17-002907 v. Aviva Insurance Company, 2018 CanLII 13153

17-002907 v Aviva Insurance Company

Date: 2018-02-08 Tribunal File Number: 17-002907/AABS Case Name: 17-002907 v Aviva Insurance Company

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

Applicant

and

Aviva Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Chloe Lester, Member

APPEARANCES:

For the Applicant: Michael Brill, Counsel

For the Respondent: Tanislav Bodrov, Counsel

Written Hearing: October 31, 2017

Overview

1The applicant, [applicant], was injured in a motor vehicle accident on October 10, 2015. The applicant applied for and received medical benefits from the respondent, Aviva Insurance Company. The respondent paid for benefits until the dollar value reached the Minor Injury Guideline (MIG) limit of $3,500.00.

2The applicant continued to apply for treatment and assessment plans that surpassed the MIG limit, claiming that the injuries he sustained as a result of the accident were not minor in nature and should not be subject to the $3,500.00 limit. The respondent denied the subsequent treatment plans based on its insurer’s examinations, which confirmed the applicant’s injuries are minor in nature and are not reasonable and necessary.

3The applicant filed an application for dispute resolution to the Tribunal, which was received on May 9, 2017. In the applicant’s submissions he is also challenging the respondent’s ability to place the applicant in the MIG, claiming that it is unconstitutional and violates the Canadian Charter of Rights and Freedoms, relying on Abyan v. Sovereign General Insurance Company.¹

Issues in Dispute:

4The issues in dispute are as follows:

(i) Are the applicant’s injuries minor in nature and subject to the Minor Injury Guideline of $3,500?

(ii) Is the applicant entitled to the following treatment plans from All Health Medical:

(a) A cost of assessment for a chronic pain assessment in the amount of $2,260.00 recommended by Dr. Robertus dated September 21, 2016 and denied on October 5, 2016?

(b) A cost of assessment for a psychological assessment in the amount of $2,055.33 recommended by Nina Belyakova dated October 24, 2016 and denied November 10, 2016?

(c) A cost of assessment for an orthopaedic assessment in the amount of $2,520.00 recommended by Dr. West dated October 24, 2016 and denied on November 10, 2016?

(d) A medical benefit for a chronic pain treatment program in the amount of $12,329.04 recommended by Dr. Robertus dated January 12, 2017 and denied on January 24, 2017?

(iii) Is the applicant entitled to interest on the overdue payment of benefits?

Results:

5The applicant’s injuries are not subject to the Minor Injury Guideline. The chronic pain assessment, treatment program and psychological assessment (issues (a), (b) and (d) above) are reasonable and necessary. The applicant is not entitled to an orthopaedic assessment. As the applicant is out of the MIG, the constitutional challenge will not be addressed.

Procedural Issues:

6In his submissions, the applicant presented arguments relating to additional issues that were not listed on the application for dispute resolution or in the case conference report and order. The issues in dispute were for an orthopedic assessment submitted in a treatment plan dated September 21, 2016, a psychological treatment plan submitted in a treatment plan dated March 21, 2017, and costs and expenses related to the hearing. It is unclear whether the respondent was given proper notice of these additional issues. Therefore, it would be unfair to the respondent to deal with these issues in this decision. If the applicant wishes to pursue these additional issues, he may file another application for dispute resolution. Those issues are subject to any time limitation periods.

Analysis:

Did the applicant sustain minor injuries?

7The Schedule² places an individual injured in a car accident into various impairment categories. Each category entitles the applicant to different benefits and quantum levels.

8In this case, the respondent placed the applicant into the first category, the MIG, which limits the applicant to benefits under $3,500.00.

9In order for the applicant to be entitled to further medical and rehabilitation benefits the applicant must prove he sustained injuries that are not minor which allows him to apply for enhanced medical benefits. In addition, the applicant still has to prove that these benefits are reasonable and necessary.

10The applicant claims he did not sustain minor injuries as a result of the car accident because he had pre-existing injuries, a gunshot wound, and the car accident exacerbated those injuries. In addition, the applicant claims he suffered more than just minor injuries as he was later diagnosed with psychological and chronic pain disorders. He relies on evidence in medical clinical notes and records and assessment reports.

11The respondent claims that, based on its insurer’s examinations, the injuries sustained are minor in nature, that there is no compelling evidence that would prevent the applicant from recovering within the MIG limits as per s.18(2) of the Schedule, and that the applicant has the onus to prove the treatment being requested is reasonable and necessary. In support of its position, the respondent relies on Calliste v. State Farm, B.U. and Aviva, Scarlett v. Belair, Ganal and Coseco and L.C. and Aviva.³

12I find the applicant has not provided compelling evidence to support his claim that he had pre-existing injuries that prevent him recovery within the MIG. Unfortunately, the clinical notes and records only begin once the applicant had the accident and are largely illegible. The applicant did not produce any objective pre-accident records to support his pre-existing impairment or any compelling medical documents which corroborate his inability to recover within the MIG limits due to the gunshot wound. In many of the assessments he does not indicate to the assessor that he had this pre-existing injury and he largely reports that he was healed from the incident prior to the accident.

13The applicant also claims that he has been diagnosed with a chronic pain disorder and a psychological disorder, an adjustment disorder with mixed anxiety and depressed moss and specific phobia (driving), which prevent him from recovering within the MIG. The applicant produced various clinical notes and records and assessments to support his position. Dr. Robertus completed a chronic pain assessment on January 4, 2017 which diagnosed the applicant with chronic pain syndrome. Dr. Belyakova assessed the applicant for psychological impairments on March 21, 2017. The applicant was diagnosed with a psychological impairment as the testing results rendered him in the severe range for anxiety and depression. To support his position, the applicant relies on Arruda v. Western⁴ and D.J. v. Aviva,⁵ that a diagnosis of chronic pain or a psychological condition should preclude an individual from the MIG.

14The respondent requested multiple insurers’ examinations. One was conducted by Dr. Levy, physician, dated July 20, 2017, which concluded that the applicant sustained mild to moderate loss of range of motion in his cervical and lumbar spines but that his injuries are minor in nature and subject to the MIG. The orthopedic report conducted by Dr. Abuzgaya, dated April 19, 2017, noted the applicant’s pain complaints, that his range of motion were within near normal limits and that his injuries were within the MIG. Dr. Finkelstein, MD, conducted an assessment dated October 10, 2017 and noted the applicant’s pain complaints, a CT scan which revealed a disc bulge, degenerative changes in the spine and concluded the applicant’s injuries are still within the MIG. Dr. Finkelstein does not explain why the disc bulges would still render the applicant in the MIG.

15The respondent claims that the applicant’s chronic pain assessor is not qualified to conduct these types of assessments. If the respondent wished to challenge the qualifications of an expert witness, it would have to do so in accordance with the Tribunal’s Rules of Practice and Procedure, Rule 10.4, which was not done. It could have also cross-examined the witness, which was not requested. Therefore, I find no evidence to support this argument.

16As the applicant is specifically claiming he has a chronic pain and psychological diagnosis which render his injuries outside of the MIG, I will focus my analysis on the assessments that pertain to those issues.

17I find the applicant has sustained an injury which is not minor and he is not subject to the MIG limits. I find the evidence overwhelming that he sustained disc bulges, central canal stenosis, degenerative changes and a chronic pain disorder which are not minor injuries. The CT scan contained in the clinical notes and records is clear, objective evidence which supports the position that the injuries are not minor, as the applicant was diagnosed with disc bulges and degenerative changes in the spine. This supports the pain complaints he indicated to all of the assessors. Many of the respondent’s assessors did not have the CT scan at the time of their assessment, nor was it later given to them for an addendum to their reports. The disc bulges and degenerative changes also support why the applicant now suffers from a chronic pain diagnosis and why the alleged minor injuries have not resolved within the normal one year healing time.

18I cannot find that the applicant suffers from a psychological impairment. It appears throughout many of the assessments that the applicant mainly complained about the pain he was in. Although there are some signs of depression, flashbacks and nightmares, they do not seem strong enough to warrant a diagnosis, as supported by the two psychological assessments produced by the respondent. Although the applicant showed some signs of drivers anxiety, he continued to drive after the accident and indicated to the psychological assessor in the report dated June 26, 2017 that he feels he can overcome this on his own. Many of his self-reported concerns or symptoms pertain to his pain complaints.

19As the applicant is no longer in the MIG, I find the applicant’s arguments surrounding the constitutional challenge moot.

Are the chronic pain assessment, chronic pain treatment program and psychological assessment reasonable and necessary?

20I find the chronic pain assessment and chronic pain treatment program reasonable and necessary. The applicant had continued pain complaints and the treatment he was receiving did not seem to assist in his recovery. His treating practitioners believed he needed to be referred to another doctor for a chronic pain assessment. The chronic pain assessment is reasonable because the applicant was exhibiting enough signs and symptoms that led his treating practitioners to believe that his injuries were more than just strains and sprains. The applicant was then referred to for an assessment. The cost is in line with the Schedule and therefore meets the test for reasonable and necessary.

21As for the chronic pain treatment program plan, I also find it reasonable and necessary. Dr. Robertus diagnosed the applicant with chronic pain syndrome, and the applicant was rendered a good candidate for the program. The cost is in line with average chronic pain treatment programs and therefore is reasonable and necessary.

22I find the psychological assessment reasonable and necessary, despite finding that the applicant did not suffer from a psychological diagnosis. The applicant and respondent’s assessments demonstrated that there were enough signs and symptoms that it was reasonable to conduct an assessment to verify whether the applicant was suffering from a psychological condition. The cost of the assessment was in line with the Schedule and therefore, on those two bases, I find the psychological assessment reasonable and necessary.

Is the applicant entitled to an orthopaedic assessment?

23Most of the applicant’s submissions focused on the applicability of the MIG and the reasonableness and necessity of the chronic pain and psychological treatment plans. There were no specific submissions regarding the orthopaedic assessment and why it was reasonable and necessary.

24The additional comments section of the treatment plan dated October 24, 2016, reports many of the same conditions listed on the two Disability Certificates dated November 18, 2015 and March 31, 2016 authored by Dr. Pathak, and lists a medical summary of documents reviewed. Based on the evidence, it is not clear why Dr. West felt this assessment was warranted considering many of the injuries were already diagnosed by Dr. Pathuk.

25As the applicant has not produced any submissions or evidence to support the need of the orthopaedic assessment, I find that it is not reasonable and necessary.

Is the applicant entitled to interest?

26As the chronic pain assessment and treatment program were found to be reasonable and necessary, any interest is owed in accordance with section 51 of the Schedule.

Order

27I order the applicant to be removed from the Minor Injury Guideline. I also find the chronic pain assessment, treatment program and psychological assessment reasonable and necessary and that the applicant is entitled to payment of these benefits and any interest that stems from these benefits.

Footnotes

1. 1Abdirahman Abyan v. Sovereign General Insurance Company (FSCO A16-003567, September 14, 2017).
2. 2O. Reg. 34/10
3. 3Calliste v. State Farm 2016 ONSC 1854; B.U. and Aviva 2016 CANLII 96167 (ON LAT); Scarlett v. Belair 2015 ONSC 3635 (ONT SUP COURT); Ganal and Coseco (FSCO A14-010070, May 12, 2017); L.C. and Aviva 2017 CANLII 12598 (ON LAT)
4. 4Arruda v. Western (FSCO A13-003926, July 7, 2015)
5. 5D.J. v. Aviva 2016 CANLII 93136 (ON LAT)