H.G. v. Aviva Insurance Canada, 2015 CanLII 153697

Tribunals Ontario Safety, Licensing Appeals and Standards Division

RECONSIDERATION DECISION

Before: Chloe Lester, Adjudicator Date: October 7, 2019 File: 17-005667/AABS Case Name: H.G. v. Aviva Insurance Canada

Written Submissions by: For the Applicant: Muhammad Alam For the Respondent: Alexander Hartwig

OVERVIEW

1The respondent seeks a reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) June 5, 2018 decision. The Tribunal held that the applicant was no longer subject to the Minor Injury Guideline (MIG) limits, he was entitled to three physiotherapy treatment plans, an impairment assessment and was not entitled to a psychological or in-home assessment, award and interest.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal. For the reasons below, I have approved the respondent’s request for reconsideration.

RECONSIDERATION REQUEST

3The respondent alleges the decision of the Tribunal violated the rules of natural justice and procedural fairness in accordance with Rule 18.2 (a) of the Tribunal’s Rules of Practice and Procedure by failing to provide adequate reasons in the decision. The respondent argues the Tribunal failed to address any of the arguments or evidence provided by them, failed to weigh evidence and provide reasons why they preferred one side’s evidence over the other. For example, they argue the adjudicator failed to address their arguments relating to whether a chiropractor can render an opinion on chronic pain, failed to address arguments relating to making an adverse inference because the applicant did not produce the 2009 accident benefit file despite being ordered by the case conference adjudicator and whether the applicant gave proper reply submissions. The adjudicator also failed to mention the four insurer’s assessment reports. The respondent asks that the decision be amended or ordered to a new hearing.

4The applicant responded by indicating the adjudicator gave adequate reasons in their decision. The Tribunal based their decision on the balance of probabilities and therefore had not violated any rules of procedural fairness. They attempted to obtain the 2009 accident benefit file and was not successful and therefore provided the full and final release indicating the file had been closed. That being said, the applicant argues they produced all the medical records dating back to before 2009 and therefore the respondent would have had a complete medical picture of the applicant and what happened during that time period. They argue that although there is no mention of the four reports by the insurer’s assessors, it does not mean the adjudicator did not review them. The applicant argues that if the decision is overturned, then they request that the benefits they were found not entitled to be reconsidered as well.

Did the Tribunal fail to provide sufficient reasons for their decision?

5Although a decision does not have to deal with every submission, or piece of evidence, there must be sufficient reasons to explain how an adjudicator reached their conclusion and enough information for a review on appeal.

6The adjudicator failed to do so. In coming to his decision, the adjudicator mentioned all the arguments of the applicant, why he agreed with the applicant and their evidence but failed to address any of the respondent’s arguments or evidence. Although a decision does not have to refer to every submission or piece of evidence, the decision should be clear that key evidence and arguments were considered and the reasons for the decision. I find the adjudicator failed to give sufficient reasons to explain how they reached their conclusion and failed to provide enough information for a review on appeal. The adjudicator also failed to explain why he did not award costs to the respondent – it was merely denied. Therefore, I agree with the respondent and the issues will be reheard.

RE-HEARING OF WRITTEN HEARING

7I will re-hear the issues so that there are no further delays for the parties.

8The applicant was injured in a car accident on April 24, 2015. The applicant alleges he sustained the following injuries neck, shoulder, upper and lower back pain, chronic pain syndrome, exacerbation of his knee pain, headaches, anxiety, depression, psychological impairments, sleep disorders. He sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

9The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (“MIG”) and refused to pay for certain medical benefits. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES

10The disputed claims in this hearing are:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

b. Is the applicant entitled to a medical benefit in the amount of $3,792.84, for a treatment plan submitted by Airport Rehab Centre on August 10, 2015?

c. Is the applicant entitled to a medical benefit in the amount of $2,540.91, for a treatment plan submitted by Airport Rehab Centre on December 17, 2015?

d. Is the applicant entitled to a medical benefit in the amount of $1,902.48, for a treatment plan submitted by Airport Rehab Centre on August 31, 2016?

e. Is the applicant entitled to a cost of examination for an in-home assessment in the amount $1,318.00, submitted by Pearson Medical Assessment Centre Inc. on October 27, 2015?

f. Is the applicant entitled to a cost of examination for a psychological assessment in the amount of $2,000.15, submitted by Pearson Medical Assessment Centre Inc. on December 7, 2015?

g. Is the applicant entitled to a cost of examination for an impairment assessment in the amount of $1,988.80, submitted by Pearson Medical Assessment Centre Inc. on July 28, 2017?

h. Is the applicant entitled to an award under Reg. 664 because the respondent unreasonably withheld or delayed payment of benefits?

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

j. Is the respondent entitled to costs of the hearing?

RESULT

11The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

12The applicant is not entitled to the disputed treatment plans and assessments.

13The applicant is not entitled to any interest.

14The respondent is not entitled to costs.

THE MINOR INJURY GUIDELINE

15The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

16To request treatment above the $3,500.00 funding limit, the applicant must prove on the balance of probabilities that his injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

17The applicant argues that he should not be subject to the MIG because not only does he have pre-existing conditions that prevents maximal recovery within the MIG funding limits, but also because he has been diagnosed with conditions that do not fit within the definition of a minor injury, namely chronic pain, headaches and psychological impairments.

18The respondent argues the applicant has not provided compelling evidence to justify his pre-existing conditions are out of the MIG or that they do not fit within the MIG definition. The respondent argues that the information contained in the treatment plans are not enough to justify the applicant’s arguments.

THE APPLICANT’S PRE-EXISTING INJURIES

19The applicant argues that he had the following pre-existing conditions:

a. Exacerbated knee pain;

b. Exacerbated sleep apnea; and

c. Diabetes, high blood pressure and high cholesterol which impedes healing time.¹

20The respondent argues the applicant’s pre-existing conditions have no bearing on the accident related injuries and their assessors did not find he had any pre-existing conditions that would affect recovery within MIG limits.

21There is no doubt the applicant had significant pre-existing impairments. A medical report filled out by his family physician on January 19, 2012 indicated he had chronic backache, chronic pain, pain in his shoulders, PTSD, post-traumatic major depression, hypertension, angina, diabetes, obesity and reflux disease. Some of these diagnoses are supported by objective radiological and MRI reports.² Many of the impairments listed are due to a previous car accident in 2009.

22What is difficult to ascertain is what exactly the applicant was still suffering from just prior to this accident. The clinical notes and records and lab results from the family physician are very detailed from 2006-2009 but then are quite sparse after that. There are a few radiological and MRI reports in 2011 onward and a medical report filled out from his family physician in 2012, as indicated above, but largely I do not have consistent and thorough records for the period prior to the accident. What we do know is the applicant still suffered from knee issues because he later had a total knee replacement in 2017. There are some clinical notes and records in 2013 -2017 that indicate he still had ongoing shoulder and back pain. After the accident the applicant saw his family physician which diagnosed him with whiplash, soft tissue injuries, and head injury. Based on the initial assessment of the applicant’s family physician, the applicant did not exacerbate any of the previously diagnosed impairments. Over the next few years, the applicant continues to complain of backache, his uncontrolled diabetes and knee issues all of which do not seem any different than his complaints pre-accident. He also confirms with his family physician that he does not suffer from headaches. The chiropractors from Airport Rehabilitation Centre that initially assessed the applicant diagnosed him with headaches, chronic pain, strains and sprains of the thoracic spine, lumbar spine, cervical spine and pelvis, and adhesive capsulitis of shoulders. The only issues listed as a potential barrier to recovery within the MIG is his diabetes, high cholesterol and high blood pressure. His previous impairments were not listed as a barrier to recovery within the MIG and therefore cannot be a reason for removal from the MIG. Also, his knees were not listed as an injured body part, therefore the applicant’s knees could not have been exacerbated in this current car accident.³

23The applicant argues that his sleep apnea was exacerbated in the car accident. I do not have evidence to support that. He was diagnosed with severe sleep apnea in 2008⁴. Sleep issues were not detailed as an impairment as a result of the accident in the initial treatment plans or in the family physician’s records. On the balance of probabilities, I do not agree with the applicant that his sleep apnea was exacerbated and should remove him from the MIG.

24There are varying opinions on whether the applicant’s diabetes, high blood pressure and high cholesterol would prevent him from achieving maximal recovery within the MIG. The chiropractors at Airport Rehabilitation Centre believe those conditions are a barrier to recovery within the MIG. This is contrary to the opinions of the insurer’s examinations (IE’s) which do not support that those conditions would be a barrier to recovery within MIG limits. Those opinions were rendered by an orthopaedic surgeon and a physician.⁵ In order to be removed from the MIG based on a pre-existing condition, the applicant must provide compelling medical evidence. I do not find a chiropractor writing three conditions on a treatment plan as a barrier to recovery qualifies as compelling medical evidence. I also find an orthopaedic surgeon and a physician would be in a better position to determine whether those conditions would be a barrier to recovery within the MIG as opposed to a chiropractor. That being said, in 2017, the applicant’s family physician rendered an opinion on why he believed the applicant still required facility based treatment, and the applicant’s diabetes, cholesterol or blood pressure issues were not listed as a reason for continued treatment.⁶

25In that same note, the applicant’s family physician asserts that the applicant’s pre-existing knee, shoulder and back pain were aggravated as a result of his 2015 accident.⁷ I do not see this opinion supported in the clinical notes and records from Airport Rehabilitation Centre, the family physician’s clinical notes, the initial treatment plans or the opinion’s from the respondent’s IE assessors. The only barrier to recovery were the impairments listed above and I find they did not contribute as a barrier to recovery.

THE APPLICANT’S POST-ACCIDENT CONDITIONS

26The applicant argues that because of the accident not only does he suffer from pre-existing conditions that should remove him from the MIG, he was also diagnosed with conditions that should not fall within the definition of having minor injuries. He claims he was diagnosed with headaches, chronic pain, psychological impairments and sleep disorders.

27The respondent argues that although the applicant alleges he was diagnosed with these injuries, many are unsupported in the evidence and even so, does not mean he should not be treated within the MIG.

28The applicant claims he was diagnosed with headaches and chronic pain and those do not fit within the definition of the MIG. They rely on a decision in Arruda v. Western⁸ to support their position. In that decision, the applicant was diagnosed with migraines and chronic pain syndrome, which is very different than what the current applicant was diagnosed with, which is headaches and chronic pain. Headaches and chronic pain would fit within the definition of being a minor injury, but in order to be removed from the MIG the applicant would have to show that his functional limitations have been greatly affected by those conditions. I do not have enough evidence to support that conclusion. The evidence is conflicted on the applicant’s pre-existing functional status. In some reports he claims he is not capable of conducting any activities of daily living⁹, in others his ability to perform his activities of daily living decreased due to this accident¹⁰ and in others, the applicant claims he is capable of completing all his activities of daily living.¹¹ On the balance of probabilities, I do not find his functional limitations were impaired as a result of this accident and therefore headaches and chronic pain do not remove him from the MIG.

29The applicant claims he was diagnosed with psychological impairments and sleep disorders that render his impairments not minor. There are indications in 2012¹² the applicant suffered from psychological impairments and was being treated by professionals and with medication. In the most recent clinical notes and records from his family physician, just prior to this accident, I do not see these impairments listed as issues affecting the condition of the applicant. The applicant relies on a report conducted by a psychotherapist that rendered an opinion that the applicant suffers from psychological symptoms commonly found in individuals suffering from a post-accident psychological impairment, but no diagnosis was made, and no psychological testing was conducted.¹³ This is not enough to support that the applicant suffers from a psychological diagnosis and should be removed from the MIG. That position is similar to the opinion of the respondent’s psychological IE assessor that found the applicant may have some psychological distress but because of invalid validity scores could not diagnose the applicant with a psychological impairment and rendered his injuries still treatable within the MIG.¹⁴ That same psychotherapist did not diagnose the applicant with any sleep disorders, the report repeats what the applicant complained of which is that his sleep has been impacted but it does not say from what source, and does not indicate whether the applicant’s sleep issues were exacerbated.

30The applicant in their reply materials, argues that the respondent failed to provide a proper denial letter in accordance with section 38 of the Schedule and therefore cannot take the position the applicant is within the MIG. The respondent in a letter added a brief sur-reply that this argument is new, does not respond to anything the respondent brought forward and is an improper argument for reply. I agree. If the applicant wanted to rely on arguments relating to section 38 they ought to have done so in their initial submissions, so that the respondent could have properly responded to the arguments. I will not consider any arguments relating to section 38.

31In conclusion, the applicant has not proven on a balance of probabilities that they suffer from a pre-existing condition or is diagnosed with a current condition that would render their injuries outside of the MIG definition. As the applicant’s conditions are defined within the MIG, he is only entitled to treatment to a maximum statutory limitation of $3,500. I am unclear whether the limits were exhausted. That being said, he would be entitled to treatment until he exhausts those amounts. The applicant is not entitled to the disputed treatment plans, assessments or interest.

COSTS

32The respondent requests costs of the hearing because the applicant failed or refused to:

(i) comply the adjudicator’s order from the case conference that ordered the applicant to produce the accident benefit file from the 2009 accident; and

(ii) because of false and vexatious claims that Aviva did not properly respond to the treatment plans and ordered a paper review even though the applicant requested it.

33The applicant argues that they could not obtain the 2009 accident benefit file and provided the release that showed that the accident had fully settled, the claim is not ongoing and that they provided clinical notes prior to the 2009 accident to show the injuries he sustained in that accident and this one. They withdraw the statements relating to the paper review.

34In accordance with Rule 19 of the Tribunal’s Rules of Practice and Procedure effective October 2, 2017, the party requesting costs must provide the reasons they are requesting costs and the particulars of how the opposing party actions alleged are frivolous, vexatious, unreasonable or in bad faith. This is a high onus to meet.

35I find the respondent has not met that onus. I find the applicant has not acted in a way that warrants costs. The applicant made best efforts to obtain the 2009 accident benefit file, they produced the full and final release and clinical notes that would detail the applicant injuries before and after the previous accident. The main concern of the respondent in requesting the accident benefit file was to ensure the applicant was not receiving benefits from the 2009 and then also from the 2015 accident, in other words, double dipping. The full and final release addressed those concerns. The applicant is entitled to bring forward submissions to support their position, just because the applicant believed the respondent did not properly deny the treatment plans does not amount to vexatious or false claims. I agree with the respondent that the applicant did not properly address those issues in their initial submissions and therefore they were not relied upon in this decision.

36The respondent is not entitled to costs of the hearing.

CONCLUSION

37For the reasons noted above, the respondent’s request for reconsideration is allowed and the decision was re-heard. The applicant’s injuries were found within the MIG, they are not entitled to treatment plans or interest and the respondent is not entitled to costs.

Chloe Lester Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Ocf-18 dated August 10, 2015 by Dr. Bakalovski Chiropractor.
2. 2Tab 4 applicant’s submissions
3. 3Applicant’s submissions Tab 1, 2, 3, 4 and 6
4. 4Applicant’s submissions Tab 4
5. 5Respondent’s submissions Tab 6, 8 and 10
6. 6Applicant’s submissions Tab 14
7. 7Applicant’s submissions Tab 14
8. 8Arruda v. Western Assurance Canada FSCO A13-003926
9. 9Applicant’s submissions - Letter of Dr. Armitage October 25, 2010
10. 10Applicant’s submissions Tab 9 and Respondent’s submissions Tab 8
11. 11Respondent’s submissions Tab 6
12. 12Applicant’s submissions Letter/medical report of family physician January 19, 2012
13. 13Applicant’s submissions Psychological consultation report dated November 30, 2015 by Sandeep Kaur
14. 14Respondent’s submissions tab 16