Naval v. Aviva General Insurance, 2022 CanLII 8667

Citation: Naval v. Aviva General Insurance, 2022 ONLAT 20-006064/AABS

Licence Appeal Tribunal File Number: 20-006064/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:

Sonia Naval Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: Sonia Naval, Applicant Linda To, Paralegal

For the Respondent: Aviva General Insurance Brendan Sheehan, Counsel

HEARD: In Writing

REASONS FOR DECISION

BACKGROUND

1The applicant, Sonia Naval, was involved in an automobile accident on March 13, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010. The applicant was denied certain benefits by the respondent, Aviva General Insurance, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The respondent denied the applicant's claims because it determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline¹ (MIG). The applicant's position is the opposite.

3If the applicant's position is correct, then I must address the issue of whether she is entitled to the cost of an orthopaedic assessment.

4If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed cost of examinations are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

5After reviewing the submissions of the parties and weighing the evidence, I find that the applicant sustained predominantly minor injuries and that she is subject to treatment within the MIG and the $3,500.00 policy limit for medical benefits and the cost of examinations.

ISSUES

6The issues I must determine are as follows:

1. 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 MIG?
2. Is the applicant entitled to $2,602.38 for an orthopaedic assessment, recommended by Dr. P. Alexander in a treatment plan dated May 23, 2018?
3. Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

A. The Minor Injury Guideline

7Section 3(1) of the Schedule 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 an injury and includes any clinically associated sequelae to such an injury." The MIG defines in detail what these terms for injuries mean.

8Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits and the cost of examinations payable for any one accident for insured persons with minor injuries.

9The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.²

(i) Did the applicant sustain predominantly minor physical injuries?

10It is uncontested that the applicant's physical injuries were soft tissue injuries. The MVA report does not indicate anyone in the accident was injured. However, the applicant attended at the hospital the same day with complaints of back pain. The applicant relies on the March 23, 2017 OCF-3 disability certificate prepared by Dr. Derek Ginter, chiropractor, stating that the applicant's injuries were sprain and strain of the cervical spine, thoracic spine, lumbar spine and hip.

11The applicant argues that she should be removed from the MIG because she has chronic pain. She also submitted that she has stress, anxiety and sleeping difficulties, and that she has a pre-existing injury of a torn elbow muscle. Accordingly, I must address whether the following take the applicant out of the MIG:

i. Chronic pain; ii. Psychological Impairment; or iii. A pre-existing condition.

(ii) Chronic Pain

12Chronic pain syndrome, if established, removes a claimant from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions. Moreover, chronic pain syndrome, if established, should not be included in the MIG definition as a sequela to minor injuries.³ However, ongoing pain or chronic pain alone is insufficient to take one out of the MIG. For an insured person to be taken out of the MIG for chronic pain, the pain must be severe enough to cause a significant disruption to the person's life, such as functional impairment or disability.⁴

13In the absence of a diagnosis of chronic pain syndrome such as this case,⁵ I am persuaded by the reasoning in 17-007825 v Aviva Insurance Canada that the following are factors to consider in determining whether the applicant's pain is of a severity that takes it out the MIG:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. b. Excessive dependence on health care providers, spouse, or family. c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. d. Withdrawal from social milieu, including work, recreation, or other social contracts. e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.⁶

14I agree with Adjudicator Ferguson that these are useful factors to consider when determining if the applicant's chronic pain is so severe and constant that it significantly disrupts her pre-accident activities of daily living,⁷ such that it takes her out of the MIG.

15Although the applicant's pain has persisted well beyond the normal healing times, I am unable to find that chronic pain takes her out of the MIG because the evidence does not support that she meets any of the factors listed above.

16The applicant submits that she returned to work as a personal support worker about six weeks after the accident.⁸ She returned to normal hours with no modifications.⁹ This is not consistent with a significant disruption of her daily activities.

17When the applicant saw Dr. Pradeep J. Alexander, orthopaedic surgeon on May 23, 2018, she was not taking any medication for her pain. The applicant reported to Dr. Alexander that her back pain rated from 3 to 5 out of 10 on the pain scale, which is not consistent with severe pain. There is no indication on whether the pain was consistent or intermittent.

18Dr. Alexander found a slight reduction in lumbar flexion, yet there was no pain on straight leg raise. He reported that the applicant's low back pain limits her ability to perform the heavier aspects of her housekeeping. He reported that the applicant has extreme difficulty lifting, carrying, bending, stooping, leaning over, or standing for a short period of time. This is out of keeping with his essentially normal assessment except for a slight decrease in lumbar flexion. Given his findings, I would have expected Dr. Alexander to report his observations of the applicant attempting any of those activities. The only activity he reported observing was the applicant standing from a sitting position, which causes her some discomfort. He provided no explanation of how some discomfort equates to extreme difficulty. He did not provide any explanation of how pain, which at its worst is a five out of ten, limits the applicant's ability. I have no information on whether Dr. Alexander's determination and findings mean that the applicant is able to do the activity albeit at a slower pace, or for shorter periods of time, or that she must carry lighter loads, all of which do not necessarily mean that she is functionally disabled.

19The applicant was seen on May 13, 2021 by Dr. Sabrina Ming-Wai Tu for an insurer's examination under s.44 of the Schedule ("IE").¹⁰ The applicant reported to Dr. Tu that her family doctor sent her for x-rays that did not show any acute concerns. Her complaints as a result of the accident were of low back pain and feeling more anxious in a car. The applicant told Dr. Tu that, except for gardening, she returned to all of pre-accident housekeeping activities but was doing them less frequently.

20I have no information on why the applicant stopped gardening or what role the applicant's left shoulder injury that she sustained at work in 2019 plays in her gardening activities. She has not provided evidence that her pain affects her functional abilities such that her physical capacity is insufficient to pursue work, family or recreational needs. Even if the applicant stopped gardening because of her pain complaints as a result of the accident, which I am unable to find due to lack of evidence, there is no evidence that she has withdrawn from any other recreational, social or work activities.

21The applicant submits that, because she was prescribed Naproxen, Diclofenac and Cyclobenzaprine, she has chronic pain. However, she was not prescribed any of those medications beyond February 2019.¹¹ Dr. Alexander confirmed that the applicant was initially prescribed pain killers and, at the time of his assessment, she was no longer on them. By the time she saw Dr. Tu, she was taking Tylenol or Advil a few times per week. However, the applicant was prescribed Lenoltec just two weeks before the accident and Hydrocodone just three months before the accident. She was prescribed Naproxen and Diclofenac pre-accident as well.¹² Her pre-accident pain medication consumption was greater than it is now. This is not consistent with dependency on or abuse of prescription drugs or using them beyond the recommended duration.

22According to the clinical notes and records of Liruma Rehab, for the most part it was the applicant's lumbar spine that was treated, with the occasional thoracic spine treatment from March 17, 2017. The applicant complained of a stiff neck and shoulders, but no pain other than her lower back. By July 2017, the applicant's only complaints were of stiff neck and shoulder.¹³ This is not consistent with severe constant back pain. Nor is it consistent with pain that causes extreme difficulty lifting, carrying, bending, stooping, or standing for short periods as described by Dr. Alexander.

23The applicant also submitted that she has chronic left shoulder pain. The only reference to her shoulder pain is in Dr. Tu's report. The applicant advised that she injured her left shoulder at work in 2019 and was referred to a chronic pain specialist for it. Her shoulder injury resolved. Accordingly, the left shoulder injury was not caused by the motor vehicle accident.

24There is no evidence to show on a balance of probabilities that the applicant developed psychosocial sequelae related to chronic pain. She advised Dr. Tu that she feels general anxiety in a car since the accident. However, there is no evidence that vehicle anxiety is caused by the applicant's pain complaints or has any relation to her pain complaints. She expressed other psychological related feelings to Dr. Alexander, but for the reasons given below, there is no evidence of the extent of the feelings, that these feelings developed after the accident or that they have any relation to her chronic pain.

25There is no evidence of excessive dependence upon anyone or of deconditioning. Accordingly, for these reasons, I find that the applicant has not provided sufficient evidence to prove on a balance of probabilities that her pain is so great that it disrupts her function and consequently her pre-accident activities of daily living to the extent required to take her out of the MIG.

(iii) Psychological Impairments

26Psychological injuries, if established, may fall outside the MIG because the MIG only governs "minor injuries" and the prescribed definition does not include psychological impairments. However, psychosocial symptoms are sequelae from minor injuries and do not take an insured person out of the MIG.¹⁴

27The applicant submits that after the accident, she immediately started experiencing stress, anxiety and sleeping difficulties. There is no evidence supporting her submission. These complaints are not recorded in the hospital emergency records nor in the Liruma Rehab records.

28Dr. Tu reported that the applicant feels generally more anxious when she is in a car since the accident. There is no evidence that she avoids travelling in a car as a result. Accordingly, I am unable to find that the applicant's vehicular anxiety amounts to more than mere sequela.

29Dr. Alexander reported that the applicant had feelings of depressed mood, anxiety, anhedonia and low energy. Dr. Alexander did not comment on whether these were feelings the applicant had prior to the accident or how they affect her function. It is imperative for the applicant to identify this information to prove her claim given the following:

a. These complaints are absent in the treatment plan in issue, the Liruma records and in Dr. Ginter's disability certificate; and b. The applicant was prescribed Lorazepam, a drug used to treat anxiety. Lorazepam was prescribed in June 2016, before the accident, implying that she had anxiety prior to the accident.

30Without knowing when the applicant's psychological complaints arose, how they are different from pre-accident, or how they affect her work and daily activities, I am unable to make any determination. Accordingly, I do not have enough information to make a finding that the accident caused a psychological impairment that is more than mere sequelae of the accident.

(iv) Pre-Existing Conditions

31Section 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 this case, the applicant submits that she tore a muscle in her left elbow in 2015, resulting in a permanent impairment. 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 MIG.

32The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG: it is in fact intended and expected that the vast majority of pre-existing conditions will not do so. The MIG clearly requires that a pre-existing condition must be shown with compelling evidence to prevent maximal recovery within the cap imposed by the MIG.¹⁵

33The applicant has not provided any pre-accident records documenting a pre-accident elbow injury. Nor has she submitted any evidence stating why or how her pre-existing condition would prevent maximal recovery within the MIG cap of $3,500.00 for treatment. If she has pre-existing anxiety, there is no evidence that it would prevent maximal recovery within the MIG. Accordingly, the applicant does not meet the exemption for the MIG on the basis of a pre-existing condition.

B. Entitlement to Cost of Examinations

34Because I have found the applicant's injuries are predominantly minor and fall within the MIG, it is unnecessary for me to assess whether the claimed treatment plan is reasonable and necessary.

CONCLUSION

35For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plan claimed in this application. It follows that no interest is owing. Her application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 3T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT), para 20, 23-24. In that case the applicant had chronic pain syndrome.
4. 416-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
5. 5The applicant relies on the reconsideration decision of T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT), in which the applicant was determined to have chronic pain syndrome.
6. 617-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT). The decision states the factors are from the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24 and that a person must have at least 3 out of the 6 criteria for a diagnosis of chronic pain syndrome.
7. 7See also 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), paras. 27-18
8. 8The applicant submits that she returned to work due to financial commitments but did not file any evidence to support this submission.
9. 9Respondent's submissions, Tab 3, report of Dr. Sabrina Ming-Wai Tu dated May 28, 2021
10. 10Respondent's submissions, Tab 3, report of Dr. Sabrina Ming-Wai Tu dated May 28, 2021
11. 11Applicant's submissions Tab G, prescription summary from August 3, 2018 to July 26, 2019
12. 12Applicant's submissions, Tab F, prescription summary from March 13, 2014 to August 3, 2018
13. 13Applicant's submissions, Tab C, clinical notes and records from Liruma Rehab, July 18, 2017 note, p.27
14. 14See s.2(g) of the MIG and s.7(b)(iii) of the MIG, other interventions that facilitate pain management, activation and return to function include intervention for psychosocial issues and coping skills education.
15. 15Minor 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".