Citation: Duncan vs. Aviva General Insurance, 2023 ONLAT 21-000675/AABS

Licence Appeal Tribunal File Number: 21-000675/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:

Ariel Duncan

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Richard Warr

APPEARANCES:

For the Applicant:

Shanna Mittleman, Counsel

For the Respondent:

Savneet Multani, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 20, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied certain benefits by the respondent based on its determination that the applicant’s injuries were predominantly minor as defined in s. 3 of the Schedule, and she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

3The issues to be decided are:

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

b. Is the applicant entitled to $1,384.70 for medical services, proposed by Mackenzie Medical Rehabilitation in a treatment plan (“OCF-18”) dated July 28, 2020?

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

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

RESULT

4The applicant has sustained injuries that are predominantly minor as defined in s. 3 of the Schedule.

5The applicant is not entitled to the proposed treatment plan as the $3,500.00 limit of the Minor Injury Guideline has already been consumed.

6The respondent is not liable to pay an award pursuant to s. 10 of O. Reg. 664.

7No interest is payable.

BACKGROUND

8Following the accident, on September 23, 2019, the applicant attended a walk-in clinic where no x-ray was ordered and some medication was prescribed, as noted in the clinical notes and records of the applicant’s family doctor, Dr. T. Liu-P’ng.

9The applicant submits that she suffered numerous significant injuries resulting in her suffering from chronic pain as a result of the accident. She submits this chronic pain condition should remove her from the MIG.

10The respondent submits the applicant’s accident-related impairments are minor injuries as defined by the Schedule. The respondent submits that there is no evidence to support the applicant’s assertion that her chronic pain condition is not a minor injury as per the MIG.

ARE THE APPLICANT’S INJURIES PREDOMINANTLY MINOR?

11I am not persuaded that the applicant has established that her accident-related impairments are not minor injuries as defined by the Schedule.

12The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to treatment limits of $3,500.00 under s. 18 of the Schedule.

13An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are 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 on balance of probabilities.

14n this case the applicant does not claim any pre-existing condition that would remove her from the MIG. The applicant’s submissions mention diagnoses of a psychological nature which I will address subsequently. The applicant also submits that she sustained injuries that have caused her chronic pain and those also are addressed in the following paragraphs.

15On September 24, 2019, the applicant attended at Mackenzie Medical Rehabilitation Centre. The applicant submits that on the Mackenzie intake form she was diagnosed WAD III, lumbar sprain/strain, nausea, right wrist sprain/strain, sleep disorder and anxiety.

16On September 27, 2019 the applicant was examined by her family doctor, Dr. Liu-P’ng, for the first-time post-accident. According to Dr. Liu-P’ng’s clinical notes and records, the applicant reported lower back pain and pain to her neck and right arm. Dr. Liu-P’ng diagnosed whiplash injury and advised the applicant to continue with physiotherapy and perform light duties at work.

17On November 4, 2019, the applicant attended at an appointment with Dr. Liu-P’ng. Dr. Liu-P’ng notes that the applicant had attended the emergency department of William Osler Health Centre on October 21, 2019 for knee pain. An x-ray of the applicant’s knee was conducted, and she was prescribed a knee brace. Also, an MRI had been ordered for the applicant for her knee pain. Included in Dr. Liu-P’ng’s notes is the x-ray report.

18On November 19, 2019 the applicant attended an appointment with Dr. Liu-P’ng. At this appointment, Dr. Liu-P’ng notes that the applicant’s knee pain had improved and that she was no longer using the knee brace.

19On December 16, 2019 the applicant attended an appointment with Dr. Liu-P’ng and discussed the findings an MRI conducted on November 26, 2019. Dr. Liu-P’ng notes at this appointment that the MRI showed a partial ACL tear, meniscal degenerative change, and cruciate ligament tear. Dr. Liu-P’ng further notes that the applicant saw an orthopedic specialist who recommended she go for physical therapy and perfom light duties at work for two weeks. Dr. Liu-P’ng diagnosed left knee sprain. The MRI report is included in the clinical notes and records of Dr. Liu-P’ng, This MRI showed a partial tear of the anterior cruciate ligament and evidence of chronic Osgoode Schlatter’s disease. There are no notations in the clinical notes and records of Dr. Liu-P’ng that explains how these findings on the applicant’s left knee MRI are linked to the accident.

20Between December, 2019 and September, 2020 a number of OCF-18s were completed by various chiropractors at Mackenzie Medical Rehabilitation Centre, including the July 28, 2020 OCF-18 completed by Dr. C. Jakeer. All of these OCF18 plans list the applicant’s accident-related injuries as number of sprains/strains of the neck, shoulder and back, sprain/strain of the wrist, tension-type headaches, nausea, and sleep disorders and in the latter plans also include anxiety and nervousness. These injuries listed in these OCF-18s are inconsistent with the clinical notes and records of Dr. Liu-P’ng.

21In her visits with her family doctor, the applicant made intermittent complaints of her accident-related injuries. Dr. Liu-P’ng notes improvements in her back pain, neck pain, wrist pain and knee pain up to a visit of February 10, 2020 which is approximately six months post-accident. At this visit, Dr. Liu-P’ng notes that the applicant’s knee pain had improved, and that the applicant wished to return to regular duties at her job.

22Following the February 10, 2020 examination by Dr. Liu-P’ng, the applicant had three assessments by her family doctor. These were April 23, June 5, and June 17, 2020. All were assessments conducted over the phone due to COVID-19 protocols. In all three of these assessments there are no notations by Dr. Liu-P’ng of any accident-related complaints of pain or injury by the applicant.

23There are no diagnoses of any injuries that are more serious than sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The November 26, 2019 MRI did show a partial tear of the left knee anterior cruciate ligament, however partial tears are included in the strain description of the MIG.

24From the evidence presented, I find that the applicant has sustained predominantly minor injuries as defined in s. 3 of the Schedule as a result of the subject.

DOES THE APPLICANT HAVE CHRONIC PAIN RESULTING FROM THE ACCIDENT?

25I am not persuaded that the applicant has demonstrated that she suffered chronic pain as a result of the accident.

26The applicant must demonstrate on a balance of probabilities that her ongoing or chronic pain impairs her functionality in order to be removed from the MIG. In this matter, I have been provided little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on her functionality.

27The applicant reported pain during several appointments with her healthcare providers following the accident, however she does not provide any compelling evidence to demonstrate that this pain has caused significant functional impairment.

28The applicant asserts that the accident has caused her significant physical impairment. She submits that her ongoing pain, specifically in her lower back, right wrist and let knee continues and has become chronic in nature. She further submits that this chronic pain has significantly impaired her ability to function.

29The applicant submits that she has been unable to fully resume her pre-accident work duties.

30The applicant relies upon the injuries described by Dr. Jakeer, and the other chiropractors at Mackenzie Medical Rehabilitation Centre. These healthcare providers, however, do not list chronic pain in the Injury and Sequelae Information sections of the completed OCF-18s submitted into evidence.

31The respondent relies upon the findings of the IE assessor, Dr. Gilbert Yee. Dr. Yee is an orthopedic surgeon conducted an examination on December 23, 2020. Dr. Yee completed a report based on that assessment.

32At the time of the examination, the applicant reported to Dr. Yee that she had intermittent right wrist pain which she described as 5/10 for severity and intermittent left knee pain which she described as 7/10 for severity. She also reported to Dr. Yee that her left knee had improved about 80% since the time of the accident and that she no longer used a knee brace. The applicant did not report any other pains or injuries and she further reported she was not taking any medication at that time.

33In relation to his physical examination of the applicant, Dr. Yee noted he did not see any deformity or swelling in the applicant’s right wrist. He did note some tenderness when palpating the wrist in a certain way and no pain when palpated in another. She was also able to move the wrist when directed by Dr. Yee.

34Dr. Yee noted that the applicant’s left knee had no pain with palpitation, she had range of motion in her knee from 0 to 135 degrees, her ligaments were stable, and she had no signs of atrophy. During the examination, Dr. Yee noted that the applicant was able to do a squat without pain.

35Despite the applicant’s submissions that she is unable to work as a result of pain from her accident-related injuries, the applicant self-reported Dr. Yee that following the accident she had performed modified duties for two to three months and, as of the date of the examination, had returned to regular duties and hours.

36This is consistent with the notations of Dr. Liu-P’ng who noted on February 10, 2020 that the applicant wanted to return to regular duties at her job because her pain had improved.

37The applicant has not provided any evidence that her accident-related injuries and subsequent pain have impaired her ability to function to a degree such that her activities of daily living have been negatively impacted. Again, in her self-reporting to Dr. Yee, the applicant stated that she was independent with self-care and household chores. She further reported she could sit and stand without issue and could carry up to 30 lb of weight. She advised Dr. Yee that prior to the accident she was not involved in recreational activities.

38I am persuaded by the report of Dr. Yee who concluded that the applicant sustained injuries that were pre-dominantly minor as a result of the accident. He further concluded that there was no evidence of instability in the applicant’s left knee. Dr. Yee makes no comment regarding chronic pain but noted that he did not observe any atrophy in the applicant’s left knee, that the applicant reported that she had returned to regular hours and duties at work and that she was not taking any medications at the time of the assessment. Dr. Yee did not report observing any functional impairment caused by the applicant’s accident-related injuries.

39The American Medical Association Guides 6th Edition (“AMA Guides”) for chronic pain are not incorporated into the Schedule and therefore not binding on this Tribunal; however, the Tribunal has in some cases found them useful in making a determination of chronic pain. The AMA Guides state that in order for a healthcare professional to diagnose chronic pain, at least three of the criteria listed below must be met. In this case, I find that the applicant has not submitted evidence that three of the following six criteria of chronic pain as listed in the AMA Guides have been met. The six criteria are:

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

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

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

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

e. 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

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

40The clinical notes and records of the applicant’s family doctor, Dr. Liu-P’ng do not provide a diagnosis of chronic pain. Dr Liu-P’ng also does not refer the applicant to a chronic pain specialist for examination. There is no evidence to suggest that the applicant is abusing or misusing any pain medications. There is no evidence that the applicant is excessively booking appointments with healthcare providers. Dr. Liu-P’ng does not indicate in any clinical notes and records that the applicant is avoiding any activities and is therefore suffering from physical deconditioning. Dr. Liu-P’ng does not note that the applicant suffers from anxiety or any other psychological impairment as a result of the accident.

41I find that the applicant’s self-reported description of intermittent right wrist and left knee pain to Dr. Yee is consistent with the clinical notes and records of Dr. Liu-P’ng who also noted these complaints intermittently. There are several notations by Dr. Liu-P’ng throughout her clinical notes and records where the pain from these injuries had improved. This is inconsistent with any assertion of chronic pain which impairs functionality.

42The IE assessment report of Dr. Yee is most consistent with the clinical notes and records of the applicant’s family doctor. The diagnoses of the applicant’s accident-related injuries by Mackenzie Medical Rehabilitation Centre staff, including nausea, headaches, sleep disorders, anxiety, and nervousness, are not observed by Dr. Liu-P’ng nor are these complaints of the applicant made to Dr. Liu-P’ng or Dr. Yee.

43Based on the evidence, and in consideration of the AMA Guides 6th Edition criteria, I find the applicant has failed to demonstrate on a balance of probabilities that she has chronic pain that warrants removal from the MIG. The applicant has not provided sufficient medical evidence to establish that her functionality is otherwise impaired, and that chronic pain has caused her disability. I find that the applicant should not be removed from the MIG based on her sustaining chronic pain as a result of the subject accident.

IS THE DISPUTED TREATMENT PLAN REASONABLE AND NECESSARY?

44As I have found that the applicant remains in the MIG and the parties agreed that the MIG funding limits have been exhausted, an analysis of whether the disputed treatment plan is reasonable and necessary is not required.

Interest and Award

45As no benefits are payable, likewise the respondent is not liable to pay any interest.

46There is no evidence that would indicate that the respondent withheld or delayed payment of any benefit that the applicant was entitled to or in any way acted in bad faith in adjusting the applicant’s file. I find an award is not appropriate in this matter.

CONCLUSION

47The applicant has not demonstrated that her injuries are not minor and beyond the MIG funding limit. The treatment plan in dispute is not reasonable and necessary and no interest or award is payable.