Rochelle Nacin v. Aviva Insurance Company of Canada, 2023 CanLII 40125

Citation: Nacin v. Aviva Insurance Company of Canada, 2023 ONLAT 20-013008/AABS

Licence Appeal Tribunal File Number: 20-013008/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:

Rochelle Nacin

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Michael Presta

APPEARANCES:

For the Applicant:

Michael A. Yermus, Counsel

For the Respondent:

Riley Groskopf, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on August 21, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)¹

2The applicant was a front-seat passenger in a vehicle which was struck from behind while stopped.

3The respondent denied certain of the applicant’s claims, including a chronic pain assessment, as it had determined that the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3 (1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² As a result, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

4The issues in dispute are:

a. Whether the applicant sustained a minor injury as defined under the Schedule as a result of the accident and whether the applicant is subject to the $3,500.00 funding limit on treatment.

b. Is the applicant entitled to payment in the amount of $2,200.00 relating to the cost of an examination for chronic pain assessment in a treatment and assessment plan (“OCF-18”) dated November 5, 2020?

c. Is the applicant entitled to receive a medical benefit in the amount of $6,480.00 for chronic pain treatment as set out in a treatment plan by Oshawa Physiotherapy Clinic dated February 2, 2021?

d. Did the respondent unreasonably withhold or delay payment to the applicant thereby entitling the applicant to an award under Regulation 664?

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

RESULT

5I find that:

i. The applicant’s injuries related to the accident are predominantly minor as defined under the Schedule and therefore subject to the $3,500.00 funding limit on treatment in the MIG. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

ii. Given that the applicant’s accident related injuries are within the MIG and the $3,500 limit has been exhausted, the cost of the examination in dispute is not payable.

iii. The applicant is not entitled to a medical benefit for chronic pain as her injuries related to the accident fall under the MIG.

iv. The respondent did not unreasonably withhold or delay payment, accordingly an award under Regulation 664 is not appropriate or applicable.

v. The applicant is not entitled to any payments other than those already received, accordingly there are no payments on which interest is due.

EVIDENCE

6The applicant was taken to the hospital after the accident complaining of neck and back pain. The applicant followed up with her family doctor, Dr. Ali Ansari, after the accident on August 30, 2016, and was advised that she had suffered a back sprain and shoulder sprain³.

7The applicant did not introduce evidence relating to any further or other follow up with her family doctor, or any other doctors, related to the injuries suffered for a period of approximately 2 years after the initial visit.

8The applicant visited Dr. Ansari on December 14, 2019 regarding reports of neck and upper back pain. Dr. Ansari’s notes from this visit indicate that the applicant had begun experiencing said neck and upper back pain approximately 2 months prior thereto.

9The applicant underwent a chronic pain assessment by family medicine practitioner Dr. Nayyar Razvi on December 4, 2020, as summarized in a report issued on December 10, 2020, which included, among other diagnoses, a diagnosis of Chronic Pain Syndrome and Mood Disorder (depression)⁴.

10A chronic pain Insurer’s Examination (“IE”) followed on December 17, 2020 by Dr. Pravesh Jugnundan and the report issued on December 29, 2020 concluded that the applicant had suffered only minor injuries, as defined in the Schedule.⁵

11Dr. Jugnundan conducted a further paper review at the request of the respondent in March 2021 and did not amend the conclusion of the assessment conducted on December 17, 2020, i.e. that the applicant suffered injuries within the MIG.

ANALYSIS

The Minor Injury Guideline

12The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

13Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of a psychological impairment or chronic pain with a functional impairment.

14It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.⁶ In the current matter, the applicant has exhausted the $3,500 MIG treatment limit.

15The Tribunal has found that chronic pain syndrome may remove an injured person from the MIG, as this diagnosis is not included in the definition of “minor injury” in s. 3(1) of the Schedule.

16I find that the applicant has not met her burden of proving that her accident- related impairments require treatment beyond the MIG on the basis of either chronic pain or psychological impairment.

Chronic Pain Assessment

17In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.⁷ To do so, the applicant must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment. On the evidence, I find that the applicant has failed to satisfy that onus and, therefore, is not entitled to the proposed chronic pain assessment as she has not proven that it is reasonable or necessary.

18The applicant has submitted insufficient, and at times contradictory, evidence regarding her entitlement to benefits. The hospital records, as well as the records of the applicant’s family physician, clearly indicate that predominantly minor injuries were incurred as a result of the accident.

19The applicant submitted no evidence to illustrate a deterioration in her health or an exacerbation of her injuries at any point after her initial consultation with her family physician until September 30, 2018, more than two years after the subject accident and her initial consultation with Dr. Ansari.

20On December 14, 2019 the applicant attended at Dr. Ansari’s office complaining of neck and upper back pain which, according to Dr. Ansari’s notes, had only begun two months prior. No mention of the subject accident is contained in the clinical notes nor is this discrepancy addressed by the applicant’s submissions.

21No mention of chronic pain is contained in Dr. Ansari’s notes, nor is there any recommendation for further treatment or referral to a specialist.

22The applicant relies on medical records from the Scarborough Physiotherapy and Rehabilitation Centre from August 21, 2013-August 4, 2020.⁸ The records indicate that the last attendance by the applicant at the Scarborough Physiotherapy and Rehabilitation Centre was October 26, 2018.

23The evidentiary record, through the clinical notes of Dr. Ansari, specifically provides the source of the neck and upper back pain as beginning in or about October 2019, two months prior to the December 14, 2019 appointment, and more than three years post-accident and one year after her last attendance at the Scarborough Physiotherapy and Rehabilitation Centre.

24The respondent relies on the Tribunal decision in V.R. v. Aviva Insurance Company to establish that “the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment”.⁹

25The applicant produced no evidence regarding why a chronic pain assessment was sought or considered reasonable and necessary prior to arranging for same in 2019. The applicant has provided no evidence of any connection between the subsequent pain in 2019 and the subject accident.

26The applicant has failed to establish that there were grounds to suspect she had the condition for which she sought assessment and, therefore, is not entitled to the proposed chronic pain assessment as the applicant has not proven that it was reasonable or necessary.

Chronic Pain

27I find for chronic pain to take someone out of the MIG there must be an effect on the individual’s functionality. There is no persuasive medical evidence that the applicant’s accident-related injuries have had a detrimental impact on her functionality. More is required to establish to what extent a chronic pain condition, be it a syndrome or “chronicity of symptoms”, affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

28In analyzing the issue of chronic pain and the MIG, the applicant relied upon the reconsideration decision of T.S. v. Aviva General Insurance Canada¹⁰. In this reconsideration decision, the Executive Chair held that the definition of minor injury in the Schedule does not encompass an impairment such as chronic pain.¹¹ In response, the respondent highlighted the further description of chronic pain in T.S. v. Aviva by the Executive Chair as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being”¹²

29The respondent further submitted that the Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association Guides (AMA Guides),¹³ which state that at least three of the following criteria must be met for a diagnosis:

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

ii. Excessive dependence on health care providers, spouse or family;

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

iv. Withdrawal from social milieu, including work, recreation or other social contacts;

v. 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

vi. Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

30The applicant did not contest the AMA Guides criteria and, in fact, filed no reply submissions for the hearing.

31The Executive Chair’s comments in T.S. v. Aviva and the AMA Guides criteria can be read harmoniously and both are persuasive in determining whether or not the applicant should be removed from the MIG as a result of chronic pain. In T.S. v. Aviva, the Executive Chair’s description of chronic pain encompassed adverse affects on an individual’s well-being and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individuals functional capacity.

32Based on all of the evidence before me, and in consideration of the T.S. v. Aviva and the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside the MIG as a result of chronic pain.

Psychological Impairment

33Psychological impairments, if established, fall outside of the MIG as such impairments are not included in the prescribed definition of “minor injuries”.

34The evidence adduced by the applicant in relation to the existence of a psychological impairment (mood disorder (depression)) is minimal and, in the case of the report of Dr. Razvi, based seemingly entirely on self-assessment rather than diagnostic criteria.¹⁴

35The applicant offered no evidence of any steps taken in relation to a psychological impairment even after receipt of Dr. Razvi’s report. The applicant provided no evidence that she sought a prescription from her family doctor, a referral to a psychologist or psychiatrist, or any other form of treatment related to the psychological impairment claimed.

36I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.

37As the applicant remains in the MIG I find it unnecessary to consider the reasonableness and necessity of the disputed treatment plans as the applicant has previously exhausted the $3,500.00 MIG treatment limit.

38Additionally, as indicated on page two of the treatment plans dated November 5, 2020 and February 2, 2021, these disputed OCF-18s propose treatment outside of the MIG framework. Given that I have determined the applicant remains within the treatment limits of the MIG, no additional analysis is required.

Award

39Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to fifty percent (50%) of the amount to which the person was entitled together with interest on all amounts owing.

40As I have found that there are no payments of benefits or costs owing, there is no basis upon which to consider an award.

Interest

41As there are no benefits owing, no interest is payable pursuant to s. 51 of the Schedule

Conclusion and Order

42For the reasons outlined above, I find and order that:

i. The applicant’s injuries related to the accident are predominantly minor as defined under the Schedule and therefore subject to the $3,500 funding limit on treatment in the MIG. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500 for medical and rehabilitation benefits under the MIG has been exhausted.

ii. Given that the applicant is within the MIG and the $3,500 limit has been exhausted, the cost of the examination in dispute is not payable.

iii. The applicant is not entitled to a medical benefit for chronic pain as her injuries related to the accident fall under the MIG.

iv. The applicant is not entitled to an award under Regulation 664.

v. The applicant is not entitled to any payments other than those already received, accordingly there are no payments on which interest is due.

vi. This application is dismissed.

Released: May 4, 2023

Michael Presta

Adjudicator

Footnotes

1. 1O. Reg 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Document Brief of the Applicant – Tab 3 – Clinical Notes and Records of Dr. Ali Ansari at p. 2.
4. 4Document Brief of Applicant – Tab 4 – Report of Dr. Nayyar Razvi dated December 10, 2020 at p. 15.
5. 5Written Submissions of the Respondent – Tab 9 – Report of Dr. Pravesh Jugnundan dated December 29, 2020 at p. 6.
6. 6Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24 (Div. Ct.).
7. 7Supra note 6.
8. 8Document Brief of Applicant – Tab 5.
9. 9V.R. v. Aviva Insurance Company, 2019 CanLII 40262 (ON LAT) at para 37.
10. 102018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
11. 11Ibid. at para. 20.
12. 12Ibid. at para. 23.
13. 13American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
14. 14Supra note 4.