LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: November 1, 2016 Tribunal File Number: 16-000143/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8., in relation to statutory accident benefits

Between:

B. U. Applicant

and

Aviva Canada Inc. Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Chloe Lester

Appearances: For the Applicant: B. U., Applicant; Maurice Benzaquen, Counsel For the Respondent: Ajay Shukla, Representative; Marianne Davies, Counsel

Held by Teleconference: August 25, 2016

A. INTRODUCTION:

1The applicant, B. U., was injured in a motor vehicle accident on May 5, 2014. Disputes arose between the applicant and his insurer, Aviva Canada Inc. ("Aviva"), the respondent, concerning his entitlement to accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule").¹

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3A hearing was held on August 25, 2016, consisting of written submissions and oral evidence to consider the applicant's application pursuant to s. 280(2) of the Insurance Act, R.S.O. 1990, and c. I-8 (the "Act").

4At the commencement of the hearing, the applicant advised that he would be recording the hearing. The Parties and Tribunal agreed to the recording as long as a copy was provided to the respondent after the hearing.

B. DECISION

5For the reasons that follow, the applicant is entitled to the following benefits:

i. The applicant's injuries do not fall within the Minor Injury Guideline.

ii. Payment for a physiatrist assessment, in the amount of $2,130.00 as set out further in the decision.

iii. Payment for the cost of a neurological assessment in the amount of $2,130.00 as set out further in the decision.

iv. Payments for the cost of a psychological assessment in the amount of $2,109.36, as set out further in the decision.

v. Payment for psychological services in the amount of $5,608.40, as set out further in this decision.

vi. Interest on the approved overdue payments of benefits.

C. ISSUES

6The Parties advised and agreed the issue of an income replacement benefit in the amount of $400.00 per week from May 12, 2014 to date and ongoing was settled prior to the hearing and is no longer in dispute.

7The issues in dispute are as follows:

a. Do the applicant's injuries fall within the Minor Injury Guideline? If no, is the applicant entitled to the following benefits:

i. Is the applicant entitled to an attendant care benefit in the amount of $1,374.23 per month from May 5, 2014 until May 5, 2016?

ii. Is the applicant entitled to a medical benefit for exercise and therapy services by Dr. Kabrossi (chiropractor) in the amount of $1,498.72, less amounts approved of $563.72, as detailed in a Treatment and Assessment Plan (OCF-18) dated June 10, 2015?

iii. Is the applicant entitled to payments for the cost of examination by Dr. Wong for a physiatrist assessment, in the amount of $2,130.00, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated September 17, 2014?

iv. Is the applicant entitled to payments for the cost of examination by Dr. Mossanen for a neurological assessment in the amount of $2,130.00, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated July 8, 2014?

v. Is the applicant entitled to payments for the cost of examination by Dr. Keeling for a psychological assessment in the amount of $2,109.36, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated July 7, 2014?

vi. Is the applicant entitled to a rehabilitation benefit for therapy services by Dr. Rosenblatt (chiropractor) in the amount of $2,815.00, recommended by Active Therapy Works as detailed in a Treatment and Assessment Plan dated July 3, 2014?

vii. Is the applicant entitled to a rehabilitation benefit for psychological services by Dr. Keeling in the amount of $5,608.40, recommended by Oakdale Medical Centre as detailed in a Treatment and Assessment Plan (OCF-18) dated July 21, 2014?

viii. Is the applicant entitled to payments for the cost of examination by Ms. Evgenia Erenberg for an attendant care assessment in the amount of $2,014.40, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated June 30, 2014?

ix. Is the applicant entitled to a rehabilitation benefit for assistive devices in the amount of $1,837.38 recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated July 19, 2014?

x. Is the applicant entitled to interest for the overdue payment of benefits?

D. ANALYSIS and REASONING

8The applicant was injured in an automobile accident on May 5, 2014 (the "Accident"). The applicant claims the injuries sustained are not minor and fall outside the Minor Injury Guideline (the "MIG") limit of $3,500.00 for rehabilitative and medical benefits. The applicant relies on his own examinations, and the insurer's examinations to support his claim, specifically the submissions surrounding his diagnosis of chronic pain syndrome, psychological impairments, strains, sprains and tendinitis. As such, the applicant asserts that the Treatment and Assessment Plans (OCF-18) denied by Aviva should be approved. The applicant is making the claim that he required attendant care benefits from the time of the accident until 104 weeks post-accident.

9The respondent submits that the injuries sustained during the accident are minor as set out in the Minor Injury Guideline and should be subject to the $3,500.00 limit. The respondent claims their position is supported by their insurer's examinations. The respondent argued the Treatment and Assessment Plans (OCF-18) were properly denied and the applicant is ineligible for attendant care benefits as the injuries were minor in nature. Further, if the injuries are found not to be minor, the respondent relies on their insurer's examinations, which support their position that the benefits claimed are not reasonable and necessary.

Minor Injury Guideline

10The primary issue of whether the applicant sustained a minor injury as defined by section 3 of the Schedule needs to be addressed first in order to determine the reasonableness and necessity of the Treatment and Assessment Plans.

11In accordance with section 3 of the Schedule, "minor injury" means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae."

12Section 18 (1) of the Schedule states that the sum of benefits payable under medical and rehabilitation benefits are limited to $3,500 if the insured person sustains impairments that are predominantly a minor injury in accordance with the Minor Injury Guideline ("MIG"). Section 18 (2) states that the $3,500 limit does not apply if the insured person "provides compelling evidence … the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if [he or she] is subject to the $3,500 limit…".

13The applicant has proven through the medical assessments and his testimony that he sustained numerous injuries as a result of the accident. It appears from the evidence provided the applicant did not have any pre-existing conditions that would have prevented him from achieving maximum medical recovery within the MIG limits, therefore the question remains whether the injuries sustained due to the accident fall within the definition of a minor injury.

14The applicant relies on the following diagnoses and opinions to support the claim that his injuries as a result of the car accident do not fall within the MIG: Insomnia, psychological problems, and chronic pain syndrome from Dr. Wong; migraines, cognitive impairment, significant psychological problems and abuse of Tylenol from Dr. Mossanen; adjustment disorder with mixed anxiety and depressed mood from Dr. Keeling; testing positive for impingement signs, left shoulder rotator cuff tendinitis, bilateral de Quervain's tenosynovitis from Dr. Crane; and other strains and sprains of the spine. The applicant relies on the decision of Arruda v Western² to support his claim that a diagnosis of chronic pain syndrome removes an individual from the MIG.

15The respondent conducted six insurer examinations, in paper and in-person reviews, of the Treatment and Assessment Plans submitted by the applicant. They were conducted by a physiatrist, a general practitioner, a psychologist and an occupational therapist. The respondent relies on these insurer's examinations that found that the applicant's injuries are minor and fall within the MIG. The respondent relied on Calliste v. State Farm³ that held the burden of proof remains on the insured to provide evidence that proves the injuries fall outside of the MIG.

16For the following reasons, I find that the applicant's injuries fall outside of the Minor Injury Guideline and are not subject to the $3,500 limit.

17The injuries sustained by the applicant can be categorized into two groups - physical injuries and psychological injuries. Many of the physical injuries, in my opinion, fall within the Minor Injury Guideline and are minor in nature. The applicant is relying on a report by Dr. Wong that diagnosed the applicant with chronic pain syndrome. As such, the applicant is using the Arruda v Western decision to support the proposition that a diagnosis of chronic pain syndrome falls outside of the MIG. However, in this case, the report and the applicant have not sufficiently shown how the diagnosis of chronic pain syndrome is not a sequelae of the soft tissue injuries.

18The applicant's psychological injuries were diagnosed by Dr. Keeling as "adjustment disorder with mixed anxiety and depressed mood, chronic and specific phobias, situational type (Heavy Equipment, Vehicle Driver and Vehicle Passenger)". The respondent's psychological report by Dr. Challis dated August 14, 2014 examined the applicant and found him "to be honest, open and frank throughout the interview", and "he did not appear to be consciously attempting to malinger or exaggerate." The report went on to say that the applicant presented as "somewhat withdrawn and flat", and had findings of severe anxiety and severe depression. Dr. Challis concluded that the applicant's injuries were minor, as the applicant "did not present with impairments of a sufficient intensity or level of intrusiveness to meet a criteria for psychological diagnosis."

19Dr. Challis's findings stand in contrast to the findings of many other examiners who found the applicant did suffer from a psychological impairment. Dr. Mossanen reports that the applicant is having migraines due to his anxiety and distress, significant psychological problems, cognitive impairment secondary to anxiety and emotional problems. Dr. Wong reports post-traumatic insomnia, psychological problems, and recommended anti-depressant medication. Dr. Crane states in his report that "the mechanism of injury was not particularly traumatic physically, but more so psychologically, … suggest a repeat formal psychological assessment because the prolonged nature of his symptoms may now change his diagnosis … [the] barrier to recovery in this individual's case is his psychological challenges…". The applicant was eventually prescribed venlafaxine for his anxiety.

20Based on the above, I find there is overwhelming evidence that supports the position that the applicant suffers from a psychological impairment as a result of the accident.

21After reviewing the extent of his psychological injuries, I find there was sufficient evidence produced by the applicant to support his claim that his injuries are not minor and should not be subject to the Minor Injury Guideline.

22There are numerous Treatment and Assessment Plans recommended by the applicant's treating physicians that were denied by the respondent as the applicant was subject to the Minor Injury Guideline. There are three treatment plans for medical benefits and four treatment plans referring to cost of examinations before me to consider in this hearing.

Chiropractic Treatment Plans

23There were two chiropractic treatment plans, one recommended by Dr. Kabrossi in the amount of $1,498.72 and the second by Dr. Rosenblatt in the amount of $2,815.00. As the treatment and assessment plans were not produced as evidence in these proceedings, I can only rely on the examinations to determine whether they are reasonable and necessary. During the assessment by Dr. Wong, dated September 3, 2014, he recommended the applicant's symptoms of insomnia, and anxiety be treated with medications which could also be effective in treating chronic pain syndrome. In that report he also recommended that the applicant's physical therapy programs change from a passive to an active exercise in order to build muscle and endurance.

24The respondent approved an exercise program through an insurer's examination conducted by Dr. Crane dated November 12, 2015. Dr. Crane mentioned that after his sessions of exercise that he should be discharged to a home maintenance program, which the applicant testified he continues to frequent a gym and swimming pool. The applicant was prescribed various medications in order to help reduce or control the symptoms of his injuries, in addition to an exercise program. The respondent has already approved an exercise program. I have no evidence before me that facility based treatment is still required for the applicant's physical injuries. Therefore, I have determined that the chiropractic treatment plans are not reasonable and necessary.

Physiatrist Assessment

25I find that an examination by Dr. Wong for a physiatrist assessment, in the amount of $2,130.00 is reasonable and necessary. This assessment diagnosed the applicant with various impairments and recommended a course of treatment including an exercise program, which was later approved by the respondent in a subsequent treatment plan.

Neurologist Assessment

26I find that the neurological assessment conducted by Dr. Mossanen as detailed in a Treatment and Assessment Plan dated July 8, 2014 is reasonable and necessary. The applicant testified that he hit his head on the dashboard during the accident. The report explains that the applicant was referred to a neurologist as he had complaints of headaches that caused nausea with sensitivities to light, sound and smell, and tingling in his hands and possibly his feet. A Headache Impact Test administered by Dr. Mossanen indicated that the applicant had suffered a severe impact. It is reasonable that the applicant would need to be seen by a neurologist after experiencing trauma to his head.

Psychological Assessment and Treatment Plan

27The psychological assessment recommended by Dr. Keeling is reasonable and necessary as the applicant was diagnosed with a psychological impairment. The applicant testified that he was prescribed anti-depressant/anxiety medication and that he took it for a period of time. The medication eventually caused him to feel increased anxiety, and depression. He said that he would cry, and he found that the pills were "making him a wreck". The psychological treatment plan is reasonable and necessary as the applicant needs counselling sessions in order to improve on symptoms of the injuries sustained. In the psychological assessment by Dr. Keeling, he recommended that the applicant would benefit from 12 counselling sessions. I find 12 counselling sessions are reasonable and necessary.⁴

Attendant Care Benefits

28The applicant submits that he is entitled to an attendant care benefit in the amount of $1,374.23 per month from the date of loss until 104 weeks post-accident. The applicant relies on an Occupational Therapy In-Home and Assessment of Attendant Care Needs (FORM 1) conducted by Mrs. Erenberg. The Form 1, dated July 19, 2014, recommends $1,374.23 per month in attendant care benefits. She outlines that the applicant finds it challenging to perform certain prolonged and/or repetitive strenuous activities. She also recommends that the applicant should receive numerous assistive devices.

29In his testimony, the applicant stated that certain tasks were difficult, for example washing his hair or taking on/off his shirt or pants. His uncle and cousin assisted him with housekeeping and household chores. When he moved in with his girlfriend about a month after the accident, she assisted him with housekeeping, personal care, meal preparation and cooking. She continued to assist him with all items listed in the Form 1 until 104 weeks post-accident.

30The respondent's Occupational Therapy In-Home and Assessment of Attendant care Needs (FORM 1) was conducted by Mr. Pritchett in response to a proposed Treatment and Assessment Plan (OCF-18) by Mrs. Erenberg. The report dated December 2, 2014 finds that the applicant did not present with a functional impairment and that the applicant reports that he is now fully capable of engaging in personal care tasks. Mr. Pritchett did not consider the treatment plan for assistive devices reasonable or necessary and determined there was no need for any attendant care benefits. The respondent argues that the injuries are minor in nature and therefore the applicant is not entitled to an attendant care benefit pursuant to section 14 (2) of the Schedule.

31The applicant stated during many of his assessments that he was independent with all or most of his activities of daily living. In Dr. Mossanen's neurological report dated July 23, 2014 stated that the applicant has "no problem doing his share of chores in the girlfriend's condominium." During the applicant's examination with Dr. Oshidari, dated August 14, 2014 he stated that he is independent with his activities of daily living but is not involved in any heavy house chore duty. Dr. Wong in his report dated September 3, 2014 states that the applicant is able to perform most of his household duties. The applicant advised Mr. Pritchett at the in-home assessment on December 2, 2014 that he is independent in all aspects of his self-care and has been independent with his personal care since the accident.

32The July 19, 2014 in-home assessment showed that the applicant had musculoskeletal range of motion results, which fell within the normal range. The readings were either within the 91-100% or within the 71-90% percentile with pain only manifest at the end of the range. These findings are corroborated by the in-home assessment conducted by the respondent that shows all his range of motions is within normal ranges.

33Although the applicant during his testimony denied that he reported to Mr. Pritchett and Dr. Mossanen his complete independence in his activities of daily living, there is sufficient evidence to establish that he was mostly independent with his activities of daily living or that he was functionally capable of doing them. Therefore, I find that the applicant is not entitled to an attendant care benefit, the cost of examination for an in-home assessment as outlined in a Treatment and Assessment Plan dated June 30, 2014 or any assistive devices recommended in the Treatment and Assessment Plan dated July 19, 2014.

34Notwithstanding my decision, if I found the applicant to have been entitled to an attendant care benefit, he would not be entitled to payment for the benefit for the following reasons: Section 3(7)(e) and 19 of the Schedule state that that attendant care benefits are payable only where they have actually been incurred, either by a professional in the field or by a non-professional who sustains an economic loss through providing the attendant care service. There has been no evidence put before me that costs have been incurred or economic loss has been sustained.

35The applicant in his submissions requested that if I find he is entitled to attendant care benefits, that I apply the provisions of s. 3(8) of the Schedule and deem the expenses to be incurred. To invoke s. 3(8), I would need to find that the respondent has unreasonably withheld or delayed payment of the benefit. There is no such evidence before me.

E. DECISION

36After considering the evidence, pursuant to s.280 (2) of the Act, I find that the applicant is entitled to the following benefits:

1. The applicant's injuries do not fall within the Minor Injury Guideline.

2. The applicant is entitled to receive payment for a physiatrist assessment, in the amount of $2,130.00, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated September 17, 2014.

3. The applicant is entitled to receive payment for the cost of examination by Dr. Mossanen for a neurological assessment in the amount of $2,130.00, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated July 8, 2014.

4. The applicant is entitled to receive payments for the cost of examination by Dr. Keeling for a psychological assessment in the amount of $2,109.36, recommended by Oakdale Medical Center as detailed in a Treatment and Assessment Plan (OCF-18) dated July 7, 2014.

5. The applicant is entitled to receive payment for psychological services for 12 sessions of psychological counselling as recommended by Dr. Keeling in the amount of $5,608.40, as detailed in a Treatment and Assessment Plan (OCF-18) dated July 21, 2014.

6. The applicant is entitled to interest on the approved overdue payments of benefits.

37Further, I find that the applicant is not entitled to the following benefits:

1. The Parties advised and agreed the issue of income replacement benefit was settled prior to the hearing. This issue is no longer in dispute.

2. The applicant is not entitled to an attendant care benefit.

3. The applicant is not entitled to receive payment for the Treatment and Assessment Plan dated June 10, 2015 recommended Dr. Kabrossi in the amount of $1,498.72 for chiropractic services.

4. The applicant is not entitled to payment for a Treatment and Assessment Plan dated July 3, 2014 as recommended by Dr. Rosenblatt in the amount of $2,815.00 for chiropractic services.

5. The applicant is not entitled to receive payment for a cost of examination by Mrs. Erenberg for an in-home assessment as outlined in a treatment and assessment plan dated June 30, 2014 in the amount of $2,014.40.

6. The applicant is not entitled to receive payment for the cost of the assistive devices.

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Arruda v Western FSCO A13-003926 decision by Arbitrator Shapiro dated July 7, 2015
3. 3Calliste v. State Farm Mutual Automobile Insurance Company 2016 ONSC 1854 decided by J. Pollak dated April 4, 2016
4. 4Hourly rates subject to FSCO Professional Guidelines