Licence Appeal Tribunal File Number: 22-002267/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:
Shirley Lewis
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Rebbecca Phillips, Counsel
For the Respondent:
Rajesan Rajendran, Counsel
HEARD:
In writing
OVERVIEW
1Shirley Lewis, (the “applicant”), was involved in an automobile accident on April 12, 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 Insurance 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:
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 $2,195.00 for occupational therapy services, proposed by Ross Rehabilitation in a treatment plan (“OCF-18”) dated July 20, 2021?
iii. Is the applicant entitled to $1,829.09 for physiotherapy services, proposed by Precision Physiotherapy in an OCF-18 dated February 24, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are found to be minor and fall within the MIG.
4The applicant is not entitled to the OCF-18 for occupational therapy services.
5The applicant is not entitled to the OCF-18 for physiotherapy services.
6The applicant is not entitled to interest.
ANALYSIS
7Section 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.”
8An 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.
9An 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.
10The applicant submits that she suffers from pre-existing injuries, psychological injuries and chronic pain, and should be excluded from the MIG. The respondent disagrees.
The applicant’s pre-existing conditions do not exclude her from the MIG
11The applicant submits that her pre-existing osteoarthritis was exacerbated by the accident. She relies on the clinical notes and records (“CNRs”) of her primary care clinic of January 20, 2021, as well as an undated record which states she suffers from pre-existing osteoarthritis, the x-ray of her back dated January 21, 2021, the OCF-18 of Joya Sohani, physiotherapist, dated February 24, 2021, and the OCF-18 of Robyn Carter, occupational therapist, dated July 20, 2021,
12The applicant also relies on the matter of 16-004272 v Continental Casualty Insurance Company, 2017 CanLII 63661 (ON LAT) and Casavant v Belair, 2022 CanLII 75152 (ON LAT). In these matters, applicants with osteoarthritis who suffered accidents were removed from the MIG due to their pre-existing conditions.
13The applicant also submits that due to her pre-existing history of addiction, she is unable to use typical pain-relieving medications. The applicant relies on the CNRs of her treatment centre of April 12, 2017, and January 25, 2018.
14The respondent submits that the applicant has not shown how her pre-existing conditions prevent her from recovering if she is kept within the confines of the MIG.
15The respondent relies on the OCF-18 of Ms. Sohani, physiotherapist, the OCF-18 Ms. Carter and the Insurer’s Examination (“IE”) of Dr. Pankaj Bansal, physician, dated August 26, 2021.
16The respondent submits that matter 16-004272 v Continental Casualty Insurance Company and that Casavant v Belair are distinct from the subject matter, and therefore, are not relevant.
17I find that the applicant has not shown that her pre-existing conditions prevent her from recovery if she is kept within the confines of the MIG. I agree with the applicant’s position that she has shown she was diagnosed with osteoarthritis before her accident, as shown in the CNRs of her primary care clinic. I also agree that the applicant has shown that she complained of back pain after her accident, as seen in her OCF-18s.
18However, I was not shown any contemporaneous records from the applicant’s primary care clinic, that commented on or supported that the applicant’s condition stopped her from reaching maximum medical recovery.
19I also found that Dr. Bansal’s evidence was persuasive, as the doctor was able to review the applicant’s medical records and OCF-18s, physically assess the applicant and determine that her injuries fell within the MIG, despite her pre-existing conditions. I did find it strange that the applicant did not report her pre-existing injuries during the IE as the applicant reported an “entirely unremarkable health history.”
20I also agree with the respondent that the applicant’s disputed OCF-18s did not note the applicant’s pre-existing conditions and found this concerning.
21I find that matters 16-004272 v Continental Casualty Insurance Company and Casavant v Belair are not relevant. In 16-004272 v Continental Casualty Insurance Company, the applicant was able to show she required further medication and treatment after the accident, which is not the case for the subject matter. Therefore, I did not consider this matter.
22In Casavant v Belair, the applicant provided evidence of requiring hospital treatment immediately after her accident and the disputed OCF-18 acknowledged the applicant’s pre-existing conditions being barriers to recovery within the MIG. In the subject matter, the applicant did not receive treatment until months after the accident and her pre-existing conditions were not noted on the disputed OCF-18s. Therefore, I also did not find this matter relevant.
23I also was not provided with contemporaneous medical evidence that explored the impact and barriers to recovery that the applicant’s addiction issues could cause her. Without evidence that comments on this, I cannot find that her pre-existing condition prevents her from reaching maximum medical recovery.
The applicant did not suffer a psychological injury as a result of the accident
24The applicant submits that as a result of her accident, she suffers from anxiety, post-traumatic stress disorder (“PTSD”) and driving anxiety and should be removed from the MIG. The respondent disagrees.
25The applicant relies on the CNR and intake from her physiotherapy clinic dated February 4, 2021, the OCF-18 of Ms. Sohani, and the OCF-18 of Ms. Carter.
26The respondent relies on the OCF-18 of Ms. Sohani, and the CNR and intake from her physiotherapy clinic dated February 4, 2021,
27I find that the applicant has not shown that she suffers a psychological injury as a result of the accident. I agree with the respondent that the OCF-18 of Ms. Sohani did not formally diagnose the applicant with PTSD. I must also note that diagnosing mental health issues fall outside of Ms. Sohani’s scope of practice as a physiotherapist.
28Moreover, I would have expected this type of diagnosis to be supported with contemporary medical evidence from a physician, such as one of the treatment providers at the applicant’s primary care clinic, which was not the case.
29I also did not find Ms. Carter’s OCF-18 persuasive that the applicant suffered from psychological issues as a result of the accident. I note that Ms. Carter did not formally diagnose the applicant with any mental health issues, and instead noted the applicant’s self-reported symptoms. Though I appreciate Ms. Carter’s observations, mental health diagnoses are beyond her scope of practice. Therefore, I did not find her evidence persuasive.
30I also agree that the intake from the applicant’s physiotherapy clinic of February 4, 2021, from Ms. Sohani, showed she reported “a bit of anxiety with driving”. However, again, I would have expected the applicant to provide contemporary medical evidence to support her diagnosis. This was not the case.
The applicant does not suffer from chronic pain requiring removal from the MIG
31The applicant submits that her pre-existing osteoarthritis has resulted in chronic pain. The respondent disagrees.
32The applicant relies on the CNRs from her primary care clinic, her x-ray, the intake records from the applicant’s physiotherapy clinic, the OCF-18 of Ms. Sohani, and the OCF-18 of Ms. Carter.
33The respondent relies on the applicant’s CNRs from her chiropractic clinic from June 15, 2021, to June 8, 2022
34The respondent submits that the applicant does not have a diagnosis of chronic pain. The respondent further submits that even if she did, having said diagnosis does not automatically remove them from the MIG and relies on 16-000501 v Dumfries Mutual Insurance Company, 2017 CanLII 15834 (ON LAT). It submits that the Tribunal found that noting self-reported pain to a medical practitioner without further testing does not satisfy the evidentiary onus that an applicant suffers from chronic pain requiring removal from the MIG.
35The respondent also notes that the applicant did not address the American Medical Association’s Guidelines (the “AMA Guidelines”) and its definition of chronic pain syndrome, as seen in 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT). An applicant must fulfil at least three of the six criteria to be found to have chronic pain syndrome, and 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.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors
36The respondent submits:
i. The applicant does not abuse or overuse medication or other substances, based on her pre-existing addiction issues.
ii. The applicant has not provided evidence of an overreliance on healthcare providers, a spouse or family. The respondent submits that there are gaps in the applicant’s treatment based on her records, and that the applicant has not shown that her pain is as a result of the accident.
iii. The applicant continues to work and drive and therefore, has not withdrawn from her social engagements.
iv. The applicant is independent in her self-care without major issue.
37I find that the applicant has not shown that she suffers from chronic pain requiring removal from the MIG as a result of the accident.
38I agree that the applicant provided evidence that she complained of pain to her primary care clinic in January of 2021, in her physiotherapy intake, and to her chiropractor in 2021 and 2022.
39However, I also agree that the applicant has not been diagnosed formally with chronic pain or chronic pain syndrome. A chiropractor, physiotherapist and occupational therapist are not qualified to diagnose chronic pain. Instead, I would have expected the applicant to provide ample contemporaneous evidence from her primary care clinic or a medical specialist, which was not the case.
40I also agree that self-reports of pain to medical professionals is not evidentiarily sufficient to demonstrate that one suffers from chronic pain requiring removal from the MIG. I found matter 16-000501 v Dumfries Mutual Insurance Company persuasive, as it addressed a similar situation and afforded it weight.
41I also find that the AMA Guidelines are not binding on the Tribunal but are a useful tool for assessing an applicant’s chronic pain when there is no formal diagnosis of such. Therefore, I found 17-007825 v Aviva Insurance Canada persuasive and chose to adopt the AMA Guidelines.
42I agree that the applicant did not show that she fulfilled at least three of the six criteria of the AMA Guidelines. To this, I agree that the applicant presented little to no evidence regarding overuse of medication or substances, overreliance on healthcare or other support, withdrawal from the social milieu and that she suffered secondary physical deconditioning or a failure to restore pre-injury function.
43Since the applicant has not fulfilled the AMA Guides criteria, I find that she has not shown she suffer from chronic pain requiring removal from the MIG.
44I also agree that since the applicant carries the burden of proving her case, and has not done so, means that she has not met the legal test. Therefore, her injuries are found to fall within the MIG. As the applicant’s injuries fall within the MIG, I do not need to address the issue of the disputed OCF-18s.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have found that no benefits are overdue, no interest is payable.
ORDER
46The applicant’s injuries fall within the minor injury guideline.
47The applicant is not entitled to the OCF-18 for occupational therapy services nor the OCF-18 for physiotherapy services.
48The applicant is not entitled to interest.
Released: January 22, 2024
__________________________
Stephanie Kepman
Adjudicator