J.C.C. v. Aviva Insurance Company of Canada, 2017 CanLII 148394

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

Between:

J.C.C.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant Philip Kai Kwong Yeung, Licenced Paralegal

For the Respondent: Petros Yannakis, Counsel

Heard In Writing: November 7, 2016

Overview

The applicant (“Ms. C”) was injured in a motor vehicle accident on January 30, 2015 (“the accident”). She received benefits under a motor vehicle insurance policy through the respondent (“the Insurer”). That policy is governed by the Schedule.¹ This is Ms. C’s Application to the Licence Appeal Tribunal (the “Tribunal”) for a ruling that she is entitled to benefits that the Insurer has denied.
Ms. C requests that the Tribunal (1) find her injuries are not subject to a $3,500 policy limit that applies to injuries defined by the Schedule as “minor injuries,” a limitation commonly referred to as “within the Minor Injury Guideline” or “MIG”, (2) order reimbursement for prescription costs, and (3) approve three denied Treatment and Assessment Plans (“OCF-18s” or “plans”) - two for chiropractic treatment and one for a psychological assessment.
Both parties agree that Ms. C sustained a whiplash injury to the neck and a left rotator cuff strain, which would be defined as minor and “within the MIG”. The dispute centers on Ms. C’s claims that her physical injuries turned chronic, that she also sustained psychological injuries, and/or the Insurer failed to properly comply with the Schedule’s procedures to deny her claims, any of which removes her from the MIG.
Evidence was presented in writing, consisting of medical reports and records, and the Affidavits of Ms. C and Dr. Palantzas, a treating chiropractor.
I find that although Ms. C sustained predominately soft-tissue injuries, because the Insurer did not properly deny one of her plans, she is not subject to the $3,500 MIG treatment limit. I further find Ms. C is entitled to a $16.36 balance remaining on a chiropractic plan and $69.44 for reimbursement of her prescription costs, but is not entitled to the assessment or other requested treatment. Neither party is entitled to its costs.

ISSUES

The parties agree that the issues in dispute are:

Is Ms. C entitled to treatment outside the MIG treatment limits?
Is Ms. C entitled to receive a medical benefit in the amount of $69.44 for prescription expenses?
Is Ms. C entitled to receive a medical benefit in the amount of $16.36 for chiropractic services, as set out in the treatment plan dated May 14, 2015, at Perfect Physio and Rehab Centre (“Perfect Physio”)?
Is Ms. C entitled to receive costs of examination in the amount of $2,000 for a psychological assessment report, as set out in the treatment plan dated May 21, 2015, at Perfect Choice Psychological Service Inc. (“Perfect Psychological”)?
Is Ms. C entitled to receive a medical benefit in the amount of $2,030.64 for chiropractic services, as set out in the treatment plan dated July 29, 2015, at Perfect Physio?
Is Ms. C entitled to interest on overdue benefits?
Is either party entitled to its costs?

FACTS

Following the January 30, 2015 accident, Ms. C returned home. ² She first sought treatment on February 11, 2015, visiting both Dr. Patrick Chiu, her family doctor of three years, and Perfect Physio.
At the initial visit, Dr. Chiu diagnosed a whiplash injury to the neck and left rotator cuff strain, recommended physiotherapy, and prescribed Naproxen to be taken with Prevacid. He made similar diagnosis in March 18, 2015 and April 27, 2016, prescribing various pain relievers. ³ Prescriptions, discussed below, were filled on each respective day (Issue 2). His records do not diagnose chronic pain, mention psychological injuries or complaints, and therapy was not prescribed at the last visit.
At Perfect Physio, however, Chiropractor Georgia Palantzas found significantly greater injuries and contemplated various assessments. The Insurer submits the contemplated assessments are not supported by the chiropractor’s own records. She found “[i]njuries of muscle and tendon at neck; dislocation, sprain and strain of joints and ligaments of the thorax, lumber spine, pelvis, and shoulder girdle; headaches; dizziness; radiculopathy of the cervicothoracic region; nonorganic sleep disorders; and phobic anxiety disorders.” She also lists barriers to recovery not mentioned by Dr. Chiu, i.e. anxiety, sleeping problems, multiple sites of injury, high disability index, and neurological/radicular symptoms into extremities. ⁴
Nevertheless, Dr. Palantzas opined the injuries were treatable within the MIG and the Insurer pre-approved Ms. C for $3,500 in treatment under the MIG (Issue 1).
Two months into treatment, on May 14, 2015, Dr. Palantzas submitted a chiropractic plan seeking treatment just beyond the $3,500 MIG limits. This Plan listed minimal to moderate improvement, continuing pain and a restricted range of motion in the back and shoulder regions. Dr. Palantzas noted persisting anxiety and sleeping disturbances, and recommended support from a psychologist and sleep specialist. Related forms indicated that Ms. C had difficulty with housekeeping and had received housekeeping assistance. The Insurer approved that plan up to the $3,500 “policy limit,” i.e. $1,283.64 of the $1,300 plan amount, leaving $16.36 in dispute (Issue 3). Two months The Explanation of Benefits letter (“EoB”) does not directly mention the MIG but included legislation showing the $3,500 limit was for injuries within the MIG. ⁵
On May 21, 2015 Dr. Min Che Yeh of Perfect Choice Psychological Services conducted a screening interview rendering a diagnosis of “Adjustment disorders and specific phobias,” and issued the May 21, 2015 plan (Issue 4) recommending a full psychological assessment. He noted Ms. C was experiencing anxiety in and around vehicles, stress, fatigue and nervousness due to sleeping and physical impairments. The Insurer issued a series of EoBs beginning on June 2, 2015, advising it was not approving the plan and required an Independent Examination (“IE”), which was rescheduled numerous times.
On July 29, 2015, Dr. Palantzas submitted the second chiropractic plan (Issue 5), noting moderate improvement but similar complaints and barriers to recovery. The Insurer issued an August 4, 2015 EoB/Notice of Examination, and an August 5, 2015 letter advised it sought an IE. ⁶
Ms. C submits therapy continued beyond this date, i.e. July 29, 2015, to December 2015, and that she experienced some improvement, but stopped because the Insurer stopped her medical benefit. However, the Insurer argues sign-in records, in fact, indicate no further treatment beyond this point, i.e. July 29, 2015. ⁷
On August 28, 2015, Orthopedic Surgeon Esmat Dessouki performed the IE (Issue 5) and issued a Report on September 11, 2015. He diagnosed “cervical strain, bilateral shoulder strain and thoracolumbar strain.” He found no objective evidence of any residual musculoskeletal impairment attributable to the accident and opined that Ms. C suffered from a predominantly a minor injury, treatable within the MIG, and that the July 29, 2015 chiropractic plan was not reasonable and necessary.
His Report notes a history of degenerative disk disease of the cervical spine. Ms. C complained of pain around her neck, shoulders and back which she described as stabbing and aching. She reported working 20 to 30 hours a week as a restaurant dishwasher. He found a limited range of motion in Ms. C’s cervical and lumbosacral spine, in addition to tenderness over her shoulders.
The Insurer’s September 17, 2015 EoB enclosed Dr. Dessouki’s IE Report, and advised that the second chiropractic plan was not “reasonable and necessary.”
On October 7, 2015, Psychologist Konstantine Zakzanis performed an IE regarding Dr. Yeh’s May 21, 2015 assessment plan (Issue 4) and issued her Report on October 21, 2015. Dr. Zakzanis opined Ms. C’s scores on the main psychometric test measures employed were indicative of atypical responding, and the performance validity measures were not credible, with a weak reproduction being noted on one measure and chance scores across trials on another.
Interestingly, despite such strong findings questioning Ms C’s presentation, Dr. Zakzanis concluded, that “while it is most certainly reasonable to conclude that the accident…is a source of considerable psychological distress…, and as such, it is possible that she is experiencing psychological impairment secondary to…the accident, I am unable to reliably conclude from the psychometric data before me that there is any valid and objective evidence of psychological impairment.” ⁸
Although specifically questioned, Ms. C did not report having received housekeeping assistance. The Insurer notes the response is in contrast to the information contained in the May 14, 2015 Discharge Report prepared by Dr. Palantzas. Ms. C statement that she was “physically unable to perform her personal care activities…e.g. bath and grooming,” ⁹ was also somewhat inconsistent with the fact that she had been back to work as a kitchen helper for 8 months since the accident.
The Insurer’s November 3, 2015 EoB advised that it denied Dr. Yeh’s Plan as not reasonable or necessary, based on Dr. Zakzanis’s Report.
Ms. C relies on her own affidavit that she continues to suffer from recurring pain around her neck, shoulders, and back in addition to anxiety and difficulty sleeping; she is unable to do many of the things she enjoyed prior to the accident, and her daily life is still negatively impacted by the accident. She reports that her pain “worsened” after therapy stopped.

LAW

S. 18(1) of the Schedule limits recovery for medical and rehabilitation benefits to a person “who sustains an impairment that is predominately a minor injury” to $3,500 minus any amounts paid in respect of an insured person under the MIG. The term “minor injury” is defined in s. 3 of the Schedule 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.” (Emphasis added.) The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. I will collectively refer to these as “soft tissue injuries”.
An injured person who initially receives treatment within the MIG can, nevertheless, avoid having the $3,500 limit apply. For example, the injured party can (1) establish the injuries are not, or are no longer, defined as soft tissues injuries in s. 18(1) of the Schedule; (2) establish the existence of pre-existing injuries which make the treatment under MIG framework inappropriate (s. 18(2)) ¹⁰; or (3) establish the Insurer’s non-compliance with certain claims-processing provisions (s. 38).
For example, a recent FSCO decision, Ali and Ferozuddin v. Certas, (FSCO A13- 002459 and A13-002460, March 23, 2016), found that chronic pain which developed out of soft tissues injuries is not “clinically associated sequelae to such an injury,” for purposes of the MIG, but is a separate diagnosis that removes a person from the MIG. In Ali, the chronic pain was formally diagnosed and supported by the evidence that it was an “aberrant physiology”. By comparison, A.G. and Wawanesa (FSCO A13-004662, May 12, 2016) found the applicant’s injuries were and remained predominately soft-tissue injures, and did not accept his evidence about the extent of his alleged ongoing physical impairments, or accept that his psychological injuries were the predominant ones.
As for procedural requirements, s. 38(8) of the Schedule imposes four requirements on an Insurer after an injured party makes a request for a benefit in a treatment plan (i.e. outside of the MIG). Namely, the Insurer must (1) respond within 10 days, (2) state what it will pay, (3) state what it will not pay, and (4) give medical and other

reasons for not paying. Ferawana and State Farm Mutual Insurance Co. (FSCO A13-005319, August 29, 2016)(Appeal pending). S. 38(9) adds a fifth requirement, that “if the Insurer believes the [MIG applies]”, the “notice…must so advise the insured person.” If the Insurer does not fill the criteria, s. 38 (11) sets forth two mandatory consequences:

38 (11) If the insurer fails to give notice…the following rules apply:

The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
The Arbitrator in Ferawana found these requirements are mandatory, as did Arbitrator Sapin in Augustin and Unifund Assurance Company (FSCO A12-000452, November 13, 2013).
The applicant bears the onus to prove entitlement to the specific benefits, Ali. The onus also remains on the applicant to prove they are out of the MIG, rather than on an Insurer to prove he is in it, because the MIG provisions are a limit on liability, rather than an exclusion of benefits. Scarlett v Belair Insurance, 2015 ONSC 3635 (Div. Ct.). Even if the applicant establishes that the MIG does not apply, the applicant must still establish that the medical benefits beyond the $3,500 are “reasonable and necessary”. Ali. The proof must be “on the balance of probabilities.” 16-000045 v Aviva Canada, 2016 CanLII 60728 (ON LAT), para. 6 – 8.

Analysis - What are Ms. C’s Impairments?

Based on the records before me, I find Ms. C sustained a whiplash injury to her neck and left rotator cuff strain, as diagnosed by Ms. C’s family doctor, Dr. Chiu. I prefer Dr. Chui’s diagnosis over Dr. Palantzas’s diagnosis for several reasons. First, it is consistent with Dr. Dessouki’s diagnoses of “cervical strain, bilateral shoulder strain and thoracolumbar strain.” Second, Dr. Chiu had an ongoing relationship with Ms. C ¹¹ and thus would be in a better position to determine Ms. C’s “emotional state.” Third, as a family doctor, Dr. Chiu has a wider scope of practice and training than Dr. Palantzas a chiropractor. Finally, and most importantly, Dr. Palantzas extensive diagnosis – including preliminary mental health diagnosis on the same day Dr. Chiu diagnosed only soft-tissue whiplash injuries - lacks credibility.
While Ms. C suggested that chronic pain was described, and I accept that she has at most some limited lingering pain related to the accident, no evidence was presented of any diagnosis of “chronic pain syndrome” or even “chronic pain” as in Ali. Dr. Dessouki maintains her condition resolved, while Dr. Chiu issued one prescription in 2016. At such a limited level, it strikes me that the lingering impairment is a sequela to the soft tissue injuries; thus, applicant’s injuries are predominately soft tissues injuries. I decline to read Ali, as Ms. C suggests, for the principle that any ongoing pain – no matter how minor – is deemed “chronic pain” for the purposes of removing a person from the MIG.
Regarding Ms. C’s alleged psychological injuries, I find that Ms. C has not established that she suffers from a diagnosable psychological impairment caused by the accident, although she likely experienced some psychological distress because of it. I prefer Dr. Zakzanis’s conclusions in that regard over Dr. Yeh’s conclusions, as Dr. Zakzanis had the benefit of a full assessment involving psychometric testing with validity components, while Dr. Yeh’s diagnosis was based on a limited initial screening interview. This conclusion is supported by the fact Ms. C’s family doctor did not note any apparent psychological issues.
In support, I find Ms. C statements ¹² that she has difficulty preforming her self-care at odds with having worked eight months as a kitchen helper.

Issue 1: Does the $3,500 MIG limit apply to Ms. C’s claims?

Based solely on her impairments, Ms. C would be subject to the $3,500 MIG limit. As I found above, Ms. C sustained predominately soft-tissue injuries, and she has not argued any relevant pre-existing conditions.
However, I find that the Insurer’s May 21, 2015 EoB regarding the first chiropractic plan does not comply with s. 38 (9). The EoB merely references the $3,500 limit, but does not state that that the Insurer believes the MIG applies or directly mention the MIG. Enclosing portions of the Schedule concerning the MIG is not sufficient. S. 38(9) requires the Insurer to “advise the insured person” that it believes the MIG applies; this EoB does not do so. The non-compliance triggers the consequence contained in s. 38(11). Subparagraph 1 provides that the insurer is prohibited from taking the position that the MIG applies.
The Insurer argues that such prohibition applies only with regard to this treatment plan. I disagree. First, the wording of subparagraph 1 does not imply any such limitation, nor do the Augustin and Ferawana decisions appear to interpret it that way. Second, the wording of subparagraph 2 (discussed below) states the insurer shall pay for the goods and services in the treatment plan. Thus, read together, the particular treatment is approved, but the MIG no longer applies to the claim.

Issues 2 & 3: Is Ms. C entitled to the prescriptions and balance outstanding?

Regarding the $69.44 in prescriptions, I find them reasonable and necessary. They were proscribed by Dr. Chiu whose diagnosis I accepted. The Insurer’s main issue appears to be that Ms. C has not provided evidence that the Lansoprazole was used to treat any accident-related issue. However, Dr. Chiu notes treatment only for the accident on the three visits, and the pharmacy records corresponds exactly to the dates of those visits, and show Dr. Chiu as the prescribing doctor for all the medication. The prescription summary also notes inflammation by two of the medicines, and “stomach” by the Lansoprazole. On all of the evidence before me, I accept that these prescriptions are related to the accident.
Regarding the $16.36 balance on the first treatment plan, the Insurer acknowledges the plan was effectively approved in whole, except for the small balance due to the application of the MIG limit. The MIG limit has now been removed. I don’t accept the Insurer’s argument that because the balance does not even cover one unit of treatment, it should not be awarded. I understand that the treatment plan has been incurred, and thus this is simply completing payment for services incurred.

Issues 4 & 5: Is Ms. C entitled to the psychological assessment and second chiropractic plan?

Based on the findings regarding impairments, I do not find that the psychological assessment or second chiropractic plan are reasonable and necessary. I also have difficulty accepting that the assessment was reasonable and necessary at the time it was requested. First, Dr. Chiu did not indicate that there were any psychological concerns, and second, Dr. Zakzanis’s report, while acknowledging the likelihood of psychological distress, found invalid results on the validity testing.
As for procedural challenges raised by Ms. C in respect of the Insurer’s denials, I also find Ms. C has not met her onus. The record includes over 10 EoBs. Ms. C cites four with which she takes issue. ¹³ The first was addressed above regarding the first chiropractic plan. Thus, I will address the remaining three EoBs in relation to the two corresponding plans.
Ms. C. focuses her argument on what the Insurer did “after receiving the respective Insurer Examinations.” Based on my findings that Ms. C is out of the MIG, I do not need to address those portions of her arguments regarding the MIG.
Ms. C argues the EoBs failed to state “medical and all of the other reasons” why the Insurer refused to pay for the proposed services, and why the Insurer considered them not to be reasonable and necessary, as required by s. 38(8). As such, she concludes that the mandatory payment provisions under s. 38(11)(2) are triggered, and the Insurer “must” pay for all of the services described in the plan that relates to the period starting on the 11th business day after the Insurer received the application in accordance with s. 38(11)(2).
The Insurer argues that that Ferawana decision dealt with s. 38(8-11), provisions that corresponds to an Insurer’s initial response within 10 business days to receiving a plan. However, an insurer’s subsequent response following receipt of an IE Report, is governed by s. 38(14 &15), and those sections do not contain the stated consequences listed in s. 38(11). I agree.
Alternately, the Insurer argues that if an initial denial is defective and s. 38(11) is triggered, it only applies to treatment incurred prior to a subsequent denial being issued which ‘cures’ the defect. I also agree.
Applying these rules to the psychological assessment plan, Ms. C refers to the EoB issued on November 3, 2015 following Dr. Zakzanis’s IE. The EoB advises that the plan is not reasonable and necessary and advises Ms. C to review the enclosed IE. Although the MIG is not mentioned, I have already found Ms. C out of the MIG. The EoB is otherwise compliant as it provides medical reasons and advises that the plan is not reasonable and necessary. Additionally, if not compliant, it is governed by s. 38(14 &15), for which the Schedule does not provide mandatory consequences, and so Ms. C would have the onus to prove her entitlement to this benefit.
Regarding the second chiropractic plan, Ms. C takes issue with the initial August 4, 2015 EoB and the September 17, 2015 letter following Dr. Dessouki’s IE. Given that I have found her out of the MIG, and Ms. C has not shown she incurred treatmentunder this plan (there are no sign-in sheets after July 29, 2015 when this plan was submitted), the issue is whether the September 17, 2015 EoB cures any defect. I believe it does. It clearly states the plan is not reasonable and necessary based on Dr. Dessouki’s IE report, which is enclosed. Again, if not compliant, it is governed by

s. 38(14 &15), for which the Schedule does not provide mandatory consequences, thus Ms. C would have the onus to prove her entitlement to this benefit.

Issue 6: Is Ms. C entitled to interest on overdue benefits?

Based on the above, Ms. C is entitled to interest on overdue benefits in Issues 1 & 2.

Issue 7: Is either party entitled to its costs?

Both parties requested costs. Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) provides that costs may be awarded where a party “has acted unreasonably, frivolously, vexatiously, or in bad faith.” The Insurer argues Ms. C’s claim for the remaining $16.36 of the chiropractic plan meets that standard. Ms. C did not provide an explanation for her costs. In light of my findings above, I find neither party is entitled to its costs.

ORDER

Pursuant to the authority vested in this Tribunal under the provisions of the Act, the Tribunal finds:

Ms. C is entitled to treatment outside Minor Injury Guideline treatment limits.
Ms. C is entitled to receive a medical benefit in the amount of $69.44 for prescription expenses and $16.36 for chiropractic services, as set out in the treatment plan dated May 14, 2015, at Perfect Physio and Rehab Centre.
Ms. C is entitled to interest on the above overdue benefits.
Ms. C not entitled to receive (a) costs of examination in the amount of $2,000 for a psychological assessment report, as set out in the treatment plan dated May 21, 2015, at Perfect Choice Psychological Service Inc., nor (b) a medical benefit in the amount of $2,030.64 for chiropractic services, as set out in the treatment plan dated July 29, 2015, at Perfect Physio and Rehab Centre.
Neither party is entitled to its costs.

Released: March 10, 2017

Jeffrey Shapiro

Adjudicator

Footnotes

The Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
See Responding Party’s Factum at para. (“Insurer, para 1”).
Factum of the Applicant at Tabs 1, 3 and 18 (“Applicant, Tabs 1, 3 and 18).
Applicant, para. 5; Insurer, para. 3-4.
The Insurer argues para. 13-15, that “while this notice technically denied $16.36, it effectively approved the entire … plan, as the remaining $16.36 would not even amount to the cost of a single treatment session….”
Insurer at Tab 18.
Insurer, para. 11.
Applicant, Tab 16, pages 16-22.
Insurer, para. 28.
Sec. 18(2) of the Schedule provides that “…the $3,500 limit…does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that 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 the insured person is subject to the $3,500 limit…” See also A.G. and Wawanesa (FSCO A13-004662, May 12, 2016)
Applicant at Tab 1 (Dr. Chiu’s CNRs) and Tab 2 at Paragraph 2 (Affidavit of Dr. Palantzas); Insurer at Tab 1.
Applicant’s Affidavit, Tab 3, paras. 4, 14, 15 and 17, only clearly refers to immediately after the accident that she was unable to perform the tasks, while alleged ongoing issues are limited to difficulties.
The four treatment plans are identified in applicant’s submission in paragraphs 10, 14, 16 and 18, and attached as Tabs 8, 12, 15 and 17.