Q.M.P. v. Aviva Insurance Canada, 2019 CanLII 101558

Citation: Q.M.P. vs. Aviva Insurance Canada, 2019 ONLAT 18-004641/AABS

Tribunal File Number: 18-004641/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[Q.M.P.]

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Robert Watt, Adjudicator

APPEARANCES:

For the Applicant:

Sareena Samru

For the Respondent:

Anne Marie White

HEARD:

In Writing on: April 24, 2019

OVERVIEW

1The applicant was involved in an automobile accident on February 16, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2The issues in dispute were identified and agreed to as follows.

i. Is the applicant entitled to receive an income replacement benefit in the amount of $318.00 per week for the period August 24, 2016 to date and ongoing?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,606.00 for chiropractic treatment recommended by Physio & Rehabilitation Centre in a treatment plan (OCF-18) dated February 22, 2016 and denied by the respondent on March 6, 2016?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $427.46 for chiropractic treatment recommended by Physio & Rehabilitation Centre in a treatment plan (OCF-18) dated June 8, 2016 and denied by the respondent on June 30, 2016?

iv. Is the applicant entitled to payments for the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Perfect Choice and denied by the respondent on September 9, 2016?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

3I find that the applicant is not entitled to receive an income replacement benefit in the amount of $318.00 per week from August 24, 2016, to date and ongoing.

4I find that the applicant is not entitled to a medical and rehabilitation benefit in the amount of $3,606.00 and in the amount of $427.46 for chiropractic treatments.

5I find that the applicant is not entitled to payment for the costs of examination in the amount of $2,000.00 for a psychological assessment.

6I find that the applicant is not entitled to interest, as there were no overdue payments owing.

BACKGROUND

7The applicant was involved in an accident on February 16, 2016. She was rear ended, lost control of her vehicle and was hit by another vehicle at a low rate of speed. The applicant was diagnosed with a contusion to her forehead and tenderness on the left side of her neck.¹ She was working at the time as a live-in caregiver, cleaning and caring for two young children. The applicant was 9 weeks pregnant at the time of the accident. The applicant currently resides at home looking after her 21/2 month old child. She did work after the accident for short periods of time at [a retailer] and [a courier company].

8The applicant was diagnosed at the hospital with minor head injury, and neck strain. The applicant continued to complain after the accident of ongoing neck pain, headaches, difficulty driving, nightmares, fatique and psychological injuries that prevented her from going back to work. She indicated that she did not have these problems pre-accident.

9The applicant attended at her family doctor, Dr. C. K. Yeung’s office approximately 27 times from February 22, 2016 to September 29, 2016² with her various complaints. She never discussed returning to work with him.³ Her position is that she cannot work because of the ongoing physical and psychological problems.

10On her visit to her family doctor on June 16, 2016, the applicant indicated her neck pain was less, with a pain level between 4-5 her and her back level was also less with a pain level between 4-5. Dr. Yeung’s clinical notes show that the last time the applicant complained of neck pain was July 14, 2016.⁴ The applicant admitted in cross examination that she has no back pain now.

11The applicant saw Dr. R. Travares a physiotherapist in June 2016. Dr. Tavares indicated that the applicant needed treatment outside the MIG⁵.Dr. Palantzas, chiropractor, also indicated that treatment was needed outside of the MIG.⁶

12The applicant saw Dr. Ming Che Yeh, psychologist, in June 2016, who recommended that the applicant be taken out of the MIG for a psychological assessment.⁷ The respondent in November 2016 partially approved of the applicant receiving some psychotherapy sessions with Dr. Yeh. The applicant noted at the last session on July 22, 2017 that she was feeling more hopeful about her situation.⁸

13The respondent’s position is that the applicant’s injuries fall within MIG and that there are no reasons why the applicant can’t work. The applicant attended an IE with Paul Kominek, chiropractor, on June 24, 2016, and with Dr. M. Goldstein, medical physician, on July 12, 2016. The applicant also attended an IE with Dr. H. Rockman, psychologist, on July 19, 2016.

14Dr. Goldstein’s report indicated that the applicant advised him, that her back pain started one to two months before the accident, due to her growing baby.⁹ The applicant on cross examination could not recall making that statement. Dr. Goldstein in his Medical Physician Report dated August 4, 2016, indicated that the applicant had no objective musculoskeletal impairment preventing her from returning to her pre-accident employment. He noted that her complaints related to her neck, back, and hands and expressed that the lower back and hands complaints were not related to her accident, but to the applicant’s advancing pregnancy.¹⁰ He also indicated that the applicant had no objective musculoskeletal impairment preventing her from returning to her pre-accident employment.

15Mr. Kominek in his Functional Abilities Report dated August 4, 2016, noted that the “applicant declined multiple functional tasks during the assessment making an accurate determination of her capacity to perform physical tasks impossible”¹¹ He also noted in the report that he observed no issues in lower and upper extremity ranges of motion.

16Dr. Rockman in her Psychology Assessment Report dated July 19, 2016 noted that the applicant had advised her that if she claimed to be injured, she would have an opportunity to stay in Canada without losing her temporary visa status. ¹² Dr Rockman in her Psychology Assessment Report dated August 4, 2016 determined that from a psychological perspective, the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Her report noted that the applicant stated that the primary obstacle preventing her from returning to work was the time she was required to spend getting to her medical appointments¹³.

17[T]he former employer of the applicant, indicated that she was laid off in April 2016, and no longer needed the applicant. The live-in caregiver program had also ended.¹⁴ This means that the applicant was unable to return to her job there. The applicant on her cross-examination denied any knowledge of the program being ended. She indicated in cross examination that she never went back to work for [her former employer] because of her shoulder pain and she would not have been able to take time off work for physiotherapy. She admitted that she was looking for other live- in caregiver positions.

18Mr. Diamantis Zervas, vocational assessor, in his IE Vocational Evaluation Report dated February 27, 2019, opined that the applicant did not suffer a complete inability to engage in any employment or self- employment for which she was reasonably suited as a direct result of the accident.¹⁵ He also opined that some suitable employment or business alternatives for the applicant included but were not limited to; a light duty packer, assembler, cashier, food service counter attendant and final inspector.

19Dr. Julie Millard in the Insurer Examination Physiatry Assessment Report dated February 27, 2019, also opined that the applicant did not suffer a complete inability to engage in any employment or self- employment for which she was reasonably suited. She noted that the applicant had stated that she was restricted by the government from working in any capacity other than working for [her former employer’s] family.¹⁶

20Dr. Rakesh Ratti, psychologist in the Insurer Examination Psychology Assessment report dated February 27, 2019 opined that the applicant did not suffer a complete inability to engage in any employment or self- employment for which she was reasonably suited as a direct result of the accident.¹⁷

ANALYSIS

Income Replacement Benefit

21The Schedule requires that the applicant be employed at the time of the accident, earning an income in 26 of the 52 weeks prior to the accident. The Schedule also requires that the applicant suffers a substantial inability to perform the essential tasks of that employment within 104 weeks after the accident, or suffers a complete inability to work after the first 104 weeks of disability.

22There is no medical evidence submitted by the applicant that indicates that she cannot go back to work because of accident related impairments. There is no medical evidence put before me to show that the applicant either suffers a substantial inability to perform the essential tasks of that employment within 104 weeks after the accident, or suffers a complete inability to work after the first 104 weeks of disability.

23All of the medical evidence submitted clearly shows that she has no psychological, functional, or musculoskeletal impairment that prevent her from going back to work. Her treating physician Dr. C. K. Yeung never recommended to her that she could not go back to work. Neither did her other treating doctors, Dr. Ming Che Yeh, Dr. Travares and Dr. Palantzas.

24I also have difficulty with the applicant’s statement to Dr. Rockman (which the applicant doesn’t remember stating) indicating that if she claimed to be injured, she would have an opportunity to stay in Canada without losing her temporary visa status.

25Based on the above, I find that the applicant has not shown on a balance of probabilities, that she has not suffered a substantial inability to perform the essential tasks of that employment within 104 weeks after the accident or suffered a complete inability to work after the first 104 weeks of disability.

Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,606.00 and in the amount of $427.46 for chiropractic treatment?

26Section 15 of the Schedule requires the respondent to pay all reasonable and necessary expenses incurred on behalf of an insured person. The reasonableness and necessity of treatment requires a standard that shows: the treatment goals are reasonable; are being met to a reasonable degree; and the overall costs of achieving these goals are reasonable¹⁸

27Dr. Goldstein in the Insurer Examination Physician Report dated May 18, 2016 determined that the applicant’s injuries fell within the MIG guidelines(soft tissue injury) and that the proposed treatment plan was not reasonable and necessary¹⁹

28The applicant on her cross- examination indicated that she only had neck and shoulder pain. The notes of her treating physician Dr. Yeung from February 20, 2016 to July 11, 2017, do not mention any complaints of shoulder pain. On cross- examination, the applicant could not remember when she last saw Dr. Yeung.

29I find that the applicant has not proven on a balance of probabilities that these medical and rehabilitation benefits for chiropractic treatments are reasonable and necessary.

Is the applicant entitled to payments for the cost of examination in the amount of $2,000.00 for a psychological assessment?

30The applicant has already received psychotherapy treatment by Dr. Ming Che Yeh in 2016. The last session taken by the applicant was on July 22, 2017. Dr Rockman in her Psychology Assessment Report dated August 4, 2016 determined that from a psychological perspective, the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Dr. Rakesh Ratti, psychologist also in his report dated February 27, 2019 did not indicate that the applicant should have a psychological assessment and found that the applicant did not suffer a complete inability to engage in re –employment.

31The applicant has the onus of proving that the psychological assessment is reasonable and necessary. I find that the applicant has not met that onus of proof. The applicant’s claim is therefore dismissed.

INTEREST OWING

32The applicant is not entitled to interest on overdue payments of benefits, as there are no overdue payments owing to [her].

ORDER

33The applicant’s claims are therefore dismissed.

Released: September 9, 2019

___________________________

Robert Watt

Adjudicator

Footnotes

1. 1Ambulance Call Report dated February 16, 2016.
2. 2Tab records of Dr. Yeung p11-34
3. 3IE Examination Vocational Evaluation by Mr. Diamantis Zervas dated February 27, 2019
4. 4Tab 56 of Respondent’s Brief of Documents.
5. 5Tab 3 records from Perfect Physio & Rehab Centre p49-50
6. 6Ibid5 p39
7. 7Taab9 Records from Perfect Choice Psychological Services p3-10
8. 8Tab 9-Records from Perfect Choice Psychological Services .P27
9. 9Insurer Examination Physician report dated May 18, 2016
10. 10IE Medical Report by Dr. M. Goldstein dated August 4, 2016
11. 11IE functional Abilities Evaluation Report by Paul Kominek dated August 6, 2016
12. 12IE Psychology Assessment Report by dr. h. rockman dated august 4, 2015 p10-11
13. 13IE Psychological Assessment report by Dr. Hannah Rockman dated august 4, 2016
14. 14Letter from Laura Hammond Cochrane dated May 17 2017
15. 15Insurer Examination Vocational Evaluation by Mr. Diamantis Zervas dated February 27, 2019
16. 16IE Executive Summary of Dr. J. Millard Physiatry dated February 27, 2019.
17. 17Insurer Examination Psychology Assessment Report dated February 27, 2019
18. 1817-001007/AABS v. Aviva Insurance Canada 2018 CanLII 2309 (ON LAT ) para 11
19. 19IE Physician assessment Report of dr. M. Goldstein dated May 18, 2016