Citation: Coelho v. Aviva Insurance Canada, 2024 ONLAT 22-012754/AABS

Licence Appeal Tribunal File Number: 22-012754/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:

Victor Coelho

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Joseph Sidiropoulos, Counsel

For the Respondent:

D. Keith Smockum, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Victor Coelho, the applicant, was involved in an automobile accident on September 17, 2020, 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 Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing 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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to chiropractic services, proposed by Revive Health Centres Inc., in treatment plans/OCF-18s (“plans”) submitted in the following amounts, submitted and denied on the following dates:

a. $1,339.15, submitted October 13, 2022 and denied October 28, 2022?

b. $1,339.15, submitted June 30, 2022 and denied July 18, 2022?

c. $1,339.15, submitted April 21, 2022 and denied May 6, 2022?

d. $1,423.76, submitted November 4, 2021 and denied November 15, 2021?

e. $1,423.76, submitted July 13, 2021 and denied July 26, 2021?

f. $1,508.37, submitted April 3, 2021 and denied April 20, 2021?

g. $1,289.02, submitted January 30, 2021 and denied March 1, 2021?

h. $101.83 ($1,289.02 less $1,187.19 approved), submitted December 7, 2020 and denied December 16, 2020?

iii. Is the applicant entitled to $112.81 for a Disability Certificate (OCF-3), submitted on an Auto Insurance Standard Invoice (OCF-21) submitted November 5, 2020 and denied May 20, 2021?

iv. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Network Health Assessment & Rehabilitation Centre Inc., in a plan submitted October 21, 2020 and denied November 3, 2020?

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

RESULT

3The applicant has not proven injuries which fall outside of the MIG.

4As MIG limits have been reached, the applicant is not entitled to any of the disputed treatment plans and the application is dismissed.

ANALYSIS

The applicant’s injuries are minor in nature

5I find that the applicant’s injuries fall within the definition of the Minor Injury Guideline.

6An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG since it is not included in the definition of “minor injury”.

7In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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.

8The applicant submits that his injuries fall outside of the MIG as a result of chronic pain with a functional impairment and as a result of pre-existing injuries suffered prior to the accident.

The applicant has not suffered chronic pain with a functional impairment

9I find that the applicant does not suffer from chronic pain with a functional impairment as a result of the accident.

10The applicant submits a section 25 assessment by Dr. T. Getahun, orthopaedic surgeon, dated August 15, 2023. Dr. Getahun diagnosed the applicant with a chronic myofascial strain of the thoracic and lumbosacral spine, as a direct result of the accident.

11The respondent submits section 44 assessments from Dr. Y. K. M. Ko, physiatrist, and Dr. D. Mandel, psychologist. Dr. Ko assessed the applicant on May 27, 2021 and diagnosed the applicant with a strain/sprain injury of the thoracic and lumbar spine. Dr. Mandel notes that the applicant does not meet the full diagnostic criteria for a clinical diagnosis under the DSM-5.

12On September 17, 2020 the applicant was involved in an accident. The applicant attended St. Joseph’s Health Centre in Toronto where he was seen by Dr. D. Gagnon. Dr. Gagnon ordered an x-ray of the cervical spine. The applicant was given a doctors note during this visit excusing him from work. The note indicated a return to work on September 21, 2020 with regular duties.

13Dr. M. Fruitman, radiologist, noted on the September 28, 2020 cervical spine x-rays that the applicant has normal alignment in his cervical spine and that there is no evidence of a fracture present on the x-rays.

14The applicant first saw his family physician, Dr. A. Freydoonnejad, on September 28, 2020 where he reported that he had back and neck pain, and was seeing a chiropractor, which was helping.

15On October 5, 2020 the applicant reported to Dr. Freydoonnejad that he has continued to experience back and neck pain from the accident, and has been unable to return to work.

16On November 30, 2020 the applicant had a consultation with Dr. Freydoonnejad. The notes of this consultation indicate that the applicant no longer experiences back or neck pain and is requesting a physician’s letter authorizing his return to work with regular duties. The notes indicate that this letter was provided to the applicant.

17On April 5, 2021, the applicant reported a workplace back injury to Dr. Freydoonnejad. This back injury occurred five days prior and was the result of lifting heavy items in the workplace. Dr. Freydoonnejad indicates that this is a workplace injury which needs to be reported to WSIB.

18In a note on August 9, 2021, Dr. Freydoonnejad notes that the applicant “doesn’t like to report his last back problem on April 2021 that happened at workplace to WSIB” [sic]. The accident was not mentioned in relation to or connected to this injury.

19I give greater weight to the findings of Dr. Ko and the clinical notes and records of Dr. Freydoonnejad than the report of Dr. Getahun for the following four reasons:

i. Dr. Ko’s assessment of the injuries sustained in the accident is corroborated by the contemporaneous clinical notes and records of Dr. Freydoonnejad. Both of which found that the applicant has recovered from his accident related injuries and returned to normal function.

ii. Dr. Getahun’s assessment finds that the applicant has suffered constant pain from the date of the accident. This contradicts the clinical notes and records of Dr. Freydoonnejad who noted the applicant was pain free on November 30, 2020.

iii. Dr. Getahun notes that the applicant returned to work following the accident with modified duties which contradicts the notes of Dr. Freydoonnejad, who noted on November 30, 2020 that the applicant is able to return to work with regular duties.

iv. Dr. Freydoonnejad diagnosed the April 5, 2021 back injury as a workplace accident. He advised the applicant to make a claim with WSIB. This subsequent injury was not found by Dr. Freydoonnejad to be connected to the accident.

20Based on the clinical notes and records of Dr. Freydoonnejad and the report of Dr. Ko, I am not convinced, on the balance of probabilities, that the applicant’s accident-related back pain continued past November 30, 2020.

21There is no evidence that the applicant was experiencing any accident-related pain between November 30, 2020 and April 5, 2021 when the applicant injured his back in a standalone workplace incident.

22The applicant did not report and Dr. Freydoonnejad did not record that this injury was in any way related to the accident in the clinical notes and records.

23Rather, I find that the applicant’s pain was specifically identified as a workplace injury and the applicant was instructed to make a claim to WSIB. In subsequent notes, Dr. Freydoonnejad noted that the applicant was reluctant to make a claim to WSIB. I conclude that applicant’s pain is a result of an unrelated incident and not a chronic continuation from the accident.

24Addressing functional impairment, the applicant returned to work after recovering from his accident-related injuries on November 30, 2020 on full duties without any accommodations. This demonstrates the applicant did not suffer from a functional impairment following the accident.

25For the reasons above, I find that the applicant has not suffered accident-related chronic pain with a functional impairment which would result in removal from the MIG.

The applicant does not suffer from a pre-existing condition which would warrant removal from the MIG.

26The applicant submits that there was a pre-existing strain of the right MCL and Scoliosis which would remove the applicant from the MIG.

27The applicant submits clinical notes and records from St. Joseph’s Healthcare noting a pre-existing MCL strain confirmed by MRI on November 24, 2016.

28The applicant further submits an assessment completed by Dr. S. Sharma, physiatrist, on April 25, 2023. Dr. Sharma notes that she would like to review the applicant’s initial x-rays to see if there is a pre-existing scoliosis.

29I note that the test for removal from the MIG under s. 18(2) is two pronged. The first prong is that the applicant must establish a pre-existing medical condition. The second prong is that due to the pre-existing condition, the applicant must demonstrate that maximal medical recovery cannot be achieved within the limits of the MIG.

30The applicant has made submissions on the existence of pre-existing conditions. There is medical evidence of these pre-existing conditions. However, there are no submissions made or evidence adduced that would demonstrate that these pre-existing conditions impede the applicant’s ability to achieve maximal medical recovery within the limits of the MIG.

31As this is a requirement for removal from the MIG under s. 18(2), I find that the applicant has not demonstrated that his pre-existing injuries warrant removal from the MIG.

The applicant is not entitled to any of the disputed treatment plans.

32As the MIG limits have been exhausted, there is no further entitlement to medical or rehabilitation benefits and therefore an analysis into whether the treatment plans are reasonable and necessary is not required.

Interest

33As no benefits are owing, there is no entitlement to interest.

ORDER

34For the reasons above I find that:

i. The applicant’s injuries are minor as defined by the Schedule;

ii. The applicant is not entitled to the disputed treatment plans; and

iii. This application is dismissed.