Tribunal File Number: 17-003500/AABS
Case Name: 17-003500 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:
R.P.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Edward Brogden, Counsel
Jessie Tran, Paralegal
For the Respondent: Amit Kwatra, Counsel
In-Person and In Writing: January 29-30 and February 1, 6, and 23, 2018
Interpreter: Christina Amigleo, Tagalog
OVERVIEW
1The applicant was injured in a motor vehicle accident on March 18, 2015. He applied for accident benefits to Aviva Insurance Canada (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied his claim and he applied for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefit Services.
2Both parties submitted documentary evidence. The in-person hearing took place over three and a half days. I heard evidence from the applicant, Shayna Pilc, social worker, and Dr. San Bui, chiropractor in support of the applicant. I also heard from insurer examiners Dr. Dinesh Khumbhare, physiatrist, Vincent Yip, physiotherapist and Dr. Shulamit Mor, psychologist. In addition, upon the parties’ request I received closing submissions in writing following the conclusion of the in-person hearing.
3To date, the respondent has approved medical treatment up to $3,250.00.
ISSUES IN DISPUTE
4I have been asked to decide the following issues:
(i) Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
(ii) If the answer is no, is the applicant entitled to payment for medical benefits and examination expenses in the following treatment plans (“OCF-18s”) and disability certificates (“OCF-3s”) recommended by Pain Rehabilitation Clinic Inc.:
(a) $2,070.00 for chiropractic services submitted on August 18, 2015 and denied on August 19, 2015;
(b) $2,520.00 for chiropractic services submitted on November 25, 2015 and denied on November 26, 2015;
(c) $2,000.00 for chiropractic services submitted on November 9, 2016 and denied on November 24, 2015;
(d) $270.00 for completion of an OCF 3 dated April 7, 2015 and denied on April 7, 2015;
(e) $2,200.00 for a social work assessment submitted on August 18, 2015 and denied on August 18, 2015;
(f) $200.00 for completion of an OCF-3 dated November 25, 2015 and denied on January 13, 2016;
(g) $200.00 for completion of an OCF-3 dated February 17, 2016 and denied on March 3, 2016;
(h) $200.00 for completion of an OCF-3 dated November 9, 2016 and denied on November 24, 2016;
(i) $200.00 for completion of an OCF-3 dated February 15, 2017 and denied on March 3, 2017;
(j) $2,200.00 for an orthopaedic assessment dated November 11, 2015 and denied on November 26, 2015; and
(k) Is the applicant entitled to interest on the overdue payment of benefits?
(iii) Is the applicant entitled to payment of an income replacement benefit (“IRB”) in the amount of $251.25 per week, from November 4, 2015 to date and ongoing?
(iv) Is the applicant entitled to interest on overdue payment of benefits?
RESULT
5For the reasons that follow, I order the following:
(i) The applicant’s injuries are within the MIG;
(ii) I do not find any of the OCF-18s and OCF-3s to be reasonable or necessary.
(iii) The applicant is not entitled to an IRB;
(iv) The applicant is not entitled to interest.
PROCEDURAL ISSUES
Qualifying Treating Chiropractor as an Expert Witness
6The respondent opposed the applicant’s request to have Dr. Bui qualified as an expert witness as a chiropractor as Dr. Bui did not author a report, he treated the applicant as a chiropractor and did not file an acknowledgement of expert duty. The applicant argued that Dr. Bui should be qualified by the Tribunal as an expert in chiropractic medicine as he treated the applicant as a chiropractor.
7I agree with the respondent that the nature of Dr. Bui’s evidence is as a treating practitioner, not as an expert who has prepared a report giving an opinion in his expertise as a chiropractor. Consequently, Dr. Bui is allowed to give evidence in his capacity as a treating chiropractor but I do not qualify him as an expert witness for the purpose of this hearing.
ANALYSIS
i. Do the applicant’s injuries fall within the MIG?
8The applicant believes that he sustained injuries that are more than minor in nature and claims he should be removed from the MIG because he sustained psychological impairments, a concussion, and he suffers from chronic pain as his accident related impairments have not healed. The onus is on the applicant to prove that his injuries are not minor. I find that the applicant sustained a minor injury for the following reasons:
9Section 3 of the Schedule provides the following definition of a minor injury:
“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
10Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment.
11I find the applicant’s injuries fall within the MIG because his physical impairments fit within the MIG, and he did not provide compelling medical evidence of a pre-existing medical condition which would remove him from the MIG. Finally, I am not convinced that he suffers from a psychological impairment or chronic pain syndrome as a result of the accident.
Physical Impairment
12The only evidence submitted which highlight the applicant’s physical impairments were six OCF-3s completed by Dr. Bui and through Dr. Bui’s oral testimony. Five of the OCF-3s list the following accident related injuries: other headache syndromes; sprain and strain of the cervical spine, shoulder joint and lumbar spine as well as post-concussion syndrome/concussion. The last OCF-3 dated July 7, 2017 added bilateral knee pain and chest pain. I was not directed to any evidence to explain how the right knee or chest pain developed as a result of soft-tissue injuries to his back over a year and half post-accident. Nor was any explanation provided with respect to how the knee and chest pain were accident related. There was no initial knee injury and the fact that he has knee or chest pain is not a diagnosis but symptoms. With the exception of post-concussional syndrome/concussion, which I will address later, these physical diagnosis and symptoms fall within the MIG. Further, none of the OCF-3s or OCF-18s submitted to the respondent requesting treatment outside of the MIG attached compelling medical documentation along with the forms which is a requirement under the MIG. Further, the x-ray report presented by the respondent did not show any abnormalities.
13Regarding the diagnosis of post-concussional syndrome/concussion. First, I find that it is outside of the scope of Dr.Bui as a chiropractor to make such a diagnosis. Secondly, I found the applicant’s testimony with respect to “losing consciousness” inconsistent with respect to what he reported to his family doctor compared to the IE assessors. I do not find Dr.Bui’s diagnosis of post-concussional syndrome persuasive.
14The only entry in the CNRs of the applicant’s family doctor relating to the accident is an entry dated March 19, 2015 which states: “mva; dizziness, neck and back. Was wearing seatbelt. Struck an SUV in front. Air bag deployed hitting patient on the face sustaining a shallow laceration on forehead. No onset of neck pain; No loss of consciousness; no nausea; no vomiting…” Out of eleven entries, only one refers to the mva. While the entry refers to a degree of trauma, his family doctor did not make any referrals to a specialist or have the symptoms of a potential concussion investigated further.
15I also found inconsistencies in the applicant’s testimony with respect to “loss of consciousness” in what he reported to the IE assessors. In the report of Mr. Yip the applicant reports “he lost consciousness for a little bit.” Then the psychological report of Dr. Mor says “no loss of consciousness.” When the applicant was asked during cross examination whether he lost consciousness he said “a little bit.” When asked if he told his doctor that he lost consciousness he said “he could not remember.” As a result, I have given this evidence very little weight. Therefore, I do not find that a diagnosis of post-concussional syndrome/concussion removes the applicant from the MIG.
16In the physiatry report dated October 14, 2014, Dr. Kumbhare, physiatrist diagnosed the applicant with the following accident related impairments: posttraumatic headache, lumbar strain, and WAD grade 2, resolved. Dr. Kumbhare concluded that the applicant’s injuries could be treated in the MIG. He further confirmed this diagnosis in a report dated January 18, 2016 and his opinion remained unchanged after reviewing additional CNRs on a later date.
17The applicant has not met the burden of proof that his injuries fall outside of the MIG. In this case, I was not provided with evidence to find on a balance of probabilities that the applicant’s physical injuries are not minor.
Psychological Impairment
18The applicant submits that he sustained a psychological impairment as a result of the accident and this would take him out of the MIG. The applicant relied on the report of Ms. Shayna Pilc, social worker and the respondent relied on the IE assessment of Dr. Mor, psychologist.
19I preferred the IE report of Dr. Mor over the report of Ms. Pilc as Dr. Mor is a psychologist, administered objective testing, and is qualified to make a diagnosis. She testified that the applicant denied experiencing any significant accident related psychological symptoms or impairment. While the applicant reported frustration with respect to pain, he confirmed he was coping. Dr. Mor administered validity tests as part of her assessment and advised that the results must be interpreted with caution as they were normed on North-Americans verses people from the Philippines. Dr. Mor indicated that the difference in test scores and representation may have to do with the applicant’s cultural background as it may complicate the test interpretation. However, she testified that she has assessed many people from the Philippines in the past and has not had such contradictory results before. Further, she places a higher value on the applicant’s medical history and behaviour observed during the clinical interview over test results.
20On the Beck Depression Inventory-II (BDI-II), the applicant’s score fell within the moderate range of depressive symptomatology. On the Beck Anxiety Inventory (BAI), his score placed him within the severe range of anxiety. On this measure, he answered yes to all items. Dr. Mor testified this was not consistent with his representation during her clinical interview. Further, if the applicant was suffering from the level of anxiety as endorsed on the test score in her experience as a psychologist he would not be able to leave his house. In such cases she relies on self-report and direct behavioural observation over psychometric findings. On the Pain Profile he scored in the below average range on the depression scale, and in the average range on the anxiety and somatization scales. On the Symptom Checklist-90-R (SCL-90-R) he scored more than three standard deviations above the mean (i.e., almost at the 100th percentile) on all nine scales of adjustment. He endorsed 89 out of 90 possible symptoms.
21Dr. Mor testified that this was an invalid profile and the test results were wholly inconsistent with the applicant’s representation and reported symptoms she observed during her clinical interview. Dr. Mor concluded that she did not find reliable evidence to indicate that the applicant suffered from any accident related psychological condition. I accept Dr. Mor’s opinion.
22By contrast the social work assessment of Ms. Pilc, dated February 28, 2017 found that the applicant’s injuries do not fall within the MIG as a result of a psychological condition. However, Ms. Pilc is not qualified to make such a finding. The report discusses the applicant’s pain and limitations. Ms. Pilc testified that the applicant reported to her that post-accident he was not as social as he was pre-accident, he no longer participated in gardening, home renovations or playing tennis and was experiencing anxiety because he could not work because of the pain he was experiencing as a result of his accident related injuries. In addition, he was suffering from pedestrian and driver’s anxiety.
23Ms. Pilc stated in her report that “the applicant’s impairments do not fall within the MIG because of apparent psychological symptoms and social issues including isolation. Further, the identified cognitive impairments and symptoms may be classified as adjustment disorder with mixed anxiety and depressed mood, as well as driving and pedestrian phobia.” I did not find Ms. Pilc’s analysis supported this finding as tests are administered by psychologists to come to a diagnosis and to determine the level of psychological impairment. I have given Ms. Pilc’s report and evidence less weight for the following reasons.
(i) No medical documentation was reviewed in the preparation of her report;
(ii) The report relies upon the applicant’s self-reporting of his injuries and limitations;
(iii) Making a psychological diagnosis is beyond the scope of Ms. Pilc’s expertise. During cross-examination Ms. Pilc admitted that making a psychological diagnosis is beyond the scope of her designation as a social worker and she was only commenting on his symptoms;
(iv) There were inconsistencies in the applicant’s self-reporting to Ms. Pilc compared with his examination under oath, his testimony and what he reported to other assessors about his functional limitations;
(v) Ms. Pilc diagnosed the applicant with a driving phobia and the surveillance video submitted by the respondent shows the applicant driving consistently.
24I did not find the applicant’s testimony helpful in demonstrating that he suffers from a psychological condition that would remove him from the MIG. Most of his testimony focussed on his employment and physical limitations due to pain. The only reference the applicant made to his emotional or psychological state was when he was asked how he feels about not being able to work he said “sad because he was unable to provide things to his kids.” When asked during cross-examination if he could not work because of his emotional or psychological well-being he said “no”. I did not find these statements persuasive that the applicant suffers from any accident-related psychological impairment.
Pre-existing Medical Issues
25The CNRs of Dr. Javier confirm that the applicant suffers from pre-existing high blood pressure and diabetes.
26The applicant submitted the report of Dr. Hanick, psychiatrist in relation to a prior motor vehicle accident which occurred in October 2001. The applicant sustained a rib fracture and lower back injury in that accident. The applicant testified that that this injury had healed by the time of the subject accident.
27No medical report or evidence was submitted to confirm that the applicant’s high blood pressure, diabetes, or the injuries sustained in the 2001 accident would prevent him from achieving maximum medical recovery within the MIG.
Chronic Pain
28In his closing submissions, the applicant raised chronic pain as a potential justification to be removed from the MIG as it has been three years since the accident and he is still suffering from pain. The submissions acknowledge that there has been no chronic pain diagnosis. Nor, did I find any evidence of chronic pain in the CNRs or reports submitted by the applicant. Therefore, I do not find that the applicant is removed from the MIG as a result of chronic pain.
29In my view, for the above-noted reasons the applicant has not met his onus in proving on a balance of probabilities that his accident related injuries would remove him from the MIG. Therefore, I find that he sustained a minor injury.
ii. Is the applicant entitled to payment for any of the remaining OCF-18s for medical treatment and examination expenses recommended by Pain Rehabilitation Clinic Inc.:
30I do not find the OCF-18s to be reasonable or necessary for the following reasons:
31First, there is currently $250.00 of funding left under the MIG limit for treatment and the OCF-18s for medical benefits and examination expenses exceed that limit.
32Second, I agree with the respondent that all of the OCF-18s submitted are in non-compliance with the Financial Services Commission of Ontario’s (“FSCO”) Superintendent Guideline 03/14 (the “Guideline”). The Guideline sets out the maximum amounts payable by insurers for a range of health care services and the respondent is not required to pay expenses that exceed the maximum hourly rates.
33The respondent maintains that all of the OCF-18s list the same injuries and seek a variety of treatment including massage, chiropractic treatment, acupuncture and physiotherapy. The all propose a per hour measure at a cost of $150.00 per hour. The respondent contends that the proposed services are not interchangeable and the OCF-18s do not specify the type of treatment, number of sessions, and nothing with respect to services and applicable rates. I agree with the respondent that the rates charged on the OCF-18s for both the medical benefits and assessments exceed the amounts payable under the Guideline. The respondent submitted case law in support of its position. The applicant did not, nor did he make any legal argument with respect to the OCF-18s being reasonable and necessary.
34For the above-reasons, I do not find any of the OCF-18s reasonable or necessary.
iii. Is the applicant entitled to payment for any of the OCF-3s submitted by Pain Rehabilitation Clinic Inc.?
35Regarding payment of the OCF-3s, the applicant is not entitled to payment. Section 36 and 37 of the Schedule sets out the purpose of an OCF-3 and the situations in which one should be submitted by an insured to an insurer. Dr. Bui testified that the OCF-3s were submitted because there was a change in the applicant’s condition. However, Dr. Bui did not provide particulars with respect to what the change in his condition was and why it was necessary to provide an updated OCF-3, nor did the respondent request an updated OCF-3 as per s. 37. Therefore, I find the applicant is not entitled to payment for any of the OCF-3s.
iv. Is the applicant entitled to payment of an income replacement benefit in the amount of $251.25 per week, from November 4, 2015 to date and ongoing?
36The applicant is not entitled to an income replacement benefit as I do not find he suffers a substantial inability to perform the essential tasks of a material handler or casino dealer as a result of his accident related impairments.
37Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person satisfies the following conditions:
(i) Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
38Both parties agree that a month before the accident, the applicant had started working through a temporary agency as a warehouse worker at Commercial Springs. A few years prior to the subject accident he had been laid off from 16 years of employment as a casino dealer with Casino Rama. Post-accident employment records demonstrate that he worked for a few temporary employment agencies in jobs that also required manual labour.
39The respondent paid the applicant an IRB in the amount of $251.25 per week from March 25, 2015 until November 4, 2015, at which point it terminated the benefit following a multi-disciplinary assessment which determined that the applicant did not suffer a substantial inability to do the essential tasks of his employment.
40The applicant testified that since the accident he has worked mostly in warehouses doing heavy jobs; which are hard for him because of the lifting, bending, and standing for long periods of time. The applicant claimed he is unable to do this job as a result of his accident related injuries to his back, shoulders and headaches as they have not yet resolved.
41During cross-examination when the applicant was asked whether or not any doctor has told him that he cannot work because of his accident related injuries he said “no.” When he was asked if there is any reason he cannot work because of emotional or psychological issues he said “no.” Further, other than the OCF-3s completed by Dr. Bui the applicant did not submit any report of a doctor or treating health care practitioner to support that he could not work because of his accident related impairments. I do not find that the OCF-3s on their own is enough to support entitlement to an IRB.
42By contrast, the respondent submitted the multi-disciplinary report of Vincent Yip, Dr. Khumbare and Dr. Mor which concluded that the applicant did not suffer a substantial inability to do the essential tasks of his employment as a result of his accident related impairments. I found their reports persuasive as they address entitlement to an income replacement benefit. In particular, I found Mr. Yip’s assessment thorough as he tested the applicant’s functional abilities in relation to the essential tasks of his employment as a material handler and casino dealer.
43Mr. Yip’s functional capacity evaluation report analyzed the essential tasks of the applicant’s employment. The applicant reported to Mr. Yip that his duties at Commercial Springs included: placing manufactured springs into boxes, sealing boxes, and placing the boxes onto pallets to prepare for shipping. He states that each spring varies in weight, from negligible weight up to 20 pounds each. Once the pallet is full, he would utilize a pump truck to transport the pallet to their shipping area. He worked 5 days per week, from 4:30 p.m. to 12 a.m.
44Mr. Yip used data from the National Occupational Classification (“NOC”) produced by the government of Canada to gain an understanding of the essential tasks of the applicant’s employment for both a material handler and casino dealer. After a full examination and physical testing, Mr. Yip concluded that the applicant displayed functional mobility in his neck, shoulders, upper extremities, lower back, and lower extremities. He identified no functional limitations with respect to his pre-accident employment as a material handler and casino dealer.
45The applicant failed to establish on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his employment. Therefore, I do not find that he is entitled to an IRB.
46The applicant is also not entitled to interest.
CONCLUSION:
47For the above-noted reasons this application is dismissed.
Released: May 7, 2018
___________________
Rebecca Hines
Adjudicator