Citation: Moreno v. Aviva Insurance Company, 2022 ONLAT 20-009391/AABS

Licence Appeal Tribunal File Number: 20-009391/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:

Glady Moreno

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Sevda Gullyeva, Paralegal

For the Respondent:

Nisaa Khan, Counsel

HEARD:

By way of written submissions

BACKGROUND

1G.M. was involved in an automobile accident on August 1, 2018, and sought benefits from Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). Aviva denied her claims based on its determination that she sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the “MIG”). G.M. disagreed with Aviva’s determination and applied to the Tribunal for the resolution of the dispute.

ISSUES

2As per the Tribunal Order, the issues to be decided are as follows:

a. Are G.M.’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?

b. Are the treatments recommended by MacKenzie Medical Rehabilitation Centre reasonable and necessary as follows:

i. $3,696.50 for chiropractic treatment, in a treatment plan (OCF-18) dated August 9, 2018;

ii. $1,977.05 for chiropractic treatment, in an OCF-18 dated December 7, 2018;

iii. $1,384.70 for chiropractic treatment, in an OCF-18 dated February 19, 2019; and

iv. $1,384.70 for chiropractic treatment, in an OCF-18 dated April 2, 2019?

c. Are the cost of examination expenses recommended by Unison Medical Assessments reasonable and necessary as follows:

i. A neurological assessment dated October 29, 2018;

ii. A psychological assessment dated October 24, 2018; and

iii. An orthopaedic assessment dated October 24, 2018?

d. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to G.M.?

e. Is G.M. entitled to interests on any overdue payment of benefits?

RESULT

3G.M. has not demonstrated that removal from the MIG is warranted. The disputed treatment plans are not reasonable and necessary, and no interest is payable.

4G.M. is not entitled to an award.

ANALYSIS

Applicability of the MIG

5Section 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 in accordance with the MIG. 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 an injury.”

6An insured may be removed from the MIG if they can establish that their accident-related physical injuries fall outside of the MIG. An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1).

7The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.

8In this case, the evidence does not support a removal from the MIG as a result of physical injuries, psychological impairment or chronic pain.

9G.M. submits that the impairments she sustained as a result of the accident – described in the OCF-3 as radiculopathy, injury of muscle and tendon at neck level, sprains and strains of: thoracic/lumbar spine, sacroiliac joint, shoulder joint, other and unspecified parts of the knee, other chest pain, abdominal pain, nausea and vomiting, with psychologically-based impairments noted as, headache, sleep and anxiety disorders, dizziness an giddiness – warrant treatment beyond the MIG due to their affect on G.M.’s activities of daily living.

10In addition, G.M. relies on the clinical notes and records (CNRs) of the following: general physicians, Dr. Seligman and Dr. Chaban and a March 31, 2020 bilateral shoulder ultrasound report.

11In response, Aviva argues that G.M.’s injuries are predominantly minor in nature and fall within the definition of minor injuries under the Schedule. Aviva relies on the opinions contained in a January 9, 2019 multidisciplinary report. Dr. McCutcheon, psychologist, concluded that there was no evidence of a diagnosable condition; Dr. Ranalli, neurologist, found no neurological diagnosis injury or impairment and concluded that G.M. suffered a predominantly minor injury from a neurological perspective; and Dr. Weisleder, orthopaedic surgeon, opined that G.M. suffered a cervical and lumbar strain. In addition, Dr. Weisleder conducted a s. 44 orthopaedic addendum report, concluding that G.M. had been appropriately treated for her accident-related injuries and did not require further treatment. As such, Dr. Weisleder’s opinion remain unchanged.

Did G.M. suffer physical injuries that warrant removal from the MIG?

12G.M. relies on the consultation note of treating physician, Dr. Chaban, who reports in the October 25, 2018 note that G.M. developed tinnitus following the accident. Dr. Chaban diagnosed her with tinnitus following whiplash-force to head and neck. G.M. also relies on a May 23, 2019 consultation note from Dr. Seligman, who notes that G.M. presents with neck and shoulder pain. Dr. Seligman concluded that G.M. has chronic pain in her neck and lower back. Dr. Seligman diagnosed her with whiplash and lumbosacral strain.

13I note the result of the right shoulder ultrasound, being a complete supraspinatus tear, and for the left shoulder, a low-grade partial thickness tear of both supraspinatus and subscapularis. However, G.M. has not established there is a clear connection that the accident caused the tears, particularly where the ultrasound comes two years post-accident. Therefore, I assign this evidence little weight.

14I acknowledge the fact that G.M. sustained various injuries as a result of the accident. However, these injuries are captured under the MIG definition of ‘minor’. While a full tear is outside the definition of a minor injury, there is no evidence that establishes the tear is as a direct result of the accident. Further, G.M. reported to Dr. McCutcheon that physiotherapy was helpful with respect to her recovery, however, G.M. reported that she had not noticed any physical improvement. Lastly, the OCF-18s for physical treatment are for chiropractic treatment and not physiotherapy. I note that physiotherapy treatment was specifically recommended, which also does not support that treatment for chiropractic treatment is reasonable and necessary.

15For these reasons, I find that G.M. has not established her accident-related injuries warrant removal from or treatment beyond the MIG limits.

Did G.M. suffer psychological impairments that require removal from the MIG?

16G.M. relies heavily on the s. 44 assessment report of Dr. McCutcheon in support of her claim that she suffered significant psychological impairments as a result of the accident. The s. 44 report dose not support G.M.’s position for a number of reasons. G.M. submits that she did not have any psychological impairments prior to the accident, and that the anxiety and depression were directly caused by the accident, therefore making further investigation into the extent of the psychological impairments reasonable and necessary.

17I find G.M. has in fact highlighted many of the reasons why she should not be removed from the MIG on a psychological basis. For example, Dr. McCutcheon administered five tests, the Pain Patient Profile (P-3), Beck Anxiety Inventory (BAI), Beck Depression Inventory-II (BDI-II), Rey Fifteen-Item Visual Memory Test (VMT) and the Motor Vehicle Anxiety Questionnaire (MVAQ). The VMT established that there was no attempt by G.M. to exaggerate cognitive problems. The P-3 revealed average levels of anxiety, depression, and somatization. The BAI results indicated mild anxiety, and the BDI-II indicated a mild range of depression. The MVAQ questionnaire was not completed. Dr. McCutcheon concluded that G.M. is experiencing mild depression and anxiety symptomatology. Dr. McCutcheon further noted that the depression and anxiety results are subclinical, and there was no evidence to indicate a diagnosable psychological condition.

18In response, Aviva submits that G.M. has not provided any evidence or opinions that suggest she is suffering psychological impairments as a result of the accident.

19Aviva relies on the opinion of s. 44 assessor, psychologist Dr. McCutcheon. G.M. reported to Dr. McCutcheon that she did not have in-vehicle anxiety. Dr. McCutcheon opined that G.M.’s symptoms of anxiety and depression were not significantly incapacitating. Dr. McCutcheon further notes that G.M. is not likely obsessed with her pain and physical problems, when considering the pain somatization score.

20I agree with Aviva. First, I do not find the OCF-18s on their own to be compelling evidence. Further, there is no evidence of a psychological diagnosis. G.M.’s submissions are light on evidence documenting a history of post-accident psychological complaints. Further, G.M.’s evidence fails to direct me to any referrals or prescriptions for any accident-related psychological impairments.

21For these reasons, I find that G.M. did not suffer from any significant psychological impairment as a result of the accident that warrants removal from the MIG.

Did G.M. suffer from chronic pain as a result of the accident?

22G.M. submits that she suffers from chronic pain as a result of the accident. She relies on the comments of Dr. Seligman in his previously discussed consultation note, where he mentions chronicity of her injuries.

23I find G.M. has failed to establish that she suffers from chronic pain as a result of the accident.

24While not required, I find that the AMA Guides criteria is a useful interpretive tool to make determinations regarding chronic pain claims. G.M.’s evidence falls short of meeting three of the six criteria, as required. Specifically, there is no evidence that she is dependent on prescription drugs (i); she is not excessively dependent on health care providers such as her family doctor (ii); and she has not withdrawn from social, work or recreational activities because of her pain. The evidence shows that she has maintained a good relationship with all family/friends, attends church on special occasions, goes out with her son on weekends, attends parties, returned to her pre-accident employment, and resumed household chores and driving (iii), (iv), (v). Nor do I find the evidence supports that she has developed any significant psychosocial sequelae (vi).

25G.M. has not provided any opinion from any treatment provider that suggests she meets the AMA Guides criteria, nor does her own self-reporting suggest otherwise.

26I place very little weight on the consultation note of Dr. Seligman for several reasons. First, there is no information to establish that Dr. Seligman is a chronic pain specialist. Second, his consultation note contains no evidence of any consideration of the six criteria set out in the AMA Guides. Lastly, there is no evidence of how any alleged chronic pain has caused G.M. any functional limitations. As noted in paragraph 29, G.M. has largely returned to engaging in substantially all of her pre-accident activities of daily living.

27Consequently, I find that G.M. has not established that she suffers from chronic pain as a result of the accident that warrants removal from the MIG.

Are the treatment plans reasonable and necessary?

28I have found that G.M. has not met her burden of demonstrating on a balance of probabilities that removal from and treatment beyond the MIG is required. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, no interest is payable.

AWARD

29As I have found that no benefits are payable, it follows that Aviva can not have unreasonably withheld or delayed payment of benefits. Accordingly, an award is not payable.

CONCLUSION

30G.M. has not demonstrated that removal from and treatment beyond the MIG is required. The OCF-18s in dispute are not reasonable and necessary and no interest is payable.

31G.M. is not entitled to an award.