N.R. v. Aviva Insurance Canada, 2019 CanLII 51313

N.R. v. Aviva Insurance Canada

Date: May 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:

N.R. Appellant

and

Aviva Insurance Canada Respondent

DECISION AND ORDER

Panel: Susan Mather, Vice-Chair

Appearances: For The Applicant: Alia T.Khan, Counsel For The Respondent: Laura Meschino, Counsel

Heard: November 26, 2018 Heard: In Writing On: February 26, 2018

REASONS FOR DECISION ORDER

OVERVIEW

1The 31 year old applicant was involved in an automobile accident on October 12, 2016. Her air bag did not deploy and the accident resulted in minimal damage to either of the vehicles involved in the collision¹². The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the Aviva Insurance Company (“Aviva”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Aviva denied the applicant’s claim for medical and rehabilitation benefits over $3,500 on the basis that the applicant suffered predominantly minor injuries in the accident that were treatable within the Minor Injury Guideline (“the Guideline”). The applicant does not agree that the Guideline is applicable. She claims she suffers from both psychological impairment and chronic pain/chronic pain syndrome as a result of the accident and that these impairments are not minor injuries.

3A case conference was held on July 16, 2018 and on consent of the parties a written hearing was scheduled.

4For the reasons provided below I find:

i. The Guideline does not apply to the applicant’s injuries because she suffers from chronic pain as a result of the accident.

ii. The treatment plan for physiotherapy in the amount of $1,916.40 recommended by Brampton Health and Wellness centre in a treatment plan submitted on June 8, 2017³ is reasonable and necessary.

iii. The applicant is not entitled to payment for the cost of an examination in the amount of $ 2,000.00 for a Psychological Assessment denied by the respondent on March 3, 2017.

iv. The applicant is entitled to interest on any overdue payment of the treatment plan for physiotherapy recommended by Brampton Health and Wellness Centre in a treatment plan submitted on June 8, 2018.

ISSUES

5Following the exchange of written submissions by the parties the following issues remain in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500 limit in the Guidelines?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,916.40 for physiotherapy, recommended by Brampton Health and Wellness in a treatment plan submitted on June 8, 2017 and denied by the respondent on June 21, 2017?

iii. Is the applicant entitled to payments for the cost of an examination in the amount of $ 2,000.00 for a Psychological Assessment denied by the respondent on March 3, 2017?

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

ARE THE APPLICANT’S INJURIES PREDOMINANTLY MINOR INJURIES

6The Guideline establishes a framework for the treatment of an insured who sustains an impairment that is predominantly a minor injury. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Guideline. The applicant has already received $3500 in benefits.

8Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline cap.

9The onus of establishing entitlement to medical and rehabilitation benefits beyond the cap rests with the applicant. In order to be entitled to benefits beyond the cap she must prove on the balance of probabilities that she suffered from more than predominantly minor injuries in the accident⁴.

Psychological Impairment

10For the reasons provided below the applicant has not satisfied me on the balance of probabilities that she sustained any psychological impairments in the accident that remove her from the Guideline.

11To support her claim that she sustained psychological impairments she relies solely on the Treatment and Assessment Plan (“treatment plan”) submitted by Dr. R. Lindal on February 2, 2017⁵ which proposes a psychological assessment.

12The goal of the psychological assessment was to properly evaluate “the current status of the patient’s injuries”. The functional goal was to allow the applicant to return to activities on normal living and to determine the appropriate course of management for the patient.

13Attached to the treatment plan are the notes from a “Pre-Screening Interview” of the applicant conducted by Svitiana Chechel under the supervision of Dr. Lindal. Ms. Chechel asked the applicant a series of questions relating to her “feelings” following the accident. At the end of the report Dr. Lindal made a note there were symptoms present that might indicate the presence of adjustment disorder, specific (isolated) Phobia (driver/passenger related) Depressive Episode, Mild/Moderate and non-organic sleep disorder. Dr. Lindal did not personally assess the applicant.

14Aviva arranged an Insurer’s Examination (IE) with Dr. MacKay for a psychological assessment.⁶ Dr. MacKay unequivocally found that the applicant did not suffer from any psychological impairment as a result of the accident.

15The applicant acknowledges in her reply submissions that the report of Dr. MacKay calls into question the comments of Dr. Lindal in his treatment plan. The applicant argues that because there is such a wide divergence between the opinions of Dr. Lindal and Dr. MacKay, Dr. Lindal should be provided the opportunity to assess the applicant and form a “second” opinion.

16The applicant argues that since Aviva is in a position to either approve or deny a payment for a second opinion Aviva has control over the applicant’s ability to prove her case. For that reason, the applicant argues that I should accept the opinion of Dr. Lindal over the opinion of Dr. MacKay. In the alternative the applicant argues that the Treatment Plan in dispute for the psychological assessment should be approved.

17I do not agree. My job is to weigh the evidence. The argument that the applicant makes with respect to Aviva’s control of her ability to present her case is not grounds for me to give more or less weight to Aviva’s evidence.

18I have no authority to order Aviva to pay for the treatment plan for a psychological assessment, the cost of which exceeds the Guideline cap, before I determine if the applicant suffers from a psychological impairment or other impairment that takes them out of the Guideline.

19I have weighed the evidence and find that the applicant has not met her burden of proof to show that she suffered psychological impairment and the Guideline does not apply. The applicant appears to acknowledge this in her submissions when she asks for a second opinion from Dr.Lindal.

20I have reviewed the clinical notes and records of the applicant’s family physician Dr. Beharry and find nothing in his notes that persuades me that applicant suffers from psychological impairment.

21I prefer the assessment of Dr. MacKay over Dr. Lindal’s comments on the treatment plan. Dr. MacKay interviewed the applicant and administered two psychological tests.

22On the Modified Somatic Perception Questionnaire (MSPQ) which measures somatic and autonomic symptoms/perceptions in chronic pain patients her scores were within the expected range, indicating no evidence of over reporting of symptoms.

23On the Multiphasic Personality Inventory 2-resturcture Form (MMPI-2-rf) the applicant answered the questions in an inconsistent manner to the extent that the protocol was not valid. This test is designed to assess a number of the major patterns of personality and psychological disorders. Dr. Mc Kay found the test to be invalid because the applicant answered things in an inconsistent manner.

24Most importantly, the applicant did not report any accident related psychological complaints to Dr. MacKay who reviewed her applicant’s work situation and her activities of daily living. Dr. MacKay also asked the applicant questions about mood disturbance and anxiety and found there were no symptoms relating to the accident, The applicant only reported worries about her husband’s health and her fertility. Her primary complaint was of residual pain.

25The pre-screen interview conducted by Ms. Chechel was done to determine if the applicant required a “comprehensive psychological assessment” to determine if the applicant suffered psychological damage in the accident that requires treatment. The interview was not conducted to determine if the applicant suffered psychological damage in the accident.

26Dr. Lindal did not meet with the applicant. His opinion is that the applicant “might” suffer from psychological disorders. He does not state she does suffer from psychological disorders.

27Dr. Lindal opinion that the applicant “might” suffer from psychological impairments does not satisfy me on the balance of probabilities that the applicant suffered any psychological impairment in the accident. In my view any person involved in a motor vehicle accident “might” suffer from a psychological impairment as a result of the accident.

28For the reasons provided above I am not satisfied that the applicant has met her burden of proof to show that she suffered from a psychological impairment in the accident.

Chronic Pain/Chronic Pain Syndrome

29For the reasons provided below I am satisfied on the balance of probabilities that the applicant’s injuries from the accident are not predominantly minor injuries because of the chronic pain she suffered in her back, neck and shoulder. The Guideline does not apply.

30The applicant argues that the fact she suffered from both neck and back pain “within 24 hours following the accident and consistently underwent physiotherapy and other rehabilitative services for almost 2 years with the combination of drugs is indicative that the chronic pain occurred from the MVA”.

31She argues that her chronic pain/chronic pain syndrome⁷ is not a minor injury and entitles her to medical benefits beyond the Guideline cap.

32Aviva argues that the Tribunal has repeatedly found that even where there are notations of chronic pain or ongoing pain complaints in the medical record, those in and of themselves are not sufficient to remove an applicant from the Guideline. Aviva argues that the Tribunal has developed a body of case law in which the chronicity of pain complaints that are limited to sequelae of soft tissue issues falls within the Guideline. Aviva submits that the Tribunal draws a distinction between chronic pain complaints and an actual diagnosis of chronic pain syndrome.

33Aviva argues that chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain and that a chronic pain diagnosis is not supported by the applicant’s medical evidence

34Aviva asks me to consider the American Medical Association Guides to the Evaluation of Permanent Impairment 6th Edition (the AMA Guides) and to find that the applicant has not established that she meets at least three of the six criteria to establish a diagnosis of chronic pain syndrome.

35While the AMA Guides are referred to in Schedule⁸ in the definition of catastrophic impairment they are not referenced elsewhere in the Schedule. For that reason I am not satisfied that the applicant is required to strictly meet the AMA Guidelines to be removed from the Guideline for chronic pain.

36In a recent reconsideration decision⁹ the Tribunal’s Executive Chair¹⁰ considered the question of whether chronic pain is a clinically associated sequelae of a minor injury. In interpreting the language used in s. 3 of the Schedule and the Guideline she considered the context and purpose of the accident benefit scheme and concluded that that chronic pain is not captured by the Schedule’s minor injury impairment level.

37I agree with Ms. Lamoreux’s interpretation of the definition of minor injury in the Schedule. In the decision reconsidered by Ms. Lamoureux the adjudicator found that the applicant’s injuries fell within the Guideline despite a diagnosis of chronic pain. Ms. Lamoureux found this to be an error and reversed the decision finding that the diagnosis of chronic pain took the applicant out of the Guideline.

38In this case there is no diagnosis of chronic pain or mention of chronic pain in the CNRs of her family doctor. The main evidence the applicant relies upon to support her claim that she suffers from chronic pain is her self-reports of back, neck and shoulder pain to her family doctor; her regular attendance at therapy; and the fact that she continued to require and the family doctor continued to prescribe pain medication months after the accident.

39The applicant visited her family doctor the day after the accident reporting pain in her neck, back and shoulders. The CNRs document that the applicant saw her family doctor five times between October 13, 2016 and April 6, 2018. The notations of her pain complaints are essentially the same back pain, neck pain, shoulder pain. The family doctor continually renewed prescriptions for pain medication.

40The CNRs include a letter from the family doctor dated August 8, 2017 which confirms that the applicant was still suffering from back, neck and shoulder pain. In the letter the family doctor recommends that the applicant continue with physiotherapy, massage, acupuncture treatment and active exercise. The letter confirms that the applicant’s symptoms were helped by medication and therapy.

41In support of its argument that the applicant does not suffer from a debilitating pain Aviva points to the fact that the family doctors CNRs make no mention of chronic pain and do not indicate that the family doctor family it was necessary to take any steps to further investigate the pain.

42I am of the view that the evidence that the family doctor saw the applicant on a regular basis, documented the applicant’s ongoing pain concerns, ordered and renewed prescriptions for pain and recommended continued therapy is sufficient evidence to establish that the applicant suffers from chronic pain as a result of the accident. I also note that the psychological assessment of Dr. MacKay indicated that the applicant’s major complain was of pain.

43Neither party has provided me with a definition of chronic pain. In the recent reconsideration description Ms. Lamoureux applied the definition in the American Chronic Pain Association Glossary.

“Chronic pain can be described as an ongoing recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to six months which adversely affects the individual’s well-being. A simpler definition for chronic or persistent pain is pain that continues when it should not”

44I accept the evidence of the applicant that her pain persisted for more than three to six months after the accident and that it adversely affected her well-being. While the applicant returned to modified work shortly after the accident I am satisfied based on the CNRs and letter of the family doctor and her continued use of medication that the pain continued when it should not have.

45The April 06, 2018 CNR of her family doctor confirms that she still suffered pains to all range of movement, tender rotator, and discomfort to her range of motion in her shoulders 18 months after the accident. I am of the view that persistent pain requiring medication for over a year after the accident would affect a person’s well-being.

46For the reasons provided above I am satisfied on the balance of probabilities that the applicant sustained chronic pain in the accident and the Guideline does not apply.

47The Schedule ¹¹ provides that subject to the provisions for minor injuries that fall within the Guideline an insurer must pay medical benefits for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

48Having determined that the Guideline does not apply I must decide if the treatment plans is issue are reasonable and necessary.

Is the applicant entitled to receive a medical benefit in the amount of $1,916.40 for physiotherapy, recommended by Brampton Health and Wellness in a treatment plan submitted on June 8, 2017 and denied by the respondent on June 21, 2017?

49For the reasons provided below I am satisfied on the balance of probabilities the June 8, 2017 treatment plan for physiotherapy was reasonable and necessary. I am unable to determine from the submissions and documents before me whether the applicant has incurred any expense for this treatment plan.

50The invoice of account activity¹² as of September 29, 2017 provided by Aviva is the only evidence I have with respect to the applicant’s account with Brampton Health and Wellness Centre. It is clear from Aviva’s submissions and the applicant’s reply submissions that there has been activity on the account since that date.

51If the parties are unable to resolve this issue I may be spoken to.

52Having determined that the applicant suffered from chronic pain I am satisfied that the treatment plan is reasonable and necessary. The goals of the treatment plan are to reduce pain, increase range of motion increase strength, return to activities of normal living, return to modified work activities and return to pre-accident activities.

53The letter of the family doctor dated August 8, 2017 confirms that while the applicant’s condition had improved she was still suffering from musculoskeletal pain and recommended further physiotherapy, massage and acupuncture treatment along with an active exercise program.

54Aviva argues that the IE of Dr. Auguste the orthopaedic surgeon who assessment the applicant in May 2018 is evidence that this treatment plan is not reasonable and necessary. Dr. Auguste found that there were no accident related impairments from an orthopaedic perspective. Aviva further argues that the applicant achieved maximum medical recovery within the Guideline and further physical treatment is not required.

55I give little weight to the IE of Dr. Auguste for the reason that his report does not indicate whether he considered if the applicant had suffered from chronic pain after the accident. Aviva fails to recognize in its submissions that pain management is a realistic objective of treatment.

56Having determined that the applicant suffered chronic pain as a result of the accident I am satisfied that it was reasonable and necessary for her to receive the treatment proposed in this treatment plan.

Is the applicant entitled to payments for the cost of an examination in the amount of $ 2,000.00 for a Psychological Assessment denied by the respondent on March 3, 2017?

57The applicant is not entitled to payment for the cost of a psychological assessment denied by Aviva on March 3, 2017 as I do not find it reasonable and necessary.

58I have already determined that the applicant has not shown on the balance of probabilities that she suffered from a psychological impairment as a result of the accident. For that reason, I am satisfied that the cost of the assessment is not reasonable and necessary. Even if I were satisfied that the cost of the assessment was reasonable and necessary there is no evidence that the applicant ever incurred this expense.

Interest

59The Schedule¹³ requires an insurer to pay interest on statutory accident benefits that an insured is found to be entitled to in accordance with method of calculation set out in the schedule.

60For that reason I find that if the applicant is entitled to interest on any expense she incurred for the treatment plan approved above.

61For the reasons provided above I Order:

1. The applicant’s injuries are not predominantly minor injuries and she is entitled to claim medical and rehabilitation benefits beyond the Guideline cap.

2. The applicant is entitled to payment for the expenses she has incurred with respect to the treatment plan recommended by Brampton Health and Wellness in a treatment plan submitted on June 8, 2017 and denied by the respondent on June 21, 2017.

3. The applicant is entitled to interest on any overdue payments in accordance with the Schedule.

Footnotes

1. 1Tab 1 Applicant’s Submissions, Motor Vehicle Collision Report. The report indicates that the applicant’s airbag was not deployed and that her vehicle damage was only small scuff marks on the left front tire.
2. 2Tab 2 Applicant’s Submissions, Ambulance Call report. The report indicates the applicant’s car was struck at a low speed and no damage was noted to the vehicle. The applicant was ambulatory on the scene and was not showing any signs of distress.
3. 3The date of the submission of the treatment plan is corrected by the respondent in it hearing submissions from June 3, 2017 to June 8, 2018 and not objected to by the applicant in her reply submissions.
4. 4The applicant does not claim that she had a pre-existing medical condition that will allow her access benefits exceeding the cap.
5. 5Tab 14, Applicant’s Submissions
6. 6Tabs R and S ,Applicant’s Submissions
7. 7In her written submissions the applicant argues she suffers from chronic pain. In her reply submissions she argues that she suffers from chronic pain syndrome.
8. 8S. 3(1) O. reg. 34/10
9. 917-000835. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT)
10. 10Linda P. Lamoureux
11. 11S. 15(1) O.reg. 34/10
12. 12Tab N, Respondent’s Documents
13. 13S. 51 O.Reg. 34/10