17-007825 v Aviva Insurance Canada, 2018 CanLII 98282

Date: 2018-07-30

Tribunal File Number: 17-007825/AABS

Case Name: 17-007825 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

AMENDED DECISION

ADJUDICATOR: Christopher A. Ferguson

Counsel for the applicant: Loreto Scarola

Counsel for the respondent: Michal Baura

HEARD in Writing: July 3, 2018

REASONS FOR DECISION

OVERVIEW

1[The applicant] was involved in an automobile accident on November 28, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Aviva denied his claims.

ISSUES

2The issues to be decided by the Tribunal are:

(1) Is [the applicant] entitled to a medical and rehabilitation benefit in the amount of $12,001.80 for a multi-disciplinary chronic pain treatment programme recommended by All Health Medical Centre in a treatment plan (OCF-18) submitted on June 22, 2017 and denied on September 11, 2017?

(2) Is [the applicant] entitled to interest on any overdue payment of benefits?²

(3) Is Aviva liable to pay an award under Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

RESULT

3[The applicant]’s appeal is denied. No interest is due

4[The applicant]’s award request is dismissed.

REASONS

5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.⁴

Establishing Chronic Pain

6Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain. Aviva submits that [The applicant]’s claim of chronic pain should be assessed against six criteria described in the American Medical Association (AMA) Guides, which state that at least three of them must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse, or family.

(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contracts.

(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.⁵

7[The applicant] does not contest these criteria, which are set out in Aviva’s submission, nor does he disagree with Aviva’s stated premise that he must establish that he suffers from chronic pain as a result of the accident in order to be entitled to the specific benefit of a chronic pain management program.

8I accept the AMA criteria as key factors in assessing [the applicant]’s claim of chronic pain.

Is [The applicant] entitled to funding for a chronic pain management program?

9[The applicant] relies on the following evidence to support this claim:

(i) Psychological assessment report by Dr. Judith Pilowsky, dated July 8, 2016, in which the assessor found [The applicant] to be at elevated risk for developing somatoform “symptom disorder and pain chronicity” based on [The applicant]’s self-reporting of ongoing pain and its impact on his life.

(ii) Psychological re-assessment report by Dr. Pilowsky, dated February 7, 2017, reporting [The applicant]’s continuing pain complaints and diagnosing him with, among other things, single episode and somatic symptom disorder with predominant pain persistent, moderate – after psychological treatment under a funded OCF-18. This report was based on a telephone interview of [the applicant] by Dr. Pilowsky.

(iii) Orthopedic assessment report by Dr. Osama Benmoftah, dated September 29, 2016, in which the physician diagnoses [the applicant] with chronic pain syndrome (prognosis guarded) and recommends a comprehensive multidisciplinary chronic pain management program. Dr. Benmoftah’s report does not discuss why or how he arrived at his diagnosis, or what criteria he used to reach his conclusions.

(iv) Chronic pain assessment by Dr. Inese Robertus and Dr. Khal Ifala, orthopedic surgeon, dated June 12, 2017 in which the assessors list chronic pain syndrome as a diagnosed condition and report features of chronic pain such as function impairment intruding on daily activities, and endorse a chronic pain management program for [the applicant]. This report does not discuss why or how the physicians arrived at this diagnosis, or the criteria used to reach conclusions.

10To rebut [the applicant]’s claim, Aviva relies on an insurer’s examination (IE) report by Dr. Frank Loritz, GP, dated August 29, 2017, in which the physician reports:

(i) [The applicant] reports 70% improvement in pain symptoms after 18 months of various treatments.

(ii) [The applicant] reported that he was able to complete a BA degree without significant impact from the accident-related injuries, drives a vehicle, is independent with personal care and does some household chores.

(iii) [The applicant] reported symptoms of periodic mechanical lower back pain without radiculopathy, and episodic neck muscle stiffness.

(iv) Dr. Loritz found no evidence of a physical impairment that would require [the applicant] to get treatment in a multidisciplinary chronic pain program.

11Aviva then argues that [the applicant]’s pain does not meet the above-noted six criteria and therefore fails to meet them.

12I found no evidence that [the applicant] meets any of the first three criteria noted in paragraph 7 above.

13In reviewing Aviva’s submission, I found uncontested evidence, based on [the applicant]’s own reporting, that [the applicant] has not withdrawn from or been significantly restricted in social, occupational and self-care activities. On the contrary:

(i) He holds down a full time job as a municipal customer service representative – his pre-accident occupation.

(ii) After the accident he returned to school with only three days absence and completed a BA degree. He managed school and work together.

(iii) [The applicant] has a relationship with a girlfriend, and takes walks with her.

(iv) [The applicant] drives a vehicle, including trips of 45 minutes or more to his health care service providers.

(v) [The applicant] is independent with self-care, some housekeeping and ordinary domestic activities such as using his computer and watching television.

14[The applicant] reports that he experiences pain during these activities and that he does not do some of them at pre-accident levels, but this is insufficient to persuade me that he suffers from chronic pain. The evidence I have canvassed in the previous paragraph is based, as noted, on MM’s own self-reporting, which he does not deny, and is therefore convincing.

15Aviva concedes that [the applicant] appeared to have development of psychosocial sequelae after the incident (i.e. criteria 6). Its own assessor, Dr. Goodfield, psychologist, diagnosed [the applicant] with specific phobia (driving) – but the evidence from MM’s own self-reporting is that this problem has been resolved.

16I find that overall, Aviva’s evidence is more persuasive that [the applicant]’s. I come to this conclusion because:

(i) [The applicant]’s self-reported activities and lifestyle are inconsistent with the experience of chronic pain at the level required to establish the necessity for chronic pain management. I find this to be a very compelling and convincing argument against the need for a chronic pain management program. I assign great weight to the descriptive evidence about [the applicant]’s post-accident activities

(ii) While [the applicant]’s assessors diagnose chronic pain, they do not elaborate how the diagnoses were reached, against what criteria and accounting for [the applicant]’s everyday activities. This weakens their probative weight, especially when assessed against the evidence of [the applicant]’s post-accident social and occupational functionality.

17[The applicant] has not met the onus on him to prove his entitlement to the benefit he claims: his appeal is denied.

Interest

18There are no overdue payments and therefore no interest is payable.

Award

19Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has unreasonably” withheld or delayed payments.

20Have found that Aviva properly denied [the applicant] claim, I dismiss [the applicant]’s award request.

Procedural Issue

21[The applicant] asked the Tribunal to exclude all of Aviva’s evidence because of its alleged non-compliance with Rule 9 with respect to disclosure of documents to be used in a hearing.⁶

22My review of the hearing file indicates that Aviva complied with the document production and exchange schedule set out in the Tribunal’s Order of April 5, 2018 and as amended by the Order dated May 11, 2018. That is all that was required of it.

23[The applicant]’s request to exclude Aviva’s evidence is denied.

CONCLUSION

24[The applicant]’s appeal is denied

25There are no overdue benefit payments and therefore no interest is owing to [the applicant].

26There is no basis for an award in this matter.

Footnotes

1. 1O.Reg. 34/10
2. 2I note that two issues listed in the original appeal were removed, on consent, by a Motion Order dated May 11, 2018. A third issue was resolved when Aviva agreed to reconsider and pay the benefit, which it noted in its Response submission.
3. 3R.R.O. 1990, Reg. 664
4. 4Scarlett v. Belair, 2015 ONSC 3635
5. 5American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24, included in Aviva’s submissions.
6. 6All references to a “Rule” are made to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)