Gaylord v. Aviva Insurance Canada, 2024 CanLII 69887

Citation: Gaylord v. Aviva Insurance Canada, 2024 ONLAT 22-006689/AABS

Licence Appeal Tribunal File Number: 22-006689/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:

Kristopher Gaylord

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Kristopher Gaylord, Applicant Neha Kohli, Paralegal

For the Respondent: Aviva Insurance Canada Aleah Thomas, Counsel

HEARD: In Writing

OVERVIEW

1Kristopher Gaylord, the applicant, was involved in an automobile accident on October 20, 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 the respondent, Aviva Insurance Company, 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. Is the applicant entitled to $15,689.28 for chronic pain services from Avella Injury and Pain proposed by Sangita Sharma in a Treatment Plan (OCF-18) dated September 26, 2022, denied by the respondent on January 11, 2023?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the Minor Injury Guideline (MIG). The MIG limits have been exhausted, he is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest.

ANALYSIS

The applicant has not demonstrated that removal from the MIG is warranted.

4Section 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.”

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 section 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.

6The applicant submits that he should be removed from the MIG on five grounds:

i. The accident is not a necessary cause of impairment from which the applicant is suffering.

ii. His diagnosis of heightened anxiety and Post Traumatic Stress Disorder (PTSD) which occurred on December 7, 2021.

iii. His pre-existing condition which was diagnosed in May 2018, and June 6, 2019, being controlled type 1 diabetes, with complications including bilateral retinopathy, diabetic nephropathy and cardiovascular diseases.

iv. His psychological impairments due from the accident.

v. His current chronic pain as a result of the accident.

Causation

7Based on the evidence, I find that, on a balance of probabilities the accident was not a necessary cause of the impairment from which the applicant is suffering. 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: Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that he would not have suffered the injuries “but for” the accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. The applicant further argues that if he is unable to meet the “but for” test in Sabadash, the test set out in the recent Divisional Court decision. Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554, should be applied namely, that a material contribution test can be applied in exceptional circumstances where there are two or more tortfeasors.

8I find that the applicant’s ongoing complaints of neck, back and shoulder pain are precisely the same issues he was experiencing for years prior to the accident on October 21, 2020. The accident is not the cause of the ongoing impairments.

9The applicant submits that he should be removed from the MIG as a result of the post-accident impairments of personality change with heightened anxiety, and PTSD, for which he was prescribed sertraline and advised to engage in counseling. The applicant’s experienced improvement in his mood and anxiety and later the impairment was completely resolved.

10The respondent submits that the applicant has not demonstrated that ‘’but for’’ the accident he would not have developed his post-diagnoses of heighted anxiety and PTSD. Consequently, the respondent argues that he has not discharged his burden with regards to causation. It draws attention to the clinical notes and records of Dr Amjad Junaid which states that the subject accident cannot possibly be the necessary cause of the applicant’s condition when his post-accident issues and diagnoses are identical to those present pre-accident. An event that occurred in October 2020 cannot be attributable as a cause of condition the applicant complained of in September 2020, following his June 2019 accident. The respondent submits that although the applicant was diagnosed with heightened anxiety after the accident, there is no evidence that it was caused by the accident.

11In Barkho v Intact Insurance Company, 2023 CanLII 23588(ON LAT), Adjudicator Warr made reference to a case with similar issues and evidence (para 8). He found that the applicant’s pre-existing pain was not caused or exacerbated by the accident because his pain complaints prior to the accident were consistent with those following the accident, both in frequency and severity.

12I agree with the respondent and find that the applicant has not demonstrated that his heightened anxiety and PTSD were caused by the accident. At the time of the accident the applicant was already off work because of his involvement in a previous motor vehicle accident in June 2019 in which he alleged that he suffered a concussion, headache, head pain and neck pain. I have reviewed the clinical notes and records of Dr Junaid which indicate that the applicant’s heighted anxiety and PTSD occurred after he was diagnosed with a head injury and cervical strain prior to the same accident and in relation to which he was still receiving physiotherapy treatment when the subject accident occurred.

13I find that the applicant has not demonstrated that he has an accident-related injury that warrants removal from the MIG.

14The respondent asserts that during the examination conducted by the respondent’s assessor, Dr. Bruce Ballon, on December 30, 2022, the applicant denied that he was involved in the accident that occurred on December 7, 2021, in which the applicant was struck as a pedestrian and flew into the hood of the vehicle that hit him.

An x-ray of the cervical spine on February 24, 2021, corroborated the applicant’s subjective report as it revealed no bone or joint abnormities. He was referred to an orthopedic surgeon for his subjectively reported shoulder pain but neglected to attend the appointment.

15I find the medical evidence, including the OCF-3, the clinical notes and records of Dr. Junaid, and the insurer’s examination (“IE”) assessments conducted by the respondent, all consistently indicate the applicant suffered soft tissue injuries as a result of the accident.

Pre-existing medical condition and concussion

16I find the applicant has not demonstrated that a pre-existing condition documented by a medical practitioner, prevents maximal medical recovery under the MIG.

17I consider that section 18(2) provides that insured persons with minor injuries who have a pre-existing medical condition may be removed from the MIG. Section 18(2) requires the applicant to provide compelling evidence demonstrating:

1. there was a pre-existing medical condition that was documented by a medical health practitioner before the accident; and

2. the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

18I find that the medical evidence shows that the applicant had numerous pre-existing conditions including diabetes nephropathy, peripheral neuropathy, and endocrinological challenges which were compounded by difficulty in managing his insulin regimen and dietary control, an injury to his index finger and injuries sustained in the June 6, 2019, accident.

19The issue to be decided is whether these conditions prevent maximal recovery within the MIG limits.

20In his submissions, the applicant focuses on his pre-existing diabetes condition. it is not sufficient to simply show there is a pre-existing condition or conditions, nor is it sufficient to show it is impacting the applicant’s quality of life. It is the applicant’s onus to provide compelling medical evidence that the condition or conditions prevent maximal recovery within the MIG.

21At the time of the accident the applicant was already off work due to his involvement in a previous motor vehicle accident on June 6, 2019, in which he suffered a concussion, headache, neck pain and back pain, and was diagnosed with a head injury and cervical strain, in relation to which he was still receiving physical therapy for bilateral shoulder tendinopathy. On September 25, 2020, three weeks before the subject accident, the applicant advised Dr Junaid that he believed he had suffered concussion in the June 2019 motor accident and requested a referral for an assessment. The applicant had dizziness and vomiting – which he claimed were the early signs of possible concussion.

22I find that the applicant’s pre-existing diabetes was not exacerbated by the accident because his pain complaints prior to the accident are consistent with his complaints following the accident, both in frequency and severity.

23As a result, I find the applicant has not met his evidentiary burden to demonstrate that he requires treatment outside the MIG due to a pre-existing medical condition.

The applicant does not suffer from a concussion and post-concussion symptoms as a direct result of the accident.

24I find that the applicant has not met the onus and has not demonstrated that his accident-related injuries and impairment warrant removal from the MIG.

25The applicant has not substantiated his claim of sustaining a concussion in the subject accident. Although the Emergency room visit notification dated October 20, 2020, had indicated that the applicant suffered from concussion, but the respondent relies on diagnostic imaging of applicant ‘s head dated October 21, 2020, received from Hamilton Health Sciences Diagnostic Services which showed there is no intracranial hemorrhage, no sign of mass effect sulcal effacement, midline shift or brain herniation and no acute intracranial abnormalities of the applicant’s head. Based on the totality of the evidence before me, I place more weight on the examinations carried out by Hamilton Health Sciences Diagnostic Services which indicate that the diagnoses is not concussion. Concussion syndrome are brain injuries, according to recognized health authorities such as Health Guide Canada and the American Association of Neurological Surgeons (AANS).

26The applicant saw Dr. Junaid on at least six separate occasions after the subject accident without mentioning any accident-related impairments. On February 4, 2021, the applicant advised his doctor that his neck pain had started to resolve. An x-ray of the cervical spine dated February 24, 2021, corroborated the applicant’s subjective report, as it revealed only mild degenerative changes with no acute findings.

27On September 13, 2021, the applicant underwent diagnostic imaging of his right shoulder which revealed no bone or joint abnormalities. He was referred to a orthopedic surgeon for his subjectively reported shoulder pain and neglected to attend the appointment, further demonstrating the minor nature of his post-accident inquiries.

28I find that there is no objective indication that his ongoing injuries were exacerbated by the accident. I find the evidence including the OCF-3, the clinical notes and records of Dr. Junaid of Henderson Juravinski Hospital, the Insurer examination(‘’IE’’) assessments of Dr Bruce Ballons and Dr Sharma indicates the applicant suffered soft tissue injuries as a result of the accident.

29The applicant was assessed by psychiatrist Dr. Jiang who found no evidence of panic disorder, social anxiety disorder, depressive disorder, mania, hypomania, or psychosis. Rather, Dr Jiang rendered a specific diagnosis of PTSD with Panic Attacks in partial remission. These post-accident anxieties are notably, specifically triggered by the activity of driving itself. This is understandable, given his involvement in three consecutive accidents.

30In any event, I find that according to s. 25 and s. 44 assessors, the applicant’s injuries are soft injuries: right shoulder strain, thoracic strain, neck strain, low back strain and headaches.

Psychological Condition

31The applicant was diagnosed with adjustment disorder with anxiety and Specific phobia related to Driving, both of which can be associated with chronic pain. The applicant was assessed by Dr Ballon the IE, from a psychological stand point by the insurer examination on December 14, 2022.

32The applicant was assessed by psychiatrist Dr. Jiang who found no evidence of panic disorder, social anxiety disorder, depressive disorder, mania, hypomania, or psychosis. Rather, Dr Jiang rendered a specific diagnosis of PTSD with Panic Attacks in partial remission. These post-accident anxieties are notably, specifically triggered by the activity of driving itself. This is understandable, given his involvement in three consecutive accidents.

33The respondent IE recommended a driving reintegration program to ameliorate the specific driving phobia and titration of his Sertraline medication to manage any residual anxiety symptoms. Dr Sharma indicated that the Beck inventory placed the applicant in the mild range for anxiety and depression.

34As a result, I find the applicant was diagnosed with mild Specific Driving Phobia, which is the only psychological issue and has not met his onus to demonstrate he has a psychological impairment that warrants his removal from the MIG.

The Applicant does not suffer from chronic pain with functional limitations.

35The applicant argues that he should be removed from the MIG based on an accident-related condition. In support of his position, the applicant relies on an OCF-3 prepared by Dr. William Salameh, chiropractor on May 5, 2021, which provides that the applicant sustained injury to muscle and tendon of the neck, sprain and strain of thoracic spine, tension-type headache and Sprain and Strain of lumber spine.

36The applicant participated in a chronic pain assessment on January 19, 2022.The applicant was examined by Dr Sangita Sharma, who prepared her independent chronic pain assessment report dated January 19, 2021. According to her, there was a full range of motion in the bilateral shoulder and a positive bilateral supraspinatus test. There was no evidence of crepitation or instability in any of the extremity joints. The neurological examination was normal.

37The respondent relies upon an IE assessment conducted by Dr Kopyto on November 2, 2022. Dr Kopyto ‘s assessment of the applicant revealed normal active ranges of motion and fluid movement in the neck, shoulders, and upper and lower back.

38The applicant was assessed by Dr. Ballon from a psychiatric point of view. The assessor diagnosed the applicant with a mild Specific Driving Phobia which is the psychological issue he identified related to the subject accident. Dr Ballon determined that the applicant pain was not directly related to the subject accident. Dr Ballon therefore recommended a Driving Reintegration Program to ameliorate the specific driving phobia, and the prescription Sertraline to manage any residual anxiety symptoms.

39The Tribunal has looked at the criteria under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6^th^ ed. (the “AMA Guides”), which the Tribunal has accepted setting out factors to be considered when assessing whether the applicant chronic pain may remove him from the MIG.

Dr. Sharma’s report

40I am not satisfied that the applicant has chronic pain as a result of the accident

41These criteria include:

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

2. excessive dependence on healthcare providers;

3. secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain;

4. withdrawal from one’s social milieu, including work, recreation and other social contacts;

5. failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family, or recreational needs.

6. and the development of psychosocial sequelae after the initial incident including anxiety, fear avoidance, depression, or non-organic illness behaviours.

42In her report dated January 19, 2022, Dr. Sharma addresses the criteria under the AMA Guides. However, for reasons below, I assign less weight to her opinion.

43I find that the applicant does not meet any of the six AMA criteria for assessing chronic pain. He is taking Tylenol off the counter (alleviates pain). This statement is based on self reporting by the applicant. Pertaining to criteria 2) Dr Sharma states that the applicant depends on health care providers, and is dependent on his sister, girlfriend and son. I find that the applicant does not depend on health care providers. With respect to criteria 3) to secondary physical deconditioning due to disuse or fear or avoidance of physical activity due to pain. Dr Sharma is relying on applicant’s self-reporting. On criteria 5) the applicant has been without employment since June 6, 2019. On criteria 6) the applicant submits that he was diagnosed with the following because of the index accident: posttraumatic stress disorder, mild Concussion Syndrome and Acquired brain Injury.

44I find that the applicant does not meet any of the six criteria before me for assessing chronic pain.

45Dr Fink opined that any ongoing pain and daily limitation could be exacerbating or contributing to the applicant’s psychological symptoms. Dr Ballon and Dr Jiang concluded that the applicant accident-related psychological issues are triggered by driving, not by pain.

46I find that the applicant does not suffer from chronic pain with functional impairment and is not removed from the MIG on that basis.

47I find that the applicant has not established on a balance of probabilities that his accident-related impairments warrant treatment beyond the MIG. As the applicant has exhausted the MIG limit, he is not entitled to the treatment and assessment plan in dispute.

Interest

48As there are no benefits payable, the applicant is not entitled to interest pursuant to s.51 of the Schedule.

ORDER

49The applicant has not demonstrated that his accident-related impairments. warrant treatment beyond the Minor Injury Guideline (MIG). The MIG limits have been exhausted, and therefore he is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest in accordance with s.51 of the Schedule.