Citation: Dillon v. Aviva Insurance Company of Canada, 2024 ONLAT 22-009183/AABS

Licence Appeal Tribunal File Number: 22-009183/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:

Candace Dillon

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Patrick D'Aloisio, Counsel

For the Respondent:

Jonathan White, Counsel

HEARD:

By Way Of Written Submissions

OVERVIEW

1Candace Dillon, the applicant, was involved in an automobile accident on October 30, 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 Company of Canada, 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?

ii. Is the applicant entitled to $548.50 ($2,147.50 less $1,599.00 approved) for physiotherapy treatment proposed by Richard Chu of Focus Physiotherapy Inc., in a plan submitted March 4, 2021 and partially denied March 4, 2021?

iii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 30, 2020 to October 1, 2022?

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

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

RESULT

3The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to $548.50 for physiotherapy services.

5The applicant is entitled to income replacement benefits in the amount of $400.00 per week from October 30, 2020 to May 16, 2021.

6The applicant is not entitled to an award.

7Interest is payable on any unpaid income replacement benefits between October 30, 2020 and May 16, 2021.

PROCEDURAL ISSUES

8The respondent submits that the applicant failed to comply with the Tribunal’s production order dated May 31, 2023. Notably, the employment file and T4A income statements from World Financial Group, and Dr. Michael West’s October 2022 orthopaedic assessment report which was not disclosed until November 23, 2023. The respondent requested that Dr. West’s report be excluded from evidence or at the very least assigned less weight by the Tribunal.

9The applicant submits that she is not an employee of World Financial Group, but rather an independent contractor so there are no employment files or income statements to disclose. The applicant also submits that she has made best efforts to comply with the production order by requesting complete employment files in January and March 2023. As far as income tax returns, the applicant submits that she has not yet prepared her 2023 return, and Dr. West’s report was actually provided to the respondent 90 days before the hearing date.

10I accept that the applicant has made best efforts to obtain the requested documents to comply with the Tribunal’s production order. I am denying the respondent’s request that the evidence be excluded.

ANALYSIS

Minor Injury Guideline (“MIG”)

11Section 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.”

12An 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.

13The applicant submits that she should be removed from the MIG based on her chronic pain and the fact that she suffers from a psychological condition as a result of the accident.

14For the following reasons, I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment, which the parties agree has been exhausted.

Chronic Pain

15I find that the applicant has not demonstrated that she suffers from a chronic pain condition that would warrant removal from the MIG.

16Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

17The applicant relies on the orthopaedic assessment report of Dr. Michael West dated October 13, 2022. Dr. West diagnosed the applicant with chronic pain and noted that the applicant’s cervical/lumbosacral strains, post-traumatic headaches, post-traumatic insomnia/fatigue, and post-traumatic anxiety/stress would place her treatment outside of the MIG. He cited multiple deep soft-tissue injuries, concurrent psychological and emotional problems, and chronic pain as reasons why the applicant should be removed from the MIG. Dr. West also reported that the applicant was not capable of resuming any housekeeping or home maintenance tasks.

18The respondent relies on the applicant’s self-report, the reports of psychologist Dr. Mohammad Nikkhou dated August 10, 2021, orthopaedic surgeon, Dr. Louis Weislefer, and the clinical notes and records of the applicant’s family physician, Dr. Hong-Yung Choi. The applicant reported to Dr. Nikkhou that her typical day involved getting up at 8am, doing stretches, showering, preparing and eating a light breakfast, starting work at 8:30am, and working 8 hours on a computer from home as a financial advisor. She also reported that her job quality and productivity were fine, despite having to alternate between sitting and standing more frequently because of back pain.

19The respondent submits that according to both Dr. Nikkhou and Dr. Weislefer, the applicant does some cleaning, laundry, and cooks her own lunch/dinner. She was only taking Tylenol or Advil as needed and was attending bi-weekly chiropractic treatment in August 2021. In fact, the applicant did not consult with Dr. Choi at any point between December 2020 and June 2023. In December 2020, Dr. Choi diagnosed the applicant with soft-tissue injuries and recommended Voltaren and physiotherapy.

20I find that the applicant does not meet the criteria for a chronic pain condition, as outlined in the the AMA Guides. The applicant has not provided any prescription summaries, nor any indication she is dependent on prescription drugs or other substances. The applicant is not excessively dependent on healthcare providers or family and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The applicant continues to work full-time hours and has exhibited minimal symptoms of a psychological injury.

21For these reasons the applicant has established on a balance of probabilities, me that it is more likely than not that she suffers from a chronic pain condition that would remove her from the MIG.

Psychological Condition

22I find no compelling evidence to conclude that the applicant sustained a psychological injury as a result of the accident.

23The applicant submits that Dr. West concluded that she was suffering from post-traumatic stress and anxiety with depressive episodes as a result of the accident that would preclude her from the MIG.

24The respondent submits that it is beyond the scope of Dr. West’s practice to diagnose psychological conditions/injuries. The respondent also relies on the psychological assessment report of Dr. Nikkhou and the clinical notes and records of Dr. Choi. Dr. Nikkhou’s psychological testing results showed minimal psychological distress in the affective and anxiety areas, and Dr. Choi did not diagnose any psychological impairment from the accident.

25I have given limited weight to Dr. West’s opinion that the applicant suffers from post-traumatic anxiety and stress that would place her outside of the MIG. Dr. West is an orthopaedic surgeon. It is beyond his scope of practice to diagnose or provide recommendations with respect to psychological conditions. I am also mindful that the applicant has not put forth any psychological expert evidence supporting that a psychological impairment would prevent her from returning to work.

26I am persuaded by Dr. Nikkhou’s psychological report that found that the applicant was not suffering from any diagnosable psychological conditions as a result of the accident because Dr. Nikkhou as this is the only opinion from a psychologist on file. I also note that the applicant did not report any psychological issues to Dr. Choi.

27Having failed to provide persuasive evidence of an accident-related psychological injury, I find, on a balance of probabilities, that the applicant has not sustained a psychological injury as a result of the accident.

Physiotherapy Treatment Plan

28I find that the applicant is not entitled to $548.50 for physiotherapy services that is in dispute. The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The amount in dispute for the treatment plan proposes goods and services that fall outside of the MIG, which has been exhausted.

Income Replacement Benefits (“IRB”)

29I find that the applicant is entitled to IRB, but only for the period from October 30, 2020 to May 16, 2021. The applicant was working full-time hours for World Financial Group by that time.

30To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

31The applicant submits that she has not been able to return to her pre-accident part-time employment at Pottery Barn that involved physically demanding tasks like as setting up rooms in the store and lifting and moving furniture. She relies once again on Dr. West’s October 2022 report that concluded that she would not meet the physical demands of her pre-accident employment at Pottery Barn. She also relies on Dr. Choi’s December 5, 2020 clinical note recommending that she remain off work for 2 months, or at least until January 11, 2021 as a result of her accident-related injuries.

32The respondent submits that both Dr. Weisleder and Dr. Nikkhou concluded in August 2021 that the applicant did not meet the test for income replacement benefits.

33At the time of the accident the applicant was working at two part-time jobs. One at Pottery Barn as a merchandizing and window dressing associate, and the other was sedentary working from home as an investment advisor. The applicant stopped working at Pottery Barn after the accident but continued working part-time as an investment advisor. According to Dr. Nikkhou and Dr. Weislefer’s reports, in May 2021 the applicant was working as an investment advisor from home on a full-time basis.

34I accept that the applicant sustained soft-tissue injuries to her neck/back that impacted her ability to do repetitive bending and lifting immediately after the accident. This is supported by the medical evidence from Dr. Choi, Dr. West, and Dr. Wieslefer. The evidence also supports, however, that by May 2021 the applicant was working full-time doing computer work, was doing some housekeeping/home maintenance, was cooking, and was doing laundry. According to Dr. Wieslefer, the only pre-accident activities she had not returned to were hiking, cycling, and rollerblading.

35I find that it is more likely than not that the applicant suffered a substantial inability to perform her pre-accident physical tasks of employment at Pottery Barn from the date of the accident until May 16, 2021. By May 2021, however, the evidence supports that the applicant was working full-time and had returned to doing housekeeping, cooking, and cleaning. The applicant also reported in August 2021 that her job quality and productivity were fine as long as she alternated between sitting and standing. I also agree with the respondent that a two-and-a-half-year gap in the OHIP summary until June 14, 2023 suggests that the applicant was physically and psychologically able to resume her employment much sooner than the October 2022 date the applicant claims. With respect to IRB quantum, the respondent will be able to deduct 70% of the applicant’s gross income during the period in which they are eligible for the IRBs.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the only benefit payable is a portion of the disputed IRB, interest is payable on any unpaid IRB benefits between October 30, 2020 and May 16, 2021.

Award

37The 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. I find that the respondent is not liable to pay an award. No benefits payable have been unreasonably withheld or delayed.

ORDER

38The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

39The applicant is not entitled to $548.50 for physiotherapy services.

40The applicant is entitled to income replacement benefits in the amount of $400.00 per week from October 30, 2020 to May 16, 2021.

41The applicant is not entitled to an award.

42Interest is payable on any unpaid income replacement benefits between October 30, 2020 and May 16, 2021.