Hamilton v. Aviva Insurance Canada, 2023 CanLII 13010

Hamilton v. Aviva Insurance Canada

Citation: Hamilton v. Aviva Insurance Canada, 2023 ONLAT 21-002275/AABS

Licence Appeal Tribunal File Number: 21-002275/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:

Kerri Hamilton

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Carlos Ortiz, Paralegal

For the Respondent: Kelvin W. Brown, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Kerri Hamilton (the “applicant”) was involved in an automobile accident on November 7, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2Aviva Insurance Canada (the “respondent”) characterized the applicant’s injuries as a “minor injury” as defined in s. 3 of the Schedule, subjected her to the Minor Injury Guideline (the “MIG”) and its $3,500.00 funding limit on treatment, and denied certain medical benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor as defined in the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

ii. Is the applicant entitled to $5,050.00 for medical marijuana, proposed by Medical Marijuana Practitioners in a treatment plan/OCF-18 dated December 14, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

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

RESULT

4I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. While it is not certain if the applicant has exhausted the funding available under the MIG, she is not entitled to payment for any portion of the treatment plan in dispute as she has not demonstrated which aspects of the treatment plan are reasonable and necessary under the MIG limit.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

iv. The applicant is not entitled to an award.

BACKGROUND

5The applicant was the driver of a vehicle proceeding on Ridgeway Road in the city of Mississauga on November 7, 2015 when she was involved in a t-bone accident. Another driver made a left turn in front of her, resulting in her colliding with the driver’s side of the other vehicle. Emergency services did not attend the scene of the accident.

6The applicant visited her family physician within a week of the accident, where she was diagnosed with whiplash and bruising around her right breast and forearms. Subsequent x-rays showed no evidence of fractures or other abnormalities relating to the accident. The applicant was prescribed muscle relaxant medication, recommended physiotherapy treatment, and advised to take leave from her job. The applicant eventually stopping working entirely as of March, 2016. She complained primarily of headaches, neck pain, blurriness in her right eye, depression, pain in her right thumb and right ring finger, weight gain due to medication prescribed for pain, and other symptoms in the months after her accident, and attended sessions of physical therapy.

7The applicant claims that trauma from the accident has developed into a condition of fibromyalgia and its concurrent symptoms of chronic pain that are not within the definition of a minor injury in s. 3(1) of the Schedule. As a result, she is seeking to be removed from MIG status and the $3,500.00 limit on treatment. The applicant is also claiming that a treatment plan for medical marijuana is reasonable and necessary to treat the symptoms of fibromyalgia.

8The respondent takes the position that the applicant’s injuries are minor and that the MIG applies. The respondent submits that the applicant has not provided sufficient medical evidence to prove that her claim of fibromyalgia warrants removal from the MIG or that fibromyalgia is the result of the accident. The respondent also argues that even if the applicant is found to have sustained non-minor injuries, she has not met her burden of proving that the treatment plan in dispute is reasonable and necessary.

ANALYSIS

Applicability of the MIG

9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the Schedule.

10Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a limit of $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that they had a pre-existing condition, documented by a medical practitioner, before the accident which prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or psychological impairment.

11It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities. In the current matter, I was not provided with definitive evidence that the MIG funding was exhausted. The applicant submitted that she had reached this funding limit on treatment, while the respondent stated that she has used just $1,800.00 of a physiotherapy treatment plan approved to a total of $2,200.00. Either way, it remains the applicant’s burden to prove that she is entitled to treatment beyond the MIG.

Fibromyalgia, Chronic Pain, and the MIG

12I am not persuaded that the applicant has proven on a balance of probabilities that her injuries fall outside of the Schedule’s definition of a minor injury.

13Although the applicant alludes to a number of physical injuries and sequelae resulting from the accident, the main focus of her submissions is that she suffers from fibromyalgia and concurrent chronic pain as a result of the subject accident. To support her argument, she relies almost entirely on the clinical notes and records of Dr. Jennifer Lynn Mueller, her family physician, and the OCF-18 in dispute with a recommendation for medical marijuana.

14There is limited supporting medical evidence for the diagnosis of fibromyalgia, or the applicant’s assertion that her chronic pain is caused by this condition. The applicant submitted no other treatment records in support of this diagnosis, which was made by Dr. Mueller on November 23, 2018. Dr. Mueller diagnosed “chronic pain” and listed “fibro” as a possible cause. She made a referral to Dr. Hugh Mitchell, physician, with Medical Marijuana Practitioners, which resulted in the OCF-18 in dispute. However, Dr. Mueller did not provide any supporting information to explain how or why she concluded that the applicant may be suffering from fibromyalgia, or why she referred the applicant to Dr. Mitchell “for consideration of medical thc.” I infer that the applicant requested the medical marijuana based on Dr. Mitchell’s correspondence to Dr. Mueller dated December 6, 2018 where she stated that “Kerry…is requesting Medical Marijuana for chronic back pain, fibromyalgia, anxiety and depression.”

15Dr. Mueller’s progress report dated June 19, 2019 provided slightly more information, although I find that it is not conclusive evidence of chronic pain. For example, Dr. Mueller confirmed that the fibromyalgia conclusion was not made until November 23, 2018, and noted specifically that this came “approximately three years after the MVA in question.”

16Although I note that Dr. Mueller concluded that the accident “did likely significantly contribute to the development of her fibromyalgia,” I do not find this to establish a definitive connection. No medical evidence supports such a diagnosis and there is a significant interval between the subject accident in November 2015 and the writing of this letter in June 2019. As a result of this nearly four-year evidentiary gap, I have significant concerns regarding the lack of contemporaneous medical assessments and diagnoses at the time of the accident.

17In a similar fashion, Dr. Mueller did not make any direct link between the accident and the diagnosis of fibromyalgia through reference to the applicant’s medical history between 2015 and 2019. Instead, she referred to a section of the American College of Rheumatology website that states, “there is most often some triggering factor that sets off fibromyalgia. It may be spine problems, arthritis, injury, or other type of physical stress.” She also referred to rheuminfo.com, a Canadian website on rheumatological disorders, with a citation that, “[T]he majority of cases occur after a stressful incident, such as an emotional or physical injury. For example, a car accident or another medical illness could trigger FM [fibromyalgia].” These generic observations sourced from the internet may well be accurate regarding fibromyalgia and how it develops, but simply citing them does not, in my view, substitute for a more thorough medical assessment of the applicant.

18The applicant also points to an assessment by Dr. Sumiti Nayer, neurologist, completed on August 9, 2016 that resulted in a diagnosis of cervicogenic headaches as a result of the accident. As headaches are contained within the s. 3 definition of a minor injury, Dr. Nayer does not diagnose any injuries that would fall outside of the definition of a minor injury as prescribed by the Schedule.

19The report of Dr. Nayer also notes that the applicant has been diagnosed with a Chiari type 1 malformation, a condition where brain tissue extends into the spinal column that develops as the skull and brain are growing. While this diagnosis came as a result of an MRI conducted during medical examinations regarding the accident, Dr. Nayer stated that this issue is “incidental” to the accident. The applicant alludes to the Chiari malformation in her submissions, but she does not argue that this pre-existing issue has contributed to any exacerbation of her claimed injuries and impairments. As a result, I do not assign this diagnosis weight because of Dr. Nayer’s belief that this condition was unrelated to the subject accident.

20I prefer the medical evidence of the respondent, focused mainly on the insurer’s examination (“IE”) report of Dr. Allan Kopyto, physician, dated December 16, 2019. Dr. Kopyto did not identify any ongoing accident-related impairments, finding no swelling or tenderness in her neck. He also found that the applicant’s range of motion was within normal limits. He essentially concurred with Dr. Nayer that the applicant sustained a musculoligamentous strain injury of the neck in the accident and suffered from cervicogenic headaches as a result. Dr. Kopyto concluded that the applicant had sustained minor injuries as defined in the Schedule, and that she had reached maximum medical improvement by the time of his examination. This is the most specific and comprehensive report on the applicant and her reported injuries and sequelae.

21For the reasons above, I find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The medical evidence presented by the applicant is not contemporaneous, much of it not arising until more than three years following the accident. The applicant has also not presented enough medical evidence to prove that her fibromyalgia was caused by the accident, or that this condition warrants removal from the MIG and its limitations on treatment.

The Medicinal Marijuana Treatment Plan

22Although I have determined that the applicant has not demonstrated that removal from the MIG is required, as noted above I have conflicting evidence regarding whether the MIG limit of $3,500.00 has been reached. In any event, I find that it is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plan given my finding that the applicant sustained predominantly minor injuries as defined in the Schedule.

23Regardless, it remains the applicant’s burden to prove that she is entitled to treatment beyond the MIG. It was incumbent on the applicant to demonstrate which aspects of the treatment plan in dispute were reasonable and necessary under the MIG limit. As she has failed to provide specific submissions in this regard, I am unable to find that the treatment plan is partially payable to the remaining MIG limit, even if there is any funding remaining.

24For the reasons above, I find that the applicant is not entitled to the treatment plan in dispute.

Interest

25Given that there are no overdue benefits, it follows that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

26Although the case conference report and order dated August 10, 2021 that set this matter down for a hearing listed a claim for an award pursuant to s. 10 of Reg. 664, the applicant made no submissions with regard to this issue. It is not mentioned in the applicant’s written submissions, or even noted in the list of issues in dispute. As a result of this omission, the respondent submitted that the award claim should be dismissed as it appears as if the applicant is no longer disputing this issue.

27I agree with the respondent and dismiss the claim for an award, as the applicant has made no submissions for me to consider with regard to this issue.

ORDER

28The application is dismissed. I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG;

ii. While it is not certain if the applicant has exhausted the funding available under the MIG, she is not entitled to payment for any portion of the treatment plan in dispute as she has not demonstrated which aspects of the treatment plan are reasonable and necessary under the MIG limit;

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

iv. The applicant is not entitled to an award.