Applicant v. Aviva General Insurance, 2018 CanLII 130859

Date: October 24, 2018

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Christopher A. Ferguson

For the Applicant:

Loreto Scarola, Paralegal

For the Respondent:

Patrick Sinclair, Counsel

HEARD : Written Hearing:

May 28, 2018

REASONS FOR DECISION

OVERVIEW

1[The applicant] was involved in an automobile accident on April 3, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva, denied his claim for benefits.

2[The applicant] was rear-ended while travelling on a major highway. His vehicle was determined to be a “total loss” by Aviva.

DISPUTED BENEFITS

3The issues before me are as follows:

i. Is [the applicant] entitled to a benefit of $2,260.00 for a chronic pain assessment by All Health Medical Centre in a treatment plan dated May 5, 2017 and denied by Aviva on May 29, 2017?

ii. Is Aviva liable to pay an award to [the applicant] under Regulation 664² because it unreasonably withheld or delayed payments to him?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

FINDINGS

4I find that [the applicant] has not proven that he is entitled to the chronic pain assessment he claims.

5I find that Aviva is not liable to pay an award under Regulation 664.

6There are no overdue benefits payments, and accordingly the issue of interest is moot.

REASONS

Background

7Sections 14 and 15 of the Schedule provide that an insurer is only 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 any proposed treatment or assessment plan is reasonable and necessary.³

8To support his claim, [the applicant] relies on a psychological report by Dr. Judith Pilowsky, psychologist, dated August 10, 2016, to establish that the conditions existed for development of chronic pain. In her report, Dr. Pilowsky links to the accident:

i. a significant decline in [the applicant]’s activities of daily living (ADLs) including sports, religious worship, housekeeping and social activities, attributed to both accident-related pain and psychological problems including anxiety, “low mood” and poor concentration;

ii. a moderately elevated PCS⁴ score in psychometric testing, which Dr. Pilowsky notes indicates that [the applicant] may be responding in a “psychologically dysfunctional manner” to his pain, “which in turn serves to impair [the applicant’s] level of functioning”;

iii. her diagnosis of PTSD⁵ and Major Depressive Disorder – Single Episode, Severe;

iv. her medical opinion that [the applicant] “is at high risk of developing Somatic Symptom Disorder should his pain condition not continue to improve or decline to any extent [...]”;

v. detects no issues of credibility or validity through psychometric testing;

9[The applicant] states that he had not received any psychological treatment after Dr. Pilowksy’s report. This is, he asserts, because Aviva refused to fund a proposed psychological treatment plan from Dr. Pilowsky in 2016. He acknowledges that Aviva later changed its decision, and approved the treatment plan.

10[The applicant] submits as evidence the disputed treatment plan in which the assessors, Dr. Inese Robertus and Dr. Khal Efala set out the results of a pre-screening process and personal interview with [the applicant]. These include reports of significantly impaired lifestyle and confirmation that pain and pain-associated impairments were continuing over 10 months post-accident.

11Finally, [the applicant] sets out a chronology of pain management using clinical notes and records (CNRs):

i. CNRs from [the applicant]’s family doctor, Dr. J.D. MacCleod, (who [the applicant] saw monthly) covering June 16, 2016 to March 13, 2018, consistently note persistent pain with minimal improvement, pain-associated limitations on activity, prescriptions for a variety of analgesics, referral to a pain clinic, and using the terminology “chronic pain” to describe [the applicant]’s condition;

ii. CNRs from CPM Centres for Pain Management, covering May-June 2017, describing the prescription of pain relief medications and nerve blocks, and difficulties in resolving [the applicant]’s pain complaints.

12Aviva rebuts [the applicant]’s evidence with the results from its Multidisciplinary Assessment Report, dated November 21, 2017:

i. None of its assessors, including a psychiatrist, Dr. Bruce Ballon, involved in the report noted “chronic pain” or somatic symptom disorder to describe [the applicant]’s condition;

ii. Ronald Findlay, occupational therapist, noted an active range of motion in [the applicant]’s neck and upper and lower extremities, no difficulties with transition movements and functional task simulation, with no objective evidence of any restriction on [the applicant]’s activities of daily living.

13Aviva also relies on additional evidence:

i. Dr. Victor Naumetz, orthopedic surgeon, opined that [the applicant] needed no further treatment in an insurer’s examination (IE) report dated May 24, 2017.

ii. Dr. Adriana Carvalhal, [the applicant]’s treating psychiatrist, at St. Michael’s Hospital, has not indicated in her CNRs that chronic pain is an issue and further reported in a note dated June 1, 2017, that [the applicant] reported feeling much better and was considering working as an Uber driver.

iii. Notes of findings from a physiatrist, Dr. Dinesh Kumbhare, an anesthesiologist Dr. Uttam Kalicharran, and a neurologist, Dr. Glynis Kopen, all of whom examined [the applicant] (as the result of referrals from his physicians) and none of whom indicated an issue with a chronic pain disorder.

14Aviva finishes its defence by asserting that a chronic pain assessment is unnecessary because it is duplicative, given the treatment [the applicant] has already received or is receiving, and the fact that he has been to a pain clinic and has been assessed and treated by two orthopedic surgeons, two psychologists and two psychiatrists, an anesthesiologist and a physiatrist.

15I find that [the applicant] has not met the onus on him to prove that the chronic pain assessment he seeks is reasonable and necessary, because:

i. The lack of a chronic pain diagnosis or discussion or risk in medical notes from independent, disinterested physicians (see para. [16] ii-iii above) who were following up on pain-related complaints is persuasive to me that the need to assess chronic pain syndrome or related disorders has not been established. I do not share [the applicant]’s view that all of these physicians “missed” his chronic pain condition because they weren’t looking for it.

ii. [The applicant] fails to explain why an assessment – as opposed to more treatment -- at this time is reasonable and necessary given his access to physiotherapy and psychological services. The OCF-18 does not address this issue or how its goals are distinct from or add value to the treatments already being undergone by [the applicant]. It also fails to indicate what medical information is used or relied on to conclude that a chronic pain assessment is necessary. The CNRs from Dr. Macleod reference “chronic pain” but do not reflect any investigation into chronic pain syndrome nor do they offer any opinion on the need for further assessments by a chronic pain expert beyond those already obtained by [the applicant].

16[The applicant]’s appeal is denied.

Motion to Exclude Evidence

17[The applicant], in his Reply Submission dated May 18, 2018, accuses Aviva of violating Rule 9,⁶ which governs mandatory disclosure of documents and other evidence. He asks me to exclude all evidence cited in Aviva’s Response Submission. He did not raise this issue in his Initial Submission.

18Frankly, it is unclear from [the applicant]’s submission exactly how Aviva allegedly violated Rule 9.

19In considering [the applicant]’s request, I am governed by Rule 3.1, which effectively mandates me to facilitate a fair process, allow effective participation by all parties and ensure efficient, proportional and timely resolution of the merits of proceedings before me. That mandate permits me to vary the Rules -- on my own initiative or at the request of a party – to support those goals.

20I have decided to deny [the applicant]’s request for the following reasons:

i. [The applicant] does not specify which documents or evidence relied on by Aviva were unavailable to him as the result of alleged non-compliance, and my reading of the Response is that it is based on evidence that was available and familiar to [the applicant], and he should have contemplated their use by Aviva. The exclusion request is too broad.

ii. [The applicant] does not explain how or why the exclusion of evidence is required to avert prejudice to him. He doesn’t even mention unfairness or assert surprise at any element of Aviva’s Response: [the applicant] simply asserts a demand for strict compliance with the Rules.

iii. In my view, Rule 3 requires me to approach exclusion requests with caution: in this case, the remedy sought is severely prejudicial to Aviva. Without some explanation of the prejudice to [the applicant] of considering the Response submission, the remedy is also unfairly disproportionate.

Award

21Section 10 of Regulation 664 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.

22There is no evidence in [the applicant]’s submissions to persuade me that Aviva has acted unreasonably in managing his claims. Its decision to refuse to pay for the disputed chronic pain assessment is based on a review of medical evidence and the results of multidisciplinary insurer’s examinations which contra-indicated the need for further assessments.

23I reject [the applicant]’s contention that Aviva’s decision to approve and fund a psychological treatment plan during the Tribunal’s case management and settlement process means that the initial refusal was “unreasonable”.

CONCLUSIONS

24[The applicant]’s appeal is denied, his claim for an Award is denied, and the issue of interest is moot, as no benefits are owing.

Footnotes

1. 1O. Reg. 34/10.
2. 2i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
3. 3Scarlett v. Belair, 2015 ONSC 3635
4. 4i.e. Pain Catastrophizing Scale, which measures thoughts or beliefs commonly associated with the development of a somatoform disorder, including chronic pain disorder.
5. 5i.e. Post-Traumatic Stress Disorder
6. 6All references to a “Rule” are made to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)