16-001985 v Aviva Insurance Company of Canada, 2017 CanLII 22323

Date: 2017-03-31

Tribunal File Number: 16-001985/AABS

Case Name: 16-001985 v Aviva Insurance Company of Canada

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:

Applicant

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

Adjudicator: Cynthia Pay

Appearances:

Applicant: Applicant

Counsel for the Applicant: Aaron Weinroth

Representative of the Respondent: Jennifer McDonald, Health Care Advisor

Counsel for the Respondent: Michal Baura

Court reporter: Jo Lynn Dickinson

Observers: Greg Flude, Vice Chair, LAT

Michael Ianni

Held in person: February 14 and 15, 2017

Overview:

1. The applicant was involved in an automobile accident on October 20, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2. He applied for non-earner benefits and funding for examinations and treatment, including a chronic pain program and psychological counselling. The insurer paid non-earner benefits for 13 weeks, but on the basis of insurer’s examinations later took the position that the applicant did not meet the test for non-earner benefits, and ended the benefit.

3. The treatment plans were initially denied by the insurer on the basis that the applicant’s injuries were minor and that he had exhausted the $3500 available for treatment for minor injuries. The insurer later conceded that the applicant’s injuries were not minor, but maintained the denial of the treatment plans on the basis that they were not reasonable and necessary.

4. The applicant submitted an Application to the Licence Appeal Tribunal - Automobile Accident Benefits Services (the “Tribunal”) regarding his entitlement to these benefits. The Tribunal scheduled an in-person hearing to determine his eligibility.

Preliminary issue:

5. At the hearing the parties advised that one of the issues in dispute had been resolved and the applicant agreed to withdraw this issue. The applicant also clarified the name of one of the treatment providers and requested that the Tribunal correct this in the listing of the issues. These changes are reflected in the list of issues in dispute below.

Issues:

6. The following issues are in dispute:

a) Is the applicant entitled to non-earner benefits at the rate of $185.00 per week for the period from July 20, 2015 and ongoing?

b) Is the applicant entitled to receive a medical benefit in the amount of $4,272.14 for psychological services recommended by Dr. Polywjanyj, psychologist, All Health Medical Centre, in a treatment plan dated December 14, 2015, and denied on February 9, 2016?

c) Is the applicant entitled to receive a medical benefit in the amount of $13,273.54 for a chronic pain program recommended by Dr. Husani, chiropractor, All Health Medical Centre, in a treatment plan dated January 19, 2016, and denied on February 9, 2016?

d) Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,260.00 for a chronic pain assessment recommended by Dr. Robertus, All Health Medical Centre, in a treatment plan dated December 9, 2015, and denied on December 17, 2015?

e) Is the applicant entitled to interest on any overdue payment of benefits?

Result:

7. For the reasons set out below, I find as follows:

a) I find that the applicant has not proved that he meets the test for non-earner benefits.

b) The applicant is entitled to the treatment plan for psychological services in the amount of $4,272.14.

c) The applicant is not entitled to the treatment plan for a chronic pain program in the amount of $13,273.54.

d) The applicant is not entitled to the cost of an examination for a chronic pain assessment in the amount of $2,260.

e) The applicant is entitled to interest on the overdue payment of the treatment plan for psychological services.

Issue a): Non-Earner Benefit

Law

4. The test for non-earner benefits is set out in the Schedule as follows:

5. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

6. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

7. Section 12(4)(a) of the Schedule provides that the insurer is not required to pay a non-earner benefit “for the first 26 weeks after the onset of the complete inability to carry on a normal life”.

8. Section 3 of the Schedule provides further explanation of the test:

(7) For the purposes of this Regulation,

(a) a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Facts and Analysis

7. Based on the evidence before me, I do not find that the applicant has proven that he meets the test for non-earner benefits. Although he does suffer from physical and mental health limitations, he has not met the burden of proving his eligibility on the balance of probabilities. In particular, it appears that many of his health conditions and limitations pre-date the accident. He has not provided sufficient evidence to prove that his restrictions were caused by the accident.

Case law

8. The test for non-earner benefits is outlined in the case of Heath v Economical Mutual Insurance Company¹, which was cited by both parties. The court in Heath held that

… the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

The court also held that it is not sufficient for an applicant to show that there were changes in his or her post-accident life, but that the changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities; that “engaging in” must be interpreted from a qualitative perspective; and if pain was a factor preventing the applicant from engaging in former activities, it must practically prevent the applicant from engaging in these activities.

Applicant’s evidence

9. The applicant applied for non-earner benefits by way of two OCF-3 Disability Certificates. The first, completed by Dr. K. Eaton, chiropractor, was dated October 22, 2014, which was during the 26 week waiting period for non-earner benefits. The chiropractor checked “yes” to the box regarding whether the applicant met the test for non-earner benefits. Injuries listed on the form included:

• Injury of muscle and tendon at neck level

• Dislocation, sprain and strain of joints and ligaments of thorax

• Dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis

• Sprain and strain of sacroiliac joint

• Radiculopathy, cervical region

• Headache

• Sleep disorder, unspecified

• Anxiety disorder, unspecified

10. A second OCF-3 Disability Certificate was completed by Dr. S. Sardari, chiropractor, on February 25, 2015 and was also supportive of the applicant’s eligibility for non-earner benefits. The same injuries were listed as on the initial form.

11. The insurer found the applicant to be eligible for non-earner benefits and paid these benefits from April 20 to July 19, 2015.

12. As a result of insurer’s examinations by Dr. J. Auguste, Orthopaedic Surgeon, Dr. J. Lee, Psychologist and B. O’Grady, Occupational Therapist, the insurer later determined that the applicant did not meet the test for non-earner benefits. The applicant has disputed this decision in his application and claims that he does meet the test for non-earner benefits.

13. The applicant provided two assessment reports in support of his claim for non-earner benefits. He provided a Chronic Pain Examination Report by Dr. R. Zatzman, family doctor, and Dr. N. Husnani, chiropractor, dated January 19, 2015. This report found that the applicant suffers from headaches, including post-traumatic tension headaches; whiplash injury and neck and back pain; and a pain disorder. The assessors stated that they believed that the applicant suffers from a complete inability to perform his normal daily activities, including pre-accident housekeeping, home maintenance, and recreational activities, but did not provide further detail.

14. He also provided a Psychological Report by Dr. B. Reimann and Y. Shcherbina, psychometrist, dated January 10, 2016. Dr. Reimann diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Mood with moderate impairment. The report states that the applicant can attend to his self-care activities with pain and that he shares household chores with his housemate, including sweeping and cooking. His housemate attends to heavier chores. He goes grocery shopping with his housemate, but cannot carry heavy items.

15. As noted in the reports, the applicant has a complicated and unfortunate medical history. He suffered workplace injuries resulting in knee and lower back issues in 2007 and 2008, and had been in a previous motor vehicle accident in 2010. He has been seeing a psychiatrist since 2012, and he supports himself on the Ontario Disability Support Program.

16. The applicant presented his evidence in chief through affidavit. The Order of Adjudicator D. Neilson provided that he would present his evidence in an affidavit, and that the respondent would have the opportunity to cross-examine him at the hearing. At the beginning of the hearing, over the objection of the insurer, I offered him the opportunity to provide testimony regarding his claim for non-earner benefits, but he declined so we proceeded as originally planned.

17. The applicant’s affidavit provides a two-paragraph outline of his pre- and post-accident activities. He reports that after the accident his activity level and quality of life declined dramatically. The applicant reports that the accident caused injuries including depression and chronic pain affecting his upper body, knees and legs. As a result of these injuries, his ability to walk is impaired. He is less able to grocery shop and cook; visit and socialize with friends; or attend church and watch T.V. than he was before the accident. He reports that he had a libido before the accident, but afterward no longer had any interest. He no longer goes to the mall. The applicant reports that he used to be able to engage in these activities before the accident, and was significantly more physically able, sociable, independent and mobile than he is now.

Respondent’s position

18. The respondent submitted that the applicant has not proven that he meets the test for non-earner benefits. They argued that the applicant was unable to do many activities before the accident, and that there was no real change in his ability to engage in activities after the accident. I agree with the respondent that the applicant has not proven that he meets this test.

19. The respondent relied on a decision from the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). This was a decision regarding the applicant’s worker’s compensation claim from a hearing held on September 4, 2014. According to this decision, the applicant had been involved in a number of workplace accidents in 2007 and 2008, and appealed decisions made with respect to his entitlements to worker’s compensation benefits to the WSIAT. As pointed out by the respondent, this hearing took place about one month before the accident, and thus provides a snapshot of the applicant’s pre-accident level of activity.

20. The decision outlines the applicant’s testimony about his symptoms and ability to carry out activities of daily living as a result of his workplace injuries:

The worker stated that he continued to suffer pain in his low back, neck and knees. His knees, more so his right knee, prevented him from climbing stairs. The pain was constant and he could not sleep…The worker testified that he continued to have intermittent headaches. He continued to see Dr. Lewi for medication for his pain and depression…While he could cook “sometimes” he also relied on friends who would make soup for him….On a typical day, he would stay at home, walk “a bit, do nothing”. He relied on his roommate to perform the housework.

The worker testified that he did little socially because he had not been happy since his injuries. He…was not attending church as much as he did. The worker stated that he had no hobbies.

21. In cross-examination, the applicant acknowledged that the decision reflected his testimony at the WSIAT hearing. He clarified, however, that he did do some socializing and occasionally went to church before the accident, but now does not see friends or go to church at all. He testified that he could do some light cooking before the accident and now can’t do as much. He had some sex drive pre-accident but none at all now. His pain has increased and his ability to sleep has declined. He had injuries from the workplace accident, but the car accident has made them worse.

22. I find that the description of the applicant’s pre-accident activity level in the WSIAT decision to be very similar to the account of his post-accident activity level as outlined in his affidavit, testimony and chronic pain and psychological assessments. Before the accident, he suffered from headaches and low back, neck and knee pain. He was unable to cook, do housework, socialize or go to church. After the accident, he was suffered headaches and back and knee pain, and is unable to cook, do housework, socialize or go to church. Even though he testified that he has gotten worse as a result of the accident, it does not appear that his ability to engage in activities has changed much.

23. The respondent also pointed to pre-accident medical records that list some of the medical issues that the applicant claims were caused by the accident, including:

• Chronic pain syndrome, generalized anxiety disorder, major depressive disorder, GAF functioning between 45-50%: documented in letter of Dr. J. Cooper, psychiatrist, dated September 11, 2013; also in clinical notes of Dr. Cooper, September 29, 2014 and October 27, 2014; and

• “Poor libido”: documented in referral letter from Dr. Lewi, family doctor, to Dr. Cooper dated May 22, 2013.

24. These pre-accident records suggest that at least the conditions of chronic pain syndrome, depression, anxiety and poor libido were not caused by the accident.

25. The respondent further noted that because chronic pain syndrome is not listed in the outline of the applicant’s pre-accident medical history provided in the chronic pain and psychological assessment reports, it appears that Dr. Zatzman and Dr. Reimann were not aware that the applicant had been diagnosed with chronic pain syndrome before the accident. At any rate, the assessors did not address the fact that this was a pre-existing condition in their report. I agree that this puts their assessment of the applicant’s accident-related injuries into question.

26. As a result of these factors, I do not have sufficient evidence to find that the applicant has suffered a complete inability to carry on a normal life as a result of the accident. I do not doubt, as the applicant stated in his testimony, that he has been impacted by the accident, and that some of his health problems have been worsened as a result, but the test for non-earner benefits is a specific legal test that must be met.

27. I found the evidence presented by the applicant in his affidavit and testimony regarding his pre- and post-accident activities to be somewhat sparse and lacking in detail. Further, based on the WSIAT decision and pre-accident medical records, it appears that many of the applicant’s medical conditions and restrictions pre-date the accident, and that he now suffers from many of the same limitations that he experienced before the accident. This is not to say that that these pre-existing conditions were not exacerbated by the accident, but this possibility was not clearly addressed by the applicant’s assessors.

28. Based on the evidence before me, it is not clear that the applicant suffers from a complete inability to carry on a normal life as a result of the accident. I do not have a clear picture of how the applicant’s ability to engage in his pre-accident activities has changed, and am therefore unable to find in his favour.

Law

29. Section 15(1) of the Schedule provides that the insurer shall pay for all “reasonable and necessary” expenses incurred as a result of the accident for medical benefits such as occupational therapy services or assistive devices.

30. Section 25(1)3. of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan, including any assessment necessary for that purpose.

Issues c) and d): Chronic pain assessment and program

Facts and Analysis

31. The applicant requested funding from the insurer for a chronic pain assessment in the amount of $2,260 recommended by Dr. I. Robertus.

32. This treatment plan was denied by the insurer on the basis of a physiatry insurer’s examination by Dr. F. Ismail, who could not find any accident-related musculoskeletal or neurological impairments, and therefore found that the plan was not reasonable or necessary.

33. As discussed above, the chronic pain assessment was completed by Dr. Zatzman, and Dr. Husnani.

34. Based on the recommendations in the chronic pain assessment, the applicant also made a request for a chronic pain program in the amount of $13,273.54 recommended by Dr. Husnani, which included treatment such as exercise, therapy, acupuncture and assessment.

35. This treatment plan was also denied by the insurer on the basis of insurer’s examination reports by Dr. Ismail and Dr. J. Tucker, psychiatrist, who deemed that it was not reasonable and necessary. Dr. Ismail found that the applicant suffered only soft-tissue injuries as a result of the accident, and no accident-related impairments requiring facility-based treatment. Dr. Tucker found the psychological components of the treatment plan not reasonable and necessary.

36. The respondent raised the “but for” test, which requires that the applicant prove that his impairment would not have developed but for the accident having occurred. Where there are multiple possible causes of an impairment, it is not necessary for an applicant to prove that the motor vehicle accident was the sole cause of the impairment. It is sufficient to prove that the accident materially contributed to the impairment.²

37. In this case, given the applicant’s pre-accident history and injuries, I find that it is appropriate to use the material contribution test.

38. As discussed above, it is clearly documented that the applicant had been diagnosed with chronic pain syndrome by Dr. Cooper as far back as 2013, which was before the accident took place. As a result, I find that the accident did not cause the condition of chronic pain. Further, the weight I give to the recommendations in these treatment plans is reduced by the fact that, as outlined above, Dr. Zatzman and Dr. Husnani may not have been aware that chronic pain had been diagnosed before the accident. Because they did not address the fact that this was a pre-existing condition, the doctors also did not provide an assessment of whether the accident materially contributed to the chronic pain syndrome (for example, by exacerbating it).

39. It appears that Dr. Robertus may have been aware of the pre-existing condition of chronic pain, as the condition is noted in the additional notes and CNRs added at the end of her treatment plan. She did not address this in her plan, however, nor did she comment on whether chronic pain was impacted by the accident, or why she recommends a chronic pain assessment in light of the applicant’s pre-accident diagnosis of chronic pain syndrome.

40. As a result, I am unable to find that the accident caused or materially contributed to the applicant’s chronic pain syndrome. I am therefore unable to find that the treatment plans are reasonable and necessary.

Issue b): Psychological counselling treatment plan

Facts and Analysis

41. The applicant requested funding from the insurer for psychological counselling in the amount of $4,272.14 as recommended by Dr. M. Polywjanyj. The plan includes 12 individual therapy sessions, education, planning, documentation and claimant transportation to treatment.

42. Unlike Dr. Zatzman and Dr. Husnani, Dr. Polywjanyj was aware of the applicant’s relevant pre-accident medical conditions, including “long standing pain”, Major Depressive Disorder and symptoms of unhappiness, low motivation, loss of interest, fatigue and sleep disturbance, as these were listed on the OCF-18 Treatment and Assessment Plan form that she completed. She also notes on the form that the applicant is seeing a psychiatrist monthly for “medication management”.

43. The treatment plan is based on the recommendations provided in Dr. Reimann’s Psychological Report dated January 10, 2016, which is described above. Dr. Reimann was also aware of and considered the applicant’s mental health history and treatment in his assessment and treatment recommendations. He provided a further diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident, and recommended 12 sessions of cognitive-behavioural-oriented psychotherapy. These recommendations are reflected in the treatment plan in dispute.

44. This treatment plan was denied by the insurer on the basis of a psychiatric insurer’s examination by Dr. Tucker, who reviewed the applicant’s medical history, and found that he had been suffering from depression for at least five years. Dr. Tucker opined that “there may have been some exacerbation temporarily of his mood symptoms” but that she did not find any evidence that the applicant’s psychiatric complaints were related to the accident. As a result, she found that the treatment plan was not reasonable and necessary.

45. In addition to Dr. Tucker’s psychiatric assessment, the insurer required the applicant to be assessed by Dr. J. Lee, psychologist. Dr. Lee provided a psychology assessment dated April 9, 2015. This assessment focused on the applicability of the minor injury guideline to the applicant’s injuries, and an assessment of a different treatment plan for a psychological assessment in the amount of $2,034.33. Dr. Lee found that the applicant’s injuries were minor, and therefore were subject to a $3,500 cap on treatment. The applicant advised that at some point after he filed his application with the Tribunal, the insurer conceded that the applicant’s injuries were not within the minor injury guideline. This treatment plan was originally denied, but the respondent advised at the hearing that they had agreed to pay for it shortly before the hearing date.

46. Dr. Lee’s report states that the applicant’s depressed mood has been “somewhat exacerbated” since the accident, and he finds that “the preponderance of evidence suggests that accident-related symptoms represent mild exacerbation change in his psychological functioning”. He recommends supportive interventions within the minor injury guideline, including advice/education to deal with accident related psycho-social issues, such as distress and difficulties coping with the effects of his injury.

47. Dr. Lee testified at the hearing. He confirmed that he would have expected that there would be some adjustment disorder or exacerbation of the applicant’s symptoms as a result of the accident. Dr. Lee noted that the applicant has literacy issues and possible comprehension problems, and as a result was unable to provide as much detail as he would have liked. Dr. Lee also did not have full access to the full clinical notes and records at the time of his assessment. Based on this somewhat incomplete background, his best opinion was that early intervention would be helpful to the applicant. Once early treatment was completed, the applicant’s condition could be assessed again to determine whether further intervention should be considered.

48. Because all of the assessors agree that the applicant has suffered at least some exacerbation of his mental health symptoms, and would benefit from supportive intervention, I find that the accident materially contributed to the applicant’s mental health symptoms, and that the psychological counselling plan is reasonable and necessary. The number of sessions and total cost are within the range suggested by the insurer’s expert witness, Dr. Lee (i.e., within the $3,500 cap for minor injuries). Further, I find it significant that the insurer has now removed the applicant from the minor injury guideline, and has agreed to fund the treatment plan for a psychological assessment that was originally in dispute as part of this application. All of the assessors were aware of the applicant’s pre-accident mental health conditions, and found that the accident exacerbated these conditions.

Issue e): Interest

49. Section 51(2) of the Schedule provides that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

50. The applicant is entitled to interest on the overdue payment of the psychological treatment plan.

Bad faith of insurer/minor injury guideline

51. The applicant raised the issue of bad faith. He submitted that the insurer had acted in bad faith by keeping him within the minor injury guideline for two years, which had detrimentally affected his health by preventing him from accessing treatment that he needed. It was only after he filed with the Tribunal that the insurer had finally removed him from the minor injury guideline.

52. While this change in position from the insurer raises some concern, my jurisdiction in this case is limited to the issues in dispute. There was no issue of special award or costs raised in this Application.

Conclusion:

For the reasons set out above, my conclusions are as follows:

a) The applicant is not entitled to non-earner benefits.

b) The applicant is entitled to the treatment plan for psychological services in the amount of $4,272.14.

c) The applicant is not entitled to the treatment plan for a chronic pain program in the amount of $13,273.54.

d) The applicant is not entitled to the cost of an examination for a chronic pain assessment in the amount of $2,260.

e) The applicant is entitled to interest on the overdue payment of the treatment plan for psychological services.

Released: March 31, 2017

Cynthia Pay,

Adjudicator

Footnotes

1. 12009 ONCA 391, 2009 95 OR (3d) 785, cited incorrectly as “Heath v Macleod” in Tam v Wawanesa Mutual Insurance Company, FSCO A07-002163 (May 20, 2010) at p.23-24.
2. 2Ms. K and State Farm, FSCO A13-006325, March 22, 2016 at p.10