Blake v. Aviva General Insurance Company, 2023 CanLII 23563

Citation: Blake v. Aviva General Insurance Company, 2023 ONLAT 21-001914/AABS

Licence Appeal Tribunal File Number: 21-001914/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:

Jillian Blake

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kevin Lundy

APPEARANCES:

For the Applicant: Jillian Blake, Applicant Maria Makarova, Paralegal

For the Respondent: Aviva General Insurance Company Michal Baura, Counsel

HEARD: In Writing

OVERVIEW

1The applicant was involved in an automobile accident on November 22, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010; the ‘Schedule’). The applicant is a 63 year old woman, who was the passenger in her husband’s vehicle when a third party ran a red light and struck them on the right rear of their vehicle, causing it to spin out and crash into a ditch and a fence.

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

1. 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’)?
2. Is the applicant entitled to $5,534.20 for chiropractic treatment, proposed by Ortho Neuro Physiocare in a plan submitted July 17, 2020?
3. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Physiocare & Wellness in a plan submitted March 29, 2021?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

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

b. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest.

ANALYSIS

The Minor Injury Guideline

5Section 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

6The Ontario Divisional Court held in Scarlett v. Belair Insurance, 2015 ONSC 3635 that the applicant bears the burden of proving, on a balance of probabilities, that her injuries are not minor within the meaning of the Schedule.

7The applicant takes the position that her injuries are not predominantly minor as she has been diagnosed with chronic pain by Dr. Mueller and Dr. Baird and with PTSD by Dr. Baird. She also submits that her pre-existing diabetes and the pre-existing degenerative changes to her right fibula have prevented her from achieving maximal medical recovery within the MIG limits.

Chronic Pain

8Although the applicant reported pain and tenderness to her physicians, I prefer the evidence of the respondent that these complaints do not rise to the severity of a chronic pain disorder that would remove her from the MIG.

9On the day of the accident, the applicant reported right leg pain to the attending paramedics and at Etobicoke General Hospital. Two days later, on November 24, 2015, the applicant discussed the accident with her family physician, Dr. Mueller. The doctor noted “tender lateral right thigh” and reiterated the applicant’s own statements regarding the force of the impact. The applicant also reported that she experienced pain in the back of her head and a tender lateral right shoulder. Dr. Mueller observed that her gait was antalgic and that she got up slowly from a chair. The applicant also reported pain in her neck over her paravertebral muscles with “mild lateral right thigh with 6 cm hematoma.” Dr. Mueller recommended light activities and Tylenol.

10On December 1, 2015, Dr. Mueller noted “tender right head of fibula, right shoulder improving, tender dorsal right third digit metacarpophalangeal joint.” He recommended physiotherapy and Tylenol. He also noted that her gait had returned to normal and that her range of movement for her knee and right shoulder were normal and that her ligaments were intact. An X-ray dated December 1, 2015 showed mild degenerative changes to the applicant’s tight tibia and fibula but no fibular head fracture. Dr. Mueller noted that the claimant was in a cheerful disposition and had neck tenderness. His assessment was “chronic pain” and Type 2 diabetes.

11On December 10, 2015, Dr. J. Metcalf of East Toronto Ortho & Sport Clinic Inc. (‘East Toronto Ortho’) diagnosed the applicant with muscle strain of hip and femur, lower leg, shoulder and whiplash associated disorder (‘WAD’). The doctor opined that the applicant suffered a substantial inability to perform the housekeeping and home maintenance services that she was normally performed before the accident and that she was on modified duties, “working in office instead of doing home visits.” Dr. Metcalf estimated that the symptoms would last between five and eight weeks. The applicant started attending physiotherapy at East Toronto Ortho, but ultimately discontinued this treatment after six sessions.

12On April 14, 2016, the applicant followed up with Dr. Mueller regarding her right thigh and right shoulder pain and advised the doctor that the physiotherapy treatment was beneficial. The doctor noted diffuse posterior neck tenderness, increased pain with lateral flexion bilaterally and diagnosed the applicant with chronic pain; she recommended Tylenol or Advil.

13On October 3, 2016, Dr. Nimrit Dhillon of Excel Medical Diagnostics submitted an OCF-18 for a chronic pain assessment. The doctor noted: “Ms. Blake continues to complain of pain and discomfort in the back part of the head radiating down throughout her neck and constant pain in her right hip… pain interferes with activities of living and disturb her sleep. Ms. Blake also reports headaches, dizziness, imbalance, difficulties maintaining sleep due to pain, as well as fatigue and tiredness.”

14On November 16, 2016, the applicant attended a section 44 examination, conducted by Dr. M. Boucher, who noted that the applicant complained of “residual neck, tight shoulder and right thigh pain” and to her “axial spine.” He also noted: “Ms. Blake demonstrates only one of the six diagnostic criteria seen in chronic pain syndrome.”

15Dr. Boucher’s physician assessment report, dated November 28, 2016, found that the applicant sustained soft tissue injuries to her axial spine and a contusion to her right thigh. He found the injuries are consistent with a WAD II cervical myofascial strain and right thigh contusion. He concluded that the applicant’s soft-tissue injuries fall within the definition of minor injury. While Dr. Boucher’s assessment was conducted on the issue of minor injury within one year of the accident, the next assessment, by Dr. Baker, was not conducted until September 17, 2020, almost five years after the accident.

16In 2019, Dr. Mueller retired and the applicant started seeing Dr. Baird on August 1, 2019. An x-ray of the applicant’s neck showed disc space narrowing and prominent anterior osteophyte formation. The applicant continued complaining of regular right sided neck pain and right thigh pain.

17On June 2, 2020, Dr. Baird also noted chronic pain and recommended that the applicant resume treatment. There was no indication on the evidence that she attempted to resume treatment prior to receiving this recommendation. This lapse in treatment for over three years tends to support the respondent’s submission that the applicant apparently felt sufficiently recovered from the accident to continue the activities of her daily living. To that end, the applicant successfully retired in 2018. Any diagnosis made by Dr. Baird is too remote from the date of the accident to be reliable.

18While the applicant cites several instances in which practitioners noted that the applicant presented with “chronic pain,” the respondent highlighted the distinction between chronic pain and chronic pain syndrome, the former being the state of having constantly recurring pain in an area of the body and the latter as a debilitating condition. The American Medical Association in the 6th edition of “Guides to the Evaluation of Permanent Impairment” (AMA Guides) standardized a definition of chronic pain syndrome. This guide states that three or more of its criteria are required for a diagnosis of chronic pain syndrome and, although not binding, has been accepted by the Tribunal as an interpretive tool to determine if an applicant suffers from chronic pain syndrome in the absence of a definitive or clear diagnosis. Although reference to these guidelines is not mandatory, in Zappia v. Unica Insurance Inc., 2020 CanLII 101805, the Tribunal held that the AMA Guides should be used to determine whether “the applicant has chronic pain that is severe enough that it takes him or her out of the MIG.” I agree and apply them here. The Guideline criteria are as follows:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse, or family;
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
4. Withdrawal from social milieu, including work, recreation, or other social contacts;
5. 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; and
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

19According to the clinical notes and records of Dr. Mueller, the applicant was prescribed Tylenol 3 in the initial visit after the accident. No further medication relating to the accident was prescribed. I find that the applicant does not meet the first criterion.

20The applicant has also not exhibited excessive dependence on health care providers, spouse, or family and reported to Dr. Boucher that she terminated treatment at East Toronto Ortho after just six sessions following a spinal manipulation.

21The applicant did not demonstrate on the balance of probabilities that she was deconditioned, that she avoided physical activity or that she withdrew from any of her social contacts. She continued working full-time at Central Neighbourhood House and denied missing any time from work. The applicant reported that she retired in 2018. However, from the time of the accident to the date of Dr. Baker’s assessment, she was employed on a casual basis with Good Shepherd Ministry.

22As noted above, Dr. J. Metcalf noted that the applicant suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident and that she was on modified duties, “working in office instead of doing home visits.” As a result, I find that the applicant meets this criterion.

23With respect to psychological sequelae after the initial incident, the applicant relies upon a diagnosis by Dr. Baird of post-traumatic stress disorder with symptoms of anxiety and irritability. Contrary to the respondent’s submissions, as a medical doctor, Dr. Baird is indeed qualified to make a psychological diagnosis. However, he first treated the applicant on August 1, 2019, almost four years after the accident and her prior family physician, Dr. Mueller, had retired. Significantly, Dr. Mueller treated the applicant pre-accident until August 1, 2019 but never diagnosed her with a psychological injury. Although the respondent has not offered a contrary medical opinion on this issue, I find several problems preclude relying upon Dr. Baird’s diagnosis alone. First, as he neither conducted any psychological tests on the applicant himself nor referred her to a psychologist or psychiatrist for further examination, his opinion relies entirely upon the applicant’s subjective self-reporting. Combined with the remoteness of his diagnosis and the apparent absence of a psychological history in the almost four years following the accident, on the balance of probabilities, I do not find that the applicant has met this criterion.

24In Al-Jameel v. Aviva, 2019 CanLII 101601 (ON LAT), the applicant took the position that a diagnosis of chronic pain removed him from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. However, the Tribunal found that the applicant’s chronic pain did not remove him from the MIG because it did not affect his functionality. Similarly, in the present case, although the applicant has repeatedly reported persistent pain, she has not demonstrated that it has affected her functionality. For instance, on July 25, 2019, Dr. Mueller noted chronic neck pain as the applicant was “unable to do hair styling.” However, he treated this issue by simply recommending Tylenol. Although the applicant modified her work duties in 2015 in response to the effects of her injuries, she ultimately retired from her employment three years later but remained working in a part time or casual capacity. As a result, I do not find that she has demonstrated loss of functionality that would remove her from the MIG on the basis of chronic pain syndrome.

25While I recognize that that the applicant has experienced pain since the accident, I have not been provided with compelling evidence that she should be removed from the MIG on this basis. As a result, the applicant has not satisfied her onus to establish that she has chronic pain that may remove her from the MIG.

Pre-existing Condition

26I also agree with the respondent that the applicant has also failed to demonstrate that she should be removed from the MIG based upon impairment of pre-existing conditions. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.

27The applicant submitted that her pre-existing diabetes and disc disease should remove her from the MIG. However, she has not provided any expert evidence or case law supporting this position. The existence of a pre-existing condition will not automatically exclude a person’s impairment from the MIG; the applicant must also prove that the pre-existing condition will prevent maximal recovery. Moreover, the evidence indicates that she has recovered from her injuries and continued to function.

Psychological Impairment

28A psychological impairment, if established, may fall outside the MIG, as the MIG only governs “minor injuries” and the prescribed definition does not include accident-related psychological impairments. However, as noted above, in the present case, the applicant relies solely upon Dr. Baird’s diagnosis of August 1, 2019, based upon the applicant’s self-reporting years after the accident not supported by any objective medical testing or assessment.

29Other than the letter dated March 21, 2021 that contains Dr. Baird’s diagnosis, the applicant has not tendered any evidence that supports her position that she suffered a psychological impairment as a result of the subject accident. The applicant must show that she has an actual psychological impairment and not just symptomology.

30A psychological diagnosis requires the development of ongoing, substantive, and residual post-traumatic symptomology or clinically significant psychological distress. Although Dr. Baird continued to see the applicant twice monthly after August 19, 2019 and noted that she suffered from stress and insomnia, there is nothing in the CNRs submitted by the applicant that confirms that she was suffering from psychological issues, nor has the applicant directed me to such evidence.

31As noted above, Dr. Baird did not refer the applicant to see a psychologist or psychiatrist. If her psychological issues were as serious as she purports them to be, this omission raises the question why she was not referred to see a specialist for additional help. Nor did the applicant provide a prescription history which shows that she was on medication for psychological issues.

32As a result, I find that the applicant has not demonstrated that she has psychological impairments that warrant removal from the MIG.

33Ultimately, in consideration of all of the evidence, I find that the applicant’s physical injuries are predominantly minor injuries pursuant to the definition set out in the Schedule.

34The interpretation of reasonableness and necessity is contextual under the Schedule. The statutory test is whether a treatment plan is reasonable and necessary in the circumstances. However, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

35Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, following the analysis in Patel v. Security National Insurance Company, 2022 CanLII 14936 (ON LAT), the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, only up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.

Award

36The applicant is not entitled to an award under section 10 of Regulation 664 on the grounds that the respondent unreasonably withheld or delayed the payment of benefits. The issue of an award was never added to this hearing either at the case conference stage or via a later motion. Even putting aside this lack of reasonable notice, the applicant has failed to demonstrate that the respondent adopted an unreasonably adversarial approach to the handling of the claim contrary to its obligation to act in good faith.

37The applicant alleges that the respondent failed to fund the applicant’s treatment within the funds available under the MIG, thereby preventing her from timely recovery and worsened her medical condition. However, although only $590.00 has been paid to date in treatment, this is due to the applicant’s decision to discontinue her treatment sessions at East Toronto Ortho after only six sessions. Accordingly, the $3,500 MIG limit was sufficient to treat the applicant and further treatment sessions pursued only after over three years of inactivity and at the suggestion of Dr. Baird were not reasonable or necessary.

Interest

38Interest is owing on all benefits that are payable, pursuant to section 51 of the Schedule.

ORDER

39For the reasons outlined above, I find that:

a. The applicant sustained predominantly minor injuries as defined under the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG.

b. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest in accordance with section 51 of the Schedule.

c. The applicant is not entitled to a special award.