Licence Appeal Tribunal File Number: 23-009454/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:
Lorraine Wright
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Todd Reybroek, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Lorraine Wright, the applicant, was involved in an automobile accident on December 1, 2018, 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. 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 $2,941.38 for chiropractic services, proposed by Art Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated July 28, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4The applicant is not entitled to interest.
ANALYSIS
Does the applicant have a chronic pain impairment that would remove her from the MIG?
5Section 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. An 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 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 she suffers from chronic pain that warrants her removal from the MIG. The respondent submits that the applicant has not met her onus to prove that her injuries are predominately minor and maintains that her injuries can be treated within the confines of the MIG.
Chronic Pain
7I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment as a result of the accident.
8The applicant relies on an OCF-3 completed by Purisha Patel, Physiotherapist, dated, April 17, 2019. In the injury and sequelae Information sections, the following was noted: muscle strain, sprain and strain of shoulder joint, pain in thoracic spine, pain, and strain in thoracic spine. The anticipated duration of disability was listed as 9 to 12 weeks.
9The applicant also relies on an OCF-18 prepared by Dr. Amr El Bousa, Chiropractor of ART Rehabilitation Centre dated August 9, 2023. The applicant further relies on the CNR’s of her family doctor, Dr. Vera Cheung, and the CNR’s of ART Rehabilitation Centre. The applicant also cites Scarlett v. Belair Insurance, 2015 ONSC 3635.
10The respondent relies on the insurer’s examination report (IEs) s. 44 of Dr. John Heitzner, Physiatrist, dated January 3, 2024.
11The applicant relies on the American Medical Association Guides (AMA Guides) criteria of a chronic pain diagnose. She submits that AMA Guides for chronic pain is assessed according to the following criteria:
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 behaviors.
12The applicant states that she has met three out of six criteria for the AMA Guides for chronic pain. The applicant submits that for in criteria i, the Insurer’s Examination by Dr. Heitzner dated January 3, 2024, noted that she continues to take Advil or Tylenol for pain relief. This is still the case even five years after the accident. Regarding criterion ii, the applicant submits that in the Insurer’s Examination by Dr. Heitzner, it was noted that she relies on her husband, daughter, and son for assistance when it comes to both indoor and outdoor housekeeping tasks. The respondent states that she was independent in these tasks before the accident. Regarding criterion iv, the applicant submits that in the Insurer’s Examination by Dr Heitzner, it was noted that she is limited in her return to her housekeeping and home maintenance tasks.
13The applicant submits that she reported difficulty with looking over her shoulder when driving, difficulty with holding her left arm up to steer when driving, difficulty falling and staying asleep, difficulty with looking down at her phone, difficulty doing paperwork, cooking, doing laundry, and difficulty with lifting/pushing/pulling. The applicant noticed that these difficulties impact her ability to perform her day-to-day activities.
14The applicant submits that Dr. Heitzner diagnosed the applicant with ongoing cervical strain and left shoulder strain. The applicant states that she continues to have an injury from this accident five years later. It is the applicant’s position that minor injuries do not persist for more than five years. The applicant respectfully submits that her injuries are not minor.
15The respondent relies on a s.44 Insurer Examination (“IE”) report dated January 3, 2024, by Dr. John Heitzner, Physiatrist. Dr. Heitzner reports and concludes that the applicant doesn’t have chronic pain with a functional impairment and that her injuries are minor and can be treated within the MIG.
16I find the evidence before me shows that while the applicant sought treatment for her accident-related injuries, the medical evidence does not support that she has chronic pain with a functional impairment because there are limited references to pain of a chronic nature. I find there are no medical records from a family doctor in this case that would support a diagnosis of chronic pain.
17In the CNR’s of the family doctor, Dr. Cheung indicates in January 2019, and in April 2019, that the applicant complained about her pain in her back and hip. The applicant is silent in her accident-related injuries to her family doctor until July 2021, where Dr. Cheung assesses her neck and low back pain post-accident and as well the left cuff tendonitis, separately from the accident-related injuries. I find the applicant did not see Dr. Cheung or anyone else with pain complaints from April 2019 till July 3, 2021.
18Further, as set out above, the applicant relies on a chronic pain diagnosis under the AMA Guides for chronic pain. The AMA Guides are not incorporated into the Schedule for the purpose of determining the presence of chronic pain, but the Tribunal has accepted them as a useful analytical tool to assess chronic pain. I find that the applicant has not met the criteria in the AMA Guides for a chronic pain diagnosis for the following reasons.
19Firstly, the applicant is not prescribed constant pain medications such as Advil and Tylenol. In her submissions she states that she takes these medications frequently when needed. This not an abuse of or dependence on prescription drugs or other substances.
20The applicant was not employed at the time of the accident and was the primary caregiver to her four children. She was able to take care of their needs by cooking, laundry, bathing, and dressing. At this time, the applicant was also responsible for the full-time caregiver of her one- and two-year-old children. I find also the applicant takes care of the home by going for groceries with her husband, personally preparing lunches, dinners, doing homework, and remained independent with all personal hygiene.
21After the accident, she began treatment at ART Rehabilitation Centre until August 2019, where she did not continue. There is no evidence that the applicant has attended for continuing treatment in another treatment center despite having benefits with RBC.
22I further find that the applicant states on the OCF-18 dated August 9, 2023, submitted by ART Rehabilitation Centre states that her injuries consist of WAD 1, sprain and strain of lumbar spine and sprain and strain of the hip. All of these injuries are minor injuries and can be treated within the MIG.
23I find the evidence of Dr. Heitzer persuasive to me because he spent 70 minutes with the applicant personally and the results of his report were not self-reporting as he examined the applicant thoroughly.
24Even if I were to accept the applicant’s view that her physical pain is chronic, I am not persuaded that the applicant has met her burden to prove that she is experiencing a chronic pain impairment because of the accident.
25For these reasons, I find on a balance of probabilities that the applicant has not established that she has chronic pain with a functional impairment that warrants removal from the MIG.
26As I have found that the applicant is subject to the MIG, it is not necessary for me to consider if the disputed treatment plan is reasonable and necessary.
Interest
27The applicant is not entitled to interest because there are no treatment plans awarded.
ORDER
28I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plan is reasonable and necessary.
iii. There applicant is not entitled to interest.
iv. The application is dismissed.
Released: May 6, 2025
Roderick Walker
Adjudicator