T. S. v. Aviva General Insurance, 2017 CanLII 59495

Licence Appeal Tribunal

Date: 2017-08-17 Tribunal File Number: 17-000835/AABS Case Name: 17-000835 v Aviva General Insurance

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:

T. S. Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson APPEARANCES: For the Applicant: Arash Rowshanzamir, counsel For the Respondent: Samantha Mason, counsel HEARD IN WRITING: June 22, 2017

OVERVIEW

1TS, (“the applicant”) was involved in a motor vehicle accident (“the accident”) on January 16, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied for and received some benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) with respect to other benefits which were denied.

3I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine the applicant’s entitlement to various treatment and assessment plans.

ISSUES IN DISPUTE

4In the applicant’s initial submission for this hearing, and acknowledged by the respondent in its response submission, the applicant withdrew his claim for attendant care benefits.

5The remaining substantive issues to be decided are:

(i) Did the Applicant sustain predominantly minor injuries as defined under the Schedule?

(ii) Is the Applicant entitled to the cost of examination for a psychological assessment submitted by Complete Rehabilitation Centre in the amount of $2,460?

(iii) Is the Applicant entitled to a medical benefit for psychological treatment recommended by Complete Rehabilitation Centre in a treatment plan dated November 1, 2016, in the amount of $3,841.48?

(iv) Is the Applicant entitled to a medical benefit, for massage and chiropractic services, recommended by Complete Rehabilitation Centre in a treatment plan dated June 1, 2015, in the amount of $2,755.06?

(v) Is the Applicant entitled to a medical benefit for massage and chiropractic services recommended by Complete Rehab Centre, in a treatment plan dated November 5, 2015 in the amount of $2,399.49?

(vi) Is the Applicant entitled to the cost of examination, for an orthopaedic assessment recommended by Complete Rehab Centre in the amount of $2,460?

(vii) Is the Applicant entitled to the cost of examination for an in-home assessment submitted by Complete Rehab Centre in the amount of $2,248.90?

(viii) Is the applicant entitled to interest on any overdue payments from the respondent?

RESULT

6I find that the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall within the Minor Injury Guideline² (“the MIG”), because:

(i) The applicant has failed to prove he sustained a psychological injury from the accident in support of his claims for benefits set out as issues (ii) and (iii).

(ii) The chronic pain symptoms experienced by the applicant and giving rise to issues (iv)-(vi) in this case are covered by the definition of “minor injury” prescribed by the Schedule.

7My finding with respect to the applicant’s injuries and classification of those injuries within the MIG mean that that the applicant is not entitled to the benefit claimed in issue (vii).

8As I have denied the applicant’s claims, there is no interest payable by the respondent.

ANALYSIS

Issue (i) – Minor Injury Determination

9The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”). The applicant’s position is exactly the opposite.

10If the respondent’s position is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by the s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

MIG and Psychological Impairments

11Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”

12The applicant first argues that he has psychological impairments which remove him from the MIG. I agree with the applicant that psychological impairments, if established, fall outside the MIG, because:

(i) The MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological impairments.

(ii) I concur with other adjudicators who have concluded that psychological impairments are excluded from the MIG, for example in DJ v Aviva, 2016 CanLII 93136 (ON LAT) para. 17.

(iii) I note that the applicant’s arguments that psychological injuries, if proven, are outside of the MIG are uncontested by the respondent.

13As a result of the foregoing, I must determine whether or not the applicant sustained psychological injuries as the result of the accident.

14The applicant relies exclusively on the psychological assessment conducted by Dr. Jon Mills, clinical psychologist, on July 25 and August 1, 2016. Dr. Mills was assisted by Amrita Narula, MSW, a psychometrist and psychotherapist. The assessment consisted of a clinical interview with structured and unstructured components, and a series of standardized diagnostic tests: Beck Depression Inventory-II (BDI-II), Beck Anxiety Inventory (BAI), Accident Fear Questionnaire (AFQ) and Brief Pain Inventory (Short Form).

15Dr. Mills report indicates that the applicant stated

(i) A loss of interest in activities that previously brought him pleasure;

(ii) “ongoing distressing thoughts and fears relating to his MVA”, and

(iii) “dissociative re-experiencing related to his MVA [i.e. motor vehicle accident]”.

16Based on his examination, Dr. Mills diagnosed the applicant with adjustment disorder, mixed anxiety and depressed mood and recommends “a minimum of 12 sessions of psychotherapy to help him [i.e. the applicant] address clinical symptoms.”

17The respondent relies on its psychological examination, reported by Dr. Shahriar Moshiri on August 4, 2016. Dr. Moshiri conducted a clinical interview and administered a number of standardized diagnostic tests, including the BDI-II, BAI and Brief Mood Survey. He made clinical observations throughout the examination appointment.

18In the report, Dr. Moshiri notes at page 6 that the applicant denied psychological problems, depression, anxiety or driving phobia. According to Dr. Moshiri’s report, the applicant stated that he did not need to see a psychologist. Dr. Moshiri emphasizes that these were directly quoted statements made during a 1.25 hour clinical interview with the applicant.

19Dr. Moshiri concluded that the applicant does not suffer from a formal psychological condition and doesn’t require psychological treatment under DSM V criteria.

20I find that the applicant’s self-reporting to the examining psychologists, Dr. Moshiri and Dr. Mills respectively, is contradictory.

21The applicant’s own words in examination interviews are powerful evidence in determining whether the psychological problems claimed are real and whether treatment and assessment plans are reasonable and necessary.

22The applicant does not deny making the statements reported by Dr. Moshiri. He offers no explanation for his denials to Dr. Moshiri of psychological issues. He does not question the examination methodology used by Dr. Moshiri.

23Instead, the applicant argues – without evidence or case law to support his contention -- that insurers’ examinations “are not impartial” and that “relying on what an IE assessor documents as evidence of what was said […] is problematic”. I give this argument no weight for two reasons:

(i) The applicant provides no evidence or argument to support his broad and contentious assertion.

(ii) The applicant provides no evidence of bias or any methodological flaw in Dr. Moshiri’s examination or reporting; indeed, the methodology of the opposing parties’ medical experts is similar.

24I find Dr. Moshiri’s report reliable.

25Credibility and consistency are at the core of meeting the onus to prove that claimed benefits are reasonable and necessary. As the applicant’s medical expert, Dr. Mills, observes in his explanation of examination methodology, at page 2 of his report: “As with all such tests, the validity of the test results reflects [TS’s] honesty and self-awareness. Impressions, opinions, and conclusions may change if the test results are found to be inaccurate or if new information is provided that is relevant to the facts of the case.”

26I find that the unexplained inconsistency in the applicant’s self-reporting to different examining specialists, the express denial of psychological issues by the applicant in an IE and the absence of any noted flaw in the examination or diagnostic testing by Dr. Moshiri are compelling reasons to give greater weight to the IE report than to the applicant’s report by Dr. Mills.

27Accordingly, I conclude that the applicant has not proven that he has sustained psychological injuries as a result of the accident. The claim for benefits set out as issues (ii) and (iii) is unsupported by the evidence, and should be denied.

MIG and Chronic Pain Syndrome

28The applicant’s physical injuries, canvassed in a wide range of reports, clinical notes, records and examination reports from both parties, consisted of sprains and strains of the back (thoracic and lumbar), neck (cervical), left shoulder and elbow, whiplash associated disorder (WAD type 1), and headache.

29The first question that I must determine is whether or not the applicant suffers chronic pain as a result of the accident.

Does the applicant have Chronic Pain?

30Neither party argues that the applicant’s physical injuries themselves exceed the definition of “minor injury” in s. 3(1) of the Schedule. The applicant, however, argues that he has chronic pain syndrome, and that this removes him from the MIG.

31The respondent contends that the applicant does not suffer from chronic pain syndrome as a result of the accident, relying on its insurer examination reports to establish doubts about the applicant’s claimed diagnosis and causality.

32After reviewing the medical evidence submitted by both parties, I conclude that the applicant does suffer chronic pain syndrome as a result of the accident. I reached this conclusion for the following reasons:

i. An examination report by Dr. Manoj Bhargava dated November 14, 2016 notes pain persisting over 20 months post-accident, well beyond the 6-month threshold accepted by medical authorities for defining chronic pain, and states that the applicant needs assessment by a chronic pain specialist.

ii. The clinical notes and records of Dr. Y.S. Dhaliwal, the applicant’s personal physician, note ongoing pain in the back and left shoulder, and the use of pain medications (naproxen and Tylenol 3) as recently as February 2017. Dr. Dhaliwal also notes that the applicant’s pain “is receding”, an observation that I interpret as confirming the efficacy of continuing treatment.

iii. I find the respondent’s two IEs on this issue to be inconclusive:

a. The first IE report by Dr. Bezhad Taromi, orthopedic surgeon, dated August 12, 2015 does not directly address the issue of chronic pain: it is focused on outlining musculoskeletal injuries. However, it is notably consistent with the applicant’s reports in noting ongoing pain and the applicant’s efforts to address it.

b. The second IE report by John Duong, occupational therapist, dated August 15, 2016, does not address chronic pain: the focus on this report was the applicant’s functionality in the context of attendant care needs in response to a claim that the applicant has since withdrawn (see above).

33I find the applicant’s medical reports more persuasive than the IE reports submitted by the respondent, because the latter, as noted above, do not focus on chronic pain and do not offer opinions on chronic pain syndrome. To refute an assertion of chronic pain, the respondent should have obtained a medical report that addresses that issue specifically and directly.

34I am not persuaded by the respondent’s suggestion that the time elapsed between the applicants claims for chronic pain and the accident raises doubts about causality, because:

(i) The respondent provides no evidence of injuries or accidents in the applicant’s history as evidence of intervening causes of chronic pain.

(ii) Chronic pain by its nature manifests itself and is persistent over a long period of time – as amply supported by a number of credible medical journal articles submitted as evidence by the applicant.

(iii) In my view, the applicant’s obligation to prove that a treatment plan is necessary does not include any obligation to prove a negative – that he had no injuries after the accident that caused his chronic pain syndrome;

(iv) Dr. Taromi’s report of August 12, 2015 includes a note that the applicant’s injuries and description of pain, which Dr. Taromi doesn’t deny, were not a result of the 2015 accident – but he offers no explanation for this conclusion and as noted above, does not address chronic pain diagnostically.

35I note that the respondent makes no strong argument as to the reasonableness of any of the proposed treatment plans in terms of cost or potential efficacy. It does not address them “one-by-one”. Its case is focussed on MIG determination and on the overall credibility of the applicant’s claims about chronic pain.

36I have no basis on which to deny the applicant’s assertion that medical benefits and costs of assessments enumerated above as issues (iv)-(vi) in para. 5 are reasonable and, having found his medical evidence persuasive, I also find that they are necessary.

37I find that the treatment plans would be payable if the applicant’s chronic pain syndrome in this case fall outside the MIG.

Is the applicant’s Chronic Pain Syndrome within the MIG?

38As a result of the foregoing, I must determine whether or not the applicant’s chronic pain syndrome falls within the MIG.

39The respondent also argues that chronic pain syndrome, if caused by soft-tissue injuries, falls within the MIG. To make its case, the respondent relies on:

(i) The language of s. 3(1) of the Schedule itself, which expressly includes clinically associated sequelae to soft tissue injuries of the type sustained by the applicant.

(ii) An arbitrator’s decision in BU v Aviva, 2016 CanLII 96167 (ON LAT) p. 6, which suggests that an applicant must “sufficiently show how the diagnosis of chronic pain syndrome is not a sequelae [sic] of the soft-tissue injuries.”

40The applicant cites an arbitrator’s decision in Arruda v Western, FSCO A13-003926, 2015, pp.19-20, that suggests that chronic pain may fall outside the MIG. However, I observe in reading Arruda that the arbitrator did not find definitively that chronic pain syndrome is excluded from the MIG. In Arruda, the arbitrator noted that “Western does not offer any response to the Applicant’s argument that Chronic Pain Syndrome removes an applicant from the MIG, and Western’s silence appears to concede the point”.

41In my view, an uncontested assertion is a weak basis for assigning persuasive value from Arruda to this case, especially when, as in this case, the respondent has contended that the applicant’s chronic pain syndrome is indeed within the MIG.

42The applicant also cites a number of Superior Court cases to support its contention that chronic pain falls outside the MIG: Pereira v Contardo, 2014, ONSC 6894, paras. 15, 19, 56; Bridgewater v James 2004 CanLII 48701 para. 42; and Hensworth v Mismar, 2006 CanLII 38232 (ON SC) para. 81.

43These cases are unpersuasive because none of them purport to interpret the meaning of the Schedule. The point these cases address is that chronic pain syndrome is serious, requires treatment and can give rise to claims in tort. However, those points are not at issue here; the meaning of section 3 of the Schedule is at issue. The applicant’s submissions do not explain how the cited cases can be used to interpret the Schedule, and as a result I do not find them persuasive.

44The applicant also argues that soft tissue injuries can give rise to chronic pain, citing a number of medical articles on chronic pain to show that it is recognized as a debilitating condition requiring and benefitting from various forms of treatment. None of these articles assist me in interpreting the Schedule.

45The applicant does not argue the issue of whether the chronic pain symptoms he reports are or are not clinically associated sequelae to his minor injuries, nor do his medical reports provide me with evidence on this question.

46I find that the chronic pain symptoms in this case fall within the MIG, based on:

(i) My own reading of the plain meaning of s. 3(1) of the Schedule and its definition of “minor injury” to include sequelae, reinforced by the persuasive weight of the above-noted finding in B.U. v Aviva.

(ii) My above-stated view that Arruda has limited persuasive value in this case.

(iii) The lack of medical evidence or argument to address whether or not the applicant’s chronic pain syndrome is a sequela to injuries defined as “minor” by the Schedule.

47Because the applicant’s injuries fall within the MIG, his claims are subject to a $3,500.00 cap, and the claimed benefits cannot be paid.

INTEREST

48Section 51 of the Schedule states:

51. (1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation 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 until it is paid, at the rate of 1 per cent per month, compounded monthly.

50The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.

CONCLUSION

51The applicant’s injuries fall within the MIG.

52The applicant’s claims for medical benefits and the cost of assessment of an in-home assessment are not payable, as the amounts claimed fall beyond the cap on benefits payable imposed by s.18 of the Schedule.

53There is no interest due on overdue payments.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. issued pursuant to s. 268.3 (1.1) of the Insurance Act.