Citation: Shewchuk v. Aviva General Insurance, 2023 ONLAT 21-000677/AABS

Licence Appeal Tribunal File Number: 21-000677/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:

Patricia Shewchuk

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Dominique Setton

APPEARANCES:

For the Applicant:

Patricia Shewchuk, Applicant

Farid Mahdi, Counsel

For the Respondent:

Aviva General Insurance,

Kristopher B. Angle, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Patricia Shewchuk, the applicant, was involved in an automobile accident on October 22, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in the Minor Injury Guideline?

ii. Is the applicant entitled to a medical benefit for $2,935.56 for chiropractic services recommended by Heartland Wellness Clinic in a treatment plan submitted August 15, 2019, and denied August 20, 2019?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant’s injuries are predominantly minor as defined by the Minor Injury Guideline.

4I find the treatment plan at issue is not payable as the applicant’s injuries are predominantly minor as defined by the Minor Injury Guideline and it is therefore not reasonable and necessary.

5I find that the respondent is not liable to pay an award under s. 10 of Regulation 664, because the respondent has not unreasonably withheld or delayed payments to the applicant.

6I find that the applicant is not entitled to interest on any overdue payment of benefits, because I find there are no overdue payments to be made to the applicant.

7The application is dismissed.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined in the Minor Injury Guideline?

8The applicant did not meet her onus to establish that removal from the MIG is warranted. I find that the applicant’s injuries are predominantly minor as defined by s. 3 of the Schedule and are therefore subject to treatment within the $3,500.00 limit and are within the Minor Injury Guideline (MIG).

9Section 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.”

10An 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.

11The applicant consulted her family doctor, Dr. Cheryl Green, on October 24, 2018, which was two days after the accident. She told her doctor that she suffered from soreness in her chest, and back and neck stiffness. Her doctor noted tenderness, but no contusions, and concluded “all soft tissue” in her diagnosis contained in the clinical notes of that day provided in evidence.

12The applicant argues that she should be removed from the MIG due to s. 18(2) because she has a pre-existing condition consisting of chronic lower back pain and osteoarthritis of the left knee which would prevent her from attaining maximal recovery within the MIG.

13The applicant provided evidence that she had been in a previous motor vehicle accident on September 26, 2014. She submits that she suffered her lower back injury in this accident, which qualifies as a pre-existing condition. The applicant submits that following the accident she consulted Dr. Green on October 7, 2014.

14On that date, her family doctor diagnosed a “sprain, and strain of thoracic spine, sprain and strain of lumbar spine, and strain of right hip, sprain and strain of the right elbow, fatigue, headaches and other sleep disorders.” The applicant was treated by Mississauga Active Physiotherapy Services thereafter. She told her doctor that the treatment she was receiving was helping her. I conclude that even though she was in a previous motor vehicle accident, the evidence shows that the applicant suffered only minor injuries as defined by the Schedule as a result of the previous accident and that those sprain and strain injuries were adequately treated because she reported that treatment was helping.

15The applicant argues that her pain was persistent because she returned to her doctor on August 17, 2016, two years later. At that time, she again had lower back pain, which she claims was related to the 2014 accident. As the applicant had not brought forward a complaint to her doctor during the two intervening years with respect to this accident, I do not find this to be compelling evidence of a persistent or chronic pain condition. It was not shown that these complaints were caused by the previous accident, or even related.

16The applicant further argues that the applicant’s “pre-existing condition” was brought forward again in August 2018 because she continued to suffer from lower back pain, as she went back to her family doctor who evaluated her and found her to have chronic pain. There was no evidence provided that linked this chronic pain to the previous motor vehicle accident, or to a pre-existing condition.

17The applicant’s family doctor found her to be “grossly normal” on November 28, 2019. While the applicant may have reported lingering pain in the years following her 2014 accident, I find no compelling medical indication in the evidence that this pain is such that it would prevent her maximal recovery from the subject accident if she is kept within the MIG, as required by s. 18(2).

18The respondent submits the applicant did not seek immediate medical attention but did consult with her Dr. Green on October 24, 2018. At that time, she complained of neck, shoulder, chest and back soreness, which the doctor assessed as “soft tissue injuries”.

19The respondent submitted that the applicant’s family doctor, in November 2018, found her to be “grossly” normal and referred her to a weight specialist due to obesity and her complaints of lower back pain. I agree with the respondent and find that this undermines the applicant’s s. 18(2) arguments. I find that it does not demonstrate that removal from the MIG is warranted due to a pre-existing condition, and the applicant has failed to show that she should be removed from the MIG.

20The applicant did request a doctor’s note from Dr. Green for a three-month absence from work which Dr. Green refused to provide, because she said she was not “comfortable with that.” In Dr. Green’s records, she mentions that the paralegal whom the applicant works with recommended that “she takes time off from work” which explains why the doctor would not feel comfortable with the request and refused to provide it. I draw a negative inference regarding the validity of the applicant’s reason for wanting to take time off work. Although she told her doctor the situation and was refused by her family doctor, the applicant obtained the required note from another provider, Susan P. Jones, a Registered Physiotherapist, who was not her regular family doctor, and may not have had all the information available, as was the case of her family doctor. The reason given for the disability certificate, according to this registered physiotherapist was that the applicant had “low back pain since the MVA of 2103 that was re-aggravated during the October 2018 MVA.” Considering the context of this disability certificate, which had first been requested by the applicant’s family doctor, and the notes of the family doctor, I preferred the evidence of the family doctor.

21The applicant also claims that she should be removed from the MIG because she sustained a psychological impairment. The MIG does not include psychological impairments, and as a result any psychological impairment falls outside the MIG.

22The evidence provided to support a psychological impairment is provided by the submission of a Psychological Assessment for $2,270.00 on January 17, 2019, by OCF-18 by Tier 1 Assessments. This is a request to provide a formal psychological assessment to determine the extent of her psychological impairments because of the accident. The applicant reported “low mood, lack of interest in activities once enjoyed, excessive worrying, challenges with sleep, pessimistic thinking, worry, problems concentrating, irritability and vehicular anxiety.” She was given a provisional diagnosis of adjustment disorder with Mixed Anxiety and Depressed Mood and Specific Phobias, Situational Type. The Treatment Plan was denied, but the applicant incurred $270 for the Treatment Plan and the screening. This report is the only provisional diagnosis that was provided. There is no other evidence that the applicant suffered a psychological impairment.

23The respondent submits that one OCF-18 is not enough to establish that an insured’s injuries are not predominantly minor. The respondent cites several decisions of this Tribunal, which state that an OCF-18 alone is not enough because it is not medical evidence, and that to support an OCF-18 there should be objective medical evidence. I am not bound by decisions of other adjudicators, but I agree that there should be objective medical evidence to support a psychological impairment identified in an OCF-18. The applicant has not provided evidence that she consulted her family doctor for a psychological or emotional impairment or that her family doctor supported such treatment. There is no contemporaneous reporting to support the provisional diagnosis. As a result, I find that the applicant has not provided sufficient evidence to support that she has suffered a psychological impairment that would remove her from the MIG.

24In conclusion, I find that the applicant has not provided sufficient evidence to remove her from the MIG, because the applicant was diagnosed with soft tissue injuries by her family doctor, which is consistent with s. 18(1) of the Schedule. The applicant has not provided reasons to show that that she should be removed from the MIG due to a pre-existing condition, under s. 18(2), that shows she has a documented a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG. Finally, I find she has not met her burden to demonstrate that she suffered a psychological impairment as a result of the accident warranting removal from the MIG.

Is the applicant entitled to a medical benefit for $2,935.56 for chiropractic services recommended by Heartland Wellness Clinic in a treatment plan submitted August 15, 2019, and denied August 20, 2019?

25As I have found the applicant is subject to the MIG, I find the treatment plan at issue is not payable as it is beyond the MIG and is therefore not reasonable and necessary.

Award

26The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

27As I have found that there are no benefits payable, there is no basis on which to consider an award in this matter.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits payable there is no basis to award interest.

ORDER

22For the reasons outlined above:

i. The applicant sustained minor injuries as defined by the Schedule.

ii. It is therefore not necessary to determine if the treatment plan is reasonable and necessary.

iii. There are no benefits payable, and therefore no basis to consider an award.

iv. There are no benefits payable and therefore no basis to award interest.

v. The application is dismissed.