I.D.C. v. Aviva Insurance Canada
Tribunal File Number: 17-004536/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:
[I.D.C.]
Applicant
and
Aviva Insurance Canada
Respondent
AMENDED DECISION
ADJUDICATOR: Raj Sharda
APPEARANCES:
For the Applicant: Reynold S.R. Kim, Counsel
For the Respondent: Petros Yannakis, Counsel
Amended Release Date: October 8, 2019
OVERVIEW
1The applicant was involved in an automobile accident on November 11, 2015 and sought medical benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)1. The applicant was denied benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve all the issues in dispute. Hence this matter proceeded to a hearing in writing.
3The applicant states she suffered injuries to her neck, shoulders, chest, abdomen and lower back arising from a previous accident on July 14, 2013. The applicant further states that these pre-existing injuries were exacerbated by the subject accident and have continued over three years post-accident.
4She states her entitlement to non-earner benefits is due to the fact that she is completely unable to perform her pre-accident activities as a wife in her household and as the pastor’s wife in the church and social community. The medical benefits she seeks have been incurred and, as such, she benefited from them and her pain management had improved in her various pain areas. Those improvements have since declined as further treatment has been denied.
5The applicant states she was on her way to recovery from the July 14, 2013 accident but had not fully recovered prior to the subject accident. The subject accident set her back and, as such, she is entitled to non-earner benefits, as she can no longer perform her pre-accident household and social activities.
6The respondent submits that an Insurer’s Examination (IE) conducted by Dr. Tile stated the applicant was fully recovered from the first accident and was only suffering minor injuries from the second accident. Dr. Tile also states that the applicant’s injuries are under the Minor Injury Guideline (“MIG”). He further states the applicant reported she was free of all injuries prior to the accident. These findings are disputed by previous and subsequent medical assessments submitted by the applicant.
7The respondent also submits that, when the applicant attended the IE with Dr. Tile, she failed to advise Dr. Tile about the previous accident and the injuries she continued to suffer just prior to the subject accident. The respondent further submits that the applicant’s failure to advise its IE assessor of her injuries prior to the accident should be held against her and she should be denied the benefits she seeks. The respondent acknowledges, however, that it did not provide Dr. Tile with any of the information or documentation about the first accident. The respondent, therefore, takes the position that all issues in dispute should be denied because of the applicant’s failure to advise Dr. Tile of her injuries from the first accident.
8The applicant relies upon three assessments – Chronic pain, Psychological and Physiatrist – to support her claim for entitlement to the benefits sought.
ISSUES IN DISPUTE
9The issues before the Tribunal are:
i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule such that treatment of them falls within the Minor Injury Guideline?
ii. Is the applicant entitled to receive a non-earner benefit in the weekly amount of $185.00 that was submitted on January 18, 2016, for the period of October 27, 2016 to date and ongoing, denied by the respondent on October 27, 2016?
iii. Is the applicant entitled to receive a medical benefit for physiotherapy services, recommended by Health One Rehab Inc. in the amount of $951.57 that was submitted on April 25, 2016, denied by the respondent on October 27, 2016?
iv. Is the applicant entitled to receive a medical benefit for physiotherapy services, recommended by Health One Rehab Inc. in the amount of $1,047.38 that was submitted on April 11, 2016, denied by the respondent on October 27, 2016?
v. Is the applicant entitled to payment for acupuncture in the amount of $700.00, recommended by JIN Acupuncture, submitted on October 13, 2017, denied by the respondent on September 18, 2017?
vi. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
10For the reasons below, I order as follows:
a) The applicant’s injuries are not within the MIG;
b) The applicant is entitled to the OCF-18s under issues (iii)-(iv) as they are reasonable and necessary;
c) The OCF-18 listed in issue (v) is not reasonable and necessary, as it was not properly submitted;
d) The applicant is entitled to the remainder of non-earner benefits claimed in issue (ii), in accordance to the relevant Schedule.
e) The applicant is entitled to interest on overdue benefits in accordance with s. 51.
ANALYSIS
Do the applicant’s injuries fall within MIG?
11Minor Injury
a) “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.”
b) Pursuant 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 documented by a health practitioner before the accident 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 (e.g. a diagnosis of chronic pain or a psychological impairment) can remove an individual from the MIG in certain circumstances.
12The respondent submits that Dr. Tile’s conclusion that the applicant does not suffer from a pre-existing condition and her injuries are within the MIG definition should be relied upon as a definitive finding for the purpose of placing the applicant within the MIG.
13Dr. Tile was not given access to the insurer’s file in regards to the first accident. Dr. Tile acknowledged that he did the entire interview with the applicant, who is Korean, with the assistance of an interpreter.
14Dr. Joo conducted a Psychological assessment for the respondent on May 24th, 2014. Dr. Joo concluded that “the applicant’s current level of emotional distress constitutes a substantial psychological impairment interfering with her activities of daily living.”
15Dr. Joo also stated that the applicant “was presented a test of malingering in this assessment and generated no indication of malicious fabrication whatsoever. This is not the profile of someone attempting to create a false picture of a permanent impairment.”
16Based on Dr. Joo’s assessment of May 24th, 2014, I find it is clear that the applicant did suffer from a pre-existing medical condition to the accident being a psychological impairment which would exclude the applicant from being held under the MIG limit.
17Based upon, Dr. Blitzer’s report in which he states that “I would specify for completeness she (the applicant) had lesser chronic pain before the 2015 accident. She has significantly higher levels of chronic pain after the 2015 accident.” Dr. Blitzer further states that chronic pain physiology is different from acute pain and would not be considered under the definition of minor injury.” I find that the applicant’s chronic pain was worsened by the accident.
18Therefore, I find that the applicant suffered from pre-existing psychological impairments as diagnosed by Dr. Joo and chronic pain as diagnosed by Dr. Blitzer based upon both diagnosis the applicant is removed from the MIG limit.
Are the treatment plans outlined in issues 9 (iii) and (iv) reasonable and necessary?
19Medical Benefits
i. Section 14 states except as otherwise provided in this regulation an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
(a) Medical and rehabilitation benefits under section 15 – 17.
ii. Section 15(1) of Ontario regulation 34/10 states subject to section 18, Medical benefits shall pay for all reasonable and necessary expenses incurred by or on the behalf of the insured person as a result of the accident for”
iii. Section 15(1) b states
(a) Chiropractic, psychological, occupational therapy and physiotherapy services.
20The applicant provided an affidavit upon which she was not cross-examined, although the respondent had opportunity to do so. At paragraph 3 and 4 of her affidavit, the applicant confirms that she continued to take physiotherapy, chiropractic, and massage treatment until she was denied same by the respondent.
21In its submissions, the respondent argues that the affidavit must not be relied upon as the applicant has misstated or omitted facts. With respect, I find that the applicant has given sworn evidence which is unchallenged by the respondent. Furthermore, I find the applicant’s affidavit evidence to be consistent with the findings of Dr. Joo and Dr Blitzer. The evidence provides a basis to compare the applicant’s pre-accident and post-accident life.
22As stated above, Dr. Joo clearly found based on her testing and observations that the applicant was credible in her presentation. I find no reason to challenge Dr. Joo’s finding that the applicant was not fabricating her presentation. I find that the applicant’s evidence was consistent in regards to her injuries and the impact of same on her day to day life. The respondent has raised the alleged fact that the applicant did not advise Dr. Tile of her injuries of the first accident as a ground to not believe the applicant and apply an adverse inference to her sworn affidavit presented at this hearing.
23I do not accept the submission that the applicant withheld information from Dr. Tile. In fact, the respondent withheld all the past reports from Dr. Tile, thereby making his report incomplete. Furthermore I prefer Dr. Joo’s assessment of the applicant, in that the applicant was not a person who would exaggerate her symptoms just to create the image of a permanent injury. Based upon the consistency of the applicant’s evidence with her other reports and Dr. Joo’s conclusions from her malingering assessment, I find the applicant’s affidavit evidence to be credible, and prefer it over Dr. Tile’s observations.
24Dr. Blitzer’s report of December 18, 2017 “recommends that the applicant could attend additional physical rehabilitative therapies.” This recommendation contradicts Dr. Tile’s conclusion. When comparing the findings of Dr. Tile to Dr. Blitzer, I prefer Dr. Blitzer’s evidence, as he provides a more complete historic, current and future picture of the applicant. Dr. Tile was denied previous reports by the respondent, which make his report incomplete. This failure to fully inform Dr. Tile is not explained by the respondent. Furthermore, Dr. Tile has since retired, so his notes and records could not be found to verify the basis of his conclusions.
25As Dr. Blitzer conducted a more complete assessment and concluded that additional therapies would assist the applicant in her recovery from the chronic pain I find the treatment plans submitted under issues (iii) – (iv) would form the additional therapies needed by the Applicant. Furthermore, in her affidavit the applicant states that she was improving from treatment; however since her request for treatment was denied and she could no longer afford the treatments that recovery had stopped.
26Based upon the above evidence of Dr. Blitzer, and the applicant’s affidavit, I find that the OCF-18s submitted as issue (iii) and (iv) are reasonable and necessary as they will assist the applicant in her recovery and management of her chronic pain.,
Issue 9 (v)
27The acupuncture services sought for $700.00 were not submitted within a OCF-18 The respondent therefore had no information to assess these treatment. Hence I find the applicant is not entitled to this plan.
ENTITLEMENT TO NON-EARNER BENEFITS Issue 9 (ii)
Non-earner benefit
28The test for entitlement to a non-earner benefit is set out in s. 12(1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) of the Schedule states that 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.
29In Heath v. Economical Mutual Insurance Company,2 the Court of Appeal for Ontario outlined several principles to be considered when determining an insured person’s entitlement to a non-earner benefit. These principles guide my analysis regarding the applicant’s entitlement to a non-earner benefit. These principles include:
(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those activities following the accident.
(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
(iii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on the activities which were of greater importance to the applicant’s pre-accident life.
(iv) The applicant must prove that his/her accident related injuries continuously prevented him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
(v) Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. Therefore, “engaging” should be interpreted from a qualitative perspective.
(vi) If pain is the primary reason which is preventing an applicant from engaging in their former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.
30Section 12 (4) (a) of the Schedule notes that the insurer is not required to pay a non-earner benefit to an insured person for the first 26 weeks after the onset of a complete inability to carry on a normal life.
31Dr. Joo confirmed that after the first accident the applicant suffered significant impairment.
32The respondent paid the applicant non earner benefits from May 11, 2016 to November 11, 2016.
33Dr. Tile’s IE is the respondent’s justification for denying these benefits. However, as noted earlier, Dr. Tile was not given a complete file by the respondent and, as such, he did not have a complete historical picture, which, in my mind, weakens his conclusions because he was unable to complete an analysis of the applicant’s pre- and post-accident function.
34Dr. Blitzer finds that the applicant has suffered and continues to suffer chronic pain. The applicant states her chronic pain is in relation to her neck, shoulders, arms, legs and lower back.3 He also found that the applicant’s chronic pain was worsened by the accident.
35The applicant’s unchallenged affidavit confirms her continued limitations as a result of the accident and her complete inability to carry on a normal life.
36The current limitations arising from the chronic pain and a comparison of the applicant’s pre-accident activities and life circumstances and the post-accident activities and circumstances follows below.
37The applicant was the homemaker for her household. In addition, to the functions needed to perform this role, she was a wife of a Pastor in a Korean Christian congregation. The role of being the Pastor’s wife’ was very important to her and added additional social obligations and functions to her normal life circumstance, beyond that of a homemaker.
38The applicant suffered from a worsening of her neck, shoulder, arm, legs and lower back pains which had improved from the level that they were at after the first accident. She also suffers from an ability to concentrate and to sit for more than 30 minutes due to her chronic pain.
39In her affidavit, the applicant states that she continues to suffer on a daily basis from the following limitations due to her chronic pain:4
a) She cannot stand for long periods of time;
b) She cannot sit for greater than 30 minutes,
c) She cannot lift heavy objects,
d) She cannot bend without pain;
e) She has lost her ability to concentrate for a significant period of time, e.g., reading scripture;
f) She no longer has the mobility of an active person;
g) She has become inpatient, lonely and isolated as she can no longer socialize outside of the house;
h) She no longer experiences a full night’s sleep; and
i) She can no longer participate in social or community functions.
40The homemaker activities which have been significantly impacted by the above limitations include cooking, cleaning, grocery, shopping and such that her husband now completes substantially all of her household functions.
41The applicant does say she is able to complete certain activities of daily living: brushing her teeth, her personal hygiene and dressing herself and is now fairy self-sufficient in relation to these activities of daily living.
42The social activities that have been impacted include: meeting with senior citizens from the church and helping them with their cooking; singing in the church choir; socializing with members of the congregation outside of church; and being an active member of her church and its community. She cannot engage in these activities due to her constant pain.
43The applicant in her affidavit clearly states that the above household and social activities were very important to her and they have been significantly and continuously impacted as a result of the enhanced chronic pain which resulted from the accident.
44The respondent in its submissions does identify some discrepancies regarding the applicant’s reports of pain, as to the pain’s severity and description in some of the IE reports. The tribunal finds that these discrepancies are minor in nature and do not override the facts that the applicant is suffering from a continuous impairment of chronic pain resulting from the accident.
45This chronic pain impairment and its affects continue to impact substantially all aspects of the applicant’s normal life, such that she cannot engage in substantially all of her pre-accident activities, as described in paragraph 38 above.
46Dr. Joo has previously found that the applicant was not a malingerer, and, in her opinion, “This is not the profile of someone attempting to create a false picture of a permanent impairment.” Dr. Joo’s assessment gives support to the authenticity of the applicant’s sworn evidence that she is genuinely suffering from chronic pain as described above.
47Based upon Dr. Blitzer’s report and findings of chronic pain, combined with the applicant’s sworn evidence of her complete inability to carry on her normal life, as indicated in in paragraph 38 above. I find that the impairments which were exacerbated by the accident clearly impacted substantially all of the activities in which the applicant engaged prior to the accident, as indicated in paragraphs 39, and 41 above.
48I therefore find that the applicant is entitled to receive non-earning benefits as the impairments resulting from the accident impacted substantially all activities in which the applicant engaged in prior to the accident. That she would be entitled to under the relevant schedule.
ORDER
49The Tribunal therefore orders:
a) The applicant’s injuries are not within the MIG;
b) The applicant is entitled to the OCF-18’s under issues 9 (iii)-(iv) as they are reasonable and necessary;
c) Issue 9 (v) is not reasonable and necessary, as it was not properly submitted within an OCF-18;
d) The applicant is entitled to Non-Earner benefits claimed in Issue 9 (ii), in accordance to the relevant Schedule.
e) The applicant is entitled to interest on overdue benefits in accordance with s. 5.
Original Release Date: September 26, 2019
Amended Release Date: October 8, 2019
Raj Sharda
Adjudicator
Footnotes
- Ontario Reg 34/10
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
- Affidavit of [I.D.C.] paragraphs 3 and 5.
- Affidavit of [I.D.C.] paragraphs, 7 to 19