Licence Appeal Tribunal File Number: 22-003236/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:
Sucdi Mayow
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Thulasi Kandiah, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sucdi Mayow (the “applicant”) was involved in an automobile accident on October 1, 2019, 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 Aviva General Insurance Company (the “respondent”) 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 29, 2019 to October 1, 2021?
iii. Is the applicant entitled to medical benefits in the amount of $2,776.32 ($3,196.32 less $420.00 approved) for services proposed by Life Point Medical in a treatment plan (“OCF-18”) dated July 16, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG. The applicant is not entitled to an NEB, the disputed OCF-18, or interest on either.
ANALYSIS
Applicability of the MIG
4I find the applicant has failed to demonstrate she should be removed from the MIG.
5Section 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.” The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery of her accident-related minor injuries if she is 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.
6In this matter, the applicant says her injuries fall outside the MIG, and that her pre-existing psychological impairments should have been afforded more weight by the adjuster-of-record. The applicant’s submissions also speak to accident-related chronic pain with functional impairment.
Do the applicant’s injuries fall outside the MIG?
7No. The applicant has not shown that her injuries warrant removal from the MIG.
8The applicant claims significant mobility restrictions and submits her accident-related injuries prevent her from performing basic functions of everyday life and activities of daily living. She explains that her functional limitations, combined with “negative psychological effects” (i.e., stress, anxiety, and depression associated with a mixed anxiety and depressive disorder) present a more complex injury profile that needs comprehensive care. The applicant therefore reasons that her injuries are not restricted to “mere soft tissue damage,” and, accordingly, must fall outside the MIG because the Schedule’s definition of a minor injury does not consider “significant mobility restrictions” to be minor. The applicant relies on Scarlett v. Belair Insurance, 2015 ONSC 3635 to show that conditions which substantially impair a person’s life do not fall within the MIG.
9The applicant also asserts that the adjuster-of-record expressed a medical opinion he was not qualified to make (i.e., “…we believe [emphasis added] that your injuries are considered to be predominantly minor”) and failed to require an Insurer’s Examination (“IE”) to support the respondent’s claim that the applicant’s injuries fall within the MIG. The applicant reasons the respondent therefore dismissed the information in the disability certificate (“OCF-3”) and again relies on Scarlett—this time to show that insurers must provide adequate evidence if they wish to restrict treatment within the MIG.
10The respondent argues that the applicant relies on “…nothing more than the sparse clinical notes and records of her treatment providers…” to support her MIG arguments. The respondent says the physical injuries on the OCF-3 all fit within the definition of “minor injury” per the Schedule, and that the health practitioner who completed the applicant’s OCF-3 is a chiropractor and is therefore not qualified to diagnose psychological, cognitive, or neurological disorders. The respondent submits the applicant has tendered an “entirely faulty” application of Scarlett, which stands for the fact that the burden of proof rests on the insured person to establish entitlement to the appropriate level of benefit. The respondent maintains it is not required to do an IE, and further, that it had no reason to assess the applicant because she put forward “virtually no evidence of any accident-related injuries.” The respondent therefore reasons that the applicant cannot take the position it “dismissed” the OCF-3 when she failed to provide corroborating medical evidence.
11The medical evidence relied upon by the applicant persuades me that her injuries fall within the MIG. Part 5 of the OCF-3 completed by Dr. Mir-Reza Nabavl (chiropractor) on July 23, 2021, lists accident-related physical injuries that include headache, radiculopathy, and lumbar and other intervertebral disc disorders with both myelopathy and radiculopathy. The Humber River Hospital records of October 1, 2019, note the applicant complained of chest pain and observations of tenderness in her chest wall. There is also a medical note completed by Dr. O’Hara Rampersad (physician) on July 12, 2021, that diagnoses a muscular back strain and recommends physiotherapy. All these documents speak to injuries that fall squarely in the MIG. The January 2023 records of Dr. Eman Ibrahim (family physician), as referenced in the applicant’s submissions, speak only to low back pain and the applicant did not point me to evidence that indicates this pain is attributed to anything other than the physical injuries documented in the OCF-3. While I recognize the applicant claims she suffers significant mobility restrictions owing to her injuries, the applicant did not persuade me that these limitations (i.e., her disabilities pertaining to normal life activities, housekeeping, and home maintenance as indicated on the OCF-3 by Dr. Nabavi) are more than the clinically associated sequelae of her soft tissue injuries.
12The applicant did not direct me to a medical opinion that established her functional limitations combine with her psychological symptoms to warrant treatment outside the MIG. As such, I afforded this argument little weight because it was not substantiated by evidence. The applicant’s submissions indicate that Dr. Nabavi attributed the applicant’s complete inability to carry on a normal life due to pain—there is no mention of a psychological interplay that contributes to this disability. The applicant’s submissions do not point to why Dr. Nabavi determined the applicant was substantially unable to perform housekeeping and maintenance services. While the applicant submits that Dr. Nabavi recommended a psychological assessment in Part 7 of the OCF-3, I was not directed to a medical opinion that correlated any post-accident disabilities with the applicant’s pre-accident stress, anxiety, and depression as documented at Part 8. In any event, the applicant’s submissions do not point me to medical evidence that corroborates her self-reports of pre-accident psychological symptomology to Dr. Nabavi, and I placed little weight on Dr. Nabavi’s opinion (expressed at Part 5 of the OCF-3) that the applicant suffered a mixed anxiety and depressive disorder as a direct result of the accident because I find mental and behavioural disorders fall outside the scope of practice for chiropractors.
13The applicant’s submissions re: Scarlett (i.e., that conditions which substantially impair a person’s life do not fall within the MIG, and that insurers must provide adequate evidence if they wish to restrict treatment within the MIG) were unpersuasive. The applicant failed to point to where her arguments are supported in this authority as required by the case conference report and order (“CCRO”) for this matter. The CCRO specifies that submissions shall make specific reference to the evidence and law by tab and page number, which the applicant did not do here. I therefore placed little weight on the applicant’s argument that conditions which substantially impair a person’s life do not fall within the MIG.
14Further, I agree with the respondent’s position on Scarlett, which is that the thrust of this authority confirms the applicant’s onus to prove her case as opposed to putting the onus on insurers to provide adequate evidence if they wish to restrict treatment within the MIG. As such, I find the applicant cannot meet her onus to prove she should be removed from the MIG by claiming the respondent failed to request an IE per section 44(1) of the Schedule or produce a contradictory medical opinion.
15In any event, section 44(1) specifies the respondent may require an insured person to be examined for the purposes of assisting an insurer to determine if an insured person is entitled to a benefit—there is no obligation to do so. As referenced in the applicant’s submissions, the respondent’s notice of July 29, 2021, requests that the applicant’s health practitioner send medical records and doctor’s notes to substantiate her claim for medical benefits, which reinforces the applicant’s onus to provide supporting evidence.
Are the applicant’s pre-existing conditions applicable?
16No. The applicant has not demonstrated she should be removed from the MIG because of pre-existing medical conditions.
17The applicant submits she has pre-existing psychological conditions that consist of stress, anxiety, and depression per the OCF-3.
18The respondent argues there is no evidence of any pre-existing conditions or psychological impairments that would make treatment within the MIG insufficient. The respondent also says the applicant’s arguments (i.e., Scarlett) reverse the onus of proof, and that section 44 of the Schedule does not require an insurer to assess an insured person.
19While the applicant contends the OCF-3 indicated pre-existing psychological impairments such as anxiety, stress, and depression that were being treated with medication, she failed to direct me to evidence that shows these psychological issues were documented by a health practitioner before the accident as section 18(2) of the Schedule requires. As well, the applicant did not point me to evidence that establishes a health practitioner determined this pre-existing medical condition will prevent maximal recovery from her accident-related injuries if subjected to the MIG. I therefore decline to remove the applicant from the MIG because of a pre-existing medical condition.
Does the applicant suffer chronic pain with impairments as a result of the accident?
20No. The applicant falls short of her onus to prove MIG removal is warranted by chronic pain with functional impairment.
21The applicant submits there is “a mention of chronic pain in the medical documentation,” and that it is reasonable to conclude that chronic pain affects every facet of the applicant’s everyday life. She goes on to say that under the Schedule, chronic pain that hinders one’s daily functioning warrants a comprehensive assessment and possibly an extended treatment plan. The applicant relies on 17-002624 v. Aviva Insurance Canada, 2018 CanLII 13183 ON LAT (“Aviva”) to show that chronic pain and prolonged passive treatments are considered reasonable and necessary if such supportive care reduces pain and improves, or at least maintains, a person’s level of function.
22The respondent takes the position that notations of chronic pain, in and of themselves, are not sufficient to warrant MIG removal. The respondent makes a distinction between chronic pain complaints and an actual diagnosis of chronic pain syndrome, adding that the applicant has never been diagnosed with chronic pain syndrome or chronic pain symptoms. The respondent relies on the chronic pain criteria specified in the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) to show the applicant falls short of a chronic pain syndrome diagnosis.
23It was unclear to me as to whether the applicant’s submissions were advocating MIG removal owing to chronic pain, or whether these arguments pertained to the disputed OCF-18. Given that the applicant’s submissions do not address the OCF-18 in dispute—other than to say she has incurred the “significant” cost of nearly all the treatment in dispute—I have proceeded to consider her chronic pain arguments in the context of the MIG.
24The applicant’s arguments on chronic pain rely heavily on the records of Dr. Ibrahim, and I find this evidence is not sufficient to prove her claim. While I agree chronic pain is noted in Dr. Ibrahim’s records, I disagree these annotations establish the applicant suffers from chronic pain with functional impairment. The first entry made by Dr. Ibrahim on January 17, 2023, documents the applicant’s self-report of chronic pain and is therefore not a medical opinion or a diagnosis. I do not accept that Dr. Ibrahim’s assessment led him to subsequently diagnose “chronic posttraumatic low back pain/motor vehicle accident 2019.” This is because he punctuates this annotation with a question mark that, in my view, indicates his assessment is a query that requires more investigation. In fact, the applicant points to a same-day x-ray of her lumbar spine to assess her complaints of chronic pain, and the results were interpreted as normal, which does not support the applicant’s claim. Dr. Ibrahim’s follow-up note of January 25, 2023, as referenced in the applicant’s submissions, does not include any chronic pain annotations.
25I was not directed to contemporaneous evidence that supports the applicant’s submissions of chronic pain impacting every facet of her everyday life. Dr. Nabavl’s OCF-3 was completed nearly two years after the accident and the applicant does not direct me to evidence that shows Dr. Nabavl related the applicant’s disability to chronic pain. Dr. Rampersad’s note—also entered almost two years after the accident—diagnosis muscular back strain but does not speak to chronic pain or offer any insight into functional limitations, restrictions, or impairments arising from chronic pain. Dr. Ibrahim’s consultations started almost four years after the accident, and his final entry does not qualify the applicant’s pain as chronic or provide a chronic pain diagnosis.
26I was not directed to where the Schedule says that chronic pain which hinders daily functioning warrants a comprehensive assessment and possibly an extended treatment plan. While I agree that Aviva speaks to the reasonableness and necessity of treatment that is shown to reduce pain and improve or maintain functionality, I find this is not relevant to establishing the applicant should be removed from the MIG owing to accident-related chronic pain with functional impairment.
The applicant’s entitlement to an NEB
27I find the applicant has not demonstrated she is entitled to an NEB.
28Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
29The applicant submits the respondent did not assess her for an NEB and therefore cannot rely on its position that she did not suffer from a substantial inability to carry on a normal life. The applicant emphasizes that the only available evidence shows she meets the NEB test.
30The respondent takes the position that the eligibility period for the applicant’s NEB claim is July 28, 2021 (as opposed to October 29, 2019 as agreed at the case conference) until October 1, 2021 because section 36(3) of the Schedule says an insurer is not required to pay specified benefits until receipt of a completed OCF-3. The respondent argues that the applicant has reversed onus of proof, and that she relies only on self-reports of functional limitations and the OCF-3, which, even when taken together, do not establish she meets the NEB test.
31The evidence led by the applicant to demonstrate she is eligible for an NEB is insufficient to support her claim. I accept that Part 6 of the OCF-3 says the applicant suffered a complete inability to carry on a normal life due to pain which is aggravated by standing, walking, bending, and lifting. I also accept that the OCF-3 indicates the applicant’s activities of daily living have been affected, such as cooking, cleaning, laundry, groceries, and sleeping. However, the applicant did not point to medical evidence that Dr. Nabavl may have relied on to inform his opinion. In fact, the applicant did not direct me to contemporaneous evidence of disability from the time of the accident up to the completion of the OCF-3 nearly two years later. The applicant does not refer to evidence of disability in the Humber River Hospital records. Dr. Rampersad’s July 2021 note, as referenced in the applicant’s submissions, does not offer any opinions on the applicant’s ability to perform her life activities. The records of Dr. Ibrahim are not helpful because they fall outside the eligibility period for the applicant’s NEB claim.
32Taken on balance, I am not persuaded this evidence establishes the applicant’s entitlement to an NEB.
The disputed OCF-18
33It is unnecessary to determine the reasonableness and necessity of the disputed OCF-18. This is because the applicant has not demonstrated she should be removed from the MIG and the parties agree that the MIG is exhausted.
Interest
34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits in this case, so no interest is payable.
ORDER
35The applicant remains in the MIG. The applicant is not entitled to an NEB, the disputed OCF-18, or interest on either. The application is dismissed.
Released: November 25, 2024
Michael Beauchesne
Adjudicator