J.B. v. Aviva Insurance Canada, 2019 CanLII 110106

J.B. and Aviva Insurance Canada, 2019 ONLAT 18-005595/AABS

Citation: J.B. and Aviva Insurance Canada, 2019 ONLAT 18-005595/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:

J.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

For the Appellant:

Lisa Bishop, Counsel

For the Respondent:

Sjawal Bhutta, Counsel

Heard: In Writing Hearing:

March 11, 2019

OVERVIEW

1The applicant (“J.B.”) was involved in a motor vehicle accident (“the accident”) on December 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2J.B. applied for benefits from the respondent (“Aviva”) and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.

3Aviva argues that all of J.B.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”)². J.B.’s position is exactly the opposite.

4If Aviva is correct, J.B. is then subject to the $3,500.00 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.

5I must decide whether J.B.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine her entitlement to the medical benefits in dispute.

ISSUES IN DISPUTE

6Did J.B. sustain predominantly minor injuries as defined under the Schedule?

7If J.B.’s injuries are not within the MIG, then I must determine:

i. Are the medical and rehabilitation benefits recommended by Prime Health Care Inc. reasonable and necessary for:

a) physiotherapy treatment in the amount of $3,327.60 in a treatment plan (OCF-18) submitted on February 16, 2017 and denied on March 3, 2017?

b) an attendant care assessment in the amount of $1,230.92 submitted on February 23, 2017 and denied on March 3, 2017?

c) a psychological assessment in the amount of $2,000.00 submitted on April 10, 2017 and denied on April 13, 2017?

d) a disability certificate submitted on February 22, 2017?

ii. Are the medical and rehabilitation benefits recommended by Mississauga Active Physiotherapy Services reasonable and necessary for physiotherapy treatment in the amount of:

e) $2,765.00 in a treatment plan (OCF-18) submitted on August 23, 2017 and denied on September 8, 2017?

f) $2,765.00 in a treatment plan (OCF-18) submitted on May 8, 2018 and denied on May 15, 2018?

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

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

FINDINGS

8For the reasons that follow, I find the following:

9J.B.’s psychological impairments are not predominantly minor; therefore, she is entitled to:

i. A psychological assessment in the amount of $2,000.00 submitted on April 10, 2017 and interest on the overdue payment of the benefit;

10J.B. is not entitled to:

ii. Physiotherapy treatment in the amount of $3,327.60 in a treatment plan (OCF-18) submitted on February 16, 2017;

iii. An attendant care assessment in the amount of $1,230.92 submitted on February 23, 2017;

iv. $2,765.00 in a treatment plan (OCF-18) submitted on August 23, 2017;

v. $2,765.00 in a treatment plan (OCF-18) submitted on May 8, 2018;

vi. A disability certificate submitted on February 22, 2017; and

vii. J.B. is not entitled to an award.

REASONS & ANALYSIS

Minor Injury Determination

11Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these injuries mean.

12Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

13The onus is on the applicant, in this case J.B., to prove that her injuries or impairments fall beyond the MIG³.

Does J.B. have a pre-existing medical condition that removes her from the MIG?

14J.B. submits that her injuries themselves exceed the definition of “minor injury” in s. 3(1) of the Schedule because she has a pre-existing psychological condition, that was exacerbated by the subject accident, and that this removes her from the MIG. I agree.

15Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

16The standard for excluding impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal recovery within the cap imposed by the MIG⁴.

17Psychological impairments may, if established, fall outside the MIG, because the MIG only covers “minor injuries” and the definition does not include psychological impairments. I find J.B. has psychological impairment stemming from the December 2016 accident that would take her outside of the definition of the MIG.

18Despite this, I must still determine if J.B. suffered physical injuries which would take her outside the definition of the MIG. If I find she did not, then I do not need to consider the treatment plans for physical treatment, only whether the remaining treatment plans are reasonable and necessary.

J.B. suffers from psychological impairments that take her outside the MIG

Dr. Shaul and Dr. Clewes Psychological Reports

19I prefer the report of Dr. Shaul over that of Dr. Clewes, as Dr. Shaul conducted objective testing to make a diagnosis of J.B.’s psychological impairments. Dr. Shaul also considered J.B.’s self-reporting, and recommended a course of treatment, and follow-up.

20J.B. submits that she suffers from depression and anxiety as a pre-existing condition, and as a result, should be removed from the MIG. In her evidence, J.B. has records that indicate anxiety and depression diagnoses on several visits to the walk-in clinic in 2014.

21In support of her pre-existing condition and the exacerbation of same as a result of the accident, J.B. provided me with a psychological report⁵ obtained on her behalf. Dr. Shaul opined that J.B.’s objective testing results indicate “moderate levels of anxiety and minimal levels of depression”. However, based on her subjective reporting, Dr. Shaul concluded that “her (J.B.) current psychological and emotional distress is more significant than what was represented in her test response”. Dr. Shaul diagnosed J.B. with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in and around a vehicle). Dr. Shaul noted J.B.’s pre-existing anxiety, that she has managed to functional well with and manage her daily activities, summarizing that J.B. was mentally strong prior to the accident. Dr. Shaul recommended psychotherapy to treat J.B.’s anxiety complaints.

22In her report⁶, Aviva’s assessor, Dr. Clewes did not provide persuasive medical evidence by way of detailed testing, and as a result, no psychological diagnosis was provided. Dr. Clewes based her conclusion on J.B.’s self-reporting as well as interview questions. Dr. Clewes summarizes her report stating J.B. “is not describing any clinically significant accident-related symptoms”. Despite this, Dr. Clewes mentions in her report that J.B. did report “driving-related anxiety symptoms”.

23Aviva further contends that J.B. did not suffer from a pre-existing psychological condition and/or that her anxiety and depression was caused by or even exacerbated a result of the accident Aviva submits;

i. Despite her pre-existing anxiety and depression diagnosis, the medical evidence shows it was controlled with medication.

ii. The clinical notes and records of Winston Churchill Medical between December 9, 2016 and June 19, 2017, have no reports of complaints of psychological symptoms. The Sinclair Medical Centre notes contain no reports of symptoms related to the subject accident. The only ‘psychological’-based complaints appear on November 7, 2017, when J.B. complains of “feeling more anxious recently, about everything, stress about work and home”. The second complaint comes on a December 9, 2017 visit to Sinclair, where the records note “depression in remission”, with the final entry from the Sinclair records noting “anxiety depression, controlled mostly”.

iii. Based on her findings, Dr. Clewes concluded that J.B. did not suffer any psychological impairment as a result of the accident. I note that Dr. Clewes did not comment on any records or reports of J.B.’s pre-existing anxiety/depression.

24Dr. Clewes’ report, makes no mention of what the test results clearly indicate, there is no explanation of what diagnosis Dr. Clewes was able to determine based on her testing. I find Dr. Clewes report to be ambiguous and lacking in reasons for her opinion that J.B. does not present with any “clinically significant” impairment(s). In addition, Dr. Clewes’ report is contradictory in that she concludes there is no clinically significant diagnosis, and yet notes J.B. has driving-related anxiety. There is no further investigation in to this opinion, or in to J.B.’s other medical evidence regarding her psychological well-being, which is why I place little weight on the report of Dr. Clewes.

25I conclude that J.B. has met the onus on her to establish that she suffers from a pre-existing condition that was exacerbated as a result of the accident. I reached this conclusion for the following reasons:

(i) J.B.’s medical evidence provides persuasive evidence of an exacerbated pre-existing psychological condition. My own reading of the medical evidence in J.B.’s submissions is that after December 2016, there is explicit linkage between a pre-existing psychological condition and the accident. In fact, the medical evidence suggests that J.B. has routinely sought psychological treatment and medication for a significant period both before and after the accident.

(ii) I find that J.B. suffered psychological impairment as a result of the accident. I also find, on the evidence of Dr. Shaul, that J.B.’s pre-existing condition was exacerbated by the accident.

Psychological assessment – reasonable and necessary

26J.B. submits that the psychological assessment is reasonable and necessary in order to determine an appropriate course of action/treatment to deal with her pre-existing and exacerbated psychological impairments. I agree.

27Under the Schedule, assessments must be reasonable to determine whether an insured person has sustained an impairment. I find the goals of Dr. Shaul’s treatment plan to be reasonable. Based on Dr. Shaul’s opinions of J.B.’s numerous accident-related injuries, I find that the recommended assessment is reasonable and necessary, to adequately address the barriers to recovery listed in the treatment plan.

28As discussed in paragraph 21, Aviva submits that Dr. Clewes’ report concludes that J.B. does not suffer from any clinically diagnosable psychological impairment caused by the accident, and as such, the assessment is not reasonable and necessary. I disagree based on the previously mentioned shortcomings of Dr. Clewes’ report and for the following reasons.

29To establish a balance of fairness for an insured to determine the extent of accident-related injuries, the Schedule allows both an insurer and an insured opportunity to reasonably assess the accident related injuries. Given the extent and nature of the J.B.’s psychological impairments in this case, and the persuasive medical evidence, I find her request for the assessment to be reasonable.

30For the reasons stated above, I find the treatment plan for the psychological assessment to be reasonable and necessary.

J.B. suffered physical injuries that do not take her outside of the MIG

31J.B. did not provide me any medical evidence that she sustained physical injuries in the accident which would remove her from the MIG. The Disability Certificate⁷ indicate J.B. was diagnosed with “cervical spine sprain/strain, thoracic spine sprain/strain, shoulder sprain/strain (left), post traumatic headache, behaviour – other anxiety disorder, behaviour – other sleep disorder, costovertebral joint dysfunction with myofascial strain (left)” on a visit after the accident. These injuries are defined as predominantly ‘minor’.

32J.B. also relies on Dr. Shaul’s report where she reports her physical injury complaints, I place little weight on this report, as physical injuries are beyond the expertise of Psychologist Dr. Shaul. This evidence does not support that J.B. should be removed from the MIG.

33Aviva relied on the report⁸ of Dr. Chaudhry. In his report, Dr. Chaudhry opined that J.B. suffered injuries that were predominantly minor. This was based on J.B.’s complaints of cervical and bilateral lumbar pain. Testing showed normal range of motion and strength across all joints.

34J.B.’s delay in seeking medical treatment for her physical injuries supports my finding that her physical injuries fall within the MIG. Based on the evidence before me, J.B. attended Winston Churchill Medical on three different occasions after the initial post-accident visit on December 9, 2016. The first visit occurred on April 4, 2017, more than four months post-accident; the last visit occurred on June 19, 2017. J.B. attended the clinic for issues completely unrelated to the subject accident.

35To conclude, I find that J.B. has submitted no evidence from Dr. Hefford, or any other medical evidence which establish that her physical injuries are anything but predominantly “minor”.

Physiotherapy treatment plans - not reasonable and necessary

36Because I conclude that J.B. has not met the onus on her to show that she suffered physical injuries that are not considered to be minor as a result of the accident, I find the claimed treatment plans are not reasonable and necessary.

Disability Certificate – not reasonable and necessary

37The disability certificate is in relation to treatment recommended by Dr. Hefford. Since I have found that J.B. suffered predominantly minor physical injuries, the disability certificate is not reasonable and necessary. J.B. did not provide any submissions as to why the disability certificate would be reasonable and necessary, and therefore, she has not persuaded me that it is.

Attendant care assessment - not reasonable and necessary

38Section 19 (1) of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred for “the insured person as a result of the accident for services provided by an aide or attendant…” The procedures to claim attendant care benefits are found in section 42, including that an “assessment of attendant care needs” and associated “Form 1” must be used.

39J.B. reported missing two days from work after the accident and returned to full time duties working 35 hours per week on December 10, 2016. J.B. further stated to Dr. Shaul, that she “had worked hard and was able to perform all of her activities of daily living without any difficulty”. In addition, J.B. did not provide me with the requisite Form 1.

40J.B. can conduct her personal care tasks, activities of daily living, work and raising her child without difficulty. I am not persuaded by the evidence that J.B. requires an attendant care assessment. In addition to the lack of a Form 1, the evidence shows that she is independent, working full-time and still able to function at home. I find J.B.’s level of participation in her activities of daily living, is not indicative of an individual who would require an attendant care assessment to determine what type of care/assistance would be appropriate in participating in activities of daily living.

41For these reasons, I find that an attendant care assessment is not reasonable or necessary.

Award

42Section 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. J.B.) 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. Aviva) has “unreasonably” withheld or delayed payments.

43J.B. contends that Aviva’s denials of the benefits that are the subject of this proceeding were not done in accordance with section 38(8) of the Schedule. Under section 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary.

44Further, J.B. submits that Aviva failed to review all the medical evidence in making its determinations which constitutes frivolous and vexatious behaviour. I disagree. J.B. did not provide me with any supporting evidence to show that Aviva completed an improper/incomplete review of the medical evidence. As such, I am not persuaded that Aviva acted frivolously or vexatiously.

45I have already found that J.B. is not entitled to the physiotherapy/physical treatment plans, therefore Aviva cannot be found to have unreasonably withheld payment of these benefits.

46Additionally, Aviva’s denial provided J.B. with reasons why it considered the goods and services refused not to be reasonable and necessary. Thus, Aviva’s denial was in accordance with section 38(8). Aviva relied on the reports of its assessors as the basis for denying the treatment plans. They agreed with their assessors and doing so does not meet the threshold for an award.

47A differing of opinions regarding treatment does not establish the grounds for an award claim. The threshold for an award is high for good reason; to ensure that an insured is not unjustly awarded because an insurer ‘reasonably’ denied a claim. For example, where an insurer clearly went against the recommendation(s) of its assessor that were in favour of an insured, then an award would be warranted. This is not the case in the subject proceeding, as such, I find an award is not appropriate. J.B. has not satisfied her burden of proof to show that Aviva unreasonably withheld or delayed payments.

48There is no evidence before me that Aviva has established the threshold behavior required to justify an award claim under section 10. As a result, I find that Aviva has not unreasonably withheld or delayed payment for any benefit; therefore J.B. is not entitled to an award.

CONCLUSION

49J.B. has satisfied her onus to establish the psychological assessment is reasonable and necessary.

50J.B. has not satisfied her onus to establish that her physical injuries are not predominantly minor.

51J.B. is not entitled to the physical treatment plans, the disability certificate, an attendant care assessment or an award.

ORDER

52I find that the psychological assessment is reasonable and necessary and therefore payable. As such, J.B. is entitled to interest on any outstanding payment of benefits.

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.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
5. 5Dr. Andrew Shaul, Psychology report dated October 18, 2017
6. 6Dr. Janet Clewes, Psychology report dated November 4, 2017
7. 7Disability Certificate (OCF-3) dated February 8, 2017 by Dr. Chad Hefford at TAB 1 of the Book of Exhibits, pg #3
8. 8Medical Physician Assessment Report of Dr. Ijaz Chaudhry dated December 12, 2017