Citation: Cardenas v. Aviva Insurance Canada, 2024 ONLAT 22-012329/AABS

Licence Appeal Tribunal File Number: 22-012329/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:

Manuel Pena Cardenas

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Dagmar Boettcher

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

For the Respondent:

Kevin So, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Manuel Pena Cardenas, the applicant, was involved in an automobile accident on April 5, 2022, 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 in dispute 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 applicant is entitled to any amount left under the MIG, if any.

ii. Is the applicant entitled to $2,447.96 for chiropractic services, proposed by 101 Physio, in a treatment plan/OCF-18 (“plan”) dated April 11, 2022?

iii. Is the applicant entitled to $539.00 for translation services, proposed by 101 Physio, in a plan dated July 13, 2022?

iv. Is the applicant entitled to $5,272.00 for psychological services, proposed by 101 Assessments, in a plan dated August 4, 2022?

v. Is the applicant entitled to $2,152.71 for chiropractic services, proposed by 101 Physio, in a plan dated November 7, 2022?

vi. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:

a. $2,460.00 for a psychological assessment, in a plan dated May 26, 2022?

b. $2,460.00 for a psychological assessment, in a plan dated May 26, 2022?

c. $2,686.00 for an orthopaedic assessment, in a plan dated August 4, 2022?

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

viii. Note: Issue vi a. was denied October 3, 2022 and issue vi b. was denied June 27, 2022.

RESULT

3I find that the applicant has not met the onus of proving that his injuries are not predominantly minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.

4The amount remaining within the MIG is $24.49. The applicant is entitled to payment of this amount.

5As the applicant remains within the MIG, and the parties agree that the applicant’s treatment limit has been exhausted, there is no entitlement to the benefits at issue.

6No interest is payable.

ANALYSIS

The injuries are predominantly minor and the MIG applies:

7I find that the applicant has not met the onus of proving that his injuries are not predominantly minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.

8Section 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.”

9Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG, or, under section 18(2), that they have a documented pre-existing condition, combined with compelling medical evidence stating that the condition prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant argues that he is not subject to the $3,500.00 MIG limit on benefits on three grounds:

i. A pre-existing medical condition prevents him from achieving maximal recovery if subject to the MIG;

ii. The medical evidence supports a chronic pain diagnosis; and

iii. The medical evidence supports a new psychological impairment.

11The totality of the medical evidence provided to me by the applicant consisted of the following:

i. Clinical notes and records (“CNRs”) from The Health Centre of Maple indicating three visits; September 1, 2021, September 14, 2021, and May 30, 2023. At least one of these visits was a bloodwork follow up.

ii. CNRs from Wellmedica Clinic for the dates March 13, 2023, and June 6, 2023. During the March 13, 2023 visit, bloodwork results and fitness counselling were also discussed.

iii. A psychological assessment performed by Dr. Konstantinos Papazoglou on August 4, 2022.

12There were no clinical notes and records (“CNR”) submitted into evidence for the period immediately following the motor vehicle accident which took place on April 5, 2022. No ambulance attended the scene and although the applicant reported to the respondent’s musculoskeletal assessor, Dr. Michael Hanna, that he attended his family physician the day after the accident, I was not provided with evidence to support the claim. I was also not provided with any OCF forms as evidence.

13The respondent submits that the applicant’s soft tissue injuries meet the definition of “minor injury” and therefore fall within the MIG.

14The respondent further submits that the medical evidence does not support a diagnosis of chronic pain or a psychological impairment as a result of the accident.

Does the medical evidence support a diagnosis of a pre-existing condition?

15I find that the evidence submitted does not support compelling evidence of a pre-existing condition that prevents maximal recovery if the applicant remains within the MIG.

16The standard for excluding an impairment on the basis of a pre-existing condition is well defined in s. 18(2) of the Schedule. The onus is on the applicant to provide compelling medical evidence, documented by a health practitioner before the accident occurred, that being subject to the MIG would prevent the insured person from achieving maximal recovery. It is not simply enough to show there is a pre-existing injury; the evidence must be both compelling and also indicate that such pre-existing injury would preclude the applicant’s recovery from any accident-related minor injury.

17The applicant directs me to the clinical notes and records (“CNRs”) from the Health Centre of Maple in support of his submission that he had a history of pre-accident medical concerns. He submits that he attended the Health Centre of Maple complaining of left shoulder pain with numbness, tingling and cramps down his arms and hands. There are two documented visits in the CNRs prior to the date of the motor vehicle accident. The first visit was on September 1, 2021, to Dr. Tazeen Al-Haq (not Dr. Sanandaji as indicated in the Applicant’s submissions). The applicant complained of left shoulder pain, numbing, tingling and cramps down his arm and hands, severe at night or when sedentary. Dr. Al-Haq recommended neck x-rays, but the applicant declined at that time. Lab work was ordered, along with physiotherapy and massage. The applicant was advised to take Gabapentin and Arthrotec and to follow up to discuss the results. There was no further evidence provided to indicate that the applicant returned to follow up to discuss a pre-existing condition, or that he attended the clinic again prior to the accident to discuss a pre-existing issue. The second visit in the CNRs occurred on September 14, 2021 to review bloodwork.

18The respondent submits that the applicant reported to Dr. Hanna on July 22, 2022 for a musculoskeletal assessment and denied having any pre-existing medical condition. The applicant’s medical documentation was reviewed by Dr. Hanna, who stated that the documentation did not note any ongoing muscular skeletal or neurologic complaints at the time of the subject accident.

19I find that the applicant has provided neither sufficient, nor compelling evidence to support a pre-existing condition that would impair maximal recovery if kept within the MIG. The applicant is not removed from the MIG based on a pre-existing condition.

Does the medical evidence support a diagnosis of chronic pain?

20I find that the applicant has not met his onus to establish that he suffers from chronic pain.

21Ongoing pain does not automatically take a person out of the MIG. It is well established that to be removed from the MIG based on chronic pain, the pain must be of a continued severity resulting in functional impairment.

22The applicant relies instead upon CNRs of May 30, 2023 from The Health Centre of Maple, during which the applicant identified pain had been ongoing for one year and located in his neck and upper back. Dr. Sanandaji notes full range of movement of the joint and assesses the pain as resulting from osteoarthritis.

23The applicant also relies upon the CNRs of June 6, 2023 from Wellmedica Clinic during which the applicant identified chronic neck discomfort. The physician noted that no medication had been prescribed when the applicant had walked in two weeks previously and found mild C-spine tenderness with minimal restricted range of movement. The physician assessed the applicant as acute on chronic neck sprain in a setting of whiplash. Activity modification, physiotherapy, FIT education, and core strengthening was recommended. The applicant was not referred to a chronic pain specialist.

24The respondent notes that the applicant provided evidence of only one complaint about ongoing pain in the neck and upper back within the CNRs. Additionally, the respondent submits that the applicant lacked evidence that would indicate an alignment with any of the six factors set out in the American Medical Association Guides, 6th edition (“AMA Guides”).

25The submissions do not indicate any alignment with the AMA Guides on any of the criteria. The AMA Guides state that at least three criteria be met for a diagnosis of chronic pain. While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes. The applicant has not demonstrated that his condition meets three of the six criteria in the AMA Guides. Therefore, I am satisfied he has not established a functional impairment related to accident-related pain.

26Dr. Sanandaji’s assessments and plans of May 30, 2023 and June 6, 2023 do not recommend a chronic pain specialist. No x-rays, MRIs or other diagnostic imaging was included as part of the applicant’s submission, although the applicant advised Dr. Salerno, the respondent’s physician who performed the psychological examination, that he would be undergoing neck surgery in Columbia in November 2022.

27In support of a chronic pain diagnosis, the applicant also refers to three decisions made by the LAT in support of treatment for the reduction of pain. I was directed to L.D. and Aviva 19-00065, 2020 CanLII 57402 ON LAT, para. 23-27. However, the LAT case provided in Tab C was L.D. and Aviva 16-003010, 2020 CanLII 57402 ON LAT. While this latter case did concern an applicant who had been diagnosed with chronic pain, the circumstances and evidence in support of the chronic pain diagnosis were far more compelling than those provided by the applicant in their submission. In L.D. and Aviva 16-003010, 2020 CanLII 57402 ON LAT, the applicant had been involved in two previous motor vehicle accidents which resulted in serious disabling injuries. The applicant in that case has been a recipient of Ontario Disability Support Program since 2010. I was also directed to P.J. and Continental Insurance Company, 16-004272, 2017 CanLII 63661 (ON LAT), 2017 CanLII63661 ON LAT, as well as The Applicant and Wawanesa Mutual Insurance 17002589, 2018 CanLII 83505 ON LAT. I do not find that these cases present a comparable injury profile and, therefore, I have not found that these cases have provided me with compelling evidence to determine a chronic pain diagnosis.

28I have assigned significant weight to the methodology employed in the Musculoskeletal Assessment completed July 22, 2022 by Dr. Hanna. The assessment contained details regarding the treatment plans being reviewed, the length of the assessment, and indicates an interpreter was present.

29I have given more weight to the respondent’s evidence and find that the applicant has failed to provide consistent or compelling evidence that warrants removal from the MIG based on a diagnosis of chronic pain. There is no evidence of chronic pain that could be considered more than sequelae of the soft tissue injuries, and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal under this ground.

Does the medical evidence support a diagnosis of psychological impairments resulting from the motor vehicle accident?

30I find that the applicant has not provided compelling evidence to support a diagnosis of psychological impairments on a balance of probabilities.

31I give limited weight to the psychological assessment completed on August 4, 2022 by Dr. Konstantinos Papazoglou, a Clinical and Forensic Psychologist with 101 Assessments, for several reasons. The assessment was missing pages 1-4, and because of this, I was not able to determine the length of the assessment. There is no evidence that the physician reviewed the applicant’s medical records, instead the physician relied solely on the applicant’s anecdotal evidence and, according to the respondent’s Psychological Assessment, the assessment by Dr. Papazoglou was performed over two telephone sessions without video conferencing. There was also a lack of evidence to support some of the applicant’s statements. The applicant advised the physician that he had attended a walk-in clinic 3 days after the accident and was prescribed pain medication. There was no evidence provided of this in the applicant’s submissions. The applicant also advised that he went to Columbia for x rays, MRI other imaging as exams were being postponed in Canada. Again, there was no medical evidence provided to support this claim. The applicant provided no documented reports and complaints of psychological impairments in the clinical records.

32The respondent has provided evidence of a psychological examination undertaken on September 14, 2022 by Dr. Fabio Salerno, a registered Psychologist with a specialty in clinical and rehabilitation psychology. I have placed more reliance on this examination because there is evidence that an interpreter was present, the examination had clear start and end times, and the physician had reviewed the applicant’s medical records and OCF forms. During the assessment the applicant stated he does not require psychological treatment. The physician determined that the applicant does not exhibit an accident related psychological impairment.

33I find that the applicant has not provided sufficient evidence to warrant the diagnosis of a psychological impairment which would remove him from the MIG.

34Given the lack of supporting evidence from his family physician or any compelling evidence from a specialist, I find that the applicant is not entitled to funding beyond the MIG.

Interest

35As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

36I order the following:

i. The applicant remains within the MIG and is subject to the $3,500.00 funding limit;

ii. The applicant is entitled to be paid the remaining balance in the MIG of $24.49;

iii. The applicant is not entitled to the treatment plans in dispute;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.