Hillyer v. Aviva Insurance Company of Canada, 2022 CanLII 65654

Citation: Hillyer v. Aviva Insurance Company of Canada, 2022 CanLII 65654

Licence Appeal Tribunal File Number: 20-000829/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:

Heather Hillyer

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Gerard Tillmann

APPEARANCES:

For the Applicant:

Christopher R. Dawson, Counsel

David T. Isaac, Counsel

For the Respondent:

Amanda Faulkner, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on August 30, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent based on the respondent’s determination that the applicant’s injuries fell within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. 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 the Minor Injury Guideline?

b. Is the applicant entitled to $1,695.90 for physiotherapy services recommended by New Horizons in a treatment plan dated September 21, 2017?

c. Is the applicant entitled to $1,546.75 for physiotherapy services recommended by New Horizons in a treatment plan dated November 27, 2017?

d. Is the applicant entitled to interest on the overdue repayment?

RESULT

3I find that the applicant sustained predominantly minor issues as defined under s. 3 of the Schedule. The disputed treatment plans propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment. Since both treatment plans would individually exceed the remaining MIG limit, there is no need to consider the reasonableness or necessity of the treatment plans.

PRELIMINARY ISSUE

4The applicant raised a preliminary issue in her Submissions, asking that I exclude the respondent’s surveillance evidence because it was served late. She submits that the evidence was obtained by the respondent in January of 2018 and served by the respondent upon the applicant on December 16, 2020, after November 2, 2020, the parties’ deadline for the exchange of evidence.

5The respondent argues that the surveillance report and videotape should be admitted into evidence as they are relevant and that the applicant is not prejudiced by the late service of the evidence. The respondent says that while the evidence was served late, the applicant:

a. had sufficient time to obtain a report that commented on the surveillance;

b. could have asked for an extension of time in order to obtain a report that commented upon the evidence;

c. ought not to have ignored the opportunity to obtain such a report because she was concerned that obtaining such a report would prejudice the respondent in its attempts to obtain a report in response to the applicant’s report.

ANAYSIS – Preliminary Issue

6I find that the surveillance evidence obtained by the respondent is not admissible for the following reasons.

7The parties attended a case conference in this matter on July 13, 2020. At the case conference, it was ordered that a written hearing take place on March 31, 2021. The applicant asked for the right to provide an affidavit for the purposes of providing evidence for the hearing (“the applicant’s affidavit”). It was ordered, among other things, that:

a. The applicant shall produce an affidavit by November 2, 2020;

b. The cross-examination of the applicant shall be completed by January 11, 2021; and

c. The parties shall disclose any other documents that have not been previously disclosed, but which they intend to present as evidence at the hearing, by November 2, 2020.

8The respondent obtained a surveillance report and videotape surveillance of the applicant in the month of January, 2018. The respondent intended to present the surveillance report and videotape surveillance at the hearing. It served this videotape surveillance on the applicant on December 16, 2020, some six weeks after the deadline for the exchange of evidence.

9The applicant takes the position that since the respondent did not disclose the surveillance report or videotape surveillance on or before November 2, 2020 as required, the admission of the evidence would be prejudicial to the applicant because the respondent has deprived the applicant of her right to address or explain this surveillance evidence in contravention of the principles in Browne v. Dunn and the Evidence Act.

10The respondent concedes that it did not disclose the surveillance report or videotape surveillance by November 2, 2020 as required. The respondent says that this occurred through inadvertence, in that the respondent believed that it had disclosed the existence of this evidence at the time of the case conference. The respondent did disclose the existence of this evidence on December 16, 2020 which was when the respondent realized it’s error.

11Upon receipt of the surveillance, the applicant complained to the respondent of the late service of the surveillance. By correspondence dated December 24, 2020, the respondent apologized for the late service and advised the applicant that this had occurred as a result of inadvertence. The respondent did nothing further.

12It is the respondent who has the obligation to comply with the disclosure provisions of the case conference order, the rule in Browne v. Dunn and the provisions of the Evidence Act.

13Fairness to the applicant is the overriding principle and it is the respondent who has to give the applicant the opportunity to deny, explain or adopt the surveillance evidence. It is not the applicant who has the responsibility to do this on her own.

14Each of the respondent’s suggestions as to what the applicant could have done places the onus on the applicant to correct the respondent’s error and relieve the respondent of its obligations to provide proper disclosure of evidence and provide the applicant with the opportunity to deny, explain or adopt the evidence.

15In this instance, the respondent was provided time until January 11, 2021, to cross-examine the applicant on her affidavit. Although the respondent did advise the applicant on November 4, 2020 that the respondent did not require a cross-examination on her affidavit, once the respondent was aware that it had not disclosed the existence of the surveillance evidence and then served this evidence, the respondent then still had the time and opportunity to invoke its right to cross-examine the applicant on the applicant’s affidavit. Doing that would have provided the applicant with her right and opportunity to address or explain the surveillance evidence.

16It is not the responsibility of the applicant to correct the omission, error, or inadvertence of the respondent. At the time of completing her affidavit, the applicant did not know that the respondent had obtained the surveillance evidence. Thus, the applicant could not respond to evidence of which she was not aware. The cross-examination of the applicant on her affidavit by the respondent was a step that could have been taken by the respondent to correct its omission, error, or inadvertence. Taking such a step would have given the applicant the opportunity to address or respond to the surveillance evidence. It would have satisfied the fairness principle.

17Taking such a step would have also satisfied the rule in Browne v. Dunn and the provisions of the Evidence Act. The respondent did not take such steps. I find that the surveillance evidence of the applicant obtained by the respondent in January of 2018 and served by the respondent upon the applicant on December 16, 2020 is not admissible.

SUBSTANTIVE ISSUES

THE MINOR INJURY GUIDELINE

18I find that the applicant has provided insufficient evidence to show that her injuries fall outside the MIG.

19Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury”. An insured may be removed from the MIG if the insured can establish that the accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. In any event, the burden of proof lies with the applicant.

20It is the position of the applicant that she suffered a concussion in the accident and ongoing headaches as a result of the accident, both of which, or either of which, remove her from the definition of “minor injury” and thus cause her injuries to fall outside of the MIG.

21I find that the applicant has not provided sufficient evidence to show that she (a) suffered a concussion injury; or (b) headaches as a result of the accident that would cause her injuries to fall outside of the MIG.

Did the Applicant sustain a concussion and/or headaches?

22I find that the documentation and evidence provided by the applicant does not support her position that she suffered a concussion or headaches which removes her from the MIG and the $3,500.00 funding limit on medical benefits.

23The applicant submits that she suffers from a concussion and headaches as a result of the accident and relies on her affidavit affirmed on October 22, 2020 (“affidavit”), the emergency records of GBHS-Owen Sound General Hospital (“Emergency Note Record”), the clinical notes and records of Dr. Milio, her family physician, for the period from August 30, 2017 to September 18, 2019 (“Dr. Milio CNRs”), and the March 11, 2020 report of Dr. Milio (“Dr. Milio’s report”) in support of her position that she should be removed from the MIG and that her treatment plans are reasonable and necessary.

24The respondent argues that the applicant’s injuries are within the MIG and that the injuries suffered do not remove her from the provisions of the MIG. The respondent relies upon the IE Assessment report of Dr. Ato Sekyi-Otu dated January 8, 2018.

25The applicant states in her affidavit with regard to concussion and headaches that she hit her head in the car accident, that her headaches were constant and debilitating, that she had great difficulties with reading and watching television, and that she avoided these activities. She also expressed that she was struggling with concentration, her memory, and her mood. She further states that her physiotherapist and family doctor diagnosed her with a concussion.

26Despite the applicant’s submissions, a physiotherapist is not qualified to diagnose a concussion, so I give no weight to the fact that her physiotherapist stated that she was suffering from a concussion. There is no mention of the applicant being diagnosed with a concussion in Dr. Milio’s CNRs or the Emergency Note Record from the hospital which she attended immediately after the accident. Within two months of the car accident taking place, Dr. Milio refers her for a CT scan, but the results of the CT scan are not contained in the evidence.

27The applicant relies on Dr. Milio’s two-page report written almost two and a half years after the accident that the applicant’s symptoms are consistent with a concussion.

28In contrast, the respondent relies on the January 8, 2018 s. 44 IE Assessment report of Dr. Ato Sekyi-Otu, an orthopaedic surgeon, who examined the applicant and noted that she complained of headaches, hip and buttock pain, and neck and back pain. He opined in his report that the applicant sustained uncomplicated myofascial strains to the cervical and lumbar spines, and to the shoulder girdles, and strains to the hip girdle. His examination identified no objective signs of ongoing impairment. The applicant’s reported symptoms were not supported by objective signs of ongoing pathology.

29There is no indication in Dr. Ato Sekyi-Otu’s report that the injuries suffered by the applicant are anything more than minor in nature.

30It is the applicant’s responsibility to satisfy the burden of proof that her injuries fall outside the MIG. I find that she has not satisfied this burden.

31Dr. Milio’s CNRs do not substantiate the applicant’s position that she suffered persistent and continuous headaches. Contrary to the applicant’s statement in her affidavit, there is no consistent reporting of headaches in Dr. Milio’s CNRs.

32In the two-year span covered by Dr. Milio’s CNRs for the applicant, there are some 65 entries from the date of the accident to the end of the CNRs provided. Dr. Milio’s CNRs start on September 5, 2017 with the applicant’s first visit following the accident. The last entry of Dr. Milio’s CNRs is September 18, 2019. Of the 65 entries, 12 are concerned with visits made by the applicant to Dr. Milio (September 5 and 13, and December 1, 2017; October 5 and November 16 and 21, 2018; February 14 and 21, June 10, July 12, August 14, and September 18, 2019). In only four of these visits did the applicant complain of headaches/migraines. The first complaint occurs with her first visit on September 5, 2017. The next complaint of headaches does not occur until over one year later on her visit of October 5, 2018. Her last two complaints of headaches occur on November 21, 2018 and February 21, 2019.

33Dr. Milio’s report does say that a concussion requires a direct hit to the head, that the applicant reported that she hit her head in the MVA and that “her symptoms are consistent with a concussion”. However, he says nothing further in his report about concussion. He makes no reference to any of his CNRs to support his comments about concussion and as noted earlier, there are no references or remarks in his CNRs about concussion.

34Dr. Milio’s report does speak to headaches but in so doing does not reference any of his CNRs. He states that:

a. “Currently she still suffers from daily headaches…”;

b. Her headaches are triggered by very bright lights and loud noise.”; and

c. “She currently uses Tylenol #3, she had previously tried CBD oil to help with the headaches but found this un-helpful”.

35I do not place much weight on Dr. Milio’s report. It does not refer to his CNRs to support the statements he makes in his report, and I find little or no substantiation in his CNRs for the statements made in his report.

36The only reference in Dr. Milio’s CNRs to “daily”/constant headaches is the February 21, 2019 clinical note and that is one and a half years after the accident. Dr. Milio’s CNRs make no reference to her headaches being triggered by very bright lights and loud noise or that the applicant previously tried CBD oil to help with headaches but found this to be unhelpful. His report mainly comments on symptoms that have not been reiterated in his clinical notes.

37Historically, the Tribunal has determined that a concussion is an injury that falls outside of the MIG. In this case, I do not have enough evidence to support that the applicant suffered a concussion as a result of the accident and find that she should not be removed from the MIG.

38I find that the applicant has not provided sufficient evidence to support her position of persistent headaches, as submitted by the applicant in her submissions and her affidavit, to remove her from the MIG.

39Headaches are not evidence that she suffered a concussion.

40Dr. Milio’s clinical notes and records do not substantiate the applicant’s position that she suffered persistent and continuous headaches. Contrary to the applicant’s statements in her affidavit, there is no consistent reporting of headaches in Dr. Milo’s clinical notes and records.

THE DISPUTED TREATMENT PLANS

41The applicant sustained a minor injury as defined in s. 3 of the Schedule and is subject to the $3,500.00 funding limit on treatment. An analysis of the disputed treatment plans is unnecessary because either plan individually exceeds the funding available for a minor injury.

INTEREST

42Interest is payable on the overdue payment of benefits, pursuant to Section 51 of the Schedule. Having found that the applicant is not entitled to any of the disputed treatment plans, it follows that she is not entitled to any interest.

CONCLUSION AND ORDER

43The applicant was involved in a motor vehicle accident and sustained a predominantly minor injury. She is not entitled to the disputed treatment plans because they propose treatment beyond the scope of the Minor Injury Guideline. No interest is payable as no payments went overdue.

44The application is dismissed.