Citation: Cranston v. Aviva General Insurance, 2024 ONLAT 22-002955/AABS

Licence Appeal Tribunal File Number: 22-002955/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:

Coreen Cranston

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Arthur Semko, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Coreen Cranston (the “applicant”) was involved in an automobile accident on October 15, 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 Aviva General Insurance (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:

1. 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? (“MIG”)

2. Is the applicant entitled to $2,660.00 for physiotherapy services, proposed by Knead Wellness in a treatment plan/OCF-18 (“OCF-18”) submitted on May 11, 2021, and denied on May 27, 2021?

3. Is the applicant entitled to $2,625.00 for physiotherapy services, proposed by Knead Wellness in an OCF-18 submitted on February 9, 2021, and denied on May 4, 2021?

4. Is the applicant entitled to $1,782.00 for the cost of a functional ability evaluation, proposed by Knead Wellness in an OCF-18 submitted on March 26, 2021, and denied on May 4, 2021?

5. Is the applicant entitled to $2,200.00 for the cost of a psychological assessment proposed by Knead Wellness in an OCF-18 submitted on February 10, 2021, and denied on May 4, 2021?

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

RESULT

3I find that:

i. The applicant remains within the MIG.

ii. The applicant is entitled to the benefits set out in the disputed OCF-18s, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

5An insured person 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 from any accident-related minor injury 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.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG as there is a reasonable possibility that she suffers from chronic pain syndrome. She also argues that there is a reasonable possibility that she suffers from a psychological impairment.

8Meanwhile, the respondent argues that the applicant sustained uncomplicated soft tissue injuries to her back and neck as a result of the accident, and she has failed to prove that she has a psychological impairment. Thus, it’s position is that the applicant’s injuries are confined to the MIG.

The applicant has not established chronic pain warranting removal from the MIG

9I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from a chronic pain condition, that would warrant removal from the MIG.

10Here, the applicant argues that she suffers from severe right shoulder pain, neck pain and back pain with radiation to her shoulders and arms, which has become chronic. She further submits that she continues to have pain and limitations despite the passage of time since the accident, thus, her position is that there is a reasonable possibility that she suffers from chronic pain syndrome. Finally, the applicant submits that she meets all of the six criteria as described in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”).

11To this end, the applicant relies upon the clinical notes and records of her family physician, Dr. Omid Aram, a psychological pre-screen report, completed by Mr. Mandeep Singh, psychological associate, dated February 10, 2021, various receipts for her prescription medicine, and a s. 44 psychologist assessment, completed by Dr. Arpita Biswas, psychologist, dated May 10, 2021.

12In response, the respondent submits that no medical professional has suggested that the applicant has chronic pain syndrome, nor does the applicant meet any of the criteria as outlined in the Guides. To support its position, the respondent relies upon the s. 44 physiatry assessment of Dr. Jennifer Gordon, physiatrist, dated April 26, 2021.

13I do not find that the applicant has met her onus to prove either accident-related chronic pain with a functional impairment or chronic pain syndrome.

14First, the records from the applicant’s family physician, Dr. Aram, do not support the applicant’s position that she has developed chronic pain or has the possibility of having chronic pain syndrome. Since the accident, the applicant has met with Dr. Aram on three occasions, in the past three and half years, the last of which was on October 27, 2020. Meanwhile, she met with Dr. Aram for unrelated medical visits from March 2021 to June 2021. In my opinion, this weakens the applicant’s claims of alleged chronic pain or chronic pain syndrome, as one would expect to see more frequent visits, if that was the case.

15Significantly, the applicant has not met her family physician for her accident-related impairments since October 27, 2020 (the same month of the accident). I take note that the applicant appears to suggest that she met with Dr. Aram on March 3, 2021, for accident-related back pain, however I disagree. Upon review of this entry, I note that it states that the applicant reported back pain for the past two weeks, and crucially, there was no reference to the accident, as the origin of this pain. In my view, if Dr. Aram believed that the pain was related to the accident, this would have been mentioned in the records, like he did in his previous entries of October 16, 2020, and October 20, 2020.

16In my opinion, these sporadic visits to Dr. Aram do not support that the applicant suffers from chronic pain or chronic pain syndrome as a result of the accident. Moreover, Dr. Aram did not refer the applicant to any specialists, or recommend additional investigations, beyond one x-ray of the cervical spine.

17Second, at best, the applicant meets only one of the criteria outlined in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

18I am alive to the applicant’s position that she meets all of these criteria, however, I find that she has not directed me to sufficient evidence to support these claims.

19First, to address criterion (i) of the Guides, while the applicant submits that she is dependent on Naproxen, Diclofenac, and Cyclobenzaprine, and over the counter medication, she did not direct me to the medical evidence that supports this position. Nevertheless, I have reviewed the three prescription receipts produced by the applicant and note that they are all from October 2020, the same month of the accident. Thus, it is unclear how the applicant is dependent on this prescribed medication, when the evidence does not support that she has received this medication beyond October 20, 2020.

20Moreover, the applicant did not direct me to evidence that supports she is dependant on over-the-counter medication or tender evidence to support this. It is well-settled that submissions are not evidence. Regardless, this criterion refers to prescribed medication and not over-the-counter medication.

21Now turning to criterion (ii), once again, while the applicant submits that she has been continuously attending physical rehabilitation appointments, she did not direct me or tender evidence like the CNRs of her treating clinic to support this. Furthermore, I acknowledge that the applicant produced a copy of an account activity, however this does not assist her position. Indeed, according to the account activity, the last invoice for treatment was for October 2021, as such, it is unclear how she is dependant on this clinic, when she hasn’t seen them for the past two and half years.

22Aside from the applicant’s self-reporting to Dr. Biswas, the applicant has not referred me to other evidence which supports her position that she is dependant on her son and husband for her household chores and cooking. For example, while Dr. Aram recommended that the applicant remain off work until November 3, 2020, he has not provided a medical opinion that she is unable to do her daily activities as a result of the accident.

23Next, with respect to criterion (iii), aside from her submissions, the applicant has not produced evidence to support that she has physical deconditioning due to pain. As noted above, submissions are not evidence. I also take note that the applicant made several submissions that she has driving/passenger anxiety which has resulted in avoidance behavior, and she relies on her self-reporting to Mr. Singh. However, with respect, to meet this criterion, it clearly states in the Guides that the applicant has to show physical deconditioning and not psychological deconditioning. I also place little weight on the pre-screen interview of Mr. Singh, as he is a psychological associate, and as such it is outside of his scope of practice, to comment or opine on physical impairments.

24Similarly, the applicant did not direct me to the evidence that supports her argument that she has a substantial and continuous impairment in her ability to perform housekeeping/home maintenance and recreational activities to satisfy criterion (iv). Nonetheless, I have reviewed the evidence, and aside from her self-reporting to Dr. Gordon, and Dr. Biswas, she has not produced other evidence to support her position. As noted above, Dr. Aram has not opined that the applicant has an ongoing functional impairment as a result of this accident.

25Contrary to the applicant’s argument about being impaired with her recreational activities, she has self-reported to Dr. Biswas, that she continues to regularly talk with her friends and family. As such, I am not persuaded that she suffers from a substantial and continuous impairment in this regard.

26Likewise, there is insufficient evidence to show that the applicant failed to restore her pre-injury function in accordance with criterion (v) of the Guides. On the contrary, the applicant reported to Dr. Gordon, Mr. Singh, and Dr. Biswas, that she returned to her work after taking 10-12 days off. As noted above, the applicant also reported to Dr. Biswas that she continues to talk with her friends and family.

27The only criterion, the applicant meets is criterion (vi), as Dr. Biswas opined the applicant had some subclinical psychological symptoms like irritability, tiredness, lack of motivation and being more emotional than usual, which she experienced when she was limited by pain. I find this satisfies criterion (vi), as the applicant does not need to establish that she has a DSM-V diagnosis in order to meet this criterion, and having psychosocial sequelae, like subclinical psychological symptoms, which are triggered by pain, is sufficient. However, in order to establish a diagnosis of chronic pain in accordance with the Guides, the applicant has to meet at least three criteria, here, at best, she has met one, and therefore has not established she has chronic pain, that would warrant removal from the MIG.

28Lastly, I accept the description of chronic pain in T.S. v. Aviva General Insurance Company, 2020 CanLII 51295 (ON LAT) as referenced by the applicant, even though I am not bound by prior decisions of the Tribunal. However, it is well accepted by this Tribunal that, to warrant removal from the MIG, chronic pain must involve a significant disruption to an applicant’s life, not just pain of a set duration beyond three to six months and include a functional impairment.

29The applicant has not produced objective evidence to support she has an ongoing functional impairment due to her alleged chronic pain. Apart from her self-reporting to Mr. Singh, Dr. Gordon, and Dr. Biswas, she has not produced evidence like an employment file, an affidavit, or a medical opinion which supports that her work, housekeeping/home maintenance, social, recreational and any other activities have been impacted by this accident. As noted above, aside from Dr. Aram recommending the applicant remain off work for a short period of time, there is no other mention of post-accident limitations in the submitted records.

30To summarize, the applicant has not demonstrated that she suffers from either chronic pain with a functional impairment or chronic pain syndrome.

The applicant is not removed from the MIG on the basis of a psychological impairment

31The applicant has failed to prove on a balance of probabilities that she suffers from a psychological impairment that will remove her from the MIG.

32Psychological impairments are not included in the definition of minor injury at s. 3 of the Schedule. The onus is on the applicant to establish that she has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 38.

33The applicant submits that there is a reasonable possibility that she suffers from a psychological impairment. To support her position, she relies upon a pre-screen interview with Mr. Singh, wherein she was provided with a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood.

34The respondent submits that the applicant has failed to show any sort of psychological impairment that would warrant removal from the MIG. The respondent relies upon the clinical notes and records of Dr. Aram and the s. 44 report of Dr. Biswas.

35I find that the applicant has not led sufficient evidence to establish a psychological impairment warranting removal from the MIG.

36First, the clinical notes and records of Dr. Aram do not indicate that the applicant reported any psychological symptoms in the period after the subject accident. Nor did Dr. Aram diagnose the applicant with a psychological impairment, refer her for psychological treatment, or prescribe any medication for her psychological conditions.

37I am also not persuaded by the pre-screen interview conducted by Mr. Singh for the following three reasons. First, Mr. Singh did not conduct any psychometric testing, and relied solely on the applicant’s self-reporting to arrive at his conclusion, thus it is unclear how he arrived at a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood. Second, the pre-screen interview is unsupported by other contemporaneous medical evidence, like the lack of complaints to Dr. Aram. Third, Mr. Singh did not review any medical evidence.

38In contrast, Dr. Biswas, conducted an in person two hour and 15 minutes assessment, which included a clinical interview, psychometric testing (both subjective and objective), and reviewed extensive medical documentation. Following which, Dr. Biswas concluded that the applicant’s current psychological symptoms were subclinical in nature and did not meet the threshold to qualify for a DSM-V diagnostic criteria. This opinion is supported by the lack of psychological complaints to Dr. Aram.

39In conclusion, I find that the applicant has not met her burden of proof to establish that she has a psychological impairment, to warrant removal from the MIG.

The applicant is entitled to the disputed treatment plans pursuant to s. 40(8) of the Schedule

40As I have found that the applicant remains within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.

41In her submissions, the applicant argued that the respondent has paid $2,940.00 for treatment.

42The respondent’s submissions did not address whether the MIG limits were exhausted or not.

43I note that the Case Conference Report and Order, released on February 21, 2023, noted that the parties agreed that the MIG limit had not yet been exhausted. As such, I will now turn to s. 40(8) of the Schedule.

44Section 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 and/or assessments incurred under the MIG are deemed reasonable and necessary.

45Therefore, I find that the applicant is entitled to the benefits set out in the treatment plans, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule, with interest pursuant to s. 51 of the Schedule.

ORDER

46For the reasons outlined above, I find that:

i. The applicant remains within the MIG.

ii.

iii. The applicant is entitled to the benefits set out in the disputed OCF-18s, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

iv. The application is dismissed.