Zeledon v. Aviva Insurance Company, 2022 CanLII 124642

Zeledon v. Aviva Insurance Company, 2022 ONLAT 20-006269/AABS

Citation: Zeledon v. Aviva Insurance Company, 2022 ONLAT 20-006269/AABS

Licence Appeal Tribunal File Number: 20-006269/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:

Marilu Zeledon

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Pierre R. Lavigne

Written Submissions by:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Savneet Multani, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

REASONS FOR DECISION AND ORDER

BACKGROUND

1Marilu Zeledon, (“the applicant”) was involved in an automobile accident on September 29, 2015, and sought benefits from Aviva Insurance Company, (“the respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (“the Schedule”). The respondent denied the applicant’s claims, because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the MIG).¹ As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.

2The applicant was the belted driver of a motor vehicle when a vehicle, ahead of her and in a lane to her right, lost control, struck the right curb and rebounded across her lane causing her vehicle to strike the other vehicle. The applicant sustained injuries to her neck and back because of the impact.²

ISSUES

3The issues for the hearing are:

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 of the MIG?

b. Is the applicant entitled to a medical benefit of $3,466.16 for Chiropractic proposed by New Age Recovery Rehabilitation Services Inc., in a treatment and assessment plan dated September 30, 2015?

c. Is the applicant entitled to a medical benefit of $2,416.12 for Chiropractic services proposed by New Age Recovery Rehabilitation Services Inc., in a treatment and assessment plan dated November 11, 2015?

d. Is the applicant entitled to a medical benefit of $3,148.70 for Chiropractic services proposed by 101 Physio, in a treatment and assessment plan dated February 7, 2020?

e. Is the applicant entitled to a medical benefit of $2,000.00 for a psychological assessment, proposed by New Age Recovery Rehabilitation Services Inc., in a treatment and assessment plan December 9, 2015?

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

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

RESULT

4I find that the applicant sustained a chronic pain impairment that is not predominantly a minor injury within the definition of the Minor Injury Guidelines.

5I find that the applicant is entitled to the medical benefits described in paragraphs 3b, 3c above together with interest pursuant to s. 51 of the Schedule.

6I find that the applicant is not entitled to the medical benefit described in paragraph 3d and 3e above.

7I find that the applicant is entitled not entitled to an award under Regulation 664.

8I find that the applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (MIG)

9The 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.

10Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

Applicant’s evidence

11On September 25, 2015, the day of the accident, the applicant refused transport to the hospital by ambulance, but was later brought by her husband to the Emergency Department of the Humber River Regional Hospital. She was assessed and diagnosed with neck and lower back pain. She was released with a prescription for Naproxen.

12On September 30, 2015, the applicant attended New Age Recovery Rehabilitation Services Inc., where she was assessed by Dr. Sean Kerr, Chiropractor, who described the complaints and injuries directly caused by the accident as: post-concussionnal syndrome, headache, hypermobility syndrome, arthrosis, coxarthrosis, subluxation complex, biomechanical lesions, sleep disorders and adjustment disorders. Dr. Kerr noted that the applicant reported previous lower back pain one year before, with no formal therapy other than prescription pain medication. The applicant reported that the lower back pain had worsened since the accident. Dr. Kerr recommended various active and passive treatment modalities, including physiotherapy, massage and acupuncture.

13On October 2, 2015, the applicant was seen by Dr. Grewal, a physician, who confirmed that her back was painful from the neck to the lower back.

14The disability certificate OCF-3 of October 9, 2015, indicated that it was estimated that treatment would be in excess of 12 weeks because of the nature and severity of the accident, the various multiple injuries and the previous lower back pain.

15On November 25, 2015, the applicant saw Dr. Gobrial reporting anxiety, stress and panic while driving, following the September 2015 motor vehicle accident.

16On December 9, 2015, the applicant was seen by Dr. Nina, Belyakova, to assess whether the applicant warranted a complete psychological report to determine the extent and severity of any psychological impairment caused by the motor vehicle accident.

17On May 17, 2016, she was seen by Dr. M. Gobrial, physician, complaining of continuing on/off back pain for last few months after the motor vehicle accident of September 2015. The pain that was worse with prolonged standing, and that had recently become worse. Dr. Gobrial found that the applicant was still tender in the lumbar paravertebral area with limited range of motion.⁴ Dr. Gobrial’s assessment was of acute “lumbar strain lumbago coccydinia sciatica”. He prescribed muscle relaxants” and recommended local heat, massage, back strengthening exercises and to avoid aggravating activities.

18On June 29, 2017, the applicant attended the emergency department of Mississauga Hospital with a chief complaint of lower back pain. She also reported a history of an ovarian cyst from early March 2017. The applicant was administered Toradol, Morphine, Gravol, Flexeril for the back pain and discharged with a diagnosis of back pain.

19The applicant saw Dr. Egbuniwe in September 2017 for ongoing lower back pain. Dr. Egbuniwe noted that she was not responding to medication and had right lumbar tenderness. She also reported experiencing constipation daily and was taking laxatives. Dr. Egbuniwe’s plan was to continue muscle relaxants. Dr. Egbuniwe’s notes indicate that she was questioning whether the ongoing lumbar pain might be due to a “lumbar spine pathology”. To rule that out, she ordered an MRI of the spine and pelvic area. She prescribed cyclobenzaprine, a muscle relaxant and ketorolac for pain.

20The MRI report of November 9, 2017, concluded that the spinal cord was normal, lumbar disc spaces were normal. There was mild disc disease of the lower lumbosacral spine without evidence of stenosis.

21On November 13, 2017, the applicant was seen by Dr. Egbuniwe. Her notes record that the applicant was still experiencing on and off pain from her groin moving to her back. This was of sufficient severity that sometimes she cannot walk. Dr. Egbuniwe renewed her prescription for cyclobenzaprine and ketorolac.

22On November 22, 2017 Dr. Egbuniwe examined the applicant again and found a “stiff, tender lumbar region”. She referred the applicant to Dr. Malempati, an orthopedic surgeon, for further management “as all conservative management have so far failed”. In her letter of referral, she states that the applicant “has had ongoing back pain for over 2 years but the pain has progressed.

23On May 28, 2018 Dr. Egbuniwe again examined the applicant and found her back stiff with a reduced range of motion. She continued to manage the applicant with muscle relaxants until she could be seen (Haleem) at the pain clinic managed by Dr. Andrew B. Cooper for her lower back pain.

24She was seen June 25, 2018, by Dr. Cooper and received a prescription and counselling with respect to the use of Cannabis oil for pain relief, sleep initiation and continuity.

25She was seen again on November 22, 2018, by Dr. Egbuniwe. Following this visit, Dr. Egbuniwe referred the applicant to other physicians for “further pain management as all conservative management have so far failed.” Particularly noteworthy in the referral letter are the statements that “She was involved in a road traffic accident in 2015 that precipitated her back pain.” and “She presented again to the clinic having resigned from her current job due to extreme pain, …”

26On February 7, 2020, the applicant attended 101 Physio for assessment and treatment. Dr Coghlan, a Chiropractor, diagnosed her with low back pain, with a plan of treatment of physio, hot and cold therapy, manipulation and acupuncture to address her low back pain.

Respondent’s evidence:

27The respondent provided little evidence, past the three-to-six-month post-accident, to counter the Applicant’s self-reports of chronic pain and her family physician’s confirmation of neck and lower back pain continuing for more than four years.

29The respondent’s only physiatry examination of the applicant was on November 2, 2015, only five weeks post-accident. This report, by Dr. F. Ismail, concluded that the applicant suffered injury to the cervical and lumbar spine caused by the accident. He noted the applicant’s neck and back pain to be self-reported at 8 out of 10 level and intermittent. The neck pain radiated to the back of the head causing headaches. The neck pain was alleviated by Advil which the applicant reported taking 8 times a week. The low back pain was alleviated by massage, which would provide 2 days of relief after which the pain was back. It was Dr. Ismail’s opinion that her injuries could be treated within the Minor Injury Guidelines.

30The applicant condition was assessed several times for psychological impairment by the respondent’s medical examiners. However, the applicant relies on chronic pain and not any psychological impairment to remove herself from the limits of the Minor Injury Guidelines.

Applicant’s submissions:

31The applicant’s principal submission was that pain, not resolving within the expected time of recovery for a minor injury, amounts to an impairment that is not “predominantly minor” and is sufficient to remove the applicant from the limits imposed by the Minor Injury Guidelines. For this proposition, the applicant relied on the decisions of Arruda v. Western, FSCO A13-003926 (Arruda) and BU v. Aviva, 2016 CanLII 96167 (ON LAT) (BU).

Respondent’s submissions:

32Respondent relied upon 17-004847 v Aviva General, 2018 CanLII 81912 (ON LAT), 2018 CanLII81912 (ON LAT), for the proposition that to remove an applicant from the monetary limits set by the Minor Injury Guidelines, chronic pain must be of accompanied by a functional impairment that rises to a certain level. The respondent submits that the applicant failed the satisfy that the chronic pain results in suffering and distress rising to a certain level and that it caused a functional impairment.

33The Respondent also submits that fulfilling the Chronic Pain Syndrome diagnostic criteria under the 6th edition of the AMA Guides is a requirement to be removed from the MIG. I reject this submission. As noted above, in Guarantee, the Tribunal found a formal diagnosis of Chronic Pain Syndrome is not a requirement. I agree that a diagnosis of Chronic Pain Syndrome is not a requirement for chronic pain to be an impairment that is not predominantly minor.

Findings on Chronic Pain and the MIG

34I find that the applicant’s consistent self-reporting of her lower back pain for over four years, the interference with her ability to walk and work, as evidenced by her resignation from her employment due to the chronic pain, establish sufficient functional impairment that her injury is not “predominantly minor”. Accordingly, she is no longer bound by the $3,500 monetary limit of the MIG.

35Counsel for the respondent submitted that in Dr. Egbuniwe’s notes of June 20, 2017 and November 13, 2017, as well as the Mississauga hospital visit on June 29, 2017 the applicant complained of abdominal pain radiating to her back. Based on these notes counsel submitted that her back pain was the result of an ovarian cyst or constipation. This is conjecture on the part of counsel. The medical records do not conclude that either of these concurrent conditions were the cause of her back pain. On the contrary. Dr. Egbuwine’s November 2018 letter of referral to orthopedic surgeons, states that the back pain was precipitated by the 2015 accident.

36Counsel for the respondent relied on 17-004847 v Aviva General, 2018 CanLII 81912 (ON LAT), 2018 CanLII81912 (ON LAT) to establish the test for pain sufficient to remove the applicant from the MIG. In that decision, arbitrator Boyce found, at para. 11, that chronic pain was sufficient to remove one from the MIG where the pain was “based on the applicant’s self-reporting and the consistent referrals to and from various practitioners that his pain has persisted over four year and has gotten to the point where it is unbearable.” The arbitrator also found that even if he were to discount the diagnosis of chronic pain from an accomplished chronic pain specialist, the pain caused enough functional impairment to remove the applicant from the MIG. In my view the evidence establishes that the applicant has met the test outlined in this decision.

37In reaching my conclusion on the issue of removal from the Minor Injury Guideline, I was also guided by a more recent decision of this Tribunal dealing with the issue of chronic pain. In C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT), (“Guarantee”), the Tribunal reviewed decisions dealing with chronic pain and the MIG and agreed, at paragraph 37, with the decision in P.L and Aviva, 2019 CanLII 22223 (ON LAT) that a formal diagnosis of Chronic Pain Syndrome is not required to remove an applicant from the MIG, provided that chronic pain is present beyond three to six months post-accident. This decision disposes of the respondent’s submission that a formal diagnosis of Chronic Pain Syndrome from a recognized expert is necessary for removal from the MIG.

38The weight of the evidence is that the motor vehicle accident caused or aggravated an existing back impairment. This led to a level of back pain that did not exist before the accident. I find that the Applicant’s multiple visits with treating physicians starting in May 2016, five months after the accident, establishes a pattern of persistent intermittent back and neck pain. Dr. Egbuniwe’s examination in November 2018 establishes both functional impairment and pain of a disabling level. The applicant’s pain is chronic well beyond the three-month anniversary of the accident. The evidence demonstrated that the pain, though waxing and waning, is severe. As for functional impairment, the pain intermittently interferes with her ability to walk and is so disabling that the applicant was compelled to resign her employment. The applicant’s impairment is not a predominantly minor injury.

39Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

40The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.⁵

Is a medical benefit of $3,466.16 for Chiropractic services proposed by New Age Recovery Rehabilitation Services Inc, in a treatment and assessment plan dated September 30, 2015, reasonable and necessary?

41The accident occurred on September 29, 2015, and the applicant was seen by Dr. S. Kerr, chiropractor, on September 30, 2015. Dr. Kerr’s description of the applicant’s injuries with, the most significant first, was: post concussion syndrome, headache, hypermobility syndrome, arthrosis unspecified, vertebral subluxation, other sleep disorders and adjustment disorder. Dr. Kerr noted the applicant had previous lower back pain one year before the accident which the applicant reported was worse since the MVA. Dr. Kerr’s goals of treatment were pain reduction and increased range of motion with the aim of return to activities of normal living.

42Dr. S. Alam, a chiropractor, examined the applicant on October 9, 2015, and completed her OCF-3 Certificate of Disability. He indicated that the applicant and was taking Naproxen, OTC Advil and Tylenol as needed. Dr. Alam concluded that though the applicant was substantially unable to perform the essential tasks of her employment she could return to work on modified hours and/or duties. Dr. Alam estimated that substantial inability to carry on a normal life was likely to last for more than 12 weeks because of the nature and severity of the accident.

43On November 2, 2015, the applicant was examined by the insurer’s assessor, Dr. F. Ismail, physiatrist. In his November 16, 2015, Multidisciplinary Assessment Report he found that applicant experienced pain in the low back on active forward flexion of the lumbosacral spine whenever her fingertips were at the level of the proximal third of the tibia. He confirmed that she had suffered soft tissue injuries to her cervical and lumbar spine caused by the accident. The applicant confirmed to Dr. Ismail that the massage therapy provided up to two days of symptom relief with pain returning to pre-treatment levels thereafter. This is corroboration of the effectiveness of the interventions rendered pursuant to this treatment plan. The goals of treatment were being met.

44The respondent’s submission, at para. 24, that Dr. Ismail’s conclusion of the absence of musculoskeletal or neurological impairment supports the conclusion that physical treatment described in this treatment plan was unreasonable and not necessary is not supported by Dr. Ismail’s report. On the contrary, Dr. Ismail was of the opinion that she sustained soft tissue injuries of her cervical spine and lumbar spine as a result of the accident and that these injuries could be treated within the Minor Injury Guidelines. He was only asked if the treatment plan was necessary and reasonable if her injuries could not be treated within the MIG. He expressed no opinion on the necessity or reasonableness of treatment within the Guidelines.⁶

45I find that this treatment plan was reasonable and necessary in light of the applicant’s documented and corroborated injuries and the need for pain relief and increased flexibility to return to her full activities of normal living. The applicant’s statements to Dr. Ismail confirmed that the treatment was providing some relief. This confirmed that the goals of treatment were being met.

Is the applicant entitled to a medical benefit of $2,416.12 for Chiropractic services proposed by New Age Recovery Rehabilitation Services Inc, in a treatment and assessment plan dated November 11, 2015?

46The respondent submitted that this November 11, 2015, treatment plan is identical to the September 30, 2015 treatment above. The respondent did not raise this objection, that this treatment plan was a duplicate, at the Case Conference. The Case Conference Report and Order confirmed that this treatment plan was in issue.

47I disagree that this treatment plan is identical to the September 30, 2015, treatment plan. This second $2,416.12 treatment plan is a follow up treatment plan subsequent to the first, not a duplicate. The services outlined in Part 12 of this second plan proposes 25 services to be provided while the $3,466.16 treatment plan proposes 36 different services, with different total prices. There is no basis for submitting that these treatment plans were identical, other than similar treatments were provided for a longer period than the first treatment plan.

48This second treatment plan was denied based on Dr. Ismail’s November 15, 2015, IE report that concluded the applicant’s injuries were within the MIG. Dr. Ismail confirmed that on November 2, 2015 she still had restriction of movement and was not fully recovered. For this reason, further treatment was reasonable and necessary. As indicated above with respect to the first treatment plan, Dr. Ismail expressed no opinion on the necessity and reasonableness of this treatment plan. The evidence of Dr. Kerr, in the treatment plan, is uncontradicted and supports the finding of necessity and reasonableness. I find that this second treatment plan of November 11, 2015, was reasonable and necessary.

Is the applicant entitled to a medical benefit of $3,148.70 for Chiropractic services proposed by 101 Physio, in a treatment and assessment plan dated February 7, 2020?

49This plan was submitted over four years after the 2015 accident. It was denied by the respondent on February 11, 2020, because previous insurer examinations had determined that there was no compelling medical documentation to support the claim, the injuries had been determined to fall within the Minor Injury Guidelines and the claim had been inactive for over two years.

50The respondent also submits that the Applicant indicated to psychologist Dr. Rubenstein, who examined her on behalf of the respondent again in May 2018, that she thought the physiotherapy was of limited use and she wished to discontinue.

51Though the applicant continued to report back pain to her family physician between May 2018 and the February 2020 treatment plan I can find no recommendation by her family physician that she pursue further physiotherapy. On the contrary Dr. Egbuniwe in her orthopaedic referral letter of November 2018 indicated that conservative treatments, such as physiotherapy had failed. In the absence of any recommendation for a further trial of physiotherapy, I find that the applicant has not established that this treatment plan, consisting of mostly physiotherapy, was necessary. Accordingly, I find the applicant was not entitled to this benefit.

Is the applicant entitled to a medical benefit of $2,000.00 for a psychological assessment, proposed by New Age Recovery Rehabilitation Services Inc, in a treatment and assessment plan December 9, 2015?

52In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists.

53Dr. S. Alam, Chiropractor, in his OCF 3 disability certificate of October 9, 2015, opined that the applicant’s symptoms of anxiety were such that a psychological assessment was required.

54This evidence was sufficient indication of the necessity of a psychological assessment, for the respondent to have the applicant independently assessed by Dr. A. Rubenstein, psychologist, on October 26, 2015. As a result of this assessment Dr. Rubenstein co-signed with Dr. Ismail, the Multidisciplinary Assessment Report dated November 16, 2015. In that report Dr. Rubenstein concludes that the applicant was not seen to have developed any psychological impairment as a result of the injuries sustained in the subject accident.

55One month later, on November 25, 2015, Dr. Gobrial, the family doctor, noted that the applicant reported anxiety symptoms when driving and panic attacks. Dr. Gobrial prescribed Ativan and noted psychotherapy as a plan of care

57The respondent submits that when this plan was submitted, on December 17, 2015, the applicant had not submitted any clinical notes and records (CNRs) indicating that the applicant had suffered any psychological impairment as a result of the accident. The respondent submits that there is only one entry dated November 25, 2015, in Dr. Gobrial’s CNRs mentioning the applicant’s psychological disturbance. While this may be true of the family doctor’s notes, there need not be a multiplicity of observations from the family physician to indicate the need for an assessment.

58The treatment plan in question, prepared on December 9, 2015, by psychologist Dr. Belyakova, extensively canvasses the applicant’s psychological symptoms and made a provisional diagnosis of Adjustment Disorder, and specific phobia (driving and travelling as a passenger).

59Dr. Rubenstein examined the applicant again on February 16, 2016, to address the reasonableness and necessity of the December 9, 2015 treatment plan. His February 22, 2016, report also concludes that “Based on a review of the available documentation, direct observation and objective psychological testing, she is not seen to have developed any psychological impairment as a result of injuries sustained in the subject accident.”

60I prefer the evidence of Dr. Rubenstein, as he conducted objective psychological testing both before, on October 26, 2015 and after, on February 16, 2016 the proposed treatment plan dated December 9, 2015 and in each case found no psychological impairment. Dr. Belyakova’s proposed treatment plan was for the purpose of conducting such a psychological assessment. I find on the basis of Dr. Rubentein’s objective testing with negative results both before and after the proposed December 9, 2015, treatment plan that the applicant has not established on a balance of probability that this assessment plan was necessary.

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

61The applicant made no submissions and referred to no specific evidence to substantiate an award. Accordingly, I find that she has not met her onus to demonstrate entitlement to an award.

Interest

62Considering three of the treatment plans are reasonable and necessary, it follows that the applicant is entitled to interest on these plans pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

63I find and order that:

(i) The applicant sustained a chronic pain impairment that is not predominantly a minor injury within the definition of the Minor Injury Guidelines;

(ii) The applicant is entitled to $3,466.16 for chiropractic, physiotherapy, massage and acupuncture services recommended by Dr. Sean Kerr in the OCF-18 dated September 30, 2015;

(iii) The applicant is entitled to $2,416.12 for chiropractic, physiotherapy, massage services recommended by Dr. Sean Kerr in the OCF-18 dated November 11, 2015;

(iv) The applicant is not entitled to $3,148.70 for medical services recommended by Dr. Wayne Coghlan, in the OCF-18 dated February 7, 2020;

(v) The applicant is not entitled to $2,000 for a psychological assessment, recommended by Dr. Nina Belyakova, in the OCF-18 dated December 9, 2015.

(vi) There will be no award pursuant to Regulation 664.

(vii) The applicant is entitled to interest on any overdue payment of benefits in accordance with the Schedule.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Applicant’s Final submissions, para. 10
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Applicant’s submissions Tab 13
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
6. 6Respondent’s submissions, Tab 13, p. 2, answer to first and third questions.