Gordon Walsh v. Aviva Insurance Company, 2022 CanLII 75164

Citation: Walsh v. Aviva Insurance Company, 2022 ONLAT 20-010640/AABS

Licence Appeal Tribunal File Number: 20-010640/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:

Gordon Walsh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Richard Kreder, Counsel

For the Respondent: Catherine Zingg, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Gordon Walsh, the applicant, was involved in an automobile accident on May 23, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule")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 following issues are to be decided:

a. Are the applicant's injuries predominantly minor as defined by the Schedule and subject to a $3,500 treatment limit under the Minor Injury Guideline ("MIG")?

b. Is the applicant entitled to $215.48 for chiropractic services recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan ("OCF-18") dated September 27, 2018?

c. Is the applicant entitled to $1,977.05 for chiropractic services recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated November 23, 2018?

d. Is the applicant entitled to $2,569.40 for chiropractic services recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated September 6, 2019?

e. Is the applicant entitled to $2,520.00 for an orthopaedic assessment recommended by Princeton Hills Medical Assessments Inc. in an OCF-18 dated August 28, 2019?

f. Is the applicant entitled to $2,260.00 for a psychological assessment recommended by Princeton Hills Medical Assessments Inc. in an OCF-18 dated August 26, 2019?

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

h. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments of a benefit?

RESULT

3The application is dismissed, and I find that:

a. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable;

c. The applicant is not entitled to interest; and

d. The applicant is not entitled to an award under Regulation 664.

Analysis

The Minor Injury Guideline

4The Minor Injury Guideline ("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."

5Schedule 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains impairments that are predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit 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.

7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

8The parties agree that the applicant has exhausted the $3,500.00 MIG treatment limit.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

9The applicant submits that his injuries warrant treatment beyond the MIG. In this regard he relies on the clinical notes and records of his family physician, Dr. Giuseppe Greco, physician and a Disability Certificate ("OCF-3") from chiropractor, Dr. Ayden Banlbashar.

10The applicant submits that on May 24, 2018, he visited Dr. Greco with complaints of pain in his neck, left shoulder and left ribs. The applicant was referred for an x-ray of his chest, left ribs, cervical spine and left shoulder. The x-ray indicated there was no fracture or dislocation.³ On October 11, 2018, the applicant returned to Dr. Greco, complaining that his pain was not improving, the applicant was referred for an ultrasound of the left shoulder. The ultrasound was never completed.

11The applicant also relied on an OCF-3 completed by Dr. Banlbashar of July 3, 2018, which listed the applicant's diagnoses to include sprains and strains of his shoulder, neck, spine and ribs.⁴

12In response, the respondent relied on an insurer's examination ("IE") performed by its assessor Dr. Oleg Safir, orthopaedic surgeon, and his report dated October 30, 2019; during the assessment, the applicant complained of neck, low back, and right shoulder pain.

13Dr. Safir opined that the applicant did not suffer from a musculoskeletal impairment as a result of the accident. Dr. Safir submitted that the applicant already achieved the maximum therapeutic benefit from the physical rehabilitation he had undertaken, and any similar care would not be expected to be of any additional therapeutic benefit. It was also noted that the applicant had returned to work following the accident and was performing his usual housekeeping activities.⁵

14After considering the submissions of the parties, based on a balance of probabilities, I find that that the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG.

15The physical injuries listed in the OCF-3 are captured within the definition of minor injury. Further, the x-ray did not demonstrate that he sustained anything other than a minor accident-related injury.

16In terms of the applicant's section 44 assessment, I placed weight upon Dr. Safir's findings of minor-injuries as the sole expert report related to the applicant's injuries.

Did the applicant suffer psychological impairments that justify the removal form the MIG?

17As noted above, an applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

18The applicant submitted that as a result of the accident, he suffered from a psychological impairment that requires removal from the MIG. The respondent disagrees.

19In support of the applicant's position, the applicant relied on references of psychological symptoms by Dr. Greco and treating practitioners.

20During an appointment with Dr. Greco on October 11, 2018, the applicant was noted to be experiencing psychological symptoms of stress, anxiety, anger and irritability. During the psychological pre-screen of the applicant on August 26, 2019, Dr. Jenan Mustafa identified that the applicant had depressive symptoms, changes in mood, feelings of sadness, irritability, anger, and sleep difficulties.⁶

21The respondent argued that the psychological symptoms were self-reported by the applicant and there is no diagnosis by any practitioner.

22After considering the evidence and submissions from the parties, based on a balance of probabilities, I find that the applicant has not met his evidentiary onus to demonstrate that he suffered from a psychological impairment as a result of the accident.

23I disagree with the applicant's position and find that the evidence does not support his allegation of a psychological injury. With regard to Dr. Greco's intake assessment of the applicant on October 11, 2018, I noted that the doctor checked off psychological symptoms reported by the applicant including anger, stress, pain, general anxiety and irritability. However, there is no diagnosis or even a referral from Dr. Greco for psychological treatment.

24Further, the OCF-18 psychological pre-screen of Dr. Mustafa suggested psychological symptoms but provided no diagnosis.⁷ There must be specific evidence to establish an impairment, CNR's or expert reports would meet the onus of proof beyond a reasonable doubt, an OCF-18 is insufficient proof of a specific diagnosis.

25The applicant has the onus of establishing he suffered a psychological impairment sufficient to remove him from the MIG treatment limits. In this regard, I cannot conclude that the applicant suffered sufficient accident-related psychological impairments that would warrant removal from the MIG on this basis.

Does the applicant suffer from a pre-existing condition that prevents recovery under the MIG?

26Section 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:

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

b. 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.

27The standard for excluding an impairment on the basis of pre-existing conditions 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.

28The evidence indicates that the applicant has a pre-accident history of degenerative disc disease ("DDD") and advanced osteoarthritis of the cervical spine and shoulder.⁸

29The respondent relied on Dr. Safir's opinion that there is no compelling evidence that suggests the pre-existing medical condition will prevent the applicant from achieving maximum recovery from his minor injury if subject to the limits imposed by the MIG.⁹

30After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not shown that he suffers from a pre-existing condition that requires removal from the MIG to reach maximum medical recovery.

31I find that there is no medical evidence that shows how these pre-existing medical conditions were affected by the accident or how the applicant's recovery would be impacted by these conditions.

32Therefore, I am not persuaded that the applicant has established how he would be prevented from reaching maximum recovery within the MIG as a result of these pre-existing impairments.

Chronic Pain

33For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant's functionality is impaired and that the chronic pain is the cause of the disability.

34The applicant submits that his injuries are chronic as he continues to experience recurrent and acute pain. The applicant relied on 17-000835 and Aviva General Insurance Company¹⁰, which described chronic pain as ongoing or recurrent pain lasting more than 3 to 6 months.

35Despite his claim, the applicant failed to refer the six criteria laid out in the American Medical Association Guides ("AMA Guides").¹¹

36After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not shown that he suffers from chronic pain requiring removal from the MIG as a result of the accident.

37There are no clinical records or expert medical reports that speak to any chronicity of pain symptoms, the impact of said pain, or a formal diagnosis related to chronic pain in evidence. Furthermore, the applicant has not presented any direct evidence that speaks to the impact of his pain in relation to the AMA Guides.

38While a diagnosis of chronic pain is not required, it is difficult to consider treatment for chronic pain where the only reference to chronic pain comes from a chiropractor. While a chiropractor may be able to treat patients with chronic pain, I find that diagnosing such a condition is beyond the scope of a practice of a chiropractor.

39I am not satisfied that the applicant has demonstrated his functionality was impaired by chronic pain linked to the accident; more direct evidence is required to establish to what extent a chronic condition, affects functionality. The applicant failed to reference the AMA Guides, nor provided sufficient medical evidence to establish that his functionality was impaired and chronic pain is the cause of the disability.

40As the MIG's $3,500.00 treatment limit is already exhausted, no additional analysis is required to determine if the treatment plan at issue is reasonable and necessary.

41Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

42Given that there are no payments of benefits, the applicant is not entitled to an award under Regulation 664.

ORDER

43The application is dismissed, and I find that:

a. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable;

c. The applicant is not entitled to interest; and

d. The applicant is not entitled to an award under Regulation 664.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3X-ray Report, May 25, 2018.
4. 4OCF-3, Disability Certificate, July 3, 2018.
5. 5Insurer's Examination Report, October 30, 2019.
6. 6Dr. Mustafa pre-screen dated August 26, 2019. Tab 17
7. 7Dr. Mustafa pre-screen dated August 26, 2019. Tab 17
8. 8X-ray Report, May 25, 2018.
9. 9Insurer's Examination Report, October 30, 2019.
10. 1017-000835 and Aviva General Insurance Company, 2018 CanLII 83520 at para. 23.
11. 11American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.