Citation: Sidhu v. Aviva General Insurance 2022 ONLAT 20-011339/AABS

Tribunal File Number: 20-011339/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:

Harpreet K Sidhu

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Lyndra Griffith

APPEARANCES:

For the Applicant: Andrea Seecharan, Counsel

For the Respondent: Brittany Tinslay, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant, Harpreet Sidhu, was injured in an automobile accident on February 14, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance, the respondent. The applicant was stopped in the curb lane and was struck from behind by another vehicle. She was taken to the hospital where she underwent assessments and was discharged later the same day.

2The respondent denied the applicant’s claims, including physiotherapy and a psychological assessment, 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 (MIG).² The respondent also terminated the applicant’s income replacement benefits (IRBs) on August 28, 2018. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on February 25, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

I. 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 and in the MIG?

II. Is the applicant entitled to an IRB in the amount of $290.94 per week from August 28, 2019 to date and ongoing?

III. Is the applicant entitled to $1,299.74 for physiotherapy services recommended in a treatment plan (OCF-18) submitted on June 12, 2019 and denied by the respondent on June 17, 2019?

IV. Is the applicant entitled to $1,850.64 for physiotherapy services recommended in an OCF-18 submitted on June 12, 2019 and denied by the respondent on July 8, 2019?³

V. Is the applicant entitled to $2,460.00 for a psychological assessment recommended in an OCF-18 submitted on September 26, 2019 and denied by the respondent on October 1, 2019?

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

RESULT

5I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is not entitled to IRBs for the period of August 28, 2019 to date and ongoing. The applicant is also not entitled to an award or interest, and the application is dismissed.

ANALYSIS

The Minor Injury Guideline (MIG)

6The 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.

7Section 18(1) 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.⁴

8I find that the applicant has not met her burden of proving that her accident-related impairments require treatment beyond the MIG on the basis of a pre-existing conditions, chronic pain, and/or a psychological impairment.

Chronic Pain

9The applicant submits that the medical records support a chronic pain diagnosis as they document consistent and ongoing pain complaints from the time of the accident until present. The applicant submits that the clinical notes and records of Dr. Brar, Dr. Lin and Dr. Jessa note numerous functional limitations such as limited range of motion to the applicant’s neck, back, bilateral shoulders. The applicant submits that she suffers from chronic pain in her neck and back and that it has had a significant impact on all facets of her life including physical, emotional, and cognitive spheres. The applicant further submits that that the medical records support the fact that chronic pain has substantially interfered with her activities of daily living, despite appropriate therapy and reasonable accommodations.

10In analyzing the issue of chronic pain and the MIG, the applicant relied upon the reconsideration decision of T.S. v. Aviva General Insurance Canada.⁵ In this reconsideration decision, the Executive Chair held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.⁶ In T.S. v. Aviva, the Executive Chair’s description of chronic pain, however, also encompassed adverse affects on an individual's well-being

11In response, the respondent submits that the evidence before the Tribunal is sufficiently lacking in support of the applicant meeting her burden of proof that she has an injury outside of the MIG as was determined in a similar case, Singh v Certas Direct Insurance⁷.

12The respondent relies on the insurance examination (IE) assessment reports of orthopaedic surgeon, Dr. Jacqueline Auguste, dated August 16, 2019 and psychologist, Dr. Shulamit Mor, dated November 3, 2020. These assessors were retained to comment on the issue of the MIG and they both concluded that the applicant’s injuries do not take her out of the MIG.

13I find for chronic pain to take someone out of the MIG, there must be an effect on their functionality. There is no medical evidence that the applicant’s accident-related injuries have had a detrimental impact on her functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms”, affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

14Based on all of the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain. From July 8, 2019 to December 6, 2019 the applicant visited her family doctor on two occasions, and she did not report any accident-related complaints. While the evidence shows that the applicant made some complaints of accident-related pain to her family physician from March 30, 2019 to January 16, 2020, this is not enough for chronic pain to take someone out of the MIG as there must also be functional impairment.

Psychological Impairment

15Lastly, psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

16Although the applicant did not explicitly state that she is relying upon a psychological impairment as a basis for entitlement to treatment outside of the MIG, she is disputing the respondent’s denial of an OCF-18 recommending a psychological assessment (issue V). The OCF-18 for the psychological assessment noted that since the accident the applicant had been experiencing the following symptoms: difficulties sleeping due to “bad pain”, flashbacks of the accident, concentration/memory problems, and difficulties carrying out her daily activities. The applicant expressed emotional problems, feeling irritable since the accident, and difficulties coping with the pain. A psychological assessment was recommended to understand her pre- and post-accident level of functioning and associated problems.

17The respondent submits that the medical records from the applicant’s family doctor and submitted for this hearing did note any psychological complaints t. The respondent noted that the applicant subjectively reported some “issues with anxiety” to a walk-in clinic in December of 2019, but there was no indication that these issues were related to the accident.

18As stated above, the applicant underwent an IE assessment with psychologist Dr. Mor on October 20, 2020 (report dated November 3, 2020). Dr. Mor was also retained to comment on the issue of whether the treatment plan listed as issue V was reasonable and necessary. Dr. Mor concluded that the applicant did not meet any criteria for a formal DSM diagnosis and that her psychological status did not take her out of the MIG. Dr. Mor also notes that the applicant articulated clearly that she does not feel in need of psychological treatment. Dr. Mor concluded that there were no clinically significant psychological symptoms that warrant a formal diagnosis and, from a psychological perspective, the applicant did not sustain an impairment as a direct result of the accident.

19It is clear from reading Dr. Mor’s report that although the applicant may have experienced suffered some mild psychological symptoms as a result of the accident, at the time of the assessment, the applicant’s psychological symptoms had dissipated and articulated she does not feel the need for any psychological treatment such that the applicant’s self-reported psychological concerns, if any, were nothing more than minor. Finally, I agree with the respondent’s submission that the applicant never made any psychological complaints to her family doctor.

20I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.

21As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

Income Replacement Benefits (IRBs)

22The applicant is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

23For the reasons that follow, I find that the applicant is not entitled to IRBs for the period of August 28, 2019 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (from August 28, 2019 to February 14, 2020)

24The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

25The applicant bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from August 28, 2019 to February 14, 2020.

26The applicant submits that she is entitled to income replacement benefits from August 28, 2019 to October 2019⁸, as she did not return to work due to her physical limitations as a result of the accident and the physically demanding nature of her job. The applicant relied on a letter from her employer dated January 4, 2019 which described her job at the time of the accident as a co-packer on a day shift in a distribution warehouse working on average 37.5. hours per week since 2015The letter did not describe her tasks.

27She earned approximately $14.00 per hour. The applicant submits that her job, at the time of the accident, was physically demanding as she was required to pack chocolates, lift and carry heavy boxes and place them on the line. She was also required to pull skids with a pump truck. Her job required repetitive movements such as lifting, bending, kneeling, pulling, pushing and standing for her entire shift. While there was no evidence supporting this, the applicant submitted that she returned to work in at a new job as a receiver at a linen service mid-October of 2019, due to financial obligations. The applicant states that she eventually found a new job as a packager at a different warehouse. Her job is less physically demanding than her two prior jobs as she is required to pack beauty products and kitchen items

28On February 22, 2019, the applicant met with chiropractor, Dr. Rahim Jessa, who completed an OCF-3 Disability Certificate. Dr. Jessa noted that the applicant was substantially unable to perform the essential tasks of her employment and that she was unable to return on modified hours or duties. The disability period was limited and expected to last 9-12 weeks.

29The respondent submits that the applicant was paid IRBs until August 28, 2019. The applicant was advised by the respondent by way of an explanation of benefits dated August 20, 2019 that the s. 44 assessor, Dr. Auguste, determined that the applicant is not eligible for IRBs as she does not suffer a substantial inability to perform the essential tasks of her pre-accident employment. The respondent further submits that the self-reports of the applicant’s ability to perform the essential tasks of her pre-accident employment have no evidentiary basis and the applicant has provided no affidavit evidence in this regard.

30The applicant’s family doctor’s clinical notes and records indicate that she was not working on January 16, 2020 but there is no further information in this regard.

31Based on the evidence before me I do not find that the applicant has proven on a balance of probabilities that she suffered a substantial inability to complete her pre-accident employment beyond the termination of her pre-104 week IRB on August 28, 2019. The applicant has provided a description of her alleged job tasks in her submissions with the supporting evidence being a letter from her employer that does not describe her tasks. There’s no evidentiary support regarding her actual job duties. The applicant failed to produce objective evidence of what the essential tasks of her pre-accident employment were or what her specific post-accident limitations were. The last OCF-3 submitted by the applicant was dated February 22, 2019, limits her period of disability to approximately 9-12 weeks and no other OCF-3 was provided. Therefore, the period to which the OCF-3 spoke to would have expired before August 28, 2019. Dr. Auguste opined that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment and I am persuaded by this and the applicant has not provided any compelling, objective evidence that states otherwise.

Entitlement to IRBs beyond 104 weeks of the accident (February 14, 2020 to date and ongoing)

32To be eligible to receive IRBs beyond 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training, or experience.⁹

33I find that the applicant has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which she is reasonably suited by education, training, or experience for the period of February 14, 2020 to date and ongoing. The applicant submitted no information on her education, training, or experience, or any reports or medical documentation from the period in dispute that addressed her ability to work in any other employment. Not only did the applicant fail to provide any evidence to support her post-104 week IRB eligibility, she submitted that she returned to work in October 2019. For these reasons, I find that the applicant is not entitled to IRBs from February 14, 2020 and ongoing.

Interest

34As there are no benefits owing, no interest is payable.

CONCLUSION

35For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) The applicant is not entitled to IRBs for the period of August 28, 2019 to date and ongoing;

(iii) No interest is payable; and

(iv) This application is dismissed.

Released: May 25, 2022

_____________________

Lyndra Griffith

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3The account summary from Complete Rehab Centre indicates that this OCF-18 was created on June 12, 2019, sent to the insurer on June 17, 2019 and denied June 19, 2019
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 52018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
6. 6Ibid. at para. 20.
7. 7Singh v. Certas Direct Insurance Company, 2021 ONLAT 19-013456/AABS
8. 8The applicant seems to be no longer claiming entitlement to February 14, 2020, as her submissions limit the entitlement period to October 2019. The exact date in October is not specified.
9. 9Schedule, s. 6(2)(b).