17-002688 (T.T.K.) v. Aviva Insurance Company of Canada, 2017 CanLII 85693

Licence Appeal Tribunal

Date: 2017-12-14

Tribunal File Number: 17-002688/AABS

Case Name: 17-002688 vs 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

and

Aviva Insurance Company of Canada

Respondent

DECISION

Adjudicator: S. F. Mather

Appearances:

For the Applicant: Sveda Guliyeva, Paralegal

For the Respondent: Matus Averbuch, Counsel

Heard both in Person and in writing: September 19, 2017

Overview

1[The applicant] (the “applicant”) was involved in a motor vehicle collision on March 25, 2015 and sought various medical benefits and costs of examinations pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”) from Aviva Insurance Company of Canada (the “respondent”).

2The respondent denied the claims on the basis that the applicant’s injuries are predominantly minor injuries as defined in the Schedule, which can be treated within the Minor Injury Guideline² (the “Guideline”). The Guideline limits the amount of money available to an insured person for medical and rehabilitation benefits to $3,500. Payment of the benefits claimed by the applicant will result in treatment costs beyond the $3,500 limit.

3The applicant argues that the Guideline does not apply to her because her injuries are not predominantly minor injuries and because she has pre-existing medical conditions that will prevent her from achieving maximal recovery if she is subject to the $3,500 limit.

4The respondent argues that if I determine that the Guideline does not apply to the applicant, I must deny the proposed Treatment and Assessment Plans because they are not reasonable and necessary.

5Case conferences took place on June 28, 2017 and July 7, 2017. The parties were unable to resolve the issues in dispute and a hearing partly in person and partly in writing was scheduled.

Issues

6The issues before me are:

1. Do the injuries sustained by T.T.K. fall within the Guideline?

2. If the answer to issue one is no:

a. Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,581.17 as submitted by Oleksandar Pivtoran on April 27, 2015 and denied by the respondent on May 1, 2015?

b. Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,749.78 as submitted by Dr. Naeha Sareen on September 13, 2016 and denied by the respondent on September 15, 2016?

c. Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,225.62 as submitted by Dr. Naeha Sareen on November 8, 2016 and denied by the respondent on November 9, 2016?

d. Is T.T.K. entitled to payments for the cost of a psychological assessment in the amount of $1,770.91 as submitted by Dr. Harinder Mrahar on October 6, 2016 and denied by the respondent on November 9, 2016?

3. Is T.T.K. entitled to interest on the overdue payment of benefits?

4. Is T.T.K. entitled to costs?

Result

7I find that:

1. The applicant’s injuries do not fall within the Guideline.

2. The applicant is entitled to:

a. the cost of a psychological assessment in the amount of $1,770.91 as submitted by Dr. Harinder Mrahar on October 6, 2016 and denied by the respondent on November 9, 2016.

3. The applicant is not entitled to:

a. a medical benefit for chiropractic services in the amount of $3,581.17 as submitted by Oleksandar Pivtoran on April 27, 2015 and denied by the respondent on May 1, 2015.

b. a medical benefit for chiropractic services in the amount of $3,749.78 as submitted by Dr. Naeha Sareen on September 13, 2016 and denied by the respondent on September 15, 2016.

c. a medical benefit for chiropractic services in the amount of $3,225.62 as submitted by Dr. Naeha Sareen on November 8, 2016 and denied by the respondent on November 9, 2016.

4. The applicant is entitled to interest on any overdue payment of the cost of the psychological assessment as submitted by Dr. Mrahar on October 6, 2016 in accordance with the Schedule.

5. The applicant is not entitled to costs.

PRELIMINARY & PROCEDURAL MATTERS

Adding a constitutional issue

8On September 15, 2017, the applicant served and filed a Notice of Motion³ asking for an order permitting her to add the case of Abdirahiman Abyan and Sovereign General Insurance Company⁴ (“Abyan”) to its Book of Authorities.

9The motion was required because the July 7, 2017 deadline⁵ for the applicant’s submissions and the September 12, 2017 deadline for her reply submissions had passed.

10Abyan is a very recent decision from the Financial Services Commission of Ontario (“FSCO”) where the adjudicator found that the Guideline violates s. 15 of the Canadian Charter of Rights and Freedoms.

11The respondent objected to the case being considered because it was not provided by the deadline set in the the Case Conference Order and it was prejudicial to the respondent to allow a new issue to be raised without providing an opportunity for a proper response.

12Ms. Guliyeva acknowledged that the applicant did not provide proper notice of a constitutional challenge and that the issue was not properly before me. She did not request an adjournment of the hearing and was prepared to proceed on the issues identified in her application and confirmed in the case conferences. She was simply asking for me to consider the case in my deliberations.

13By hearing submissions on Abyan I would be allowing the applicant to argue constitutional issues without notice to the Attorney General of Ontario and at great prejudice to the respondent. I was satisfied that there was no point in allowing the applicant to argue the Abyan case in her closing submission when it was agreed that the constitutional issues raised in Abyan are not before me in this hearing.

14Accordingly I dismissed the motion and proceeded to hear the application on the issues in dispute identified above.

Excluding Evidence

15In her written reply submissions, the applicant asks me to exclude the Insurer Examination Addendum reports from Dr. Rod Day, psychologist⁶ and Dr. Steven Halman, an orthopaedic surgeon,⁷ on the basis that they were provided to the applicant after the July 24, 2017 deadline for production of certain documents, as set out in the Case Conference Order of July 7, 2017.

16The Tribunal’s Rules⁸ provide that if a party fails to comply with an order with respect to the disclosure of documents, the party may not rely on the document as evidence without the consent of the Tribunal.

17The respondent had the opportunity to address this issue in its closing remarks at the in-person hearing and did not do so. Without any explanation for the delay, I am not prepared to consider the addendums because I am satisfied that the Order obligated the respondent to produce all s. 44 Insurer’s examination reports by July 24, 2017, which it failed to do.

APPLICABILITY OF THE MINOR INJURY GUIDELINE

18The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.

19Section 18(1) limits recovery for medical and rehabilitation benefits for minor injuries to $3,500, minus any amounts paid in respect of an insured person under the Guideline.

20Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider is required to determine and provide compelling evidence that the person has a pre-existing medical condition that was documented prior to the accident and which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline cap.

21The case of Scarlett v. Belair Insurance⁹ established that the minor injury provisions in the Schedule are a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant.

Applicant’s Medical History

22At the time of the accident, T.T.K. was sixty-one years old with a previous history of degenerative osteoarthritis, depression, hypertension and anxiety. She testified that approximately eight years prior to the accident she had been diagnosed with osteoarthritis of her left shoulder and had received cortisone injections to relieve the pain. She also testified that she had dislocated a disc in her lower back approximately 20 years before the accident and that 25 years before the accident she was diagnosed with and received treatment for osteoarthritis in her right knee, which improved with exercise.

23Radiology reports dating back to 2010 confirm that she has osteoarthritis of her pelvis, severe osteoarthritis in her shoulder,¹⁰ synovitis in her right hip and facet joint disease in her lower lumbar spine.¹¹ The applicant indicated that in the years prior to the accident, she received treatment for her pain and discomfort from these degenerative conditions. The bi-lateral x-ray of her knees and the ultrasound of her left knee following the accident¹² confirm that the applicant has degenerative osteoarthritis of her knees.

24The applicant has been taking Cipralex since 2010¹³ to help her deal with depression and anxiety. In 2014 she was referred by her family doctor for a cardiac assessment¹⁴ due to stress and unsteady blood pressure. In the same year, she was seen by the mental health unit at North York General Hospital¹⁵ on referral from the emergency department, after complaining of anxiety and depression. The applicant testified that she spent two days in hospital in April of 2014 due to her depression and anxiety. She attributes the depression and anxiety she suffered before the accident to marital problems.

Impairments

25The applicant testified that she has two problems. Her first problem is pain in her whole body, including her left knee and her second problem are her emotions. She testified that before the accident she was a stronger person but the car accident changed her life.

26The applicant argues that the physical and psychological impairments she suffered in the accident take her out of the Guideline. Impairment is defined in the Schedule to mean a loss or abnormality of a psychological, physiological or anatomical structure or function.¹⁶

27The physical impairments that she relies on are listed in her submissions¹⁷ as:

• Left knee sprains/strains injuries with secondary exacerbation of pre-existing osteoarthritis and possible new complex macerated tear of the medial meniscus of the left knee;

• Osteoarthritis of the left and right shoulder;

• Osteoarthritis of the cervical spine;

• Chronic myofascial neck pain;

• Headaches;

• Features of chronic pain syndrome.

28For psychological impairments,¹⁸ she argues that she experienced changes to her mood, a driving anxiety and has a major/severe depressive disorder.

29The applicant has satisfied me on the balance of probabilities that she sustained an impairment to her left knee in the accident that is not predominantly a minor injury because the accident caused an exacerbation of bi-compartmental knee osteoarthritis which led to a decompensation of her left knee osteoarthritis. This impairment takes her out of the Guideline and gives her access to more than $3,500 in medical and rehabilitation benefits.

30I have considered the submissions of the respondent with respect to the causation tests to be applied, as discussed in the case of Agyapong v. Jevco Insurance Co.¹⁹ In Agyapong, the Director’s Delegate accepted the decision of an FSCO arbitrator that applied both the “but for” and “material contribution test” to determine causation of impairment in an accident. While I am not bound by Agyapong, I find the discussion of the causation test useful in analyzing the issue before me.

31I am satisfied that but for the March 25, 2015 accident, the applicant’s left knee osteoarthritis would not have decompensated within one week of the accident, causing her great pain and difficulty walking. I am also satisfied that the accident was a material contribution to the applicant’s knee impairment after the accident. In reaching these conclusions I rely on the following evidence:

• The applicant had no recent knee complaints prior to the accident. It was over 20 years before the accident that the applicant last experienced knee problems.²⁰

• The referral note of the applicant’s family doctor referring the applicant to Dr. Edelist, a sports medicine specialist.²¹ This note links the applicant’s knee pain and difficulty walking to the accident.

• The May 26, 2015²² medical reporting letter of Dr. Edelist to the applicant’s family doctor. This letter diagnoses the applicant with an exacerbation of bi-compartmental knee osteoarthritis. He states that the exacerbation may have been precipitated by the accident as she had been symptom free for twenty years.

• The June 26, 2017 letter²³ of Dr. Edelist to the applicant’s counsel. This letter diagnoses the applicant with an exacerbation of bi-compartmental knee osteoarthritis. Dr. Edelist’s opinion is that while there is no evidence of an obvious mechanism of injury, it is too much of a coincidence that the applicant’s left knee osteoarthritis decompensated days after the accident for reasons unrelated to the accident when she had not experienced any pain in her knee for twenty years prior to the accident. He is of the view that the accident caused a dormant condition in the applicant’s knee to become symptomatically active.

• The clinical notes and records of Dr. Edelist.²⁴ He saw the applicant on a regular basis between May 26, 2015 and March 23, 2017 and provided some treatment for her knee issue. Dr. Edelist carefully differentiates in his notes between the applicant’s knee issues that arose following the accident and her neck and shoulder osteoarthritis issues which he describes as new problems in his December 14, 2016 clinical note.

• The evidence of the applicant that within a month of the accident she had to quit her full-time job as a chef’s helper in a restaurant and part-time job as a salad maker in a grocery store to find a job as a seamstress which allows her to sit while she works.

• The diagnosis of Dr. Halman that the applicant sustained a cervical sprain and cervicogenic headaches in the accident. I find that this diagnosis confirms that the impact of the accident was sufficient to cause some injury to the applicant.

32The opinion of Dr. Edelist is contradicted by the opinion of Dr. Halman, an orthopaedic surgeon retained by the respondent to do an Insurer’s Examination (“IE”).

33In both his October 23, 2016 and December 1, 2016 IE reports, Dr. Halman’s opinion is that the applicant most likely suffered a cervical strain and cervicogenic headaches as a result of the accident which had resolved by the dates of the reports. He stated that it is difficult to attribute the applicant’s ongoing knee pain to the accident given the “mechanism of injury and lack of history of contusion or twisting the knee”.

34I prefer the opinion of Dr. Edelist for the following reasons:

• He first examined the applicant shortly after the accident. Dr. Halman did not meet the applicant until nineteen months after the accident.

• He saw the applicant over a period of time and treated her for her knee issues and other issues unrelated to the accident.

35Dr. Halman’s opinion is based on the lack of evidence that the applicant hit or twisted her knee in the accident. He does not consider whether it was too much of a coincidence that the applicant’s left knee osteoarthritis decompensated days after the accident. He also does not consider that the impact of the accident was sufficient enough to cause the applicant a cervical sprain and cervicogenic headaches.²⁵

36In reaching the conclusion that the applicant did not sustain predominantly minor injuries in the accident, I have given little weight to the report²⁶ of Dr. Dessouki, a physiatrist. Dr. Dessouki did not examine the applicant until over two years after the accident and bases his conclusion on x-rays and ultrasound that were done nineteen months after the accident.

37Dr. Dessouki is of the view that the applicant’s cervical spine, neck and shoulder issues are also impairments from the accident. It is quite clear from the referral notes of the family doctor²⁷ and the clinical notes and records of Dr. Edelist²⁸ and the IE reports of Dr. Halman²⁹ that the only physical impairment the applicant suffered in the accident were cervical spine strain and associated headaches which resolved and the exacerbated degeneration of the osteoarthritis in her left knee.

38Having determined that the applicant did not suffer predominantly minor injuries in the accident, there is no need for me to determine if the applicant has a pre-existing medical condition that meets the requirement in the Schedule.³⁰

39Because I have found that the exacerbated decompensation of the applicant’s osteoarthritis does not fall within the Guideline, I must determine if the applicant is entitled to the medical and costs of examination benefits she claims.

40The Schedule³¹ provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured or on behalf of an insured person as a result of the accident including chiropractic, psychological, occupational therapy, and physiotherapy services.

41An insurer is not required to pay an expense in respect of a medical benefit until the insurer submits a treatment and assessment plan that is reasonable and necessary for the insured’s treatment and rehabilitation.³²

Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,581.17 as submitted[^33] by Oleksandar Pivtoran on April 27, 2015 and denied by the respondent on May 1, 2015?

42I am not satisfied that the treatment proposed in this plan is reasonable and necessary for the applicant’s treatment of the knee impairment she sustained in the accident for the following reasons:

• I have reviewed this treatment and assessment plan and I am unable to tell whether the treatment proposed is directed towards the impairments (left knee pain/swelling and cervical sprain/cervicogenic headaches) that I have found the applicant sustained in the accident.

• The comments in the plan refer to multiple injuries, and intense post-concussion symptoms which are not supported by the medical evidence

Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,749.78 as submitted by Dr. Naeha Sareen on September 13, 2016 and denied by the respondent on September 15, 2016?

43I am not satisfied that the treatments proposed in this treatment plan are reasonable and necessary for the following reasons:

• The treatment plan, dated almost eighteen months after the accident, proposes stimulation of the muscles of the head and neck, hyperthermy for multiple body sites, unspecified chiropractic treatment and massage therapy. I have already determined above that the applicant’s neck pain and headache issues from the accident were resolved by the time of this treatment plan and I cannot tell if any of the treatment proposed in this plan is directed at the applicant’s left knee issues.

• Dr. Halman’s opinion³⁴ in his October 31, 2016 IE report is that any treatment should be directed exclusively at the applicant’s left knee

• The treatment plan indicates that the prognosis for the patient is poor. This is also the opinion of Dr. Halman in his October 31, 2016 IE report. Even I were satisfied that the treatment proposed was for the knee injury sustained in the accident I would not be satisfied that it is reasonable and necessary given the poor prognosis.

Is T.T.K. entitled to receive a medical benefit for chiropractic services in the amount of $3,225.62 as submitted by Dr. Naeha Sareen on November 8, 2016 and denied by the respondent on November 9, 2016?

44I am not satisfied that the treatments proposed in this treatment plan are reasonable and necessary for the following reasons:

• This treatment plan, dated over almost twenty months after the accident, proposes stimulation of the muscles of the head, neck and back, respiratory system, back therapy and back exercise. I have reviewed the proposed goods and services and they appear to be directed to the applicant’s head, neck and back and not her left knee.

• I have already determined that the neck impairment the applicant sustained in the accident was resolved.

• The treatment plan notes state that the prognosis for the applicant is very poor and that previous treatment has seen little to no positive results.

• The IE report of Dr. Halman³⁵ dated December 1, 2016 confirms that the prognosis for treatment is not good. Dr. Halman states that if the knee injuries are attributable to the accident there is no indication for ongoing physio-therapy one and one-half years after the accident when she has made no ongoing improvement.

Is T.T.K. entitled to payments for the cost of a psychological assessment in the amount of $1,770.91 as submitted by Dr. Harinder Mrahar on October 6, 2016 and denied by the respondent on November 9, 2016?

45I am satisfied that the psychological assessment recommended in this treatment and assessment plan is reasonable and necessary for the following reasons:

• The applicant suffered from mental health issues before the accident. It seems reasonable to me that given the diagnosis of exacerbation bi-compartmental knee osteoarthritis, that she be assessed post-accident to determine if there are mental health issues arising from the accident.

• While there is evidence of the applicant submitting an earlier treatment plan for a psychological assessment, it does not appear that the respondent either approved or paid for the earlier treatment plan.³⁶

• The respondent obtained two psychological assessments from Dr. Day.³⁷ It seems reasonable to me that the applicant be able to obtain her own assessment to determine if the accident affected her psychological state.

Interest

46Having found that the applicant is entitled to the benefit for the psychological assessment, I find that she is entitled to interest on any overdue payment of the benefit in accordance with the Schedule.³⁸

Costs

47The applicant requests costs in her written submissions for the hearing.

48Rule 19.1 of the Tribunal’s Rules allows a party to make a request to the Tribunal for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

49The request for costs is denied for the reason that the applicant has not provided me with evidence of the behaviour of the respondent that entitles her to costs.

Order

50For the reasons provided above I Order:

1. The applicant’s injuries are not predominantly minor injuries and do not fall within the Guideline.

2. The applicant is entitled to:

a. the cost of a psychological assessment in the amount of $1,770.91, as submitted by Dr. Harinder Mrahar on October 6, 2016 and denied by the respondent on November 9, 2016.

3. The applicant is not entitled to:

d. a medical benefit for chiropractic services in the amount of $3,581.17, as submitted by Oleksandar Pivtoran on April 27, 2015 and denied by the respondent on May 1, 2015.

e. a medical benefit for chiropractic services in the amount of $3,749.78, as submitted by Dr. Naeha Sareen on September 13, 2016 and denied by the respondent on September 15, 2016.

f. a medical benefit for chiropractic services in the amount of $3,225.62, as submitted by Dr. Naeha Sareen on November 8, 2016 and denied by the respondent on November 9, 2016.

g. the cost of a psychological assessment in the amount of $1,770.91, as submitted by Dr. Harinder Mrahar on October 6, 2016 and denied by the respondent on November 9, 2016

4. The respondent shall pay to the applicant interest on any overdue payment of the cost of the psychological assessment in accordance with the Schedule.

5. The applicant is not entitled to costs

Released: December 14, 2017

___________________________

Susan Mather, Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2See section 3 O. Reg. 34/10 definition of Minor Injury Guideline.
3. 3Notice of Motion, dated September 15, 2017, Tribunal File.
4. 4FSCO A16-003657, September 14, 2017.
5. 5Case Conference Order made July 7, 2017.
6. 6Tab 5, Respondent’s Documents.
7. 7Tab 26, Respondent’s Documents.
8. 8Rule 9.4 , Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 2016)
9. 92015 ONSC 3653.
10. 10Tab 14, Applicant’s Index (undated).
11. 11Tab 14, Applicant’s Index.
12. 12Tab 11, Applicant Submissions.
13. 13Tab 20, Applicant’s Index.
14. 14Tab 7, Applicant’s Index.
15. 15Tab 7, Applicant’s Index.
16. 16Section 3, O. Reg. 34/10.
17. 17Paragraph 11, Applicant’s Written Submissions.
18. 18Paragraphs 20-24, Applicant’s Submissions.
19. 192016 Carswell 20655.
20. 20Tab 12, Applicant’s Index.
21. 21Tab 9 Applicant’s Index.
22. 22Tab 10, Applicant’s Index.
23. 23Tab 12, Applicant’s Index.
24. 24Tab 11, Applicant’s index.
25. 25Page 5, Tab 23, Applicant’s Index.
26. 26Tab 19, Applicant’s Index.
27. 27Tab 7, Applicant’s Index.
28. 28Tab 11, Applicant’s Index.
29. 29Tab 23, 24, Applicant’s Index.
30. 30Section 18(2) O. Reg. 34/10.
31. 31Section 15 (1) O. Reg. 34/10.
32. 32Section 38 O. Reg. 34/10.
33. 34Tab 23, Applicant’s Index.
34. 35Tab 24, Applicant’s Index.
35. 36Tab 16, Tab 22, Applicant’s Index.
36. 37Tab 22, Tab 26, Applicant’s Index.
37. 38Section 51(2) O. Reg. 34/10.
38. 33Tab 6 A, Applicant’s Submissions.