Charmaine Delantar v. Aviva General Insurance, 2024 CanLII 126294

Licence Appeal Tribunal

Citation: Delantar v. Aviva General Insurance, 2024 ONLAT 22-005510/AABS

Licence Appeal Tribunal File Number: 22-005510/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:

Charmaine Delantar

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Manisa Kafai, Counsel

For the Respondent: Evan Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Charmaine Delantar, the applicant, was involved in an automobile accident on August 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

2The applicant has made arguments in their submissions regarding an award under section 10 of Reg. 664 and the applicant's entitlement to an award. The respondent has argued that a special award was not a part of the original AABS application nor was it a part of the issues in dispute in the Case Conference Report and Order dated February 27, 2023. Furthermore, the applicant did not seek to add the issue either via motion with the Tribunal or through consent by the respondent. Therefore, no special award shall be considered as it would be procedurally unfair and prejudicial to the respondent.

ISSUES

3The issues in dispute are:

a. 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?

b. Is the applicant entitled to $2,286.22 for chiropractic services, proposed by 101 Physio in a treatment plan/OCF-18 ("plan") submitted May 4,2021, and denied May 18, 2021?

c. Is the applicant entitled to $198.79 ($1,298.79, less $1,100.00 approved) for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 ("plan") submitted November 24, 2020, and denied December 16, 2020?

d. Is the applicant entitled to the assessments proposed by 101 Assessment Centre, as follows:

i. $2,460.00 for a driving assessment, in a treatment plan submitted December 8, 2021, and denied December 20, 2021?

ii. $2,460.00 for a neuropsychological assessment, in a treatment plan submitted December 8, 2021, and denied December 20, 2021?

iii. $2,460.00 for an orthopaedic assessment, in a treatment plan submitted December 8, 2021, and denied December 20, 2021?

iv. $2,460.00 for a chronic pain assessment, in a treatment plan dated March 1, 2021, and denied April 20, 2021?

v. $2,460.00 for a neurological evaluation, in a treatment plan dated March 1, 2021, and denied April 20, 2021?

vi. $2,460.00 for an orthopaedic assessment, in a treatment plan submitted December 29, 2020, and denied December 17, 2020?

e. Is the applicant entitled to interest on any overdue payments?

RESULT

4I find that the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore the applicant is subject to the Minor Injury Guideline.

5The applicant is not entitled to any interest.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG)

6Section 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."

7An 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.

The applicant's injuries fall within the minor injury guideline

8The applicant relies primarily on the psychological report of Dr. Lital Grinberg dated December 29, 2020 and the chronic pain report of Dr. Grigory Karmy dated June 30, 2022.

9Dr. Grinberg diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder with predominant pain: severe, and a vehicular driving phobia.

10Dr. Karmy diagnosed the applicant with chronic post-traumatic headache, possible mild traumatic brain injury with associated persisting symptoms, chronic mechanical neck pain, chronic mechanical bilateral shoulder pain, chronic mechanical upper and mid back pain, chronic mechanical lower back pain, SI joint dysfunction, myofascial pain syndrome, chronic pain syndrome, sleep disorder. The applicant argues that the report of Dr. Grinberg shows significant psychological impairments as a result of the motor vehicle accident and these impairments warrant removal from the MIG. The applicant also argues that the diagnosis of chronic pain by Dr. Karmy, and the assertion that the applicant meets the criteria for Chronic Pain Syndrome as per American Medical Association (AMA) Guides support their case.

11The respondent relies primarily on the orthopaedic assessments of Dr. Gilbert Yee dated March 10, March 31 and April 7, 2021, the neurological assessment of Dr. Paul Ranalli, dated June 18, 2021 and the psychological assessment of Dr. Ariel Zielinsky, dated August 15, 2022. The respondent also argues that the applicant did not report to the ER doctor that she hit her head or lost consciousness as a result of the accident. Lastly, the respondent argues that the records of the applicant's family physician, Dr. Keltz, do not align with the reports of the applicant's assessors.

12The reports of Dr. Yee show that the applicant had some difficulty with home maintenance and housekeeping, reported having back pain and had returned to driving. Dr. Yee found that the applicant had functional range of motion and exhibited symptoms of myofascial strains of the cervical and thoracolumbar spine, consistent with injuries that would keep the applicant in the MIG.

13Dr. Ranalli completed a neurological assessment and opined that the applicant did not suffer from a significant neurological impairment as a result of the motor vehicle accident. Dr. Ranalli diagnosed the applicant with whiplash which is consistent with an injury that can be treated under the MIG limits. The assessment of Dr. Zielinsky found a 95% improvement in her psychological symptoms and 70-80% improvement in her physical symptoms. Dr. Zielinsky found that the applicant had returned to pre-accident activities of daily living and opined that the applicant had reached maximum medical recovery.

14The onus is on the applicant to prove that, based on the balance of probabilities, the motor vehicle accident caused an impairment that is outside of the s. 3 definition of "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." Alternatively, the applicant has the onus to prove that chronic pain with functional impairment or a psychological condition warrants removal from the MIG.

15I prefer the evidence provided by the respondent as it more closely reflects the injuries reported to ER doctors and also the applicant's family physician, Dr. Keltz. Dr. Keltz conducted a thorough exam of the applicant and found that she suffered from a back strain. Additionally, the diagnostic imaging revealed that the applicant suffered from a degenerative disease which is unrelated to the accident.

16Further, I have given less weight to the reports of the applicant's assessors as their reports are inconsistent with what the applicant reported to other medical professionals. The reports of Dr. Grinberg and Dr. Karmy rely on information provided by the applicant, which is not seen in other assessors reports. The applicant reported to three assessors that she could do household chores however, to Dr. Karmy and Dr. Grinberg she reported that she has a difficult time completing household activities.

17I agree with the respondent that the applicant has failed to meet the test necessary to be diagnosed with chronic pain because the applicant's self reporting is inconsistent. Furthermore, the applicant was able to go back to work full time without any evidence of restrictions. Notwithstanding the report of Dr. Karmy, based on the applicant's own actions and reports to other medical professionals, it seems highly unlikely that the applicant suffers from chronic pain as defined in the AMA Guides, 6th edition because the applicant does not have at least 3 of the 6 criteria needed to be diagnosed with chronic pain. The applicant has failed to show that she has an overuse or abuse of prescription medication, an over dependence on the health care system or family, a withdrawal from social functioning, a secondary physical deconditioning due to disuse and/or fear, a failure to restore to pre-injury functioning or a development of psychosocial sequelae after the motor vehicle accident.

18Therefore, I find that the applicant's injuries are minor injuries as defined in the Schedule and as such, the applicant shall remain in the MIG.

19Having determined that the applicant remains within the MIG, an analysis into the reasonableness and necessity of the treatment plans is not required.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to any of the treatment plans in dispute, no interest is awarded.

ORDER

21I have issued the following orders:

i. The applicant shall remain in the MIG.

ii. The applicant is not entitled to any of the treatment plans in dispute.

iii. No interest is awarded.