B.E. v. Aviva General Insurance Company, 2019 CanLII 43922

Citation: B.E. vs. Aviva General Insurance Company, 2019 ONLAT 18-005760/AABS

Date: April 24, 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:

B.E.

Appellant(s)

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

PANEL:

Dawn J. Kershaw, Vice Chair

APPEARANCES:

For the Applicant:

Murad Huseynov, Paralegal

For the Respondent:

Danielle Wilkinson, Counsel

HEARD:

In Writing on: March 25, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, B.E., was involved in an automobile accident on May 13, 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 Application Tribunal - Automobile Accident Benefits Service ("Tribunal").

2B.E.'s vehicle was rear-ended by another vehicle when she was stopped. She was able to get out of her vehicle, and subsequently drove her vehicle home. She first sought medical attention at the hospital the next day because of back pain. She saw her family doctor a week after the accident.

3B.E. applied to the Tribunal when her claims for benefits were denied by the respondent ("Aviva").

4The parties made written submissions, followed by oral evidence from Aviva's adjuster given by telephone on March 25, 2019 with respect to the claim for an award under Regulation 664 for unreasonably withholding or delaying payments to the applicant.

ISSUES

5I must determine the following issues:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to receive medical benefits in the amount of $2,027 for other goods and services of a medical nature recommended by Mackenzie Medical in a treatment plan submitted September 6, 2016, and denied by the respondent on November 22, 2016?

iii. Is the applicant entitled to receive medical benefits in the amount of $1,384.70 for other goods and services of a medical nature recommended by Mackenzie Medical in a treatment plan submitted November 3, 2016, and denied by the respondent on December 22, 2016?

iv. Is the applicant entitled to receive medical benefits in the amount of $3,436.43 for chiropractic services recommended by Keeled Finch Chiropractic in a treatment plan submitted March 20, 2017, and denied by the respondent on March 22, 2017?

v. Is the applicant entitled to receive cost of examination in the amount of $2,000.00 for chronic pain assessment recommended Toronto Central Diagnostics in a treatment plan submitted July 17, 2017, and denied by the respondent on July 26, 2017?

vi. Is the applicant entitled to receive cost of examination in the amount of $1,950.00 for orthopaedic assessment recommended Toronto Central Diagnostics in a treatment plan submitted July 17, 2017, and denied by the respondent on July 26, 2017?

vii. Is the applicant entitled to receive cost of examination in the amount of $2,204.92 for psychological assessment recommended by Betty Kershner/Princeton Hills Medical Assessment Inc. in a treatment plan submitted June 15, 2018, and denied by the respondent on June 20, 2018?

viii. Is the applicant entitled to receive cost of examination in the amount of $2,260.00 for chronic pain assessment recommended by Inese Robertus of Princeton Hills Medical Assessment Inc. in a treatment plan submitted May 31, 2018, and denied by the respondent on June 20, 2018?

ix. Is the applicant entitled to payment for expenses in the amount of $225.49 for prescriptions and parking fees submitted September 24, 2016, and denied by the respondent on October 20, 2016?

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

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

RESULT

6I find that the applicant's injuries are outside the Minor Injury Guideline ("MIG") and therefore are not subject to the $3500 treatment limit.

7I further find that the applicant is entitled to payment of the treatment plans set out in paragraph 5(ii), (iii), (iv), (vi), (vii) and (viii).

8I further find that the applicant is not entitled to the payment of expenses set out in paragraph 5(ix).

9I further find that the applicant is not entitled to payment of the treatment plan set out in paragraph 5(v) because it is not for this applicant.

LAW

10Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.¹

REASONS AND ANALYSIS

THE MIG

11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined by s. 3(1) of the Schedule and includes, among other things, sprains and strains. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.

12Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. However, an applicant can obtain medical treatment outside the MIG in certain limited circumstances, one of which the applicant in this case claims applies to her, namely that she can establish that she sustained accident-related injuries that fall outside the MIG. Psychological injuries, if established, may fall outside the MIG, because the MIG only governs "minor injuries" and the prescribed definition does not include psychological impairments.

Did the applicant sustain any accident-related injuries which fall outside the MIG?

13The applicant submits the accident caused both a psychological injury and chronic pain that fall outside the MIG, which the respondent denies.

14For the following reasons, I find that the applicant has established that she has a psychological injury and chronic pain. She therefore is not subject to the $3500 funding limit established by the MIG.

15The applicant was seen, assessed and administered tests by a neuropsychologist, Dr. Nikkhou, in an insurer's examination ("IE") on October 3, 2018 and by a psychologist, Dr. Kershner, on August 11, 2018. Dr. Kershner's report was based on testing done by a psychotherapist in her office, and it was not clear whether she wrote the report or the psychotherapist did so, but in my view nothing turns on this as the psychotherapist worked under the direction, and with the approval of, Dr. Kershner.

16The testing in the two reports yielded quite different results, but even Dr. Nikkhou's report that was done for the insurance company found that the applicant had an adjustment reaction, despite reporting her symptoms at a subclinical level. While he found that she had only mild emotional concern, a minimal level of psychological distress and no significant depression, he also reported that the applicant feels she is 90% disabled in terms of relationships with her friends and family, but even more importantly that she has had a 100% negative change in her emotional condition as a result of the accident and continues to have anxiety about her health and future. This self-report is borne out by Dr. Kershner's report and testing that found that the applicant had moderate levels of depression and severe anxiety. Dr. Kershner diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and found her complaints of pain and dysfunction to be genuine. On balance, I find that the applicant suffered a psychological injury that would remove her from the MIG.

17I also find that the applicant suffers from chronic pain that removes her from the MIG. The applicant made regular and ongoing complaints of back pain to her family doctor. She was referred for a chronic pain assessment in June 2018, more than two years after the accident. Dr. Robertus in his report wrote that the applicant had chronic pain. According to the MRI and x-rays, there are no significant changes in her spine, but chronic pain does not require objective findings. The applicant continues to use pain medications. While the applicant declined treatment at a pain clinic, it is reported it is because she did not want to get injections.

18While Dr. Tu on behalf of the respondent reported that the applicant had no impairment and had returned to work without modifications, Dr. Robertus on behalf of the applicant explained that the applicant's pain was chronic and that although she continues to work out of financial necessity, she is not able to do her housework, which remained consistent with what she reported to Dr. Tepperman at the IE on October 7, 2016. It is of note that Dr. Tu also reported that the applicant makes fewer meals and does fewer activities since the accident because she has less interest and some anxiety in social situations, all of which are indicative of impairment. Bolstering Dr. Robertus' finding is the fact that Dr. Nikkhou in October 2018 also reported that the applicant continued to have persistent pain and impairment.

19In conclusion, I find that the applicant has injuries that fall outside the MIG and therefore she is not limited to the $3500 funding limit.

20Considering my finding on the applicability of the MIG, I need only determine if the applicant has demonstrated that the treatment plans at issue are reasonable and necessary.

September 6, 2016 - chiropractic treatment and massage - $2027.00 - paragraph 5(ii)

November 3, 2016 – chiropractic treatment and massage - $1384.70 - paragraph 5(iii)

March 20, 2017 – chiropractic treatment and massage - $3436.43 - paragraph 5.(iv)

21These proposed treatment plans were to treat the applicant's mid- and low back and neck pain, and to increase her range of motion and strength. I find on balance that these treatment plans are reasonable and necessary in light of the recommendations that were proposed to address impairments that were also confirmed by the IE assessors. The applicant's family doctor also continued to note back pain in November and December 2016. While it was reported in the November 3, 2016 treatment plan that she had had some improvement, she continued to have pain and reduced range of motion. In addition, the family doctor recommended massage and chiropractic treatment in March 2017, which is indicative of his support for same.

May 31, 2018 chronic pain assessment - $2260.00 - paragraph 5(viii)

22In light of the reasons and my finding that the applicant has chronic pain, I find this treatment plan reasonable and necessary. The goal was to give her tools to manage her pain and to return her to her activities of daily living, which I accept were impacted even though she continued to work. While the respondent submitted that Dr. Tu found no impairments during her November 28, 2018 IE, the applicant continued to report pain during this time period to her family doctor and also to the IE assessors, including to Dr. Nikkhou who wrote in his October 17, 2018 report that the applicant had persistent pain. I find that it was reasonable and necessary for a chronic pain assessment to be undertaken at this stage, given the applicant's persistent pain.

July 17, 2017 orthopaedic assessment - $1,950.00 - paragraph 5(vi)

23The orthopaedic assessment was proposed to identify all musculoskeletal injuries and to provide the applicant with recommendations for medical investigations and treatments and to "determine provision for goods and services". Dr. Tu opined that it was not necessary because she identified no impairments. However, the applicant continued to complain of pain and limitations that were noted by Dr. Kershner, Dr. Nikkhou and the family doctor. In addition, Dr. Robertus conducted an examination on September 22, 2018 and explained that, although the applicant was working, it was because of financial limitations.

24Dr. Robertus further found that the applicant was not able to do her housework and had social, family and recreational limitations. He also identified interference with prolonged standing, walking, kneeling, heavy lifting, carrying, pushing and pulling. This was in line with the findings of Mr. Yip, even though he attributed this to the applicant self-limiting. In light of my finding with respect to the applicant's continuing pain, I find that the applicant's self-limitation was due to pain, which is consistent with what she continues to report to medical practitioners. As such, I find it reasonable and necessary for an orthopaedic assessment for investigatory purposes.

June 15, 2018 psychological assessment - $2204.92 - paragraph 5(vii)

25In light of my finding that the applicant has psychological issues, supported by Dr. Kershner's August 11, 2018 report in which he found moderate levels of depression and anxiety and found that the applicant's complaints of pain and dysfunction were genuine, and Dr. Nikkhou's report in which he reported that the applicant was worried about her future and had an adjustment reaction to her persistent pain, I find the psychological assessment treatment plan to be reasonable and necessary.

26It was proposed in order to provide the applicant with assessment and testing in order that treatment recommendations could be made. In light of her ongoing symptoms it is reasonable and necessary.

Parking/Prescriptions

27Neither party provided submissions with respect to these expenses. As a result, the applicant has not satisfied the burden on her of proving that these expenses were reasonable and necessary.

Award

28The Tribunal may grant an award when it finds that the respondent has unreasonably withheld or delayed the payment of a benefit. The definition of unreasonable was elaborated on in Plowright and Wellington Insurance Company, in which it was held that "[u]nreasonable behaviour by an insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate."²

29The applicant argues she is entitled to an award because Aviva failed to assess her claim on ongoing basis and was wilfully blind when it ignored new evidence she provided. Aviva argues that the applicant provided no evidence that Aviva was "wilfully blind" to evidence, and I agree. It appears that Aviva assessed the available medical documentation but reached a different conclusion based on it than the applicant did. This is not indicative of behaviour that warrants an award. There is no evidence that this behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

30The applicant further submits that Aviva had the applicant assessed by a general practitioner for chronic pain, when it should have been a physiatrist or chronic pain specialist. However, I find this does not prove that Aviva unreasonably withheld or delayed payments to the applicant and she fails on this ground.

31The applicant also argues that Aviva concealed the adjuster's log notes relevant to the issues in dispute with no explanation, allegedly in contravention of the Tribunal's October 30, 2018 order which ordered disclosure with redactions for "privileged information". She submits that the Tribunal should order an award to discourage Aviva from delaying and frustrating the claim's process in the future.

32The adjuster from Aviva testified that she understood that the log notes were redacted from the time the applicant commenced her application to the Tribunal. The Tribunal's order permitted Aviva to redact the log notes. If the applicant had objected to the redactions made, she could have asked the Tribunal for a further order, but she did not do so. The redacted log notes do not support a claim by the applicant for an award.

33Finally, during the applicant's cross-examination, the adjuster admitted she did not follow up with the applicant after she requested further medical information from her in July 2017 and did not get a response. The applicant alleges this caused a delay in payment. This does not constitute such unreasonable behaviour by the respondent as to attract an award, particularly in light of the fact that the applicant did not provide the requested information.

Interest

34Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. The applicant is entitled to interest on the outstanding amounts owing.

ORDER

35I find that the applicant's injuries fall outside the MIG.

36I order that the respondent shall pay for the costs incurred in respect of the following treatment plans, plus interest in accordance with the Schedule:

i. September 6, 2016 - chiropractic treatment and massage - $2027.00

ii. November 3, 2016 – chiropractic treatment and massage - $1384.70

iii. March 20, 2017 – chiropractic treatment and massage - $3436.43

iv. May 31, 2018 chronic pain assessment - $2260.00

v. July 17, 2017 orthopaedic assessment - $1,950.00

vi. June 15, 2018 psychological assessment - $2204.92.

37I further find that the applicant is not entitled to the payment of expenses set out in paragraph 5 (v) or (ix).

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635
2. 2Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) at page 17.