Tribunal File Number: 16-003638/AABS
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: Paul Gosio
APPEARANCES:
Counsel for the Applicant: Bob Jones
Counsel for the Respondent: Vlad Serdyuk
HEARD: In-Person: November 8, 9, 14, 21, 22, 24, 29 and December 8, 2017
Overview
1The applicant was injured in a motor vehicle accident on January 29, 2015. He sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”). The applicant received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries. The applicant then submitted additional treatment plans which the respondent denied, taking the position that the applicant’s injuries are predominantly minor in nature and as a result, no more medical and rehabilitation benefits were payable.
2In addition to the medical and rehabilitation benefits sought, the applicant applied for a non-earner benefit. The respondent denied entitlement to the non-earner benefit based on the strength of an insurer examination in accordance with s.44 that concluded that the applicant did not meet the non-earner test because the applicant did not suffer from a complete inability to live a normal life.
3The applicant disagreed with the respondent’s decision and submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, RSO 1990 c I.8 dated October 28, 2016.
Issues
4The applicant seeks a determination from the Licence Appeal Tribunal (“Tribunal”) on the following issues:
I. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
II. Is the applicant entitled to receive a weekly non-earner benefit in the amount of $185.00 per week from July 31, 2015 to present and ongoing?
III. Is the applicant entitled to a medical benefit in the amount of $2,953.00 for chiropractic treatment recommended in treatment plan dated November 9, 2015?
IV. Is the applicant entitled to a medical benefit in the amount of $3,365.00 for chiropractic treatment recommended in a treatment plan dated January 13, 2016?
V. Is the applicant entitled to a medical benefit in the amount of $1,929.75 for an assessment of attendant care needs and form 1 recommended in a treatment plan dated November 3, 2016?
VI. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan dated July 22, 2016?
VII. Is the applicant entitled to a medical benefit in the amount of $3,909.32 recommended in a treatment plan dated February 24, 2017?
VIII. Is the applicant entitled to a medical benefit in the amount of $1,776.29 for assistive devices recommended in a treatment plan dated February 24, 2017?
IX. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment recommended in a treatment plan dated February 27, 2017?
X. Is the applicant entitled to a medical benefit in the amount of $5,118.80 for active therapy recommended in a treatment plan dated March 31, 2017?
XI. Is the applicant entitled to a medical benefit in the amount of $4,607.96 for physical therapy recommended in a treatment plan dated May 23, 2017?
XII. Is the applicant entitled to interest for the overdue payment of benefits?
XIII. Is the applicant entitled to costs of the proceeding?
XIV. Is the applicant entitled to an Award because the respondent unreasonably withheld or delayed payments of benefits?
Result
5I find that:
I. The applicant’s injuries are not predominantly minor injuries as defined under the Schedule.
II. The applicant is not entitled to receive a weekly non-earner benefit in the amount of $185.00 per week from July 31, 2015 to present and ongoing.
III. The applicant is not entitled to the medical benefit in the amount of $3,909.32 recommended in a treatment plan dated February 24, 2017 as I have found that it is not reasonable and necessary. I have found the remaining treatment plans to be reasonable and necessary. Interest is payable.
IV. The applicant is not entitled to costs of the proceeding.
V. The applicant is not entitled to an Award under section 10 of Regulation 664.
The Minor Injury Guideline
6The applicant bears the onus of establishing, on a balance of probabilities that he falls outside the confines of the minor injury guideline (“MIG”). Section 3 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.” Section 18(1) of the Schedule caps recovery for predominately minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the MIG.
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
7The applicant submits that he sustained serious psychological and physical injuries as a result of the motor vehicle accident and that these injuries are not predominately minor in nature as defined by the Schedule. I am persuaded by the applicant’s submission and evidence and find that his psychological injuries are not predominately minor in nature as defined by the Schedule.
Psychological Injuries
8On April 22, 2015, Dr. Sinnadurai (family doctor) examined the applicant and noted symptoms of depression and referred him to a psychologist. On July 7, 2015, Dr. Gnanabaskaran (family doctor) also referred the applicant to a psychiatrist as he noted that the applicant was suffering from sleep loss and heightened irritability.
9On July 15, 2016, Dr. Pillai (psychologist) interviewed the applicant in order to complete a pre-screening assessment of his “emotional and cognitive problems”. Dr. Pillai then submitted a treatment plan wherein he noted the applicant to be suffering from adjustment disorder, depressive episode, post-traumatic stress disorder, specific (isolated) phobias and persistent somatoform pain disorder. The treatment plan recommended a psychological assessment.
10Dr. Kakar (psychiatrist) examined the applicant and produced a consult report dated August 5, 2015. In his report, he noted that the applicant made the following complaints: sleep loss; memory loss; heightened irritability, sadness, loss of appetite, weight loss, poor energy, loss of concentration, loss of motivation, feelings of worthlessness and loss of pleasure in daily activities. Dr. Kakar diagnosed the applicant with severe major depression, persistent depressive disorder, generalized anxiety disorder, pain associated with psychological factors and general medical condition and posttraumatic stress disorder. The applicant relies on Dr. Kakar’s diagnosis and submits that his psychological impairments are not predominately minor in nature as defined by the Schedule.
11On September 1, 2016, Mr. Salerno (psychologist) conducted a s.44 psychological assessment on behalf of the respondent. Mr. Salerno’s report noted that based on the results of the MCMI-III test, the applicant presented with clinical elevations on the Major Depression and Somatoform scales. Mr. Salerno testified that in isolation, this result could be concerning, however, when viewed in light of the applicant’s validity testing and presentation, the symptomology did not warrant a psychological diagnosis. Mr. Salerno concluded that the applicant may be experiencing mild emotional symptoms, however, did not present sufficient objective evidence of a symptom level warranting a DSM-5 diagnosis. The respondent relies on Mr. Salerno’s opinion and submits that the applicant does not suffer from a psychological impairment as a result of the motor vehicle accident.
12I prefer the evidence of the applicant in this regard and find that he has met his onus of establishing, on a balance of probabilities that he falls outside the confines of the MIG due to his psychological impairment.
13I have come to this conclusion for the following reasons. First, I prefer Dr. Kakar’s opinion to that of Mr. Salerno’s as I find Dr. Kakar’s opinion to be consistent with the totality of the evidence before me. I am not concerned by the respondent’s submission that Dr. Kakar’s report should be given little weight as it fails to mention the motor vehicle accident. I find this omission to be an oversight by Dr. Kakar and as such, does not diminish his opinion on this matter.
14Second, Mr. Salerno’s own testing revealed that the applicant presented with clinical elevations on the Major Depression and Somatoform scales. Third, I am not persuaded by the applicant’s validity testing and overall presentation as noted by Mr. Salerno. Mr. Salerno noted that the applicant’s score was indicative of malingering, was within the range of individuals that have been identified as “feigning pain and somatic related disability and was indicative of marked symptom over-reporting. The totality of the evidence before me, including the testimony of the applicant and his son, which I have found particularly persuasive, paints a different picture.
15Based on the above, I find that the applicant has established on a balance of probabilities that he suffers from a psychological impairment that takes him outside the confines of the MIG. Given my decision, I do not need to determine whether the applicant’s injuries fall outside the confines of the MIG due to his chronic pain syndrome, or due to his pre-existing psychological or physical condition.
Non-Earner Benefit
16Section 12(1)1 of the Schedule sets out the test for the non-earner benefit. The test is particularly onerous and is only met if an insured person establishes that he/she suffers a complete inability to carry on a normal life as a result of the accident.
17Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as follows: a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
18In addition to this, the parties submit that the principles in the 2009 Court of Appeal decision of Heath v. Economical Mutual Insurance Company (“Heath”) apply. I have reviewed those principles and have taken them into account in making my decision.
19The applicant and his son testified with respect to the applicant’s activities and life circumstances pre-accident. Pre-accident, the applicant remained a productive member of the household, attended temple on a daily basis, was self-sufficient with respect to personal care needs, enjoyed socializing with friends and watching TV and attended movies and played cricket with his son. The applicant identified attending temple as a fundamental aspect of his life. The applicant submits that his ongoing pain as well as his psychological condition has continuously prevented him from engaging in substantially all of these activities.
20The applicant relies on the evidence of Dr. Chen (chronic pain specialist) in this regard. The applicant suffered from WAD II whiplash, sprain and strain of the lumbar spine and shoulder and a contusion of the chest as a result of the motor vehicle accident. These injuries resulted in the applicant suffering from pain in his neck, back, shoulders and knees and has caused headaches.
21Dr. Chen examined the applicant on March 27, 2017. In his report, he noted that: the applicant’s pain condition is prolonged; the applicant’s chronic wide spread pain condition is moderate to severe; and the applicant’s chronic wide spread pain condition is complicated by his mood disorder and poor sleep.
22Dr. Chen diagnosis included: Cervical Acceleration and Deceleration; Whiplash Associated Disorder; Trauma related headache and neck, shoulder, back and knee pain; and Chronic Widespread Pain Syndrome. Dr. Chen opined that the applicant is unlikely capable of living a normal life without pain management treatment.
23The applicant also relies on the evidence of Ms. Belle (registered nurse), Dr. Weininger (chiropractor), Mr. Brar (physiotherapist) and Dr. Grigoropoulos (chiropractor) in support of his entitlement to a non-earner benefit. These assessors all noted that the applicant suffered from a decreased range in motion in his upper extremities. They also suggest that the applicant’s pain has resulted in a physical intolerance to weight bearing, repetitive movements, prolonged sitting and standing, kneeling, bending and crouching, lifting and reaching and pushing and pulling. Ms. Belle further noted that the applicant is incapable of attending to many of his household and personal care tasks and concluded that the applicant was not capable of living a normal life. Dr. Kakar also concluded that the applicant was unable to live a normal life taking into account his psychological state.
24I am not persuaded by the applicant’s submissions and evidence and find that he has not met his onus in establishing on a balance of probabilities that he is entitled to the non-earner benefit.
25The applicant and his son testified with respect to the applicant’s activities and life circumstances post-accident. Post-accident, the applicant continues to attend temple (although reportedly less than he did before) and watch TV as his main hobby. He is independent with respect to his self-care needs, and is able to perform housekeeping tasks at a slower pace.
26This evidence is consistent with the medical evidence before me. Mr. Kaplun (Occupational Therapist) provided an in-depth review of the applicant's pre and post-accident activities. Mr. Kaplun concluded that the applicant would be able to perform all personal and housekeeping tasks with the use of adaptive strategies, pacing, load division, and use of proper body mechanics. Mr. Kaplun concluded that the applicant did not suffer a complete inability to carry on a normal life.
27Dr. Tepperman (physician) conducted a s.44 physician assessment on behalf of the respondent on January 30, 2017. Dr. Tepperman noted that the applicant presented with some decreased ranges of motion but found the applicant’s behaviour to be self-limiting. Dr. Tepperman elaborated on this at the hearing as he stated that the application’s reduced range of motion was self-imposed, pain focused, non-organic and was not the product of an impairment. He concluded that there was no consistent objective evidence of musculoskeletal impairment and that the applicant suffered from a strain of his lumbar paraspinal musculature and a right knee contusion.
28The addendum reports of Dr. Tepperman and Mr. Kaplun dated May 25, 2017, reiterated their opinions that the applicant did not suffer a complete inability to carry on a normal life.
29Both Dr. Jugnundan (general practitioner), who conducted a s.44 assessment on behalf of the respondent and Dr. Chen, the applicant’s chronic pain specialist, confirmed that the applicant presented with an almost full range of motion.
30I also note that the applicant flew to India in February of 2017. This trip required four days of travel over the course of a two week period. The purpose of the trip was to attend temple and visit family. This sort of voluntary travel does not support the applicant’s entitlement to a non-earner benefit.
31I also find that the surveillance video taken from March 16 to March 18, 2018 is evidence that the applicant did not suffer a complete inability to carry on a normal life. The applicant is seen getting into and out of his Ford F-150, driving, parking, retrieving mail, shopping, navigating stairs, using a drive-through ATM, attending temple on two of the three days and going to a restaurant to purchase takeout food. This evidence demonstrates that the applicant is leading a life similar to the one he did pre-accident.
32I have taken into account the evidence of Ms. Belle, Dr. Weininger, Mr. Brar and Dr. Grigoropoulos in support of the applicant’s entitlement to a non-earner benefit. Given my discussion above, I do not find their evidence persuasive and have given it little weight because it is not consistent with the totality of the evidence before me. I have also given Dr. Kakar’s evidence little weight as he failed to put forward a persuasive analysis as to how the applicant’s psychological impairments translate into a complete inability to carry on a normal life.
33Although the applicant demonstrated that there were some changes in his post-accident life with respect to the scope, frequency and duration with which he engaged in some of pre-accident activities, he failed to establish that those changes amounted to him being continuously prevented from engaging in substantially all of his pre-accident activities. Therefore, based on the totality of the evidence before me, I find that the applicant does not suffer from a complete inability to carry on a normal life and does not qualify for a non-earner benefit under the Schedule.
Disputed Treatment Plans
34Since I have found that the applicant falls outside the confines of the MIG, I will now consider whether each individual treatment plan is reasonable and necessary in accordance with sections 14 and 15 of the Schedule. The applicant bears the onus of establishing on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $2,953.00 for chiropractic treatment recommended in treatment plan dated November 9, 2015?
35This treatment plan was recommended by Dr. Weininger and proposes funding for chiropractic treatment. The respondent denied this treatment plan on the strength of Dr. Jugnundan’s findings. Dr. Jugnundan found that the applicant sustained soft tissue injuries which were treatable within the MIG. As a result, he found that this treatment plan was not reasonable or necessary. I have already found that the applicant’s injuries do not fall within the confines of the MIG and given the applicant’s pain complaints and functional limitations at this time, I find this treatment plan to be reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $3,365.00 for chiropractic treatment recommended in a treatment plan dated January 13, 2016?
36This treatment plan was recommended by Dr. Brar and proposes funding for chiropractic treatment. The respondent denied this treatment plan on the strength of Dr. Jugnundan’s findings. Dr. Jugnundan found that the applicant sustained soft tissue injuries which were treatable within the MIG. As a result, he found that this treatment plan was not reasonable or necessary. I have already found that the applicant’s injuries do not fall within the confines of the MIG and given the applicant’s pain complaints and functional limitations at this time, I find this treatment plan to be reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $1,929.75 for an assessment of attendant care needs and form 1 recommended in a treatment plan dated November 3, 2016?
37This treatment plan was recommended by Dr. Grigoropoulos and proposes funding for the completion of an attendant care assessment and Form 1. Pursuant to section 25(1)4 of the Schedule, “an insurer shall pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if incurred by or on behalf of an insured person.”
38Pursuant to section 25(1)4 of the Schedule, the respondent would be liable to pay the fee charged under this treatment plan if:
I. The assessment was prepared by an occupational therapist or registered nurse;
II. The fee charged was reasonable; and
III. The fee was incurred.
39In this case, the assessment and Form 1 was prepared by Ms. Belle, a registered nurse. The fee charged for preparing the assessment and Form 1 was $1,929.75. I find this to be reasonable as it is in accordance with section 25(5)(a) of the Schedule which states that an insurer shall not pay more than a total of $2,000.00 for conducting any one assessment. The fee was incurred as defined by section 3.7e of the Schedule. Since the requirements of section 25(1)4 of the Schedule have been met, I find that this treatment plan is payable.
Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan dated July 22, 2016?
40This treatment plan was recommended by Dr. Pillai and proposes funding for a psychological assessment for treatment planning purposes. The respondent denied this treatment plan on the strength Mr. Salerno’s findings. Mr. Salerno concluded that this treatment plan was not reasonable or necessary as the applicant did not meet the criteria for a psychological diagnosis as a result of the accident. I am not persuaded by Mr. Salerno’s findings and prefer Dr. Kakar’s diagnosis as I find it to be consistent with the totality of the evidence before me. As a result, I find this treatment plan to be reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $3,909.32 recommended in a treatment plan dated February 24, 2017?
41This treatment plan was recommended by Dr. Grigoropoulus and proposes funding for consultations in the home regarding therapy, motor and living skills. The respondent denied this treatment plan on the strength of Dr. Tepperman’s findings. Dr. Tepperman concluded that this treatment plan was not reasonable or necessary since he found that the applicant’s injuries could be treated within the MIG. The applicant did not make any persuasive submissions with respect to this particular treatment plan. As a result, the applicant has not satisfied me that this treatment plan is reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $1,776.29 for assistive devices recommended in a treatment plan dated February 24, 2017?
42This treatment plan was recommended by Dr. Weininger and proposes funding for assistive devices including a back support, cervical pillow and ergonomic mat. The respondent denied this treatment plan on the strength of Dr. Tepperman’s findings. Dr. Tepperman concluded that this treatment plan was not reasonable or necessary since he found that the applicant’s injuries could be treated within the MIG. I have already found that the applicant’s injuries do not fall within the confines of the MIG and given the applicant’s pain complaints and functional limitations at this time, I find this treatment plan to be reasonable and necessary.
Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment recommended in a treatment plan dated February 27, 2017?
43This treatment plan was recommended by Dr. Chen and proposes funding for a chronic pain assessment. The respondent denied this treatment plan on the strength of Dr. Tepperman’s findings. Dr. Tepperman concluded that this treatment plan was not reasonable or necessary since he found that the applicant’s injuries could be treated within the MIG. I have already found that the applicant’s injuries do not fall within the confines of the MIG and given the prolonged nature of the applicant’s pain, I find this treatment plan to be reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $5,118.80 recommended in a treatment plan dated March 31, 2017?
44This treatment plan was recommended by Dr. Weininger and proposes funding for physical therapy. The respondent denied this treatment plan on the strength of Dr. Tepperman’s findings. Dr. Tepperman concluded that this treatment plan was not reasonable or necessary since he found that the applicant’s injuries could be treated within the MIG. I have already found that the applicant’s injuries do not fall within the confines of the MIG and given the applicant’s pain complaints and functional limitations at this time, I find this treatment plan to be reasonable and necessary.
Costs
45Rule 19.1 of the Tribunals Rules of Practice and Procedure allows parties to request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
46The applicant has asked for costs of this proceeding, because he alleges that the respondents conduct throughout the course of the hearing was unreasonable and in bad faith. The applicant submits that the unreasonable and bad faith conduct stems from the respondents unreasonable withholding of payments, non-compliance with the Schedule, and unfair and deceptive practices.
47There is insufficient evidence of conduct that is unreasonable or in bad faith before me, so I cannot make an order for costs in this matter. My decision is based, in part, on the following. First, although I have found that some of the disputed treatment plans are payable, the denials were reasonably based on the strength of various insurer examinations. Second, some of the alleged bad faith conduct outlined in the applicant’s submissions regarding the respondent’s non-compliance with the Schedule occurred prior to the commencement of the proceeding and is therefore not applicable to a determination of costs according to the Tribunals rules. I find that the remaining bad faith conduct alleged with respect to the respondent’s non-compliance with the Schedule to have no merit.
48Third, the applicant submits that the respondent engaged in unfair and deceptive practices when:
I. Its adjusters failed to respond to Tribunal approved summons;
II. It refused to produce relevant documents such as reserves; and
III. It provided the applicant with redacted log notes (based on relevance);
IV. It provided the applicant with an edited copy of the surveillance footage while labelling it as an unedited copy.
49There is insufficient evidence before me establishing that the alleged unfair and deceptive practices the applicant describes amount to conduct that is unreasonable, frivolous, vexatious, or in bad faith. Therefore, no costs will be awarded.
Award
50Section 10 of Reg. 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. I do not find that the insurer unreasonably withheld or delayed payments. The respondent’s decision to withhold payment of benefits was based on its s.44 examinations. This conduct is permissible as per the Schedule. As such, no award under Reg. 664 will be granted.
Conclusion
51For the reasons outlined above, I find that:
I. The applicant’s injuries are not predominantly minor injuries as defined under the Schedule.
II. The applicant is not entitled to receive a weekly non-earner benefit in the amount of $185.00 per week from July 31, 2015 to present and ongoing.
III. The applicant is not entitled to the medical benefit in the amount of $3,909.32 recommended in a treatment plan dated February 24, 2017 as I have found that it is not reasonable and necessary. I have found the remaining treatment plans to be reasonable and necessary. Interest is payable as per the Schedule.
IV. The applicant is not entitled to costs of the proceeding.
V. The applicant is not entitled to an Award under section 10 of Regulation 664.
Released: June 29, 2018
___________________________
Paul Gosio, Adjudicator