Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 289

FSCO A14-004878

BETWEEN:

ANN MARIE MCGANN

Applicant

and

AVIVA CANADA INC.

Insurer

Before:

Arbitrator Lynda Tanaka

Heard:

In person at ADR Chambers on June 29, 2016 and by written submissions completed on August 6, 2016

Appearances:

Mr. Francesco Blasi and Mr. Shane LeRoux, Licensed Paralegals, for Ms. Ann Marie Mcgann

Ms. Lyndra Griffith, Counsel, for Aviva Canada Inc.

Issues:

The Applicant, Ms. Ann Marie Mcgann, was injured in a motor vehicle accident on June 8, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is the Applicant entitled to receive a medical benefit in the amount of $3,120.00 for physiotherapy services in an OCF-18 by Active Life Wellness, dated June 8, 2013?
Is the Applicant entitled to payments for the cost of examinations as follows: in the amount of $1,402.94 for an In Home/Form 1 Attendant Care Assessment by Cambridge Medical Assessments, dated July 8, 2013, and in the amount of $2,460.00 for an orthopedic assessment per an OCF-18 by All Health Medical, dated August 12, 2015?
Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Arbitration?

Result:

The Applicant is not entitled to receive a medical benefit in the amount of $3,120.00 for physiotherapy services in an OCF-18 by Active Life Wellness, dated June 8, 2013.
The Applicant is not entitled to payments for the cost of examinations as follows: in the amount of $1,402.94 for an In Home/Form 1 Attendant Care Assessment by Cambridge Medical Assessments, dated July 8, 2013, and in the amount of $2,460.00 an orthopedic assessment per an OCF-18 by All Health Medical, dated August 12, 2015.
Aviva is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.
The Applicant is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

PRELIMINARY ISSUES

At the outset of the Hearing, the Applicant indicated that she wished to add issues to the issues in this matter. The first issue was the cost of an orthopedic assessment, and this addition was approved in a letter, dated July 4, 2016, for the reasons set out in the letter. I refused, however, the Applicant’s request to add other issues, being a claim for an OCF-18 for the cost of a chronic pain assessment of $2,200.00 and a claim for a treatment plan for $13,000.00 in treatment, both of which were denied by Aviva on October 5, 2015. The Report of Mediator on these claims was dated May 20, 2016. There was no record on our file of an application to add the issue until the commencement of this Hearing. The assessment cost and the treatment plan constitute discrete issues which can be heard by the License Appeal Tribunal and, in face of Aviva’s refusal to consent to the addition, I refused at this late date to add the issue.

Counsel for the Applicant brought to my attention that Aviva had not complied with the Dispute Resolution Practice Code (“Code”) in that no list of witnesses that Aviva intended to call was served. Counsel for Aviva indicated that they had sent a letter on May 29, 2016 that they “may intend to call” a medical doctor to testify. She wished to rely on the reports of the assessors who had assessed the Applicant during the course of the benefits claim, and the Applicant agreed that three such reports could be entered as Exhibits. They were entered as Exhibits and are referenced elsewhere in this decision.

Counsel for Aviva objected to there being two representatives appearing for the Applicant but the objection was dismissed, as it is up to the Applicant to choose her representatives.

DECISION

At the time of the accident, the Applicant was stopped behind another vehicle in the middle of an intersection when her vehicle was struck from behind.² After the accident, she suffered a headache and pain in the right side of her neck and her right shoulder and lower back. When she got home, she had pain in the form of a headache and tingling in her legs. Within two days of the accident (on the Monday after the accident), she went to her family doctor, complaining of headache, stiff neck, pain in her shoulder and lower back, and numbness in her hands. Her family doctor, who had looked after her for 14 years, recommended physiotherapy and massage therapy and to take aspirin as needed.

At the time of the accident, the Applicant was in a common-law relationship, and caring for four children, three of whom were under age 10. She worked at two jobs, whose hours did not overlap. She worked about 70 to 80 hours per week. She was off work for three months after the accident and obtained short term disability benefits under the employee health benefits program of one of her employers provided by SunLife. She testified that she went back to work even though she still had back pain and tingling in her hands.

She took treatment for three months at a rate of three to four times per week and testified that she was getting better with that treatment. She was not given a prescription for pain medication at any point in her treatment, nor was imaging ordered by the family doctor or the health care practitioners at the clinic where she received treatment. Dr. Sodhi, a chiropractor at the clinic, authored a report, dated August 6, 2013 which gives a picture of her condition at that time, and provided the opinion that she could not “return to work due to severity of pain and limitations in postural tolerances”.³ The Applicant’s family doctor, Dr. Philip Yu, M.D., provided a letter report for a disability claims department, dated August 19, 2013, as follows:

The above patient sustained moderate strain to her neck, low back and right arm in the motor vehicle accident on June 8, 2013. Her functional limitations are mostly related to bending and lifting. She was treated by physiotherapy and had subjectively improved about 50 percent in her symptomatology as of August 2, 2013. She is expected to return to work on Sept. 9. 2013.⁴

In the OCF-3 prepared by Dr. Sodhi, dated September 26, 2013, the Applicant was no longer substantially unable to perform the essential tasks of her employment and he said she could return to “light/modified” work duties.⁵

The accident came at a time when there were other stresses in her life, including problems in her relationship, which resulted in her separating from her common law spouse shortly after the accident, and terminal illness of her father. She was on her way to visit her father when the accident occurred, and she was unable to see him before he died a week later because of her injuries. These losses have clearly caused her emotional stress.

She testified that, when she returned to work, her injuries had recovered and she was about 50% back to normal. As of the Hearing date, she still had pain in her lower back from standing, numbness in her hands, shoulder pain and tingling in her arm. She was entitled to psychological therapy, physiotherapy and massage therapy under her SunLife employee benefits plan but she was not taking any treatment at the time of the Hearing because the plan would only cover 80% of the treatment. She testified that she has to pay part of the cost and she does not think she should have to.

The Applicant applied for income replacement benefits, and Aviva had a multidisciplinary assessment conducted of the Applicant’s injuries to assess the claim. The assessors included an orthopaedic surgeon (Dr. Erin Boynton, M.D., FRCS(S)), a Psychologist (Dr. Kerry Lawson, Ph.D., C. Psych.), an Occupational Therapist and a Kinesiologist. The assessors’ conclusions were that, from an orthopaedic perspective, the Applicant sustained delayed-onset muscular discomfort as a result of the accident which had resolved, and, from a psychological perspective, her psychological distress had likely contributed to some degree of impairment with respect to her ability to function in the areas of family/home responsibilities, social activities, recreational pursuits, occupational duties, sexual behaviour, life support activities and self-care tasks.⁶ There was no support in the assessors’ opinions for her being taken out of the Minor Injury Guideline (“MIG”).⁷

An occupational therapy in-home assessment report with Form 1, dated February 26, 2014, was obtained by Aviva from Mr. Jonathan Kaine, MSc. OT Reg. (Ont.), Occupational Therapist.⁸ Mr. Kaine recorded in his report that the Applicant denied any current accident-related physical, cognitive, or emotional difficulties, that she had resumed her personal care tasks independently as well as her housework, caregiving tasks and her two employment positions. He assessed her range of motions, her independence in transfers and functional mobility, and her ability to access different areas of her home. In the assessment, she simulated aspects of upper and lower body dressing and simple food preparation tasks independently. He concluded that she demonstrated near to full active range of motion in her cervical and lumbar spines, and greater than functional range of motion, strength and tolerances with her arms and legs. He concluded that, from a functional perspective, the Applicant did not present with an accident-related impairment and that she did not require an aide or assistant or any services or devices for her care.⁹

Aviva received from the Applicant a Treatment and Assessment Plan (OCF-18), dated March 26, 2014, prepared by Dr. Franco Tavazzani, physician, in the amount of $2,486.00. The OCF-18 was not made an Exhibit in this Arbitration, but was described in the report of the assessor retained by Aviva. The OCF-18 was described as being with respect to injuries described as “headache, cervicalgia, sprain and strain cervical and shoulder regions, radiculopathy cervical region, low back pain and anxiety, malaise” and it requested approval of “documentation support activity and assessment examination total body”.¹⁰

To assess the claim, Aviva secured an Orthopaedic File Review by Dr. Gianni Maistrelli, M.D., C.S.P.Q., F.R.C.S. (C), an orthopaedic surgeon.¹¹ Dr. Maistrelli reviewed the application for the assessment, the orthopaedic assessment report that was part of the October 4, 2013 Multidisciplinary Assessment report (Exhibit 2) and the other reports in Exhibit 2, as well as the disability certificate and various treatment plans submitted on behalf of the Applicant. Dr. Maistrelli concluded that, as a result of the 2013 accident, the Applicant sustained uncomplicated soft tissue injuries and that there was no valid clinical evidence of ongoing impairment as a result of the accident, or valid clinical objective evidence of on-going impairment as a result of the accident from an orthopaedic or musculoskeletal perspective. The OCF-18 in question referenced a 1998 car accident that the Applicant had. Dr. Maistrelli recorded in his report under “Past Medical History” that the Applicant never fully recovered from the soft tissue injury to the neck and right shoulder, but he found no valid clinical objective evidence of on-going impairment “as a result of the subject accident”.¹² He concluded that, on the basis of the file documentation, the assessment proposed was unlikely to provide any diagnostic clarity or to lead to recommendations that would accelerate symptom resolution or restoration of function. In his view, providing the proposed assessment would have no rehabilitative benefit and might in fact further reinforce disability, dependency and pain focusing behaviour. His opinion was that the assessment proposed was not reasonable or necessary.¹³

Aviva’s position is that the Applicant’s injuries are minor injuries within the meaning of the MIG and that it has paid for the treatment supported by the forms that have been submitted to it within the maximum amount of $3,500.00 allowed under the MIG.

The Applicant’s response is that she had a pre-existing injury to her shoulder that takes her out of the MIG. Also, she requires treatment for psychological issues and the chronic pain that she currently suffers.

The Applicant testified that her shoulder had been injured in another car accident in 1998 and she had received treatment for the injury. Her shoulder only bothered her in the rain when it would be achy.

The medical support for her claim to a pre-existing injury is contained in the opinion of the chiropractor at Active Life Wellness Centre who completed the claim form for SunLife, stating:

previous shoulder pain/injury might prolong the course of recovery.¹⁴

The person who completed the form was not the Applicant’s family doctor, and on that basis SunLife denied her claim for short term disability benefits on August 6, 2013. SunLife was not convinced that it had sufficient medical information to support why she would be totally disabled from performing the duties of her occupation beyond July 26, 2013 (over 6 weeks after the accident).¹⁵

There are no medical records pre-dating the accident that document her “previous shoulder pain/injury”. Specifically, there is nothing in the family doctor’s records about it. Dr. Yu did provide an Attending Physician Statement to SunLife supporting her claim for benefits to SunLife which is included in his clinical notes and records.¹⁶ On the form he was asked, “Has patient ever had same or similar condition?”, to which he answered “no”.

In the disability certificate OCF-3, dated June 13, 2013, Dr. Ravin Sodhi completed Part 8 which is titled “Prior and Concurrent Conditions” by ticking off “unknown” in response to the question that seeks information on any disease, condition or injury that affected the Applicant’s ability to perform her activities identified in Part 6 of the form, including her employment tasks, her ability to carry on a normal life, her caregiving responsibilities, and her housekeeping or home maintenance duties.¹⁷ Another disability certificate OCF-3 was submitted by Dr. Sodhi, dated September 26, 2013, with the same answer for Part 8.¹⁸

The Applicant’s family doctor, Dr. Yu, completed a disability certificate OCF-3, dated October 1, 2013, and in Part 8, he indicated there was no disease, condition or injury that affected the Applicant’s ability to perform the activities listed in Part 6. Dr. Yu also indicated in Part 9 that the questions concerning medications currently taken for the injuries were “N/A”.¹⁹ A further disability certificate OCF-3 was signed by Dr. Yu, dated September 9, 2015,²⁰ indicating under Part 6, that the Applicant was substantially unable to perform the essential tasks of her employment as a result of and within 104 weeks of the accident, and that she suffered a complete inability to carry on a normal life and a substantial inability to engage in caregiving activities. He indicated an anticipated duration of more than 12 weeks and “slow recovery despite physiotherapy”. In Part 8 of the form, he confirmed that prior to the accident, the Applicant did not have any disease, condition or injury that affected her ability to perform the activities listed in Part 6.

There is, however, reference to a “Prior MVA 1998” in a treatment plan signed by Dr. Sodhi, dated September 3, 2013, under Part 7 of the form and in response to the question as to whether or not the Applicant had any disease, condition or injury that could affect her response to treatment for the injuries identified in the OCF-18.²¹

The OCF-18 submitted by Cambridge Medical Assessments Inc., dated July 8, 2013, which is one of the subjects of Issue 2,²² was certified by Dr. Fred Langer as Health Practitioner, and Lyudmyla Listar, RN, was indicated as the treatment plan preparer and supervisor. In this form, Ms. Listar answered the same question under Part 7 related to prior or concurrent conditions as “unknown”. The assessment was in fact conducted on July 23, 2013 and the “In-Home Assessment Report & Attendant Care Assessment Form-1” (of the same date) was filed as Exhibit 1A, Tab 18. In that report, under “History of Previous Injuries” at page 6 of 14 of the report (page 17 of the Exhibit) is the following statement:

[The Applicant] reported being involved in a previous motor vehicle accident in October 1998, in which she sustained soft tissue injuries to the right shoulder, as well as a concussion, sleeping problems and anxiety. The client reported that her pain was resolved, however she was still experiencing numbness/stiffness in the right shoulder with changes in weather. She denied any work related injuries fractures or surgeries.

Ms. Listar also recorded on the same page of the report that the Applicant reported being in good health and excellent condition prior to the June 8, 2013 accident.

The OCF-18 in dispute in Issue 2 for the orthopaedic assessment was completed by Dr. D. J. Ogilvie-Harris, M.D., of All Health Medical Centre on August 10, 2015.²³ Dr. Ogilvie-Harris indicated under Part 7 of the form, Prior and Concurrent Conditions, “MVA 1998; right shoulder pain was aggravated as a result of MVA”, and when asked to identify investigation or treatment for this injury he referenced “Please see CNRs”. Dr. Ogilvie-Harris indicated that the goal of the OCF-18 is pain reduction, increase in strength, and increase in range of motion and treatment recommendations. The functional goals to be achieved are a return to activities of normal living and to “identify impairments and help achieve maximum recovery”. He identified as barriers to recovery “pre-existing health condition, severity of injuries, multiplicity of injuries, psychological stress and anxiety”. He recommended psychological consultation and treatment, further medical treatment and consultation with a family physician. He also indicated that the Applicant was attending physical rehabilitation.

Dr. Ogilvie-Harris’ letter report, dated August 25, 2015,²⁴ contained limited specific details of the right shoulder pain from the previous accident. He wrote:

She still has some pain in the right shoulder with lifting, carrying or doing repetitive movements.²⁵

There was no clarification in his report of how the old injury was aggravated by the 2013 accident and there was no indication of any recommendation for imaging. His report focused rather on her headaches, her cervical spine and her lumbar spine, and not on her shoulder. Dr. Ogilvie-Harris had access to clinical notes and records for the family doctor, Dr. Yu, and also the chiropractor at Active Life, Dr. Sodhi, who Dr. Ogilvie-Harris identified as “Family Physician”²⁶ but who was not identified as such by the Applicant. Dr. Ogilvie-Harris concluded that the Applicant did sustain soft tissue injuries involving minor tearing and disruption of the muscles and ligaments, but that she had developed features of chronic pain syndrome with central sensitization. He noted that she had characteristic features of that syndrome including psychological and emotional difficulties, a sleep disturbance and poor endurance. He opined that she fell outside the MIG because of the complexity of the chronic pain syndrome. He did not conclude that she fell outside the MIG because of her pre-existing condition.²⁷

ISSUE 1 - Is the Applicant entitled to receive a medical benefit in the amount of $3,120.00 for physiotherapy services in an OCF-18 by Active Life Wellness, dated June 8, 2013?

I note that the Pre-Hearing letter by Arbitrator Gueller refers to an OCF-18, dated June 8, 2013, but that is the date of the accident. The Applicant has provided a Billing Statement from Active Life Wellness Centre indicating that it has provided more than $3,500.00 in services.²⁸ The Billing Statement indicates that Aviva paid for various services up to July 18, 2013 and then did not pay for physical rehabilitation sessions undertaken from July 24 to August 6, 2013. Aviva paid for additional physical rehabilitation treatment for August 7 and 8 and part of the cost of the treatment for August 12, 2013. It paid for further services in September 2013, including completion of an OCF-24 and an assessment OCF-18, an examination for an OCF-3 and four further therapy sessions, the last being November 9, 2013.

Dr. Sodhi submitted an OCF-18 on September 3, 2013 for $1,323.58, which exceeded the policy maximum of $3,500.00 under the MIG. Aviva gave a partial approval in the amount of $1,265.91.

Aviva’s position is that the Applicant did not submit a treatment plan in the amount of $3,120.00 and it has approved treatment up to the MIG limit, including the partial approval of the OCF-18, dated September 3, 2013. There is, therefore, no outstanding treatment plan as described in the issues.

Aviva also relies on Section 38(2) of the Schedule which provides that an Insurer is not liable to pay an expense for a medical benefit that was incurred before submission of the treatment plan unless the criteria in that section are met.²⁹ None are met in this case. Aviva also relies on the obligation of the Applicant under section 47(2) of the Schedule to first claim for collateral benefits under her employment health benefits from SunLife.

The MIG provides that an impairment does not come within its terms if “the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if …she is subject to the $3500 limit...”³⁰ The MIG requires “compelling evidence” and provides that “the existence of any pre-existing condition will not automatically exclude a person’s impairment” from the MIG. The MIG continues, “It is intended and expected that the vast majority of pre-existing conditions will not do so.”

The evidence does not establish that the Applicant has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent her from achieving maximal recovery from the minor injury. The record of the pre-existing injury is not found in the family doctor’s notes, as would be expected. In the assessments done for Aviva, the Applicant was inconsistent in her reporting concerning her pre-existing shoulder issues to the assessors. She indicated to Dr. Kerry Lawson that she was not experiencing pain prior to the accident and she was not limited by physical restrictions.³¹ She indicated to Dr. Boynton, the orthopaedic surgeon (and later, Dr. Maistrelli), that she never really recovered 100% from the 1998 accident. She told Dr. Boynton that she had difficulty on occasion reaching behind her back, with occasional numbness in her hands and that the pain in her shoulder would come and go.³² I agree with Aviva that the references to the shoulder injury suffered in the 1998 accident are not specific or consistent enough to meet the statutory requirements. Even if she did not recover 100% from the 1998 accident, the evidence of any residual effects of the injury is inconsistent and I do not accept that such effects interfered with her functioning. I have no substantive credible objective evidence to support the bald statement in Dr. Sodhi’s OCF-3 referenced above that the residual effects, if any, of the 1998 injury will prolong recovery from the 2013 accident injuries.

The MIG also provides a limited definition of minor injury and the Applicant put forward a weak case that she had emotional or psychological issues arising from the accident that fall outside the definition of minor injury. The evidence here is not sufficient to satisfy me that the Applicant has psychological issues arising from the accident that would pull her out of the MIG. The only substantive psychological evidence is in Dr. Lawson’s report of September 4, 2013 contained in Exhibit 2. Dr. Lawson administered personality, emotional function, pain intensity and self-perceived Disability Tests. At that time, the Applicant had not completed a psychological evaluation for the purposes of determining possible treatment needs nor received any psychological counselling. Dr. Lawson found that she did not meet the necessary criteria for a diagnosis of a disorder. He opined that she was not experiencing her current degree of emotional distress or level of pain intensity and associated symptomology in the year prior to the subject accident. He concludes that these aspects of her current clinical presentation remain materially related to the accident. This causative relationship does not, however, alter the fact that her presentation under the tests was all mild (mild level of depression, minimal level of anxiety, not experiencing a level of anxiety that has or is about to develop into driving, passenger or pedestrian phobia³³) and there is little evidence to find that it interfered with her functioning.

Dr. Lawson concluded that the injuries did meet the criteria of a minor injury under the MIG from a psychological perspective.

I express no opinion on Dr. Ogilvie-Harris’ diagnosis and recommendation for a chronic pain assessment and treatment.

ISSUE 2 - Is the Applicant entitled to payments for the cost of examinations as follows: in the amount of $1,402.94 for an In Home/Form 1 Attendant Care Assessment by Cambridge Medical Assessments, dated July 8, 2013, and in the amount of $2,460.00 for an orthopaedic assessment per an OCF -18 by All Health Medical, dated August 12, 2015?

Aviva relies on Section 25(2) of the Schedule that limits attendant care to those cases that fall outside the MIG. The Applicant’s evidence of a need for attendant care was responded to by the report of Mr. Kaine which concluded that she does not need attendant care. I have found that the Applicant’s injuries are within the MIG. Therefore the claim for $1,402.94 is denied.

With respect to the orthopaedic assessment, the support for this is in the OCF-18 by Dr. Ogilvie-Harris and his supporting assessment. Aviva submits that this report should not be relied on because of:

Factual errors related to the Applicant’s absence from work both before and after the accident, indicating that the Applicant had a history of work absenteeism unrelated to injuries of any kind;
The poorly-founded opinion of Dr. Ogilvie-Harris, an orthopaedic surgeon, on the Applicant’s mental health status when there is other convincing evidence from a qualified person as to her mental health; and
The misquoting of the psychology report of Dr. Lawson by Dr. Ogilvie-Harris, which misunderstanding may have led him to an unsupported conclusion.

I am not convinced by the evidence from the Applicant that this assessment plan is reasonable and necessary. I accept Dr. Maistrelli’s opinion that the full body assessment proposed by Dr. Tavazzani was not reasonable and necessary and in fact carried risks. In my view, his concerns about that assessment apply equally to this proposed assessment. Therefore the claim for $2,460.00 is denied.

ISSUE 3 - Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

To establish a claim for a special award, the Applicant must show that the conduct of Aviva in denying or delaying claims was unreasonable under s. 282(10) of the Insurance Act. The basis of the claim is that Aviva has unreasonably denied her access to appropriate physical therapy and psychological counselling that has stunted her recovery and caused her impairments to become further entrenched and disabling.³⁴

Since I have denied the claims made by the Applicant, there is no basis for a special award. I note also that the Applicant has available to her additional funding under her employment medical benefits plan for both additional physical therapy and psychological counselling, which she has refused to access because she does not want to pay 20% of the cost. She cannot rely on Aviva’s denial of access to benefits for her allegedly compromised recovery when she has refused to avail herself of benefits. The Applicant has provided insufficient evidence to establish that Aviva has acted unreasonably. The Applicant’s claim for a special award is dismissed.

INTEREST

As the Applicant has not been successful in establishing that she is owed any benefits, there is no interest due on overdue benefits.

EXPENSES:

The Applicant has been entirely unsuccessful in pursuing her claims. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 31, 2016

Lynda Tanaka Arbitrator

Date