Citation: Byrne v. Aviva Insurance Company of Canada, 2024 ONLAT 21-010164/AABS

Licence Appeal Tribunal File Number: 21-010164/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:

Lisamarie Byrne

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Nicole Walker, Counsel

For the Respondent:

Natalie Spinelli, Paralegal

HEARD:

By Way of Written Submissions

OVERVIEW

1Lisamarie Byrne (the “applicant”) was involved in an automobile accident on January 28, 2017, 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 Insurance Company of Canada (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 $2,000.00 for a chronic pain assessment, proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“OCF-18”) dated August 31, 2020, and denied on December 11, 2020?

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

4. Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

4The applicant is not entitled to the OCF-18 in dispute as it proposes goods and services outside of the MIG, and the $3,500.00 funding limit.

5The applicant is not entitled to interest.

6The respondent is not liable to pay an award.

PROCEDURAL ISSUE

Dr. Hall’s report, dated April 26, 2023, will be considered for the purposes of this hearing

7I admit Dr. Hall’s report, dated April 26, 2023, as evidence for this hearing for the reasons outlined below.

8The Case Conference Report and Order (“CCRO”), dated December 2, 2022, was clear that the deadline for documents not previously disclosed but which the parties intended to rely upon for the hearing was due 90 calendar days after the case conference (i.e., March 2, 2023).

9Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.

10In its submissions, the respondent argues that the report of Dr. Hall, dated April 26, 2023, be struck from the evidentiary record as the document was served after the production deadline of March 2, 2023, as set out in the CCRO. The respondent did not specify in its submission when the applicant submitted the report of Dr. Hall, dated April 26, 2023, to the respondent.

11In reply, the applicant submits that the report of Dr. Hall, dated April 26, 2023, was served on the respondent on April 26, 2023, the same day she received the report. The applicant further submits that the respondent’s submissions were due by July 21, 2023, and as such, it had ample time to obtain an addendum report or request an additional s. 44 assessment.

12I find that Dr. Hall’s report, dated April 26, 2023, is relevant to the issues in dispute, despite the applicant being in breach of the CCRO. Pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S. 22, documents relevant to the issues in dispute are admissible as evidence.

13The respondent also did not provide submissions or evidence as to prejudice it would suffer, if any as a result of this late disclosure being admitted. I also note that while the applicant submitted that Dr. Hall’s report did not contain new information that was not already produced, his report summarized an entry from March 23, 2023, which has not been tendered as evidence for the purposes of this hearing. The respondent did not raise this issue in its submissions. In any event, even if the respondent suffered prejudice, the evidence’s probative value outweighs it. Moreover, if the respondent required additional time to review the material, it could have filed a motion with the Tribunal under Rule 15 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”) and requested an extension of time to file its responding submissions. It did not do so.

14To sum up, I do not agree that the respondent has been prejudiced by the late submission of the report of Dr. Hall, dated April 26, 2023, as a result, I will admit the report into evidence, and accord it whatever weight that I deem appropriate in the context of rendering my decision.

ANALYSIS

The applicant has not demonstrated that she should be removed from the MIG

15I find that the applicant has failed to demonstrate, on a balance of probabilities, that she suffers from an injury or condition that warrants removal from the MIG.

16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

17An 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 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.

18In all cases, the burden of proof lies with the applicant.

19The applicant submits that as a result of the accident, she suffers from ongoing left arm and shoulder pain, caused by an injury to her left sternoclavicular joint. In particular, the applicant argues that she has developed degenerative subluxation of the sternoclavicular joint, which causes pain and limits her day-to-day activities. To this end, she relies on the clinical notes and records of her treating orthopaedic surgeon, Dr. Jeremy Hall; X-ray of the left shoulder, dated October 31, 2017; MRI of the left shoulder, dated October 31, 2017; soft tissue ultrasound, dated March 28, 2018; and MRI of the brain and cervical spine, dated October 25, 2018.

20The respondent submits that the applicant’s ongoing left shoulder pain complaints are a result of degenerative changes and not as a result of the subject accident. The respondent further submits that the applicant has been diagnosed with intermittent left sternoclavicular subluxation which is contained within the definition of a “minor injury”. The respondent relies on the clinical notes and records of Dr. Albert Hanna, family physician, Dr. Hall, and s. 44 assessor, Dr. John Heitzner, physiatrist.

21As the respondent raised a causation issue with respect to the applicant’s left shoulder pain, I will be addressing this first. The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities. The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause” (see: Sabadash v. State Farm et al., 2019 ONSC 1121).

22The applicant has established on a balance of probabilities that the accident was a necessary cause of her subluxation of the left sternoclavicular joint and instability. I am alive to the respondent’s submission that Dr. Hall in his report, dated April 26, 2023, opined that when he assessed the applicant on December 19, 2019, he found her pain to be consistent with a degenerative subluxation of the sternoclavicular joint. However, Dr. Hall in his records dated December 19, 2019, and December 16, 2021, noted that the impact from the accident was mostly on the left side of the vehicle, and that the applicant has a left sternoclavicular joint injury which occurred during the accident. As such, the applicant has produced a medical opinion that links the subject accident and her impairment.

23The applicant does not need to show that the accident was the sole cause of her impairment but a necessary cause, so while Dr. Hall noted that the applicant had degenerative subluxation, he has also opined that the applicant has a left sternoclavicular joint injury from this accident.

24In my view, the respondent’s submissions concede that the applicant sustained subluxation of the sternoclavicular joint and instability from the accident. For example, the respondent submitted that Dr. Hall and s. 44 assessor Dr. Heitzner diagnosed the applicant with intermittent left sternoclavicular subluxation and that its position was that the diagnosis of sternoclavicular joint instability is likely the associated sequelae of the applicant’s minor injuries.

25Indeed, Dr. Heitzner was asked by the respondent to confirm the diagnosis and its origin as related to the accident and he answered that affirmatively with a diagnosis of left sternoclavicular joint instability with subluxations intermittently. Accordingly, I find that Dr. Heitzner’s report assists the applicant’s position that these impairments are caused by the accident.

26I am not persuaded by the applicant’s position that her diagnosis of a chronic condition and painful, permanent disability to her left sternoclavicular joint made on December 16, 2021, by Dr. Hall alone is sufficient to remove her from the MIG. The applicant has not provided persuasive evidence to demonstrate her chronic condition has had a detrimental effect on her overall functionality. While the applicant submitted that her daily pain from this “chronic condition” has resulted in impairments to her daily activities, she did not specify which activities were affected, nor did she refer me to evidence to support this position.

27Nonetheless, I reviewed the evidence provided and find that the applicant’s self-reporting to Dr. Hall and Dr. Heitzner does not paint a picture of someone with pain that has a detrimental effect on her overall functionality. For example, on December 19, 2019, Dr. Hall noted that the applicant was working, albeit the applicant reported she was sedentary and was not doing exercises in the gym. The applicant advised Dr. Hall on November 5, 2020, that she was taking care of two children at home, as well as working, albeit the applicant reported that she no longer played softball.

28On December 16, 2021, the applicant self-reported to Dr. Hall that she was not interested in surgery for her left sternoclavicular injury as she has young children at home, and she was also the caregiver for her older parents. The applicant self-reported to Dr. Heitzner on March 18, 2021, that she returned to work following her maternity leave on full hours and full duties, that her sleep is generally fine (unless she has a flare up), and that she shares the household chores with her husband but avoids vacuuming or cleaning the floor or the shower. The applicant also advised Dr. Heitzner that she was independent with tasks of her personal hygiene and required assistance from her husband with removing tight-fitting tops only.

29I am not persuaded by Dr. Hall’s report, dated April 26, 2023, and assign it limited weight. Dr. Hall concluded that the applicant has “ongoing functional limitations” however he did not specify which limitations, and what caused these limitations. I also note that the report summarizes two previous visits where Dr. Hall saw the applicant. It was noted that on December 19, 2019, the applicant had “intermittent pain” in her left sternoclavicular joint which affected a number of her typical day-to-day activities both at work and home. However, I note in Dr. Hall’s full entry, dated December 19, 2019, that while Dr. Hall noted that the applicant was sedentary and was not exercising in the gym, there is no reference to whether her pain affects her work or home activities.

30It appears that Dr. Hall did not speak to the applicant when completing his report, dated April 26, 2023, and instead reviewed and summarized two clinical notes and records (December 19, 2019, and March 23, 2023). As noted above, the record for December 19, 2019, did not reference whether the applicant’s pain affected her work or home activities and the March 23, 2023, entry was not tendered as evidence. As such, it is unclear where Dr. Hall got this information from.

31Dr. Hall also summarized a previous visit, which took place on March 23, 2023, and in which the applicant self-reported that her pain “mid her day-to-day activities”. In my view, it is unclear what Dr. Hall meant by this as I’m unable to determine what “mid” means in this context. Also, as noted above, the applicant did not produce a full copy of this entry, as such, I assign references to the March 23, 2023, date little weight.

32Given the applicant’s described level of function, I am not satisfied that her left sternoclavicular pain has caused a functional impairment. I acknowledge that the applicant has self-reported that she is unable to play softball, has not returned to the gym, has difficulty with removing fitted tops, and avoids vacuuming or cleaning the floor/shower. The applicant has returned to work, is the caregiver of two children and her older parents and is independent with the vast majority of her housekeeping and personal care tasks. As such, the applicant has not demonstrated that her overall functionality has been impacted by her ongoing pain.

33Additionally, I find that the applicant does not meet the criteria in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“Guides”). The applicant had an opportunity in reply to address the Guides but chose not to do so. 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 contracts;

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.

34I agree with the respondent that the applicant has not established that she meets three out of the six criteria as set out in the Guides for establishing chronic pain. The applicant has not pointed me to or tendered evidence that shows she is dependent or abuses prescription drugs or other substances. The applicant in her own submissions, argued that she sees Dr. Hall on an annual basis, which in my opinion does not constitute as being “excessively dependent.” The applicant has also self-reported to Dr. Hall that not only does she take care of her two children, but she is also the caregiver of her parents. Similarly, the applicant has not led evidence of secondary physical deconditioning.

35Also, although the applicant reported that she has not returned to softball, the gym, and has some difficulty with personal care tasks and household tasks, there is no evidence that she has withdrawn from work or other social contacts or that she failed to restore pre-injury function sufficient to pursue work or family needs. Finally, the applicant did not make submissions or point me to evidence that shows that she experiences psychosocial sequelae, other than her self-reporting that she has vehicular anxiety following the accident.

36For the sake of completeness, I also note that the applicant summarized several diagnostic imaging for her left shoulder, and cervical spine. I note that on October 6, 2017, the x-ray of the applicant’s left shoulder revealed a suspicion (not an actual diagnosis) for a low-grade partial thickness intra-substance tear. In any event, a partial thickness tear is captured within the definition of a “minor injury”.

37The applicant has not provided submissions or pointed me to evidence that supports that the results from her MRI of her left shoulder and soft tissue ultrasound are connected to her left sternoclavicular injury. The applicant has also not provided submissions or pointed me to evidence that establishes a connection between the mild degenerative changes in her cervical spine and the subject accident.

38Considering the above, I find that the applicant has not satisfied her onus to prove, on a balance of probabilities, that her injuries warrant removal from the MIG.

The applicant is not entitled to the OCF-18 in dispute as it proposes treatment outside of the MIG

39I find that the applicant is not entitled to the OCF-18 in dispute because it proposes goods and services outside of the MIG and the $3,500.00 funding limit.

40The applicant has submitted that the respondent paid $2,101.95 in medical/rehabilitation benefits as of September 14, 2022. The respondent did not contest this in its submissions.

41The OCF-18 in dispute proposes treatment outside of the MIG. The disputed OCF-18 has the “No” box at the bottom of page two of the form checked, denoting that the treatment recommended therein was for an impairment that was not predominantly a minor injury. Therefore, the applicant’s entitlement to the benefit in this plan is contingent on a finding that her injuries are not included within the minor injury definition in the Schedule.

42As I have determined above that the applicant’s injuries are within the MIG, I find that the applicant is not entitled to the disputed OCF-18.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

43Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not liable to pay an award

44Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award and interest if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant remains in the MIG and is not entitled to the OCF-18 in dispute, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

45For the reasons outlined above, I find that:

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

ii. The applicant is not entitled to the OCF-18 in dispute because it proposes goods and services outside of the MIG and the $3,500.00 funding limit.

iii. The applicant is not entitled to interest.

iv. The respondent is not liable to pay an award.