17-008107 v Aviva Insurance Canada, 2018 CanLII 83525

Date: 2018-08-14

Tribunal File Number: 17-008107/AABS

Case Name: 17-008107 v Aviva Insurance 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

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Louis DeSignore, Jr., Counsel

For the Respondent: Monica Pathak, Counsel

Heard In Writing: July 03, 2018

OVERVIEW

1The applicant was involved in an automobile accident on July 7, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Aviva denied her claim.

ISSUES

2Is the applicant entitled to receive an income replacement benefit (IRB) in the amount of $302.48 per week for the period of November 14, 2017 to date and ongoing submitted July 2016, and denied by the respondent on November 13, 2017?

3Is [the applicant] entitled to interest on any overdue payment of benefit?

RESULT

4[The applicant]’s appeal is denied.

REASONS

Income Replacement Benefits

5The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

6The parties have not raised any issue of the amount of IRBs that may be payable to the applicant. Their submissions focus solely on whether or not the applicant meets eligibility criteria for IRBs.

7The Schedule, at s.5 and s.6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. These change over time after the accident. For this case, the relevant requirements are:

i. “Within 104 weeks after the accident, the insured person suffers a substantial inability to perform the essential tasks of his or her pre-accident employment […] or self-employment”.

ii. “After the first 104 weeks of disability, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

8Before the accident, [the applicant] was employed as a full-time customer service representative (sales associate) in apparel at a major retailer. Her job involved lifting, carrying, twisting, walking and standing for long periods of time. [The applicant] has not returned to work since the accident.

9Aviva paid [the applicant] an IRB of $302.48 per week from July 14, 2016 to November 13, 2017. Her IRBs were terminated by Aviva on October 10, 2017 with an effective date of November 14, 2017.

10To support her claim, [the applicant] relies on:

i. A report from Kate Johnson, physiotherapist, dated March 14, 2018, in which the PT notes that L4/5 disc bulge protrusion with foraminal narrowing seen on MRI presents clinically with pain in the low back, right hip and leg and with paresthesia down the right leg.² The PT reports that [the applicant] has great difficulty with bearing weight on her right leg, is unable to stand for longer than 10-15 minutes, and currently uses a cane to assist with walking. The PT describes key elements of [the applicant]’s job -- lifting boxes, stocking shelves, and being on her feet for the majority of her shift – and concludes that [the applicant] is now unable to perform these duties and therefore unable to return to full-time work of this nature due to the injuries she has sustained in the accident.

ii. A psychological report from Dr. Joan Clayton, [the applicant]’s treating psychologist, dated November 8, 2017, in which Dr. Clayton opines that [the applicant] is unable to work in any capacity at this time due to significant functional impairment, chronic pain, depression, and anxiety. The report refers to an earlier assessment in March, 2017, in which [the applicant] scored in the severe range for both anxiety and depression.

11Aviva’s rebuttal of [the applicant]’s claim is based in large part on her credibility. Aviva “submits that the issues in dispute […] teeter³ on the Applicant’s credibility.”

12Aviva argues that [the applicant]’s claim is undermined by the following:

i. [the applicant] and her family physician failed to disclose a workplace accident that occurred in February, 2008, which resulted in a low-back injury with radiation to the right leg and a broad posterolateral disc at the L4-L5 level of her spine. Aviva argues that this information raises issues about causation, and that the failure to disclose undermines the findings of her health providers that her impairments are accident-related. [The applicant]’s explicit denial of previous accidents to Aviva’s IE examiner Dr. Boucher raises questions about her truthfulness in self-reporting.

ii. [The applicant] failed to disclose to her assessors that her employer had offered her modified work,⁴ which she refused. This information is germane to any discussion of [the applicant]’s ability to return to her pre-accident employment and without this information, the reliability of her assessors’ opinions is weak.

iii. Surveillance videos and a surveillance report⁵ showing [the applicant] driving and exiting an SUV, grocery shopping, and walking fluidly and easily without the assistance of her cane – with the exception of a visit to a physiotherapy clinic.

13Aviva relies on its insurer’s examination (IE) reports – all of which conclude that [the applicant] does not meet the eligibility test for IRBs set out in the Schedule -- to defend its denial of [the applicant]’s claim:

i. A report by Dr. Michael A. Boucher, general practitioner, dated September 29, 2017, which indicates

a. no evidence of objective physical impairment

b. evidence of symptom magnification including a positive Waddell’s sign.

ii. A report by Dr. Cheryl Bradbury, neuropsychologist, dated September 29, 2017 with addendum completed by Dr. Bradbury dated April 11, 2018, in which Dr. Bradbury opines:

a. from a purely psychological standpoint, [the applicant] does not suffer a substantial […] inability to perform the essential tasks of her pre-accident employment;

b. from a purely psychological standpoint, nothing that would significantly impair [the applicant] from resuming pre-accident day-to-day, vocational or leisure activities at this time;

c. [the applicant] has sustained psychological injuries and would benefit from continuing psychological monitoring by her family doctor.

iii. A functional abilities evaluation report by Dawn Rodie, physiotherapist, dated September 29, 2017, which noted guarded performance within pain tolerance as opposed to maximum functional capabilities. [The applicant] declined to perform a number of the tests (walking, stair climbing, stooping, balancing, kneeling and crouching).

14On balance, I find that Aviva’s evidence is more persuasive than [the applicant]’s evidence because:

i. [The applicant] failed to disclose the availability of modified work offered by her employer to IE assessors. Her submissions are silent on this issue. This omission seriously weakens any prognostic conclusion about [the applicant]’s inability to return to employment. In my view, the onus is on [the applicant] to explain this omission and her apparent refusal to consider modified work with her employer; her failure to do so is a major factor in my finding that [the applicant] has failed to meet the burden of proof with respect to her claim for IRBs.

ii. [The applicant]’s unexplained failure to disclose her 2008 workplace injury to assessors raises doubts about the causation of her impairments, which she does not address persuasively. [the applicant]’s bald assertion that her “pre-existing back pain/issues were exacerbated as a result of the impact from the motor vehicle accident” is plausible, but it is unsupported by medical evidence, which [the applicant] might have had if she had been frank and forthright in her self-reporting to medical examiners. Plausibility is not proof.

iii. [the applicant]’s criticism of Dr. Bradbury’s conclusions is unconvincing to me because it amounts to an assertion that a psychological diagnosis amounts to proof of an inability to work, which is patently untrue. In addition, I gave Dr. Bradbury’s report more probative weight because her methodology included validity testing⁶, unlike [the applicant]’s assessors, who relied on self-reporting tests alone to support their conclusions. [The applicant] has not persuaded me that she has psychological impairments that prevent her from working.

iv. I found the IE reports thorough and well-supported by appropriate testing.

15I find that [the applicant] has not met the onus on her in this case to prove her eligibility for IRBs. She has not proven on a balance of probabilities that she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment. As such, [the applicant]’s appeal is denied.

CONCLUSION

16[The applicant]’s appeal is denied.

17There are no overdue benefit payments and therefore no interest is owing to [the applicant]

Footnotes

1. 1O.Reg. 34/10
2. 2i.e. an abnormal sensation such as tingling, tickling, pricking, numbness or burning of a person's skin
3. 3Emphasis Aviva’s
4. 4As evidenced by the Employer Confirmation Form (OCF 2) filed with Aviva by her employer in August 2016
5. 5Surveillance Report by Larrek Investigations, dated May 15, 2018.
6. 6E.g. Test of Memory & Malingering (TOMM), and Pain Patient Profile (P-3)