Davis v. Aviva Insurance Company, 2023 CanLII 40115

Citation: Davis v. Aviva Insurance Company, 2023 ONLAT 20-007488/AABS

Licence Appeal Tribunal File Number: 20-007488/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:

Myles Davis

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel Francesco Vumbaca, Student-at-Law

For the Respondent: April C. Snow, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Myles Davis (the “applicant”) was involved in a motor vehicle accident on July 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (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 he suffers from chronic pain, a condition that is not minor as defined by the Schedule, and that he is therefore entitled to treatment outside of the Minor Injury Guideline (“MIG”). He further claims entitlement to nine treatment plans plus interest and an award alleging that the respondent unreasonably withheld benefits. (The issue listed as #3 (ii) in the Case Conference Report and Order (“CCRO”) dated January 11, 2021 that originally set this matter down for a hearing was withdrawn by the applicant in his submissions, as it was found to be duplicate of another issue. I have accordingly omitted it here.)

3The respondent counters that the applicant sustained minor injuries in the accident that are treatable within the MIG. As a result, Aviva submits that the applicant is not entitled to the treatment plans in dispute. If the applicant is found to warrant treatment outside of the MIG, the respondent argues that the treatment plans in dispute have not been demonstrated to be reasonable and necessary. As Aviva holds that no benefits are due, it also denies that interest is applicable and that it is not liable to pay an award.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Are the applicant’s 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 medical benefits in the amount of $213.56 ($1,313.10 less $1,099.54 approved) for physiotherapy treatment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on September 21, 2018? (NOTE: The amount in dispute here and the approved portion have been adjusted from the CCRO, which listed the total of this plan along with a notation about an unspecified amount that had been deemed payable. These amounts have been sourced from the submitted OCF-18 form and an explanation-of-benefits letter from Aviva dated September 24, 2018.)

3. Is the applicant entitled to medical benefits in the amount of $1,619.00 for physiotherapy treatment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on September 24, 2018?

4. Is the applicant entitled to medical benefits in the amount of $1,465.10 for physiotherapy treatment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on December 15, 2018?

5. Is the applicant entitled to medical benefits in the amount of $1,254.25 for physiotherapy treatment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on February 22, 2019?

6. Is the applicant entitled to a cost of examination in the amount of $1,340.20 for a functional impairment assessment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on December 21, 2018?

7. Is the applicant entitled to medical benefits in the amount of $12,986.56 for a chronic pain program recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on July 11, 2019?

8. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on March 19, 2019?

9. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 submitted on February 20, 2020?

10. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for an orthopaedic assessment recommended by Dr. Michael West in a treatment plan/OCF-18 submitted on September 10, 2020?

11. 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?

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

RESULT

5I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as he has not demonstrated that he suffers from injuries that are outside of the MIG definition of a minor injury.

ii. The applicant is not entitled to the treatment plans in dispute, as he remains within the MIG. Interest is not applicable as no benefits are overdue.

iii. The respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6Section 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.”

7An 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. The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.

8Here, the applicant confirms in submissions that the full $3,500.00 limit of the MIG has been exhausted. As a result, the applicant’s entitlement to the treatment plans is dependent on a finding that he warrants treatment outside of the MIG.

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

9I find that the applicant has failed to meet his burden and demonstrate on a balance of probabilities that he suffers from non-minor injuries that would warrant removal from the MIG.

10The applicant claims to have sustained chronic pain with a functional impairment as a result of the accident. He relies on two Disability Certificates/OCF-3s, dated July 31, 2018 and December 19, 2018, each of which indicate that he suffered from accident-related injuries and impairments including: cervical spine sprain/strain; lumbar spine sprain/strain; wrist and hand sprain/strain; forearm injury of muscle and tendon; lower leg injury of muscle and tendon; shoulder girdle sprain/strain; and pain in other unspecified sites. Both OCF-3s also note that the applicant suffered from a substantial inability to perform housekeeping and home maintenance tasks that he normally did before the accident.

11Further, the applicant relies on the following medical evidence in support of his claim of chronic pain warranting removal from the MIG:

1. clinical notes and records (“CNRs”) from the emergency room at Lakeridge Health in Oshawa, where the applicant was treated following the accident on July 1, 2018;

2. a CNR from Dr. Rozina Dholasania, family physician, dated December 4, 2020;

3. Toronto Healthcare Inc. treatment records from July 25, 2018 to January 21, 2020, where the applicant attended for physiotherapy treatment and assessments;

4. a chronic pain assessment report written by Dr. Howard Jacobs, general practitioner, of the Jacobs Pain Centre, dated May 9, 2019; and

5. the treatment plans/OCF-18s in dispute.

12Aviva argues that the applicant has submitted minimal medical evidence to support a claim of chronic pain and a functional impairment. The respondent relies on an insurer’s examination (“IE”) musculoskeletal report written by Dr. Christopher Aldridge, family practitioner, dated April 3, 2019, and a paper review authored by the same physician dated April 11, 2019.

13I am not convinced that the applicant’s medical evidence demonstrates that he suffers from injuries that entitle him to treatment outside of the MIG. Much of it points to the applicant sustaining soft-tissue injuries in the accident, all of which are in the definition of a minor injury in the Schedule. CNRs from the emergency room on the day of the accident show that the applicant attended with a report of wrist pain, and that x-rays taken at the time revealed no presence of a fracture. The applicant visited his family physician, Dr. Dholasania, just once with concerns about the accident, and this appointment took place on December 4, 2020, almost two-and-a-half years after the accident on July 1, 2018. X-rays ordered by Dr. Dholasania at this time were unremarkable, showing only “mild, multilevel degenerative changes within the thoracic spine.” The applicant claims in submissions that this degeneration is evidence of functional impairment, but there is no medical support for this assertion or to show that this condition is connected to the accident.

14There is no direct medical evidence to support the applicant’s claims to a non-minor injury that would warrant treatment outside of the MIG. If anything, the CNRs speak more to the applicant sustaining a minor injury, as he sought medical attention for his accident outside of a physical therapy setting just twice (a claim of attending a walk-in clinic soon after the accident is also made in the applicant’s comments to Dr. Jacobs recounted in the chronic pain report, but this is not substantiated in submissions) in well over two years. There is also no indication in the family physician’s record that the applicant was prescribed any medication for pain relief, or that the applicant took over-the-counter medication to that same end. Dr. Dholasania notes a recommendation of “nsaids” in her appointment record from December 4, 2020, but that is the only mention of medication in the submitted evidence. No prescription drug summary has been produced by the applicant. And the applicant told Dr. Jacobs during the May 8, 2019 chronic pain examination that he was taking no medications on a regular basis. In all, I view this evidence as speaking solely to soft-tissue accident injuries treatable within the MIG.

15Records from Toronto Healthcare Inc. are also of minimal value in demonstrating a non-minor injury or the presence of chronic pain and functional impairment. They show that the applicant attended more than 30 sessions of physical therapy between July 25, 2018 and March 27, 2019, and then returned for one more “reevaluation” session on January 21, 2020. But without supporting medical evidence, this is not sufficient to show that the applicant suffered from a chronic pain condition with a functional impairment as a result of the accident. As the Tribunal has long held, treatment records—like treatment plans/OCF-18s—are not enough in and of themselves to prove entitlement to benefits. In addition, most of these records are hand-written and very difficult to read, so it is challenging to make much of them other than that they record an extensive amount of regular physical therapy treatment.

16I assign little weight to the applicant’s attempt to link this regimen of physical therapy to the diagnosis of chronic pain. Dr. Jacobs checks a box on one of the first pages in the Toronto Healthcare Inc. records to indicate that the treatment is to address chronic pain. But this page is dated May 8, 2019 and his chronic pain report is dated May 9, 2019—some six weeks after the applicant stopped regular physical therapy on March 27, 2019. I cannot retroactively apply this rationale to this treatment.

17Even if the chronic pain diagnosis came as a result of issues reported during physical therapy, it would seem natural to expect that this would result in more treatment following the diagnosis. In the applicant’s reply submissions, he claims that cost was the main factor behind the cessation of physical therapy, which is understandable. But this justification does not explain why the applicant did not seek a medical follow-up after the chronic pain diagnosis. Instead, he seems to seek no treatment at all and does not visit Dr. Dholasania (for the first time in regard to accident-related injuries) for another 10 months. This behaviour makes it impossible for me to determine that the applicant was suffering from chronic pain and a functional impairment, as such serious issues would necessitate treatment or medical analysis that he did not undertake.

18Along the same lines, I assign limited weight to the chronic pain report of Dr. Jacobs as it seems overly reliant on the self-reporting of the applicant. Dr. Jacobs appears to base his diagnosis that the applicant suffered from chronic pain largely on the applicant’s complaints of neck, low back, and right wrist pain, as this is not borne out in his examination of the applicant. That examination revealed no neurological abnormalities, mild back tenderness and pain on palpation, and full range of motion in the applicant’s neck with the exception of some discomfort bending to the right. Yet Dr. Jacobs still concluded that the applicant was suffering from chronic pain, recommended that the applicant required treatment outside of the MIG, and found that treatment plans dated September 20, 2018, October 27, 2018, December 12, 2018, and February 20, 2019 were reasonable and necessary. This contradiction makes me doubt Dr. Jacobs’ report.

19In addition, Dr. Jacobs’ assessment is brief to the point of being insubstantial and lacking in vital data. He did not review all of the medical evidence on file at the time, including the hospital report and the unremarkable x-rays. The physician confined his review of documents to the second OCF-3 issued on December 19, 2018 and the five treatment plans noted above. Dr. Jacobs also did not diagnose the applicant with a functional impairment. The applicant claims in submissions that impairment is implied here, as the applicant told Dr. Jacobs that he had moved to a new, less physical occupation as a result of the accident (but was still working full time) and that he was no longer playing basketball to the same extent as he did before the accident. But this is not, in my estimation, proof of a functional impairment, as both accounts rely entirely on the account of the applicant. Even if I were to take this at face value, experiencing some discomfort while still working on a full-time basis and not playing as much basketball as before the accident do not, in my view, equate to proof of chronic pain and a functional impairment that would warrant treatment outside of the MIG.

20I prefer the submissions of the respondent. While the onus is on the applicant, the IE report and paper review of Dr. Aldridge are more thorough than that of Dr. Jacobs. Dr. Aldridge reviewed all medical documentation on file at the time of his report, including the Application for Accident Benefits/OCF-1, both OCF-3s, seven treatment plans, and the applicant’s decoded OHIP summary. Dr. Aldridge’s interview with the applicant was much more far-reaching than that of Dr. Jacobs, eliciting information over some 16 pages about the applicant’s car accident history; old sports injuries; living situation; employment situation pre- and post-accident; subject accident; physical therapy treatment; injury symptoms with self-reported pain ratings; and physical examination details. Dr. Aldridge concluded that the applicant sustained uncomplicated soft-tissue sprain/strain injuries of the cervical spine, shoulder girdle, left wrist, and lumbosacral spine as a result of the accident. As such, he opined that the applicant’s injuries fell within the definition of a minor injury in the Schedule.

21In addition, Dr. Aldridge reported that the applicant told him that he was physically able to perform all of his pre-accident housekeeping and home maintenance duties with no issues, and that he took just eight days off work following the accident on July 1, 2018, returning on July 9, 2018. Dr. Aldridge also recorded in his report that the applicant told him that he began working in a new occupation in approximately October 2018, and that he was employed in the same position at the time of this examination on March 22, 2019, working full-time with no accommodations for injury or impairment.

22As Dr. Aldridge’s report and following paper review (where he confirms his earlier conclusions) are the most comprehensive evidence before me, I see no reason to doubt his conclusions. I accept his finding that the applicant suffered predominantly soft-tissue injuries as a result of the accident without functional impairment, and that he should be treated within the MIG.

23Accordingly, I find that the applicant has failed to meet his onus and demonstrate that he sustained an injury that is not defined as minor by the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

24As the applicant remains within the MIG and its $3,500.00 limit on treatment, and the MIG limit has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.

Award

25As no benefits have been found to be overdue, it follows that the respondent is not liable to pay an award for the unreasonable withholding of benefits.

ORDER

26I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as he has not demonstrated that he suffers from injuries that are outside of the MIG definition of a minor injury.

ii. The applicant is not entitled to the treatment plans in dispute, as he remains within the MIG. Accordingly, interest is not applicable as no benefits are overdue.

iii. The respondent is not liable to pay an award.

27The application is dismissed.