Hyatt v. Aviva Insurance Company, 2023 CanLII 30780

Citation: Hyatt v. Aviva Insurance Company, 2023 ONLAT 21-003226/AABS

Licence Appeal Tribunal File Number: 21-003226/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:

Julian A. Hyatt

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Riley Groskopf, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Julian A. Hyatt (the “applicant”) was involved in a motor vehicle accident on November 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that she sustained injuries to her neck, shoulder, legs, right hand, and upper and lower back in the accident, along with chronic pain and psychological sequelae that include anxiety and insomnia. She claims that the chronic pain condition and the psychological issues are not minor injuries as defined in the Schedule. Therefore, she should be removed from the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment. The applicant also claims entitlement to six treatment plans/OCF-18s: two for chiropractic services, one for a psychological assessment, and three for costs of examinations, along with interest and an award for the unreasonable withholding of benefits.

3The respondent takes the position that the applicant has provided no compelling medical reasons demonstrating that her injuries cannot be treated within the MIG, nor has she substantiated claims to a chronic pain condition or a significant psychological impairment. Aviva also requests that a correction be made to the specifics of the chiropractic treatment plan listed below as issue #4, and that the final pages of the applicant’s written submissions be struck and not considered in this decision. The respondent further argues that the applicant has not shown the treatment plans to be reasonable and necessary. Accordingly, Aviva holds that interest is not applicable. Finally, the insurer argues that it assessed all evidence in a timely fashion, and as such is not liable to pay an award.

ISSUES IN DISPUTE

4The following issues are in dispute:

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

2. Is the applicant entitled to $1,995.00 for a psychological assessment, recommended by Harinder Mrahar in a treatment plan/OCF-18 dated March 27, 2019?

3. Is the applicant entitled to $2,925.60 for chiropractic services, recommended by Dustin Yen in a treatment plan/OCF-18 dated May 28, 2019?

4. Is the applicant entitled to $2,500.00 for chiropractic services, recommended by Rudi Sai Lam Chan in a treatment plan/OCF-18 dated February 22, 2020?

5. Is the applicant entitled to $1,671.84 for the cost of examination for a chronic pain assessment, recommended by Doreen Payan of Q Medical in a treatment plan/OCF-18 dated June 3, 2020?

6. Is the applicant entitled to $1,671.84 for the cost of examination for social work, recommended by Doreen Payan of Q Medical in a treatment plan/OCF-18 dated March 17, 2020?

7. Is the applicant entitled to $1,804.07 for the cost of examination for a cognitive assessment, recommended by Doreen Payan of Q Medical in a treatment plan/OCF-18 dated March 16, 2020?

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

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

PROCEDURAL ISSUES

Was issue #4 incorrectly listed in the CCRO?

5I agree with the respondent’s submission that issue #4 listed above regarding the OCF-18 for chiropractic services should be changed, as the case conference report and order (“CCRO”) that resulted from the case conference held on September 15, 2021 lists the incorrect service provider and date. This is confirmed by the OCF-18 itself, which has been included in the applicant’s submissions. As a result, I have changed issue #4 above to accurately reflect the service provider and date noted on this OCF-18.

Does the length of the applicant’s written submissions contravene the CCRO?

6I am not persuaded by the respondent’s contention that that applicant has gone over the page limit set in the CCRO, submitting a total of 16 pages in her initial submissions instead of the 14 as set forth in that order, and that I should therefore not consider the arguments made on pages 15 and 16 regarding the special award and interest.

7Primarily, I note that this CCRO also contains the standard clause following the page limits on submissions that states that the hearing adjudicator “may not consider submissions which exceed the page limits.” As a result, I am not bound by the page limits as set forth in the CCRO and am not obligated to disregard anything beyond the 14-page limit established in this order.

8With that said, I am only considering the “additional” pages in the applicant’s written submissions because these submissions in total barely exceed the 14-page limit as set forth in the CCRO. Much of the first page of submissions is taken up by a header noting the application particulars. Page 15 is a full page, but page 16 includes a two-line citation and the signature of the applicant’s representative. To me, the circumstances do not warrant disregarding the page or so over the limit established in the CCRO, especially since this would prevent the applicant from arguing two issues—the award and interest.

9For the reasons noted above, I am considering all of the applicant’s initial written submissions document in the process of writing this decision.

Has the MIG funding limit of $3,500.00 been exhausted?

10I find that the MIG funding limit of $3,500.00 has been exhausted.

11Although neither the applicant nor the respondent confirms that the MIG funding limit has been reached, Aviva notes that it has approved funding for treatment to the full $3,500.00 amount available within the MIG. As this is not challenged by the applicant in either her initial or reply submissions, I accept this statement to be accurate. Additionally, all of the OCF-18s in dispute propose treatment outside of the MIG, with the appropriate box being checked on each form indicating that the impairments in question are not predominantly minor injuries.

12As a result, I find that the $3,500.00 MIG limit has been exhausted, and that all treatment proposed in the OCF-18s in dispute are outside of the MIG.

RESULT

13I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury, in this instance chronic pain and/or a psychological impairment.

ii. The applicant is not entitled to the OCF-18s in dispute, as all treatment proposed in these plans falls outside of the MIG. Accordingly, interest is not applicable as no benefits are owing and overdue.

iii. The applicant is not entitled to an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

14Section 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.” An insured person 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.

15The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she sustained both a chronic pain condition and psychological injuries and sequelae that are not included in the definition of a minor injury as noted above. She relies primarily upon an OCF-3 dated December 10, 2018 completed by Dr. Dan Shlepakov, chiropractor; clinical notes and records (“CNRs”) from her treatment providers at the Scarborough Medical Centre from November 23, 2018 to February 22, 2020; and the OCF-18s in dispute.

16Aviva relies on insurer examination (“IE”) reports as evidence showing that the applicant should be treated within the MIG. The insurer submits two multidisciplinary IE reports, the first completed by Dr. Jacqueline Auguste, orthopaedic surgeon, and Dr. Louise Koepfler, psychologist, and dated July 29, 2019; and the second completed by Dr. Pravesh Jugnundan, general practitioner, and Dr. Mohammad Nikkhou, psychologist, and dated November 3, 2020.

Does the applicant suffer from injuries that warrant removal from the MIG?

17I find that the applicant has not met her burden and demonstrated on a balance of probabilities that she suffers from chronic pain or a psychological impairment that would warrant her removal from the MIG and its treatment limits.

18The applicant’s medical evidence supporting the existence of a chronic pain condition is not persuasive. She has not been diagnosed with a chronic pain condition by any medical practitioner, or any sort of functional impairment due to chronic pain. Instead, the applicant submits that she has been engaged in physical therapy treatment for some time and that this “consistent attendance to treatment” proves the existence of chronic pain. Even if I acknowledge the applicant’s claims to have attended 99 treatment sessions at Scarborough Medical Centre from November 23, 2018 to February 22, 2020, this is immaterial when it comes to her proving that she suffers from chronic pain with a functional impairment. Also, the applicant has not produced any evidence linking this admittedly extensive treatment to these chronic pain condition claims or the accident. In all, this is not a suitable evidence-based argument that meets the applicant’s burden of demonstrating that her injuries fall outside of the MIG.

19Additionally, I am perplexed by the applicant moving directly from the accident and a single visit to an emergency room on November 14, 2018 to this extensive regimen of treatment just over a week later, without visiting a physician to seek treatment, medication, or additional medical analysis. The applicant submits no records from a family physician, for example, or records showing that she consulted any sort of medical practitioner in the wake of the accident outside of the lone emergency room visit. Yet she then embarks upon well over a year of physical therapy, as well as the majority of the treatment recommendations and costs of examination featured in the OCF-18s in dispute. The applicant does not explain this course of action in her submissions, which leaves me with a number of unanswerable questions regarding how she sought treatment for her accident-related injuries. Regardless of rationale, the absence of such medical evidence does not support a finding of chronic pain necessitating treatment outside of the MIG.

20In a similar fashion, I also do not find the applicant’s claims to a psychological impairment to be convincing. She submits little evidence outside of the OCF-18s themselves, and one of her primary arguments refers to the OCF-3 authored by Dr. Shlepakov, a chiropractor with no claimed psychological training. I assign this little weight, as such a psychological assessment recommendation is outside of Dr. Shlepakov’s area of expertise. In any event, this is not a formal diagnosis that would support the existence of a psychological impairment not included in the definition of a minor injury in the Schedule. The only other support for the claims of psychological impairment comes from the OCF-18 completed by Dr. Harinder Mrahar, psychologist, on March 19, 2019 that recommends a psychological assessment. While the applicant characterizes this as an assessment in her submissions, all I have before me is the OCF-18, which includes two additional pages summarizing a psychological screening interview where the applicant reported feelings of stress, anxiety, nervousness, irritability, and anger as a result of the accident. This is insufficient, in my view, to establish that the applicant suffered a psychological impairment, as the screening relies heavily on the self-reporting of the applicant. In addition, the applicant’s evidence here seems more focused on demonstrating that the psychological assessment and cognitive assessment treatment plans are reasonable and necessary, not that the applicant has a psychological impairment warranting removal from the MIG.

21I prefer the medical evidence of the respondent, which is thorough and comprehensive in supporting Aviva’s position that the applicant’s injuries are minor in nature and can be treated within the MIG. Dr. Auguste diagnosed the applicant with soft-tissue injuries and noted that she displayed a full range of motion and no tenderness in her cervical spine. She saw no evidence of injury necessitating treatment outside of the MIG. Dr. Jugnundan concurred in his report, concluding that the applicant’s injuries met the definition of a minor injury as defined in the MIG. Neither physician diagnosed the applicant with a chronic pain condition. Additionally, neither of the insurer’s examiners who assessed the applicant regarding her psychological claims found evidence of an accident-related psychological impairment that required treatment outside of the MIG. Dr. Koepfler and Dr. Nikkhou each found that the applicant did not meet the criteria for any formal psychological diagnosis, let alone a psychological impairment that falls outside of the definition of a minor injury in the Schedule. I see no reasons to doubt any of these conclusions and diagnoses, and concur that the applicant has not demonstrated the she suffers from a psychological impairment that warrants removal from the MIG.

22Based on the reasons stated above, I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition or a psychological impairment that are outside of the MIG.

The Treatment Plans

23As the applicant remains within the MIG and its $3,500.00 limit on treatment, and as this limit has been exhausted, she is not entitled to any of the treatment plans in dispute. As no benefits are overdue and owing, it follows that interest is not applicable.

Award

24I find that the applicant is not entitled to an award pursuant to s. 10 of O. Reg. 664. As I have determined that her accident-related injuries are within the MIG, I do not find that the respondent unreasonably withheld any benefits.

ORDER

25The application is dismissed.

26I find that:

i. The applicant has failed to establish that her accident-related injuries and impairments are not predominantly minor in nature and therefore warrant treatment outside of the MIG.

ii. As the applicant remains subject to the MIG and its $3,500.00 limit on treatment, she is not entitled to the treatment plans, all of which recommend treatment for non-minor injuries outside of the MIG. As no benefits are owing, interest is not applicable.

iii. As I have not found any benefits to be owing, an award is not warranted.