Dhillon v. Aviva Insurance Company, 2022 CanLII 87731

Citation: Dhillon v. Aviva Insurance Company, 2022 ONLAT 20-008627/AABS

Licence Appeal Tribunal File Number: 20-008627/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:

Lovesukhveer Dhillon Applicant

and

Aviva Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Jaskarn Grewal, Counsel

For the Respondent: Rozlien Birkha, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Lovesukhveer Dhillon ("the applicant") was injured in an automobile accident on January 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ ("the Schedule") from Aviva Insurance Company ("the respondent"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

2The respondent determined that 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 Guideline ("MIG")². The respondent submits that even if these injuries are found not to be a minor injury, the disputed benefits are not reasonable or necessary.

3The applicant's position is that his injuries sustained in the accident are not included in the minor injury definition and he submits that his chronic pain removes him from the MIG. The parties agreed that the MIG limits have been exhausted.³

ISSUES IN DISPUTE

4The following issues are to be decided:

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 MIG?

ii. Is the applicant entitled to a medical benefit in the amount of $2,675.00 for chiropractic and physiotherapy treatment, proposed by Active Life Wellness Centre in a treatment plan ("OCF-18") dated June 17, 2020?

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

RESULT

5I find that:

(i) The applicant's accident-related injuries are outside of the MIG as he suffers from chronic pain;

(ii) The applicant is not entitled to $2,675.00 for chiropractic and physiotherapy treatment proposed in the OCF-18 dated June 17, 2020; and

(iii) The applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline (MIG)

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) of the Schedule 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 demonstrating that their injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

Does the Applicant have Chronic Pain that would Remove him from the MIG?

10The applicant submits that he should be removed from the MIG due to chronic pain stemming from the accident. The applicant relies on the clinical and notes and records ("CNR"s) of his family physician Dr. Jarnail Singh Vanvat, which indicate that he suffered from ongoing low back and shoulder pain for more than a year after the accident⁵. The applicant further submits the treatment records from Active Life Wellness Centre Inc. ("Active Life"), where he attended for physiotherapy from January 31, 2017 to September, 2017 and again from August to December 2020, as evidence of his ongoing pain complaints and need for treatment for his neck, shoulder and low back⁶.

11With respect to diagnostic imaging, the applicant submits magnetic resonance imaging ("MRI") of his spine dated August 19, 2019, which indicated mild diffuse posterior and bilateral foraminal L4-L5 and L5-S1 disc bulge⁷ and an August 19, 2019 MRI of his right shoulder which found mild supraspinatus tendinosis and minimal trace of fluid noted in sub deltoid and sub acromial bursa⁸. Finally, the applicant relies on the reporting letter of physiatrist Dr. Lilian Lee Yan Vivas, who diagnosed the applicant with neuritis and myofascial pain in the shoulder and hip⁹.

12The respondent submits that the applicant sustained only a minor injury from the accident and that the medical evidence submitted by the applicant does not support his argument that he has chronic pain. The respondent argues that it is not sufficient for a doctor to simply reference "chronic pain" but that the American Medical Association's Guides ("AMA Guides") definition of chronic pain syndrome should be applied. The respondent asserts that the applicant does not meet at least three of the six criteria, as required by the AMA Guides.

13Further, the respondent disputes the applicant's assertion that his family physician Dr. Vanvat diagnosed him with chronic pain. Rather, the respondent asserts that Dr. Vanvat only references right shoulder pain, rather than providing a chronic pain diagnosis. The respondent further submits that there are significant gaps in the applicant's medical records. Namely, that the last pain complaint the applicant made to Dr. Vanvat was on July 3, 2018, almost two years before the OCF-18 in dispute was submitted. The respondent notes the gap in treatment with Active Life, whereby the applicant did not attend for treatment between September 27, 2017 to August 20, 2020. Finally the respondent asserts that the MRI results from August 2019 are being provided without any corresponding medical records or referrals; were conducted in India two and a half years after the accident; and do not refer to the motor vehicle accident. Similarly, the respondent disputes Dr. Vivas' report and its finding of myofascial pain, as it was conducted four years after the accident, with limited corroborating medical evidence.

14Upon review of the parties' evidence and submissions, I find that the applicant has established on a balance of probabilities that he suffers from chronic pain as a result of the accident, for the reasons outlined below.

15I agree with the respondent that an applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must be also accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual's well-being. However, in this case, I find the applicant has adduced sufficient evidence to establish his ongoing pain and functional disability.

Applicant's Reports of Chronic Pain

16With respect to the applicant's ongoing pain reports, the respondent submits that there are large gaps in both treatment and in pain complaints reported to medical doctors, such that the applicant cannot establish ongoing pain. I find that the applicant has led sufficient evidence to establish that he has suffered from ongoing pain in the four years post-accident.

17The applicant began to attend for physical therapy treatment at Active Life the day following his motor vehicle accident on January 31, 2017, and attended until September 2017. He did not resume treatment again until August 2020. In his reply submissions, the applicant submits that he only stopped attending physical treatment as he had exhausted the MIG limits in September 2017 and was denied further treatment by the respondent. He asserts that he was financially unable to continue paying for the therapeutic treatment, but in August 2020 his pain had worsened to the point that he began to incur the treatment out of pocket.

18I find this to be a persuasive argument and agree with the applicant that paying for private physical treatment can be cost-prohibitive to an applicant, such that they may forgo treatment even if it is required. Therefore, I do not find the fact that the applicant did not attend at physiotherapy treatment for a period of over two years to be necessarily indicative of the fact that he no longer suffered from accident-related pain. The applicant's reports of pain in his back, shoulder, neck and leg are well documented in the treatment records of Active Life from January to September 2017, and in his final few sessions in September 2017, the entries indicate that his pain complaints were still ongoing¹⁰. From August to December 2020, the applicant again attended at physiotherapy with Active Life, reporting chronic low back, neck and calf pain.

19With respect to corroborating CNRs of medical doctors, while I agree with the respondent that there are some gaps in the CNRs, I find that the applicant has still provided sufficient examples that he had reported ongoing pain in the years post-accident. The applicant submits that he did not have one family physician throughout this period, rather, that he had attended various walk-in clinics and had sought treatment when he had travelled to India where his family is located. The applicant asserts that this is the reason for gaps in the CNR records.

20The CNRs of his family physician, Dr. Vanvat, indicate that the applicant attended at his office twice in September 2017, complaining of right shoulder pain, such that Dr. Vanvat ordered an ultrasound. Similarly, on July 3, 2018, the applicant continued to report right shoulder pain to Dr. Vanvat. The applicant has not submitted any further evidence of medical visits in 2018/2019 but does submit MRI imaging of his spine dated August 19, 2019, which indicated mild diffuse posterior and bilateral foraminal L4-L5 and L5-S1 disc bulge, and an August 19, 2019 MRI of his right shoulder which found mild supraspinatus tendinosis and minimal trace of fluid noted in sub deltoid and sub acromial bursa.

21The respondent questions these MRI results as they had been conducted in India, and were provided without any corresponding CNRs from a treating physician or explanatory reports linking the injury to the accident. I agree with the respondent that the applicant has not provided contemporaneous CNRs or reports in conjunction with these MRIs. However, I do find that the mere fact that the applicant undertook the MRIs can be interpreted as evidence that he was still suffering from shoulder and back pain while he was in India in 2019. Therefore, I accept these MRI results as evidence that in 2019, the applicant was still suffering from accident-related pain.

22In August 2020, the applicant was back in Canada and resumed treatment with Active Life despite the respondent's denial of the proposed OCF-18 dated June 17, 2020¹¹. The treatment records of Active Life indicate that the applicant continued to report persistent back, neck, thigh and calf pain. The treatment records also corroborated the fact that the applicant did not have a family physician, in an entry dated December 16, 2020, where the applicant stated that he did not "have any family doctor until now"¹².

23In January 2021, the applicant's new family physician, Dr. Vinay Sharma made a referral for the applicant to see a physiatrist, Dr. Lilian Lee Yan Vivas¹³. In her February 24, 2021 reporting Letter, Dr. Vivas noted the applicant's reports of ongoing back, shoulder and leg pain, since the accident. Dr. Vivas reviewed the applicant's August 2019 MRI results, and conducted a physical assessment. She diagnosed the applicant with myofascial pain in the shoulder girdle and hip girdle, as well as IT band syndrome on the right side. She noted that this was musculoskeletal chronic pain¹⁴. Dr. Vivas recommended stretching and strengthening exercises, a referral for EMG/nerve conduction studies and a change in medication.

24The applicant subsequently attended at the nerve conduction study with Dr. Ida Cavaliere, physical medicine and rehabilitation specialist, who similarly noted that the applicant was reporting ongoing pain since the accident and that he had been diagnosed with chronic myofascial pain¹⁵. Dr. Cavaliere did not find evidence of right sided lumbosacral motor/large fiber radiculopathy. However, she did discuss pain management options with the applicant and recommended that Dr. Vivas consider referring the applicant to an intervention pain specialist for fluro-guided nerve root block treatment of the L4 and L5 nerve roots.

25I find that the applicant has led sufficient evidence that he has suffered from ongoing pain since the accident. While I agree with the respondent that there are some gaps in treatment or reporting, the CNRs of Active Life, Dr. Vanvat, the August 2019 MRIs, and reporting letters of Dr. Vivas and Dr. Cavaliere, establish that in the four years after the accident, the applicant continued to report ongoing pain in his back, shoulder and leg. Moreover, Dr. Vivas diagnosed the applicant with chronic musculoskeletal pain, and Dr. Cavaliere recommended that the applicant be referred to an intervention pain specialist for nerve root block treatment.

26The respondent submitted an Insurer's Examination (IE) orthopaedic surgery assessment report from Dr. Louis Weisleder, orthopaedic surgeon, dated January 13, 2021, with an addendum dated August 3, 2021. Dr. Weisleder diagnosed the applicant with cervical, right and left shoulder and thoracic strain, as well as lumbar strain injuries as a direct result of the accident. Dr. Weisleder found that these were soft tissue injuries, and as such, were classified as minor injuries. However, although Dr. Weisleder diagnosed the applicant's physical injuries as minor, he did not address the issue of chronic pain. Therefore, I do not find that the respondent's orthopaedic assessment IE report refutes the Dr. Vivas' diagnosis of chronic pain.

Functional Impairment

27The respondent further submits that even if a doctor diagnosed the applicant with chronic pain, this does not automatically remove someone from the MIG. I agree with the respondent's submission. Ongoing pain must be also accompanied by some functional impairment or disability, and must be of a severity that causes an adverse effect on the individual's well-being.

28The respondent references the AMA Guides, and submits that the applicant has failed to provide any evidence that he meets at least three of the six AMA chronic pain guideline criteria. I note that these criteria are not binding on the Tribunal and have generally been used as an assistive tool to evaluate chronic pain complaints where there is no diagnosis of chronic pain. While a diagnosis of chronic pain is not strictly required, in the matter at hand, the applicant's physiatrist, Dr. Vivas, diagnosed the applicant with chronic musculoskeletal pain, and Dr. Cavaliere recommended that the applicant be referred to an intervention pain specialist.

29In addition to the diagnosis of chronic pain, the applicant has also led sufficient evidence of his functional impairment.

30Firstly, the treatment records do indicate that the applicant has consistently used prescription pain medication, at times, inappropriately. Although the applicant did not provide direct submissions on pain medication, the IE report of Dr. Weisleder, and the reporting letters of Dr. Vivas and Dr. Cavaliere all noted that the applicant was taking pain medication which had been prescribed to him in India. In her consultation reporting letter, Dr. Vivas recommended that the applicant switch to Cymbalta for the pain. The treatment records of Active Life note in multiple entries that the applicant was using prescription pain medication, and in one entry it was noted, "doctor told me to take one pill but one does not help so I am taking two"¹⁶.

31Secondly, with respect to the AMA criterion of withdrawing from social milieu, including work, the applicant has had significant disruption with work due to his ongoing pain. In his submissions, the applicant notes that he was unable to work after the accident and received income replacement benefits until August 24, 2017, totalling $11,200.00¹⁷. In its submissions, the respondent did not dispute the applicant's assertions that he received an income replacement benefit, therefore, I accept that for at least six months after the accident, the applicant was unable to work due to his accident-related impairments.

32However, even upon his return to work, the applicant has continued to report difficulties due to his ongoing pain. The CNRs of Active Life indicate that: on September 11, 2017 the applicant reported that he tried to return to work, but could not continue due to shoulder pain¹⁸; on August 20, 2020, he reported that pressing the gas or brake pedals aggravated his back pain¹⁹; and on December 9, 2020, the applicant reported that he has reduced his work capacity and is driving the truck for only three days now²⁰. Dr. Vivas noted in her reporting letter that the applicant had not been able to work for three weeks. Dr. Cavaliere noted that the applicant reported that he was only working part-time. Given the applicant's significant work disruptions post-accident, I find that the applicant has met the AMA Guides' criterion of withdrawing from social milieu, including work, on a balance of probabilities.

33Thirdly, the applicant was still displaying functional impairment even four years after the accident. Dr. Cavaliere, in her reporting letter dated June 18, 2021, noted that the applicant's range of motion was reduced in the spine due to local back pain. Dr. Weisleder in his IE report noted that the applicant still had impairment in the range of motion of his neck, shoulders and lower back as a direct result of the accident. The applicant reported to Dr. Weisleder that his symptoms were aggravated by lifting; that it is painful for him to lie, thereby disrupting his sleep; his sitting tolerance was reported to be only 30 minutes; and walking tolerance was less than 5 minutes. Dr. Weisleder also noted that the applicant had reported that his neck, shoulder and back pain had all increased since Dr. Weisleder's previous IE assessment in July 2017.

34Finally, although the applicant did not provide direct submissions on the issue of psychosocial sequelae, the evidence does indicate that he developed depressive symptoms post-accident. Dr. Vivas noted in her consultation reporting letter that the applicant had a flat affect and reported feeling depressed. She noted the correlation between the chronic musculoskeletal chronic pain and the overlying depression, and prescribed duloxetine, with the suggestion to the applicant's new family physician, Dr. Sharma that he increase the prescription, if needed.

35As a result of the foregoing, I find that the applicant has adduced sufficient evidence that he suffers from chronic pain, entitling him to treatment beyond the MIG.

Is the Treatment Plan Reasonable and Necessary?

36Having found that the applicant suffers from chronic pain that warrants removal from the MIG, I must now consider whether the OCF-18 in dispute is reasonable and necessary.

37I find that the applicant has not met his onus to establish, on a balance of probabilities, that the OCF-18 for $2,675.00 of chiropractic and physiotherapy treatment, is reasonable and necessary.

38The applicant submits that since the respondent's denial of the OCF-18 was solely based on its determination that the applicant's injuries fell within the MIG, that if the injuries were found not to be minor, the OCF-18 must be approved.

39The respondent argues that just because an applicant has been removed from the MIG, this does not mean that they are automatically entitled to the medical and rehabilitation benefits in dispute.²¹ Rather, the applicant must still lead evidence to establish that the proposed treatment is reasonable and necessary.

40The respondent submits that the OCF-18 is not reasonable and necessary, relying on the IE orthopaedic assessment of Dr. Weisleder dated January 13, 2021, and the addendum dated August 3, 2021, which found that the applicant only sustained minor injuries and that the treatment outlined in the OCF-18 was not reasonable and necessary for the injuries sustained in the accident. The respondent also references the consulting reporting letter of Dr. Cavaliere dated June 18, 2021, which noted that the applicant has had more than four years of facility-based treatment with guidance on a home program, without sustained benefit. Dr. Cavaliere did not recommend further physical treatment, instead, she recommended fluro-guided nerve root block injections. The respondent also submits that the last time the applicant's family physician, Dr. Vanvat recommended any physiotherapy, was in September 2018.

41I agree with the respondent that the applicant has the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary because of the accident.

42The applicant has not made any direct submissions with respect to the reasonableness and necessity of the proposed treatment plan, other than to argue that if he was taken out of the MIG, the OCF-18 must be approved.

43The applicant provided one general submission that Dr. Vivas had recommended further physiotherapy. However, in her reporting letter, Dr. Vivas recommended 150 minutes/week of cardiovascular exercises, stretches (that the applicant received a handout for) and core strengthening exercises. Although Dr. Vivas stated that she hoped these will be addressed by his physical therapist, she does not state that this cardiovascular exercise and stretching must be done in a facility-based environment. In fact, as noted by the respondent, the subsequent specialist the applicant saw, Dr. Cavaliere, expressly noted that after 4 years of facility-based treatment, the applicant has not had any sustained benefit.

44With respect to the OCF-18 in dispute, the applicant has not provided any submissions to identify the goals of the plan, how the goals are being met to a reasonable degree, and whether the time and cost expended to achieve these goals is proportional to the benefit. As such, I find that the applicant has not met his burden of proof to establish that the treatment proposed in the disputed OCF-18 is reasonable and necessary, pursuant to the Schedule.

Interest

45Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

46As no benefits are overdue, no interest is payable under s.51.

CONCLUSION and order

47For the reasons set out above, I find that:

(i) The applicant has sustained injuries that are not predominantly minor as defined pursuant to the Schedule;

(ii) The applicant is not entitled to $2,675.00 for chiropractic and physiotherapy treatment, proposed in the OCF-18 dated June 17 2020; and;

(iii) The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s.268.3(1.1) of the Insurance Act.
3. 3Case Conference Report and Order, dated March 4, 2021
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Applicant's Submissions, Tab 2, CNRs of Dr. Vanvat, entries dated September 7, 2017, September 18, 2017 and July 3, 2018
6. 6Applicant's Submissions, Tab 3, Treatment Records from Active Life Wellness
7. 7Applicant's Submissions, Tab 4, MRI of spine, dated August 19, 2019
8. 8Applicant's Submissions, Tab 5, MRI of right shoulder, dated August 19, 2019
9. 9Applicant's Submissions, Tab 11, Reporting Letter of Dr. Vivas dated February 24, 2021
10. 10Applicant's Submissions, Tab 3, Treatment Records from Active Life Wellness, p.27-33
11. 11Respondent's Submissions, Tab 17, 18 and 20, Explanation of Benefits dated June 26, 2020, December 7, 2020 and August 9, 2021
12. 12Applicant's Submissions, Tab 3, Treatment Records from Active Life Wellness, p.40
13. 13Applicant's Submissions, Tab 10, CNRs of Dr. Vinay Sharma.
14. 14Applicant's Submissions, Tab 11, Reporting Letter of Dr. Vivas dated February 24, 2021
15. 15Applicant's Submissions, Tab 12, reporting Letter of Dr. Ida Cavaliere, dated June 18, 2021
16. 16Applicant's Submissions, Tab 3, Treatment Records from Active Life Wellness, p.19
17. 17Applicant's Submissions, p.1
18. 18Applicant's Submissions, Tab 3, Treatment Records of Active Life Wellness Centre., p.29
19. 19Applicant's Submissions, Tab 3, Treatment Records of Active Life Wellness Centre., p.35
20. 20Applicant's Submissions, Tab 3, Treatment Records of Active Life Wellness Centre., p.39
21. 2116-000863 v. Aviva Insurance, CanLII 43843 (ONLAT)