Rodney Analucas v. Aviva General Insurance Company, 2022 CanLII 57393

Citation: Analucas v. Aviva General Insurance Company, 2022 ONLAT 20-008142/AABS

Licence Appeal Tribunal File Number: 20-008142/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:

Rodney Analucas

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Robert Lamot, Counsel

For the Respondent: Melanie A. Sousa, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Rodney Analucas, (the “applicant”) was involved in an automobile accident on January 20, 2018. He was the driver of the vehicle when it was struck from behind in a rear-end collision. Air bags did not deploy, he did not strike his head, lose consciousness, or immediately seek medical attention following the accident. He later complained of pain in the right shoulder, lower back, headache, anxiety, and insomnia.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was conducted on December 1, 2020, and a written hearing was scheduled.

ISSUES

4The issues to be decided are:

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?

ii. Is the applicant entitled to $1,995.33 for a psychological assessment recommended by Nina Belyakova in a treatment plan (“OCF-18”) dated May 1, 2018?

iii. Is the applicant entitled to $3,245.94 for chiropractic services recommended by Brampton Civic Care Centre in an OCF-18 dated June 29, 2018?

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

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

RESULT

5I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. A psychological assessment in the amount of $1,995.33 is not payable, as Part 4 of the OCF-18 listed the injury as not predominantly minor and beyond the MIG;

iii. Chiropractic treatment in the amount of $3,245.94 is not payable, as Part 4 of the OCF-18 listed the injury as not predominantly minor and beyond the MIG;

iv. The respondent is not liable to pay an award pursuant to Regulation 664;

v. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

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.¹

8The applicant submits that as a result of the accident he suffers from physical and psychological impairments that require treatment and removal from the MIG. The Disability Certificate dated January 27, 2018, completed by Dr. D. Mirian, Chiropractor, lists a number of injures as a direct result of the accident. These include sprain and strain of the thoracic spine, lumbar spine, sacroiliac joint, and sprain and strain of other and unspecified parts of the lumbar spine and pelvis. Dr. Mirian also identified low back pain, pain in thoracic spine, other sleep disorders, malaise and fatigue, and acute pain. The anticipated duration of these injuries was 9-12 weeks.² Otherwise, I am not persuaded by this professional’s diagnoses regarding sleep disorders, malaise and fatigue, as they fall beyond the scope of his practice as a chiropractor.

9The applicant relies almost solely on the clinical notes and records provided by the applicant’s Family Physicians, Dr. S. M. Doss and Dr. H. Lapena between October 2016 and June 2020. Appended to these records are also referrals and correspondence regarding mental health and sleep disorder issues.

10There is no record of physical impairments linked to the accident in the clinical notes and records provided. There is no mention of the accident whatsoever, until April 8, 2019, more than fourteen months post-accident.³ There are no symptoms or treatment listed, only the applicant’s request for accident-related medical records at the behest of his lawyer. The only references to soft-tissue pain throughout the records is in October 2019 and June 2020, both related to the applicant’s physically demanding job as a machine operator.⁴

11Conversely, the respondent relies on the Insurer’s Examination (“IE”) report provided by Dr. A. Kruger, Physician dated September 13, 2018. The applicant self-reported right shoulder pain, aggravated by physical activity. Dr. Kruger noted the range of motion and strength testing were normal across all joints even though some movements were painful. He noted no neurological or radicular findings. From a musculoskeletal perspective he diagnosed trapezius cervical sprain/strain (WAD I) and concluded that the applicant suffered uncomplicated soft tissue injuries consistent with minor injuries as defined by the Schedule.⁵ Given the lack of any applicant expert reports or findings, I place significant weight upon this diagnosis.

12As a result, I am persuaded the applicant has not demonstrated that his physical accident-related impairments warrant removal from the MIG. The physical impairments listed in the OCF-3 dated January 27, 2018 fall squarely within the definition of a minor injury. The clinical notes and records provided from the applicant’s family physician are uncompelling and fail to provide any nexus between the applicant’s physical injuries and the accident. The expert report tendered by the respondent indicates his physical injuries can all be treated within the MIG. The applicant has not otherwise provided any expert reports or imaging that demonstrate these physical accident-related impairments should be considered outside the definition of a minor injury under s. 3(1) of the Schedule.

Pre-Existing Condition

13It is well settled that 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. In this matter the applicant relies on pre-existing conditions of schizophrenia, insomnia, depression, and anxiety.

14The applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of any pre-existing conditions.

15Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, 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 MIG.

16The clinical notes and records dating back to October 2016 illustrate a history of insomnia and mental health issues. The applicant witnessed the violent death of a co-worker in the Philippines in December 2014. As a result, the applicant suffered from intrusive thoughts, auditory hallucinations, and paranoid delusions. He was diagnosed with a DSM-V diagnosis of schizophrenia by Dr. Barnaby Tamakloe, Psychiatrist, on February 6, 2017, and was prescribed Loxapine.⁶ In June 2017, the prescription for Loxapine was renewed and his Family Physician noted improvement of all symptoms.⁷ Eventually, in July 2018 the applicant was referred to Sleep Disorders Centre in Brampton, where Dr. L.L. Hill diagnosed him with “mild to moderate sleep apnea”. Dr. Hill recommended CPAP therapy, oral orthotics, an ENT (ear, nose, and throat) opinion or surgical alternatives, and weight loss.⁸

17In October 2018 the applicant was referred to the WellMedica Clinic and was assessed by Dr. N. Ugwunze, Psychiatrist. The applicant reported that “he thinks deeply about things that happened to him”, but noted his psychosis resolved when he commenced taking Loxapine and his sleep was only disturbed when he discontinued this medication.⁹ By January and February 2019, the applicant reported to both Dr. Ugwunze and Dr. L.L. Hill that he was sleeping well, and he was feeling much better.¹⁰

18The applicant relies on the OCF-18 provided by Dr. N. Belyakova, Psychologist dated May 1, 2018, who provided a “provisional diagnosis” of adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational.¹¹ Unfortunately, these comments were tacked on to the Additional Comments section of the OCF-18 and there is no evidence this “provisional diagnosis” was based on any objective evidence or psychometric testing.

19I place weight upon the significant medical history in the clinical notes and records provided. These records demonstrate a history of pre-existing mental health and insomnia issues. However, there is no apparent nexus between the accident and any pre-existing impairments. Nor have I been presented with any expert reports that detail how these issues prevented maximal recovery within the treatment limits of the MIG. I place no weight upon the “provisional diagnosis” provided in the OCF-18 dated May 1, 2018. That document and the clinical notes and records provided fail to detail how these pre-existing issues prevented maximal recovery within the treatment limits of the MIG.

20Based on the evidence provided, I am not persuaded the applicant’s pre-existing issues related to his mental health and insomnia would prevent maximal recovery within the treatment limits of the MIG.

Causation

21In reply submissions the applicant submits that the accident materially contributed to the applicant’s physical and psychological injuries. This is the incorrect causation test. The test for establishing causation in accident benefits cases is the “but for” test. It is well-settled that the leading case on causation was set out by the Divisional Court in Sabadash v. State Farm,¹² which is binding on this Tribunal. Only in rare situations will the material contribution test be applied. Other than stating that the January 20, 2018 accident materially contributed to his physical and psychological injuries, the applicant did not elaborate on why his situation is a unique one where the but for test for causation would not apply.

22Thus, I must determine whether the applicant would not have had his physical and psychological impairments but for the accident.¹³ The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the applicant’s impairments, rather, the accident need only to have been a “necessary cause.”¹⁴

23I am satisfied the applicant’s physical impairments were caused by the accident but are subject to treatment within the MIG. However, the applicant has failed to establish on a balance of probabilities that the accident was a necessary cause of his pre-existing psychological issues. It is clear from the clinical notes and records that his history of depression, anxiety, and insomnia were linked to a previous traumatic event in December 2014, and not to the accident on January 20, 2018. In other words, there is no evidence to establish the applicant’s psychological issues would have been present but for the accident.

24Finally, when I consider the totality of the evidence adduced by the parties, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

25Both the OCF-18 dated May 1, 2018 for a psychological assessment and the OCF-18 dated June 29, 2018 for chiropractic treatment list at Part 4 that these injuries are not predominantly minor and cannot be treated within the MIG.

26Given that I have determined the applicant’s impairments are minor and fall within the treatment limits of the MIG, there is no reason to determine if the two OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

27Similarly, a determination regarding whether the applicant is barred from seeking the cost of a psychological assessment pursuant to s. 55(1)2 for failing to attend the IE on August 15, 2018 is no longer necessary.

Award and Interest

28Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664. Thus, no award is payable.

29There are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

30The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. A psychological assessment in the amount of $1,995.33 is not payable, as Part 4 of the OCF-18 listed the injury as not predominantly minor and beyond the MIG;

iii. Chiropractic treatment in the amount of $3,245.94 is not payable, as Part 4 of the OCF-18 listed the injury as not predominantly minor and beyond the MIG;

iv. The respondent is not liable to pay an award pursuant to Regulation 664;

v. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
2. 2Applicant’s Submissions, Tab A.
3. 3Submissions of the Respondent, Tab 14, Clinical Record of Dr. S. M. Doss dated April 8, 2019.
4. 4Ibid. Clinical Records dated October 2, 2019, and June 11, 2020.
5. 5Submissions of the Respondent, Tab 7, Physician Assessment, prepared by Dr. A. Kruger, dated September 13, 2018, pp. 57-58.
6. 6Submissions of the Respondent, Tab 10, Ontario Shores Centre for Mental Health Sciences dated October 27, 2016 within clinical records of Dr. H. Lapena.
7. 7Submissions of the Respondent, Tab 14, Sleep Disorders Centre Clinical Note dated July 19, 2018 in Clinical Notes of. Dr. S. M. Doss.
8. 8Ibid. Clinical Note of WellMedica Clinic dated October 20, 2018, in the Clinical Notes of Dr. S. M Doss.
9. 9Ibid. Clinical Note of WellMedica Clinic dated January 26, 2019, in the Clinical Notes of Dr. S. M. Doss.
10. 10Ibid. Clinical Note of Sleep Disorders Centre, February 19, 2019, in the Clinical Notes of Dr. S. M. Doss.
11. 11Submissions of the Respondent, Tab 15, OCF-18 prepared by Dr. N. Belyakova dated May 1, 2018.
12. 122019 ONSC 1121 (Ont. Div. Ct.).
13. 13Ibid.
14. 14Ibid. at para. 39.