Cherri DiGiacomo v. Aviva Insurance Canada, 2021 CanLII 35580

DECISION AND ORDER

Citation: DiGiacomo v. Aviva Insurance Canada, 2021 ONLAT 20-001923/AABS

Release date: 04/29/2021

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:

Cherri DiGiacomo Applicant

and

Aviva Insurance Canada Respondent

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Victoria Yang, Counsel

For the Respondent: James M. Brown, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on September 16, 2018 and sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010¹ (the “Schedule”).

2The respondent denied the applicant’s medical and rehabilitation benefits based on its determination that the Minor Injury Guideline (“MIG”) applied to the treatment of her accident-related injuries. As noted in the case conference of September 15, 2020, the parties agree that the medical and rehabilitation benefits available under the MIG have been exhausted. The applicant then applied to the Licence Appeal Tribunal (the “Tribunal”) for the resolution of the dispute.

ISSUES TO BE DECIDED

3The issues in this hearing are as follows:

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

b. If the applicant is not found to be in the MIG, then is the applicant entitled to $823.72 for physiotherapy services, recommended by Cor Maximus in a treatment plan (OCF-18) dated March 12, 2019?

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

RESULT

4The applicant has not established that her pre-existing injuries cannot be treated with the MIG, and the applicant has not established that as a result of the accident she sustained injuries that fall outside of the Schedule’s definition of a minor injury. Therefore, the applicant is not entitled to further medical and rehabilitation benefits and the treatment plan is not considered. The applicant is also not entitled to interest as no further benefits are due and/or owing.

ANALYSIS

The MIG

5The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

6Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. As per the submissions of the parties, the applicant has exhausted the $3,500.00 available for medical and rehabilitation benefits.

7Section 18(2), however, allows for treatment outside the MIG if the applicant has a pre-existing medical condition, documented by a health practitioner before the accident and that will prevent her from achieving maximum recovery from the minor injury. Specifically, section 18(2) states:

Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.

8A psychological impairment and/or chronic pain as a result of the accident are not part of the definition of “minor injury” under the Schedule and are not subject to the confines of the MIG.

9The applicant submits that she has pre-existing medical condition that will prevent her from achieving maximal recovery from the minor injury if she is subject to the confines of the MIG. The applicant also submits she has chronic pain as a result of injuries sustained in the accident and, as chronic pain is not a minor injury as defined in the Schedule, she is not subject to the MIG.

10The onus is on the applicant to show on a balance of probabilities that her injuries do not fit within the confines of the MIG.

Does the Applicant’s pre-existing medical condition prevent maximal recovery from her accident related minor injuries?

11As per section 18(2), the applicant may escape the MIG if she has compelling evidence from her health practitioner that she has pre-existing medical conditions and that the limits in the MIG will prevent her from achieving maximal recovery from the minor injury if the insured person is subject to the MIG limits.

12The parties agree that the applicant has pre-existing medical conditions. The issue is whether the applicant has provided compelling evidence from her health practitioner that the MIG limits will prevent the applicant from achieving maximal recovery.

13The applicant submits and the evidence shows that prior to the accident the applicant had, amongst other things, chronic bladder issues, and chronic pelvic and vaginal pain and her pre-existing history of surgeries due to a defective transvaginal mesh and its after-effects from surgery to remove the mesh and surgery for a hernia. The evidence also show that she has a history of seasonal migraines², pain in her right groin that radiates to the thigh³ which is chronic in nature,⁴ pain in her right epicondyle (elbow) that was treated with an injection of depomedrol, lidocaine and marcaine⁵, and that three days before the accident, the applicant was having back pain, continued chronic urinary issues, recurring UTIs, along with dyspareunia.⁶

14The applicant submits that as a result of the accident she experienced increased pelvic and abdominal pain and that her pre-existing medical history left her vulnerable to injuries to her pelvis, hip and back. As a result of her vulnerability, she underwent therapy but was unable to reach maximal recovery because the therapy was initially focused on her hip and back, leaving no funds for treatment for her other accident-related injuries of her neck, her headaches and upper extremities. Therefore, she submits her pre-existing condition prevented her from reaching maximal recovery of her soft-tissue injuries.

15The respondent submits that while it concedes that the applicant has significant pre-accident and pre-existing medical conditions, the applicant has not met her burden on a balance of probabilities to show that the pre-existing conditions are preventing her from reaching maximal recovery of her minor injuries. The respondent submits that as result of the accident the applicant sustained injuries to her neck and back and the treatment offered was with respect to whiplash injuries and not with respect to her pre-existing conditions. The respondent notes that the applicant’s treating physiotherapist indicated that her back pain has resolved and that because this resolution of injuries arose within the MIG, it shows that the applicant reached maximal recovery within the MIG. The applicant has not provided compelling medical evidence or a medical opinion that her pre-existing conditions make her minor injuries to her neck and lower back not treatable under the MIG.

16It is not enough for the applicant to show she has a pre-existing condition. The Schedule and the case law have established that she must provide compelling medical evidence that the pre-existing condition will prevent her from achieving maximal recovery from her minor injuries if she is confined to the MIG. The applicant does have long-standing serious medical conditions and this is recognized by the Tribunal and the respondent, however, the applicant has not met her evidentiary burden to show that her pre-existing medical conditions prevent maximal recovery within the MIG from her accident related minor injuries.

17The hospital records on the day of the accident show that immediately following the accident the applicant had pain and stiffness in her neck, left hip and low back. Her treating urologist, Dr. Carr, opined on February 1, 2019 that the accident has caused an “up regulation” to the applicant’s chronic pain.

18In the initial assessment report of Ms. Richer, physiotherapist, dated September 20, 2018, Ms. Richer states that the applicant has pain in the low back and neck. The physical examination notes whiplash and low back pain. There is no mention of groin, pelvic or hip pain as a result of the accident or an aggravation of same.

19The OCF-23 dated September 24, 2018 stated that the accident-related injuries are “Whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs” and “Sprain and strain of lumbar spine”. Under “barriers to recovery” there is nothing noted.

20The disability certificate dated October 12, 2018 notes the accident-related injuries as “Whiplash WAD II; Strain LSP”. It indicates an anticipated duration of disability of 5-8 weeks. In terms of any pre-existing conditions, the disability certificate notes a history of right chronic hip pain.

21The OCF-18 dated December 17, 2018 states accident-related injuries are “Whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs” and “Sprain and strain of lumbar spine”. In terms of “prior and concurrent conditions” it lists “chronic [right] hip pain, (hernia repair w/ complication) re-aggravated from accident.

22A note from Ms. Richer dated June 29, 2020 states that currently the applicant is complaining of headaches that the applicant feels is as a result of “pain she is feeling in the right upper extremity”. The applicant also notes continuing pain in her “right elbow and arm which was an issue prior to the accident but she feels has been aggravated since.” Ms. Richer states that she treated the applicant mainly for “right hip and low back issues as they were very [much] her main complaint. She has recovered well from that injury.”

23I am not persuaded that as a result of the accident the applicant sustained injuries to her right elbow or that she has headaches that are caused by accident-related injuries. The first notation of issues with the right elbow following the accident is on February 1, 2019 by her primary care doctor. The primary care doctor‘s notes confirms that an injection was provided to the applicant just prior to the accident on September 13, 2018. The primary care doctor confirms that the earlier injection provided relief. Further, the primary care physician diagnosed the applicant with epicondylitis based on overuse and not based on trauma. On April 11, 2019, the primary care physician confirms that the applicant continues to work as a hairdresser, that she still experiences pain in her elbow despite the pain control injection and that the pain is an element of overuse and the applicant needs to rest for the next few days post-injection. With respect to the headaches, as confirmed above, the applicant has a history of migraines that she termed “seasonal”. The first notation of any headaches post-accident was on April 11, 2019, almost 7 months post-accident. I am not persuaded that the headaches are as a result of injuries sustained in the accident as there is no evidence to support this.

24In terms of the applicant’s injuries as a result of the accident, the evidence supports that the applicant sustained a whiplash injury and lower back strain/sprain injury. These injuries fall within the definition of minor injury. The evidence with respect to the re-aggravation of pain in her pelvic area and hip is not as persuasive, however, I accept that there was an increase in pain in these areas as a result of the accident.

25However, the applicant has not provided compelling evidence that her minor injuries to her neck, back, hip and pelvic area could not be treated within the MIG because of her pre-existing conditions, or that maximal recovery could not be achieved.

26The applicant points me to the clinical notes of Cor Maximus and the letter of Ms. Richer, physiotherapist, dated June 29, 2020, as evidence of the need for the applicant to be treated outside of the MIG due to her pre-existing conditions. The applicant submits that the physiotherapy notes confirm that the treatment initially focused on the pelvic pain and back pain and thus the other minor injuries could not be treated.

27When reviewing the records, it is not clear as to what areas Cor Maximus was treating following the accident as the handwritten notes are, for the most part, illegible. The pre-accident notes of Cor Maximus do note that there was hip and groin pain in the months prior to the accident and that the applicant was seeking treatment at Cor Maximus, although again due to the illegibility of the handwritten notes, it is hard to decipher what areas were being treated.

28The report of Ms. Richer, dated June 29, 2020, does not provide an opinion that the applicant’s pre-accident condition prevented maximum recovery from her accident-related injuries. The report indicates that the applicant’s main complaint at the time of this June 29, 2020 report is that of headaches and pain in her right elbow. Ms. Richer indicates that she previously treated the applicant following the accident for right hip and low back pain as that was her main area of complaint and that she has recovered from those injuries. Ms. Richer explains that she then requested a further treatment in the OCF-18 of December 17, 2018 to focus on the now mentioned areas because all of the treatment funds were allocated for the treatment of the applicant’s pelvic and hip pain. However, Ms. Richer does not speak to the applicant’s pre-existing medical issues, she does not speak to why she treated pelvic pain when she does not state pelvic pain is an accident-related injury in the OCF-23 or the subsequent OCF-18, and she does not state that the pre-existing conditions of the applicant prevent maximal recovery within the MIG. Further, in the June 2020 report, Ms. Richer states that the ongoing issues are headaches and elbow pain which, as noted above, are not accident-related injuries.

29The applicant also relies on the report of Dr. Carr dated February 1, 2019. The applicant submits that Dr. Carr states that there is an increase in the applicant’s chronic pain. Further, Dr. Carr also noted that as a result of the accident, the applicant also has an increase in voiding dysfunction. In this February 1, 2019 report, Dr. Carr makes it clear that there is no treatment available with respect to the chronic pain and voiding dysfunction and that hopefully with time the pain and dysfunction will improve. This is not evidence that the confines of the MIG prevent maximal recovery.

30The only opinion offered is that through Dr. Hasspieler, who conducted the insurer examination on June 3, 2019. Dr. Hasspieler opined that as a result of the accident the applicant sustained soft tissue injuries of right elbow, right pelvic and neck and have since resolved. He also opined that the applicant has reached maximal medical recovery from her soft tissue injuries and that the applicant’s injuries have resolved. The applicant calls into question the credibility of Dr. Hasspieler based on out of province regulatory body records and the applicant also notes that Dr. Hasspieler has no expertise in the area of chronic pain or urology or dealing with patients who experienced complications following a defective transvaginal mesh implant.

31The applicant carries the evidentiary burden to prove on a balance of probabilities that her pre-existing conditions prevent maximal recovery under the MIG. As noted above, the applicant has not met her evidentiary burden. The report of Dr. Hasspieler obviously does not assist the applicant in that regard and this is not a case where there are competing medical opinions that warrant a finding on the persuasiveness of the report of Dr. Hasspieler. Therefore, based on the evidence provided by the applicant, I find that the applicant has not met her evidentiary burden to show that her pre-existing conditions will prevent her from achieving maximal recovery if she remains within the confines of the MIG.

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

32The applicant also submits that as a result of the accident her injuries and the pain from those injuries, her pain is now chronic in nature. Again, an applicant may escape the confines of the MIG if she can show that as a result of the accident that she has chronic pain. The evidentiary onus remains on the applicant.

33The applicant has not met her onus. She points me to no medical documents showing that her pain complaints are a result of accident-related injuries and that they are now chronic, in nature. I acknowledge that her pre-accident conditions included pain that was chronic however the applicant has not established that she has chronic pain as a result of accident related injuries or impairments. The OCF-23 shows that her injuries at the time were whiplash and lumbar strain and sprain. The report of Ms. Richer of June 29, 2020 confirms that her lumbar injury has resolved, and it makes no mention of ongoing whiplash or cervical issues. The report confirms that the current issues are with respect to her elbow and headaches and, as noted above, I have found that these are not related to the accident based on the medical evidence.

34Therefore, I find that the applicant has not met her onus to show that she has chronic pain as a result of the accident that requires her to be removed from the confines of the MIG.

35As I have found that the applicant remains within the MIG, I need not consider the reasonableness and necessity of the treatment plan in dispute as the benefits are not available to the applicant and the MIG limits have been exhausted.

36As no benefits are due or owing, there is no entitlement to interest.

ORDER

37The applicant’s appeal is dismissed in its entirety.

Footnotes

1. 1O. Reg. 34/10
2. 2Page 110 of the Applicant’s Brief, note of April 5, 2018 and page 124 report of Dr. Bodley.
3. 3Page 112 of the Applicant’s Brief
4. 4Page 124 of the Applicant’s Brief
5. 5Page 112 of the Applicant’s Brief
6. 6Page 114 of the Applicant’s Brief