Citation: Balcita v. Aviva General Insurance Company, 2022 ONLAT 20-004789/AABS

Licence Appeal Tribunal File Number: 20-004789/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:

Antonio Balcita

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Justin Mariani, Paralegal

For the Respondent: Kimberley Tye, Counsel

HEARD: By way of written submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on March 4, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The parties consented to the following issues being in dispute:

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 Minor Injury Guideline (‘MIG’)?

ii. Is the applicant entitled to a medical benefit in the amount of $3,792.50 for physiotherapy services recommended by Green Wellness and Rehabilitation in a treatment plan submitted on December 8, 2018 and denied by the respondent on January 11, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,316.00 for physiotherapy services recommended by MedEx Health Services in a treatment plan submitted on April 13, 2018 and denied by the respondent on April 26, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $2,305.81 for physiotherapy services recommended by MedEx Health Services in a treatment plan submitted on January 19, 2018 and denied by the respondent on May 8, 2018?

v. Is the applicant entitled to payment for the cost of examination in the amount of $2,460.00 for a psychological assessment recommended by Elite Specialist Group Inc. in a treatment plan submitted on February 8, 2019, and denied by the respondent on June 3, 2019?

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

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

LAW

3Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

4Section 3(1) of the Schedule provides that the definition of an impairment “means a loss or abnormality of a psychological, physiological or anatomical structure or function”.

5Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury the total cost of his/her/their medical and rehabilitation benefit payable shall not exceed $3,500.00.

6Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that he/she/they has a pre-existing medical condition that will prevent him/her/them from achieving maximal recovery from the minor injury if subjected to the MIG funding limit.

7Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

SUBMISSIONS AND EVIDENCE

Invalid Denials

8The applicant submitted that the initial denials by the respondent were not in compliance with the Tribunals requirements, as seen in M.B. v. Aviva².

9In M.B. v. Aviva, the Tribunal found that when considering the “medical and any other reasons” aspect of a denial, it must explain it’s decision by explaining such with reference to the insured person’s medical conditions and any other applicable rationale. These reasons should include specific details about the insured’s condition that formed the basis of the decision or identify any required information the insurance company requires.

10The applicant failed to specify which initial denials he considered invalid, nor did he direct the Tribunal to such. Without the applicant providing fulsome submissions regarding this issue, I will not consider it.

MINOR INJURY GUIDELINE

11The applicant submits this his injuries require removal from the MIG on the basis that his injuries are not minor, his psychological injuries and his chronic pain.

12The respondent submits that the applicant’s injuries do not require removal from the MIG and are minor in nature.

13The onus is on the applicant to show that his injuries fall outside of the MIG³.

EVIDENCE and submissions

Did the applicant sustain predominantly minor physical injuries?

14The applicant submits that his injuries are not minor in nature. Due to his on-going shoulder and back pain, he requires removal from the MIG.

15The applicant submitted that as a result of this pain, he has suffered an impairment that has lasted beyond the twelve weeks contemplated by the MIG.

16A Treatment Confirmation Form⁴ (‘OCF-23’) was completed by Dr. Mylinh Duong, chiropractor and confirmed that the applicant had suffered from whiplash associated disorder (‘WAD II’) sprains and strains of the thoracic and lumbar spine, and shoulder girdle.

17The applicant also relied on the Minor Injury Treatment Discharge Report⁵ (‘OCF-24’) of Maryam Azerang Esfandiari, physiotherapist, where Ms. Esfandiari stated that the applicant required intervention beyond the MIG’s limits.

18Ms. Esfandiari also submitted an OCF-18⁶ for physiotherapy, chiropractic and massage services, where she noted that that the applicant’s injuries consisted of: WAD II, sprain and strain of the lumbar, thoracic spine and strain of the shoulder girdle.

19The applicant provided evidence that he attended MedEX, one of his physical treatment providers, a total of thirty-one times between July 21, 2017, to January 2018. The applicant then attended MedEx twice per week from July 21, 2017, to August 18, 2017, and then once a week from August 26, 2017, to September 23, 2017. The applicant then attended once every two weeks from September 29, 2017, to November 18, 2017.

20MedEx’s records⁷ confirm that the applicant’s pain continued in 2018⁸ and impacted his sleep. This pain was also noted in 2019⁹. As a result of the respondent failing to fully consider the applicant’s impairment, he has incurred $3,685.05 in therapy from MedEx and $825.00 with Green Wellness & Rehabilitation Centre.

21Based on the totality of the evidence above, the applicant submitted that it is obvious that as a result of the accident, he has suffered a functional impairment, being his back, neck and shoulder pain, all of which have not resolved within the twelve-week framework of the MIG, and therefore, requires continuing treatment beyond the MIG limit.

22The respondent submits that the applicant’s injuries are predominantly minor and are soft tissue in nature.

23The respondent directed the Tribunal’s attention to the applicant’s OCF-23¹⁰, where Dr. Duong, confirmed that the applicant’s injuries could be treated within the MIG and that his injuries were WAD 2 with complaint of neck pain with musculoskeletal signs, sprain and strain of the thoracic spine, lumbar spine and unspecified parts of the shoulder girdle.

24The respondent also drew my attention to the OFC-18 of Dr. Duong¹¹, where she confirmed, under Part 4 that the applicant’s injuries could be treated within the MIG. Dr. Duong reported the same injuries as those reported in her OCF-23.¹²

25The respondent also noted that the applicant has not attended his GP since October 9, 2019¹³.

26The respondent also relied on its section 44 assessment of Dr. Lesley Corrin, physician¹⁴, where the doctor found that the applicant sustained soft tissue injuries to his right shoulder and arm, and lumbar strain. Dr. Corrin also observed that the applicant displayed “pain-focused behavior” but opined that the applicant’s range of motion was within functional range. Based on this, Dr. Corrin submitted that the applicant’s injuries fell within the MIG.

27The applicant took issue with Dr. Corrin’s findings and argued that the doctor did not understand the definition of impairment under section 3 of the Schedule. Though Dr. Corrin acknowledged the applicant’s right arm and shoulder pain as well as his lower back pain, she found that the applicant did not have a functional impairment. The applicant submits that Dr. Corrin thought an impairment must have an objective indication.

28Instead, the applicant submits that the definition of impairment in section 3 of the Schedule does not state that an objective indication is required to find an impairment, as impairment includes an abnormality in physiological function. Based on this argument, the applicant submits that it is clear that he suffered an impairment as a result of the accident, namely his shoulder and back pain.

29Since Dr. Corrin failed to fully understand the meaning of impairment for her report, the applicant submits that her findings are compromised, given that Dr. Corrin failed to consider the applicant’s pain and functional deficits.

30The applicant also submits that Dr. Corrin failed to understand the applicant properly, as she submitted in her report¹⁵ that the applicant was unemployed, which the applicant submits is not correct.

Analysis

31After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant’s physical injuries are minor in nature.

32I was more persuaded by the respondent’s submissions, which directed me to specific medical evidence and information that supported that the applicant’s injuries fell within the MIG.

33In terms of the applicant’s impairments, namely pain that has not resolved within his arm, shoulder and back, the applicant has not directed me to independent medical evidence that supports the position that the applicant’s injuries require treatment beyond the MIG. An example of this includes a report from the applicant’s family doctor may have supported the applicant’s position.

34Instead, I was provided with information from OCF-18s, which supported that the applicant’s injuries required treatment beyond the MIG’s limits. Though I did consider this evidence, I found it less convincing, given that this position was provided from the service providers who completed the OCF-18s.

35Furthermore, the respondent was able to direct me to the assessment of Dr. Corrin, who found that the applicant’s injuries did not require treatment beyond the MIG. I disagreed with the applicant’s concerns regarding Dr. Corrin’s understanding of the word impairment, as she specifically addressed the applicant’s pain complaints in her assessment.

36Therefore, I find that the applicant’s physical injuries do not remove him from the MIG.

Does the applicant have any pre-existing conditions?

37Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG¹⁶.

38The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

39The applicant submits that he had pre-existing conditions prior to the accident. He noted that he had right shoulder pain, as documented¹⁷ by the applicant’s general practitioner, Dr. Janet Krulewitz.

40The applicant also relied on the OCF-18 of Ms. Esfandiari¹⁸, which noted that the applicant had left ear surgery in 2016, and that he has diabetes and hypertension.

41The applicant’s pre-existing conditions, being his ear surgery in 2016, diabetes and hypertension were also noted by Dr. Duong in her OCF-18s¹⁹.

42The applicant also relied on the OCF-18²⁰ of Hamidreza Izadi, physiotherapist, who noted that the applicant had pre-existing conditions of osteoarthritis, asthma, high blood pressure and high cholesterol. Ms. Izadi noted that the applicant’s barriers to recovery included that the applicant was in a severe accident, his car flipped over, that the applicant was still working which may have worsened his symptoms as he has unresolved, musculoskeletal issues and pre-existing conditions.

43The respondent submits that the applicant has failed to meet his evidentiary burden under the Schedule. It submits that the applicant has not provided any compelling evidence of a pre-existing medical condition that would prevent recovery from within the MIG. As the applicant carries the evidentiary burden of showing this, the respondent submitted that the applicant has failed to do so and therefore, should not be removed from the MIG on this basis.

Analysis

44After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that his pre-existing conditions prevent him from reaching maximum medical recovery within the MIG.

45Though I appreciate that several treating practitioners have noted the applicant’s pre-existing conditions, I have not received any persuasive medical evidence related to how the applicant cannot reach maximum medical recovery within the MIG due to his pre-existing conditions.

46I was not provided with any specific evidence that addressed how the applicant’s previous shoulder injury of 2016, his osteoarthritis, asthma, high blood pressure, high cholesterol, his ear surgery in 2016, diabetes or hypertension would impact his recovery if confined to the MIG. Without this information, I cannot remove the applicant from the MIG on the basis of a pre-existing condition.

Does the applicant have (a) psychological impairment(s)?

47The applicant claims that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG.

48Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

49The applicant submitted that as of a result of the accident, he sustained a psychological injury.

50The applicant relied on the OCF-18²¹ of Dr. Andrew Shaul, psychologist. Dr. Shaul identified that the applicant’s impairments are not predominantly minor in relation to the MIG. The OCF-18 also states that the applicant is suffering from adjustment disorders as a result of the accident.

51Dr. Shaul collected information from the applicant by asking a series of questions during a screening interview²². Dr. Shaul opined that the applicant required a psychological assessment to understand the impact of the accident on the applicant. The applicant reported experiencing sleep difficulties, tiredness during the day, irritability and frustration, and attributed these changes in his mood to his pain and limitations.

52The applicant also reported worry about the impact his pain will have on his future functioning and reported feeling more anxious, tense and nervous. The applicant also reported decreased appetite and weight loss, as well as a decline in his concentration and memory since the accident.

53Dr. Shaul also reported that the applicant experiences nervousness while driving and while traveling as a passenger in automobiles. The applicant also stated he was more cautious while traveling in a vehicle, deals with increased heart rate and is jumpy.

54Dr. Shaul submitted that the applicant requires a comprehensive psychological assessment to investigate the “many adverse changes that have occurred in his life since the time of the accident, including his reported feelings of pain, disruption of sleep, frustration, irritability, cognitive difficulties and nervousness while traveling in a vehicle”²³.

55The respondent noted that the applicant’s evidence does not support the position of him suffering a psychological impairment as a result of the accident.

56The respondent directed my attention to the fact the applicant had no formal psychological assessment, or evaluation. Moreover, the applicant’s own general practitioner’s clinical notes and records did not support his position, aside from the one comment from the applicant’s family doctor two days post accident, which stated that the applicant’s psychological difficulties were secondary to the accident²⁴.

57Furthermore, the respondent argued that with little to no clinical notes and records, the applicant has not provided the Tribunal or the respondent with a psychological diagnosis that would remove him from the MIG.

58The respondent relied on J.C. and Aviva²⁵, where Adjudicator Boyce found that a “pre-screen” result from a psychologist was not self-evident that a psychological assessment was reasonable and necessary when no supporting evidence, such as family doctor’s notes, exist.

59The respondent also relied on its section 44 report²⁶ of Dr. Alfonso Marino, psychologist. Dr. Marino opined that the applicant did not present with any psychological impairment or diagnosis as a result of the accident, nor did the applicant report any pre-existing mental health issues.

60Dr. Marino noted that the applicant reported no sleep issues and described himself generally as “happy” and “doing okay”. Dr. Marino did note the applicant’s frustrations and irritability but qualified those as issues being secondary to pain and the applicant’s physical limitations. The applicant also reported no flashbacks, avoidance behavior and that he was able to drive.

61The applicant’s psychometric testing found that he scored mild in the range for depression²⁷, anxiety²⁸, below average for depression, anxiety and somatization when compared to other pain patients²⁹, and moderate overall for developing future clinical problems³⁰.

62Dr. Marino opined that the applicant did not present with any psychological impairment or diagnosis as a result of the accident and had reached maximal psychological recovery at the time of the assessment.

Analysis

63After considering the submissions and evidence submitted by the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that as a result of the accident, he suffered a psychological injury that would remove him from the MIG.

64I was more persuaded by the position and argument of the respondent related to J.C. and Aviva³¹, as the facts in that matter were very similar. Though the applicant has provided evidence from Dr. Shaul’s OCF-18 to support his argument that he suffered a psychological injury as a result of the accident, this alone is not sufficient to prove the applicant’s position.

65As the applicant relied solely on the OCF-18 pre-screen of Dr. Shaul, the applicant failed to provide convincing evidence that his psychological complaints warranted removal from the MIG. There is no continuous or corroborating evidence in the applicant’s clinical notes and records from his family doctor.

66Furthermore, I put more weight on Dr. Marino’s evidence, as the doctor provided explanations, reasons and psychometric data supporting his finding. The applicant however, relied on the OCF-18 of Dr. Shaul which contained no psychometrics nor an explanation for his diagnosis of the applicant.

Does the applicant suffer from chronic pain?

67The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

68The applicant submits that though he does not have a chronic pain diagnosis from any of his treating practitioners or assessors, he suffers from chronic pain based on the medical evidence, which shows that the applicant has suffered with a physical impairment for an extended period of time.

69The applicant relied on C.G. v. The Guarantee Company of North America³², where the Tribunal found that an actual diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG.

70The applicant also relied on the OCF-18³³ of Ms. Izadi who noted that over a year and a half post-accident, the applicant still experiences on-going functional impairments, and that as a result of pausing his physical therapy, his health has worsened and suffers from multiple, unresolved injuries.

71The applicant also relied on the findings of Dr. Getahun’s section 25 orthopaedic assessment³⁴, which found that the applicant had significant functional impairments and that the prognosis for the applicant’s recovery was guarded, and that he experienced tenderness, a reduced range of motion of his cervical and lumbar spine, with tender L4, L5 and S1, and right sided guarding.

72The respondent submits that the applicant has failed to meet his evidentiary onus.

73The respondent directed the Tribunal’s attention to the OCF-23³⁵, and OCF-18s³⁶ of Dr. Duong where the doctor identifies the applicant’s injuries and does not note the applicant’s alleged chronic pain, nor is this pain identified by any of the applicant’s treating or assessing doctors.

74The respondent also drew the Tribunal’s attention to the applicant’s clinical notes and records from his family doctor³⁷, Dr. Krulewitz, where just over a month after the applicant’s section 25 assessment, the applicant reported “no specific concerns” and “feeling okay” to his doctor.

75Based on the totality of the evidence, the respondent submits that the applicant’s medical documentation does not demonstrate, based on a balance of probabilities, that he is suffering from chronic pain, and therefore has not met his evidentiary burden.

Analysis

76After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not established that he suffers from chronic pain or that his pain falls outside the MIG and can be defined as “chronic pain” which would remove him from the MIG.

77I found the matter of C.G. v. The Guarantee Company of North America³⁸ very useful when considering the evidence. I agree with the applicant’s position, namely that he does not require a formal diagnosis of chronic pain to have chronic pain that requires removal from the MIG.

78However, unlike the facts in C.G. v. The Guarantee Company of North America³⁹, the applicant in the matter before me did not continue to visit his family doctor and other treating physicians with respect to his shoulder and back pain.

79Furthermore, in C.G. v. The Guarantee Company of North America⁴⁰, the applicant was able to rely on a disability certificate (‘OCF-3’) from her family doctor and the section 44 assessor, who noted that the applicant had chronic pain.

80In this matter, the applicant has not been diagnosed with chronic pain, nor have any of his physicians or assessors opined that the applicant’s pain is chronic in nature.

81In terms of Ms. Izadi’s OCF-18⁴¹ where she noted that the applicant’s pain has still not resolved, though Ms. Izadi is capable of capturing the applicant’s physical reports of symptoms, this evidence is not sufficient to demonstrate that the applicant’s pain meets the threshold to be removed from the MIG. Ms. Izadi does not comment on the applicant’s pain being chronic in nature.

82Dr. Getahun’s section 25 orthopaedic assessment⁴², which found that the applicant had significant functional impairments is also not persuasive in demonstrating that the applicant is suffering from chronic pain. Though Dr. Getahun’s report shows that the applicant is experiencing a reduced range of motion and pain, he does not comment on the chronic nature of the applicant’s injuries.

83Chronic pain removing an insured person from the MIG must be demonstrated by the party claiming it, which would be the applicant. In this case, the applicant has not demonstrated that he experienced pain that was above and beyond the definition of sequelae as listed in the Schedule. Since the applicant carries this burden and has not fulfilled it, his pain cannot be qualified as chronic pain which removes him from the MIG.

84Since the applicant has not demonstrated that he suffers from an injury or impairment that would remove him from the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary.

Interest and Award

85Since no benefits in dispute are overdue, no interest or award is owing.

CONCLUSION AND ORDER

86The applicant’s injuries are found to be predominantly minor, and his injuries are found to be within the MIG.

87The applicant is not entitled to any of the disputed treatment plans.

88The applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Dated July 21, 2017.
5. 5Dated October 21, 2017.
6. 6Dated October 21, 2017.
7. 7Based on a note from the applicant’s clinical notes and records dated January 18, 2018.
8. 8Based on the OCF-18 of Dr. Duong dated April 13, 2018.
9. 9Based on the OCF-18 of Dr. Shaul dated March 11, 2019, the section 25 assessment of Dr. Getahu, dated January 15, 2019 and the section 44 assessment of Dr. Marino dated May 30, 2019.
10. 10Dated July 21, 2017.
11. 11Dated January 19, 2018.
12. 12As seen in part 6 of the OCF-18 dated January 19, 2018.
13. 13Based on the clinical notes and records of Dr. Krulewitz from May 2014 to April 24, 2020.
14. 14Dated May 4, 2018.
15. 15Of Dr. Corrin’s report dated May 4, 2018.
16. 16Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
17. 17Dated January 20, 2016.
18. 18Dated October 21, 2017.
19. 19Dated January 18, 2018, and April 13, 2018.
20. 20Dated December 8, 2018.
21. 21Dated February 9, 2019.
22. 22Conducted on January 25, 2019.
23. 23From Dr. Shaul’s OCF-18, dated February 9, 2019.
24. 24Dated March 6, 2017.
25. 25J.C. v Aviva General Insurance Company, 2019 CanLII 119752 (ON LAT) at paragraph 13.
26. 26Dated May 30, 2019.
27. 27Based on the Beck Depression Inventory – II.
28. 28Based on the Beck Anxiety Inventory.
29. 29Based on the Pain Patient Profile.
30. 30Based on the Personality Assessment Screener.
31. 31J.C. v Aviva General Insurance Company, 2019 CanLII 119752 (ON LAT).
32. 32C.G. v The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT).
33. 33Dated December 18, 2018.
34. 34Dated January 15, 2019.
35. 35Dated July 21, 2017
36. 36Dated January 19, 2018, and April 13, 2018.
37. 37Dated February 27, 2019.
38. 38C.G. v The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT).
39. 39Ibid
40. 40Ibid.
41. 41Dated December 18, 2018.
42. 42Dated January 15, 2019.