Citation: O'Connor v. Aviva Insurance Company of Canada, 2024 ONLAT 21-015020/AABS

Licence Appeal Tribunal File Number: 21-015020/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:

Rhea-Racquel O'Connor

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Nikolai Singh, Paralegal

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rhea-Racquel O'Connor, the applicant, was involved in an automobile accident on October 26, 2018, 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 treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,486.00 for physiotherapy services, proposed by Humber River Medical Diagnostics in a treatment plan/OCF-18 (‘plan’) dated August 6, 2020?

iii. Is the applicant entitled to $2,880.37 for a chronic pain assessment, proposed by Medex Assessments Inc. in a plan dated December 20, 2021?

iv. Is the applicant entitled to $1,382.24 for chirophysiotherapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a plan dated February 12, 2022?

v. Is the applicant entitled to $2,680.22 for chirophysiotherapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a plan dated December 7, 2021?

vi. Is the applicant entitled to $2,900.00 for a psychological assessment, proposed by Dr. Jeremy Frank in a plan dated December 20, 2021?

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

RESULT

3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

4Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits under the MIG that were already incurred up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

The applicant sustained predominantly minor injuries which do not warrant removal from the MIG

5I find that the applicant sustained predominantly minor injuries as a result of the accident which do not warrant removal from the 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.

8The applicant made limited submissions specific to the MIG. She did not specify the grounds in which she claims to warrant removal from the MIG. However, from the applicant’s submissions, I infer that she submits that her pre-existing medical conditions precludes maximal medical recovery if she was kept within the MIG treating limit, and that her accident-related physical injuries have become chronic pain to the extent that would justify removal from the MIG. She relies on the clinical notes and records (“CNRs”) from various general physicians and a s. 25 psychological assessment report by Dr. Karen Gordon, psychologist.

9The respondent submits that causation is a live issue because the applicant sustained injuries from a subsequent workplace accident that happened around three months post-accident (“workplace accident”). It submits that most of the applicant’s post-accident medical records, from the date of the car accident until October 2022, relate to the workplace accident. Further, the respondent asserts that only three post-accident CNRs dated October 30, 2018, January 21, 2022 and October 8, 2022, relate to the subject accident and relies on the s. 44 reports (“IE”) by Dr. Maria Nesterenko, physician, and by Dr. Terra Seon, psychologist.

10I agree with the respondent that there were limited CNRs from the applicant’s family physicians that relate to her car accident-related injuries. I find the CNR dated October 30, 2018, diarized the only visit to her family physician after the subject accident and before the workplace accident.

11On October 30, 2018, Dr. Jerry Leung, family physician at a walk-in clinic, documented the applicant’s complaint of some posterior neck pain, photophobia, “felt a bit hazy/dazed…some lumbar pain, no headache” as a result of the accident and diagnosed the applicant with lumbar and cervical strain. He recommended physiotherapy, massage, and prescribed Naproxen and Diclofenac topical cream. No diagnostic imaging tests were requested at this time. I find that Dr. Leung’s diagnosis falls squarely within the definition of a minor injury as defined by the Schedule.

12An OCF-3 dated January 24, 2019, provides that the accident-related injuries sustained by the applicant include injury of muscle and tendon at neck level and thorax level, sprain and strain of ribs and sternum and thoracic spine, tension headache and low back pain. An x-ray dated January 24, 2019, of her cervical spine and lumbar spine confirmed that they appeared normal. I find that the applicant’s injuries, whether sustained in the subject accident or the workplace accident, are all minor injuries as defined by the Schedule.

13Contrary to the applicant’s submission that she suffered a “mild concussion, soreness to her left side and was prescribed pain medication” as a result of the accident, I find that the applicant was in fact referring to her visit to Dr. Leung on January 22, 2019, about her workplace injuries. During this appointment, Dr. Leung noted the applicant’s report that she fell down the stairs at her workplace, and complaints of a mild headache, feeling nauseous and aching in her upper arm. After a physical examination, Dr. Leung diagnosed the applicant with minimal soft tissue injuries to “L torso/L gluteal region and R arm, perhaps mild concussion, offered WSIB, can think about and etc if needed, gravol prn for nausea (sic)”.

14I also agree with the respondent that the applicant did not visit her family physician about her accident-related injuries again until January 21, 2022 (almost four years after the accident) and on October 8, 2022. In the later visit, Dr. Leung recommended physiotherapy for her lumbar strain. Given the lapse in time after the accident and infrequent visits to her treating physicians for her accident-related injuries, I am not persuaded her injuries are not minor and warrant removal from the MIG.

15I find the applicant sustained predominantly minor injuries as a result of the accident and is therefore kept within the MIG.

The applicant has not established that any pre-existing medical conditions warrant removal from the MIG

16The applicant has not satisfied her onus of proving that her pre-existing medical conditions warrant removal from the MIG.

17The applicant submits that her pre-existing migraines, anxiety, depression, ADHD, borderline personality disorder and concussion sustained from a previous slip and fall accident were exacerbated as a result of the accident and warrant removal from the MIG. She relies on the CNRs from her other family physician, Dr. Desmond Teelucksingh.

18The respondent submits that the mere reference to a pre-existing condition does not automatically remove the applicant from the MIG. It submits that the applicant did not make any post-accident psychological complaints and has not led any contemporaneous and compelling medical evidence that her pre-existing medical conditions prevented her from achieving maximal medical recovery within the treating limit of the MIG.

19Upon review of Dr. Teelucksingh’s CNRs, I note that he diagnosed the applicant with anxiety and depression on October 24, 2016, prior to the accident. I was not pointed to any pre-accident CNRs which showed the applicant was diagnosed with any other pre-existing psychological conditions as alleged by the applicant.

20In the post-accident CNRs, Dr. Teelucksingh again diagnosed the applicant with depression and noted the applicant’s migraine complaints. I reviewed the evidence and find that there is limited compelling and contemporaneous medical evidence that the applicant’s pre-existing medical conditions prevented her from achieving maximal medical recovery within the treating limit of the MIG, which is a requirement under s. 18(2) of the Schedule.

21Given the above reasons, I find that the applicant has not established that her pre-existing medical condition warrant removal from the MIG.

The applicant has not established that she should be removed from the MIG on the grounds of chronic pain with functional impairment and psychological impairment

22While the applicant did not make substantial submissions on these grounds, she alluded to her diagnosis of chronic pain by Dr. Leung in a CNR dated October 8, 2022, and a s. 25 psychological report dated March 25, 2022, by Dr. Karen Gordon, who diagnosed her with a provisional PTSD diagnosis, as grounds to remove her from the MIG.

23I am not persuaded by Dr. Leung’s diagnosis of chronic pain as it was made almost four years after the accident and my previous finding that the post-accident CNRs from the applicant’s treating physicians were limited and sparse with respect to accident-related reports.

24While a diagnosis of chronic pain syndrome is not required, the presence of intermittent pain or a standalone diagnosis of chronic pain is not enough to justify a removal from the MIG. There must be evidence of severe or functionally disabling pain that is consistent and that affects day-to-day or work function. In this case, I find the applicant has not referred to consistent, compelling and contemporaneous evidence of chronic pain with a functional impairment as to warrant removal from the MIG.

25With respect to psychological impairment, I am not persuaded by Dr. Gordon’s s. 25 psychological report as it is deficient in key areas. Dr. Gordon did not review any medical documents including the CNRs of Dr. Teelucksingh and Dr. Leung. Dr. Gordon also did not take into account the applicant’s pre-accident diagnosis of depression. Further, Dr. Gordon noted that the applicant’s Personality Assessment Inventory (PAI) test results revealed that “her profile was overall valid but interpreted with some caution”. Dr. Gordon appears to have reached the diagnosis of “PTSD” upon reliance on the applicant’s self-reports and psychometric testing results. In my opinion, Dr. Gordon’s interpretation of the psychometric results could be different if she had the knowledge of the applicant’s pre-existing psychological conditions including depression and the infrequent and limited post-accident reports of any psychological symptoms in the applicant’s family physicians CNRs.

26Therefore, I find that the applicant has not satisfied her onus to prove that she warrants removal from the MIG on the basis of chronic pain with functional impairment or psychological impairment.

27Neither party confirmed whether the MIG treating limit of $3,500.00 has been exhausted.

28Notwithstanding the above, since I found the applicant is kept within the MIG, she is subject to the treating limit of $3,500.00.

29Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

30Accordingly, the applicant is entitled to the benefits under the MIG that were already incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

31The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

32Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits under the MIG that were already incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

33The application is dismissed.