Citation: Etuka-Ayorinde v. Aviva Insurance Company of Canada, 2022 ONLAT 20-003837/AABS

Licence Appeal Tribunal File Number: 20-003837/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:

Roland Etuka-Ayorinde

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Geoffrey Keating, Counsel

HEARD:

By way of written submissions

1Roland Ayorinde Etuka, (“the Applicant”), was involved in an automobile accident on September 24, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The Applicant was denied certain benefits by Aviva Insurance Company of Canada, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute were identified and agreed to as follows:

Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week from October 27, 2017 to January 27, 2018?
Is the Applicant entitled to the balance of $1,057.36 ($1,816.74 less partially approved amount of $759.38) for chiropractic services, recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted March 15, 2018?
Is the Applicant entitled to $1,690.77 for chiropractic services, recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted August 2, 2018?
Is the Applicant entitled to $2,460.00 for an orthopaedic assessment recommended by Dr. West in a treatment plan (OCF-18) submitted August 20, 2018?
Is the Applicant entitled to $2,460.00 for a psychological assessment recommended by Dr. Mills in a treatment plan (OCF-18) submitted August 20, 2018?
Is the Applicant statute-barred from proceeding with his claim for the August 20, 2018 psychological assessment plan?
Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

[3] I find that the Applicant sustained a predominantly minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment. He is not entitled to the disputed treatment and assessment plans because they propose treatment outside of the MIG.

4The Applicant has not provided enough information to calculate what his weekly IRB is, if any.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck from behind while in heavy traffic on a 400 series highway in Toronto. No ambulance attended at the scene of the accident, but the Applicant went to the hospital later that day. According to him, he was x-rayed at the hospital and discharged when no fractures were discovered. He reports that he was advised to start physical therapy to treat his accident-related injuries.

6The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition in the Schedule and subjected him to the Minor Injury Guideline (the “MIG”). The Applicant disputes this characterization of his injuries and submits that the MIG should not apply because he suffers from psychological injuries and chronic pain syndrome as a result of the accident. He submits that he had pre-existing insulin-dependent diabetes, back and neck pain from degenerative disc disease, and a prior slip and fall incident in December 2016 which precludes his ability to recover if subject to the MIG. The Applicant claims entitlement to the disputed treatment and assessment plans, submitting that they are reasonable and necessary to treat his accident-related injuries.

7The Applicant also claims entitlement to IRBs. He submits that his back, neck, and shoulder pain preclude his ability to sit and stand for prolonged periods, which disables him from working as a pastor and accountant.

8The Respondent disagrees with the Applicant and submits that his injuries are properly characterized as a “minor injury”, that his pre-existing medical conditions have no impact on his recovery, and that he has not sustained chronic pain syndrome as a result of the accident.

9The Respondent also submits that the Applicant breached a Tribunal order by failing to disclose medical records before the hearing. The Respondent further submits that, when the Applicant disclosed the medical records, they were only partly disclosed and did not include complete records. The Respondent claims prejudice from this late disclosure because it was left unable to properly assess the evidence prior to this hearing. Specifically, it was not afforded an opportunity to seek an additional opinion from insurer’s examiners. The Respondent asks that the medical records be excluded from this hearing.

10The Applicant had an opportunity to reply to the Respondent’s submissions but chose not to do so.

LATE DISCLOSURE OF RECORDS

11I find that the late disclosure of records has prejudiced the Respondent. The Applicant was ordered to produce the clinical notes and records (“CNRs”) of Dr. I. Okafor, family physician, on or before November 9, 2020. Instead, he produced the CNRs together with his submissions on January 11, 2021. The timing of the late disclosure prevents the Respondent from seeking a medical opinion on the CNRs and the information in them.

12The Applicant has no excuse for the late disclosure. As noted above, the Applicant had an opportunity to make reply submissions and chose not to. In the same vein, the Applicant provides no submissions on why the CNRs are relevant and should be included in the hearing.

13The prejudice to the Respondent can not be remedied by giving it more time. The Applicant provided some, but not all, of Dr. Okafor’s CNRs. This is because the CNRs include reference to incidents which are not related to the subject accident and may be related to the Applicant’s ongoing complaints. However, both the Respondent and I are unable to fully examine those incidents because the Applicant provided incomplete records from Dr. Okafor.

14For the reasons above, I will exclude Dr. Okafor’s CNRs from the hearing.

MINOR INJURY GUIDELINE (MIG)

15The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude his recovery if subject to the MIG.

16If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

17The Applicant submits that his pre-existing health condition precludes him from reaching maximal medical recovery within the MIG and the $3,500.00 funding limit. He further submits that he suffers from chronic pain syndrome and alludes to psychological injuries, which he submits removes him from the MIG.

18The Respondent submits that there is no compelling evidence that the Applicant’s injuries cannot be treated within the MIG. It offers the report of Dr. D. Mula, physician, dated May 7, 2018, and submits that Dr. Mula concluded that the Applicant sustained a predominantly minor injury.

Pre-Existing Health Condition

19The Applicant submits that diabetes and an elbow injury from a slip and fall accident in December 2016 preclude his recovery under the MIG. The Respondent submits that, when asked by Dr. Mula, the Applicant denied any pre-existing pain or condition that would preclude his recovery from the soft tissue injuries sustained in the accident.

20I find no evidence of a pre-existing health condition that would preclude the Applicant’s recovery if subject to the MIG. As noted above, the Applicant produced limited parts of his family physician’s CNRs and, as a result, the records are excluded from this hearing. Like the Respondent, I am compelled by the Applicant’s responses to Dr. Mula in the May 7, 2018 report. That report notes that the Applicant denied any pre-existing health condition. This is supported by the Applicant’s prescription summary, which shows no marked increase in his diabetes medication. Ultimately, the Applicant provides no opinion from a medical practitioner that indicates that his pre-existing health condition would preclude his recovery if subject to the MIG, as required by section 18(2) of the Schedule.

Chronic Pain Syndrome

21The Applicant submits that he suffers from chronic pain syndrome, as diagnosed by Dr. M. West, physician, in a report dated March 20, 2019, and that he should be removed form the MIG for this reason. The Respondent submits that Dr. West’s report should hold no weight because it lacks any objective and independent diagnosis of injuries and was completed by the treatment facility which submitted the disputed treatment and assessment plans noted above.

22I find that the chronic pain reported by the Applicant does not rise to the level which removes him from the MIG. As noted in prior Tribunal decisions, a diagnosis of chronic pain, on its own and absent any evidence of a functional impairment, is insufficient to remove the Applicant from the MIG.¹ The Applicant must show that his pain is more than recurrent, intermittent pain that causes functional impairment and disability.

23The functionality exhibited by the Applicant, as outlined in the reports of Dr. West and Dr. Mula, and in the other records, indicates that the Applicant is not disabled by pain. Dr. West noted that the Applicant’s main impairment complaints are that he is unable to sustain prolonged postures, play sports, and take road trips. Meanwhile, Dr. West notes functionality such as independence with personal care and the ability to return to work as a pastor and an accountant. Similarly, Dr. Mula noted that the Applicant resumed driving, walking, and had returned to work.

24I prefer the opinion of Dr. Mula over the opinion of Dr. West. Dr. West’s conclusion is anomalous with the Applicant’s overall medical record. Dr. Mula’s examination of the Applicant found no bony or neurological injury. Dr. Mula’s report also noted some decreased range of motion, particularly in the cervical spine area, like Dr. West’s report. However, despite similar examination findings, Dr. Mula diagnosed the Applicant with soft tissue injuries and concluded that he sustained a minor injury, whereas Dr. West concluded that the Applicant suffers from chronic pain syndrome, despite the functionality recorded in the report and as outlined above.

25Treatment and prescription records indicate no overreliance on healthcare providers or medication, as is typically the case in chronic pain cases. The treatment records provided are limited to a few entries, indicating no overreliance on healthcare providers. Similarly, the prescription summary shows no marked increase in the use of prescription medication following the accident.

26My review of the evidence shows that the Applicant experiences intermittent pain but that the ongoing pain does not cause a functional impairment to the extent that the Applicant is disabled by the pain, which would prompt his removal from the MIG. There is no evidence showing that the Applicant’s pre-existing diabetes and elbow injury impacted his recovery in any way. As a result, I find that the Applicant sustained a minor injury and is properly subjected to the MIG.

DISPUTED TREATMENT AND ASSESSMENT PLANS

27The disputed treatment and assessment plans propose treatment outside of the MIG. The Applicant is not entitled to these plans because he is subject to the MIG and the $3,500.00 funding limit on treatment, which has been exhausted.

INCOME REPLACEMENT BENEFITS (IRBs)

28The Applicant may be entitled to IRBs if he can show that he is substantially unable to perform the essential tasks of his pre-accident employment and has sustained a loss of income as a result.

29The Applicant submits that the disability certificate completed by Dr. R. Jessa, chiropractor, dated September 27, 2017 and Dr. West’s March 20, 2019 report support his claim for IRBs. He submits that his 2016 and 2017 income tax returns show a decrease of net professional income, indicating an inability to work.

30The Respondent agrees that the Applicant is entitled to IRBs for the period claimed, being October 27, 2017 to January 27, 2018. However, it submits that the Applicant has not provided sufficient information to calculate the quantum of the benefit.

31I agree with the Respondent and find that the Applicant has not met his burden to prove that he is entitled to a weekly IRB quantum of $400.00, as claimed.

32The Applicant is self-employed and may determine his gross employment income in two ways. First, he may determine it on the 52 weeks prior to the accident, starting on the day before the accident. Alternatively, the Applicant may determine his gross employment income on the last fiscal year end of his business. Here, the Applicant has provided his tax returns for the years 2016 and 2017 and no other income documents. This information is insufficient to calculate the weekly quantum of the Applicant’s IRBs.

33I assume that the Applicant chose to calculate his IRBs on the last completed fiscal year based on the documents provided. This is because the income documents provided do no specify that they are for the 52-week period before the accident and thus, I assume he chose to calculate IRBs based on his last fiscal year worked. However, I remain unable to calculate the Applicant’s loss based on the two tax returns provided.

34The tax returns provided lack the requisite detail to determine the Applicant’s loss from self-employment. The Applicant must show that he sustained a loss of income from self-employment during the period he claims IRBs. Here, he has shown that he experienced a significant decrease in income from 2016 to 2017. However, the accident occurred on September 24, 2017, about three-quarters into the fiscal period and there is no information to specify what income was earned pre-accident. Further, the period claimed spans into 2018 and the Applicant provided no income information for that period.

35Here, it is important to highlight section 7(4) of the Schedule. That section provides that the Applicant is entitled to payment for the cost of an accountant’s report for the purpose of calculating his IRB. Section 7(5) limits the cost of that expense to no more than $2,500.00, plus HST. There is no evidence before me to indicate that the Applicant ever sought professional assistance in calculating his IRBs, despite being entitled to do so.

36I am unable to award the payment of IRBs considering the lack of clarity on the Applicant’s pre-accident income and post-accident loss from self-employment.

INTEREST

37Interest is payable on the overdue payment of benefits. Here, no payments are overdue, and it follows that no interest can be payable as a result.

CONCLUSION

38The Applicant sustained neck and back strains as a result of the accident. He continues to experience intermittent pain from these soft-tissue injuries. These soft-tissue injuries are properly characterized as a minor injury because the Applicant is not functionally disabled by lingering pain. He is not entitled to the disputed treatment and assessment plans because he is subject to the MIG and the plans propose treatment outside of the MIG.

39The Applicant qualifies for IRBs for the period from October 27, 2017 to January 27, 2018 but has not provided enough information to calculate what his weekly payment would be, if any.

40No interest is payable because no payments went overdue.

Released: April 27, 2022