Podlovics v. Aviva General Insurance, 2021 CanLII 96943 (ON LAT)

Full Decision

Overview
This hearing before the Licence Appeal Tribunal dealt primarily with the issue of whether the Applicant’s injuries were predominantly minor within the meaning of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS). The Applicant submitted a number of medical and rehabilitation treatment plans above the $3,500.00 available under the Minor Injury Guideline (“MIG”) for claimants with predominantly minor injuries.

The Applicant argued that she should be removed from the MIG because she sustained the following injuries and impairments from the July 26, 2017 motor vehicle collision:

  1. A pre-existing foot injury (her right foot was crushed in a workplace injury);
  2. Concussion;
  3. Psychological Injuries;
  4. Chronic Pain; and
  5. Radiculopathy.

The SABS defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Furthermore, a claimant can be removed from the MIG if they are able to demonstrate that they have a pre-existing condition documented by a healthcare practitioner prior to the accident that will prevent the applicant from achieving maximal medical recovery within the $3,500.00 guideline.

Held
Based on the evidence presented, the Adjudicator concluded that the Applicant sustained predominantly minor injuries as defined by the SABS. She was not entitled to payment of the treatment plans in dispute.

Pre-Existing Foot Injury
Dr. Goldhawk, the Applicant’s chiropractor, prepared a supportive report and testified at the hearing regarding the Applicant’s right foot injury. Dr. Goldhawk testified that the Applicant was unable to reach maximal medical recovery within the MIG because of the disruption in her normal gait patter from her pre-existing injury. The Applicant had sustained soft tissue injuries to her neck, and back in the motor vehicle collision.

The Adjudicator criticized Dr. Goldhawk’s testimony because it did not explain how the foot injury interfered with the Applicant’s ability to engage in and complete her treatment within the MIG. The Adjudicator preferred the Insurer’s expert, Dr. Loritz, who opined that the pre-accident foot condition would not affect the Applicant’s ability to complete treatment for her neck and back.

Concussion
The Applicant did not lose consciousness in the collision, but she began experiencing neck and back pain, nausea, and headaches shortly after the collision. She attended a walk-in clinic and testified that she was told that she had suffered a concussion. The clinical notes and records from that visit made no mention of concussion, instead noting only “now c/o neck, mid back pain. Nausea last nite but not today. Headache.” The ER physician did not testify.

The Adjudicator accepted the Applicant’s evidence that she complained of headaches, nausea, blurred vision, dizziness, loss of balance, light and noise sensitivity, memory and concentration difficulties following the collision. Despite accepting that she was experiencing concussion symptoms, the Adjudicator was not prepared to find that she sustained a concussion without an explicit diagnosis of concussion.

Psychological Injuries
The Applicant testified that she has experienced anxiety, depression, lack of motivation, and fatigue since the collision. She relied on the reports of Pain Specialist Dr. Habteselassie and Dr. Goldhawk. Dr. Habteselassie noted that she endorsed symptoms of depression and anxiety, while Dr. Goldhawk diagnosed psychological problems, anxiety/distress.

The Adjudicator rejected Dr. Goldhawk’s opinion because she was a chiropractor, not a practitioner qualified to give psychological opinion evidence. When testifying, Dr. Goldhawk clarified that her conclusions were not a diagnosis but impairments the Applicant reported. Additionally, none of the health practitioners the Applicant saw referred her to a psychologist or psychiatrist despite her complaints.

Absent a diagnosis and evaluation by a qualified practitioner, the Adjudicator was unwilling to remove the Application from the MIG on the basis of psychological injuries. No explanation for the deficiencies of Dr. Habteselassie’s notes were given.

Chronic Pain
The medical record clearly documented that the Applicant was suffering from chronic neck and back pain. However, the Adjudicator noted that

“An applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must also be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual’s well-being. A diagnosis of chronic pain without any discussion of the level of pain or its effect on the person’s functioning will not be sufficient to remove them from the MIG.” (para 29)

The Adjudicator followed MNM v. Aviva Ins. Co., 2018 CanLII 98282 (ON LAT), where the Tribunal identified six criteria against which a claim of chronic pain should be assessed, as per the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th edition (“AMA Guides”). At least three of the six criteria set out below must be met:

  1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
  2. Excessive dependence on health care providers, spouse, or family;
  3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
  4. Withdrawal from social milieu, including work, recreation, or other social contracts;
  5. 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;
  6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.

There was no evidence presented that met any of the above criteria. Therefore, the Adjudicator declined to remove her from the MIG on the basis of chronic pain.

Radiculopathy
The Applicant testified that she experienced pain and tingling radiating to her arms from her neck and her legs from her lower back. Her family doctor made a note about a referral to a neurologist, but never made the referral. Dr. Goldhawk diagnosed a neck injury, cervical strain/sprain with radiculopathy and lumbar spine with myofascial injury with radiculopathy.

The Adjudicator noted that in order for a diagnosis of radiculopathy to take an applicant out of the MIG, there must be an associated impact on their functioning. There was insufficient evidence that the Applicant’s function was impacted by her radiculopathy symptoms. The Adjudicator rejected her testimony that her radiculopathy impaired her ability to work and engage in daily activities.

Conclusion
The Applicant failed to present compelling evidence that her injuries were non-minor and that she should be removed from the MIG. The Adjudicator concluded that she has sustained predominantly minor injuries as defined by the SABS. Therefore, she is not entitled to the treatment plans in dispute.

Written by

Victoria is an associate in Siskinds’ Personal Injury Law Group. She provides top-quality legal services to her client by prioritizing clarity and accessibility when explaining legal options to her clients. Her practice includes motor vehicle litigation, short/long term disability claims, slips/trips and falls, and dog bite cases.

Victoria attended Western Law, where she worked and volunteered in the legal clinic. In addition to her academics and advocacy, Victoria competed as a varsity fencer for the Western Fencing Team.