Zafar v. Aviva Insurance Company, 2022 CanLII 8675

Citation: Zafar v. Aviva Insurance Company, 2022 ONLAT 20-008524/AABS

Licence Appeal Tribunal File Number: 20-008524/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:

Shahina Zafar

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Vismay Merja, Counsel

For the Respondent:

Christopher Lupis, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shahina Zafar (the “applicant”) was involved in an automobile accident on April 17, 2014, and sought benefits from Aviva Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (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”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

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 Guideline² (“MIG”)?

ii. Is the applicant entitled to $2,655.50 for a neurological assessment, recommended by Injury Management & Medical Assessment in a treatment plan (OCF-18) dated June 15, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefit?

RESULT

4After reviewing both parties’ submissions and all of the evidence I find the applicant sustained a minor injury. Since the MIG limit has been exhausted she is not entitled to the OCF-18 in dispute or interest.

BACKGROUND

5On April 17, 2014, the applicant was driving when her vehicle was rear-ended. Emergency services were called, and she was taken to a hospital where she was diagnosed with whiplash and right knee pain. She followed up with her family doctor and was referred to a clinic for rehabilitation. The applicant now seeks a finding that her injuries are not predominantly minor and that the disputed OCF-18 is reasonable and necessary.

Did the applicant sustain a minor injury as a result of the accident?

ANALYSIS

6I find the applicant sustained a minor injury as a result of the accident for the following reasons.

7Subsection 3(1) of the Schedule provides the following definition of a “minor injury:”

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

8Pursuant to s. 18(1) of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500. An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured person has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that a psychological impairment or chronic pain with functional limitations may warrant removal from the MIG. In all cases, the onus is on the insured person to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.

9The applicant argues that her impairments do not fit within the definition of the MIG because she suffers from chronic back pain and she has been diagnosed with disc bulges, mild central spinal stenosis, and carpal tunnel syndrome. She maintains that these impairments have interfered with her ability to function in her employment and housekeeping tasks and that she requires further treatment. She primarily relies on the clinical notes and records (CNRs) of Dr. Thompson, her family doctor and diagnostic imaging in support of same.

10The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the applicant did not report any accident-related back pain for thirteen-months post-accident and that the diagnosis of carpal tunnel syndrome is not accident related. It relies on the October 19, 2015 insurer examination (IE) of Dr. Khan, general practitioner, who determined that the applicant sustained a minor injury which can be treated in the MIG. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

Does the applicant suffer from chronic pain as a result of the accident that would warrant removal from the MIG?

11Other than a disability certificate (OCF-3) dated April 23, 2014 which notes that the applicant sustained a sprain and strain injury of the lumbar spine, I find the evidence relied upon by the applicant regarding her accident-related back pain to be inconsistent and contradictory. For example,

i. The ambulance and hospital reports from the day of the accident note that there were no complaints about back pain;

ii. The only CNRs from Dr. Thompson from 2014 support that the applicant denied having back pain. The doctor diagnoses her with sustaining a whiplash injury to the neck, right knee pain and numbness in three toes as a result of the accident; and

iii. The report of Dr. Friedman, neurologist dated July 31, 2014 states that the applicant “entirely denied low back pain or radicular symptoms.”

12I agree with the respondent that the applicant does not make any complaints to Dr. Thompson about back pain until May 31, 2015, which is over one-year post-accident. This CNR states “low back pain for 7 months getting worse.” The accident is not mentioned and the date of the onset of back pain does not line up with the date of the accident. I find the applicant has failed to link the onset of her back pain to the accident.

13The applicant argues that her back pain was caused by the accident. She relies on the aforementioned OCF-3. Of significance, the applicant did not submit any records from the treating clinic which document any ongoing complaints about back pain in 2014.

14The applicant contends that she visited Dr. Thompson 13 times between May 31, 2015 and April 20, 2021, where she complains about back pain and the doctor diagnoses her with chronic back pain. Furthermore, Dr. Thompson’s CNR dated September 12, 2015 notes “back pain for 1-year onset after mva.” Once again, I find this CNR does not support the applicant’s position that her back pain was caused by the accident as the date of the onset does not align with the date of the accident. Dr. Thompson also authored a letter dated April 20, 2021, in which the doctor opines that the applicant has had chronic back pain with flares and remissions since 2014, which was the year of the accident. I find the CNRs of Dr. Thompson from 2014 contradictory and as a result I give this evidence little weight.

15The applicant also relies on three MRIs dated October 16, 2015, August 13, 2017 and September 15, 2018 which note disc bulging in various parts of her lumbar spine and degenerative disc changes. A CNR of Dr. Thompson’s dated September 17, 2018 discusses the results of the MRIs and the doctor confirms mild degenerative changes, spinal stenosis and disc bulging. What I find lacking from the applicant’s evidence was an opinion from a doctor supporting that the results of the MRIs were caused by the accident as opposed to degenerative disc disease. For this reason, I find the medical imaging to be of limited value.

16The applicant argues that because there is no evidence that she had any back pain prior to the accident that I must accept that her complaints from 2015 onwards are accident related. I reject this submission as it is the applicant’s onus to prove that the accident caused her impairment. As I have already indicated, I find the evidence to be inconsistent and contradictory.

17The applicant also submits that her chronic back pain has interfered with her ability to function as since the accident, she has reduced her days of work from five to three days per week. There is a reference in Dr. Thompson’s CNRs from 2015 noting that the applicant’s back pain was interfering with her ability to work and reducing her hours of work is discussed. I find the applicant’s submissions regarding modified work hours to be unsupported by the evidence as no employment documentation was submitted for my consideration. Therefore, I find the applicant’s self-reports unhelpful.

18The applicant also argues that she was diagnosed with carpal tunnel syndrome post-accident and this condition removes her from the MIG. I agree with the respondent that there is no evidence supporting that this condition was caused by the accident and warrants removal from the MIG.

19The respondent relies on the IE of Dr. Khan dated October 19, 2015, who diagnosed the applicant with lumbar spine sprain and strain. While the applicant reported difficulty with heavier household chores, Dr. Khan opines that the applicant sustained a minor injury as a result of the accident which can be treated in the MIG. The applicant maintains the fact that the IE assessments of Dr. Khan and Dr. Dilkas, physiatrist, conclude that she sustained a lumbar spine strain as a result of the accident, proves that her chronic back pain was caused by the accident. I disagree, as the respondent’s first IE was completed in October 2015, which is four months after the applicant’s first complaint about back pain.

20Both parties submitted case law in support of their positions debating the definition of chronic pain and the methodology the Tribunal should use in assessing whether an individual suffers from accident-related chronic pain. I agree that chronic pain resulting in functional impairment removes an individual from the MIG. I also agree with the respondent that the applicant’s case can be distinguished from the decisions she relied upon as in those decisions the adjudicators accepted that the accident was the cause of the insured’s impairments. In the present case, the applicant has not met her onus in demonstrating beyond a balance of probabilities that the accident was a cause of her chronic back pain, disc bulges, spinal stenosis or carpel tunnel syndrome or that these conditions remove her from the MIG

CONCLUSION

21For all of the above-noted reasons, I find that the applicant’s impairments fit within the MIG. Since the MIG limits have been exhausted, I need not address whether the OCF-18 for the neurological assessment is reasonable and necessary. Since I do not find that any benefit is overdue interest is not payable.

Footnotes

1. 1O. Reg. 34/10as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.