Citation: Watson v. Aviva Insurance Company, 2022 ONLAT 20-011076/AABS

Licence Appeal Tribunal File Number: 20-011076/AABS

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:

Shirley Watson

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR:

Beverly Brooks

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Kevin Brown, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Shirley Watson (“the applicant”) was involved in an automobile accident on August 5, 2018, and sought benefits from Aviva Insurance Company (‘the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The respondent determined that the applicant sustained a minor injury and subjected her to the Minor Injury Guideline (“the MIG”), the $3,500.00 funding limit on medical and rehabilitation benefits, and denied her entitlement to the treatment and assessment plans in dispute. The applicant disagrees and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided at the hearing are as follows:

a. Did the applicant sustain a minor injury as defined under s. 3 of the Schedule?

b. Is the applicant entitled to a medical benefit in the amount of $3,245.94 for chiropractic services proposed by Brampton Civic Care Centre in a treatment plan dated January 2, 2019?

c. Is the applicant entitled to a medical benefit in the amount of $2,681.88 for chiropractic services proposed by Brampton Civic Care Centre in a treatment plan dated March 1, 2019?

d. Is the applicant entitled to a medical benefit in the amount of $2,343.44 for chiropractic services proposed by Brampton Civic Care Centre in a treatment plan dated April 22, 2019?

e. Is the applicant entitled to a medical benefit in the amount of $1,995.33 for chiropractic services proposed by Brampton Civic Care Centre in a treatment plan dated March 19, 2019?

f. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by Brampton Civic Care Centre in a treatment plan dated July 13, 2020?

g. Is the applicant entitled to a medical benefit in the amount of $1,700.00 for a biopsychosocial assessment proposed by Ontario Independent Assessment Centre in a treatment plan dated August 1, 2020?

h. Is the applicant entitled to costs pursuant to the Regulations?

i. Is the applicant entitled to interest on any overdue amount of benefits?

RESULTS

3I find that the applicant sustained a minor injury as defined under s. 3 of the Schedule.

4Having found that the applicant sustained a minor injury, it is unnecessary to consider whether treatment plans in dispute are reasonable and necessary because she has reached the $3,500.00 funding limit for minor injuries.¹

5I find that the applicant is not entitled to interest as no benefits are owning.

6No costs are payable.

BACKGROUND

7The applicant claims that her injuries are not minor and are, therefore, not subject to the MIG and the $3,500.00 limit. The applicant submits that medical evidence demonstrates her psychological impairments are substantial and that she has developed chronic pain as a result of the accident. She submits that restricting her access to benefits through classifying her injuries as minor is inappropriate.

8The respondent maintains that the applicant sustained a minor injury. It submits that the applicant has been examined by a psychologist who has concluded that her psychological injuries are minor, and by a family doctor who has post-graduate training in chronic pain who has concluded that her lower back pain comes and goes and is currently improving.

9The onus is on the applicant to prove, on a balance of probabilities, that she sustained an injury that falls outside the “minor injury” definition in s. 3 of the Schedule.

10The applicant also has to demonstrate that the proposed treatment and assessment plans are reasonable and necessary. In addition, the applicant also has to demonstrate that she is entitled to interest.

ANALYSIS

The Minor Injury Guidelines

11The 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.

Psychological Impairments

12I find on the evidence that the applicant did not sustain a psychological impairment as a result of the accident.

13I find the pre-screen assessment of Dr. K Papazoglou, a psychologist, dated March 8, 2018 to be unpersuasive evidence of a psychological impairment. Dr. Papazoglou stated in the pre-screen assessment report that, as a result of the accident, the applicant’s sleep had been adversely impacted to the point that she could only obtain four to five hours of sleep each night. The report noted that the applicant described herself as anxious and irritable and stated that she no longer had the ambition to complete simple tasks. Dr. Papazoglou also noted that the applicant’s post-accident recovery suits the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.² However, the symptoms recorded in Dr. Papazoglou’s pre-screen report are inconsistent with the reports of other medical practitioners. Dr. Papazoglou noted that the applicant is terrified of driving and consequently, no longer drives. In fact, the applicant explained to Dr. L. Koepfler, a psychologist who conducted an insurer’s examination (“IE”), that she no longer drives because she could not afford to buy a vehicle after the accident. Moreover, the applicant reported to Dr. Koepfler that she sometimes borrowed her daughter’s car and that she continued to enjoy all the daily activities that she did previous to the accident. In addition, there is no evidence showing that Dr. Papazoglou conducted psychometric testing as part of the assessment and his credentials are omitted from the evidence. Dr. Papazoglou operates under the supervision of Dr. H. Mrahar, a psychologist, but no details of that relationship are provided. As a result, I am unable to determine the methodology of Dr. Papazoglou’s report, his background information and qualifications.

14The applicant’s use of prescription medication for anxiety and depression predated the accident and, although the types of medication she consumes have changed from time to time, the applicant has continued to rely on four or five medications to address her overall healthcare. Dr. R. Lee, family physician, prescribed medications such as Cipralex and Remeron prior to the accident. The respondent points to the fact that the applicant has been taking this medication prior to the accident because of the death of her son more than eleven years ago. The prescription summary for the period 2014 to 2020 demonstrates that no medication was increased following the accident.

15Dr. Koepfler concluded in the IE report dated June 26, 2019 that the applicant suffered no psychological impairment as a result of the accident. During this assessment, Dr. Koepfler administered six psychometric tests including the Modified Somatic Perception Questionnaire (MSPQ), the Pain Diagram, the Pain Analogue Scale, Revised Oswestry Functional Assessment Questionnaire, the Hospital Anxiety and Depression Scale (HADS) and the Injustice Experience Questionnaire (IEQ). The MSPQ is designed to measure somatic symptoms. The applicant’s score fell within the average range and reflected no significant somatic preoccupation.³ The Pain Diagram and the Pain Analogue Scale revealed no unusual symptoms or radiating features.⁴ With respect to the Oswestry, her score indicated that she experiences moderate impairment in lifting, recreational activities and driving. The HADS assessment revealed no significant anxiety or depression.⁵ Her IEQ scores indicated that she does not perceive herself as a victim or view her present situation as permanent.⁶ Based on the psychometric evaluation tests, Dr. Koepfler concluded that the applicant has no significant somatic preoccupation, anxiety or depression. Dr. Koepfler did acknowledge that the applicant had a history of depression and anxiety since her son’s death more than eleven years ago. Dr. Koepfler concluded that the psychological assessment was not reasonable and necessary as the applicant does not suffer from psychological impairment as a result of the accident. Dr. Koepfler also stated that there is no indication that the applicant “suffers from a complete inability to engage in a normal life”⁷ and that “from a psychological perspective, Ms. Watson’s injuries are predominantly minor”.⁸

16The applicant made no complaints of psychological symptoms to her family physician following the accident. The clinical notes of Dr. Lee, family physician, include reports of depression and anxiety when describing the applicant’s state of mind prior to the accident.⁹ After the accident, however, Dr. Lee never recorded depression or anxiety in his clinical notes and records. Moreover, there is no evidence demonstrating that Dr. Lee referred the applicant to a psychologist for further investigation of psychological symptoms. One could infer from Dr Lee’s clinical notes and records that Dr. Lee is not of the view that the applicant is suffering from psychological impairments as a result of the accident.

17Dr. Koepfler maintained her diagnosis in an addendum report dated August 28, 2020. Dr. Koepfler reviewed Dr. Lee’s the clinical notes and records and concluded that the applicant did not suffer from psychological impairment and that her injuries were predominantly minor. In her report, Dr. Koepfler also opined that there was no reason that the applicant could not achieve maximum medical recovery.¹⁰

18I prefer the findings of Dr. Koepfler to those of Dr. Papazoglou because Dr. Koepfler administered psychometric tests to determine the applicant’s psychological state, prepared a detailed written assessment and conducted a paper review of the applicant’s medical records. In comparison, Dr. Papazoglou wrote a one-page summary at the end of a treatment plan that he prepared, did not conduct any psychometric tests and relied only on the applicant’s self reporting.

19I find that the applicant has not met her onus to demonstrate that she suffers psychological impairments as a result of the accident. The psychological IE report prepared by Dr. Koepfler indicated that the applicant’s psychological impairments are minor and her assessment is in keeping with the family doctor’s views of the applicant’s psychological state of mind. I, therefore, conclude that the applicant has not established any psychological impairments as a result of the accident.

Chronic Pain

20Chronic pain is not included in the “minor injury” definition in s. 3 of the Schedule. Reference to chronic pain can be found in Appendix D “Getting the Facts about Whiplash Brochure” under the section “Avoiding Chronic Pain”.¹¹ This section recommends that whiplash sufferers not overestimate their physical damage, accept the advice of health care professionals and move on with their life. This statement infers that the legislation was not drafted with the intention of addressing the needs of chronic pain suffers. As there is no definition for chronic pain in the MIG, one must look to criteria defined by alternative sources.

21In MNM v. Aviva¹², the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) were used as criteria against which chronic pain should be assessed. According to the AMA Guides at least three of six criteria should be met to establish chronic pain syndrome. These criteria include:

a. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

b. excessive dependence on healthcare providers;

c. secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain;

d. withdrawal from one’s social milieu, including work, recreation and other social contacts;

e. failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family or recreational needs;

f. and the development of psychosocial sequelae after the initial incident including anxiety, fear-avoidance, depression or non-organic illness behaviours.

22In cases such as 16-000438 v. The Personal Insurance Company and 17-005000¹³ v. RBC Insurance Company,¹⁴ the Tribunal has determined that chronic pain includes the following factors:

a. Ongoing pain must be accompanied by a functional impairment;

b. Chronic pain must be diagnosed as chronic pain syndrome or must be at a level that is continuous and of a severity that it causes pain and suffering;

c. A diagnosis of chronic pain without any discussion of the level of pain will not meet the applicant’s burden to show that chronic pain is more than sequelae.¹⁵

23With respect to the AMA Guides, I find that the applicant does not meet any of the six AMA criteria for assessing chronic pain. There is no evidence that demonstrates the applicant was dependent or abuses the medications that she was prescribed. As noted previously, the prescription summaries in Dr. Lee’s clinical notes and records, which start at the same date as the first entry of clinical notes and records (August 11, 2014) showed no increase in medication following the accident. She does not have excessive dependence on healthcare workers. She demonstrates no signs of deconditioning due to disuse or avoidance and continues to perform the normal activities of daily living although her husband helps her with some household chores. She still enjoys her per-accident activities such as walking. She is not socially isolated. She visits members of her family and is involved with the people who attend her church. As previously noted, there is no evidence demonstrating that the applicant developed any psychological sequalae following the accident.

24The applicant’s pain does not appear to meet any of the principles outlined in cases such as 16-000438 v. The Personal Insurance Company or 17-005000 v. RBC Insurance Company. None of the physicians who have examined the applicant have identified a functional impairment or stated that she suffers from continuous severe pain. The applicant, herself, and Dr. Lee have not described her pain in such terms.

25Dr. Lee’s clinical notes and records do not demonstrate that the applicant suffers from chronic pain. The applicant met with Dr. Lee at least nine times following the accident, but complained of back pain only three times. The first occasion was September 13, 2018 (five weeks after the accident) when the applicant complained about low back pain but Dr. Lee made no diagnoses of her injuries. Dr. Lee recommended life-style changes and noted that she was already attending physiotherapy sessions. Two months later (December 20, 2018) the applicant saw Dr. Lee again at which time she did not complain about her lower back pain. The applicant reported low back pain again to Dr. Lee on January 8, 2019, which she attributed to the accident.¹⁶ Dr. Lee noted that she was continuing physiotherapy sessions but provided no diagnosis.¹⁷ The applicant then saw Dr. Lee again on March 7, 2019, June 25, 2019, September 19, 2019, December 18, 2019, March 11, 2020 and April 25, 2020 without any reference to lower back pain. On October 7, 2020 (two years after the accident) Dr. Lee then stated that the applicant was suffering from “chronic recurrent right lower back pain” in his clinical notes and records.¹⁸ Dr. Lee, however, did not recommend any medication or treatment. Instead, he continued to recommend life-style changes such as diet, exercise and meditation. It should be noted that he did not refer the applicant to a chronic pain specialist.

26Dr. M. Hanna, a physician, found that the applicant demonstrates functional range of motion. Dr. Hanna assessed the applicant on June 4, 2019 and prepared a report dated June 26, 2019. He noted that he could not identify any evidence of radiculopathy, myelopathy or neuropathy or any evidence of permanent impairment. In fact, Dr. Hanna’s opinion was that the applicant sustained no more than “sprain/strain type injuries”. Dr. Hanna concluded in the report that the applicant sustained soft tissue injuries as a result of the accident and that her injuries were minor as defined in the Schedule.¹⁹ Dr. Hanna further concluded that additional facilities-based rehabilitation was unlikely to add any long-term benefits and that the applicant did not suffer an inability to carry on a normal life as a result of the accident.²⁰

27Two years after the accident (October 7, 2020), the applicant complained to her family doctor about ongoing back pain. She was diagnosed with chronic recurrent lower back pain, muscle imbalance and osteoarthritis. A month later (November 2, 2020), the applicant went to Brampton Civic Hospital complaining of a pain in her left groin, which was radiating to her left leg. She was diagnosed with sciatica and discharged the same day.²¹ At the end of November, the applicant saw Dr. Lee again because of lower back pain. Dr. Lee noted very significant myofascial spasm and recommended continued physiotherapy.²² Given that the applicant was discharged the same day without a medication prescription and was only in the emergency ward for a few hours, the applicant never demonstrated that her symptoms were more than a sequalae of soft tissue injuries.

28Dr. Hana maintained his conclusion following an examination of the applicant again on November 9, 2020. Dr. Hanna concluded that the applicant sustained no more than a sprain/strain injury to her cervical, thoracic and lumbar regions and her left knee as well as tension headaches. According to Dr. Hanna, there was no evidence of radiculopathy, myelopathy and neuropathy. Dr. Hanna concluded that the applicant’s injuries would be considered as a minor injury as defined by the Schedule.²³

29Dr. Hana’s report referred to the AMA Guides when determining whether the applicant suffers from chronic pain syndrome. He opined that the applicant would meet one of six criteria of the fourth edition of the AMA Guides and none of the sixth edition. As previously stated, I find that the applicant would not meet any of the criteria in the sixth edition.

30It is not clear as to whether Dr. Lee diagnosed the applicant with chronic pain or whether Dr. Lee was making notes to reflect the applicant’s self reporting. Even if it was a diagnosis of chronic pain by a family doctor it does not necessarily mean that the applicant suffers from chronic pain syndrome which includes a detrimental functional impairment. Dr. Lee may mention this as a passing concern, but it should be kept in mind that to be recognised as chronic pain the pain must be continuous and ongoing and cause functional impairment. Dr. Lee maintained his diagnosis and recommended treatment following the applicant’s complains of lower back pain in October 2020. In the applicant’s case, Dr. Lee consistently suggests life stye recommendations i.e. diet and exercise.

31I prefer the findings of Dr. Hanna to that of the applicant’s family doctor who has diagnosed her with chronic pain. Dr. Hanna has conducted two extensive musculoskeletal examinations which included the review of numerous medical documents such as the psychological report prepared by D. Koepfler, the Occupational Therapy Assessment by Ms. Bhatnagar, the Disability Certificate, seven treatment plans, the prescription summary and the clinical notes and records of William Osler Health System. Dr. Hanna also undertook a review of the applicant’s medication history. Dr. Hanna noted in her report dated June 26, 2019 that in formulating her medical opinion she had considered the clinical and functional status of the applicant, the extent of the accident-related injuries, the impact of psychosocial factors, physical examination findings, radiological findings and the available medical literature.²⁴ Moreover, Dr. Hanna conducted a second musculoskeletal assessment on October 26, 2020 which included another extensive medial documentation review. Her corresponding report dated November 9, 2020 was as detailed as her first report which was issued on June 26, 2019. Dr. Hanna used the Miller Forensic Assessment of Symptoms, a validity test to ensure the applicant was not magnifying her symptoms when conducting both assessments. The results of both musculoskeletal examinations are very similar, which essentially verifies the results of both examinations. Dr. Lee examined the applicant, depended on the applicant’s self reporting and wrote a sentence in his clinical notes and records.

32I find that the applicant has not demonstrated on a balance of probabilities that she suffers from chronic pain.

33The applicant sustained a minor injury as defined in the Schedule and has exhausted the $3,500.00 funding limit for medical and rehabilitation benefits. Thus, it is unnecessary to assess whether the treatment plans in dispute are reasonable and necessary.

34Interest is only payable on the overdue payment of benefits. Having found that no benefits are payable, it follows that no interest is payable.

Costs

35Rule 19 of the Licence Appeal Tribunal (“LAT”) Rules states that where a party believes the other party has acted unreasonable, frivolously, vexatiously or in bad faith, the party may make a request to the Tribunal for costs.²⁵ Rule 19.4 of the LAT Rules requires the party seeking costs to provide submissions to set out the particulars of the respondent’s conduct that are alleged to be unreasonable, frivolous, vexatious or in bad faith. A party may act in a manner that hinders the efficiency of the Tribunal process but without the actions being unreasonable, vexatious and in bad faith the party’s actions may not merit a costs award.

36The applicant submits that she should be awarded costs because the respondent’s conduct was unreasonable and vexatious, and hinders the efficiency of the Tribunal process. The applicant did not provide examples of the respondent’s bad behaviour. Moreover, I saw no evidence of such behaviour on the part of the respondent.

37I am of the view the applicant has not demonstrated that the respondent’s actions were intended to be unreasonable, frivolous, vexatious and in bad faith.

CONCLUSION

38I find that the applicant sustained a minor injury as a result of the accident.

39I find that the applicant is not entitled to any of the treatment and assessment plans which propose goods and services outside the MIG.

40No interest or costs are payable.

Released: December 28, 2022