Citation: Kukhar v. Aviva Insurance Canada, 2023 ONLAT 21-004340/AABS

Licence Appeal Tribunal File Number: 21-004340/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:

Vasyl Kukhar

Applicant

and

Aviva General Insurance

Respondent

Brett Todd

For the Applicant:

Victoria Polyakevich, Counsel

For the Respondent:

Nisaa Khan, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Vasyl Kukhar (the “applicant”) was involved in a motor vehicle accident on December 17, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) denied a claim for non-earner benefits (“NEB”), held the applicant within the Minor Injury Guideline (“MIG”), and denied four treatment plans. The applicant 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 in dispute:

Is the applicant entitled to NEB in the amount of $185.00 per week from June 17, 2019 to December 17, 2020?
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?
Is the applicant entitled to $3,757.00 for massage therapy and chiropractic services, recommended by 592 Medical in a treatment plan/OCF-18 dated December 21, 2018?
Is the applicant entitled to $3,757.00 for massage therapy and chiropractic services, recommended by 592 Medical in a treatment plan/OCF-18 dated June 4, 2019?
Is the applicant entitled to $4,121.76 for massage therapy and chiropractic services, recommended by 592 Medical in a treatment plan/OCF-18 dated October 5, 2019?
Is the applicant entitled to $2,000.00 for a chronic pain assessment, recommended by 592 Medical in a treatment plan/OCF-18 dated January 18, 2020?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

3All of the treatment plans in dispute noted above propose treatment for impairments that are not predominantly minor as referred to in the MIG. This is clearly indicated on each OCF-18 form. As a result, the applicant must be found to be outside of the MIG to be entitled to any of these plans.

RESULT

4I find that:

i. The applicant is not entitled to NEB of $185.00 per week from June 17, 2019 to December 17, 2020.

ii. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule, or that he suffers from a pre-existing condition that would preclude recovery if kept within the MIG. He remains within the MIG and its $3,500.00 limit on treatment.

iii. As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute.

iv. As there are no benefits owing, it follows that the applicant is also not entitled to interest.

ANALYSIS

Non-Earner Benefits (“NEB”)

5Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that his life circumstances have changed significantly enough to continuously prevent him from substantially engaging in the activities that he did before the accident.

7Here, the applicant submits that the accident caused him to suffer “an extreme exaggeration” of a previously diagnosed low back issue, specifically disc bulges, along with right hip pain. He claims that he has been suffering from these conditions since at least 2013 and that they were a factor in his discontinuing employment as a self-employed construction worker in 2017. At the time of the accident, the applicant was on Canada Pension Plan disability benefits. Despite these impairments, he claims that he was able to manage his pain with medication, and that this was sufficient to enable him to socialize, drive, and complete household chores before the accident. The accident, however, worsened physical symptoms and caused stress, insomnia, and other psychological problems to the point where he suffered a complete inability to carry on a normal life.

8The applicant primarily relies on a Disability Certificate/OCF-3 completed by Dr. Kathryn Monaghan, chiropractor, dated December 21, 2018; clinical notes and records (“CNRs”) of Dr. Marina Berg, family physician; his OHIP summary; records from Polyclinic Family and Specialty Medicine; and the plans in dispute.

9The respondent counters that the applicant has failed to meet the NEB test as outlined in Heath and provide any evidence that the applicant resulted in him suffering a complete inability to carry on a normal life. It relies principally on the CNRs of Dr. Berg, the records of Polyclinic, and a surveillance report completed by K. Wruck and Associates dated August 9, 2019.

Is the applicant entitled to NEB?

10I find that the applicant is not entitled to NEB of $185.00 per week for the time period from June 17, 2019 to December 17, 2020 as he has not demonstrated that he suffered from a complete inability to carry on a normal life.

11The applicant has submitted nominal evidence to establish that he meets the NEB test as required by the Schedule and as further clarified by the standard set in Heath. Most notably, he provides no comparison of his activities before and after the accident, which is a vital component to proving entitlement to NEB. Although he claims that the accident worsened pre-existing physical impairments and created new psychological issues that prevented him from taking part in “a vast majority of the activities of daily life: standing, sitting, walking, cooking, [and] grocery shopping,” none of these assertions have been supported by objective evidence beyond a few statements in the applicant’s written submissions.

12Little medical evidence has been submitted to show that the applicant suffered from the exacerbation of a pre-existing condition or anything more than soft-tissue injuries as a result of the accident. The OCF-3 featured a diagnosis of whiplash and a variety of sprains and strains, along with radiculopathy, headache, dizziness, noise effects on the inner ear, and nervousness. This form is of minimal value when considering an NEB claim, however, as it was completed just four days post-accident, some of the diagnoses are clearly beyond the expertise of a chiropractor, and it does not include any notations of functional limitations.

13While the applicant visited his family physician, Dr. Berg, on a significant number of occasions post-accident through 2019, he barely mentioned the accident and no functional limitations were ever noted—either directly connected to the subject accident or due to the accident exacerbating pre-existing conditions. Dr. Berg’s CNRs from 2014-2016 substantiate that the applicant suffered from a range of physical symptoms and pain that left him unable to work, but these conditions are never shown to have worsened as a result of the accident. They are essentially left unmentioned in the months and years after the accident.

14Virtually all of the applicant’s appointments post-accident appointments with Dr. Berg focused on unrelated health matters. Only the applicant’s visit with his family doctor on January 28, 2019 seems to have been completely related to the accident, and even here the applicant reported that his pain was resolving due to his attendance at a pain and rehab clinic. This appears to have been confirmed in the notes of an appointment on March 19, 2019, as Dr. Berg wrote that the applicant’s low back pain and right leg pain was “now improved.” There is no notation of any functional limitations or restricted activities relevant to the NEB test in any of the CNRs of Dr. Berg.

15In submissions, the applicant focuses on the records of an appointment with Dr. Berg on December 4, 2019, arguing that her notation of “walking daily” indicates that this was seen as “an achievement.” I do not accept this interpretation. Dr. Berg does not mention the accident at all, there are no comments about any sort of functional limitation, and the full line from the report reads “walking daily, on diet, lost 9kg.” To me, this indicates that the applicant was walking daily in an attempt to lose weight and improve his overall health for reasons unrelated to the accident. This inference is bolstered by the other CNRs of Dr. Berg, which show that the physician advised the applicant to modify his lifestyle and lose weight during other appointments in 2019.

16An assessment conducted by Dr. Lesley S. Corrin, neurologist, of Polyclinic Family and Specialty Medicine on April 28, 2021 (report dated May 3, 2021) revealed largely normal results with no evidence of a sensory or motor polyneuropathy. No indication was made in this report of any ongoing impairment that would satisfy the NEB test requirements. Further, this assessment seems to have been ordered as a result of foot numbness, a condition that was not connected to the accident in any of the CNRs.

17However, I am not persuaded that the K. Wruck & Associates Surveillance Report submitted by the respondent provides evidence of anything relevant to the NEB issue in dispute. While I reviewed it in the context of rendering this decision, I found that it contained nothing more than brief vignettes of the applicant and his family in the summer of 2019 that did not indicate anything significant about his ability or inability to carry out the activities of a normal life.

18For the above reasons, I find that the applicant has not met his burden and established that he suffered a complete inability to carry on a normal life. He is not entitled to NEB, nor interest.

The Minor Injury Guideline (“MIG”)

19Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

20An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

21The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he requires treatment outside of the MIG due to injuries to his lower back sustained in the accident, as well as the exacerbation of prior injuries in the accident that increased lower back pain and caused pain to radiate into his right leg. He relies on the same medical evidence described above.

22The respondent holds that the applicant has not adduced compelling evidence to support removal from the MIG. It argues that the medical evidence indicates only that he sustained minor injuries as defined by the Schedule, and that no evidence has been provided to show that prior injuries were exacerbated by the accident, or that he suffered psychological sequelae as a result of the accident.

Does the applicant warrant treatment outside of the MIG?

23I find that the applicant suffered minor injuries as a result of the accident and as a result remains within the MIG.

24As with the above analysis of the NEB claim, the applicant has not submitted sufficient evidence to establish that he warrants treatment outside of the MIG. The OCF-3 indicates only that he sustained soft-tissue injuries, all of which are covered under the MIG definition in the Schedule. While some evidence has been provided to substantiate the applicant’s claims to have been suffering from pre-existing back and hip conditions at the time of the accident, nothing has been submitted to prove that these issues were exacerbated by the accident to the point where they precluded his recovery if kept within the MIG.

25The applicant’s claims to suffer from stress, insomnia, and other psychological symptoms as a result of the accident can be found solely in the OCF-3, which was completed by a chiropractor with no claimed psychological training, and are not mentioned elsewhere in the medical records before me. There is little mention of accident-related injuries in the CNRs of Dr. Berg. And where these injuries were noted in the records of appointments on January 28, 2019 and March 19, 2019, Dr. Berg also wrote that the applicant’s pain was improving. The applicant then made no mention of the accident in his following appointments with Dr. Berg, which suggests to me that his pain and symptoms had resolved.

26In initial and reply submissions, the applicant focuses again on the “walking daily” comment from the December 4, 2019 appointment with Dr. Berg as evidence of the severity of the applicant’s injuries, and also on a criticism of the respondent’s decision not to arrange an examination of the applicant by an orthopaedic surgeon or chronic pain specialist. I am not persuaded by either argument. As already described above, the “walking daily” notation of Dr. Berg does not seem to refer to the accident. And it is the applicant’s burden to prove entitlement here, not the respondent’s burden to disprove entitlement.

27Accordingly, the applicant remains within the MIG. He has not met his burden and demonstrated that he suffered injuries in the accident that fall outside of the Schedule definition of a minor injury, nor that the accident exacerbated prior conditions to the point where it precludes his recovery if held inside the MIG.

The Treatment Plans

28As the applicant has been found to remain within the MIG, and as all the treatment plans in dispute propose treatment outside of the MIG, it follows that he is not entitled to these plans, nor interest.

ORDER

29The application is dismissed and I find that: