Citation: Oliver v. Aviva Insurance Canada, 2023 ONLAT 21-011112/AABS

Licence Appeal Tribunal File Number: 21-011112/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:

Malcolm Oliver

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Syed Raza, Counsel

For the Respondent:

Alicia Edwards, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Malcolm Oliver (the “applicant”) was involved in an automobile accident on December 23, 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 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 treatment within the $3,500.00 limit and in the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to chiropractic treatment in the amount of $233.90 ($1,298.88 less $1,064.98 approved), proposed by Heartland Wellness in a treatment plan (the “OCF-18”) denied on July 30, 2020?

iii. Is the applicant entitled to chiropractic treatment in the amount of $2,476.88, proposed by Heartland Wellness in an OCF-18 denied on November 6, 2020?

iv. Is the applicant entitled to an attendant care assessment in the amount of $2,685.44, proposed by Tier 1 Assessment in an OCF-18 denied on March 23, 2020?

v. Is the applicant entitled to a chronic pain assessment in the amount of $2,200.00, proposed by Dr. Igor Wilderman in an OCF-18 denied on August 2, 2022?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not met his onus to demonstrate his accident-related injuries and impairments warrant removal from the MIG. An analysis of the OCF-18s in dispute is not necessary, and no award or interest is payable.

PROCEDURAL ISSUES

The respondent seeks to exclude the entirety of the applicant’s initial submissions

4I find the applicant’s submissions should not be excluded from the hearing.

5The respondent takes the position that the applicant’s entire submissions should be struck from the evidentiary record due to non-compliance with the Tribunal’s order (dated June 28, 2022) and Rule 9.4 of the Tribunals Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (the “Rules”). Specifically, the respondent argues the applicant’s initial submissions were due February 22, 2023, but were not submitted until February 28, 2023.

6The applicant’s submissions are silent on their timeliness, but says the respondent did not produce an insurer’s examination report until it provided its written submissions on March 10, 2023. The applicant added that the respondent’s attitude is prejudicial to the applicant’s claim, without offering any further explanation on this point, or seeking any remedy.

7I find the applicant’s submissions should not be struck from the hearing. The respondent’s arguments do not specify the prejudice resulting from the applicant’s late submissions. And I do not agree that striking submissions is an appropriate remedy where lateness is not shown to have caused harm to the other party.

ANALYSIS

Applicability of the MIG

8I find the applicant has not demonstrated removal from the MIG is warranted.

9Section 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. 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if he is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant’s submissions set out his position that he should be removed from the MIG due to a pre-existing condition that cannot achieve maximal recovery in the MIG, as well as chronic pain with functional impairment. To prove this, he relies on the clinical notes, records, and reports of Dr. Odette Wahba (family physician), the Heartland Wellness Clinic, Dr. Adib Ashraf (chiropractor), and Dr. Igor Wilderman (general practitioner).

11The respondent argues the applicant has failed to demonstrate that his injuries are outside the MIG, and relies on the section 44 assessments performed by Dr. Pankaj Bansal (family physician) and Dr. Michael Ko (physiatrist).

The applicant’s pre-existing conditions do not preclude maximal recovery

12I find the applicant has not met his onus to prove his pre-existing conditions preclude maximal recovery of his accident-related minor injuries under the MIG.

13There are two parts of section 18(2) of the Schedule that the applicant must satisfy to be removed from the MIG: provide compelling evidence that he suffered a pre-existing condition, as well as demonstrate this condition would preclude him from maximal recovery from any accident-related minor injury within the treatment limits of the MIG. I am not convinced the applicant has met the second part of this test.

14The applicant submits his pre-accident injuries consist of left should pain owing to a workplace accident in 2016, and he points to Dr. Wahba’s records of March 29, 2016, to prove this. The applicant also references later complaints of left shoulder and back pain in Dr. Wahba’s notes of April 3, 2017, September 4, 2018, and September 27, 2019, and adds that Dr. Wahba recommended physiotherapy in April 2017 to treat this pain.

15However, the applicant’s submissions do not point me to a medical opinion or other compelling evidence that demonstrates the applicant’s accident-related minor injuries cannot achieve maximal recovery within the MIG because of his pre-existing left shoulder and back condition. While I recognize the applicant’s accident-related injuries involve parts of the body that experienced pain prior to the accident, it does not automatically follow that the applicant is precluded from maximal recovery from these minor injuries within the MIG. The applicant must prove this with medical evidence, and I am not convinced, on balance, that the applicant has done so.

The applicant does not suffer chronic pain with functional impairment as a result of the accident

16I find the applicant did not sustain chronic pain with functional impairment as a result of the accident.

17The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. To prove this, the applicant relies on the chronic pain assessment OCF-18 in dispute, and the reasons offered therein by Dr. Wilderman to justify a chronic pain assessment. The applicant’s submissions also point to the OCF-3 completed by Dr. Ashraf, which details a list of injuries and limitations. The applicant’s submissions speak to treatment at the Heartland Wellness Clinic after the accident, and mention four visits to Dr. Wahba between December 27, 2019, and November 12, 2020, that pertain to accident-related injuries and pain in his neck, shoulder, and back.

18I accept that Dr. Ashraf’s OCF-3 notes pain and injuries consistent with Dr. Wahba’s clinical notes and records. I also agree that Dr. Ashraf lists a variety of impairments arising from the applicant’s injuries and pain as of December 27, 2019. However, I find the applicant does not provide compelling evidence that convinces me these impairments persisted beyond the nine-to-12 weeks anticipated by Dr. Ashraf. Dr. Wahba’s notes of post-December 2019, as referenced by the applicant, do not speak to impairment or further treatment recommendations. The applicant does not point to his treatment records at Heartland Wellness to establish ongoing impairment. Dr. Wilderman’s comments in the OCF-18 are not helpful because they do not present medical evidence to validate the applicant’s complaints or functional impairment resulting from pain.

19In fact, I find the respondent’s submissions point to compelling evidence that establishes the applicant’s accident-related pain is not causing ongoing functional impairment. There is the report (dated March 5, 2021) of Dr. Basal that documents normal neurological function and full range of active motion in the applicant’s neck, lower back, and shoulders. Dr. Bansal diagnoses uncomplicated, self-resolving soft tissue injuries in the applicant’s neck and back, and could find no reason from a musculoskeletal perspective as to why the applicant would have a physical impairment resulting for the accident. Dr. Ko’s report of September 22, 2022, has the same findings pertaining to the range of motion in the applicant’s neck and back. Although Dr. Ko finds the range of motion in the applicant’s left shoulder is limited, Dr. Ko does not attribute any impairment to the applicant’s shoulder injury and found no evidence of musculoskeletal injuries or nerve impingement. Like Dr. Bansal, Dr. Ko concluded the applicant’s injuries were predominantly minor.

20I find the respondent’s evidence to be compelling because it involves physical examinations of the applicant at two different times—separated 18 months apart—by two different physicians, one of whom specializes in physical medicine and rehabilitation. Both reports produced no evidence consistent with functional impairment arising from chronic pain. The applicant argues that Dr. Bansal ignored the pain complaints voiced by the applicant during his examination, but in my opinion, the objective findings of a physical examination are more compelling evidence of physical functional impairment than the self-reports of the applicant. Although the applicant also argues that the respondent unreasonably withheld the insurer’s examination until 15 months after the accident, I decline to diminish the weight I place on the examiners’ findings because the applicant did not provide sufficient reasons or evidence to show this delay is, in fact, unreasonable.

21In conclusion, I find on balance that there is insufficient medical evidence to prove the applicant suffers chronic pain with functional impairment, and I therefore do not agree the applicant should be removed from the MIG due to chronic pain.

The disputed OCF-18s

22The applicant remains in the MIG, so an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required. 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

23Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits payable, therefore no interest is owing.

Award

24Under section 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. Since there are no benefits payable in this case, the respondent is not liable to pay an award.

Costs

25The relief sought in the respondent’s submissions includes costs and expenses awarded to the respondent. The applicant did not provide a submission on the costs and expenses sought by the respondent.

26I decline to award costs and expenses to the respondent in this case. Rule 19.3 specifies a submission on costs shall set out the amount being requested. This was not done. Rule 19.4 specifies that a submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. The respondent failed to do this as well. As such, I see no basis on which to conclude the respondent should be awarded costs and expenses.

ORDER

27Section 40(8) of the Schedule applies. The application is otherwise dismissed.