May 25, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Sleep and Aviva
MIG: burden of proof; applicant is a minor; MIG exceeded on the basis of chronic pain only; conflicting medical conclusions
Date of Decision: May 1, 2017
Heard Before: Adjudicator Deborah Anschell
Mr. Maverick Sleep was injured in a car accident as a passenger in a car that was hit from the side on March 26, 2014. He sought accident benefits from Aviva payable under the Schedule, however, when the parties were unable to resolve their disputes through mediation Mr. Sleep applied for arbitration at the FSCO.
The issues in this Hearing are:
1. Do Mr. Sleep’s injuries fall within the Minor Injury Guideline within the meaning of the Schedule?
1. Mr. Sleep’s injuries do not fall within the Minor Injury Guideline.
2. Aviva is required to pay Mr. Sleep’s expenses with respect to the Arbitration.
Mr. Sleep testified that he was involved in the accident on March 26, 2014, when he was 15 years old. He graduated from high school on time, without taking any time off.
Currently, Mr. Sleep is studying Sports Media at Ryerson University. He participates in volunteer work for Rogers Television in Durham, Ontario. He also volunteers with the men’s and women’s hockey and basketball teams at Ryerson University. His career goal is to be an on-air television or radio journalist, or a producer. With respect to his volunteer activities with Rogers Television, Mr. Sleep avoids heavy lifting, normally a part of this position. He has requested an accommodation in this regard.
Mr. Sleep had a lengthy history of playing amateur hockey. His evidence was that he has played hockey from the time that he could walk. In Blackstock, Mr. Sleep was a strong candidate for a Triple-A hockey team. However, he wasn’t able to participate in the Triple-A tryouts in the fall of 2014, because he experienced too much pain as a result of the accident. He had hoped to receive a hockey scholarship for university. Mr. Sleep’s other athletic endeavour was weightlifting. He has lifted weights since he was nine years old. He continued to pursue this sport as a teenager, three or four times per week.
Mr. Sleep began experiencing pain within a few days of the accident. He continues to experience constant low back pain. Mr. Sleep characterizes the pain as 8 or 9 out of 10 on a bad day. On a better day, the pain may drop to 4 out of 10. The pain is sharp; sometimes Mr. Sleep feels as though his legs are about to give out. He cannot stand for long periods of time. Mr. Sleep commenced physiotherapy after the accident. He also uses a professional massage machine at home, and takes anti-inflammatory medication. Mr. Sleep has participated in chiropractic treatments, massage therapy, and acupuncture. Typically, he attends those treatments once a month. He doesn’t attend more frequently because of financial constraints. These treatments have been funded through Mr. Sleep’s father’s benefit plan.
Mr. Sleep is no longer able to participate in weightlifting as frequently as prior to the accident. His evidence was also that he hasn’t played full contact hockey since the accident. In the year after the accident, he played non-contact hockey approximately twice per week. Since March 2016, he hasn’t played any hockey, with the exception of a pick-up shinny game that he played over the Christmas break in 2016 with his father. Mr. Sleep also experiences disturbances with his sleep. He wakes up during the night from back pain.
Mr. Sleep gave evidence about his attendances with his Chiropractor, Dr. Goldhawk. She had suggested spinal decompression, and Mr. Sleep is interested in pursuing that form of treatment.
With respect to psychological difficulties, Mr. Sleep testified that in January 2016, he was diagnosed with depression. He first had some emotional problems when he was bullied several years ago in public school. He noticed that his depression increased after the accident. He first sought treatment for depression in January 2016 from a walk-in clinic, and was prescribed medication. After the initial diagnosis, the medication has been monitored and renewed by Mr. Sleep’s Family Physician.
Currently, Mr. Sleep’s school program is going well. He has made new friends, and has achieved good grades. However, he finds that because of lack of sleep, it takes longer to record notes in class. He also experiences pain from sitting. Mr. Sleep wears a back brace from time to time. He has experienced two other injuries since the accident in 2014. In October 2015, Mr. Sleep suffered from a concussion when he hit his head on a desk. He did not lose consciousness. In March 2016, while playing hockey, he lost his balance and collided with the boards. He felt better the next day.
In cross-examination, Mr. Sleep’s evidence was that he didn’t see his Family Doctor until 2 ½ months after the accident. He currently sees his Family Doctor once or twice per year. Mr. Sleep hasn’t taken any prescription medication for his pain. He relies on non-prescription anti-inflammatory medication. He continues to take medication for depression.
A Functional Abilities Evaluation Report jointly prepared by a chiropractor and kinesiologist was introduced as a part of Exhibit 1. They examined Mr. Sleep on October 24, 2016. The report noted that Mr. Sleep is partially limited in his ability to perform housekeeping tasks. Further, he is partially limited in his ability to perform home maintenance tasks and recreational activities. Further, the Report noted that Mr. Sleep’s injuries are both serious and permanent. His MRI results show significant damage to his spine, at the age of 18. With respect to his prognosis, the Functional Abilities Evaluation stated that Mr. Sleep’s prognosis is very dim for a return to his pre-accident condition. He may develop early onset arthritis. The Assessors stated that Mr. Sleep has lost all ability to play hockey and any other sport that requires physicality.
The Assessors were asked if Mr. Sleep’s injuries fall within the Minor Injury Guideline. They concluded that MRI results from 2016 show that his injuries are significant and severe enough to remove him from the MIG.
Dr. KTF, Orthopaedic Surgeon examined Mr. Sleep on October 14, 2016. In his report, Dr. KTF opined that Mr. Sleep’s ongoing pain issues are likely related to damage done to the intervertebral discs and facet joint structures in his lower back as well as the myofascial tissues. Dr. KTF stated that Mr. Sleep has developed chronic mechanical problems with regard to his back and a chronic pain disorder. Dr. KTF noted that there is a causal relationship between the injuries that Mr. Sleep sustained on March 26, 2014 and his current degree of impairment and disability. Dr. KTF noted Mr. Sleep’s current problems place him outside of the MIG.
AVIVA’S EVIDENCE AND SUBMISSIONS
Dr. K, physiatrist, conducted an assessment and noted that Mr. Sleep could move quite well and free of pain, except for at the end of bending forward. Dr. K noted that Mr. Sleep experienced pain to touch in the iliac crest area. He experienced pain when doing a sit up, and a reverse sit up. The movement of the hips was normal, full, and without pain. Dr. K concluded that Mr. Sleep had sustained soft tissue injuries, and was suffering from lumbar strain.
Dr. K reviewed the MRI Report of May 12, 2016 and noted that in his opinion, the conditions described were not caused by the accident in March 2014, but were degenerative in nature. Dr. K’s evidence was that the disc bulge reflected on the MRI is not an abnormality. It is a normal occurrence in a disc. He testified that a decade long competitive hockey participation could potentially result in developing the condition captured on Mr. Sleep’s MRI. None of Dr. K’s findings would support a chronic pain disorder diagnosis.
Dr. ED, Orthopaedic Surgeon, assessed Mr. Sleep and concluded that based upon his examination that he sustained a thoracic lumbosacral strain of his back - a minor injury. Dr. ED’s evidence was that on the date of the assessment, Mr. Sleep was almost normal. He looked perfectly healthy, and did not have any major issues. Dr. ED stated that a history of a decade of long, intensive hockey participation would likely cause degenerative changes in the back.
Dr. ED was questioned about Dr. KTF’s more recent findings. Dr. ED stated that Dr. KTF’s examination did not support his conclusion. Furthermore, Dr. ED stated that Mr. Sleep did not exhibit chronic pain. A person suffering from chronic pain would have severe restrictions of his movement, with severe muscle spasm. Mr. Sleep did not exhibit these symptoms. Dr. ED’s position was that Mr. Sleep’s injuries fall within the Minor Injury Guideline.
Dr. T, family physician’s clinical notes stated that Mr. Sleep has a good range of motion in the back with some pain, and no radiation pain. Dr. Tuck noted that it appears to be mechanical back pain. Another note referenced a prior visit noting that Mr. Sleep was referred to physiotherapy, but did not attend. The next entry is a note made on February 18, 2016, stating that Mr. Sleep’s injury appears to be a minor injury and he should have no major ongoing health complications from this. The next note, dated February 29, 2016,] discusses Mr. Sleep’s psychological complaints, and a final note referenced is dated March 29, 2016, and mentioned Mr. Sleep’s fall while playing hockey.
Aviva argues that Mr. Sleep’s injuries fall well within the MIG, and that Dr. K’s and Dr. ED’s testimonies were credible, relevant and highly informative, however, they both discussed the lack of causation between the accident and the findings in the MRI. They both confirmed the diagnosis of a lumbar strain and reaffirmed their conclusion that Mr. Sleep’s injuries fall within the Minor Injury Guideline in light of all the information that became available subsequent to their assessment.
The Arbitrator reviewed the evidence and the law and noted that the only issue to be determined in this Hearing is whether or not Mr. Sleep’s injuries sustained in the accident come within the Minor Injury Guideline. Mr. Sleep has submitted that he suffered back injuries that have become chronic in nature. His position is that the back pain takes him out of the Minor Injury Guideline.
The Arbitrator agreed with Aviva that there is no pre-existing condition established such that if the $3,500.00 limit was applied, Mr. Sleep could not achieve maximal medical recovery. He noted that Mr. Sleep has not received any psychological or psychiatric treatment, and Mr. Sleep’s single complaint to a Physician with respect to depression is not sufficient to remove him from the Minor Injury Guideline.
This left the Arbitrator with the issue of chronic pain. Mr. Sleep’s position is that his back pain has resulted in a chronic pain syndrome, sufficient to remove him from the Minor Injury Guideline. The burden of proof rests with Mr. Sleep to establish his entitlement to benefits beyond the level established for an impairment that is predominantly a minor injury.
The Arbitrator noted the conflicting medical evidence. He noted there were no inconsistencies between the evidence that Mr. Sleep presented at the Hearing, and the information that he provided to the various assessors. He maintained that he began experiencing back pain within a few days of the accident. He continues to feel a constant sharp pain in his lower back. The pain has become worse since the accident. He is desirous of obtaining further treatment. Further treatment is recommended by both Dr. KTF and Dr. G.
The Arbitrator concluded that Dr. KTF’s report and opinion with respect to the chronic pain disorder is consistent with Mr. Sleep’s evidence of ongoing sharp back pain. It is also consistent with the findings on the MRI report. In this sense, I am satisfied that Mr. Sleep’s ongoing sharp back pain does not constitute a “minor injury” as defined in s. 3(1) of the Schedule. A chronic pain diagnosis a few years post-accident establishes a severity beyond that contemplated by the Minor Injury Guideline.
On the basis of this evidence, Mr. Sleep has met his onus of establishing, on a balance of probabilities, that he sustained an injury that is not predominantly minor. Mr. Sleep is entitled to his reasonable expenses of this Arbitration.