Citation: Sehgal v. Aviva Insurance Canada, 2023 ONLAT 21-007940/AABS

Licence Appeal Tribunal File Number: 21-007940/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:

Neelam Sehgal

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Rohan Haté, Counsel

For the Respondent:

Catherine Zingg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Neelam Sehgal, the applicant, was involved in an automobile accident on July 29, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 Minor Injury Guideline limit? Note: there is $5.00 left in the MIG limit.

2. Is the applicant entitled to an income replacement benefit in the amount of $203.43 per week from February 26, 2021 to date and ongoing?

3. Is the applicant entitled to $1,250.04 for chiropractic services from Physiotherapy First submitted December 17, 2020?

4. Is the applicant entitled to $40.75 for medical prescriptions submitted December 9, 2020?

5. Is the applicant entitled to $98.86 for the outstanding account of Physiotherapy First for chiropractic services?

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

7. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant has not established that her impairments arising from the accident fall outside the MIG. Further, she has not established entitlement to any of the disputed benefits.

ANALYSIS

The applicant’s impairments fit within the MIG

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.

6The applicant submits that she should be removed from the MIG because she had a pre-existing left knee impairment which was exacerbated by the accident. Further she suffers from chronic pain to her neck, back and shoulder as a result of the accident. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Saini, her family doctor, pre-accident reports of orthopaedic surgeons Dr. Karabatsos and Dr. Harrington, a pain assessment report of Dr. Wasswa-Kintu, general practitioner, dated May 3, 2021, and neurodiagnostic report of Dr. Rasquinha, general practitioner, dated November 30, 2021. She also relies on the CNRs of her treating clinics.

7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the insurer examination (“IE”) reports of Dr. Soric, physiatrist, dated February 19, 2021 and addendum report dated August 24, 2021, and surveillance report of Intrepid Investigation dated November 18, 2021. Dr. Soric diagnosed the applicant with soft tissue injuries as a result of the accident which fall within the MIG.

Pre-existing condition

8I find the applicant has not provided compelling medical evidence that any pre-existing condition would prevent her from achieving maximum medical recovery within the MIG. The fact that the applicant had a pre-existing medical condition is supported by the pre-accident CNRs of her family doctor and reports of orthopaedic surgeons’ Dr. Karabatsos and Dr. Harrington. These records and reports establish that prior to the accident she had a five-year history of problems with her left knee in which she had undergone arthroscopic surgery. Further, the pre-accident records of her family doctor support that in the year prior to the accident she was still complaining of left knee pain.

9However, it is well established that evidence of a pre-existing condition alone does not warrant MIG removal. What I find lacking in this case is evidence from a treating practitioner supporting that the applicant’s pre-existing left knee impairment was exacerbated by the accident or would prevent her from achieving maximum medical recovery in the MIG, as is required for removal by s. 18(2). For example, the post-accident reports of Dr. Wasswa-Kintu and Dr. Rasquinha relied on by the applicant do not mention the left knee at all or note any exacerbation of this condition. Nor did the applicant report any symptoms involving her left knee to Dr. Soric, the IE assessor. For these reasons, while I accept that the applicant has a documented pre-existing impairment, I find the applicant has not met her onus of proving on a balance of probabilities that any pre-existing medical condition would prevent her from achieving maximal medical recovery if she remains within the MIG.

Chronic Pain

10The applicant relies on the CNRs of her family doctor, treating clinics and the reports of Drs. Wasswa-Kintu and Dr. Rasquinha in support of her position that she suffers from chronic pain as a result of the accident that warrants removal from the MIG. Dr. Wasswa-Kintu’s report dated May 3, 2021 notes that the applicant reported neck, back and shoulder pain following the accident along with psychological disturbance, such as poor sleep, nightmares, sadness and difficulty concentrating. Dr. Wasswa-Kintu notes that the applicant is suffering from chronic neck, upper back and shoulder pain as a result of the accident. The neurodiagnostic report of Dr. Rasquinha dated November 30, 2021 notes that the applicant had been referred because of left arm, neck and shoulder pain. The report notes normal range of motion of the cervical spine, without radicular pain. Dr. Rasquinha opined that there was no evidence of nerve damage, that the applicant’s symptoms are musculoskeletal in origin and that she likely suffers from chronic pain syndrome.

11In contrast, the respondent relies on the IE reports of Dr. Soric dated February 19, 2021 and the addendum report dated August 24, 2021. The applicant reported pain in her neck, forearm and low back and that her condition had improved since the accident. Further, she reported being independent with all self-care tasks, driving and housekeeping and home maintenance activities, with the exception of heavier tasks. Dr. Soric’s physical examination was unremarkable. She had full range of motion of the cervical spine and normal strength in all four extremities. Dr. Soric opined that the applicant sustained soft-tissue injuries as a result of the accident which fit within the MIG. After reviewing additional medical documentation, Dr. Soric completed an addendum report, dated August 24, 2021, in which the doctor maintained their opinion.

12I prefer the report of Dr. Soric because the assessment was more thorough. For example, Dr. Soric reviewed clinical notes and records and conducted a physical examination, which was unremarkable. The results of Dr. Soric’s physical examination aligned with the doctor’s opinion that the applicant sustained soft tissue injuries as a result of the accident. I also find Dr. Soric’s opinion consistent with the applicant’s self-reports about her post-accident function. For example, she reported being independent with personal care, driving and housekeeping and home maintenance tasks.

13I give the report of Dr. Wasswa-Kintu little weight because the assessment took place by telephone and the doctor did not carry out a physical examination. As a result, I find the doctor relied upon the applicant’s self-reports in rendering the opinion that she suffers from chronic neck, back and shoulder pain as a result of the accident. Further, Dr. Wasswa-Kintu interchangeably refers to the applicant as male and female throughout the report and did not review any pre- or post-accident CNRs. In my view, these factors challenge the reliability of Dr. Wasswa-Kintu’s report and opinion. In addition, I find Dr. Rasquinha’s report has similar limitations in that the doctor did not review any pre- or post-accident CNRs. Further, the doctor’s physical examination of the applicant was normal, yet the doctor renders the opinion that the applicant likely suffers from chronic pain syndrome. I find Dr. Rasquinha’s diagnosis of chronic pain syndrome is inconsistent with the other details in the doctor’s report and the physical examination which was normal.

14The applicant also relies on the CNRs of her family doctor and treating clinic which notes that she complained of ongoing neck, back, shoulder and knee pain post-accident. I find the applicant’s complaints of ongoing pain to her family doctor and treating clinic inconsistent with her self-reports to Dr. Soric about her post-accident function as well as Dr. Soric’s physical examination which was unremarkable. Further, the fact that she did not report any functional limitations as a result of these impairments to Dr. Soric was also consistent with her activity in the investigation report from November 2021, which shows her participating in activities such as grocery shopping and running other errands. I find that the applicant has not submitted sufficient evidence to refute Dr. Soric’s opinion that she sustained soft-tissue injuries as a result of the accident that fit within the MIG.

15The applicant has not met her onus in proving on a balance of probabilities that she sustained an impairment as a result of the accident that would remove her from the MIG.

16Since I have determined that the applicant sustained a minor injury, she is not entitled to the OCF-18 for chiropractic treatment or prescription expenses because there is only $5.00 remaining in the MIG limit.

The applicant is not entitled to payment of an IRB in the amount of $203.43 from February 26, 2021 to date and ongoing

17Prior to the accident, the applicant was self-employed as an administrator with a real estate and mortgage brokerage company owned by her husband. The applicant reported to Dr. Soric that she worked between 3 to 5 hours helping her husband with paperwork. Further, she did not return to doing this post-accident because she found it difficult to concentrate and was afraid of making an error.

18Section 5(1)1. of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. At the post-104 mark, the applicant must prove she has a complete inability to engage in any employment for which he is suited by education, training or experience.

19The applicant has fallen short of meeting her onus in proving that she is entitled to an IRB as a result of any accident-related impairment. The applicant’s submissions did not even address what her pre-accident employment was, what the essential tasks or her pre-accident employment were, or what accident-related impairment has resulted in a substantial inability to carry out her employment tasks. This is the test that must be met. In support of her position that she is entitled to an IRB the applicant relies on the accounting report of Clear House Evaluations dated July 29, 2020. While the accounting may support the quantum of the benefit, to which it appears the parties agreed, it does not address her entitlement from a medical perspective. None of the medical evidence relied upon by the applicant supports that she is unable to carry out her pre-accident employment tasks as a result of any accident-related impairment. She has not provided any evidence to establish that she had a substantial inability to perform the essential tasks of her employment or that she would meet the stricter post-104 week test of “a complete inability to work at any occupation for which she is suited by education, training or experience.” The applicant has not met her burden of proof to substantiate her claim for an IRB.

19In contrast, the respondent relies on the IE reports of Dr. Soric who determined that the applicant did not have any functional restrictions that would prevent her from carrying out her personal care tasks, housekeeping and home maintenance tasks or pre-accident employment tasks. For the reasons already noted above, I accept Dr. Soric’s opinion. Further, the applicant has not presented any evidence to refute it.

20The applicant has not met her onus to prove on a balance of probabilities that she has a substantial inability to carry out her pre-accident employment tasks as a result of any accident-related impairment. Nor has she submitted any evidence that she meets the post-104 test of entitlement to the benefit.

The applicant is not entitled to interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue, the applicant is not entitled to interest.

The applicant is not entitled to an award

22The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant’s submissions did not address the award issue at all. In light of my decision, I do not find an award is payable as I do not find the respondent unreasonably withheld or delayed payment of any benefits.

ORDER

23The applicant has not established that her impairments arising from the accident fall outside the MIG. Further, she has not established entitlement to any of the disputed benefits. This application is dismissed.