Roberts v. Aviva General Insurance, 2024 CanLII 41008

Citation: Roberts v. Aviva General Insurance, 2024 ONLAT 21-015484/AABS

Licence Appeal Tribunal File Number: 21-015484/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:

Justin K. Roberts

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Thulasi Kandiah, Counsel

HEARD: By way of written submissions

OVERVIEW

1Justin K. Roberts (“the Applicant”) was involved in an automobile accident on February 8, 2020 and sought from Aviva Insurance Company of Canada (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The Respondent characterized the Applicant’s injuries as falling within the minor injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

3The Applicant’s written submissions exceeded the 10-page limit, contrary to an order by the Tribunal. In response, the Respondent noted that the Applicant consented to it exceeding the page limit by the same amount, and proceeded to make written submissions that are also beyond the page limit ordered by the Tribunal.

4While I appreciate that the parties were able to agree on a page limit for submissions, they are not permitted to exceed the page limit ordered by the Tribunal. Thus, both parties are in breach of a Tribunal order because they failed to seek leave to exceed the page limit for written submissions.

5However, for the sake of efficiency and finality, I will permit the submissions on this occasion. I caution the parties and their counsel, and any future litigant before the Tribunal, that the practice of unilaterally agreeing to exceed the page limit on written submissions, as ordered by the Tribunal, is a breach of a Tribunal order and should be avoided. Any party who wishes to increase the page limit for written submissions must to file a motion with the Tribunal to do so.

ISSUES

6The issues to be decided in the hearing are:

1. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“the MIG”)?
2. Is the Applicant entitled to attendant care benefits (”ACBs”) in the amount of $373.28 per month for the period from February 13, 2020, to date and ongoing?
3. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period from March 09, 2020, to February 08, 2022?
4. Is the Applicant entitled to a medical benefit in the amount of $1,825.00, less $1,073.14 approved by the Respondent, for physiotherapy services, proposed by Health-Pro Wellness (HPW) in a treatment plan/OCF-18 (“plan”) dated May 13, 2020?
5. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for psychological assessment, proposed by HPW in a plan dated July 9, 2020?
6. Is the Applicant entitled to a medical benefit in the amount of $2,683.18 for physiotherapy services, proposed by HPW in a plan dated November 19, 2020?
7. Is the Applicant entitled to a medical benefit in the amount of $4,289.93 for psychological services, proposed by HPW in a plan dated April 13, 2021?
8. Is the Applicant entitled to a medical benefit in the amount of $2,288.31 for physiotherapy services, proposed by HPW in a plan dated May 18, 2021?
9. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit for medical benefits.

8Pursuant to section 14(2) of the Schedule, the Applicant is not entitled to ACBs because he sustained a minor injury.

9The Applicant is not entitled to NEBs.

10No interest is payable because no payments went overdue.

BACKGROUND

11The Applicant was the driver of a sedan that was struck on the front passenger side by a merging vehicle. The vehicle he was driving was then struck from behind by another vehicle. The Applicant sought no medical attention at the time of the accident but met with his family physician, Dr. E. Khan, two days later, on February 10, 2020, and was diagnosed with soft tissue injuries, referred for physiotherapy and chiropractic treatment, and prescribed medication to use as needed. The Applicant then started treatment at HPW, pursuant to the MIG.

12The Applicant claims that he developed psychological injuries and chronic pain since the accident, which are not injuries within the minor injury definition. The Respondent disagrees and maintains that the Applicant sustained a minor injury.

ANALYSIS

Minor Injury Guideline (“the MIG”)

13The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

14The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

15For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

The Applicant does not suffer from a chronic pain condition

16I find that the Applicant has not demonstrated that he suffers from a chronic pain condition which would be considered an injury that is not included in the minor injury definition.

17Contrary to the Applicant’s submissions, I find no evidence in the clinical notes and records (“CNRs”) from Dr. R. Tarulli, chiropractor, nor from Dr. Khan, that demonstrates the Applicant suffers from an ongoing functional impairment due to pain. The disability certificate by Dr. Tarulli, dated February 13, 2020 is from the acute phase in the Applicant’s recovery and holds limited weight when determining whether the Applicant suffers from an ongoing functional impairment due to pain. Dr. Khan’s CNRs show that the Applicant had five sporadic appointments between the accident and September 7, 2021, which included complaints of neck, back, and elbow pain. In return, he was regularly advised to engage in physiotherapy, chiropractic treatment, and take prescription medication. There is no evidence in Dr. Khan’s records that indicate a referral to another physical medicine specialist, such as a physiatrist, or to a pain clinic, or to limit his activities due to his injuries. While Dr. Khan referred the Applicant to a psychologist, the reason stated is due to anxiety and not due to any somatic pain disorder. Dr. Khan’s CNRs include no objective assessment of the Applicant’s functionality and fail to indicate that he suffers an ongoing impairment due to accident-related pain. At most, it appears from Dr. Khan’s hand-written notes that the Applicant reported on November 10, 2020 that his pain was increased by daily activities and lifting – not that he is unable to do those tasks due to pain.

18I prefer the IE report by Dr. G. Yee, orthopaedic surgeon, dated April 7, 2021, which concluded that the Applicant sustained a minor injury. The report stemmed from an assessment dated November 3, 2020, which included a review of Dr. Khan’s CNRs, the Applicant’s decoded OHIP summary, the other IE reports, and the Applicant’s claims forms. Dr. Yee’s assessment is contemporaneous in that it occurred nearly nine months after the accident, which is after the acute phase of the Applicant’s recovery. The report notes that the Applicant was independent with his personal care but reported that he has some help with heavier household chores. This note is consistent with Dr. Khan’s CNRs. On examination, Dr. Yee noted that the Applicant exhibited some decreased range of motion (“ROM”) in his neck, low back, and right elbow but concluded that it is residual symptomology related to soft-tissue injuries. Dr. Yee maintained this opinion in subsequent paper review reports, dated February 19, 2021, March 1, 2021, and April 7, 2021.

19Objective testing documented in the report by occupational therapist Shafi, dated April 7, 2021, demonstrates that the Applicant is not impaired by pain. The report notes that objective testing revealed that the Applicant’s ROM is within functional range, but for external rotation of his right shoulder. Occupational therapist Shafi reported that the Applicant was predominantly independent with all self-care, mobility, and household chore activities.

20The Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). The Tribunal has previously determined that an Applicant suffers from chronic pain if they meet at least three of the six criteria outlined in the AMA Guides. Here, the Applicant has not demonstrated he meets at least three criteria. There is no evidence to suggest that he is dependent on health care providers or using or abusing prescription medication beyond the recommended duration. The reports indicate that the Applicant has not deconditioned due to disuse, and he remains independent with his personal care and activities of daily living. While the Applicant reported some psychological symptoms, which I will address in more detail later in this decision, I find that they are sequalae of his soft tissue injuries. In a similar vein, the Applicant reports a withdrawal from social milieu, there is no evidence to support this other than his submissions. In any event, meeting one or possibly two criteria is insufficient when measuring chronic pain according to the AMA Guides.

21The Applicant provided no prescription summary or other evidence to demonstrate that he is dependent on prescription medication or other substances. The Applicant visited a walk-in clinic once for accident-related issues and is not excessively dependent on family members or healthcare providers and he has exhibited no secondary deconditioning due to disuse, as evident in the various assessments. The Applicant returned to his pre-accident functioning. He is independent with his activities of daily living and has returned to his pre-accident work duties. While he claims a withdrawal of social milieu, I see no compelling evidence which supports this claim.

22There is no evidence before me that upsets the findings of Dr. Yee and occupational therapist Shafi and demonstrates that the Applicant is functionally impaired by pain. The Applicant has not demonstrated that he meets the criteria for chronic pain syndrome as outlined in the AMA Guides. Accordingly, I am unable to conclude that the Applicant suffers from a chronic pain condition as a result of the subject accident.

The Applicant has not sustained a psychological injury as a result of the accident

23I find that the Applicant has not demonstrated that he sustained a psychological injury as a result of the accident.

24I prefer the IE report of S. Schwartz, psychologist, dated April 7, 2021 (“the Schwartz assessment/report”) over the report by N. Zhukova, registered psychotherapist, supervised by Dr. E. Langis, psychologist, dated January 17, 2021 (“the Zhukova-Langis assessment/report”). I find the Schwartz assessment/report to be more thorough than the Zhukova-Langis assessment/report. The Zhukova-Langis assessment/report included no evidence to suggest a review of the Applicant’s medical records occurred. It appears that this resulted in an over-reliance on the Applicant’s self-reported history which is inconsistent with his medical evidence. Notably, the Applicant reported in the Zhukova-Langis assessment/report that he was diagnosed with a concussion at the hospital following the accident, but there is no record he was examined at the hospital, and there is no evidence to suggest he sustained a concussion in the accident. The psychometric test results in the Zhukova-Langis assessment/report noted that he also produced an invalid profile for pain patients but this issue is left unaddressed in the conclusion of the report. Further, the Zhukova-Langis assessment/report recommends a neuropsychological assessment due to “substantial cognitive difficulties”, yet there is no indication the Applicant suffers from accident-related cognitive difficulties. These discrepancies cause me to give the report little weight and they highlight the importance of obtaining and reviewing medical records in part of an assessment.

25The Applicant made one complaint of anxiety and sleep issues to Dr. Khan, which is insufficient to conclude that the Applicant sustained a psychological injury as a result of the accident. On September 2, 2021, the Applicant reported that he experienced anxiety and sleep issues. In response, Dr. Khan issued a medical note, recommending a psychologist for anxiety as a result of a motor vehicle accident. Remarkably, the September 2, 2021 entry does not mention that the Applicant participated in a psychological assessments with psychotherapist Zhukova and Dr. Langis, as well as psychologist Schwartz earlier that year. Thus, it appears that Dr. Khan was unaware that the Applicant engaged in two psychological assessments earlier that year. I give little weight to Dr. Khan’s recommendation considering that it appears to have been made in ignorance to the psychological assessments that the Applicant previously engaged in.

26I prefer the report and findings from psychologist Schwartz, dated April 7, 2021. Psychologist Schwartz reviewed Dr. Khan’s CNRs, the other IE reports, and the Applicant’s claims forms, and conducted a clinical interview and psychometric testing before concluding that the Applicant does not require psychological treatment. The report notes that the Applicant stated that he did not feel that he needed or wanted psychological treatment and that he did not appear to be in a psychologically reactive state with regard to the accident. Psychologist Schwartz noted that the Applicant reported a few symptoms of anxiety, but attributed those to issues beyond the subject accident. The Applicant’s complaints and Dr. Schwartz’ findings are consistent with the information in Dr. Khan’s CNRs.

27I find that the Applicant has not demonstrated that he suffers from a psychological injury as a result of the accident. Based on this finding, combined with my finding that the Applicant does not suffer from chronic pain as a result of the accident, I conclude that the Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

ACBs and the treatment and assessment plans in dispute

28Pursuant to section 14.2 of the Schedule, the Respondent is not liable to pay for ACBs if the impairment is a minor injury. Having concluded that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to attendant care as a result of the accident.

29The treatment and assessment plans in dispute proposed goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. Considering this, I find that the Applicant is not entitled to the treatment and assessment plans in dispute because he sustained a minor injury as a result of the accident.

NEBs

30I find that the Applicant has not demonstrated that he is entitled to NEBs.

31Pursuant to section 12 of the Schedule, to qualify for NEBs the Applicant must suffer from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The test for NEBs involves consideration of the Applicant’s activities and life circumstances prior to the accident and compares them to his activities and life circumstances following the accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Pursuant to Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the Applicant must demonstrate that his life circumstances have changed and that the change must be significant enough to continuously prevent him from substantially engaging in all the activities that he engaged in before the accident.

32The Applicant submits that he is entitled to NEBs due to a myriad of injuries. He highlights his self-reported difficulties with bending, prolonged postures such as sitting and standing, and prolonged walking due to low back and right knee pain. He also submits that he hired a cleaner for his house and was unable to resume active pursuits such as playing hockey, hiking, skiing, and tobogganing with his kids. Whereas the Respondent submits that the Applicant has consistently reported independence with his personal care, prepares meals for himself and assists with cooking as he did prior to the accident, resumed most housekeeping duties, resumed driving, and continues with his childcare responsibilities.

33I agree with the Respondent and find that the Applicant is not entitled to NEBs because he does not suffer a complete inability to carry on a normal life as a result of the accident. The difficulties reported by the Applicant are not supported by the medical evidence and fail to indicate a complete inability to carry on a normal life. As noted previously, the report by occupational therapist Shafi found functional range of motion and concluded that the Applicant was predominantly independent with all self-care, mobility, and household chore activities.

34Objective testing documented in the report by occupational therapist Shafi, dated April 7, 2021, demonstrates that the Applicant is not impaired by pain. The report notes that objective testing revealed that the Applicant’s ROM is within functional range, but for external rotation of his right shoulder. Occupational therapist Shafi reported that the Applicant was predominantly independent with all self-care, mobility, and household chore activities.

35Psychologist Schwartz found no accident-related psychological impairment. The report made no indication that the Applicant was impaired by psychological injuries and noted that the Applicant continues to care for his children and resumed driving. Similarly, Dr. Yee’s report also indicates that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Yee concluded that the Applicant experienced residual symptomology related to his soft tissue injuries with no signs of radiculopathy or myelopathy, and noted that he was independent with his personal care and most housekeeping tasks. Both Dr. Yee and psychologist Schwartz concluded that the Applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

36Upon review of the evidence and submissions, I agree with the findings of Dr. Yee and psychologist Schwartz that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident.

Interest

37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

CONCLUSION and ORDER

38The Applicant sustained a minor injury as a result of the accident. He is not entitled to the treatment and assessment plans, nor ACBs, because those benefits are not included in the MIG.

39The Applicant is not entitled to NEBs because he does not suffer a complete inability to carry on a normal life as a result of the accident.

40No interest is owed as no payments went overdue.

41The Application is dismissed.