20-011829/AABS

Licence Appeal Tribunal File Number: 20-011829/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:

Courtney Anthony Dewar

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel Francesco Vumbaca, Student-At-Law

For the Respondent:

Melanie Sousa, Counsel

HEARD: By way of written submissions

OVERVIEW

1Courtney Anthony Dewar (“the Applicant”) was involved in an automobile accident on August 17, 2018 and sought benefits from Aviva Insurance Company of Canada (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as a predominantly minor injury and subjected him to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit on medical and rehabilitation benefits for a minor injury. The Respondent denied the Applicant entitlement to certain benefits claiming that the goods and services sought by the Applicant fell outside the MIG. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the Applicant’s injuries a minor injury as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit on medical and rehabilitation benefits?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a psychological assessment proposed by Downsview Healthcare Inc., in a treatment and assessment plan dated November 2, 2018?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a neurological assessment proposed by Downsview Healthcare inc., in a treatment and assessment plan dated December 8, 2020?

iv. Is the Applicant entitled to an award pursuant to section 10 of Reg. 664?

v. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the subject accident. He is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG.

5The Applicant is not entitled to an award or interest.

BACKGROUND

6The Applicant was the driver of a vehicle that was struck from behind by another vehicle while slowing down on an urban avenue. He exchanged insurance information with the other driver and proceeded to report the accident at the collision reporting centre. The Applicant visited family after reporting the accident and then attended the hospital emergency department with complaints of neck pain. The Applicant was assessed at the hospital and discharged with a diagnosis of neck strain. He was advised to take over-the-counter pain medication and return if his symptoms worsened.

7The Applicant visited his family physician, Dr. S. Basta, approximately a week post-accident, reporting headaches, neck, shoulder, and back pain. Additionally, the Applicant complained of “still ongoing” anxiety and difficulty finding a therapist. Dr. Basta’s examination of the Applicant revealed normal range of motion (“ROM”) throughout his body and a normal cranial nerve exam. The Applicant was diagnosed with mild whiplash and advised to start physiotherapy.

8The Applicant claims that he sustained a concussion, psychological injuries, and likely developed chronic pain. To him, these are not injuries included in the minor injury definition. The Respondent disagrees and submits that the Applicant has not demonstrated that he sustained an impairment outside the definition of a minor injury.

ANALYSIS

Minor Injury Guideline (“MIG”)

9The 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. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

The Applicant did not sustain a concussion as a result of the accident

10The various medical records immediately following the accident indicate no concussion or head injury. The corresponding motor vehicle accident report indicates no persons were injured as a result of the accident. In any event, the Applicant’s sole complaint at the hospital following the accident was neck pain and there is no indication he complained of a concussion or related symptoms. No concussion protocol is noted in the hospital records from that visit and the Applicant was discharged with advice to take Tylenol. Likewise, while the Applicant complained of headaches to Dr. Basta, he reported no loss of consciousness as a result of the accident and no other concussion symptoms. To me, the hospital and family physician records hold the most weight because they include accounts and assessments of the Applicant immediately following the accident when he would likely be most symptomatic.

11The disability certificate by Dr. M. Richards, chiropractor, dated September 29, 2018, holds no weight because it is unsupported by the medical evidence. The disability certificate lists concussion as the most predominant injury sustained by the Applicant, contrary to the records from the emergency room and family physician. Making a diagnosis contrary to the family and emergency room physicians would not normally be fatal to the persuasiveness of a report however, there are no clinical notes and records submitted to support Dr. Richards’ diagnosis of a concussion. As a result, I am unable to understand Dr. Richards’ methodology regarding the diagnosis in order to prefer it over that of Dr. Basta and the emergency room physician. Recall, Dr. Basta and the emergency room physician assessed the Applicant in the immediate post-accident period and never documented any concussion-related complaints, nor diagnosed a concussive injury.

12The Applicant was involved in a subsequent accident on November 12, 2018 in which he reportedly hit his head on the headrest, which would be a much more likely source of any ongoing concussive symptoms. The Applicant attended the hospital for the November 12, 2018 accident and, unlike the subject accident, complained of headaches and recounted that he struck his head on the headrest during the subsequent collision.

13I see no basis for which Dr. V. S. Basile, neurologist, to diagnose the Applicant with post-concussion syndrome as a result of the accident. Dr. Basile assessed the Applicant via videoconference and issued a report dated December 18, 2020. In that report, Dr. Basile diagnosed the Applicant with post-concussive syndrome, post-traumatic headaches, ongoing vertigo, soft-tissue injuries to his neck and back, and likely converted to a chronic pain syndrome. These conclusions contradict Dr. Basile’s assessment of the Applicant, which noted mild tenderness on palpation of the neck and low back, but an otherwise normal assessment. Further, there is no indication that Dr. Basile reviewed any of the Applicant’s medical records as part of the assessment. Thus, Dr. Basile relied entirely on the Applicant’s self-reported account of his medical history and neglected to appreciate the lack of evidence that the Applicant sustained a concussion in the subject accident and ignored evidence that the Applicant struck his head in the subsequent accident on November 12, 2018.

14While the Applicant claims he sustained a concussion as a result of the accident, there is no compelling evidence to support this claim. Any ongoing concussion-related symptoms are likely related to the accident on November 12, 2018, when the applicant reported that he struck his head, and thus unrelated to the subject accident.

The Applicant sustained no accident-related psychological injury

15The Applicant has a medical history significant for minor anxiety and there is no evidence that the accident increased or caused any different psychological symptoms that would constitute a psychological injury.

16Dr. Basta’s clinical notes and records indicate that the Applicant’s anxiety remained the same following the accident. During the visit on August 25, 2018, Dr. Basta noted that the Applicant’s anxiety was “ongoing” and that he was having trouble finding a therapist. This suggests that the Applicant’s anxiety symptoms pre-date the subject accident in that he had already addressed them with Dr. Basta and was in the process of seeking a therapist. Further notations of anxiety in these records are related to changes in employment, relationship issues, and include no discussion about the subject accident nor common accident-related psychological issues such as driving phobia.

17I agree with the conclusion of Dr. S. MacKay, psychologist, in the IE report dated February 22, 2019. Dr. MacKay assessed the Applicant through a clinical interview, psychometric testing, and a document review. Dr. MacKay concluded that the Applicant sustained no accident-related psychological impairment and is coping considerably well. The report notes that the Applicant experiences anxiety symptoms such as panic attacks, mostly within the work setting, and never while driving or in vehicles. Objective testing was conducted for the assessment, but the Applicant produced an invalid profile through inconsistent responses to similar content. I find Dr. MacKay’s report and conclusion to be consistent with the balance of the Applicant’s medical record and find no reason to discount the opinion.

18The psychological assessment report by Dr. J. Brunshaw, dated April 2, 2020 attributes the Applicant’s psychological presentation to the November 12, 2018 accident. Dr. Brunshaw’s report notes that the Applicant reported that he was in good health prior to the November 2018 accident and concludes that he suffers from an adjustment disorder with mixed anxiety and depressed mood as a result of the November 2018 accident. Contrary to the Applicant’s submissions, I am unable to infer from Dr. Brunshaw’s report that the subject accident caused the Applicant to experience increased anxiety or exacerbated his pre-existing symptoms. Instead, I prefer the opinion of Dr. MacKay. Dr. MacKay reviewed Dr. Brunshaw’s report and issued a paper review addendum dated March 31, 2021. Despite the additional information, Dr. MacKay maintained that the Applicant sustained no accident-related psychological symptoms or impairment. From these reports, I conclude that the Applicant sustained no measurable psychological injury as a result of the subject accident.

The Applicant does not suffer from accident-related chronic pain

19I find that the Applicant has not demonstrated a functional impairment as a result of ongoing pain, nor does he meet the criteria for a chronic pain condition as outlined by the American Medical Association. As a result, I conclude that he does not suffer from accident-related chronic pain.

20The treatment records from Downsview Healthcare Inc. fail to indicate that the Applicant suffers from chronic pain. The treatment records end as of November 13, 2018, about 3 months post-accident and note some ongoing complaints of neck and back pain. Contrary to the Applicant’s submissions, there is no indication in these records that the Applicant suffers from an ongoing functional impairment as a result of pain. Further, the timing of the records is consistent with a minor injury, as treatment under the MIG is expected to take place over a course of 4 to 12 weeks.

21The report by Dr. Basile, dated December 18, 2020 is uncompelling evidence of a chronic pain condition as a result of the subject accident. As noted previously, Dr. Basile’s assessment and report included no physical examination of the Applicant and no review of any medical records. Dr. Basile’s assessment of the Applicant was generally normal. The report included no mention of the subsequent accidents that the Applicant was involved in, but Dr. Basile nevertheless diagnosed the Applicant with a concussion as a result of the subject accident. Dr. Basile’s opinion on a concussion is contrary to the physicians who examined the Applicant on the day of the accident and a week after. Considering the issues with Dr. Basile’s report, I give no weight to the diagnosis that the Applicant “likely converted to a chronic pain syndrome with central sensitization.”

22The report of Dr. G. Karmy, chronic pain physician, dated March 10, 2020, attributes the Applicant’s presentation to the November 12, 2018 accident. The report acknowledges the August 17, 2018 accident, but states that the Applicant denied having any difficulties with performing his usual activities of normal life prior to the November 12, 2018 accident. Given this, I find Dr. Karmy’s report to be uncompelling evidence that the Applicant suffers from chronic pain as a result of the August 17, 2018 accident.

23The Applicant does not meet the criteria in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition. While he is not required to demonstrate that he meets the criteria, it is often used by the Tribunal as a tool to help determine whether a person suffers from a chronic pain condition. Here, the Applicant does not meet any of the criteria: there is no evidence demonstrating that the Applicant is abusing drugs or using prescription drugs beyond the recommended duration, there is no evidence that the Applicant failed to restore his pre-injury function or that he has physically deconditioned due to disuse and/or fear-avoidance of physical activity due to pain, he returned to work on a full-time basis and was hired for a new position following the accident, and his anxiety pre-dated the accident and there is no evidence it was exacerbated as a result of the accident.

24The Applicant has not demonstrated that he suffers from a functional impairment due to pain. As noted, the Applicant returned to work on a full-time basis and was also able to find new employment following the accident. The Applicant remains independent with his activities of daily living and self care. Though the Applicant reports a reduced ability to complete his household chores, this one complaint does not rise to the level to find that the Applicant suffers from an ongoing functional impairment due to pain.

25Considering the functionality exhibited in the evidence, I find that the Applicant does not suffer from a chronic pain condition which would constitute an injury that is not included in the minor injury definition in section 3 of the Schedule.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS AND INTEREST

26Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

27Likewise, interest is only payable on the overdue payment of benefits pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to the disputed treatment and assessment plans, it follows that no payments are overdue and thus, no interest is payable.

AWARD

28Pursuant to section 10 of Reg. 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit.

29Having agreed with the Respondent and concluded that the Applicant sustained a minor injury and is not entitled to the benefits claimed, it follows that no benefits were unreasonably withheld or delayed. Thus, the Applicant is not entitled to an award.

CONCLUSION

30I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule.

31He is not entitled to the remaining treatment and assessment plans in dispute because they proposed goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

32No award or interest is payable because the Respondent never unreasonably withheld or delayed the payment of benefits.