Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte n^o^ 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

Date: 2017-07-05

Tribunal File Number: 16-003010/AABS

Case Name: 16-003010 v Aviva Insurance 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:

L.D.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Rome Petricca, Paralegal

For the Respondent: Danielle Wilkinson, Counsel

HEARD: Written Hearing: April 20, 2017

OVERVIEW:

1The applicant was injured in a motor vehicle accident on July 24, 2014 and she applied for accident benefits from Aviva Insurance Canada ("the respondent") under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the "Schedule"). The respondent denied her claims for a non-earner benefit and several treatment plans for medical treatment and examination expenses.

2The applicant submitted this application to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the "Tribunal") disputing the denials. The parties were unable to resolve their dispute at a case conference held on January 20, 2017, and the matter proceeded to this written hearing.

ISSUES IN DISPUTE:

3The following issues are in dispute before the Tribunal:

a) Is the applicant entitled to the following medical benefits and examination expenses, recommended in treatment plans submitted by Oshawa Physiotherapy and Rehabilitation Centre ("Oshawa Physiotherapy"):

$2,975.00 for chiropractic services denied on October 6, 2014;
$450.00 for transportation services denied on February 26, 2015;
$45.00 for ambulance services denied on February 25, 2015;
$2,144.93 for psychological services denied on May 12, 2016;
$2,200.00 for aquatic therapy services denied on June 24, 2016;
$2,817.00 for chiropractic services denied on August 4, 2016;
$2,200.00 for a chronic pain assessment denied on June 24, 2015;
$2,200.00 for an updated chronic pain assessment denied on June 24, 2016;
$2,200.00 for an orthopaedic assessment denied on June 24, 2016;
$2,200.00 for a physiatry assessment denied on July 12, 2016; and
$2,200.00 for a neurology assessment denied on July 12, 2016.

b) Is the applicant entitled to receive payment of a non-earner benefit in the amount of $185.00 per week, from January 20, 2015 to date and on-going?

c) Is the applicant entitled to interest for the overdue payment of benefits?

RESULT:

4After reviewing the parties' submissions and documentary evidence and for the reasons that follow I find that:

a) The applicant is entitled to payment for the following treatment plans for medical benefits and assessments recommended by Oshawa Physiotherapy:

$2,144.93 for psychological services denied on May 12, 2016;
$2,200.00 for a chronic pain assessment denied on June 24, 2015;
$2,200.00 for an updated chronic pain assessment denied on June 24, 2016;
$2,200.00 for aquatic therapy services denied on June 26, 2016;
$45.00 for ambulance services denied on February 25, 2015; and
The applicant is entitled to interest on these treatment plans.

b) The applicant is not entitled to payment for the following treatment plans recommended by Oshawa Physiotherapy:

$2,975.00 for chiropractic services denied on October 6, 2014;
$450.00 for transportation services denied on February 26, 2015;
$2,817.00 for chiropractic services denied on August 4, 2016;
$2,200.00 for an orthopaedic assessment denied on June 24, 2016;
$2,200.00 for a physiatry assessment denied on July 12, 2016; and
$2,200.00 for a neurology assessment denied on July 12, 2016.

c) The applicant is not entitled to payment of a non-earner benefit.

BACKGROUND:

5The applicant was involved in two previous motor vehicle accidents in 2005 and 2007, which resulted in serious injuries. As a result of the 2005 and 2007 accidents, she was diagnosed with the following issues: myofascial strain injuries to face, neck, shoulder and knee secondary to motor vehicle accident, temporomandibular joint ("TMJ") syndrome, post-traumatic stress disorder, arthritis, joint and ligament pain, urinary incontinence, migraines and depression. She was also diagnosed with fibromyalgia and carpel tunnel syndrome but it was not clear if these issues were related to the accident.

6As a result of the 2005 and 2007 accidents, the applicant became disabled and has been a recipient of Ontario Disability Support Program since 2010. She was diagnosed with chronic pain adjustment disorder with anxiety and depression, and chronic pain associated with both psychological factors resulting from these accidents.

7On July 24, 2014, the applicant was involved in the subject accident in which her vehicle was struck and her face and knees hit the dash board and her vehicle was written off. She sustained injuries to the neck, left wrist, hand, shoulders, chest, upper back and both knees and sustained a new injury to her left wrist and hand.

THE LAW, EVIDENCE AND ANALYSIS:

Medical Benefits and Examination Expenses

8Section 14 and 15 of the Schedule provides that the insurer shall pay for medical benefits to or on behalf of an applicant so long as:

i. The applicant sustains an impairment as a result of an accident; and

ii. The medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

9Section 25(1)3 of the Schedule establishes that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.

Psychological Assessment:

10The treatment plan submitted by Dr. Pilowsky in support of the psychological assessment indicated that the applicant's activities of daily living had been impacted from a psychological perspective as a result of the accident. Dr. Pilowsky stated that the purpose of the assessment was to evaluate the emotional and psychological impact of the accident and provide an expert opinion to identify the necessary treatment to return the applicant to activities of normal living and a decrease in psychological problems.

11I find that the psychological assessment denied by the respondent on May 12, 2016 to be reasonable and necessary for the following reasons:

12First, the evidence with respect to the applicant's psychological state prior to the subject accident overwhelmingly demonstrates that she suffered from a longstanding psychological impairment as a result of two prior motor vehicle accidents. Further, her psychological issues had not resolved on the date of loss.

13Second, I found the insurer examinations inconsistent and some were in support of the conclusion that the applicant sustained a psychological impairment as a result of the accident. In particular, the two psychological insurer examinations conducted by Dr. Syed – one of which dealt with a non-earner benefit - were contradictory and inconsistent regarding her overall psychological condition.

14In the first psychological assessment completed by Dr. Syed to address the non-earner benefit, the doctor indicates the applicant was responsive to inquiries, seemed a reliable historian, did not exaggerate during the exam and provided a valid estimate of her psychological state. Dr. Syed reports the applicant's anxiety had dissipated over the past seven years but the 2014 accident intensified her anxiety. The applicant reported to Dr. Syed that she was not currently receiving any psychological treatment from the insurer but felt she would benefit from psychological treatment.

15Dr. Syed goes on to state the accident aggravated her pre-existing psychological impairments, she is suffering from clinically significant levels of psychological distress and diagnosed her with: "1) Somatic Symptom Disorder, Persistent and Moderate in Severity [300.82 (F45.1)] 2) Persistent Depressive Disorder – Dysthymia with late onset and with intermittent major depressive episode with current episode." Yet, despite those findings, the report concludes that the applicant did not sustain any psychological impairment as a result of the accident and found that she was not entitled to a non-earner benefit.

16About a year and a half later, Dr. Syed conducted another evaluation to determine whether or not Dr. Pilowsky's psychological assessment was reasonable and necessary. However, that evaluation seemed to be completed on another patient. Dr. Syed stated that the applicant "may not" have answered in a forthright manner and "could be" suffering from some psychological distress. As noted above, however, in the first assessment, Dr. Syed referred to her as a reliable historian while this second assessment implies she is feigning her disability. Dr. Syed contends the test results suggested there was some evidence the applicant is suffering from maladaptive beliefs about her level of disability resulting in psychological distress. In conclusion, Dr. Syed finds the psychological assessment not reasonable and necessary. While it is possible that her condition may have improved over a year and a half, as a whole, I did not find the history, analysis and conclusions reached by Dr. Syed in this second report to be reliable in comparison with the previous report.

17Third, Dr. Tepperman's insurer examination to address whether or not the treatment plans for chiropractic treatment were reasonable and necessary stated that any impairment sustained by the applicant as a result of the accident were more related to psychological factors. While Dr. Tepperman is not a psychologist, he makes the connection between the accident and resulting psychological impairment. In the documentation highlights section of the report, the report notes that past psychological treatment had resulted in improvements.

18The respondent argues that the applicant has failed to prove that the psychological assessment is reasonable and necessary and that she suffers a psychological impairment as a result of the accident. While I agree with the respondent that the applicant' submissions could have been more effective at connecting the dots, based on the applicant's pre-existing injuries and contradictory insurer examinations, I find the treatment plan to be reasonable and necessary. The evidence with respect to the applicant's pre-existing psychological condition submitted by the respondent and psychological insurer examination with respect to the non-earner benefit support the need for the psychological assessment.

Chronic Pain Assessments:

19It is clear from the evidence submitted - such as the Decision of the Social Benefits Tribunal with respect to the applicant's entitlement to ontario disability support program benefits and the medical history as outlined in the insurer examinations - that the applicant suffered from chronic pain issues prior to the July 2014 accident as a result of the two prior motor vehicle accidents. As recent as 2013, the applicant was referred by her family doctor to Dr. Doran, a chronic pain specialist who recommended she take part in a chronic pain program.

20The respondent argues that the chronic pain assessments are not reasonable or necessary as they would not yield any additional objective benefit and sustainable therapeutic relief. Further, the applicant has failed to adduce any evidence that her chronic pain was caused by the subject accident or the accident contributed to the diagnosis.

21I find the chronic pain assessment and updated chronic pain assessments to be reasonable and necessary for the following reasons:

22The applicant's assessor, Dr. Zahavi, a chronic pain specialist concluded that even though one year has passed since the 2014 accident and ten years had passed since the first accident, the applicant has a very severe degree of self-perceived disability and her ongoing symptoms are compatible with chronic pain syndrome. Dr. Zahavi recommended a chronic pain program.

23In the respondent's reply submissions, the respondent points out that Dr. Zahavi was not provided with a medical brief prior to his assessment. While Dr. Zahavi does not specifically refer to the 2014 accident as being the sole cause of the applicant's chronic pain, he does refer to all three accidents with respect to causation.

24I find that the evidence and findings set out in the insurer examinations also support the conclusion that the 2014 accident aggravated the applicant's pre-existing injuries.

25For example, the orthopaedic insurer assessment done by Dr. Weisleder to address non-earner benefits for example notes that the applicant sustained injuries to the neck, left wrist, hand, shoulders, chest, upper back and both knees and sustained a new injury to her left wrist and hand. Further, Dr. Weisleder notes the accident aggravated pre-existing symptoms in these regions which was a barrier to recovery. Dr. Weisleder says the applicant reported new onset of pain following the accident and confirms the diagnosis was partially related to the 2014 accident.

26Dr. Tepperman conducted an insurer examination to determine whether or not the treatment plans for chiropractic treatment is reasonable or necessary. Dr. Tepperman makes note of the progress the applicant made from earlier chronic pain programs. However, the respondent argues that the chronic pain assessment and treatment will not provide any substantial benefit. The insurer examination completed by Dr. Belfron, General Practitioner to determine whether or not the chronic pain assessment was reasonable or necessary concluded the assessment would not yield any additional or objective benefit. Dr. Tepperman's and Dr. Belfron's findings are contradictory.

27The applicant argues that a chronic pain management program would be the most effective way of improving the applicant's functional ability and quality of life. I agree with the applicant. Therefore, I find the treatment plan for a chronic pain assessment and updated chronic pain assessment to be reasonable and necessary.

Aquatic Therapy Program:

28The treatment plan completed by Dr. Visram, Chiropractor, recommending the aquatic therapy program noted the following rationale for the treatment plan: "Patient experiences increases in pain when attempting prescribed exercise rehab program. It is recommended that patient attempt aquatic therapy to aid in ability to perform exercises in a pain free medium. The hydrostatic pressure decreases pain and edema, which in turn increases range of motion and improves venous return and circulation".

29Dr. Visram contends that aquatic therapy performed in a formal class setting under supervision will be beneficial for the patient's condition as working in a low gravity environment allows comfortable exercise of muscles and joints focusing on range of motion, increased circulation, strengthening, stretching, traction, and endurance all at the same time.

30Dr. Oshidari performed an insurer examination to determine whether five treatment plans, including this one, were reasonable or necessary. Dr. Oshidari concludes that his assessment was limited due to the applicant's lack of participation, discomfort and pain, but then indicates there were numerous findings which cannot be explained by any specific neuromusculoskeletal abnormality. Dr. Oshidari found that the applicant suffered from non-complicated soft tissue injuries and that no further physical intervention is necessary. However, Dr. Oshidari strongly encouraged the applicant to continue with self-directed community aquatic therapy.

31I found Dr. Oshidari's conclusions with respect to the treatment plan for aquatic therapy contradictory. I find that Dr. Oshidari's conclusion supports the need for some type of aquatic therapy and based on the evidence, the applicant would need supervised sessions. Therefore I find that this treatment plan to be reasonable and necessary.

Ambulance Expense:

32The applicant attended Lakeridge Hospital on January 8, 2015 complaining of chest pain. The respondent argues this was not related to the July 2014 accident. The triage note from the hospital records submitted by the respondent states: "mva– pain in chest worsening radiating through back and entire body and the family doctor advised her to go to the hospital." I found this evidence to be self-explanatory as the applicant had injured her chest in the accident and the record refers to the accident. Therefore, I find this expense to be reasonable and necessary.

Chiropractic Treatment:

33The applicant provided insufficient submissions and evidence to demonstrate that the treatment plans for chiropractic treatment were reasonable and necessary. For example, there was nothing to indicate that the applicant really benefited from chiropractic treatment in the past or it assisted her with her recovery. Numerous other reports indicate the client reported that this treatment was not beneficial. In the applicant's submissions, she provides a long list of injuries and symptoms and refers to an MRI and CT records but does not point out what these records mean and why it supports her need for chiropractic treatment.

34Further, the insurer examination done by Dr. Tepperman did not find the treatment plans to be reasonable and necessary. In the absence of any evidence to refute this, I find the respondent's position on this issue more persuasive. I find the applicant has not met her onus in explaining how these treatment plans meet the test of being reasonable and necessary. Consequently, I do not find this treatment plan reasonable and necessary.

Transportation Expenses:

35The applicant provided no legal argument or evidence with respect to why this treatment plan was reasonable and necessary. The only documentation submitted with respect to this issue was the treatment plan itself. In the absence of any evidence, I do not find this treatment plan reasonable or necessary.

Orthopaedic, Neurological and Physiatry Assessments:

36The applicant did not provide any legal argument or evidence to demonstrate that these assessments were reasonable and necessary. Further, I did not find that the assessments that were incurred by the applicant to be useful in demonstrating that they were reasonable and necessary. Further, the respondent argues that the assessments were recommended by doctors who did not have the expertise to make such recommendations. As a result, I do not find that these examinations to be reasonable and necessary.

Non-earner Benefit:

37In order to determine whether or not the applicant is entitled to a non-earner benefit, section 12 of the Schedule provides that she must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

38The leading case with respect to proving entitlement to a non-earner benefit establishes that a claimant must be able to prove that he or she has been continuously prevented from engaging in "substantially all" activities in which they engaged in before the accident. In order to do this, one must look at the applicant's pre and post-accident activities over a reasonable period of time before the accident.¹

39The applicant's submissions provides an overview of her ailments and injuries, a list of medications she takes, and states that she can no longer lead a normal life as she cries every day and cannot leave her house. What is absent from the applicant's submissions and evidence is a thorough analysis with respect to the activities the applicant could do before the accident compared to those she cannot do post-accident. In fact, the only evidence provided by the applicant that discusses pre and post-accident activities is the chronic pain assessment conducted by Dr. Zahavi.

40Dr. Zahavi's report dated October 9, 2015 states that the applicant was not very active prior to the July 2014 accident as a result of her pre-existing disability. The report says she did not really participate in many social or recreational activities before the accident and her ability with respect to self-care remained pretty much the same. This report is not helpful in supporting the applicant's claim for non-earner benefits.

41In order to qualify for a non-earner benefit, it is not sufficient enough for the applicant to demonstrate that she has sustained injuries, that she suffers from physical pain or that her pre-existing injuries have been aggravated. What must be proven is that the injuries and associated pain was directly caused by the July 2014 accident and have significantly interfered with almost all of the applicant's pre-accident daily activities.

42The respondent's evidence demonstrates the applicant suffered a complete inability to carry on a normal life as a result of two prior motor vehicle accidents in 2005 and 2007, but not as a result of the July 2014 accident. The only document filed to support entitlement to a non-earner benefit from this accident is the disability certificate signed by Dr. Visram of Oshawa Physiotherapy. Unfortunately, this is not enough to meet the high threshold for entitlement to non-earner benefits.

43While I can appreciate that the applicant has been a victim of three motor vehicle accidents which I believe have had a serious impact on her life, she has not succeeded in demonstrating that she has suffered a complete inability to carry on a normal life as a result of the July 2014 accident. Therefore, I do not find the applicant is entitled to a non-earner benefit.

Production Issue:

44In the conclusion of the applicant's submissions she notes that she did not receive the production requests from the respondent. However, she does not indicate what she would like the Tribunal to do about it or make any argument with respect to how she was prejudiced by it. Therefore, I do not find that she has met her burden in raising this issue.

ORDER:

1After reading the submissions of the parties and reviewing the evidence, I order that: