17-007820 v. Aviva Insurance Company, 2018 CanLII 115663

Date: 2018-10-04

Tribunal File Number: 17-007820/AABS

Case Name: 17-007820 v Aviva Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Loulia Logoutova, Paralegal

For the Respondent:

Amanda Faulkner, Counsel

Held by Teleconference:

June 18, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on June 26, 2015. He applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010¹ (the “Schedule”). The respondent declined to pay for certain benefits, so the applicant applied to this Tribunal for resolution of these issues.

2For the reasons to follow, I find the applicant is entitled to receive the cost of neurobiofeedback. As such, he is also entitled to interest for this payment. The applicant is not entitled to the other disputed benefits.

ISSUES

3The benefits in dispute are as follows:

i. Non-earner benefit in the amount of $185.00 per week for the period of December 30, 2015 to June 26, 2017;

ii. Medical benefit in the amount of $3,900.00 for the cost of neurobiofeedback, as recommended by 101 Physio (in a treatment plan denied by the respondent on May 19, 2016);

iii. Medical benefits for the cost of physiotherapy services, as recommended by 101 Physio, in the amount of:

(a) $2,852.93 (in a treatment plan denied by the respondent on November 25, 2015); and

(b) $2,136.39 (in a treatment plan denied by the respondent on May 19, 2016).

4The applicant is also requesting interest on any overdue payment of benefits.

NON-EARNER BENEFIT

5Section 12(1) of the Schedule states that an insured person is entitled to a non-earner benefit in the amount of $185.00 per week if she or he sustains an accident-related impairment that causes “a complete inability to carry on a normal life”. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6As explained in [16-000670 v. Aviva Insurance Company,]² the Court of Appeal for Ontario’s seminal case of [Heath v. Economical Mutual Insurance Company]³ provides the following guidance for applying this standard:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

iv. The applicant must provide that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

v. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.⁴

7This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule, and, as with other benefit determinations, the onus is on the applicant to establish entitlement on a balance of probabilities.

8Much of the applicant’s arguments involve his inability to attend religious services and classes. According to his submissions, the inability to participate in these religious practices is caused by his accident-related impairments. The applicant also submits that the respondent did not provide him with proper notice for the insurer’s examination that was requested to determine his initial entitlement to the non-earner benefit.

9The respondent bases much of its argument on challenging the applicant’s credibility. Specifically, the respondent questions his testimony about moving to Toronto after the accident; and it highlights inconsistencies in the self-reported testing that forms that basis of his psychological diagnoses. The respondent then adds that the applicant has not provided “any significant medical evidence” to support his claim for the non-earner benefit. Rather, the respondent’s assessors “did not find any residual physical or psychological impairment that would result in a complete inability to carry on a normal life.” Finally, the respondent asserts that it provided sufficient notice for its insurer’s examination.

10In reply, the applicant challenges the respondent’s questions about his credibility. Additionally, he submits that the respondent’s in-home assessment—conducted by Lynn Ruthledge on June 15, 2016—provides sufficient evidence about the changes to his pre- and post-accident activities.

Entitlement to Non-Earner Benefit

11After considering the guidance cited above from Aviva and Heath, as well as the parties’ submissions, I am not satisfied that the applicant is entitled to non-earner benefits for the period of December 30, 2015 to June 26, 2017.

12First, I would note that I did not have any significant issues with the applicant’s credibility.

13In regards to questions about his psychometric testing, I highlight the insurer’s examination conducted by Dr. Amena Syed (dated October 19, 2015), wherein psychometric testing found that the applicant was not engaging in feigning or amplification of his symptoms. Rather, the inordinate intensity of his symptoms stems from a persistent, disordered belief in his own disability.

14I also note that the inconsistencies in the applicant’s testimony and evidence were adequately addressed in his reply submissions. For instance, while the respondent raised a question about why one of the entries in his OHIP summary stated that a Toronto doctor had claimed a “New Patient Fee” before the accident (and, thus, before he moved to Toronto), the applicant noted that this is a commonplace occurrence for him. That is, since his pre-accident lifestyle involved travelling between Toronto and his former home in Ottawa, he required treatment at Toronto clinics to help manage his diabetes. The use of the term “New Patient Fee” is thus a common designation for these one-off clinic visits, and not a sign that he had registered with a new family doctor before the accident. Regardless, I would not disregard the applicant’s testimony in its entirety on the basis of several, minor inconsistencies.

15However, even after finding the applicant’s testimony and responses during assessments to be largely credible, I am not satisfied that his accident-related impairment “continuously prevents the person from engaging in substantially all” of his pre-accident activities. Of particular importance to my analysis are the insurer’s psychological assessments, the in-home assessment conducted by Ms. Ruthledge, and the transcript from the applicant’s examination under oath.

16First, I again highlight Dr. Syed’s psychological assessment, because it provides one of the few accounts of the applicant’s pre- and post-accident activities. According to his interview with Dr. Syed in October 2015, a normal pre-accident day would involve visiting his local mosque for morning prayer, driving his children to school, looking for employment, working out, attending religious classes, and, finally, going to sleep. As a result of the accident, he spent almost his entire day at home, save for morning prayer at the local mosque. The applicant also noted that he could no longer shop for groceries, volunteer in the community, and prepare complicated meals. Finally, the accident took away his interest in one day opening a business.

17This account is then mirrored in both the applicant’s psychological assessment with Dr. Betty Kershner (dated December 29, 2015) and the examination under oath with the respondent on March 16, 2016. For instance, in a brief part of the examination under oath, the applicant described the changes to a normal day in the following words:

Before the accident, I was helping my children, going out with them, going malls [sic], taking – helping them to take - - to get help, like to dream and be with my children and try to help them before the accident.

My life, a lot of things have changed. My sleep, pain, like getting injections, not going to do prayer at mosque [sic], praying on the chair, and not to do anything for myself. A lot of things have happened to me because of this accident.

18While these accounts provide basic information about the applicant’s pre- and post-accident activities, I have, ultimately, an insufficient account of what activities he participated in before the accident. For instance, I have little to no information about the frequency and length of time that he would engage in these activities, save for the daily nature of his religious practice.

19In addition to lacking a complete picture of the applicant’s pre-accident life, I am not satisfied that his accident-related impairments have left him unable to participate in the activities to which I have been directed. I certainly accept the importance of the applicant’s religious and family activities and, thus, following the principles from Aviva and Heath, they have been given more weight in my analysis. However, I am still not satisfied that the applicant reaches the high threshold for receiving this benefit.

20First, while the applicant may rely heavily on this report in his submissions, it is important to note that Ms. Ruthledge’s in-home assessment found no physical or functional limitations. Though issues with his left arm and shoulder required some modifications, the applicant still possessed the physical capacity to perform self-care and housekeeping tasks. Therefore, I am satisfied that the applicant is able to physically perform much, if not all, of his pre-accident activities.

21Regardless of this finding, I must still be satisfied that the applicant’s psychological conception of his pain does not limit his ability to “engage in” these activities. That is, as noted in Aviva, it is not enough for an insured person to be able to physically accomplish a task, rather she or he must be able to perform the task without experiencing significant restrictions. Put another way, I must be satisfied that the applicant’s documented belief in the severity of his physical injuries is not a significant restriction.

22After considering the parties’ evidence and submissions, I am not satisfied that this psychological condition is a significant restriction on the applicant’s ability to engage in substantially all of his pre-accident activities.

23First, the applicant has developed alternative means of carrying on with his day-to-day life (e.g., hired assistance for self-care activities and grocery shopping). This assistance may not mean that the applicant is able to perform tasks exactly as he used to, but his account of this assistance during the examination under oath demonstrates that he is still able to engage in these activities.

24Additionally, during his assessment for the respondent in May 2016, Dr. Kerry Lawson found that the applicant’s psychological impairments “likely contributed to some degree of impairment in the areas of family/home responsibilities, social activities, recreational pursuits, occupational-like duties, sexual behaviour, life support activities and self-care tasks”. While this finding suggests that the applicant is experiencing “some degree” of functional impairments in a number of activities (in line with my conclusion regarding the disputed psychological treatment plan below), this impairment is not—as the standard under the Schedule requires—preventing him from engaging in these activities. As demonstrated by his stated ability to still participate in religious and family events, albeit not exactly as before, the applicant has found new ways to perform his previous activities.

25In light of these findings, I am not satisfied that the applicant’s accident-related impairment “continuously prevents [him] from engaging in substantially all” of his pre-accident activities.

Sufficiency of Examination Notice

26The applicant also raised an issue with the sufficiency of the notice for the insurer’s examination about his entitlement to the non-earner benefit. However, as highlighted by the respondent, I was not provided with any particulars for this concern. As such, I do not have any further comment about this submission.

MEDICAL BENEFITS

27Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

Procedural Concerns

28Before considering the substantive merits of the applicant’s request for these benefits, I must first address the two procedural concerns that the respondent has raised. First, the applicant did not include copies of the disputed treatment plans with his original submissions (and should, therefore, be barred from including these plans with his reply). Second, as required by s. 38(3) of the Schedule, the respondent has yet to receive a signed copy of the disputed treatment plans.

29The applicant included copies of these disputed plans with his reply submissions. Further, in response to the second concern, the applicant notes that the respondent should have indicated that “the originally signed forms were necessary for [it] to properly adjust the claim”.

30In regards to the missing treatment plans, I will allow this dispute to proceed, as the potential prejudice to the applicant would be far greater than any prejudice to the respondent. Since the respondent rejected these disputed benefits during the adjusting of the applicant’s file, it would have access to these forms. Further, while it would have been preferable for the forms to have been included with the applicant’s original submissions, the potential prejudice of disregarding this evidence greatly supports their inclusion. Finally, I have considered the case law presented by the respondent, but these cases all appear to involve disputes where the treatment plans were never provided to the Tribunal. As such, I have disregarded this procedural concern.

31Then, in regards to the concern about compliance with s. 38(3), I accept the applicant’s explanation for why it did not originally provide signed copies of the treatment plans to the respondent. I have since been provided with signed copies of these plans, and so I have disregarded this procedural concern as well.

Neurobiofeedback

32According to the disputed treatment plan, neurobiofeedback is a treatment modality meant to promote relaxation and coping strategies. By working in conjunction with traditional psychotherapy, the preparing healthcare practitioner, Dr. Kershner, hopes that neurobiofeedback will assist the applicant with his cognitive difficulties and vehicular anxiety.

33The applicant submits that this treatment was recommended after a comprehensive review of his psychological condition, i.e., an assessment by Dr. Kershner that comprised of a clinical interview and testing. In comparison, the respondent’s psychiatric assessor, Dr. Bruce Ballon, did not conduct psychometric testing with the applicant.

34The respondent challenges the need for this treatment, as the applicant informed Dr. Ballon that the source of his stress was financial in nature (and not the result of a psychiatric condition). Further, its assessors determined that there were no psychological or residual physical issues remaining from the accident.

35Relying on the evidence of psychological impairments noted during my discussion of the non-earner benefit, I am satisfied that this treatment plan will help the applicant address his accident-related impairments. Specifically, the respondent’s examinations of the applicant’s psychological condition all found that there was at least some evidence of psychological distress (be it pain amplification, vehicular anxiety, etc.). Even Dr. Ballon noted that the applicant “worries about driving.”

36The applicant also noted during the examination under oath that he was experiencing vehicular anxiety during the period when this plan was denied (i.e., the first half of 2016). Finally, during the in-home assessment with Ms. Ruthledge, the applicant complained about the effectiveness of the psychological treatment he had received to date, i.e., it focused only on his sleep practices.

37Taken together, this evidence allows me to reach two findings: first, the applicant was suffering from a psychological impairment that Dr. Kershner hoped to address with neurobiofeedback and, second, other modalities of psychological treatment were not addressing his particular form of psychological distress. As such, I am satisfied that this disputed treatment plan is reasonable and necessary for addressing the applicant’s accident-related impairments.

Physiotherapy Services

38In both of the disputed plans, the applicant is requesting various forms of physical treatment, including physiotherapy, chiropractic treatment, and massage therapy. The plans cited headaches and whiplash associated disorder as the applicant’s primary impairments, and the stated goals of the treatment are “pain reduction”, “increase in strength”, and “increased range of motion”.

39By referencing the goals and self-reported progress noted in these plans, the applicant submits that there has been an overall improvement in his condition because of these treatments. He further adds that the respondent’s denial of these treatments “delayed his recovery and return to the ability to carry on a normal life.”

40The respondent contends that the reports from its assessors do not support the need for these services, as it appears the applicant has reached maximal medical recovery. Therefore, even though the applicant claims that there is ongoing pain from the accident, it is not clear how these physical treatments will assist, and they may, conversely, create dependency.

41By again relying on the evidence detailed above, I am not satisfied that these treatment plans are reasonable and necessary. As Ms. Ruthledge found during her in-home assessment, the applicant is only experiencing minor physical limitations in his left arm and shoulder. Rather, the majority of his functional limitations appear to stem from his persistent, psychological impairment. Therefore, while I have found that additional psychological treatment will assist the applicant in his recovery, I accept the findings of the respondent’s assessors that he has reached maximal medical recovery, at least from a physical standpoint. As such, further physical treatment is not reasonable and necessary.

CONCLUSION

42The applicant has demonstrated entitlement to a medical benefit in the amount of $3,900.00 for the cost of neurobiofeedback. Further, the applicant is entitled to interest for this overdue payment.

43The applicant is not entitled to the other disputed benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 22017 CanLII 39433 (ON LAT) (“Aviva”).
3. 32009 ONCA 391 (“Heath”).
4. 4Supra note 2 at para. 15.