E.G. v. Aviva General Insurance, 2019 CanLII 122724

Citation: E.G. vs. Aviva General Insurance, 2019 ONLAT 18-007262/AABS

Date: November 8, 2019

Tribunal File Number: 18-007262/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:

E.G.

Applicant

and

Aviva General Insurance

Respondent

DECISION [AND ORDER]

PANEL:

D. Gregory Flude, Vice Chair

APPEARANCES:

For the Applicant:

[E.G.], Applicant

Darcie Sherman, Counsel

Yalda Aslamzad, Counsel

For the Respondent:

Karen Brandt, Claims Representative

Paul Belanger, Counsel

Court Reporter:

Bruce Porter

HEARD: In-Person:

May 30, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, E.G., was involved in an automobile accident on July 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the ''Schedule''). E.G. was denied certain benefits by the respondent and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2As will be detailed more fully below, the applicant seeks three categories of benefit: a non-earner benefit, medical and rehabilitation benefits for two treatment plans and a psychological assessment, and a housekeeping and home maintenance benefit. The complicating factor in assessing entitlement to the benefits is E.G.’s pre-accident medical and psychological condition. Particularly important in assessing entitlement a non-earner benefit is the manner in which impairments sustained in the accident render E.G. completely unable to live her normal pre-accident life.

ISSUES

3I have slightly altered the order in which the issues were identified in the case conference order to reflect the order in which I will deal with them in this decision. The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per month, for the period of July 8, 2016 to date and ongoing?

(ii) Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of August 6, 2016 to August 6, 2018?

(iii) Is the applicant entitled to a medical benefit for treatment recommended by The Rehab Centre for the following:

(a) $4,737.16 for a chronic pain program, as detailed in a treatment plan submitted on June 30, 2017, and denied by the respondent on October 17, 2017; and

(b) $3,155.00 for physiotherapy treatment, acupuncture and massage therapy, as detailed in a treatment plan submitted on December 5, 2017, and denied by the respondent on April 30, 2018?

(iv) Is the applicant entitled to payment for the cost of an examination in the amount of $2,452.71 for a psychological assessment, recommended by Dr. Andrew Shaul, as detailed in a treatment plan submitted on July 26, 2017, and denied by the respondent on August 8, 2017?

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

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

RESULT

4I find that:

a. E.G. is not entitled to a housekeeping and home maintenance benefit.

b. E.G. is not entitled to a non-earner benefit.

c. E. G. is entitled to payment of the chronic pain program in the amount of $4,737.16 less four hours of psychological treatment.

d. E.G. is not entitled to any other medical benefits claim.

e. E.G. is not entitled to an award under O.Reg 664.

f. E.G. is entitled to interest according to the Schedule.

ANALYSIS

Housekeeping and Home Maintenance

5I will deal with the claim for a housekeeping and home maintenance benefit first because the Schedule clearly sets out criteria for entitlement to it and the applicant does not meet the criteria.

6Section 23 of the Schedule limits payment of housekeeping and home maintenance benefits to persons who have sustained a catastrophic impairment as a result of an accident. It states:

The insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

7Section 28(1) of the Schedule requires insurers to offer for purchase optional benefits to their insureds. If purchased, the insured may receive enhanced benefits, including a housekeeping and home maintenance benefit to those who have not sustained a catastrophic impairment.

8Notwithstanding that E.G. stated an intention to seek a catastrophic impairment designation in the future, as of the date of the hearing she had not been found to be catastrophically impaired and that issue was not before me. The application indicates that the claim involves optional benefits, but E.G. did not satisfy her onus to lead evidence to show that she had purchased them. From the clear wording of s. 23, E.G. is not entitled to a housekeeping and home maintenance benefit.

Non-Earner Benefit

9E. G. seeks a non-earner benefit. To succeed she must demonstrate that she suffers a complete inability to live a normal life. The evidence before me fails to demonstrate a complete inability to live a normal life so this claim cannot succeed.

10The test for entitlement to a non-earner benefit applicable in this matter is set out in s. 12(1) of the Schedule:

12. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

13. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

11The words “complete inability” are then further defined in s. 3(7)(a):

(7) For the purposes of this Regulation,

(a) 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;

12The Ontario Court of Appeal reviewed the elements to be weighed when considering a claim for non-earner benefit in Heath v Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). The court was considering an earlier version of the Schedule, the Statutory Accident Benefits Schedule--Accidents On or After November 1, 1996, O. Reg. 430/96 (the “1996 SABS”), but the language in the 1996 SABS and the Schedule differs only in an immaterial way. Heath remains the leading authority when considering a claim for a non-earner benefit under the Schedule.

13At paragraph 50 of Heath the Court of Appeal identifies the following factors to be taken into consideration:

50Although s. 12 and s. 2(4) [now s. 3(7) of the Schedule] of the 1996 SABS have not been considered extensively by the courts, they have been considered in a number of arbitration decisions. Based on my review of various decisions, as well as a consideration of the language and purpose of the 1996 SABS, and a review of the predecessor provisions, I would adopt the following general principles as being part of a proper approach to the application of these sections:

i Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant’s pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant’s post-accident condition.

ii Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

iii In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

Although this approach differs somewhat from the approach taken in Walker v. Ritchie, 2003 CanLII 17106 (Ont. S.C.), in which the trial judge focused on those activities that were “most important” to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focussed inquiry.

iv It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

v The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.

vi In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

14According the Heath, the starting point for my analysis is the evidence of E.G.’s life prior to the accident. It would not be an understatement to say the E.G. suffered from serious personal challenges including depression and anxiety that was sufficiently severe to cause her to take time off work before the accident, commencing on March 27, 2015. She had not returned to work by the date of the accident although there is evidence that her family doctor was trying to wean her off anti-depressants and she had had discussions with her supervisor about what work hours might be available to her.

15While in the throes of depression and anxiety, she had, among other things, diminished appetite, dizziness, a preference to stay home as opposed to going out, shortness of breath when out in public, nervousness and light headedness when shopping at the mall and social avoidance. She would avoid speaking with her mother in the Philippines because her mother would question her on her weight loss. Her treating social worker gave her several techniques for controlling panic attacks, including deep breathing and watching instructional videos on YouTube.

16Notwithstanding her personal challenges, E.G. provided care for her children, grocery shopped, cooked meals and did housekeeping. She dropped her daughter off at school and picked her up after school. In fact, the accident occurred when she was driving her daughter to the grocery store after picking her up from school. On the social side, she attended a gym, did aerobics, Zumba, meditation and yoga, and played badminton two or three times per week. She found that it helped “sweat out” her medications. She would meet with friends on a Friday or Saturday for a barbeque and sometimes attend a cottage. Keeping active helped her avoid anxiety and depression.

17Prior to taking time off work due to her psychological issues, E.G. worked in a sleep clinic. She worked overnight on Mondays and Thursdays and was on call on Saturdays. The job involved wiring patients up to sleep monitors, overseeing the data inputs during the night and assisting patients if they need to get up during the night. In the morning she would change the bed linen and make the beds for the next night. Her work had a physical element, lifting or moving various limbs to attach sensors, assisting in getting patients in and out of bed, and carrying bed sheets and making beds. It also involved long sedentary hours while she monitored the computer screens.

18In June 2016, just prior to the accident, E.G.’s family doctor told her she could consider returning to work. E.G. contacted her technical director about scheduling a return. She was offered an immediate work shift but turned it down. It appears that she never did return to work at the sleep clinic. She then applied for several other jobs without success.

19Since the accident, E.G.’s life is marked with pain and increased medications. Notwithstanding this fact, she is still capable of looking after her family. She and her husband are no longer living together, so she is assisted by her children. She cooks on the weekends, drives, picks her children up from school and shops. During the week she and her children buy take-out meals. In the morning she dresses her son and makes breakfast for her daughter. While E.G. stated that she does not go shopping alone, surveillance evidence shows her driving to various stores and shopping alone for 7 hours. She also took her two youngest children home to the Philippines for 4 weeks, a 19-hour flight each way.

20The one area where E.G. is no longer as active as she was previously would appear to be visits to the gym, yoga, badminton and Zumba. On cross-examination she admitted that she could do a substantial range of activities: “only yoga, gym and lifting stuff excepted.”

21Considering the evidence and taking into account the social isolation dimension about which E.G. testified, I find that the evidence fails to support a complete inability to live a normal life. E.G. is not continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. I note E.G.’s testimony about limitations in her childcare activities due to pain and depression, but, in the end, she has managed to provide substantially all of the childcare services she carried out before the accident. I noted no marked difference in the evidence between the impact of her depression and anxiety pre-accident and post accident such that it cannot be said that she suffers a complete inability to live her pre-accident life.

Chronic Pain Treatment and Physiotherapy Treatment and Massage

22E.G. is seeking two forms of treatment recommended by The Rehab Centre: a chronic pain program and a program of physiotherapy, massage and acupuncture. In both cases the plans were partially approved by the respondent.

23The first treatment plan is dated June 30, 2017 and seeks $6.419.96 for a chronic pain program. It sought both the physical and psychological treatment components made up of physical rehabilitation, acupuncture multiple body sites, TENS treatment, assessment of mental health and addictions, total body tests, a cervical pillow, therapy at multiple body sites, therapeutic intervention not elsewhere classified and a fee for document preparation. I find that, subject to some minor qualifications below, the balance of this treatment plan not paid for by Aviva is reasonable and necessary.

24In support of her position, the applicant relies on the reports and records of Dr. Kachooie and Dr. Ebrahimian and, latterly, the report of Dr. Andrew Shaul. Dr. Kachooie, a physiatrist, first examined E.G. on June 30, 2017 and continued to treat her through at least October 2018. On June 30, 2017 he diagnosed E.G. with:

WHIPLASH WITH COMPLICATED LEFT C6 CERVICAL RADICULOPATHY, CERVICOGENIC HEADACHE (GON), LEFT ROTATOR CUFF TENDONITIS [emphasis in the original]

25During the course of his treatment of E.G., Dr. Kachooie referred her for an MRI. The MRI report indicates: “Minimal degenerative changes of the cervical spine without significant disc protrusion.” It also found there was no tear of the rotator cuff. It did find evidence of reverse lordosis (the normal curvature of the cervical spine was reversed) and attributed that change to muscle spasm. Finally, it found bursitis of the left shoulder.

26A major complaint recorded in Dr. Kachooie’s reports is an inability to get a good night’s sleep coupled with severe headaches. By the second consultation, on August 11, 2017 Dr. Kachooie diagnosed E.G. with:

1. POST WHIPLASH QUERY MYOFASCIAL PAIN SYNDROME COMPLICATED WITH LEFT C6 CERVICAL RADICULOPATHY

2. TEMPOROMANDIBULAR (TMJ) JOINT DISORDER

3. SLEEP DISORDER

4. LEFT ROTATOR CUFF TENDONITIS

5. CHRONIC PAIN SYNDROME [emphasis in the original]

27Other than state that E.G. has chronic pain syndrome at item 5. above, Dr. Kachooie does not discuss this aspect of his diagnosis further. He uses the term in later reports but also refers to “persistent pain” and notes on assessment that the applicant has pain in specific areas in addition to her headaches.

28Dr. Ebrahimian assessed E.G. on October 26, 2017 and diagnosed her with:

Psychologically, she suffers from significant emotional Impact from her pain and associated functional limitations, coupled with symptoms of depression and anxiety. She also reported driving anxiety and she drives very cautiously. [E.R.’s] diagnoses based on the available Information are F432; Adjustment Disorder and F4.54; Persistent somatoform [sic] Pain Disorder.

29Dr. Ebrahimian’s diagnoses are further supported by a psychological assessment conducted by Helen Ilios, a psychotherapist, supervised by Dr. Andrew Shaul dated October 4, 2018. Their diagnoses set out in that report are: Adjustment Disorder with Anxiety, Major Depressive Disorder, Specific Phobia (driver and passenger) and Somatic Symptom Disorder with Predominant Pain, Persistent Type. Both Dr. Ebrahimian and Dr. Shaul highlight an ongoing need for psychological treatment.

30All three healthcare professionals on behalf of the applicant diagnose chronic pain syndrome or somatic pain disorder, the latter diagnosis being the psychological diagnosis for chronic pain syndrome.

31The respondent arranged for examinations by healthcare professionals of its choice (IEs): one a physician and one a psychologist.

32The physical IE was prepared by Dr. Mark Goldstein, a physician with a practice focussed on the multidisciplinary management of chronic pain. Dr. Goldstein diagnosed E.G. with:

left rotator cuff sprain/strain, impingement and or tendinitis. There are diffuse sensory changes which are subjective in nature in the affected left arm spanning C5 through T1. This does not appear to follow any specific dermatome. The sensory changes are to be clarified with review of MRI and EMG. She may require neurological consults if positive findings are included. At this point in time, strictly from a physical perspective, the injuries meet the definition of minor as defined in the minor injury guideline.

33Notwithstanding that Dr. Goldstein identifies findings that may require further exploration and intervention and requests a copy of any tests, he concludes that the physical component of the chronic pain program is not reasonable and necessary. As I read his report, I am not clear whether his finding in this regard is based on a finding that the applicant’s injuries, absent a psychological component would be subject to the $3,500 set out in s. 18 of the Schedule for the treatment of defined minor injuries or whether it is his view that the proposed treatment is not reasonable and necessary.

34The psychological IE of E.G. was conducted by Dr. Shahryar Moshiri, a psychologist. Dr. Moshiri diagnosed E.G. with:

Based on DSM-5 diagnostic categories her diagnoses are Adjustment Disorder with mixed anxiety and depressed mood - 309.28; Specific (isolated) Phobias, vehicular - 300.29; Insomnia Disorder, persistent, with other sleep disorders- 307.42.

He recommended psychological treatment valued at $1,482.80. Dr. Moshiri’s recommended psychological treatment differs from Dr. Ebrahimian’s recommendation in that Dr. Moshirir is of the view that each of the 8 recommended session should be one hour and not one and a half hours as recommended by Dr. Ebrahimian.

35In weighing the evidence, I give more weight to the treatment recommendations of Dr. Kachooie than the conclusions of Dr. Goldstein. As mentioned above, the focus of Dr. Goldstein’s report seems to be on whether E.G.’s injuries are minor as defined in the Schedule. His report does not address the chronic pain syndrome aspect of E.G.’s injuries, notwithstanding that, as a pain management expert, this possibility should have been given consideration. Dr. Kachooie, on the other hand, examined the applicant on several occasions as a treating physician, each time addressing his mind to the chronicity aspect of E.G.’s condition. His conclusion that E.G. requires a chronic pain management program is supported by the psychological findings. It is also supported by E.G.’s own evidence of ongoing pain and her attempts to deal with it.

36I find that the chronic pain management program recommended in the June 30, 2017 treatment and assessment plan to be reasonable and necessary subject only to a deduction of four hours of psychological treatment – the difference between Dr. Ebrahimian’s recommendation and Dr. Moshiri’s. E.G. underwent the one-hour sessions recommended by Dr. Moshiri and to go back at this late date and carry on with the balance of the sessions would not be productive.

37The December 5, 2017 treatment plan seeks:

Physical rehabilitation, 20 x $99.75; acupuncture, multiple body sites, 8 x $75.00; documentation support activity for claim form, 1 x $200.00; therapeutic intervention not elsewhere classified, arm not elsewhere classified, 3 x $150.00; therapy, multiple body sites, 10 X $58.00. Estimated duration of this plan is 10 weeks. Total cost $3,825.00.

38Dr. Goldstein prepared an IE report in which he suggested that the suggested $600 of acupuncture treatment would be beneficial. Aviva approved the acupuncture. The balance of the plan, $3,225 is in dispute. I do not find that that this treatment plan is reasonable and necessary.

39The December 5, 2017 treatment plan follows shortly after the October 2017 denial of the chronic pain program referred to above. The treatment modalities and areas of treatment sufficiently overlap to suggest, in my mind, that this treatment plan is broadly duplicative of the chronic pain program, if not exactly so. Accordingly, I find it is not reasonable and necessary.

Psychological Assessment in the amount of $2,452.71 dated July 26, 2017

40On July 26, 2017 E.G. submitted a treatment and assessment plan prepared by Dr. Andrew Shaul seeking a psychological assessment. Despite the parties submitting approximately 700 pages of documents in evidence, I have looked in vain for this treatment and assessment plan in the documentation. There is no dispute over whether it was, in fact, submitted and its focus may be readily inferred from the IE conducted by Dr. Moshiri in response to it. I therefore find I am not hampered by not having the treatment plan available for my review.

41Dr. Moshiri issued a report in response to this treatment and assessment plan in which he deemed it not to be reasonable and necessary. He identifies the goals of the treatment and assessment plan as:

Proposed Goods and Services, listed the following: assessment, mental health and addictions, 12 counts, $1795.32; documentation, support activity for claim form, $200.00; documentation, support activity for claim form, $198.00, with applicable taxes of $259.39, for an auto insurer total of $2452.71.

42At the time of his IE, Dr. Moshiri had just recommended 8 one-hour sessions of mental health treatment and felt that this plan was duplicative. He states:

The OCF-18 [treatment and assessment plan]– in dispute dated July 26, 2017 is not reasonable and necessary. Another OCF-18 in dispute dated June 30, 2017 for $6419.96 was discussed in the accompanying Report#2 in which the ‘mental health and addictions’ was proposed to be reasonable and necessary. The July 26, 2017 OCF-18 is proposing a parallel psychological assessment which is believed to be redundant at this time.

43In addition to not having the treatment and assessment plan relating to this assessment, I do not have any clinical notes and records from Dr. Shaul. I do have a report from him relating to an assessment conducted in August 2018 which I found very helpful in determining the reasonableness of the chronic pain program, but my attention has not been drawn in E.G.’s submissions to his dealings with the applicant in 2017. Since I am left with the description of the treatment and assessment plan set out in Dr. Moshiri’s IE, E.G. not having taken issue with that description, I find myself in agreement with Dr. Moshiri that the proposed treatment and assessment plan, with its focus on 12 counts dealing with mental health and addictions, is duplicative of the sessions dealing with mental health and addictions approved by Dr. Moshiri in the chronic pain assessment. On that basis, I find the treatment and assessment plan is not reasonable and necessary.

AWARD UNDER O. REG 664

44The applicant seeks and award pursuant to s. 10 of O. Reg 664. That section empowers the Tribunal to make an award of up to 50% of any amounts outstanding plus interest at 2% per month compounded monthly if: “the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments.” Neither party gave me any authority for what may constitute unreasonable withholding or delay of payments.

45E.G. has not pointed to any specific behaviour on the part of Aviva that she alleges is unreasonable withholding or delay. Section 10 of the regulation is punitive in nature and designed to encourage insurers not to maintain unreasonable denial positions in the light of clear evidence to the contrary. Where, as here, an insurer is relying on objective medical opinion in denying a benefit, in my view, it is acting reasonably. There must be something more than a disagreement about entitlement to benefits that requires a decision of the Tribunal to resolve, before the provisions of s. 10 are triggered. Delaying payment is insufficient, such delay must be unreasonable. A delay leading to dispute that is supported by objective medical assessments is not unreasonable.

46On the current facts, E.G. has had divided success. Of four items in dispute, she has succeeded on one of them. Aviva has been successful on three. It would appear that Aviva has not unreasonably withheld or delayed treatment.

INTEREST

47The Schedule provides for the payment of interest. Under s. 15 an insurer is liable to pay for any incurred expenses for reasonable and necessary medical and rehabilitation expenses. Section 51 requires an insurer to pay interest at the rate of 1% per month compounded monthly on any unpaid amounts up to the filing of an application with the Tribunal. Thereafter, interests is payable at the rate established by the Courts of Justice Act, R.S.O 1990 c. C 43.

48Aviva shall pay E.G. interest according to the Schedule.

ORDER

49Having considered the evidence and having read the submissions of the parties, I order:

a. E. G. is entitled to payment of the chronic pain program in the amount of $4,737.16 less fours hours of psychological treatment.

b. E.G. is entitled to interest according to the Schedule.

c. The balance of E.G. claim for benefits and an award under O.Reg 664 is dismissed.