Citation: Oliver v. Aviva Insurance Canada, 2023 ONLAT 21-011113/AABS

Licence Appeal Tribunal File Number: 21-011113/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:

Pearline 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

1Pearline 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.

2This application refers to a second, earlier accident that occurred on December 18, 2019, in which the applicant claims she was a pedestrian who was hit by a car. To avoid confusion, and where context does not clearly distinguish one accident from the other, I shall refer to the pedestrian accident of December 18, 2019, as the “earlier” accident throughout this decision. The motor vehicle accident of December 23, 2019, shall be referred to as the “current” accident.

ISSUES

3The 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 $4.264.57, proposed by Heartland Wellness in a treatment plan (the “OCF-18”) denied on January 14, 2020?

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

iv. 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?

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

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

RESULT

4The applicant has not met her onus to demonstrate her 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 evidence and the entirety of the applicant’s initial and reply submissions

5I find the applicant’s submissions and certain evidence should not be excluded from the hearing.

6The 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. In its sur-reply, the respondent says the applicant’s reply submissions were due March 17, 2023, but were submitted 10 days after the written hearing was scheduled to commence on March 24, 2023.

7The respondent also says it is prejudiced by the late submission of previously undisclosed receipts that were provided as part of the applicant’s initial submissions because it has not had the opportunity to verify these receipts, and because there are errors (i.e., receipts submitted for persons with a different name from the applicant, receipts that do not convey what service was provided or the name of the recipient, receipts that do not originate from any of the treating facilities that proposed an OCF-18 in dispute, and receipts that do not provide a date of prescription to determine whether the medicine was prescribed before or after the accident).

8The applicant submits that receipts from clinics that did not propose an OCF-18 in dispute are relevant because they establish the applicant still requires further treatment and has not yet reached maximal medical improvement, as well as substantiate the applicant requires treatment outside the MIG.

9I disagree with the respondent’s request to exclude submissions and evidence from the hearing because I am not convinced the respondent was prejudiced by the applicant’s late submissions. The respondent did not demonstrate it earlier sought an extension on its submission deadline for the purpose of verifying the receipts in question, so I am not persuaded that the degree of harm to the respondent in allowing this evidence rises to a level that would justify excluding evidence. The applicant’s reply submission, while also late, was received prior to the Tribunal hearing this matter, and the respondent is not claiming this submission introduced new evidence or arguments that put the respondent at an unfair disadvantage. I recognize the respondent is also arguing the relevance of the receipts, but, per section 15 of the Statutory Powers Procedure Act (the “SPPA”) it is open to me to assign weight to evidence without having to disregard it in its entirety, and my strong preference is to admit this evidence so I can satisfy myself as to the degree it helps me come to a full understanding of the case before me. I accept the receipts may be relevant for the reasons put forward by the applicant.

10For the reasons above, I decline to order that any of the applicant’s submissions or evidence contested by the respondent be struck.

ANALYSIS

Applicability of the MIG

11I find the applicant has not demonstrated removal from the MIG is warranted.

12Section 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 she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she 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 she 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.

13The applicant’s submissions convey that removal from the MIG is warranted because she has a pre-existing condition arising from the earlier accident that precludes maximal recovery of her current accident-related injuries within the MIG. Further, the applicant claims she suffers chronic pain as a result of the current accident, and should therefore be removed from the MIG. The applicant relies on the clinical notes, records, and reports of Dr. Adib Ashraf (chiropractor), Dr. Odette Wahba (family physician), Credit Valley Diagnostic Centre, Integrated Manual Medicine, Zhong Yang (registered massage therapist), Always Health Centre, and Dr. Igor Wilderman (general practitioner ).

14The respondent argues that the applicant has failed to demonstrate her injuries are outside the MIG. The respondent relies on the section 44 assessment by Dr. Michael Ko (physiatrist).

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

15I find the applicant has not met her onus to prove her pre-existing conditions prevent maximal recovery of her current accident-related minor injuries under the MIG.

16There 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 she suffered a pre-existing condition, as well as demonstrate this condition would make her unable to achieve 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.

17The applicant points to the clinical notes and records of Dr. Wahba, and specifically an entry on December 19, 2019, that documents self-reported complaints about pain in her right leg, knee, neck, and shoulder because of the earlier accident.

18However, 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 pre-existing pain in her right leg, knee, neck, and shoulder. The applicant indicates in her reply submissions that this relationship should be obvious since the accidents were only four days apart. I disagree. Part 8 of the OCF-3 completed by Dr. Ashraf on December 27, 2019, confirms that hypertension and asthma are the only pre-accident conditions or injuries that would affect the applicant’s ability to perform her activities, and the applicant’s submissions do not rely on either of these conditions to support her claim. 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.

19Further, I find the applicant’s submissions about her self-funded alternative treatments do not provide compelling evidence of being precluded from maximal recovery under the MIG. This is because she did not point me to any facts in the records of Integrated Manual Medicine, Zhong Yang, or Always Health Centre that show her accident-related injuries cannot achieve maximal recovery within the MIG. The applicant did not say what treatment she received at these locations, or what injuries were being addressed by these service providers. She did not point me to any receipts as part of her MIG removal submissions.

20Although the OCF-3 completed by Dr. Ashraf says the applicant’s recovery will take longer than 12 weeks—partly because she was in an earlier accident, and partly owing to several other conditions sustained as a result of the current accident—I find this evidence is not compelling because Dr. Ashraf does not specify why the earlier accident will contribute to a longer recovery of the applicant’s injuries from her current accident, and provides no medical evidence to substantiate this opinion.

21The diagnostic imaging reports completed at the Credit Valley Diagnostic Centre on January 3 and 20, 2020, were not helpful because they occurred after the current accident and therefore provide no insight into the applicant’s knee condition as a pre-existing injury from her previous accident.

22The insurer’s examination completed by Dr. Ko on September 9, 2022 , diagnosed accident-related sprain and strain injuries to the applicant’s neck, left trapezius, and left upper extremity that had reached maximal medical improvement. I am persuaded by Dr. Ko’s report because it presents objective medical evidence of the applicant’s injuries obtained through a physical examination by a physical medicine and rehabilitation specialist.

23On balance, I find the applicant has produced little compelling evidence to show her pre-existing conditions would preclude maximal recovery of the applicant’s current accident-related minor injuries within the MIG. I therefore decline to remove the applicant from the MIG on this basis.

The applicant does not suffer chronic pain as a result of the current accident

24I find the applicant did not sustain chronic pain with functional impairment as a result of the accident.

25The 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 post-accident treatment at the Heartland Wellness Clinic, Integrated Manual Medicine, Zhong Yang, and Always Health Centre, and mention a series of regular consultations regarding her accident-related injuries and complaints of neck, back, and knee pain.

26I accept that Dr. Ashraf’s OCF-3 notes pain and injuries consistent with the applicant’s complaints to Dr. Wahba. 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 more than 12 weeks as 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 evidence of ongoing impairment in the treatment records she identifies in her submissions. 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.

27In 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 Dr. Ko’s physical examination of the applicant on September 9, 2022, that demonstrated full active range of motion of her left shoulder and spine in her neck and lower back. Full passive active range of motion was also observed by Dr. Ko in the applicant’s hips and knees.

28To me, this evidence is not consistent with functional impairment, and is persuasive because it involves objective medical insight derived from a physical examination by a physical medicine and rehabilitation specialist.

29In 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

30The 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

31Interest 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

32Under 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

33The 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.

34I 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

35Section 40(8) of the Schedule applies. The application is otherwise dismissed.