Citation: Hazell v. Aviva Insurance Canada, 2024 ONLAT 22-003874/AABS

Licence Appeal Tribunal File Number: 22-003874/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:

Victoria Hazell

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Arash Goneh-Farahani, Paralegal

For the Respondent: Kristofer B. Angle, Counsel

HEARD: By way of written submissions

OVERVIEW

1Victoria Hazell, the applicant, was involved in an automobile accident on November 27, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3The applicant previously filed another application regarding this same matter and a decision was released on that application on April 28, 2022: Hazell v. TD General Insurance Company, 2022 CanLII 33195 (ON LAT). In that decision, the Tribunal found that the applicant sustained minor injuries as a result of the accident and that the treatment plans in dispute were not reasonable and necessary.

ISSUES

4The 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 limit?

ii. Is the applicant entitled to $2,165.00 for physiotherapy services, proposed by Direct Comfort Ltd., in a treatment plan dated April 8, 2021?

iii. Is the applicant entitled to $305.00 for physiotherapy expenses proposed by St. Elizabeth Health, in an Expense Claim Form (“OCF-6”) submitted September 2, 2020?

iv. Is the applicant entitled to $200.00 for Clinical Notes and Records (“CNRs”) from Dr. Kato, submitted September 2, 2020?

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

RESULT

5I find that the applicant’s injuries are “minor injuries” as defined in the Schedule. The applicant is not entitled to the disputed physiotherapy treatment plan, physiotherapy expenses, CNRs of Dr. Kato, or interest.

PROCEDURAL ISSUES

Section 10 award raised in the applicant’s submissions will not be considered

6The applicant’s claim for an award will not be considered in this hearing.

7The applicant made submissions regarding a claim for an award pursuant to s. 10 of Reg. 664. The respondent submits that this issue should not be considered by the Tribunal because it had not received prior notice of the claim prior to the applicant filing her written submissions.

8I find that it is not appropriate to add a s. 10 award to the issues in dispute in this hearing, as this issue was not listed in the Case Conference Report and Order (“CCRO”), dated July 31, 2023 and the applicant did not file a Notice of Motion to add this issue prior to submitting her written submissions.

The respondent’s submissions will be read in their entirety

9The applicant’s request to not consider any of the respondent’s submissions outside of the page limit is denied.

10The applicant submits that the respondent has failed to comply with the July 31, 2023 CCRO, as its written submissions substantially exceed the agreed upon page limit of 15 pages. As a result, the applicant requested that the Tribunal not consider any submissions made outside of the page limit.

11I find that the respondent has provided 17 pages of submissions which exceed the 15-page limit set out in the CCRO. However, upon review of the respondent’s submissions, one of the extra two pages of submissions relate to the applicant’s claim for a s. 10 award. As I have determined that the s. 10 award will not be considered as part of this hearing, this extra page is not relevant to the issues in dispute. In addition, the last page of the respondent’s submissions is a restatement of the order sought and does not contain any evidence. Therefore, I find that the applicant is not prejudiced by this extra page of submissions as it only contains a restatement of the respondent’s position.

The application is not dismissed on the basis of the doctrine of res judicata

12The respondent’s request to dismiss the applicant’s application on the basis of the doctrine of res judicata is denied.

13The respondent submits that the doctrine of res judicata applies to this application, as the Tribunal previously determined that the applicant suffered minor injuries as a result of the accident which were treatable within the limits of the MIG in the decision of Hazell v. TD General Insurance Company, 2022 CanLII 33195 (ON LAT).

14It is well established that the doctrine of res judicata operates to bring finality to legal proceedings as well as to prevent duplicate litigation, inconsistent decisions, undue costs and inconclusive proceedings. It is generally accepted that four preconditions must be established before an adjudicator can determine whether to exercise their discretion to apply res judicata. The four factors are:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Tribunal;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgment.

15I am satisfied that the four preconditions for res judicata have been met. The applicant in the previous decision and in the present case are the same. The prior claim is within the Tribunal’s jurisdiction. The previous decision was determined on the merits, and it was a final decision. The applicant has not sought reconsideration or appeal of the previous decision.

16In the applicant’s reply submissions, she submits that res judicata should be waived. The applicant submits that since the April 28, 2022 decision, there has been medical documentation procured which, had it been available to the Tribunal at the time of the initial decision, would have resulted in the applicant being taken out of the MIG. Specifically, the applicant now relies on the following evidence:

i. CNRs of Dr. Roger Lam, pain specialist, from Toronto Poly Clinic dated October 1, 2021;

ii. An assessment report of Dr. Nooshin Samadi, rheumatologist, dated December 3, 2021;

iii. CNRs of Dr. Christian Yuzuru Kako, family physician, from August 1, 2021 to December 17, 2022;

iv. CNRs from Saint Elizabeth Rehab Health; and

v. A psychiatric report of Dr. Lwam Ghebrehariat, psychiatrist, dated June 30, 2023.

17As noted in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

18I find that res judicata may be waived where fresh or new evidence is submitted that was previously unavailable that would conclusively impeach the original results. Therefore, as the applicant is relying on new evidence that was not available at the time of the initial hearing and was not previously before the Tribunal, the respondent’s request to dismiss this application on the basis of the doctrine of res judicata is denied.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

a. The Minor Injury Guideline (“MIG”)

19I find that the applicant sustained a minor injury as a result of the accident and, therefore is subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.

20Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

21An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

22In this matter, the applicant submitted that she should be removed from the MIG because she sustained chronic pain and/or a psychological impairment as a result of the accident.

b. The applicant is not removed from the MIG on the basis of chronic pain

23I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain that would remove her from the MIG.

24The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident; specifically, she submits that she continues to have persistent pain and mild supraspinatus tendinitis in her shoulder.

25To support her position, the applicant relies upon the report of Dr. Alfonse Marchie, physiatrist, dated July 3, 2018; an updated note from Dr. Roger Lam, pain specialist, from Toronto Poly Clinic dated October 1, 2021; an assessment report of Dr. Nooshin Samadi, rheumatologist, dated December 3, 2021; the CNRs of Dr. Christian Yuzuru Kako, family physician, from August 1, 2021 to December 17, 2022; and the CNRs from Saint Elizabeth Rehab Health.

26The respondent submits that the medical evidence submitted by the applicant confirms that she sustained minor injuries in the accident. The respondent relies on the s. 44 Insurer Examination (“IE”) reports of Dr. Alborz Oshidari, physiatrist, dated May 9, 2018, August 10, 2018 and June 4, 2021, which all confirm that the applicant sustained only minor injuries.

27The respondent further submits that a diagnosis of chronic pain on its own is insufficient to be removed from the MIG as there must be evidence of functional impairment. The respondent submits that the evidence suggests that the applicant does not suffer a functional impairment. It notes that following the accident, the applicant progressed in her hairstyling career into owning her own business and she was competing in hairstyling competitions. It further notes that the applicant was driving, exercising in the gym regularly, and generally living a rather active lifestyle, suggesting no functional impairment.

28The applicant relies on the decisions in C.D. v. Aviva, 2020 CanLII 30414 (ON LAT) and T.S. v. Aviva, 2018 CanLII 8350 (ON LAT), to support the assertion that a diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain. While I accept that a diagnosis of chronic pain is not required, I find that it is still incumbent on the applicant to provide evidence of the ongoing or recurrent pain that she experiences as a result of the accident, and which results in a functional limitation.

29I am persuaded by the decision in Y.X.Y v. The Personal Insurance Company, [2017] CanLII 59515 (ON LAT), cited by the respondent, which found that ongoing pain is not sufficient to establish a functional impairment. The decision stated:

For chronic pain to be more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.

30I find that the applicant has provided insufficient medical evidence to support that she suffers from ongoing pain or chronic pain or from any functional limitations. The applicant’s submission that she has remained symptomatic despite receiving treatment over the past years is not supported by the evidence. The applicant has not submitted any medical evidence to support that she followed the recommendations of her treating physicians or that she participated in any physical therapy. I further find that the applicant has not provided me with any treatment plans or CNRs setting out the treatment that she received or documenting her ongoing complaints. Post-accident there is insufficient evidence of a significant decrease in the applicant’s physical fitness or ability to work as a hairstylist and insufficient evidence that she suffers a functional impairment. My reasoning is based on the following findings.

31Firstly, the applicant relies upon the report of Dr. Marchie, physiatrist, dated July 3, 2018. I find that Dr. Marchie does not diagnose the applicant with chronic pain and he does not provide any discussion of a functional impairment. The applicant submits that Dr. Marchie recommended that she continue with chiropractic therapy, massage therapy and physiotherapy. However, upon review of the report of Dr. Marchie, I find that there was no recommendation for further therapy except for the use of ice, voltaren cream, a wrist brace and tennis elbow straps. Despite the applicant being told to follow up in one month, I find that no further records were provided from Dr. Marchie to support that the applicant had a follow-up assessment.

32Secondly, upon review of the note from Dr. Lam, pain consultant, dated October 1, 2021, relied upon by the applicant, I find that there is no diagnosis of chronic pain or a discussion of the applicant’s level of pain or functional impairment. I find that in the update provided by Dr. Lam, he simply stated the diagnosis as left shoulder tendonitis and driving anxiety. Dr. Lam recommended shoulder stretches and strengthening, continuation with exercise and that there was no role for nerve blocks. I find that no additional CNRs of Dr. Lam were provided documenting any treatment or further recommendations.

33Thirdly, I find no diagnosis of chronic pain in the assessment report of Dr. Samadi, rheumatologist, dated December 3, 2022, relied upon by the applicant. I find that Dr. Samadi diagnosed the applicant with mild supraspinatus tendinitis and advised her to undergo physiotherapy. I find that Dr. Samadi further advised that if the applicant did not receive any benefit from physical therapy she could return for a steroid injection. I find that no further records of Dr. Samadi were provided and there is no indication that the applicant returned to see Dr. Samadi for a steroid injection.

34Fourthly, the applicant is relying upon the CNRs of Dr. Kato, family doctor. I find that there is no diagnosis of chronic pain or a referral to a chronic pain specialist. I note that there are only two clinical notes authored by Dr. Kako, dated January 22, 2022 and March 22, 2022. While the applicant submits that she was monitored by Dr. Kako as of June 2020, the complete CNRs of Dr. Kako have not been provided. In the CNR dated January 22, 2022, Dr. Kako states that the applicant requested a referral for physiotherapy and a referral to pain specialist Dr. Basil for her left shoulder. Dr. Kako referred the applicant to Saint Elizabeth for physiotherapy but there is no referral note to Dr. Basil in the CNRs. The CNR further states that the applicant was disappointed with Dr. Samadi’s recommendation for a cortisone injection. I find that other than mentioning that the left shoulder was not better from the accident in 2017, no other further physical complaints were made, and no further assessment or diagnosis was made by Dr. Kato. I find that the note from March 22, 2022, deals with pelvic pain unrelated to the accident.

35Fifthly, upon review of the CNRs from Saint Elizabeth Rehab Center provided on January 16, 2023, the only document contained in the records is a Patient Information Form, dated August 9, 2022, which lists left shoulder RC tendinopathy. The applicant submits that she attended at the clinic and received treatment for the left shoulder, but she was unable to continue with physiotherapy because the funding for the treatment was not approved. I find that there are no actual CNRs or notes with respect to the applicant receiving any treatment. I further find that the applicant has not provided me with a copy of any treatment plan or denial letter by the respondent to support that funding for the physiotherapy treatment was denied by the respondent.

36I further find the reports of Dr. Oshidari, physiatrist, submitted by the respondent, persuasive that the applicant suffered a minor injury and that she has not demonstrated a functional impairment as a result of her ongoing pain. In his report, dated April 25, 2018, Dr. Oshidari concluded that based on his assessment, the applicant sustained sprain/strain of the cervicolumbar spine and a contusion of the shoulder, which fit under the definition of a minor injury and can be treated under the MIG. His assessment failed to reveal any structural or physiological abnormalities to account for her presentation and limitation of function and that there were no physical impairments. In his Addendum Report dated August 10, 2018, Dr. Oshidari concluded that after his review of the new submitted documentation, his original opinion remains unchanged. A further assessment was completed by Dr. Oshidari on May 28, 2021, where he again concluded that the applicant sustained a minor injury.

37The applicant in her reply submissions stated that the respondent failed to refer to the six criteria described in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“Guides”). I find that it is the applicant’s onus to prove that she suffers a diagnosis of chronic pain. I find that nowhere in her submissions are the criteria set out or evidence provided that she meets any of the six criteria set out in the Guides. I give no weight to the submission that the respondent did not refer to the criteria in its arguments.

38The respondent also submits that the applicant has failed to disclose relevant medical evidence at this hearing that was led in support of her removal from the MIG and entitlement to medical and rehabilitation benefits that she relied upon in the hearing on her previous application. Specifically, the respondent submits that Dr. Karmy’s Chronic Pain report was not submitted by the applicant in her submissions in this matter because it was rejected by the Tribunal in the previous decision where the Tribunal preferred the evidence of the s. 44 IE assessors. As neither party has provided me with a copy of the report of Dr. Karmy, I am unable to consider the relevance of that report to the issues in dispute.

39For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.

c. The applicant is not removed from the MIG on the basis of psychological injuries

40I find that the applicant has not proven on a balance of probabilities that that she suffers from a psychological impairment that would remove her from the MIG.

41The applicant submits that she suffers a psychological impairment as a result of the accident. In support of her position, she relies on the report of Dr. Lwam Ghebrehariat, psychiatrist, dated June 30, 2023. Dr. Ghebrehariat found that the applicant meets the criteria for Generalized Anxiety Disorder, Post-traumatic Stress Disorder (“PTSD”), as well as a history of childhood abuse, Major Depressive Disorder and Complex Post-traumatic Stress Disorder. Dr. Ghebrehariat recommended a biopsychosocial approach to her treatment. The applicant submits that she underwent psychotherapy with Dr. Ghebrehariat commencing in May 2023.

42The respondent submits that following the release of the previous decision of the Tribunal, where it was found that the applicant’s injuries were minor, the applicant obtained the report of Dr. Ghebrehariat. The respondent submits that this report was prepared more than five years after the accident occurred and should not be considered by the Tribunal because it is not an accurate reflection of the applicant’s accident-related condition. The respondent submits that the diagnoses provided by Dr. Ghebrehariat are completely at odds with the totality of the medical evidence. The respondent relies on the s.44 IE report of Dr. Garry Challis, psychologist, dated May 9, 2018 and the Addendum report dated August 10, 2018, which concluded that the applicant did not present with any significant levels of impairment, limitation or disability as a direct result of any psychological symptoms resulting from the accident. The respondent further submits that the applicant has not provided any medical evidence from her family doctor or treating doctors, to support that she suffered a psychological impairment from the accident.

43I find the decision cited by the respondent of N.S. v. Intact Insurance Company [2022] CanLII 69914 (ON LAT), persuasive. In this decision, the Tribunal held that the applicant in that case did not sustain a psychological impairment and should not be removed from the MIG since the family doctor’s records did not support that conclusion. I find that where a decision rests on conflicting medical opinions and inconsistences, other sources of information like the CNRs of the applicant’s family doctor and treatment clinic, become more important.

44I find that the applicant has not provided me with any CNRs from Dr. Kato, her family doctor, documenting her psychological complaints. The only document provided is a Psychotherapy Referral Form signed by Dr. Kato, dated May 1, 2023, which notes “possible PTSD secondary to MVA Nov 2017”. The CNRs of Dr. Kato that were submitted by the applicant dated August 1, 2021 to December 17, 2022, however, do not note any psychological complaints.

45I find that while the applicant has referred in her submissions to the report and diagnosis of her treating psychologist Dr. Tenenbaum, the report and CNRs of Dr. Tenenbaum have not been provided in the applicant’s submissions. In addition, the applicant has not provided me with any other CNRs documenting her psychological complaints in the years leading up to the assessment by Dr. Ghebrehariat.

46Upon review of Dr. Ghebrehariat’s report, I do not place weight on his report for the following reasons:

i. Dr. Ghebrehariat noted that the most relevant documents that he reviewed for his purpose as a psychiatrist, are the psychological report by Dr. Gary Challis, dated April 13, 2018 and the psychological report by Dr. Silvia Tenenbaum dated October 15, 2018. I find that the applicant has not submitted either of these reports into evidence, which are relevant to the issues in dispute;

ii. Dr. Ghebrehariat states that the applicant has pre-existing significant trauma symptoms from her childhood trauma which have significantly complicated her condition and recovery and may prevent her from achieving maximal recovery. I find that the applicant has not provided any corroborating medical evidence to support her pre-accident psychological condition;

iii. Dr. Ghebrehariat notes in terms of function that the applicant’s current medical health condition significantly impedes her ability to function to her fullest. I find that this is contradictory to his findings that the applicant attends the gym regularly and does yoga and that she works 4-7 days a week, 8 hours a day. He lists her job duties as managing the team, teaching hair cutting and barbering, travelling for work and completing virtual education. No specifics are provided by Dr. Ghebrehariat as to how her psychological condition results in functional limitations;

iv. Dr. Ghebrehariat notes that a significant amount of time has passed since the applicant’s previous psychological assessments and they do not fully reflect her current mental health status. I find that the applicant has not provided any medical evidence to support that she reported any psychological issues or received any psychological treatment following the accident up until the date of Dr. Ghebrehariat’s assessment; and

v. Dr. Ghebrehariat notes that as he is a psychiatrist, he is only properly qualified to provide a professional opinion on her mental health condition. I find that he is therefore not qualified to comment on the applicant’s physical condition. His recommendations for ongoing physiotherapy, physical activity and complementary techniques such as massage and acupuncture are out of the realm of his expertise.

47I place weight on the IE reports of Dr. Challis, psychologist, dated May 9, 2018 and August 10, 2018, submitted by the respondent. These assessments were conducted shortly after the accident. Dr. Challis reviewed the medical documentation that was available at the time of his assessment including the treatment plan by Dr. Tenenbaum, psychologist, dated February 7, 2018, which recommended a psychological assessment. Dr. Challis noted in his assessment that the applicant denied feeling depressed and maintained strong motivation toward her recovery. She noted that while she had some anxiety associated with car trouble, she was able to drive independently with some increased vigilance and anxiousness. Dr. Challis noted that the applicant specifically stated that she does not feel that she requires psychological intervention for any ongoing issues that are present as a direct result of the accident. She stated that if she did seek out such treatment, it would more likely be for issues associated with her childhood abuse rather than the accident. Dr. Challis’ Addendum Report dated August 10, 2018, concluded that after his review of the new submitted documentation, his original opinion remained unchanged.

48While I accept that the applicant’s psychological condition might have changed subsequent to the report and findings of Dr. Challis, the applicant has not provided any CNRs supporting that she made psychological complaints or received any psychological treatment following the accident up to the date of the assessment by Dr. Ghebrehariat, more than 5-years post-accident. I find that the applicant has not provided sufficient evidence to support a finding that her psychological complaints merit removal from the MIG.

49For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident and therefore she is not removed from the MIG on this basis.

The applicant is not entitled to disputed physiotherapy treatment plan or physiotherapy expenses

50As the applicant continues to be within the MIG, and the MIG limits have been exhausted, the applicant is not entitled to the physiotherapy treatment plan or the physiotherapy expenses in dispute.

The applicant is not entitled to the cost of the CNRs of Dr. Kato

51I find that the applicant is not entitled to payment of the CNRs of Dr. Kato.

52The applicant claims entitlement to $200.00 for the CNRs of Dr. Kato, submitted September 2, 2020. The applicant claims that the respondent acknowledged that payment would be issued for the CNRs. She relies upon the email correspondence dated March 24, 2022, where the respondent stated,

Regarding the fee for clinical notes and records, we do not appear to have a copy of the CNRs in question in our file. Upon receipt of the CNRs, we would be pleased to issue payment to your firm.

53The applicant also relies upon the email correspondence dated October 28, 2022, where the respondent stated, “once you’ve provided these records, I will have a look and hopefully we can have another discussion.”

54The respondent submits that it is not required to reimburse the applicant for the costs of these records because it did not request these records, nor did it agree to pay for them. The respondent relies upon the email to the applicant’s counsel dated September 4, 2020, where it acknowledged receipt of the invoice for the CNRs of Dr. Kato, dated September 2, 2020. The email states:

The CNRs themselves were not attached. We have confirmed that neither Aviva nor it’s representative in this case, Kristopher Angle of Evans Philip have requested these records. As a result, we will not be issuing payment for same.

55I find that the email dated September 4, 2020, clearly references the CNRs of Dr. Kato, dated September 2, 2020. It also confirms that the respondent did not receive the records or request the records, so no payment would be issued.

56I find that there is no evidence provided to support that the records were received by the respondent. The applicant has not provided a copy of these CNRs or a copy of the invoice for these CNRs in her submissions. I further find that the letters dated March 24, 2022 and October 28, 2022, do not clearly indicate what CNRs are being referred to nor is there an agreement by the respondent to pay for any records.

57As I find that there is no evidence that the respondent received these records nor that the respondent agreed to pay for these records, the applicant is not entitled to payment of the CNRs in dispute.

Interest

58Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant continues to be within the MIG and there is no overdue payment of benefits, there is no interest payable.

ORDER

59For the reasons outlined above, I find:

i. The applicant’s injuries meet the definition of “minor injury” under the Schedule;

ii. The applicant is not entitled to payment of the physiotherapy treatment plan, physiotherapy expenses, or CNRs of Dr. Kato in dispute;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.