Victoria Hazell v. Aviva General Insurance, 2022 CanLII 33195

Citation: Hazell v. TD General Insurance Company, 2022 ONLAT 19-010289/AABS

Licence Appeal Tribunal File Number: 19-010289/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:

Victoria Hazell Applicant

and

Aviva General Insurance Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Arash Goneh-Farahani, Paralegal

For the Respondent: Kristofer B. Angle, Counsel

HEARD By Way of by Videoconference: and Written Submissions October 5 and 6, 2021

REASONS FOR DECISION AND ORDER

BACKGROUND

1Victoria Hazell (“applicant”), was involved in an automobile accident on November 27, 2017 (“accident”) and suffered injuries. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by Aviva General Insurance (“respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The 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 also submits that, even if the MIG is found not applicable, the applicant has not established that the disputed treatment plans are reasonable and necessary.

3The applicant’s position is that her physical injuries sustained in the accident are not minor. Further the applicant submits her chronic pain and psychological issues caused by the accident, take her out of the MIG.

APPLICANT’S PRELIMINARY MOTION

4At the beginning of the hearing the applicant brought an oral motion seeking an Order to require the respondent to have the author of its social media report available for cross-examination if the respondent’s June 29, 2021 social media report and videos are to be admitted into evidence. The applicant submitted that she has not had time to summons the author of the report for this hearing.

5The respondent submitted that it is not necessary for the author of the social media report and video to be present at the hearing, this argument was made at a motion heard by the Tribunal September 24, 2021 and there was plenty of time for the applicant to summon the author of the report had she wished to do so.

6The Tribunal’s September 24, 2021 Order (“Tribunal’s Order”) already decided that the social media report and videos may be tendered as evidence at the hearing. However, the ultimate issue of admissibility and weight was reserved to the hearing adjudicator by the Tribunal’s Order.

7On the issue of admissibility, I agree with the reasoning contained in the Tribunal’s Order that the social media report and videos may contain relevant evidence pursuant to Rule 9.3(e) regarding the applicant’s credibility related to the issues in dispute – her potential impairments, and whether the treatment sought is reasonable and necessary pursuant to the Schedule. On the issue of weight, the weight of evidence is a matter for the hearing adjudicator. Here, if the author of the social media report and videos is not a witness, that is a matter that may affect the weight given to this evidence.

8On the question before me - whether the respondent should be ordered to produce the author of the report as a witness for cross-examination - I am not prepared to make the Order requested. The applicant’s motion is denied for the following reasons.

9I have already ruled that the evidence is admissible and the failure to call the author of the social media report and videos may affect the weight I attribute to this evidence or not. The weight to be attributed to this evidence cannot be determined at the start of the hearing when no other evidence is before me yet. Lastly, if the applicant was of the view that cross examination of the author of the social media report and videos was important to her case, she could have summonsed the author in time for the hearing. The Tribunal’s Order indicates that this report was served on the applicant on Aug 4, 2021 – approximately two months before today. The applicant’s argument that she was waiting for the motion to be heard is not persuasive. There was enough time after the hearing of the motion on Sept 24th to summons the author of the report but the applicant did not do so.

ISSUES

10The issues to be decided in this hearing are:

i. Is the applicant’s impairment of a nature that it falls within the MIG?

ii. Is the applicant entitled to a medical benefit for physiotherapy, recommended by 101 Physio for the following as set out below:

a. $5421.18 submitted May 3, 2019 and denied May 15, 2018

b. $4574.18 submitted August 20, 2018 and denied August 20, 2018

c. $4271.91 submitted December 10, 2018 and denied March 2, 2019?

iii. Is the applicant entitled to $5379.59 for psychological services recommended by 101 Physio submitted July 30, 2018 and denied August 10, 2018?

iv. Is the applicant entitled to $488.15 for the cost of transportation expenses recommended by 101 Physio to attend treatment submitted March 18, 2019 and denied March 27, 2019?

v. Is the applicant entitled to the cost of an examination for $2460.00 for a psychological assessment recommended by 101 Assessments submitted March 5, 2018 and denied March 14, 2018?

vi. Is the applicant entitled to the cost of an examination for $2128.51 for an attendant care assessment recommended by 101 Assessments submitted July 30, 2018 and denied August 10, 2018?

vii. Is the applicant entitled to the cost of an examination for $2960.00 for a driver anxiety assessment recommended by 101 Assessments submitted August 10, 2018 and denied August 10, 2018?

viii. Is the applicant entitled to the cost of an examination for $2960.00 for a chronic pain assessment recommended by 101 Assessments submitted August 10, 2018 and denied August 15, 2018?

ix. Is the applicant entitled to the cost of an examination for $2460.00 for an orthopaedic assessment recommended by 101 Assessments submitted March 26, 2019 and denied March 27, 2019?

x. Is the applicant entitled to the cost of an examination for $2190.86 for an In-Home Assessment recommended by Spine Health Care Clinic submitted January 16, 2018 and denied February 27, 2019? (All treatment plans collectively referred to as “disputed treatment plans”)

xi. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10, Regulation 664?³

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

RESULT

11The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been substantially provided by the respondent. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable and necessary. No interest is payable.

LAW

12The 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.

13To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

14The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

15Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the Applicant’s Physical Injuries In the MIG?

16I find that the applicant’s physical injuries resulting from the accident are predominantly minor injuries based on the weight of the medical evidence.

17The December 13, 2017 OCF-3, disability certificate, made by Dr. Hylton, applicant’s chiropractor, lists the applicant’s injuries as postconcussional syndrome, concussion, injury of muscle and tendon of head, whiplash associated disorder [WAD3] with complaint of neck pain with neurological signs, sprain and strain of thoracic and lumbar spine, injury of muscle and tendon at hip and thigh level, sprain and strain of shoulder joint, rotator cuff capsule, injury of nerves of shoulder and upper arm level, sprain and strain of ankle, sprain and strain of “other and unspecified parts of foot”, chronic post-traumatic headache, nonorganic sleep disorders, post-traumatic stress disorder (“ptsd”) and “shock, not elsewhere classified”. The anticipated duration of injuries is 9-12 weeks. Dr. Hylton is not qualified to medically diagnose the applicant’s injuries, physical or psychological.

18The December 22, 2017 in-home assessment report Lindsay Hamilton, applicant’s occupational therapist, noted that the applicant complained of constant ongoing left shoulder pain and tightness, constant ache in her chest, constant left forearm pain and numbness while in use, neck pain, constant lower back pain, frequent neck and jaw pain which occasionally result in headaches. Lindsay Hamilton is not qualified to medically diagnose the applicant’s injuries, physical or psychological. Further, Lindsay Hamilton reported the applicant’s left shoulder range of motion to be within normal limits, although restricted.

19The applicant told Lindsay Hamilton that she went to the hospital two days following the accident where she had a chest x-ray and was prescribed Vimovo. Although her OCF-1, application for accident benefits, indicates she did not go to the hospital following the accident, the applicant testified that she went to the hospital the next morning. No hospital records are in evidence before me.

20The applicant testified that Dr. Erry is her family physician. The applicant told Lindsay Hamilton that she went to see Dr. Erry the day after the accident and that Dr. Erry sent her for an x-ray of her shoulder, chest and neck.

21The October 17, 2017 ultrasound of a lump in her right shoulder requested by Dr. Erry shows a likely steatadenoma which predates the accident and cannot have been caused by the accident.

22Dr. Amani, applicant’s physiatrist notes in his report that the December 13, 2017 x-ray of the applicant’s cervical spine shows reversal of normal cervical lordosis suggesting pain or muscle spasm and was otherwise normal, and the applicant’s left shoulder x-rays taken the same day were also reported as normal. No fracture or other physical injury outside the MIG was reported.

23Unlike the December, 2017 imaging, the July 29, 2020 ultrasound of the applicant’s left shoulder indicates the subscapularis tendon is somewhat inhomogeneous, in keeping with underlying tendinopathy. Although the applicant testified that she believes her tendinopathy resulted from the accident, none of the applicant’s physicians have opined her tendinopathy was caused by the accident except Dr. Karmy.

24Neither of the two physiatrists that Dr. Erry referred the applicant to, diagnosed any physical injuries which would be outside the MIG. In his July, 2018 report Dr. Marchie diagnosed left biceps tendinopathy, left lateral and medial epicondylitis and right carpal tunnel syndrome, none of which he indicated were caused by the accident. In his November, 2018 report Dr. Amani diagnosed cervical strain-rule out disc herniation, left shoulder rotator cuff tendinitis, biceps tendinitis and adhesive capsulitis-rule out rotator cuff tear and internal derangement, none of which he indicated were caused by the accident. Dr. Amani also noted the applicant’s right shoulder exam is normal today.

25I prefer the evidence of Dr. Oshidari, respondent’s physiatrist, who testified that the applicant was completely independent with all her activities of daily living with pain and pacing strategies and that she drives a car. I find the testimony of Dr. Oshidari to be credible based on his training, experience and the thoroughness of his physical examination of the applicant. I accept his conclusion that he did not find any physical abnormality or an impairment and does not recommend any further investigations. Dr. Oshidari also testified that he disagreed with Dr. Marchie’s opinion because it is unreliable given that Dr. Marchie did not do the appropriate testing. Dr. Oshidari’s opinion is also consistent with the respondent’s surveillance which shows the applicant driving October 13, 2018 and working as a hairstylist in October 2018 and in August, 2019.

26Dr. Karmy, applicant’s chronic pain physician, diagnosed the applicant with a total of 15 impairments including chronic pain syndrome, chronic mechanical left ankle pain, left knee pain, mechanical bilateral hip pain, mechanical right wrist pain, mechanical lower back, upper and mid back pain, mechanical bilateral shoulder pain, mechanical neck pain, chronic post-traumatic headache, post-concussion syndrome, post-traumatic fibromyalgia after his assessment on September 10, 2018, approximately ten months post-accident. Dr. Karmy opines that the applicant should be removed from the MIG because of her post-traumatic fibromyalgia, chronic pain, aggravation of applicant’s pre-existing chronic left knee and left ankle pain and psychological problems. I give his report little weight for the following reasons.

27Firstly, Dr. Karmy’s report is addressed to 101 Physio. Dr. Karmy does not identify the “referring party” mentioned in his report but given that his report was not addressed to Dr. Erry or other treating physician, or copied to Dr. Erry or other treating physician and given that there is no evidence before me that Dr. Erry referred the applicant to Dr. Karmy, it is more likely than not that Dr. Erry was not the referring physician, tending to indicate that Dr. Erry did not consider chronic pain assessment or investigation necessary. Dr. Karmy states in his report that he specifically pointed out to the applicant that his assessment was for “insurance purposes only”.

28Secondly, Dr. Karmy is a physician who describes himself as a chronic pain physician but does not use any specialist credentials except certification by Canadian Academy of Pain Management.

29Thirdly, Dr. Karmy appears to accept the applicant’s self-reporting to him that the day following the accident, she had “unbearable pain” and was diagnosed at the hospital with a concussion, without having reviewed the hospital records. The applicant’s hospital records are not listed as in Dr. Karmy’s report as having been reviewed by him as part of his assessment.

30Fourthly, Dr. Karmy reports that the applicant’s pre-existing left knee and left ankle pain was significantly aggravated by the accident. This is inconsistent with the applicant’s evidence at this hearing that she did not have any pre-existing medical conditions pre-accident.

31Fifthly, Dr. Karmy appears to accept the applicant’s self-reporting that she takes Advil and Tylenol but does not find them helpful in alleviating her chronic pain. This is contrary to what the applicant told other assessors both before and after Dr. Karmy’s assessment.

32Sixthly, Dr. Karmy mistakenly refers to the applicant’s October 18, 2017 ultrasound of a palpable lump in the right shoulder as imaging “after the subject accident” when in fact it was more than one month prior to the accident. Lastly, Dr. Karmy diagnoses the applicant’s 15 impairments “caused by the accident” based on the applicant’s self-reporting, his physical examination of the applicant, post-accident cervical spine imaging which showed reversal of the normal cervical lordosis suggesting pain or muscle spasm, and imaging of the applicant’s left shoulder which was normal, and a review of some of the applicant’s medical records. Dr. Karmy attributes the applicant’s fibromyalgia, tendinopathy, trochanteric bursitis, osteoarthritis, aggravation of her enthesopathy, sleep disorder, headache and pain in her neck, shoulders, back, right wrist, hips, left knee and left ankle to the accident without sufficient objective testing or sufficient explanation of the criteria used.

33Dr. Basile, applicant’s neurologist, in his December 3, 2018 report diagnosed the applicant with “likely accident related” left-sided C6-7 cervical radiculopathy and left-sided L5 lumbosacral radiculopathy, posttraumatic headaches including greater and lesser occipital neuralgias bilaterally, tension type headaches, chronic daily medication overuse headaches, ongoing vertigo consistent with benign paroxysmal positional vertigo versus post traumatic labyrinthitis versus changes secondary to the post concussive syndrome and musculoskeletal soft-tissue injuries as a source of her pain in the neck and back.

34I give Dr. Basile’s report little weight for the following reasons. Firstly, this diagnosis, made approximately one-year post-accident, is not supported by any records of Dr. Erry before me showing the applicant complained of these symptoms to Dr. Erry or that Dr. Erry referred the applicant to Dr. Basile or any other neurologist for further investigation, tending to indicate that Dr. Erry did not consider neurological assessment or investigation necessary. Dr. Basile does not say who referred the applicant to him for assessment and does not show Dr. Erry as copied with his report.

35Secondly, it appears that the applicant did not follow the recommendations of Dr. Basile who recommended another assessment in about six months to determine how the applicant is progressing. The applicant brought forward no evidence that this was done.

36Thirdly, some statements in Dr. Basile’s report indicate he may not have been made fully aware of the applicant’s circumstances. For example, Dr. Basile indicates the applicant’s ability to take part in childcare and family responsibilities is diminished. The applicant does not have children. Dr. Basile reported that the applicant said in the accident she was jolted forwards and backwards and then left and right. There are no family physician or hospital records made at the time of the accident that corroborate this. In cross-examination, the applicant stated that this description of what happened in the accident “made sense to her” because the impact “could have come from any direction” even though the deer hit the passenger side of the vehicle she was driving. Dr. Basile reported that pre-accident the applicant “had sole responsibility for all household and housekeeping activities”. The applicant told others that she resided with several other adult family members pre-accident.

37Dr. Getahun, applicant’s orthopaedic surgeon, in his April 13, 2019 report diagnosed strain, and left shoulder internal derangement with “possible” rotator cuff pathology. Strain is clearly an injury within the MIG. The diagnosis of “possible” rotator cuff pathology is not enough to take the applicant’s injuries out of the MIG, without more, in the particular circumstances of this case.

38I find that the applicant’s physical injuries from the accident are within the definition of “minor injury”. However, the applicant argues that her psychological issues and chronic pain remove her from the MIG.

Does the Applicant have Psychological Impairment Caused by the Accident that would Remove Her from the MIG?

39I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from psychological impairment caused or exacerbated by the accident justifying treatment beyond the MIG.

40As discussed above, I have found that the applicant was driving again shortly after the accident. Although the applicant testified that she complained to Dr. Kako, another family physician, of driving issues, no records of Dr. Kako corroborating this were put in evidence at the hearing.

41Although the applicant testified that she sustained a psychological impairment in the accident, the weight of the medical evidence does not support this.

42There is little support in the records of the applicant’s family physicians that she suffered psychological impairment as a result of the accident.

43Although Dr. Karmy opines that the applicant should be removed from the MIG because of her psychological issues, Dr. Karmy appears to rely on Dr. Tenenbaum’s July 6, 2018 psychological assessment report for this conclusion. For this reason, I give Dr. Karmy’s opinion on this issue little weight.

44Dr. Tenenbaum, applicant’s psychologist, in a July 6, 2018 report, diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, specific phobia (driving related) and somatic symptom disorder and her injuries were outside the MIG all of which Dr. Tenenbaum attributed to the accident. Dr. Tenenbaum also assessed the applicant for driving anxiety and on October 15, 2018 recommended driver integration. I give Dr. Tenenbaum’s reports little weight as it is not sufficiently explained how these psychological injuries could have been caused by the accident. Regarding capacity to drive, the weight of the evidence is that the applicant returned to driving shortly after the accident.

45I prefer the opinion of Dr. Challis, respondent’s psychologist over that of Dr. Tenenbaum who noted the applicant’s disinterest in undergoing psychological intervention any psychological issues from the accident. The opinion of Dr. Challis is consistent with the totality of the evidence including the fact that the applicant was driving and working shortly after the accident, made no significant complaints of psychological impairment to her family physician post-accident.

46As a result, I find that the applicant’s medical records do not contain persuasive evidence of psychological impairment caused by the accident that will prevent the applicant from achieving maximal recovery if treated within the MIG. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Does the Applicant have Chronic Pain That Would Remove Her from the MIG?

47I find that the applicant does not have chronic pain resulting from the accident justifying treatment beyond the MIG based on the weight of the medical evidence.

48The applicant did not point to any records of her family physicians diagnosing her with chronic pain or chronic pain syndrome or referring her to a chronic pain specialist.

49Post-accident, the applicant’s pain is not so great that she takes medication consistently, tending to indicate that her pain is likely not the debilitating and functionally impairing pain type of chronic pain that might remove the applicant from the MIG. In December, 2017 the applicant told Lindsay Hamilton that she was not taking any medication for pain although she had “constant” ongoing left shoulder pain and tightness, “constant” ache in her chest, “constant” left forearm pain and numbness while in use, neck pain, “constant” lower back pain, “frequent” neck and jaw pain which occasionally resulted in headaches, In November, 2018, approximately one year post-accident, Dr. Amani also noted that the applicant told him she was not using any pain medications or NSAIDs. Dr. Getahun, applicant’s orthopaedic surgeon, in his April 13, 2019 report states that the applicant told him she currently takes no medication for her symptoms.

50Neither of the two physiatrists Dr. Erry referred her to, Drs. Marchie and Amani, diagnosed chronic pain or chronic pain syndrome.

51Although the applicant testified that she complained of pain to Dr. Erry post-accident, the imaging that Dr. Erry arranged for the applicant to investigate her pain in December, 2017 shows only reversal of normal cervical lordosis suggesting pain or muscle spasm and was otherwise normal. The applicant’s left shoulder x-rays on the same day were also reported as normal. Further, there is no opinion from Dr. Erry attributing the muscle spasm to the accident.

52Post-accident, there is insufficient evidence of a significant decrease in the applicant physical fitness or ability to work as a hairstylist. It is well established that chronic pain, to remove one from the MIG, must be accompanied by functional impairment.

53Although Dr. Karmy diagnoses the applicant with a total of 15 impairments including chronic pain syndrome and multiple areas of chronic pain including left ankle and knee, bilateral hip, right wrist, lower back, upper and mid back pain, bilateral shoulder, neck and post-traumatic headache, after his September 10, 2018 assessment and opines that the applicant should be removed from the MIG because of her chronic pain, I give Dr. Karmy’s report little weight for the reasons set out above.

54The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Are the Disputed Treatment Plans Reasonable and Necessary?

55An analysis of whether or not the treatment plans are reasonable and necessary is not required as I have found the applicant to be within the MIG.

56Respondent’s counsel indicated at the hearing that the respondent has already substantially provided the $3,500.00 limits of the MIG treatment. Applicant’s legal representative did not argue otherwise. Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the disputed treatment plans are reasonable and necessary.

Interest

57Interest is not payable as no benefits are payable.

ORDER

58For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already substantially been provided by the respondent. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable or necessity. 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. 3The applicant withdrew this claim at the hearing on October 5, 2021.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.