There is no indication that the applicant sustained a tear or fracture or anything other than soft-tissue injuries based on the diagnostic imaging reports. The clinical notes and records of her family physician are sparse excerpts and, as Aviva submits, only reference pain from the accident four times in the nearly four-year period post-accident. While I am alive to the applicant’s subjective reports of pain, I do not find that they can be characterized as “consistent” complaints of pain over time, as alleged. Indeed, after her follow up visit to Dr. Awad in February 2017, there are no complaints until November 2018, and then only a single entry in April 2019, with no complaints thereafter. In my view, while the applicant may have experienced pain following the accident, her complaints to an objective medical professional like Dr. Awad are not particularly voluminous or significant in duration where it would be evident that her pain is causing functional impairment.

10Yet, the applicant asserts that her chronic pain diagnosis warrants removal from the MIG. She relies on an orthopedic report of Dr. Ogilvie-Harris from November 2017, where it was determined that, while the applicant sustained soft-tissue injuries, she has gone on to “develop features of chronic pain syndrome” since Dr. Weisleder’s assessment five months earlier that found her within the MIG due to soft-tissue injuries. Based on the applicant’s reporting, her file and a physical examination, Dr. Ogilvie-Harris recommended a comprehensive pain management program to treat her pain. While the parties disagreed in submissions over how many hours of work the applicant was completing, how to interpret her testing scores as evidence of her true function and whether Dr. Ogilvie-Harris specifically considered the AMA Guides² in his determination, I ultimately find on balance that the applicant has not met her burden to prove that her chronic pain warrants removal from the MIG.

11As noted, there are only two complaints of pain to Dr. Awad in the three years following Dr. Ogilvie-Harris’ diagnosis of chronic pain syndrome and it is unclear if the applicant ever sought the comprehensive pain management program recommended in the report. In a similar vein, I agree with Aviva that there is limited evidence that the applicant has functional impairment as a result of her pain, as she had returned to work by May 2017, six months before Dr. Ogilvie-Harris’ diagnosis, and there is no indication from the applicant that her ability to work or her social and family life have been hindered since. Her claim for an income replacement benefit, which Dr. Ogilvie-Harris’ report seems to be speaking to, was withdrawn.

12Further, I find it difficult to reconcile Dr. Ogilvie-Harris’ functional analysis with the limited information and analysis to support his findings. For example: it is unclear why the applicant is only able to go to church “occasionally” as opposed to once per week while also having the ability to work as a server; her report that she was unable to go to the gym 2-3 times a week is inconsistent with her report to Dr. Awad that she is exercising 30+ minutes per day in November 2018; the report does not address how pain limits her home activities to 5-10 minutes of light work but she is capable of working 20-22 hours per week as a server with no mention of workplace modifications?

13While I find the six AMA Guides criteria to only be assistive to my analysis and not authoritative³, I do not find that the applicant has demonstrated how these criteria would be assistive to her claim either. The AMA Guides identify six criteria as “major” characteristics of chronic pain syndrome, with three being required: the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on health care providers, spouse, or family; secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

14With respect, I find limited evidence the applicant meets three of the six criteria. The applicant has only submitted two prescription summaries, neither of which include any prescriptions filled after the date of the accident, so I do not find it can be said that she is dependent on prescription drugs for her pain. As noted above, the applicant has made limited complaints to Dr. Awad post-accident and there is no evidence that the she is dependent on her spouse or family for her needs. The applicant returned to work by May 2017 and while she may have reduced her hours, I do not find this to be evidence of deconditioning or fear-avoidance or that her work is affected to date. There is no indication her family dynamic or supports have been affected as a result of her pain. There is no indication in the clinical notes and records of the Dr. Awad that the applicant has difficulty pursuing her work, family or recreational needs and the note dated November 27, 2018 states that she is currently exercising 30+ minutes every day, an increase to her pre-accident status of 2-3 times per week as per Dr. Ogilvie-Harris’ report. Last, as detailed above, the applicant has never complained about anxiety, fear, avoidance or depression to Dr. Awad or her providers since the accident, so I do not find evidence of psycho-social sequelae.

15On balance, and for these reasons, I find that the applicant has not demonstrated that her accident-related pain causes functional impairment that warrants removal from the MIG.

Are the treatment and assessment plans reasonable and necessary?

16Having determined that the applicant’s accident-related impairments are treatable within the MIG, it is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 15 is not required.

17As no benefits are owing, it follows that no interest is payable under s. 51.

Award and Costs

18The applicant seeks her costs and claims an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding and delaying the payment of her benefits and for keeping her within the MIG. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments. Under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, the Tribunal may award costs where a party has acted unreasonably, frivolously, vexatiously or in bad faith.

19As no benefits are overdue and the applicant was unsuccessful on her claims, I find an award and costs are not appropriate.

CONCLUSION

20The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, interest, an award or costs are payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2American Medical Association’s “Guides to the Evaluation of Permanent Impairment”, 6th Ed.
3. 3See, for e.g.,T.K. v. Aviva Ins. Co., 2019 CanLII 94039 (ON LAT); 17-007825 v. Aviva Ins. Can., 2018 CanLII 98282 (ON LAT); and M.A. v. Aviva Ins. Can., 2019 CanLII 101601 (ON LAT).