L.V.D. v. Aviva Insurance Company of Canada, 2019 CanLII 43875

Licence Appeal Tribunal

Tribunal File Number: 18-001286/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

L.V.D.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

PANEL: Craig Mazerolle, Adjudicator

APPEARANCES: Representative for the Applicant: Arvin Gupta Representative for the Respondent: Jessica Bacopulos

HEARD: In Writing: November 19, 2018

OVERVIEW

1While waiting for a red light on June 2, 2016, the applicant was rear-ended. To assist in his recovery, the applicant sought medical benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule¹ (the “Schedule”). When the respondent refused to pay for a proposed round of physiotherapy and two assessments, the applicant applied to this Tribunal.

2As I will explain below, I find that the applicant should be held to the cap of benefits under s. 18(1) of the Schedule. As such, the respondent is not required to pay the disputed benefits.

ISSUES

3The benefits in dispute are as follows:

(i) $1,800.00 for an in-home assessment recommended by Elsa Poon (in a treatment plan submitted on February 8, 2017);

(ii) $1,779.40 for physiotherapy services recommended by Anil Kumar Lingabathula (in a treatment plan submitted on January 23, 2017); and,

(iii) $2,200.00 for a psychological assessment recommended by Dr. Gloria Fiati (in a treatment plan submitted on February 27, 2017).

4The applicant is also requesting interest on any overdue payment of benefits.

ANALYSIS

Minor Injury Guideline

5Section 18(1) of the Schedule limits an insured person’s entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. The onus is on the applicant to demonstrate—on a balance of probabilities—that she or he should not be held to this cap on benefits.

6Section 3(1) of the Schedule defines a “minor injury” as: “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The Minor Injury Guideline (the “MIG”) provides guidance about how to interpret this definition.

7The respondent denied the applicant these disputed benefits, because its experts determined that all of his accident-related injuries were “minor” in nature. Specifically, its orthopaedic surgeon, Dr. Hamdi Benfayed, only found soft tissue injuries to the back and shoulder; while its psychological assessor, Dr. Louise Koepfler, found no evidence of psychological distress related to the June 2016 accident.

8Since the applicant has reached the financial cap under s. 18(1) of the Schedule, he will only have access to further funding if he demonstrates—on a balance of probabilities—that he suffered an accident-related impairment that falls outside of the “minor injury” definition.

Parties’ Positions

9The applicant argues that this accident caused serious physical and psychological impairments. In support of these diagnoses, the applicant relies on his own assessments, i.e., an orthopaedic assessment conducted by Dr. Fathi Abuzgaya and a psychological assessment completed by Dr. Gloria Fiati. Dr. Abuzgaya diagnosed the applicant with chronic pain, and Dr. Fiati’s assessment found that the applicant suffered from significant, psychological distress. Dr. Abuzgaya also highlighted an ultrasound where the applicant was found to suffer from tendinitis and bursitis in his left shoulder. Taken together, the applicant submits that the accident caused him chronic pain and psychological impairments—injuries that both fall outside of the “minor injury” definition.

10In addition to relying on the reports of its assessors, the respondent challenges the opinions of the applicant’s experts. In particular, though Dr. Abuzgaya diagnosed the applicant with chronic pain, there is no evidence that he conducted the kind of in-depth analysis that such a diagnosis would require (namely, an analysis of the six chronic pain factors cited in 17-007825 v. Aviva Insurance Canada²). Furthermore, the respondent submits the applicant has largely returned to his pre-accident activities.

Chronic Pain

11The six factors from Aviva provide helpful guidance when determining whether someone is experiencing chronic pain: 1.) excessive dependence on others; 2.) withdrawal from social settings; 3.) failure to restore pre-injury function; 4.) secondary, physical deconditioning due to disuse; 5.) use of prescription drugs beyond the recommended duration; and 6.) the development of psychosocial sequelae. According to the American Medical Association, at least three of these factors should be present for a chronic pain diagnosis.

12As a general comment, when seen as a whole, the question underpinning all of these factors is how pain is affecting one’s day-to-day activities. That is, as opposed to compiling a checklist with some factors weighing for and others against a diagnosis of chronic pain, I prefer to use a less mechanistic approach that utilizes these factors as interpretative tools for understanding how pain is affecting an individual’s functional capacity. With this framework in mind, I have made the following findings.

13First, I have no evidence before me to suggest that the applicant is excessively reliant on others. The applicant has been in regular contact with his family physician since the accident, but these visits have touched on a variety of topics aside from the accident. Further, while his family has taken on some additional household chores (as noted in Dr. Abuzgaya’s report), he has returned to many of his pre-accident tasks and activities. For example, according to records from the family physician, he is again doing strength training and playing basketball. Then, when answering questions for the respondent’s psychological assessment, he noted “minimal impairment in concentration, headaches, reading, travel, social and recreational activities, personal care and lifting”.

14The one major difference in activity levels I would highlight is his work schedule. That is, while Dr. Koepfler’s report suggested that he returned to full-time work as early as December 2016, the balance of the evidence points to a reduction in his post-accident workload. However, even in accepting this point, his return to work highlights his ability to engage in social settings, i.e., the second of the six factors.

15This return to his pre-accident activity levels also fails to establish the factor concerned with an inability to restore pre-injury function, as well as the factor about secondary, physical deconditioning through disuse.

16The final two factors, i.e., prescription medication and psychosocial sequelae, are less clear. First, while the respondent’s assessors both asserted the applicant is not taking any prescription medication, he is receiving pain injections from the family physician. However, I have no evidence to determine whether these injections are being administered beyond the recommended period of usage.

17Then, in regards to psychosocial sequelae, Dr. Koepfler’s psychometric testing found the applicant is: pre-occupied with his somatic state; feels a high level of victimization; and experiences moderate levels of anxiety. There is further support for these results in the testing used by Dr. Fiati. Therefore, though Dr. Koepfler, ultimately, concluded that he had no accident-related psychological distress (a conclusion I will largely accept below), there is still a question whether these measures tell a different story about the applicant’s psychological well-being.

18Yet, even if I was to accept that the applicant is overly dependent on medication and experiencing psychosocial sequelae, I would still find that he does not suffer from chronic pain. That is, by adopting a more holistic and functional analysis, I will consider how an individual’s lifestyle and overall function have changed post-accident. Therefore, even if I were to accept these factors as indications of chronic pain, the evidence before me still demonstrates that pain is not significantly impacting his functional capacity.

Psychological Impairment

19Moving on to the question of psychological impairment, I am again struck by the applicant’s ability to largely continue with his pre-accident lifestyle. While I am satisfied that the psychometric testing summarized above evidences a level of distress, it still does not appear to have a major effect on his functional capacity. As noted by Dr. Abuzgaya, there are some changes to how frequently he socializes and helps around the house, but he has largely adapted to his post-accident condition.

20The applicant does raise the diagnosis of Adjustment Disorder, Anxiety Disorder, and Major Depression in Dr. Fiati’s psychological assessment, but I do not place much weight on this conclusion. Specifically, since her report failed to consider the applicant’s serious, pre-accident health, I have no indication of whether her diagnosis would have been affected by this information. In contrast, Dr. Koepfler’s report made mention of severe, upper body burns the applicant received as a child—burns that have required ongoing, surgical interventions. Without any consideration of how this traumatic childhood event may have affected his current psychological condition, I do not have sufficient confidence in the process Dr. Fiati used to reach her diagnosis.

21Taken together, the applicant has not satisfied me (on a balance of probabilities) that his psychological distress is not a “clinically associated sequelae” to his otherwise “minor” injuries.

Tendinitis and Bursitis

22Dr. Abuzgaya’s orthopaedic assessment not only states that tendinitis and bursitis fall outside of the “minor injury” definition, but the assessor connects these impairments in the applicant’s left shoulder to the accident. Specifically, since the pain in his left shoulder started after the accident, the tendinitis and bursitis must be a result of the accident.

23Beyond my observation that tendinitis appears to be a form of sprain and strain that falls within the “minor injury” definition, I am again concerned by the failure of the applicant’s experts to mention his serious, pre-accident health. Much like Dr. Fiati, Dr. Abuzgaya did not mention any of the applicant’s pre-existing health conditions (save for a reference to pre-existing, lower back pain). Therefore, even though Dr. Abuzgaya claims he considered the family physician’s records in preparation of his report, this lack of context again raises serious questions about the process Dr. Abuzgaya used to reach his conclusions.

Pre-Existing Conditions

24Section 18(2) of the Schedule provides that insured persons with minor injuries may still be exempted from the cap on benefits on account of a pre-existing condition. In order to meet this strict standard, the applicant must provide compelling evidence of the following requirements:

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

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $3,500.00 financial limit.³

25Though this exemption is not explicitly raised by the applicant in his submissions, there is a reference to this exemption in the treatment plan submitted for the disputed physiotherapy services. Specifically, the healthcare provider noted the following pre-existing conditions: “Previous burns contracture in neck, chronic neck and lower back pain.” These burns are documented extensively in the family physician’s pre-accident records.

26Even with these records though, I still have no evidence to demonstrate why these conditions would “prevent maximal recovery” under the MIG treatment and financial limits. Without this necessary evidence, the applicant cannot meet the strict standard of s. 18(2).

27Because I have found that the applicant should be held to the treatment and financial limits of the MIG, there is no need to review the reasonable and necessary nature of the treatment plans.

CONCLUSION

28I find that the applicant is subject to the financial limit prescribed by s. 18(1) of the Schedule. Since no benefits are overdue, the applicant is not entitled to interest.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 22018 CanLII 98282 (ON LAT) ("Aviva").
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, page 5, heading 4, “Impairments that do not come within this Guideline”.