M.T.R. v. Aviva Insurance Canada, 2017 CanLII 81578

Date: 2017-11-23

Tribunal File Number: 17-001721/AABS

Case Name: 17-001721 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:

M.T.R. Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Aimee Draper, Counsel

HEARD: In Writing on September 25, 2017

OVERVIEW

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) to determine an insured person’s entitlement to statutory accident benefits.

MTR (“the applicant”) was involved in an automobile accident on December 12, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2A case settlement conference held on June 5, 2017 failed to resolve the issues in dispute. Accordingly, a written hearing was ordered to take place on September 7, 2017.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from July 20, 2016 to date and ongoing?

2. Is the applicant entitled to the cost of a psychological assessment in the amount of $2,200.00 recommended by Dr. Pilowsky in an assessment plan submitted to the respondent on April 7, 2016 and denied on April 25, 2016 and June 13, 2016?

3. Is the applicant entitled to a medical benefit in the amount of $3,129.48 for psychological services recommended by Dr. Pilowsky in a treatment plan submitted to the respondent on June 16, 2016 and denied by the respondent on July 7, 2016, July 22, 2016 and August 29, 2016?

4. Is the applicant entitled to a medical benefit in the amount of $11,229.56 ($13,025.06 less $1,795.50 partially approved) for a multi-disciplinary chronic pain treatment program recommended by All Health Medical and submitted to the respondent on September 28, 2016 and denied on October 19, 2016 and January 9, 2017?

5. Is the applicant entitled to a medical benefit in the amount of $2,569.40 for physiotherapy services recommended by Mackenzie Medical in a treatment plan submitted to the respondent on January 3, 2017 and denied January 18, 2017?

6. Is the applicant entitled to the cost of an orthopedic assessment in the amount of $2,520.00 recommended by All Health Medical in an assessment plan submitted to the respondent on August 4, 2016 and denied by the respondent on August 23, 2016 and September 19, 2016?

7. Is the applicant entitled to interest on any overdue payments from the respondent?

8. Is the respondent liable to pay an award under Regulation 664² (“the Regulation”) because it unreasonably withheld or delayed payments to the Applicant?

FINDINGS

4I find that the applicant has not proven her entitlement to the benefits she seeks: her application is denied.

5My finding on issue 4 does not affect the portion of the plan already approved by the respondent: $1,795.50 is payable, with interest, by the respondent.

6The respondent is not liable to pay an award under the Regulation.

REASONS

Non-Earner Benefits

8Section 12 of the Schedule provides that an insurer must pay a non-earner benefit (“NEB”) to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident

9Section (3)(7)(a) prescribes that a person suffers “a complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that “continuously prevents” him or her from “engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.

10The parties agree that the applicant’s pre-accident activities included housekeeping, grocery shopping (including walking to and from shops), cooking family dinners, socializing with friends and attending church services. The applicant is retired.

11The applicant’s evidence includes signed statements from:

i. her daughter-in-law who reports that the applicant can no longer prepare meals for family gatherings, and that the applicant has ended her weekly babysitting visits with her grand-daughter;

ii. a long-time friend, who reports that she drives the applicant to the grocery store and to appointments because the applicant can no longer walk any significant distance, carry groceries or take the bus – all things that the applicant used to do herself.

12The applicant submitted reports from a range of doctors, all of them concluding that the applicant suffers physical and psychological injuries arising from the accident that qualify her for NEBs:

i. Dr. Galdino Pontarini, the applicant’s personal physician, who assessed her frequently and concluded in his disability certificate (OCF 3) report of September 28, 2016 that her prognosis is guarded and endorsed her complete inability to carry on a normal life.

ii. Dr. Ryan Pagnanelli, chiropractor, whose disability certificate of January 3, 2017 reflected the same conclusions as Dr. Pontarini’s noted above.

iii. Dr. Ogilvie-Harris, orthopedic surgeon, who opined is his report of August 21, 2016 that the applicant’s reported pain, pain-related functional limitations and “some psychological/emotional difficulties” are “features of an early chronic pain syndrome and will predict a poor result” and concluded that she meets the criteria for NEBs.

iv. Dr. Inese Robertus, family physician who states, in a chronic pain assessment report dated September 20, 2016, that the applicant suffers from chronic pain which will continue to cause functional limitations and impairments that interfere with pre-accident housekeeping, social, family and religious activities.

13The respondent submitted insurer’s examination (IE) reports from a range of medical practitioners, all of them contradicting the conclusions of the applicant’s physicians:

i. Dr. Gianni Maistrelli, orthopedic surgeon, who examined the applicant on February 26, 2016, and conducted a paper review June 8, 2016 of medical documents, concluded among other things that the applicant did not meet the test for NEBs.

ii. Avi Kaplun, occupational therapist, who conducted in-home assessments on June 14, 2016 and December 16, 2016, and found that the applicant was able to perform a wide range of functional movements without help, and that the applicant demonstrated sufficient strength, mobility and functional tolerances to do the majority of her pre-accident activities.

iii. Dr. Dinesh Kumbhare, physiatrist, whose report of December 20, 2016 reported “no evidence of chronic pain”.

14In reviewing the medical reports of both parties, it is immediately evident that all of them depend heavily on frank and forthright self-reporting by the applicant. The medical conclusions in each are based in large part on the applicant’s answers in clinical interviews and to diagnostic test questions.

15The respondent notes, and I read in the IE reports that the applicant’s statements in direct interviews contradicted or were inconsistent with information provided to her own expert witnesses. For example:

i. Dr. Shulamit Mor, psychiatrist, notes in her report of May 11, 2016, that the applicant reported that she was independent with most pre-accident housekeeping tasks including cooking, vacuuming, cleaning, laundry and that she still walks, socializes and goes to church.

ii. Dr. Maistrelli, the IE orthopedic surgeon, reported that the applicant acknowledged engaging in most of her usual activities since the accident.

16The applicant makes no explanation for the discrepancies in self-reporting in the different examinations. Her arguments about methodological flaws in the respondent’s IE reports focus on other issues altogether. She does not attack the IE reports for misquoting her own statements. Accordingly, I am confident in giving the IE reports substantial weight in determining how the applicant’s self-reporting speaks to her claims of complete inability to carry out pre-accident activities.

17I find that the applicant’s above statements – which she has not denied or explained – to Dr. Mor and Dr. Maistrelli, acknowledging her engagement in most of her pre-engagement activities undermine her claim to be completely unable to carry on a normal life.

18I acknowledge the applicant’s point, taken from Heath v. Economical Mutual Insurance³ that “a claimant who merely goes through the motions cannot be said to be engaging in an activity” and that “the question is not whether he can do the activity, but whether pain or after-pain [sic] practically prevents engaging in activity”.

19Heath also indicates that it is not enough to show changes from pre- to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of her pre-accident activities.⁴

20The applicant’s submissions do not illustrate any theory that her self-reported post-accident activities were so exceptional and constrained by pain as to have been “practically prevented”. Her accounting of her post-accident activities to the IE assessor does not support an assertion that she was continuously prevented from engaging in substantially all of her pre-accident activities.

21I find that the applicant has not met the onus on her to prove that she is entitled to NEBs.

Medical Benefits: Psychological Services

22Section 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.⁵

23The applicant’s claims for psychological services, set out as issues 2 and 3 in paragraph 4 above are supported by:

i. Dr. Galdino Pontarini, the applicant’s family physician, who referred her to a psychiatrist on February 22, 2016 after noting in his report dated January 4, 2016 a “state of anxiety” that prevents her from functioning well.

ii. Dr. Judith Pilowsky, psychologist, whose treatment plans of April 7, 2016 and June 16, 2016 diagnose a number of psychological disorders such as anxiety, depressed mood and somatic responses.

iii. A consultation note from Dr. Shawn Vasdev, psychiatrist, dated April 18, 2016, diagnosing major depressive disorder and somatic symptom disorder.

24The respondent relies on the evidence of Dr. Shulamit Mor, psychiatrist, whose reports of June 3, 2016 and January 3, 2017 conclude that no diagnosis of a psychological disorder or impairment is warranted. The respondent raises the applicant’s denial of psychological issues to non-psychological specialists as well.

25As noted above, I assign great weight to the applicant’s self-reporting.

26In the IEs, the applicant’s statements in direct interviews contradicted or were inconsistent with information provided to her own expert witnesses. For example:

i. Dr. Mor’s reports, noted above, state that the applicant denied feeling sad or depressed, and denied anhedonia, panic episodes, and flashbacks – inconsistent with the large number of significant psychological issues the applicant reported to Dr. Pilowsky.

ii. Dr. Kumbhare, in his above-noted report, indicated that the applicant denied experiencing psychological difficulties.

27The applicant does not explain the inconsistency in self-reporting in the different examinations in either her appeal submission or her reply to the respondent’s evidence and argument. She does not challenge the truth of the IE reports respecting her own statements.

28The applicant argues that Dr. Mor “ignored” test results. I disagree. In fact, Dr. Mor evaluated test results and found them inconsistent with the applicant’s presentation. Dr. Mor confirms that in her examinations, patient self-reporting is weighted heavily in reaching conclusions. I find this to be a reasonable working approach and one that effectively addresses the questions the applicant seeks to raise about Dr. Mor’s approach to diagnostic test results.

29Accordingly, I give Dr. Mor’s reports substantial weight in determining how the applicant’s self-reporting speaks to her claims of psychological injury.

30I find that the applicant’s unexplained statements to Drs. Mor and Dr. Kumbhare denying psychological difficulties undermine her claim to need psychological services. The onus on her to prove that the assessment and treatment sought is necessary is not met.

Medical Benefits: Chronic Pain Treatment

31The applicant’s claim for chronic pain treatment, set out as issue 4 in paragraph 4 above, is supported by:

i. Dr. Galdino Pontarini, the applicant’s family physician, who assessed her frequently in January 14, 2016 and September 28, 2016, reports post-traumatic cervical, lumbar and shoulder pain musculoskeletal pain.

ii. Dr.Ryan Pagnanelli, whose disability certificate report of January 3, 2017 reflected the same conclusions as Dr. Pontarini’s noted above and recommended chiropractic and massage therapies in a treatment plan of June 28, 2016.

iii. Dr. Ogilvie-Harris, orthopedic surgeon, who opined is his report of August 21, 2016 that the applicant’s reported pain, pain-related functional limitations and “some psychological/emotional difficulties” are “features of an early chronic pain syndrome and will predict a poor result”.

iv. Dr. Inese Robertus, who states in a chronic pain assessment report dated September 20, 2016, that the applicant suffers from chronic pain which will continue to cause functional limitations in the future.

iv. A consultation note from Dr. Shawn Vasdev, psychiatrist, dated April 18, 2016, diagnosing somatic symptom disorder.

32The respondent submitted insurer’s examination (IE) reports from two medical specialists to rebut the conclusions of the applicant’s experts:

i. Dr. Gianni Maistrelli, orthopedic surgeon, who examined the applicant twice, on February 5, and on August 24, 2016 and made no diagnosis of chronic pain syndrome and found no evidence of radiculopathy.

ii. Dr. Dinesh Kumbhare, physiatrist, whose report of December 20, 2016 supplied no evidence of chronic pain syndrome.

33Consistent with findings above, in reading the applicant’s reports in support of diagnoses of chronic pain syndrome, I am struck by the importance of subjective reports by the applicant of both pain and the severe functional limitations on her activities imposed by this pain. This includes completing questionnaires such as the Pain Disability Questionnaire and the World Health Organization Disability Assessment Schedule noted by Dr. Ogilvie-Harris. It also includes the records reviewed by the experts in assessing her medical documentation of symptoms.

34I can find very little evidence from the specialist reports that speaks to observed physiological indicators pointing to chronic pain. Vertebral alignments are reported as normal, and neither party argues that the applicant’s range of motion results are abnormal.

35The applicant’s accounts of limitations on her pre-accident activities of daily living (ADLs) and pastimes appear essential to the conclusions reached by her experts. They are, as noted above in my analysis of her NEB claim, inconsistent with her self-reporting to the respondent’s medical assessors.

36I find that on a balance of probabilities the applicant has not proven that a chronic pain program is reasonable and necessary, because her inconsistencies has raised doubts about the reliability of her self-reporting on psychological, function and activities of daily living, all of which are key components of a finding for chronic pain syndrome.

Partially Approved Treatment Plan

37As noted in paragraph [4], portions of the disputed chronic pain program were approved by the insurer. The insurer’s examiner, Dr. Kumbhare, did not diagnose chronic pain syndrome, and did not endorse the full treatment plan as proposed. However, he did consider some elements of the plan to be reasonable and necessary for the symptoms that he did observe.

38My decision to accept Dr. Khumbare’s report as strong evidence on the chronic pain program issue does not affect his partial approval of the plan. My reasons for reaching this conclusion are:

i. After reviewing Dr. Khumbare’s report, I found all of his conclusions persuasive, based as they were on direct examination and testing of the applicant on December 6, 2018 as well as document review.

ii. I find that his medical opinion that chronic pain program is unwarranted in no way contradicts his finding that the applicant has some neck pain issues, described as dull and variable with limited, intermittent radiation into the left arm, that would be mitigated by a more modest course of treatment, which was available to her if the proposed treatment plan were partially approved.

39The amount Dr. Khumbare recommended for the pain treatment was approved by the respondent and is payable by it. If the amount has not yet been paid, it is overdue and interest is payable on it.

Medical Benefits: Physiotherapy and Orthopedic Assessment

40The applicant’s submission does not address these issues.

41The respondent argues that:

i. The two orthopedic assessments conducted by Dr. Maistrelli revealed no orthopedic impairment and that further orthopedic assessment would be duplicative and not reasonable required.

ii. Dr. Maistrelli’s reports indicate that further facility-based treatments are not required and that the applicant should pursue an independent exercise program.

42In the absence of argument or evidence by the applicant to address the respondent’s case on these specific issues, I have no basis for finding for her.

Request for Interest

43Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

44In this case, the applicant is not entitled to interest on denied claims, because no payment is due from the insurer.

Award under Regulation 664

45Section 10 of the Regulation permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

46As I have found that the applicant has not met the onus on her to prove her entitlement to the disputed benefits, there is no basis for an award under s.10 of the Regulation.

CONCLUSIONS

47The applicant has not proven her entitlement to the benefits she claims.

48The applicant is not entitled to interest on overdue payments.

49As noted above, if the respondent has not yet paid the $1,795.50 of the disputed chronic pain program that it has already approved by the respondent then that payment is overdue, and interest is payable on it.

50The applicant’s request for an award is denied.

Released: November 23, 2017

Christopher A. Ferguson, Adjudicator

Footnotes

1. 1O.Reg. 34/10
2. 2O.Reg 664, RRO 1990, pursuant to s.280 of the Insurance Act, RSO 1990 c.I.8, Part VI.
3. 3Heath v. Economical, 2009 ONCA 391, 2009, 95 OR (3d), 785
4. 4Ibid.
5. 5Scarlett v. Belair, 2015 ONSC 3635