Citation: Roziyeva. v. Aviva General Insurance, 2021 ONLAT 19-007829/AABS

Release date: 07/30/2021

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:

Muhabbat Roziyeva

Applicant

And

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Applicant:

Mark Stoiko, Counsel

For the Respondent:

Sarah Fasih, Counsel

Interpreter:

Rita Naftali (Russian)

Heard by way of:

Videoconference and Teleconference June 25, 2021 and written submissions

OVERVIEW

1M.R. ("applicant") was involved in an automobile accident on October 20, 2016 ("accident"), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Aviva General Insurance ("respondent") determined that the applicant's injuries fit the definition of "minor injury" prescribed by s. 3 (1) of the Schedule and therefore fall within the Minor Injury Guideline ("MIG").² The respondent denied other benefits including non-earner benefits ("NEB") to the applicant.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

4The issues to be decided are:

i. 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 and in the MIG?

ii. Is the applicant entitled to an NEB of $185.00 per week from April 20, 2017 to October 20, 2018?

iii. Is the applicant entitled to chiropractic services recommended by Spinetec Health Care Solution, in treatment plans (OCF-18s) as follows:

(i) $5,309.40 per a plan dated May 26, 2017?; and

(ii) $5,385.05 per a plan dated November 16, 2017 ("disputed chiropractic treatment plans")?

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

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

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to an NEB in the amount of $185.00 per week, or in any other amount, for the period in dispute. The applicant is not entitled to payment for the disputed chiropractic treatment plans. No award is made. No interest is payable.

LAW

MIG

6The MIG establishes a treatment framework available to an injured person who sustains 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury". Under s. 18(1) of the Schedule, injuries that are defined as a "minor injury" are subject to a $3,500.00 funding limit on treatment.

7To be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence provided by a health practitioner that was documented before the accident, that the applicant has a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury, if subject to the funding limit.

8The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

NEB

9Section 12 of the Schedule requires an insurer to pay NEB to an insured person who does not qualify for an income replacement benefit and who suffers from "a complete inability to carry on a normal life" as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

10Section 3(7)(a) further provides that a person suffers a "complete inability to carry on a normal life" if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

11The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

12The Ontario Court of Appeal⁴ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

a. There must be a comparison of the applicant's activities and life circumstances before the accident to those post-accident.

b. The applicant's activities and life circumstances before the accident must be assessed over a reasonable period of time prior to the accident. The duration will depend on the facts of the case.

c. All of the applicant's pre-accident activities must be considered, but, greater weight may be placed on activities that were more important to the applicant's pre-accident life.

d. The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

e. "Engaging in" should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as "engaging" in the activity.

f. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities.

Medical Benefits

13Section 15 of the Schedule provides that, subject to s. 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident for certain services and medication.

14The onus is on the applicant to establish entitlement on a balance of probabilities.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

15The applicant submits that her injuries are not minor and that she suffers from significant, chronic and ongoing pain throughout her body as well as psychological, cognitive and emotional symptoms since the accident.

16I find that the applicant's physical injuries from the accident are minor injuries because none of the applicant's medical reports and records indicate any physical injuries arising from the accident other than soft tissue injuries. After the accident, the applicant was taken by ambulance to Guelph General Hospital, where swelling and bruising of the right lower leg was noted. She was advised to apply ice and take pain medication if necessary.

17On November 7, 2016, Dr. Wallace, the applicant's family physician, diagnosed WAD 1, back strain, left forearm contusion and right shin contusion/abrasion. Physiotherapy was recommended and Naprosyn and Nexium were prescribed.

18The applicant did not see Dr. Wallace again until March 16, 2017 when she complained of three months of low back pain and pelvic pain radiating to her hip, and Dr. Wallace diagnosed mechanical low back pain and arranged for testing. There is no mention in Dr. Wallace's March 16, 2017 or April 10, 2017 records about the accident. March 2017 imaging of the applicant's lumbosacral spine, compared to 2016, showed normal alignment, no fracture or suspicious bony lesion and mild degenerative changes at L3-4 and L5-S1.

19On June 8, 2018 Dr. Wallace noted the applicant's pain complaints as right knee, right hip and low back pain post-accident and diagnoses gastritis, H. Pylori, WAD 2, right knee/hip strain and lumbar strain, but does not clearly state that any of these are related to the accident.

20August 4, 2017, the applicant complained to Dr. Wallace of pain which became more intense around May 2017. She complained of: pain in the right lower back area; radiating into hip and right lower leg; painful to walk/with movement; some numbness/tingling in the area; ongoing right lower back pain and right hip pain radiating to right foot; numbness and tingling in right foot; unable to move right leg with prolonged sitting and standing; very bad with walking and bending; morning much worse; walking; and doing dishes is very bad. The applicant reported to Dr. Wallace that she couldn't walk or stand in January 2017 on two occasions in two months. Other complaints are a lot of right leg/shin pain. Dr. Wallace diagnosed right hip strain and queried lumbar disc herniation and PTSD. Dr. Wallace arranged for MRI of lumbar spine and right hip and notes "ref to psychiatrist".

21September 18, 2017, Dr. Wallace notes that the applicant requires physiotherapy for degenerative disc disease and records that the applicant's MRI shows arthritic changes in back and "sl disc bulge and one disc with small tear. NO nerve compression". Dr. Wallace does not mention the accident.

22The applicant consulted Dr. Tobin on September 29, 2017 regarding headaches "x 1 wk, nausea, some pain RUQ" and the diagnosis was "cervicogenic HA's/? reflux". Nothing in the records links this to the accident.

23October 3, 2017, Dr. Wallace reviewed her MRI findings with the applicant including degenerative changes and lumbar spine disc bulge and diagnosed spine degenerative disc disease, lumbar spine disc bulge, upper back muscle spasm and galactorrhea but does not attribute these to the accident. The degenerative disc disease with a small tear is attributed to arthritic changes.

24The weight of the medical evidence before me establishes that the applicant had predominantly sprain and strain type physical injuries from the accident. These fall within the definition of "minor injury". However, the applicant submits that her pre-existing medical condition removes her from the MIG and also that she suffers from pre-existing chronic pain, back pain and neck pain and psychological injuries that remove her from the MIG.

Does the applicant have a pre-existing back and neck pain that would remove her from the MIG?

25The applicant submits that she has pre-existing low back pain and chronic neck pain that was documented pre-accident and exacerbated by the accident which warrants removal from the MIG under s.18(2).

26These impairments are noted by the applicant's family physician, Dr. Wallace, in 2014 to February 2016, and pre-accident imaging shows degenerative disc disease in the applicant's neck. However, there is no medical opinion or compelling medical evidence that these specific impairments would prevent her from achieving maximal medical recovery within the MIG as required under s.18(2).

27The MIG is clear that it is not enough to simply have a pre-accident documented condition or injury, but instead, there must be compelling evidence that the condition or injury will preclude recovery if the applicant is kept within the MIG. Further, the s. 44 reports of respondent's assessor Dr. Kopyto found no evidence of a pre-existing condition that would prevent the applicant's recovery if she is kept within the MIG.

Does the applicant have chronic pain or psychological injury as a result of the accident?

28I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain or psychological injury justifying treatment beyond the MIG.

29With respect to pain, on December 18, 2017, Dr. Wallace diagnosed the applicant with chronic neck and low back pain with radicular features". The applicant's family physician Dr. Danielli on April 17, 2018, diagnoses low back and abdominal pain. On May 2, 2018, Dr. Wallace diagnosed the applicant with sciatica, chronic back pain and abdominal pain "nyd" and refers the applicant to the Orangeville Pain Care Clinic ("pain clinic"). The totality of the evidence from the applicant's family physicians establishes that it is more likely than not that the applicant is experiencing pain as a result of degenerative changes and health issues unrelated to the accident. Neither Dr. Wallace nor Dr. Danielli opines clearly that the applicant's chronic pain results from her injuries arising from the accident, but, to the contrary, suggest other causes. For example, on August 4, 2017, Dr. Wallace noted that the applicant developed right sided hip and back pain during a vacation in January 2017.

30The November 2, 2018 report from the pain clinic notes that the applicant's main complaint is back pain and left leg pain which "resulted from a motor vehicle accident in October 2016" and "she never had any knee or back pain in the past. All her pain started after a motor vehicle accident." I give this pain clinic report no weight for the following reasons.

31Firstly, these statements about the source of her pain appear primarily to come from the self-reporting of the applicant. Secondly, the pain clinic report notes that the applicant did not complete the questionnaire package. Thirdly, although the pain clinic report notes that a previous MRI of the lumbar spine showed no evidence of sacral fracture or destructive bone lesion, but did show "degenerative disc disease with a small tear involving the left lateral disc at the lumbosacral junction, no cause is attributed to this small tear in this report. Fourthly, although the pain clinic reports that the applicant is suffering from lower back pain and radiculopathy in the right side, some knee pain and hip pain and the conclusion is "I think she is suffering from disc degenerative disease, sciatica, myofascial pain and mechanical back pain she probably has some mild osteoarthritis and soft tissue injury in the knees". The author of the pain clinic report does not definitively opine that this pain results from injuries suffered in the accident. Fifthly, the pain clinic report does not contain a diagnosis of chronic pain disorder, as opposed to chronic pain. There is little information in the pain clinic report of any functional limitations experienced by the applicant as a result of her pain. Lastly, the name of the author of the report and the author's medical credentials are not part of the report filed by the applicant.

32There is also a lack of evidence of objective functional impairment. Indicating the contrary, Dr. Danielli's April 17, 2018 record describes the applicant as "moving well, full easy ROM back but end range subjective pain in all directions".

33With respect to psychological complaints, although Dr. Wallace noted problems sleeping, afraid of driving, anxious, nervous, hyperarousal and hypervigilance and noted "ref to psychiatrist". There is no evidence before me that the applicant was diagnosed by a psychiatrist or any mental health medical specialist with any psychological, cognitive or emotional injuries as a result of the accident. To the contrary, Dr. Karp, respondent's psychologist, assessed the applicant and found no psychological impairment resulting from the accident.

34Based on the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain or psychological injury as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of her alleged conditions is on the applicant, and she has not done so.

Is the Applicant Entitled to a NEB in the amount of $185.00 per week from April 20, 2017 to October 20, 2018?

35The applicant submits that she meets the test for a NEB because she suffers from a complete inability to carry on a normal life as a result of the accident. The applicant testified at the hearing that although her medical history includes chronic gastritis, hypothyroidism, GERD, asthma, carpel tunnel syndrome, cervical mild degenerative disc disease and hematuria, pre-accident she was physically active, drove a motor vehicle, was independent with all activities of daily living including household shopping, cooking and cleaning, emotionally stable and did not have any problems with pain, sleeping, excessive anxiety or mood disturbances. The applicant described her favourite activity as sewing and said she also enjoyed knitting, eating, taking long walks with her daughter, bicycling, going for picnics, being physically active and taking care of her health, socializing with friends and having friends over for dinner.

36The applicant testified that post-accident she can no longer do these activities because of her functional limitations and pain particularly in her neck, low back and legs, which limit her ability to lift and bend during household tasks, activities of daily living, cooking and other physical activities. The applicant testified that she needs help from her older children in caring for her youngest child and in completing household tasks such as cleaning. The applicant also described that her pain affects her mood, makes her irritable and angry when the children misbehave, is more nervous, has to take breaks when performing household tasks such as cleaning and sometimes even breaks down and cries. The applicant said that she is less motivated now to visit friends, have friends over and is anxious about meeting friends.

37The applicant's submissions are not supported by the weight of the evidence. Applying the above principles, I find that the applicant's evidence does not establish on a balance of probabilities that she suffers from a complete inability to carry on a normal life for the following reasons.

38The applicant did not point to any opinion from any physician or mental health specialist establishing that her accident-related injuries have resulted in the applicant having a complete inability to carry on a normal life as a result of either physical or psychological injuries suffered in the accident.

39In cross-examination, the applicant confirmed that she was a homemaker pre-accident and continues as a homemaker post-accident and that she has not hired any help. The applicant conceded that she can still cook for her family but post-accident she only cooks about three times a week, can still take things out of the fridge, can go shopping if someone goes with her, is able to cut vegetables and prepare meals for her younger daughter and change her diapers, help her husband with his self-care, albeit with pain. The applicant conceded that sometimes she can get out of bed on her own, brush her teeth, her hair, dress independently, shower, do laundry, but sometimes she needs help with all of these activities. The applicant conceded she still drives her motor vehicle but less than before.

40There is no corroborating evidence from any of the applicant's family members or friends about her inability to engage in any pre-accident activities. The applicant testified that post-accident she can't spend too much time with her sewing machine which indicates that she can engage in some sewing, one of the activities the applicant said is most important to her.

41The applicant also testified that she took a trip with her family to Turkmenistan in January 2017 for six weeks. Although the applicant testified that she had to seek medical care while on this trip, no medical records about this were put forward by the applicant except her self-reporting of this to Dr. Wallace when she returned to Canada.

42The applicant's ability to do all of these activities, albeit with pain, is inconsistent with the applicant's complete inability to carry on a normal life as a result of the accident. Her pain does not practically prevent her from doing many of her pre-accident activities. While there are some activities that she may not be able to do, eligibility for NEB is based on a complete inability to carry on a normal life as a result of the accident.

43The applicant's submission that she has now been diagnosed with fibromyalgia is unpersuasive as this occurred outside the time frame for which an NEB is claimed, and no clear causal link has been established with medical evidence between this diagnosis and the accident.

44Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish that she suffers from a complete inability to carry on a normal life as a result of the accident, and as a result is not entitled to NEB for the period claimed.

Is the Applicant Entitled to the Disputed Chiropractic Treatment Plans?

45I find that the applicant is not entitled to payment of the disputed treatment plans because she has failed to prove on a balance of probabilities with sufficiently persuasive medical evidence that they are reasonable and necessary to treat the applicant's accident-related injuries.

46Although the applicant relies on the records of Dr. Wallace, I find that Dr. Wallace recommends physiotherapy on several occasions but does not consistently recommend chiropractic treatment to treat the applicant's accident-related injuries. While the report from the pain clinic recommends chiropractic care among other treatments, I give this report no weight for the reasons stated above.

47The applicant submits that pain relief is a legitimate goal of the proposed treatment plans. However, I find in this particular case there is a lack of medical evidence establishing that the goals, progress being made, and cost of the disputed treatment plans are reasonable and necessary to treat the applicant's accident-related pain.

48Further, on August 9, 2017, Dr. Heitzner, the respondent's physiatrist, and on February 27, 2018 Dr. Kopyto, the respondent's physician, both found that the applicant suffered soft tissue injuries and suggested physical therapy is not reasonable and necessary. I prefer this medical evidence over that of Dr. Wallace as the opinions of these two physicians are consistent with each other, opine specifically on the applicant's accident-related injuries and are relatively close in time to the disputed treatment plans.

Award

49Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed. The applicant suggests that a special award is warranted as the respondent ignored the applicant's medical evidence, denied her treatment when she clearly needed it and generally treated the applicant unfairly. I find no evidence to support these submissions. For these reasons, no award is made.

Interest

50As no benefits are payable, no interest is payable.

ORDER

51For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to an NEB in the amount of $185.00 per week, or in any other amount, for the period in dispute. The applicant is not entitled to payment for the disputed chiropractic treatment plans. No award is made. No interest is payable.

Footnotes

1. 1O.Reg. 34/10
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4Heath v. Economical Mutual Insurance Company, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.