Rajmattie Toney v. Aviva Insurance Company of Canada, 2023 CanLII 9226

Citation: Toney v. Aviva Insurance Company of Canada, 2023 ONLAT 20-014183/AABS

Licence Appeal Tribunal File Number: 20-014183/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:

Rajmattie Toney Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Bryan Chin, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant, Rajmattie Toney (“R.T.”), was involved in an automobile accident on July 19, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2R.T. applied for medical benefits as well as an income replacement benefit (“IRB”) that were denied by Aviva because it determined that R.T.s injuries were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). R.T. disagree and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues form the basis of the dispute between the parties:

a. Are R.T.’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 MIG?

b. Is R.T. entitled to an IRB in the weekly amount of $400.00 per week from July 19, 2019 to October 19, 2019?

c. Is R.T. entitled to the medical benefits recommended by Midland Wellness Centre as follows:

i. $1,995.33 for physiotherapy services, in a treatment plan (OCF-18) dated December 1, 2018?

ii. $3,093.20 for physiotherapy services, in an OCF-18 dated November 21, 2018?

iii. $2,797.76 for physiotherapy services, in an OCF-18 dated January 12, 2019?

iv. $2,473.04 for physiotherapy services, in an OCF-18 dated March 30, 2019?

d. Is R.T. entitled to interest on any overdue payment of benefits?

RESULT

4R.T. has not demonstrated that her injuries require removal from the MIG.

5R.T. is not entitled to an IRB for the period claimed.

6R.T. is not entitled to any of the disputed benefits.

7No interest is payable.

ANALYSIS

Applicability of the MIG

8Section 18(1) of the Schedule sets out the provisions regarding medical and rehabilitation benefits being limited to $3,500.00 if an insured sustains impairments that are predominantly minor in accordance with the MIG. 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.” It is possible for an insured to be taken out of the MIG if they can establish that their accident-related injuries fall outside the MIG or, pursuant to s. 18(2), they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they remain within the confines of the MIG. The Tribunal has determined that chronic pain with functional impairment or a psychological condition may also justify removal from the MIG. In all cases, the applicant bears the burden of proof. For the reasons to follow, I find that R.T. has not met her burden.

9R.T. submits that the impairments she sustained as a result of the accident—described in the July 26, 2018 Disability Certificate (OCF-3), as whiplash associated disorder (WADII), sprains and strains of the cervical and lumbar spine and collateral ligament of knee, other chest pain, nervousness, irritability and anger, malaise and fatigue and sprain and strain of finger—warrants treatment beyond the MIG due to the effect on her activities of daily living, work, and resulting chronic pain.

10Additionally, R.T. relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Alexov, and those from Midland Wellness Centre.

11In response, Aviva argues that R.T. suffered soft tissue injuries which are captured within the definition of a minor injury under the Schedule. Aviva relies on the opinion of an insurer’s examination, dated March 25, 2021, from general physician, Dr. Kruger, who concluded that R.T. would have, “no further benefit from facility-based therapy for her accident-related minor injuries.”

Does R.T. have a pre-existing condition that removes her from the MIG?

12While R.T. submits she has a pre-existing condition that justifies removal from the MIG, I find no evidence of same. In her medical records, the only identified pre-existing condition is kidney stones, and this is not accident related. More importantly, there is no medical opinion from any of her treatment providers or from a medical practitioner that comments on any pre-existing condition being a barrier to R.T.’s recovery in order to satisfy the requirements of s. 18(2).

13For these reasons, I find that R.T. does not suffer from a documented pre-existing condition that prevents recovery if she remains within the MIG limits.

Did R.T. suffer physical injuries that require removal from the MIG?

14R.T. relies on the CNRs of family physician, Dr. Alexov, who notes in a July 21, 2018 entry, that R.T. has shoulder, neck and left knee pain and strain after the accident. Dr. Alexov noted that her range of motion was good and limited only by tightness and discomfort. Dr. Alexov diagnosed R.T. with left shoulder, neck and knee pain abrasion.

15The next accident-related entry is noted in a November 6, 2018 visit, where R.T. presents with ongoing back pain. Dr. Alexov diagnoses R.T. with mechanical back pain and advises that there is no indication of serious pathology, therefore, no imaging was ordered.

16Despite numerous visits, there is no mention of accident-related pain complaints until a July 30, 2020 entry, where R.T. presented with chronic back, shoulder and knee pain. I note that this entry also indicates that R.T. has “experienced pain in shoulders, back, and knee after the July 2018 accident and received treatment for over 12 months.” It is further indicated that, “due to the chronicity of her condition and current legal proceedings, she did not meet the physiotherapy service criteria.”

17Diagnostic imaging also did not identify any fractures or any evidence of acute thoracic trauma and was otherwise unremarkable.

18While I acknowledge that R.T. suffered injuries as a result of the accident, those injuries are captured within the definition of predominantly minor. I am not persuaded that those injuries require treatment beyond the MIG. For example, the MIG Discharge Report (OCF-24), does not provide an explanation as to why her injuries require treatment outside of the MIG. This is key, because the corroborative evidence from Dr. Alexov does not support removal from the MIG based on the CNRs. I do not find Dr. Alexov’s CNRs to be persuasive, as there is little by way of substantial pain complaints that would indicate or support that her injuries require treatment beyond the MIG. Further, Dr. Alexov’s recommendations for treatment focused on home-based exercise.

19On the evidence, R.T. has not established that her physical injuries as a result of the accident require treatment beyond the MIG.

Did R.T. suffer a psychological impairment that would require removal from the MIG?

20R.T. submits that she suffered a psychological impairment as a result of the accident. I find that she has not met her burden to demonstrate that an accident-related psychological impairment warrants removal from the MIG.

21Other than citing a previous Tribunal decision, suggest citing the case here, and submitting that, “in Sanghera Vs. Pembridge Insurance Company, the applicant’s psychological injury seems to be significant similar to the Applicant,” I was not directed to any evidence that R.T. suffered a psychological impairment as a result of the accident.

22I disagree with R.T.’s claim regarding any accident-related psychological impairment. There is no mention in Dr. Alexov’s CNRs of any psychological complaints. In the CNRs of Midland Wellness Centre she self-reported to be “scared/anxious while driving,” however, this was reported to a physiotherapist, who is unable to provide a psychological diagnosis. Despite the self-report to the physiotherapist, there was no recommendation for psychological treatment, or a referral to a specialist. Further, there is no evidence that R.T. was prescribed any medication to treat any alleged psychological symptoms.

23In response, Aviva relies on the March 19, 2021 report of Dr. Direnfeld, psychologist, who noted that R.T. did not meet the threshold for any diagnosis. In contrast to her report to the physiotherapy at Midland Wellness, R.T. reported to Dr. Direnfeld that she “doesn’t have stress,” and she did not endorse anxiety or any psychological impairments. This is in line with the lack of reporting to Dr. Alexov. Dr. Direnfeld concluded that R.T.’s temporary, situational feelings of anxiety would not be considered beyond the normal limits of a DSM-5 psychological disorder.

24Dr. Direnfeld concluded that from a psychological perspective, R.T. did not suffer any psychological impairment as a result of the accident that required treatment beyond the MIG. I agree. It is R.T.’s burden. R.T.’s submissions alone are not evidence of accident-related symptomatology, and I was not directed to any corroborating evidence or reports from a qualified medical professional that supports her claim of psychological impairment as a result of the accident.

25Therefore, I am unable to make a determination that she suffered any psychological impairment as a result of the accident that requires treatment beyond the MIG limits.

Does R.T. suffer from chronic pain as a result of the accident?

26While R.T. submits that she suffers from chronic pain as a result of the accident, I find that the evidence does not support her position. There is no evidence that she suffers from significant functional limitations as a result of chronic pain.

27While Dr. Alexov’s CNRs contain a reference to “chronic pain,” I find this notation is not sufficient to demonstrate that R.T. does in fact suffer from chronic pain. Similarly, in a July 31, 2020 report from Alice Liu, physiotherapist, chronic pain is mentioned. While, again, a physiotherapist is not qualified to be able to diagnose chronic pain or chronic pain syndrome, I also note that Ms. Liu conducted her examination via telephone, and that no in-person examination took place to be able to diagnose chronic pain. This further weakens R.T.’s claim that she suffers from chronic pain.

28While a diagnosis of chronic pain is not strictly required, in the absence of a diagnosis, the Tribunal has used the six criteria provided in the AMA Guides as an interpretive tool for evaluating chronic pain claims. Here, R.T. does not satisfy the minimum three criteria.

29For example, Dr. Alexov’s records contain no diagnosis of psychological impairment. There is no evidence of an increased, or unhealthy reliance on prescription medication. The evidence shows that she is able to engage in household tasks, albeit with some pain. R.T. also returned to full time employment after a brief period of absence in November 2018. There was no indication of any increased reliance on family or treatment providers. Further, R.T. did not direct me to any evidence that she has experienced any deconditioning as a result of fear-avoidance of physical activity, or a withdrawal from social milieu, including recreation or other social interactions. In the same vein, there is no evidence of a failure to restore her pre-accident function to the extent that her physical ability is not sufficient enough to engage in work, family or recreational activities. Lastly, there is no psychological diagnosis that would satisfy the criteria under the AMA Guides.

30Complaints of ongoing pain are not necessarily enough to establish that a chronic pain condition exists. There should be evidence of functional impairment, that impedes an applicant’s ability to engage in their pre-accident activities. The nature of chronic pain syndrome is that it is debilitating and significantly limits participation in activities. R.T.’s return to full time employment and the other elements of the six criteria that she has not satisfied, are not, in my view, an indication that she suffers from any functional limitations as a result of chronic pain.

Is R.T. entitled to an IRB for the period of July 19, 2019 to October 19, 2019?

31R.T. has not established that she suffered a substantial inability to perform the essential tasks of her employment, such that she would qualify for the IRB.

32R.T. submits she stopped working due to the injuries she suffered in the accident. Her position is that she suffers a substantial inability to perform the essential task of her employment. She further submits that she is entitled to IRBs for the three months that she was allegedly unemployed.

33Aviva submits that R.T. has not established that she suffered a substantial inability to perform the essential tasks of her employment, and further, that she is not eligible to receive IRBs for the claimed period.

34I agree with Aviva. R.T. received $857.14 in IRBs for the period of November 7, 2018 to November 21, 2018. She returned to her previous employer, Qualigem Designs Ltd., on November 22, 2018, and to date, has remained employed on a full-time basis. There is no additional evidence that she lost any additional income as a result of the accident. Aviva paid IRBs for the period of eligibility, and R.T. did not point me to any evidence that supports that she was not employed for the period of entitlement.

35The onus is on R.T. to establish that she suffered a substantial inability to perform the essential tasks of her employment. She has failed to meet her burden, and is therefore not entitled to any IRBs for the period of July 19, 2019 to October 19, 2019.

Are the treatment plans reasonable and necessary?

36Having found that R.T.’s injuries fall squarely within the confines of the MIG, an analysis of whether the treatment plans are reasonable and necessary is not required. Accordingly, as there are no outstanding payments of benefits, no interest is payable.

CONCLUSION

37R.T. has not demonstrated that her accident-related impairments require treatment beyond the MIG.

38R.T. has not established that the treatment plans are reasonable and necessary.

39R.T. is not entitled to an IRB for the claimed period.

40R.T.’s application is dismissed.