Nuha Abudaoud v. Aviva General Insurance Company, 2023 CanLII 58478

Citation: Abudaoud v. Aviva General Insurance Company, 2023 ONLAT 20-006608/AABS

Licence Appeal Tribunal File Number: 20-006608/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:

Nuha Abudaoud

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Ryan Turner, Counsel

For the Respondent: James Kolumbus, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nuha Abudaoud, the applicant, was involved in an automobile accident on June 7, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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 and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to $1,633.58 for Medical Services recommended by Activa Mississauga in a treatment plan (OCF-18) submitted November 14, 2018 and denied November 27, 2018?

iii. Is the applicant entitled to medical benefits recommended by LV Rehabilitation in the following OCF-18s for physical therapy:

a) $1,018.00 submitted June 24, 2019 and denied on July 8, 2019?

b) $2,135.75 submitted June 27, 2019 and denied on July 8, 2019?

iv. Is the applicant entitled to the medical benefits and cost of examinations recommended by Downsview Healthcare in the following OCF-18s:

a) $2,000.00 for a chronic pain assessment submitted September 25, 2020 and denied October 8, 2020?

b) $2,000.00 for a psychological assessment submitted September 25, 2020 and denied October 8, 2020? and

c) $3,788.42 for a psychological treatment submitted February 23, 2021 and denied on April 7, 2021?

v. 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?

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

RESULT

3The applicant has not proven their injuries fall outside the scope of the MIG. They are not entitled to any of the disputed treatment plans, interest, or a s. 10 award.

PROCEDURAL ISSUES

ANALYSIS

The applicant’s injuries are minor in nature

4Section 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.”

5An insured 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. In all cases, the burden of proof lies with the applicant.

6The applicant was involved in an accident on June 7, 2018. Four days later, she visited her primary care physician Dr. N. Awad. Her symptoms were documented as neck pain, shoulder pain, left leg and knee pain. She did not lose consciousness in the accident.

7Three days after her visit with Dr. Awad, the applicant visited the Emergency Room and was diagnosed with cholelithiasis (gallstones), a condition unrelated to the accident.

8She underwent imaging of the cervical spine and right shoulder on July 31, 2018. The imaging of the cervical spine showed no issues. The ultrasound of her right shoulder showed thickening of the subscapularis tendon and fluid in the SA/SD bursa. Both diagnoses are associated sequalae under the MIG.

9The applicant continued seeing Dr. Awad, however these visits were for unrelated conditions. Pain in the shoulders, back and neck was sporadically discussed.

10The applicant soon became pregnant after the accident and the majority of the post accident notes deal with the pregnancy.

11On December 7, 2019, almost a year and a half after the accident, the applicant presented to Dr. Awad with back pain, shoulder pain and neck pain. Dr. Awad again ordered imaging. The imaging of the cervical spine found a 4mm anterolisthesis C7 on T1.

12This injury was not present in the imaging conducted on July 31, 2018, therefore, I conclude that this injury is unrelated to the accident and does not warrant removal from the MIG.

The applicant has not been diagnosed with chronic pain syndrome

13The applicant submits that she should be removed from the MIG due to a diagnosis of chronic pain syndrome. This assertion is supported by two pieces of evidence. The first is a notation documenting an unaddressed letter of unknown purpose where Dr. Awad states: “This letter is to confirm that Nuha is pregnant 9 weeks and 4 days, her expected date of delivery is November 8, 2019. She suffers from chronic bilateral shoulders pain and is taking care of her 11 months old daughter and she will need family members to be present for support during her delivery.” It should be noted that the only reference to “chronic pain” in the clinical notes and records is in this letter. There is no reference to chronic pain or chronic pain syndrome in any of the clinical notes, only this letter. More importantly, the mention of chronic pain is not tied to the accident, which is what the applicant must prove. Dr. Awad’s letter is not sufficient evidence on its own to warrant removal from the MIG.

14The applicant was seen by Dr. D. Louvish (physician) on October 3, 2020. Dr. Louvish completed a Chronic Pain Assessment where he states, “Ms. Abudaoud appears to have developed chronic pain syndrome. As such, she requires treatment beyond the limits set by the Minor Injury Guideline.”

15The respondent counters the report of Dr. Louvish with a report by Dr. F. Loritz (physician). Dr. Loritz saw the applicant on November 9, 2020. Dr. Loritz concluded that, “The claimant developed myofascial pain symptoms as a result of soft tissue injuries sustained as a direct result of the motor vehicle accident.”

16There is a fair bit of objective evidence before the Tribunal. There have been multiple x-rays, ultrasounds and MRIs on the shoulders, neck and cervical spine. None of these have found anything abnormal which would indicate physical injuries sustained in the accident. In addition to this, the clinical notes and records of Dr. Awad, as referenced above, do not substantiate a diagnosis of chronic pain or chronic pain syndrome. Therefore, I prefer the report of Dr. Loritz and assign it greater weight than the report of Dr. Louvish, as it is more consistent with the bulk of the evidence before me.

17I conclude that the applicant has not proven on the balance of probabilities that she has been diagnosed with chronic pain as a result of the accident.

The applicant does not suffer from a psychological impairment

18The applicant submits that she should be removed from the MIG as she suffered a psychological impairment as a result of the accident. In support of this, the applicant submits the report from a psychological assessment completed by Dr. J. Brunshaw (clinical psychologist) and Ms. H. Ilios (registered psychotherapist) on October 28, 2020.

19Dr. Brunshaw diagnosed the applicant with Adjustment Disorder with Anxiety, Major Depressive Disorder, and Specific Phobia and asserts that she should be removed from the MIG as a result of this diagnosis.

20The respondent submits a report from an assessment conducted by Dr. A. Marino (clinical psychologist). Dr. Marino saw the applicant on November 11, 2020. In his report, Dr. Marino notes the following:

Results of all psychometric measures administered were considered invalid. The claimant stated through the translator that she understood all of the measures and did not have any concerns when completing the testing. At times she was also a poor historian, for example she relayed that she could not remember whether she witnessed any violence while living in Palestine or while growing up. Although some language and cultural variables may have influenced the results of the testing, given that all of the measures were considered not valid, it would be difficult to accurately formulate and communicate a psychological diagnosis at this time. She did report symptoms of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, however I cannot substantiate this diagnosis for the reasons noted above.

21Dr. Marino’s comments directly contrast with the report provided by Dr. Brunshaw. Given that there is no evidence of psychological issues in Dr. Awad’s CNRs, I cannot I give more weight to Dr. Marino’s comments of not being able to make a diagnosis.

22Dr. Marino further writes:

With respect to the two treatment plans currently under review, the first dated September 18, 2020 submitted by Grigory Kamy, recommending a chronic pain assessment for $2000; the second treatment plan dated September 24, 2020, submitted by Jacqueline Brunshaw, recommending a psychological assessment for $2000, she stated that she was unaware that either of the treatment plans were being submitted on her behalf and that she did not request any of the above assessments. When asked whether she was interested in participating in psychological treatment, she stated that she was not interested. At this time, given the significant validity issues noted above, I am unable to formulate or communicate a diagnosis and as such cannot recommend psychological related services. There also appears to be an issue with respect to informed consent, as the claimant stated that she was unaware that the two treatment plans were being submitted on her behalf. In considering all of the aforementioned, both treatment plans would not be considered reasonable at this time.

23The comments by Dr. Marino are concerning. The applicant has relied on a translator for all adjudicative events administered by the Tribunal. A translator was present during all section 44 insurer’s examinations and during the chronic pain assessment with Dr. Louvish. There is no mention of a translator present at Dr. Brunshaw’s assessment. A translator would be crucial at an assessment which relies on the applicant to self report her symptoms and story. There is also no mention in the clinical notes and records of Dr. Awad that psychological issues were raised, which is directly at odds with a diagnosis of major depression. In fact, the applicant stated to Dr. Marino that she does not want psychological treatment.

24Given these reasons, the applicant has not proven that she suffers from a psychological impairment that would warrant removal from the minor injury guideline.

The applicant is not entitled to the disputed treatment plans or interest

25As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

The applicant is not entitled to an award under S.10

26Section 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 50 per cent of the amount in which the person was entitled.

27As I have found in that there are no payments of benefits or costs owing, there is no basis upon which to consider an award in this matter.

ORDER

28For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries as defined under the Schedule. 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. The applicant is not entitled to an award under Regulation 664;

iii. No interest is payable; and

iv. This application is dismissed.