Citation: Lone v. Aviva Insurance Canada, 2021 ONLAT 20-000775/AABS

Release date: 04/08/2021

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:

Abdullah Lone

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Tanjoyt Deol, Counsel

For the Respondent:

Vicky Chan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 21, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Aviva denied the benefits on the basis of its determination that he sustained predominantly minor injuries and was therefore subject to treatment within the Minor Injury Guideline (“MIG”) and that further treatment was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

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

ii. Is the applicant entitled to a medical benefit in the amount of $2,450.00 for psychological treatment recommended by 101 Assessment Centre in a treatment plan (OCF-18) submitted on July 8, 2019, and denied on December 11, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,907.44 for chiropractic treatment recommended by Canadian Chiropractic Walk-in Clinic in a treatment plan (OCF-18) submitted on August 7, 2018, and denied on August 15, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for other goods and services of a medical nature recommended by 101 Assessment Centre in a treatment plan (OCF-18) submitted on January 5, 2019, and denied on April 3, 2019?

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

RESULT

3The applicant has not demonstrated that he sustained accident-related impairments that justify removal from the MIG. As the limits have been exhausted, he is not entitled to payment for the OCF-18s in dispute or interest.

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 the MIG. Section 3(1) 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.” 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 chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that he should be removed from the MIG on three grounds. First, that the accident exacerbated his pre-existing jaw pain and substance abuse issues. Second, that the accident exacerbated his pre-existing psychological issues and resulted in new psychological issues in the form of depression, as diagnosed by his family physician. Third, that the physical impairments sustained in the accident have resulted in chronic pain that causes him functional impairment. To this end, he relies on an OCF-3, various hospital records, clinical notes and records from his family physician, a pre-screen interview from Integrated Psychology Centre and his post-accident prescription recommendations.

6In response, Aviva submits that the applicant sustained insignificant physical injuries as a result of the accident, which is corroborated by the dearth of family physician records in evidence linking his complaints, physical or psychological, to the accident. Further, it asserts that the applicant has not demonstrated that his alleged pre-existing conditions prevent his recovery under the MIG or that his psychological impairments are related to the accident where he has a history of substance-induced psychological conditions. Aviva also submits that there is limited evidence that the applicant suffers from chronic pain from the accident. It relies on the s. 44 reports of physiatrist Dr. Dessouki and psychologist Dr. Mor to support its position.

7I agree with Aviva. Problematically, while the applicant asserts in submissions that he meets every possible ground for removal from the MIG, it is well-settled that submissions are not medical evidence and the limited medical evidence that was provided by the applicant does not demonstrate that his accident-related impairments warrant treatment beyond the MIG. Indeed, the applicant’s submissions were heavy on caselaw but lacking in actual evidence.

8To begin, the physical injuries identified in the applicant’s OCF-3 are all sprain and strain type injuries to the cervical, thoracic and lumbar spine. The OCF-3 also identifies WAD-2 and an injury to the rotator cuff muscle, which also fall within the definition of a minor injury under s. 3(1). The remaining injuries listed are malaise and fatigue, an unspecified sleep disorder and nervousness. It is unclear how these injuries are not minor under s. 3(1) of the Schedule. The pre-screen report appended to the OCF-18 for psychological services expands the list of physical impairments allegedly sustained in the accident, however, an OCF-18 is not objective medical evidence of an impairment and, in any case, that OCF-18 was prepared by a psychologist, Dr. Waxer, so I assign it limited weight.

9Meanwhile, with regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. Here, the applicant asserts that his pre-existing diagnosis of TMJ Arthralgia from 2016 warrants removal from the MIG. While I am alive to his complaints of jaw pain, I was not directed to a medical opinion that his TMJ was exacerbated by the accident or, critically, that his TMJ would prevent maximal medical recovery if he is kept within the MIG. It appears the basis for this argument is the applicant’s own submission that “TMJ artharalgia is a very serious pre-existing condition and would affect his ability to recover within the MIG.” This does not meet the requirements of s. 18(2).

10Next, the Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain syndrome or chronic pain that causes functional impairment. Here, the applicant asserts that he has developed chronic pain syndrome due to the duration of his pain, which he submits continues to affect him several years post-accident. On review of the clinical notes, I see sporadic reports of pain to his family physician but no actual diagnosis of chronic pain syndrome, as alleged, and limited discussion of chronic pain or a referral for a chronic pain investigation that would justify removal from the MIG on this ground.

11For example, the May 13, 2019 indicates pain in the shoulder that “flares up on and off” but the physical examination revealed no swelling and normal neurovascular and power capabilities. The follow-up note from May 27, 2019 indicates that his “left shoulder pain is less”. The next notation is not until December 11, 2019, where he was assessed as having a “left shoulder strain” and warm compresses, gentle massage and physiotherapy were the only recommendations. I am alive to a notation from a phone consultation, dated August 7, 2020, that again references left shoulder pain and that the pain is “chronic and recurrent since MVA of October, 2017”, but this is not a diagnosis of chronic pain syndrome, as alleged, and there is no discussion of functional impairment or the impact the impairment is having. An ultrasound and x-ray of the shoulder were recommended, but the results of these diagnostic tests were not submitted into evidence, which leads me to believe they were unremarkable.

12In any event, where there is no diagnosis of chronic pain syndrome and where the applicant did not engage with any of the six criteria under the AMA Guides that the Tribunal has adopted as a tool for assessing chronic pain claims, I have limited evidence to find that the applicant should be removed from the MIG on the basis of chronic pain. This finding is supported by the dearth of medical evidence, the sporadic complaints to the applicant’s family physician and by the s. 44 report of Dr. Dessouki, who found active range of motion, an unremarkable neurological examination and no objective evidence of a residual, accident-related impairment that would warrant removal from the MIG. On the limited medical evidence available, I see no reason to disagree with this opinion.

13Finally, an applicant may also escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that his psychological impairment, identified as “a new diagnosis of depression” stemming from his pre-existing psychological issues, warrants removal from the MIG. In evidence is a note from October 15, 2018 that references stress and depression as a result of “issues at home” for the previous four weeks. His family physician referred him for psychotherapy, however, there is no indication that this impairment arose as a result of the accident. Indeed, Dr. Ajisebutu’s notes do not mention the accident at all.

14With respect, on the medical evidence, it appears that the applicant’s pre-accident psychological conditions were substance-induced (marijuana, cocaine, ecstasy) psychological conditions for which he was referred to William Osler Health for addiction counselling in July 2016 and again in October 2018. As Aviva submits, there is no mention of substance-induced psychological conditions post-accident in the family physician records and no mention in the other medical records that would suggest his previous substance-induced was exacerbated by the accident or would interfere with his recovery. A psychological pre-screen is appended to the OCF-18 for psychological assessment that is in dispute, but again, this OCF-18 was submitted two years post-accident and is not compelling medical evidence where there is only one notation regarding psychological issues by Dr. Ajisebutu, unrelated to the accident.

15I prefer the November 28, 2019 s. 44 report of Dr. Mor, psychologist, who conducted an in-person assessment and a variety of psychometric tests with the applicant. The evaluation revealed symptom magnification, invalid test scores and inconsistent reporting. Indeed, the applicant failed to disclose his history of substance-induced psychological conditions to Dr. Mor, who had the benefit of his medical records in conducting the assessment. Because of the invalid tests scores and inconsistent reporting, Dr. Mor opined that it produced an invalid profile and an inability to provide a psychological diagnosis as a result of the accident. On a balance of probabilities, I find the applicant has not demonstrated that he sustained an accident-related psychological impairment that justifies removal from the MIG.

16Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Are the treatment and assessment plans reasonable and necessary?

17Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable.

18However, for completion, in submissions, the applicant also asserted that Aviva’s denial notices did not meet the notice requirements under s. 38(8) and 38(9) of the Schedule, arguing that Aviva did not offer any medical reason for the denial, which should trigger the mandatory consequences of s. 38(11). I disagree.

19On review of the October 21, 2019 notice, Aviva stated that it was unable to determine whether the OCF-18 was reasonable and necessary and that a s. 44 examination was required. Further correspondence was sent on October 24, 2019 with details and medical reasons for the s. 44 examination. The applicant did not dispute the notice and participated in the s. 44 examination with Dr. Mor on November 21, 2019. Aviva then sent a denial notice on December 11, 2019, indicating that the OCF-18 was not reasonable and necessary.

20The August 15, 2018 notice states that Aviva was unable to determine whether the recommendations in the OCF-18 were reasonable and necessary, noting the MIG applied and that no compelling medical evidence had been provided to support removal from the MIG. Aviva provided a notice dated February 6, 2019 scheduling a s. 44 examination, with confirmation of the details following on February 11, 2019. Again, the applicant did not dispute these notices at the time, seemingly did not incur the OCF-18, and participated in the s. 44 examination with Dr. Dessouki. Following the examination, Aviva sent a denial letter dated April 3, 2019 stating that the OCF-18 was not reasonable and necessary.

21All of the denials cite the MIG and the fact that no compelling medical documentation had been provided, which prompted the need for s. 44 examinations. Notably, Aviva submits that the applicant did not provide his family doctor records to it until October 13, 2020, which the applicant did not dispute. Accordingly, given my finding here that there is limited medical evidence to justify removal from the MIG, I find Aviva’s insistence on scheduling s. 44 examinations to investigate the applicant’s claims in the absence of family physician records to be reasonable and in line with its rights under the Schedule. The notice letters comply with the requirements of s. 38.

ORDER

22The applicant has not demonstrated that he sustained accident-related impairments that justify removal from the MIG. As the limits have been exhausted, he is not entitled to payment for the OCF-18s in dispute or interest.

Footnotes

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