Citation: Lal v. Aviva Insurance Canada, 2023 ONLAT 21-009841/AABS

Licence Appeal Tribunal File Number: 21-009841/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:

Mohinder Lal

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Brent Vallis, Counsel

For the Respondent:

Joshua Edmunds, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mohinder Lai (the “applicant”) was involved in an automobile accident on August 21, 2019, 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 Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the “MIG”) and its $3,500.00 limit on treatment?

ii. Is the applicant entitled to an income replacement benefit (the “IRB”) of $400.00 per week from August 21, 2020, to March 1, 2021?

iii. Is the applicant entitled to physiotherapy in the amount of $3,251.55 , proposed by Aayur Rehab Physio in a treatment plan (the “OCF-18”) submitted on February 1, 2021, and denied on April 22, 2021?

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

RESULT

3The applicant remains in the MIG and is not entitled to an IRB. Neither the disputed treatment plan nor interest is payable.

ANALYSIS

Applicability of the MIG

4I find the applicant has not demonstrated he should be removed from the MIG.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.” In this case, the applicant submits he should be removed from the MIG because he suffers chronic pain as a result of the accident. The Tribunal accepts that chronic pain is not included in the definition of a minor injury and therefore falls outside the MIG. The applicant must therefore prove, on a balance of probabilities, that he suffers accident-related chronic pain resulting in functional impairment. There must be medical evidence that shows accident-related chronic pain is the cause of the functional impairment and is not sequelae resulting from accident injuries.

6The applicant argues that his chronic pain should be assessed against the six criteria described in the American Medical Association’s 2008 Guides for the Evaluation of Permanent Impairment (6th Edition) (the “Guides”). The applicant says he meets at least three of these criteria, and specifically that he has excessive dependence on his children to maintain the family home, withdrew from work for six months after surgery, and has failed to restore pre-injury right shoulder function after a period of disability. The applicant relies on the clinical notes and records of Dr. Alborz Oshidari (physiatrist), Dr. John Townley (orthopaedic surgeon), Dr. Bharat Shah (family physician), and Humber River Hospital.

7The respondent argues the applicant’s right shoulder injury and chronic pain are not caused by the accident, but by two unrelated slip-and-fall incidents. The respondent argues that the applicant does not meet any of the Guides’ criteria for chronic pain.

8I am not convinced that the applicant’s submissions prove chronic pain. The applicant relies on the six criteria outlined in the Guides. While not binding on this Tribunal, the Guides have been accepted in multiple decisions as a useful interpretive tool for assessing chronic pain claims. The Guides say he must meet three of these criteria for his pain to be considered chronic. The six criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of, or dependence on, prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. 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.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

9The applicant argues he meets criterion (ii) because he told Dr. Oshidari he is not involved in any household duties after shoulder surgery was completed in August 2020, and that he must rely on his children to maintain his home. The respondent’s submissions did not address whether the applicant was excessively dependant on family. My review of Dr. Oshidari’s report (dated April 8, 2021) shows the applicant’s submissions are inconsistent with the evidence. Dr. Oshidari reported the applicant as saying he requires only “some” assistance from a family member to do over the shoulder activity, and that only his involvement in heavy household chores has been restricted since August 2020. While I accept the applicant reportedly needs help around the house, I do not agree that needing “some” assistance to do over-the-shoulder activity proves dependence on others that is excessive. Further, the applicant failed to show me how not being involved in heavy household chores constitutes excessive dependence, as it follows he is nevertheless able to do light-to-medium chores around the home.

10The applicant also claims he meets criterion (iv) because he told Dr. Oshidari that he stopped working for six months after surgery and then returned to work. The respondent’s submissions argue there is no evidence the applicant suffered a withdrawal from social milieu as a result of the accident. I do not agree that the applicant’s submissions and evidence demonstrate he has withdrawn from work. In fact, the evidence shows the applicant has returned to work. He said so to Dr. Oshidari on March 30, 2021, and Dr. Townley’s contemporaneous fracture clinic report (dated February 25, 2021) says the applicant is cleared to return to his work on modified duties at the beginning of March 2021, and then on full duties as of the end of March 2021. In my view, being temporarily off-work to recover from a surgical procedure is not sufficient to demonstrate a withdrawal from social milieu as contextually presented in the Guides.

11The applicant’s submissions on chronic pain conclude with criterion (v), which he says he meets because Dr. Townley reported the applicant “will never again regain his full strength … not lifting anything of significant weight in the abduction plane with his elbow extended.” The respondent did not speak to criterion (v) in its submissions. While I accept Dr. Townley’s medical opinion is sufficient to prove the applicant’s right shoulder function has not been restored to its pre-injury performance after a period of disability, I do not agree the applicant’s physical capacity is insufficient to pursue work, family, or recreational needs. This is because the applicant has returned to work on full duties and therefore has sufficient physical capacity. The applicant’s submissions point to little medical evidence of insufficient physical capacity to pursue family and recreational needs.

12The applicant provided no submissions on the remaining Guides criteria for me to consider. So, I have not analyzed those criteria against the evidence, and will not address the respondent’s submissions on them here. Further, I did not find the remaining medical records assisted the applicant in proving his claim of chronic pain with functional impairment in regards to the three criteria that he argues he met. When I consider the applicant’s arguments on balance, I find he has fallen short of proving that he experiences chronic pain. I therefore am not persuaded he should be removed from the MIG.

The applicant’s entitlement to an IRB

13I find the applicant has not demonstrated he is entitled to an IRB.

14Section 5(1) of the Schedule lays out the eligibility criteria for an IRB, which is a three-part test. In this case, the applicant must first show he was employed at the time of the accident; secondly, that he suffered a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident; and lastly, that his substantial inability is a result of the accident.

15The applicant says he is an assembly-line worker at a facility that manufactures air conditioners. He explains that the essential tasks of his employment are standing for prolonged periods, heavy lifting and carrying, upper body coordination, and maintaining concentration and focus. The applicant credits a slip-and-fall in November 2019 with further aggravating his accident-related pain, specifically in his right shoulder, and adds that he was unable to do manual work by August 2020 due to this shoulder pain. The applicant claims he continued to experience considerable pain in his right shoulder after he had surgery to correct a torn rotator cuff on August 10, 2020, and that he was not cleared to return to work until the start of March 2021, at which point he was on modified duties until resuming full duties at the end of that same month. The applicant relies on the clinical notes and records of Dr. Townley, Dr. Navdeep Kaur (family physician), Dr. Shah, and Humber River Hospital.

16The respondent agrees the applicant meets the first two parts of the IRB test, in that he was employed at the time of the accident, and that he suffered a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident. However, the respondent argues the applicant has failed to prove causation, and did not provide evidence to prove what his essential work tasks are. The respondent adds that the applicant has not provided an explanation of his inability to function.

17I find this dispute is narrowly focused on whether the accident caused the applicant’s substantial inability to engage in his essential work duties, and I am not convinced it did.

18The test for causation is established as the “but for” test. This essentially means the applicant must show he would not have had a substantial inability to engage in his essential work tasks “but for” the accident (i.e., if the accident would not have happened). As well, the accident need only be a necessary cause and not the only cause to meet this test.

19The applicant does not specifically address the “but for” test in his submissions, and makes limited evidentiary connections between his shoulder injury and the accident. Although the applicant maintains Dr. Shah documented the applicant’s complaints of shoulder pain a couple of days after the accident on August 22, 2019, it is not clear to me in Dr. Shah’s notes that this is the right shoulder or what level of pain the applicant was experiencing. As the respondent points out, there is no evidence that Dr. Shah diagnosed a medical condition or prescribed treatment for his pain. I note too that there is no discernible mention of any functional impairment arising from the shoulder pain, investigative follow-ups, such as diagnostic imaging or a specialist consultation in Dr. Shah’s note. This evidence does not, in my view, establish the accident as a necessary cause of the applicant’s shoulder injury. Rather, it suggests to me the applicant’s shoulder pain was not a substantive medical concern at that time.

20Further, despite four subsequent consultations with Dr. Shah between August and October 2019, I was not pointed to any evidence in Dr. Shah’s records, or otherwise, that show any more complaints of right shoulder pain or injury. In fact, the applicant’s submissions do not make references to a right shoulder injury or pain until three months later—after a slip-and-fall documented by an ambulance call report dated November 18, 2019. The applicant’s reports of pain and documented follow-up care after this slip-and-fall contrast sharply with the medical evidence of right shoulder injury prior to this incident. The applicant reported “very intense” pain in his right shoulder after slipping in his driveway and landing directly on his right side. The respondent points to evidence that shows the applicant then had three consultations—one with Dr. Kaur and the other two with Dr. Shah—about his shoulder pain within eight days of his slip-and-fall, and that an ultrasound on November 28, 2019, determined a shoulder tendon had been forcefully torn off, a large amount of fluid had gathered in that area, and that there was a partial thickness tear in a different right-shoulder tendon. The respondent also references a later imaging diagnostic report on January 22, 2020, that found both shoulder tendons had suffered complete full-thickness tears. To me, this is compelling medical evidence that greatly diminishes the accident as a necessary cause of the applicant’s shoulder pain and injury.

21I also find it relevant that the applicant reported returning to work just two days after the accident, which is documented by Dr. Oshidari in his November 10, 2022, addendum report. Further, I agree with Dr. Oshidari’s opinion that it would be unusual if the accident was a contributory factor to the applicant’s right shoulder condition. In my view, the applicant’s substantial inability to perform the essential tasks of his employment for the period in dispute is owing to his ongoing recovery from reconstructive surgery of his right rotator cuff. As the only medical evidence of rotator cuff damage comes three months post-accident after a slip-and-fall incident, I am not convinced that the accident was a necessary cause of the applicant’s right shoulder injury, and I therefore do not find the applicant is entitled to an IRB.

The physiotherapy OCF-18

22Since the applicant remains in the MIG, an analysis of the reasonableness and necessity of the disputed OCF-18 is not required. The parties agree the MIG has not been exhausted. The applicant believes that $331.53 remains, and the respondent calculates that a total of $3,153.23 has been invoiced leaving a balance of $346.77. The respondent adds that the applicant is approved for $3,496.83 in medical benefits, so $343.60 of the balance remains to be incurred and, therefore, only $3.17 remains in the MIG.

23The applicant remains within the MIG; however, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to section 40(8) of the Schedule.

Interest

24No benefits are payable; therefore, no interest is owing.

ORDER

25The application is dismissed.