A.Y. v. Aviva Insurance Canada, 2019 CanLII 101631

Citation: [A.Y.] vs. Aviva Insurance Canada, 2019 ONLAT 18-009981/AABS

Date: September 9, 2019

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:

AY

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Maggie Morgan, Counsel

HEARD:

In Writing on: May 27, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, AY, was involved in a motor vehicle accident (“the accident”) on May 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2AY applied for benefits from the respondent Aviva and applied to the Licence Appeal Tribunal (“the Tribunal”) when Aviva denied her claims.

3Aviva denied AY’s claims because it determined her injuries to be predominantly minor as defined by the Schedule. It indicated that AY has exhausted the funding available to her under the Schedule for medical benefits covering minor injuries.

4I must decide whether AY’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500.00 funding limit on medical benefits, and if they are not, I must determine the applicant’s entitlement to the medical benefits he claims.

ISSUES IN DISPUTE

5Did AY sustain predominantly minor injuries as defined by s.3(1) of the Schedule?

6If AY’s injuries are not predominantly minor, then:

1. Is AY entitled to receive a medical benefit in the amount of $1,553.60 for physiotherapy recommended by Health Pro Wellness in a treatment plan (“OCF-18”) dated December 1, 2016, and denied by Aviva on December 6, 2016?

2. Is AY entitled to receive a medical benefit in the amount of $1,348.00 for physiotherapy recommended by Health Pro Wellness in an OCF-18 dated April 12, 2017, and denied by Aviva on April 21, 2016?

3. Is AY entitled to receive a medical benefit in the amount of $3,192.25 for psychological services recommended by Health Pro Wellness in an OCF-18 dated September 28, 2016, and denied by Aviva on October 12, 2017?

4. Is AY entitled to receive the cost of examination in the amount of $2,219.74 for a psychological assessment recommended by Health Pro Wellness in an OCF-18 dated July 11, 2017, and denied by Aviva on July 16, 2017?

5. Is AY entitled to interest on any overdue payment of benefits?

RESULT

7I find that AY’s injuries are predominantly “minor” and fall within the MIG.

8My finding with respect to AY’s injuries and classification of those injuries within the MIG mean that AY is not entitled to the benefits he claims. Accordingly, there is no interest owing to her on overdue benefit payments.

9There is no basis for an award in this matter. AY argues for one but the Case Conference Report (CCR) in this matter, dated March 25, 2019, clearly indicates that AY withdrew this issue, and AY did not request an amendment to the CCR.

ANALYSIS

Minor Injury Determination

10Aviva argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). AY’s position is exactly the opposite.

11If Aviva’s position is correct, the applicant is then subject to the $3,500.00 funding limit on benefits prescribed by s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

12Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae³ to such an injury.”

13The onus is on the applicant, in this case AY, to prove that her injuries or impairments fall beyond the MIG.⁴

14AY does not argue that her physical injuries – sprains and strains -- exceed the threshold for the MIG. She asserts, however, that she sustained psychological injury and a chronic pain condition as a result of the accident.

Did AY sustain psychological injuries as a result of the accident that are sufficient to remove her from the MIG?

15Psychological impairments, if established, may fall outside the MIG, because the MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological injuries or impairment.⁵

16AY relies on a psychological assessment report by Dr. Ilya Gladshteyn, psychologist, dated August 7, 2017, in which the doctor:

i. administered 5 objective psychological tests on which scores indicated: no exaggeration of memory difficulties, high average performance in Trail Making A and B, a severe level of depression, severe level of anxiety, and that the severity of her specific passenger phobia is extreme;

ii. diagnosed AY with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic, and Specific Phobia, situational (driving, passenger) with what the doctor opined was consistent with Class 3: Moderate Impairment, based on test results and clinical interview; and

iii. recommended behavioural oriented psychotherapy.

17To rebut AY’s claim, Aviva notes that AY’s family physician, Dr. Ausama Elyas, indicated in a clinical note and record (CNR) dated November 10, 2016 that AY’s mental health was normal and that the depression screen was negative. None of Dr. Elya’s CNRs mention psychological complaints. Aviva submits that this is telling evidence that AY’s claim of accident-related psychological conditions is unfounded.

18Aviva relies on its insurer’s examination psychological assessment report by Dr. Neil Weinberg, dated September 22, 2017 in which the doctor:

i. expressed concern about the incongruence between AY’s reported levels of psychological distress and his clinical observations of her behavior and the results of psychometric testing – opining that indicated that AY’s self- reported levels of depression and anxiety appeared inconsistent with her presentation and unlikely representative of her psychological status;

ii. noted, with respect to psychometric validity testing that:

a. AY’s TOMM⁶ results were inconsistent with her reports of post-accident memory problems;

b. AY’s SIMS⁷ results “revealed inconsistent and improbable test results across multiple domains and reflect endorsement of a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders raising the likelihood of symptom exaggeration and over endorsement of her current psychological symptoms.”;

c. opined, with referral to these and other psychometric test results that AY may have the propensity to over endorse her psychological symptoms.

iii. noted that AY did not exhibit any signs of emotional lability; demonstrated full range of affect; denied experiencing any general anxiety and/or any physical symptoms of hyper arousal and/or any increased autonomic activity when queried during the clinical interview;

iv. concluded that there was a lack of consistent objective information present to suggest that the applicant suffered clinically significant symptoms which would indicate a substantial psychological impairment or disability as a result of the accident or substantiate a DSM psychological diagnosis.

19I find that the AY’s evidence of psychological impairment is refuted by Aviva’s evidence. My reasons are:

i. Dr. Weinberg’s findings are the most consistent with contemporaneous medical evidence from Dr. Elyas’ CNRs. I find it improbable that psychological injuries related to the accident took over 5½ months to begin manifesting themselves – this delay or the failure to mention psychological problems to Dr. Elyas are unexplained.

ii. Dr. Weinberg’s evidence is more persuasive because it included much more validity testing⁸, and the concerns raised by him are persuasive to me. They effectively refute AY’s submission that the IE itself confirmed sever levels of depression, anxiety and passenger phobia.

20As a result of my findings, I find that AY does not have a psychological injury that would take her out of the MIG.

Chronic Pain

21Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions. Moreover, chronic pain, if established, should not be included in the MIG definition as a sequela to minor injuries.

22Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain.⁹ Aviva submits that AY’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 of chronic pain¹⁰:

a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse or family;

c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contacts;

e. 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.

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviour.

23AY does not contest these criteria, which are set out in Aviva’s submission. I acknowledge that these are not incorporated into the Schedule and that they are not determinative. I accept the AMA criteria as persuasive guiding factors in assessing AY’s claim of chronic pain.

24I agree with Aviva that AY has not met three of the criteria above. AY does report a reduction in social activity. However, she has not used prescription drugs beyond their recommended duration or abused prescription drugs or other substances. She has maintained her independence with self-care and household chores. She continues to work full-time hours. There is no evidence of physical deconditioning or fear-avoidance of physical activity. The records of Dr. Elyas make no mention of the development of psychosocial sequelae, including anxiety, fear-avoidance, depression or nonorganic illness behaviour.

25AY simply submits, in her argument for an award, that her injuries “cannot be considered ‘minor’, as the pain persisted well beyond the acute stage, and has persisted without improvement until now, which must be considered chronic.” I find this insufficient to persuade me that AY’s pain complaints meet the criteria for a chronic pain condition that would remove AY from the MIG.

26I also find that clinical observations by Dr. Weinberg are inconsistent with AY’s claims of unrelenting, severe pain.

27I therefore conclude that AY’s injuries are predominantly minor and they are governed by the MIG. Accordingly, it is unnecessary for me to assess the disputed OCF-18s.

CONCLUSION

28AY’s accident-related injuries fall within the MIG.

29Because AY’s injuries fall within the MIG, her claims are subject to a $3,500.00 cap imposed by s.18 of the Schedule. Accordingly, there are no overdue payments and there is no interest payable to him.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act, RSO 1990, c.I.8
3. 3“sequelae” are medical conditions that are known to be the result of a prior injury or impairment [OED].
4. 4Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.
5. 5Applicant v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) led by AY.
6. 6TOMM is the acronym for Test of Memory Malingering.
7. 7SIMS is the acronym for Structured Inventory of Malingered Symptomology.
8. 8Dr. Gladshteyn’s examination included only one validity test, a Rey-15 Item Test, which suggested that AY was not exaggerating memory deficits.
9. 9M.N.M. and Aviva Insurance Canada, Tribunal File Number 17-007825/AABS, led by Aviva
10. 10American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24,