Podlovics v. Aviva General Insurance
Release date: 10/05/2021
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:
Laura Podlovics
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
Laura Podlovics, Applicant
Ron Davidson, Counsel
For the Respondent:
Colin Yen, Representative
Fraser Chorley, Counsel
Held by Teleconference:
September 15 and 16, 2020
OVERVIEW
1The applicant seeks a determination that she did not sustain predominantly injuries as a result of the motor vehicle accident (“MVA”) and that she is entitled to the five treatment plans in dispute.
2The applicant was injured in a MVA on July 26, 2017. She applied for and received benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) up to the $3,500.00 cap placed on predominately minor injuries. The applicant then submitted additional treatment plans which the respondent denied as it took the position that the applicant’s injuries were predominantly minor in nature, that she utilized medical and rehabilitation benefits up to the $3,500.00 cap placed on predominately minor injuries, and as a result, no more medical and rehabilitation benefits were payable.
3The applicant disagreed with the respondent’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution. The applicant takes the position that she should be removed from the Minor Injury Guideline (“MIG”) for the following reasons: her pre-existing foot injury prevents her from achieving maximum medical recovery under the MIG, and that the concussion, chronic pain, psychological injuries and radiculopathy she sustained as a result of the MVA are not predominately minor injuries. The applicant also takes the position that each of the disputed treatment plans are reasonable and necessary as she requires ongoing treatment to help facilitate her recovery.
4The respondent does not dispute the applicant’s pre-existing foot injury but takes the position that there is no evidence that this injury has been exacerbated by the accident or that this will lead to a prolonged recovery. The respondent also submits that there is no reliable evidence to establish that the applicant suffered from a concussion, chronic pain, and/or psychological injuries as a result of the MVA. The respondent takes the position that the remaining MVA related injuries are predominately minor in nature. The parties could not resolve the issues in dispute, so the matter proceeded to a hearing.
ISSUES IN DISPUTE
5The issues in dispute were identified and agreed to 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 $1,200.00 for chiropractic treatment recommended by Whitby Physio and Rehab Centre (Dr. Wong D.C.) in a treatment plan submitted on September 14, 2017, and denied by the respondent on October 24, 2017?
III. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,696.25 for occupational therapy services recommended by Kim Lamont and Associates (Sharon Alvo) in a treatment plan submitted on August 21, 2018, and denied by the respondent on August 25, 2018?
IV. Is the applicant entitled to a medical benefit in the amount of $2,700.00 for chiropractic treatment recommended by Biastoch Chiropractic in a treatment plan submitted on January 28, 2019, and denied by the respondent on January 30, 2019?
V. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $6,346.99 for occupational therapy services recommended by Kim Lamont and Associates (Lyle Newman) in a treatment plan submitted on June 27, 2019, and denied by the respondent on July 5, 2019?
VI. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for chiropractic treatment recommended by On Time Assessment Centre (Dr. M. Goldhawk) in a treatment plan submitted on July 24, 2019, and denied on by the respondent on August 6, 2019?
VII. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based on the evidence before me, I find that the applicant did sustain predominantly minor injuries as defined by the Schedule and, as a result, she is not entitled to the treatment plans in dispute or interest.
ANALYSIS
The Minor Injury Guideline
7The 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 section 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.” Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
8The applicant bears the onus of establishing on a balance of probabilities that her injuries fall outside of the MIG. The applicant submits that she ought to be removed from the MIG on the basis of a pre-existing foot injury, chronic pain, psychological and/or psychiatric injuries, a concussion (mild traumatic brain injury), and radiculopathy.
Pre-existing Foot Injury
9Where a person’s injuries fall within the definition of a “minor injury”, the limit of liability can be exceeded if a healthcare practitioner provides compelling evidence that the applicant has a pre-existing condition documented by a healthcare practitioner prior to the accident that will prevent the applicant from achieving maximal recovery within the $3,500.00 guideline.
10In this case there is no dispute that the applicant had a pre-existing condition documented by a healthcare practitioner prior to the MVA. In April of 2016, the applicant suffered a foot injury at work. Her right foot was crushed when a bumper and large steel bicycle rack at the front of the bus she was driving fell on her. She missed six months of work and could not return to work as a GO bus driver. Instead, she returned to work as a GO station attendant.1
11The applicant, as a result of the foot injury, obtained WSIB coverage and was treated by an orthopaedic surgeon, Dr. Lau. Dr. Lau’s clinical notes and records for their last recorded meeting on March 23, 2017, indicate that the applicant has a permanent restriction with her injured foot. No subsequent attendances were scheduled. The records of Dr. Haider from May 31, 2017 (the last visit prior to the MVA) indicate that the applicant was unable to walk more than 100 meters and unable to drive more than 15 minutes. She continued to take Percocet.
12The dispute is focused on whether there is compelling evidence from a healthcare practitioner establishing that the applicant’s pre-existing foot injury will prevent her from achieving maximal medical recovery with the MIG. The applicant submits that she has met this onus and relies, in part, on the evidence of Dr. Haider, the applicant’s family doctor, and Dr. Goldhawk, chiropractor.
13Dr. Haiders clinical notes and records document ongoing chronic foot pain following the MVA. Dr. Goldhawk assessed the applicant on July 24, 2019. At page 2 of Dr. Goldhawk’s “Discussion For Removal From Minor Injury Guideline” report, she indicated that the applicant had “a pre-existing right foot crushing injury that has altered her gait.” Dr. Goldhawk further noted that the MVA exacerbated the applicant’s right foot pain and resulted in a “gait derangement.” Dr. Goldhawk indicates that Ms. Podlovics "has injuries and subsequent diagnoses that cumulatively fall outside the Minor Injury Guideline."
14Although not mentioned in her report, Dr. Goldhawk testified during the hearing that the applicant was unable to reach maximal medical recovery within the MIG because of the disruption in her normal gait pattern. She described it as a ripple effect which makes the applicant’s back and neck pain worse.
15I acknowledge Dr. Goldhawk’s comments in this regard but find that her testimony fell short of providing compelling evidence that the applicant’s pre-existing condition will prevent her from achieving maximal recovery within the MIG. Dr. Goldhawk failed to adequately explain how this pre-existing foot injury interfered with the applicant’s ability to engage in and complete her treatment within the MIG. As a result, I am not satisfied on a balance of probabilities, that the applicant’s pre-existing foot injury prevent her from achieving maximal recovery within the MIG. The applicant failed to meet her onus in this regard.
16I also note that Dr. Loritz, General Practitioner, assessed the applicant on behalf of the insurer on October 22, 2018. Dr. Loritz concluded that the applicant’s pre-accident foot condition would not affect her ability to complete treatment for her neck and back within the MIG. Dr. Loritz’s testimony was compelling in this regard.
Concussion
17The applicant submits that there is uncontroverted evidence that the applicant was diagnosed with and suffers from a concussion as a result of the MVA. The applicant testified that she believes that she hit her head during the MVA but that she didn’t lose consciousness. She explained that she began experiencing neck and back pain, nausea and headaches shortly after the MVA. The day after the MVA, she attended the Lakeridge Health Centre emergency room due to her symptoms. The applicant saw Dr. Alexieva and testified that Dr. Alexieva told her that she suffered from a concussion due to whiplash as a result of the MVA. The clinical notes and records from that visit do not indicate that the applicant suffered from a concussion as a result of the MVA. Dr. Alexieva clinical notes and records from that day indicate the following: “now c/o neck, mid back pain. Nausea last nite but not today. Headache.” Dr. Alexieva diagnosed the applicant with soft tissue injuries and she did not testify at the hearing.
18The applicant also testified that Dr. Haider diagnosed her with a concussion due to her whiplash as a result of the MVA during her August 1, 2017 visit. Dr. Haider’s clinical notes and records from that day do not indicate that the applicant suffered from a concussion as a result of the MVA. The clinical notes and records do indicate that the applicant was experiencing neck and back pain, some nausea and headaches. Dr. Haider diagnosed the applicant with a whiplash injury, neck and back strain and tension headaches. I have not been directed to any other portion of Dr. Haider’s clinical notes and records where a concussion diagnosis was made.
19I note that the evidence before me establishes that the applicant complained of headaches, nausea, blurred vision, dizziness, loss of balance, light and noise sensitivity, memory and concertation difficulties following the MVA. Although these may be symptoms of a concussion, in this case they do not lead me to conclude that the applicant suffered from a concussion as a result of the MVA in the absence of such a diagnosis. The applicant has not met her onus in this regard.
Psychological Injuries
20The applicant testified that she has suffered from psychological issues as a result of the MVA. She testified that she has experienced anxiety, depression, lack of motivation and fatigue. She relies on the evidence of Dr. Habteselassie and Dr. Goldhawk in support of her position that she should be removed from the MIG due to her MVA related psychological issues.
21At page 2 of the Centre for Pain Management Consultation Report of Dr. Habteselassie the applicant "endorsed significant symptoms of depression and anxiety." It was also noted that the applicant was "frustrated by the limiting function due to pain."
22In Dr. Goldhawk's report under Chief Complaints, the applicant reported "anxiety, feelings of isolation, sleep/arousal disorder." Under Diagnosis, Dr. Goldhawk noted: psychological problems, anxiety/distress. Dr. Goldhawk indicated that the applicant’s psychological issues may relate in part to her concussion and her chronic pain. Dr. Goldhawk suggested that the applicant would benefit from a full psychological work-up.
23The applicant has not satisfied me that she should be removed from the MIG due to her psychological issues. No qualified practitioner has diagnosed the applicant with psychological injuries. Dr. Goldhawk is a chiropractor and not qualified to diagnose psychological injuries. Furthermore, Dr. Goldhawk clarified during cross-examination that the “diagnosis” she noted in her report were not actually diagnosis but merely impairments that the applicant had reported. I also note that none of the health practitioners that the applicant saw referred her to a psychologist or psychiatrist despite her complaints. The applicant confirmed this during her testimony. As a result, I find that the applicant has not satisfied me that she should be removed from the MIG due to her psychological issues.
Chronic Pain
24The applicant submits that she suffers from chronic pain as a result of the MVA and as a result, should be removed from the MIG. The applicant testified that she continues to deal with ongoing pain in her neck and back and that it is not tolerable without treatment.
25Dr. Haider’s clinical notes and records dated May 26, 2019 indicates "still hurting-neck and back issues.” Her note of September 3, 2019 indicates: "chronic neck and back pain ... suggested physiotherapy."
26The report of Dr. Habteselassie dated May 27, 2019, notes "constant pain ... chronic pain (in her back)…the pain is constant and localized to the lower back across the bar straps and back of the neck and is characterized by aching, throbbing and sometimes sharp over the left lower back ... neck and back ROM restricted due to pain"
27Dr. Goldhawk report dated July 24, 2019 notes that the applicant has ongoing neck and back pain. Under Diagnosis/Impairments, Dr. Goldhawk notes that the applicant “has developed chronic pain."
28Dr. Loritz, who assessed the applicant on behalf of the insurer on October 10, 2018, found that the applicant suffered from uncomplicated soft tissue injuries. He did not make a diagnosis of chronic pain.
29An applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must also be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual’s well-being. A diagnosis of chronic pain without any discussion of the level of pain or its effect on the person’s functioning will not be sufficient to remove them from the MIG.
30In MNM v. Aviva Ins. Co., 2018 CanLII 98282 (ON LAT)2 the Tribunal identified and accepted six criteria against which a claim of chronic pain should be assessed as per the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”). According to the AMA Guides, at least three of the six criteria set out below must be met:
I. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
II. Excessive dependence on health care providers, spouse, or family;
III. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
IV. Withdrawal from social milieu, including work, recreation, or other social contracts;
V. 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;
VI. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.
31In this case, there is no evidence of excessive prescription drug use. Dr. Loritz noted that the applicant was not taking any medication as a result of the MVA. The report of Dr. Habteselassie also indicates that several prescription options had not been attempted.
32There is no evidence that the applicant is excessively dependent on any health care providers and the assistance she receives from her children is in part due to her pre-accident foot injury which rendered her unable to walk for more than 100 meters and created difficulty entering/exiting cars and climbing stairs.
33There is no evidence of deconditioning as a result of the MVA. The reports of Dr. Goldhawk and Dr. Loritz make no mention of deconditioning.
34There is no evidence that the applicant has withdrawn from social milieu. She continues to work full time. She reports engaging in activities with the assistance of her daughters. There is no evidence that she has withdrawn from any social or recreational activities.
35The applicant continues to engage in all of her pre-MVA activities including work. There is no compelling evidence of any reduction in her pre-MVA activities.
36Lastly, there is no diagnosis of psychological sequelae such as anxiety or depression and as noted above, none of the applicant’s healthcare practitioners referred her to a psychologist or psychiatrist despite her subjective complaints.
37As such, the applicant has failed to satisfy me that her ongoing pain warrants removal from the MIG.
Radiculopathy
38The applicant submits that she should be removed from the MIG due to her radiculopathy. The applicant testified that she experienced pain and tingling radiating to her arms from her neck and to her legs from her lower back. She testified that this has impaired her ability to function at work and engage in her daily activities.
39Dr. Haider's clinical notes and records from September 7, 2017 indicates: "pain radiating into the arms - will be referred to neurologist". There was no evidence before me that this referral was never made. Dr. Haider’s note on March 30, 2019 indicates: “waking up stiff, pain radiating to her legs.”
40The Centre for Pain Management Consultation Report of Dr. Habteselassie dated May 27, 2019, noted there is intermittent radiation of pain to the thigh down to the left knee mostly when laying down.
41Dr. Goldhawk report notes that the applicant complained of back pain with left leg radiculopathy, neck pain which radiates down her arms to her hands where she experiences tingling and achiness in her hands. Dr. Goldhawk diagnosed the applicant with a neck injury, cervical strain/sprain with radiculopathy and lumbar spine with myofascial injury with radiculopathy.
42The applicant has not satisfied me on a balance of probabilities that her radiculopathy takes her out of the MIG. Section 18(1) of the Schedule states that an insured person will receive medical and rehabilitation benefits within the MIG limits if he/she “sustains an impairment that is predominately a minor injury.” In order for a diagnosis of radiculopathy to take an applicant out of the MIG, there must be an associated impact on their functioning. In this case, none of the applicant’s experts have provided an adequate clinical rationale making this connection. In addition to this, although Dr. Loritz diagnosed the applicant with intermittent bilateral radicular pain affecting the legs, he found that it resulted in minimal impact on the applicant’s functioning. The applicant also reported to Dr. Loritz that she is independent with respect to self care and is capable of performing most of her usual housekeeping tasks. The applicant’s testimony that her radiculopathy has impaired her ability to function at work and engage in her daily activities has not convinced led me to conclude otherwise. As a result, the applicant has failed to satisfy me that her radiculopathy takes her outside the confines of the MIG.
DISPUTED TREATMENT PLANS
43Since I have found that the applicant falls within the confines of the MIG, I do not need to assess whether each individual treatment plan is reasonable and necessary.
CONCLUSION
44For the reasons outlined above, I find that the applicant has sustain predominantly minor injuries as defined by the Schedule and, as a result, she is not entitled to the treatment plans in dispute or interest.
Date of Issue: October 5, 2021
Paul Gosio, Adjudicator