Licence Appeal Tribunal
Tribunal File Number: 17-006056/AABS
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:
D.L. Applicant
and
Aviva Insurance Canada Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: D.L., Applicant Arthur Semko, Paralegal Ryan Moriarty, Counsel
For the Respondent: Raji Kulen, Litigation Specialist Monica Pathak, Counsel Suhasha Hewagama, Counsel
Held In-person: April 05, 2018
OVERVIEW
1D. L. (“the applicant”) was injured in an automobile accident (“the accident”) on June 13, 2015 and sought and received benefits from Aviva (“the respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). After the respondent denied his request for further medical benefits, consisting of five treatment plans and four exams, he applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant’s position is exactly the opposite. At the hearing, the applicant testified and one medical witness testified for the applicant, Dr. Nathanson, a certified functional capacity evaluator.
3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as $3,497.00 of the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES IN DISPUTE
4The parties agreed that issues in dispute before me are:
a. Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?
b. If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit for chiropractic services recommended by Mediwise Healthcare Clinic in the amount of:
a. $1,329.08 in a treatment plan that was submitted to the respondent on September 10, 2015 and was denied by the respondent September 18, 2015?
b. $2,976.20 in a treatment plan that was submitted to the respondent on October 1, 2015 and was denied by the respondent October 15, 2015?
c. $1,878.56 in a treatment plan that was submitted to the respondent on December 4, 2015 and was denied by the respondent December 17, 2015?
d. $1,621.28 in a treatment plan that was submitted to the respondent on February 12, 2016 and was denied by the respondent February 26, 2016?
e. $1,987.04 in a treatment plan that was submitted to the respondent on April 4, 2016 and was denied by the respondent April 15, 2016?
ii. Is the applicant entitled to receive payment for the cost of examination in the amount of $1,720.53 for a psychological assessment completed by Mediwise Healthcare Clinic submitted to the respondent on October 19, 2015, and denied by the respondent October 30, 2015?
iii. Is the applicant entitled to receive a medical benefit for psychological services completed by Mediwise Healthcare Clinic benefit in the amount of:
a. $4,015.12 submitted to the respondent November 24, 2015 and denied by the respondent December 7, 2015?
b. $4,015.12 submitted to the respondent February 6, 2016 and denied by the respondent February 22, 2016?
iv. Is the applicant entitled to receive payment for the cost of examinations in the amount of $2,000 for a neurological assessment completed by Gil Medicare and submitted to the respondent June 22, 2016 and denied by the respondent June 23, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
c. Is either party entitled to costs?
RESULT
4I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans, the issue of interest or an award.
5Neither party is entitled to costs.
ANALYSIS
The Minor Injury Guideline
6Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms for injuries mean.
7Section 18(1) limits entitlement to medical and rehabilitation benefits for injuries that meet the definition of “minor injury” to $3,500. The Schedule provides an exception to the $3,500 limit if the applicant has a pre-existing medical condition that will prevent him from achieving maximal recovery, discussed below.
8The onus is on the applicant to show that his injuries fall outside of the MIG3.
9I find that the evidence indicates the applicant sustained a physical injury that meets the definition of a minor injury and is therefore subject to the $3,500 limit on treatment.
10The applicant advanced three main arguments, which I address below, why he is not subject to the $3,500 treatment limit:
i. His injuries are not minor because he suffers from a psychological injury that includes anxiety, nightmares, difficulty sleeping and an aversion to driving because he fears he will be hit again. The applicant participated in treatment with Dr. Tromifova as of December 2015. He has been evaluated by two psychiatrists, Dr. Azadian and Dr. Appleton. His medical history was also the subject of a paper review by psychologist Dr. Kleiman.
ii. Even if his injuries were initially minor, he now suffers from chronic pain which is not considered minor. His evidence included an assessment by Dr. Nathanson, a certified functional capacity evaluator.
iii. Even if his impairments are defined as minor, his pre-existing injury limits his ability to reach maximal recovery under the MIG and he is therefore not subject to the $3,500 limit on treatment. The applicant suffered from upper back and left shoulder pain in 2013. He was prescribed naprosyn and flexeril by his family physician, Dr. Salah Ahmed.
11The respondent submits the following evidence to rebut the applicant’s claim:
i. All psychological intervention was initiated by the applicant’s legal counsel. Dr. Ahmed’s clinical notes and records (CNR’s) are silent with respect to psychological complaints or issues until November 2016 – more than a year post accident. Dr. Ahmed did not refer the applicant for any psychological treatment or any medications.
ii. There is inconsistent evidence that the applicant’s injuries are chronic. Dr. Ahmed never ordered diagnostic imaging of the applicant or referred him to any chronic pain or other specialists.
iii. Dr. Ahmed prescribed the same amount of naprosyn and flexeril for the applicant before and after the accident.
Did the applicant sustain predominantly minor physical injuries?
11I find that the applicant’s physical injuries are “minor injuries”. I note that the applicant’s medical evidence in this case was extensive. In opening and closing submissions, the applicant referred to the “mountain of evidence” in support of his position that he should be removed from the MIG and entitled to the treatment plans in dispute.
12However, I was not persuaded by the applicant’s evidence. The applicant’s medical records from his family physician were inconsistent with the proposed treatment and findings of others assessors. This was the biggest weakness in the applicant’s case, one which he could not overcome on a balance of probabilities.
13In response to this inconsistency, the applicant submitted that Dr. Ahmed did not refer the applicant for diagnostic imaging or psychological referrals because of limitations in the Ontario Health Insurance Plan (“OHIP”). The applicant submitted that physicians are weary of being audited and cannot freely refer patients for those services. The applicant further submitted that he was unable to discuss both physical and psychological problems with Dr. Ahmed as he was limited to discussing only one medical complaint per visit.
14The claims advanced by the applicant require me to make several inferences against Dr. Ahmed. Dr. Ahmed did not testify at the hearing. I note that the applicant indicated that he had a long-standing relationship with Dr. Ahmed and felt comfortable with him. The first CNR with Dr. Ahmed dates back to October 2012.
15First, I must accept that Dr. Ahmed would ignore or minimize the applicant’s complaints and decide not to provide the applicant with referrals because Dr. Ahmed feared being the subject of an administrative audit. I am not persuaded by this submission. As it is generally accepted that physicians are advocates for their patients and act as gatekeepers to healthcare resources only where appropriate, I find little basis to infer that the fear of administrative audit is an appropriate reason why Dr. Ahmed would not have referred the applicant for diagnostic imaging or referrals to other specialists.
16Second, I must accept that the applicant did not disclose his psychological problems because he was instructed or otherwise believed that he was only allowed to discuss one medical complaint. Even if I accept that Dr. Ahmed would limit the applicant to only discuss one medical complaint per appointment, the applicant did not provide any evidence that he had tried to book additional appointments with his physician so that he could discuss his psychological issues. The accident occurred on June 13, 2015. The applicant has been unemployed since April 2016. From April 2016 to November 2016, the applicant only met with Dr. Ahmed once. On balance, I am left with too many questions why the applicant did not communicate his psychological issues with Dr. Ahmed.
17I am unable to find that Dr. Ahmed, a doctor with whom the applicant had a prior relationship, would have managed the applicant’s complaints in the manner portrayed above. I am left with doubts regarding why the applicant did not disclose his psychological issues, why psychological referrals were initiated by the applicant’s legal counsel instead of Dr. Ahmed and why Dr. Ahmed did not refer the applicant for diagnostic imaging or to a specialist in chronic pain.
18On balance, despite the voluminous CNR’s submitted by the applicant, the report and testimony of Dr. Nathanson, a functional capacity evaluator, multiple psychological and psychiatric assessments, I find that the applicant’s injuries are minor.
Does the applicant have any pre-existing conditions?
12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be exempted, the applicant must provide compelling evidence that:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.4
13While there is little doubt that the applicant had a prior shoulder injury, there was virtually no evidence that it impacted his recovery from his claimed physical or psychological impairments in this accident in any way. As indicated above, the applicant had upper back and shoulder pain in 2013 for which he was prescribed naprosyn and flexeril. After complaining of lower back pain sustained in the 2015 accident, Dr. Ahmed did not adjust those medications or appear to find that additional therapy was required.
14None of the treatment plans, including those submitted in 2016, indicate that the applicant suffers from a prior or concurrent condition. The treatment plans are only ticked off as “unknown” to the question of “prior to the accident, did the applicant have any disease, condition or injury that could affect his response to treatment for the injuries identified […]”.
15It is difficult to find that the applicant suffers from a pre-existing condition when Dr. Yu, chiropractor of Mediwise Health Clinic, indicated “unknown” in all of the OCF- 18’s despite having treated the applicant. I am also persuaded that Dr. Ahmed would have suggested more aggressive therapy and treatment if the applicant’s pre-existing shoulder and upper back pain aggravated his lower back pain from the accident.
Does the applicant have psychological impairments?
16The applicant claims that he sustained a psychological injury that place his claims outside of the MIG.
17Psychological impairments, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the definition does not include psychological impairments.
18I find the applicant does not have a psychological injury that would take him out of the MIG. The applicant submitted reports from Dr. Trofimova and Dr. Kleiman, psychologists and Dr. Azadian and Dr. Appleton, psychiatrists. The respondent submitted reports from Dr. Appleton and Dr. Dancyger, psychologists. The parties raised validity concerns with the reports and findings advanced by the opposing experts.
19The applicant began treatment with Dr. Trofimova in December 2015. The first notation for any kind of psychological issue in Dr. Ahmed’s CNR’s is in November 2016, despite the applicant having attended 7 times before that date and the date of the accident.
20As indicated above, I find that the applicant’s medical evidence was fatally flawed because of the inconsistencies in the CNR’s of Dr. Ahmed. While Dr. Ahmed did agree with the recommendations eventually proposed by Dr. Azadian, and perhaps psychological symptoms might not have immediately appeared, it is unclear why the applicant did not disclose his psychological concerns with Dr. Ahmed before commencing psychological treatment and why Dr. Ahmed did not suggest any other psychological or psychiatric treatment.
21Based on my review of the evidence, I find the applicant does not have a psychological injury that would take him out of the MIG.
Does the applicant suffer from chronic pain syndrome?
22The applicant submits that he suffers from chronic pain, which removes him from the MIG.
23The applicant relies on the assessment of function/impairment report completed by Dr. Nathanson, functional capacity evaluator. Dr. Nathanson also testified at the hearing. His testimony was that the applicant suffers from chronic pain as the applicant meets the threshold of chronic pain because his pain has persisted beyond 2 years.
24I did not find that the evidence indicated that the applicant’s injuries or impairments are severe or constant. The applicant did not provide compelling evidence how he was limited in his activities of daily living. On balance, I did not find that there was sufficient evidence that the applicant exhibits symptoms consistent with chronic pain.
Interest, s.10 award
25Because I have found the applicant’s injuries to fall within the MIG, I do not need to address the ancillary issues of interest and an award for delayed or unreasonably withheld payments. It is also unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.
Costs
26Both parties claimed costs. Rule 19 provides that costs are awarded where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. For the reasons that follow, I do not find that either party is entitled to costs.
27The applicant submits that he is entitled to costs because the respondent obtained an adjournment of the hearing so that it could obtain three rebuttal reports. The hearing was adjourned by one month for that purpose. The respondent filed only one rebuttal report at the hearing. The respondent indicated that it was not able to get the other two addendum reports by its assessors by the due date. The applicant submitted that he was prejudiced by the delay and that the respondent’s actions constitute bad faith.
28I find it is regrettable that the hearing was adjourned for the purpose of addendum reports, two of which were never produced. However, I am persuaded that the length of the adjournment may not have allowed the respondent sufficient time to obtain them. While there may be some evidence of bad faith, for the reasons above, I am not persuaded that the respondent intentionally attempted to delay the applicant’s hearing without reason. Therefore, I do not find that the respondent’s conduct reaches the very high threshold of bad faith or unreasonable conduct.
29The respondent submits that it is entitled to costs because the applicant decided during the hearing that it would not be calling the respondent’s medical witnesses, Dr. Nesterenko and Dr. Dancyger, to testify for cross-examination by telephone.
The applicant indicated that he would not require their testimony as he believed he had established sufficient evidence in his case.
30Shortly before breaking before the lunch recess, the applicant communicated that he no longer required Dr. Nesterenko and Dr. Dancyger to be available for cross- examination by telephone. The respondent was represented by two counsel, one of whom was in the hearing room when the applicant indicated that he would not be calling the respondent’s medical witnesses. A discussion ensued when both counsel for the respondent were in the hearing room. I note that this conversation was not captured by the court reporter as he had been excused earlier for lunch.
31The respondent submitted that it was prejudiced by the applicant’s decision not to call its witnesses for cross-examination by telephone. I heard submissions from the parties. Ultimately, the respondent consented that following the lunch recess, I would hear final submissions.
32I appreciate the respondent’s frustration that the applicant decided right before the lunch break that its medical witnesses would no longer be called. The respondent incurred expenses for their availability. However, I also find that it was within the applicant’s litigation strategy to determine whether it would call the respondent’s witnesses. The applicant submitted that the witnesses were no longer required as he had sufficient evidence to establish his case. As the respondent would have been limited to re-examination only of its medical witnesses, aside from the financial detriment, I do not find there is any other prejudice that the respondent experienced from the applicant’s decision not to call Dr. Nesterenko and Dr. Dancyger.
33As such, I do not find that either party is entitled to costs.
CONCLUSION
34For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application. His application is dismissed.
ii. Neither party is entitled to costs.
Released: August 7, 2018
Anita Goela Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.