Caroline Jaramillo v. Aviva Insurance Canada, 2023 CanLII 4457

Citation: Jaramillo v. Aviva Insurance Canada, 2023 ONLAT 21-000138/AABS

Licence Appeal Tribunal File Number: 21-000138/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:

Caroline Jaramillo

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Daniela Algieri-Boileau, Counsel

For the Respondent: Christopher K. Lamm, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Caroline Jaramillo (the “applicant”) was involved in an automobile accident on January 29, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Aviva Insurance Canada (“the respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are agreed to be in dispute:

1. Are the applicant’s injuries predominantly minor as defined in the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?
2. Is the applicant entitled to $2,642.40 for physiotherapy services in a treatment plan/OCF-18 (“plan”) proposed by Nadir Mawji, physiotherapist, dated March 8, 2018?
3. Is the applicant entitled to $2,010.65 for a functional evaluation assessment in a plan proposed by Dr. Silvia Vicente, chiropractor, of Medex Assessments, dated July 26, 2019?
4. Is the applicant entitled to $2,260.00 for an orthopaedic assessment in a plan proposed by Dr. Joseph Kwok dated July 26, 2019?
5. Is the applicant entitled to $2,260.00 for a psychological assessment in a plan proposed by Dr. Silvia Tenenbaum, psychologist, dated July 26, 2019?
6. Is the applicant entitled to $2,260.00 for a driver’s road evaluation and integration assessment in a plan proposed by Dr. Silvia Tenenbaum, psychologist, dated July 26, 2019?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the treatment plans in dispute are not payable.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

BACKGROUND

4The applicant was the driver of a vehicle that was struck from behind at the intersection of Bathurst St. South and Bloor St. in Toronto on January 29, 2017. Emergency services attended the scene of the accident, although the applicant did not attend the hospital at this time. After an initial chiropractic assessment on February 7, 2017 diagnosed the applicant with post-concussive syndrome and various sprains and strains, she began physical therapy treatment that continued from this point until 2019. She also received recommendations for physical and psychological assessments in 2019 that are the subject of four of the treatment plans in dispute.

5The applicant claims that she sustained back injuries in the accident that have resulted in a condition of chronic pain, along with psychological impairments. She submits that she should be removed from the MIG and its $3,500.00 funding limit, as both chronic pain and psychological impairments are outside of the definition for minor injuries in s. 3 of the Schedule. She further submits that the treatment plans in dispute are reasonable and necessary, and that interest is owing on these plans pursuant to s. 51 of the Schedule.

6The respondent takes the position that the applicant’s injuries are minor and that the MIG applies. Furthermore, the respondent submits that the applicant has not provided sufficient medical evidence to prove her claim of a chronic pain condition. The respondent also argues that even if the applicant is found to have sustained non-minor injuries, she has not met her burden of proving that the treatment plans in dispute are reasonable and necessary. As the respondent denies that any benefits are overdue, it holds the opinion that no interest is owed.

ANALYSIS

The Minor Injury Guideline

7The 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 also defined in the Schedule.

8Section 18(1) of the Schedule limits the funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that they had a pre-existing condition, documented by a medical practitioner, before the accident which prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or psychological impairment.

9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.²

10In the current matter, the applicant has exhausted the $3,500.00 MIG treatment limit.

Chronic Pain and the MIG

11I am not persuaded that the applicant has presented enough evidence to establish that she suffered an accident-related condition of chronic pain that would warrant removal from the MIG.

12Most notably, there are significant omissions and gaps in the applicant’s medical evidence regarding treatment of the physical injuries that she claims to have sustained in the subject accident.

13The applicant initially relies on an assessment by Dr. Sean Kerr, chiropractor, dated February 7, 2017,³ that diagnosed back sprains and strains, minimal degenerative disc disease, and post-concussive syndrome, but I assign this little weight as it was not completed by a medical expert qualified to assess head trauma. There is also no evidence of any diagnostic imaging conducted at this time to further investigate a possible concussion and the noted symptoms of “headaches and nausea” and “cognitive disturbances including decreased concentration and memory recall.”⁴ Cervical spine x-rays were conducted on June 14, 2017, but the results did not indicate a non-minor injury, as defined in the Schedule.⁵

14There is no evidence of other medical treatment contemporaneous with the accident, which I also find is not supportive of the applicant’s claim to a chronic pain condition. She did not visit her family doctor, Dr. Trudy Chernin, with regard to accident-related injuries until September 8, 2017, and the primary focus of this visit was a pre-natal care assessment.⁶ Dr. Chernin notes that the applicant was experiencing pain as a result of the subject accident the preceding January, and would benefit from physiotherapy, massage therapy, and acupuncture. She does not diagnose the applicant with a non-minor injury, as defined in the Schedule.

15Virtually all of the applicant’s visits to her family physicians⁷ in 2017 and 2018 involved pre-natal and post-natal care, and were not related to seeking treatment for injuries claimed in the subject accident. Clinical notes and records of both Dr. Chernin and Dr. Erika Frasca focus almost entirely on her pregnancy, including back and leg pain as a result of sciatica experienced because of her pregnancy. Dr. Chernin’s recommendation of physiotherapy on October 11, 2017, for example, is due to “L sided sciatica in pregnant woman.”⁸

16The applicant does not complain again to her family physician of back pain as a result of the subject accident until September 20, 2018.⁹ An MRI ordered by Dr. Chernin at this time and conducted on October 14, 2018 revealed minor disc protrusions without significant nerve compression, an injury that could be regarded as minor in nature, as defined by the Schedule.¹⁰

17The applicant does not present any medical evidence to support a diagnosis of chronic pain. This argument seems to be completely based on the brief notations of the family physicians that the applicant self-reported back pain. Pain symptoms, however, are not analogous with a chronic pain condition. And there is also an open question of causation, given how her family doctor at one point recommended physiotherapy due to sciatic pain resulting from the applicant’s pregnancy, not pain resulting from the subject accident.

18Additionally, the applicant does not present any examination reports directly addressing and diagnosing a chronic pain condition. All of the applicant’s medical evidence consists of the CNRs and diagnostic imaging reports already noted, along with the treatment plans in dispute, and a Disability Certificate (“OCF-3”) dated August 26, 2018 with diagnoses of soft-tissue injuries.¹¹

19I assign the most weight to the only comprehensive physical medical report before me, an insurer examination (“IE”) conducted by Dr. James Han Choi, general practitioner, that resulted in a report dated July 25, 2017.¹² Dr. Choi diagnoses the applicant with “minor soft tissue injuries, specifically cervical strain, shoulder strain (resolved), lumbar strain, migraine-type headaches and exacerbation of pre-existing vertigo.”¹³ He adds that any exacerbation of the applicant’s pre-existing vertigo would not prevent the applicant from achieving maximal recovery, even if treated within the $3,500.00 funding limit of the MIG.¹⁴ Dr. Choi further reports the applicant to display a normal range of motion, that he observed no signs of neurological impairment, or any other impairment that is not a minor injury as defined in the Schedule.

20Dr. Choi does not consider chronic pain in his report, but I do not consider this to be of much relevance when weighing the significance of his conclusions. I also infer that he did not suspect chronic pain as a possible diagnosis, given his lack of referral to the condition in his report, which is otherwise comprehensive.

21Based on a preponderance of the evidence, I find that the applicant has not established that she suffers from chronic pain that would warrant her removal from the MIG and its $3,500.00 funding limit on treatment.

Psychological Impairment and the MIG

22I am not persuaded that the applicant has presented sufficient evidence to establish that she suffered an accident-related psychological impairment that would warrant removal from the MIG.

23The applicant has presented virtually no evidence demonstrating an accident-related psychological impairment. She has not submitted any expert psychological reports. The only evidence regarding a psychological impairment is provided by the psychological treatment and driver evaluation and integration plans in dispute, submitted by Dr. Silvia Tenenbaum, dated July 26, 2019,¹⁵ and notes dated February 7, 2020 in the family doctor CNRs about anxiety that includes a recommendation for cognitive-behavioural therapy.¹⁶ The latter may be more related to the applicant’s recent pregnancy than the accident, however, as the comment about “worsening anxiety” in the CNRs includes a notation “r/t ? hormonal changes.”¹⁷

24I prefer the medical evidence of the respondent, submitted in a report by Dr. Arnold H. Rubenstein, psychologist, dated July 25, 2017.¹⁸ This is the only expert report tendered in evidence with regard to psychological matters. Dr. Rubenstein repeatedly cites his opinion that the applicant’s “mental status is clear,” and he does not diagnose the applicant with any mental disorders according to the Diagnostic and Statistical Manual of Mental Disorders (“DSM IV”).¹⁹

25Based on a preponderance of the evidence, I find that the applicant has not established that she suffers from a psychological impairment that would warrant her removal from the MIG and its $3,500.00 funding limit on treatment.

The Treatment Plans

26Given that the $3,500.00 MIG treatment limit has been exhausted, no additional analysis is required to determine if the treatment plans in dispute are reasonable and necessary.

Interest

27Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

28I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the treatment plans in dispute are not payable.

iii. Given that there are no benefits owing, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

29The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant Submissions, Tab 13 (CNRs, New Wave Health Centre).
4. 4Ibid. page 220.
5. 5Ibid. pages 237-262 (Toronto Central Diagnostics Cervical Spinal X-Ray Report, June 14, 2017).
6. 6Ibid. Tab 15 (CNRs of Dr. Chernin and Dr. Frasca).
7. 7The applicant saw two family doctors followed the subject accident, Dr. Chernin and Dr. Frasca.
8. 8Ibid. Tab 15, page 293.
9. 9Ibid. page 309.
10. 10Ibid. Tab 16 (MRI Lumbar Spine Report, October 14, 2018).
11. 11Ibid. Tab 14 (The Clinic OCF-3, August 26, 2018).
12. 12Respondent Submissions, Tab 1 (Multidisciplinary Report of Dr. James Han Choi, general practitioner, and Dr. Arnold H. Rubenstein, psychologist, July 25, 2017).
13. 13Ibid. Tab 1, page 9.
14. 14Ibid.
15. 15Applicant Submissions, Tabs 8 and 9 (OCF-18s of Dr. Silvia Tenenbaum, July 26, 2019).
16. 16Ibid. Tab 15, page. 329ff. (CNRs of Dr. Chernin and Dr. Frasca).
17. 17Ibid.
18. 18Respondent Submissions, Tab 1 (Multidisciplinary Report of Dr. James Han Choi, general practitioner, and Dr. Arnold H. Rubenstein, psychologist, July 25, 2017).
19. 19Ibid. Tab 1, page 14.