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:

A.A.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

Appearances:

For the Applicant:

Francesco Blasi, Paralegal

For the Respondent:

Kathleen Mertes, Counsel

Heard In WRITING:

March 25, 2019

1The applicant, (“A.A.”), was injured as a passenger in a rear-end automobile accident on January 2, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva General Insurance (“Aviva”), the respondent.

2Aviva denied A.A.’s claim for three treatment plans for physiotherapy treatment, a multidisciplinary chronic pain program and an orthopaedic assessment. As a result, A.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on November 7, 2018, and the matter proceeded to a written hearing on March 25, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is A.A. entitled to a medical benefit in the amount of $3,049.22 for physiotherapy treatment recommended by Newmarket Health & Wellness Centre in a treatment plan submitted on September 6, 2016, and denied by Aviva on November 6, 2016?

(ii) Is A.A. entitled to a medical benefit in the amount of $11,987.72 for a multidisciplinary chronic pain program, recommended by All Health Medical Centre in a treatment plan submitted on July 5, 2017, and denied by Aviva on July 20, 2017?

(iii) Is A.A. entitled to payment for the cost of an examination in the amount of $2,520.00 for an orthopaedic assessment recommended by Newmarket Health and Wellness Centre in a treatment plan submitted on September 6, 2016, and denied by Aviva on November 3, 2016?

(iv) Is A.A. entitled to interest on any overdue payment of benefits?

(v) Is A.A. entitled to an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?

RESULT

5I find that A.A. has failed to prove on a balance of probabilities that her impairments were caused as a result of the accident. As a result, the issue of whether the treatment plans in dispute are reasonable and necessary is moot. A.A. is not entitled to an award or interest and the application is dismissed.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant:

(i) sustains an impairment as a result of an accident; and

(ii) the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

Causation

7A.A. has the onus of proving on a balance of probabilities that her impairments were caused as a result of the accident. In making this determination, I am guided by the following principals:

(i) “Scientific precision is not necessary” to conclude that causation has been established on a balance of probabilities and “scientific reconstruction evidence” is not a necessary condition of finding causation;¹

(ii) a cause meeting the legal test need not be the major cause of the injury or harm giving rise to a claim;² and

(iii) the applicant must show that, but for the accident, her impairment would not have arisen or that the accident made a material contribution to her impairment.³

8Aviva submits that A.A. has not provided any medical evidence to establish that any of the impairments that she alleges to have sustained in the accident were new injuries.

9A.A. filed no reply submissions or evidence in response to Aviva’s causation argument despite having an extensive pre-accident medical history. Prior to the accident, A.A. had been diagnosed with the following conditions or undergone the following procedures:

(i) a right knee replacement surgery in 2012;

(ii) a partial left knee replacement in 2013 that required additional surgical intervention due to an infection;

(iii) a full left knee replacement in 2015;

(iv) bilateral knee osteoarthritis;

(v) depression and anxiety for which A.A. was prescribed various medications since 1997;

(vi) high blood pressure/hypertension for which she was taking prescription medication;

(vii) plantar fasciitis in both heels in 2015 that required a cortisone injection;

(viii) tendinitis of both elbows;

(ix) sleep issues for which she was taking prescription medication;⁴ and

(x) fibromyalgia.⁵

10At the time of the accident, A.A. was not working, as she had been on long term disability since 2013 or 2014. A.A. self-reported that the reason that she was off work was because of her ongoing knee condition. However, in his insurer’s examination (IE) physician assessment report dated June 23, 2017, Dr. Roger Lam refers to A.A.’s Long Term Disability File with Sun Life Financial which shows that A.A.’s initial application for short term disability dated June 27, 2013, which was completed by Dr. Christine Young, orthopaedic surgeon, stated that A.A.’s primary diagnosis was “low back pain – mechanical” with her secondary diagnosis indicated as osteoarthritis of left knee. I was not provided with A.A.’s short- or long-term disability files or any records from Dr. Young or from Sun Life Financial to confirm Dr. Lam’s statement.

11Dr. Lam also references other pre-accident documents that he reviewed in preparing his report and noted the following highlights:

(i) A December 8, 2015 report by Dr. Young, A.A.’s treating orthopaedic surgeon, in which Dr. Young confirms that A.A. underwent surgery on her left knee on September 28, 2015 and that A.A.’s current treatment was physiotherapy and as-needed analgesics;⁶

(ii) A physiotherapy note dated January 15, 2016, by Bob Lyeo, A.A.’s treating physiotherapist, of Southlake Regional Health Centre, in which he indicated ongoing left knee soreness and limited progress, and a note to Dr. Young to consider manipulation;⁷

(iii) A May 26, 2015 consolation note by Dr. John Acker, rheumatologist, which included his impression of A.A. of regional strains and plantar fasciitis and fibromyalgia;⁸ and

(iv) An April 27, 2015 report by Dr. Acker in which he notes an indication of additional diffuse aches and pain involving the heels, both knees, lower back/groin, finger MCP joints, left ankle and dysesthesias involving the fingertips.⁹

12None of the above-referenced documents referred to by Dr. Lam were submitted as evidence by A.A.

13There is also evidence that A.A. underwent diagnostic testing in April 2015 that showed degenerative changes to A.A.’s lumbar spine, bilateral hips and bilateral hands and wrists.¹⁰ A.A. failed to submit these documents as evidence or provide any submissions as to the reasons for these tests being completed within the year before the accident.

14I also accept that A.A. was involved in three previous motor vehicle accidents that occurred in 1995, 1997 and 1999. As a result of the 1995 accident, A.A. reported that she sustained injuries to her back, neck and shoulders.¹¹ As a result of the 1997 accident, A.A. reported sleeping problems, nausea and pain in her back, buttocks, right leg and pelvis that required ongoing treatment up until her accident in 1999. Following the 1999 accident, A.A. complained of neck and chest pain, driving anxiety, dizziness, nightmares and was diagnosed with soft tissue and contusion injuries. A.A.’s complaints of back pain, headaches, poor sleep and hip pain lasted for numerous years after the 1999 accident.

15As evidence of her injuries following the accident, A.A. submitted a Disability Certificate (OCF-3) completed by her family doctor, Dr. Tharsika Sivasubramaniam, dated February 12, 2016. Dr. Sivasubramaniam only lists muscle sprain and strain (no further details or specifics) and adjustment reaction in the injury and sequelae information section of this OCF-3. Dr. Sivasubramaniam reported that the expected duration of A.A.’s disabilities would be one to four weeks. Dr. Sivasubramaniam also noted that A.A. was having a left knee manipulation in March 2016, and that she had been off work due to knee replacement surgery and the pain associated with it.

16Dr. Sivasubramaniam’s OCF-3 injury and sequalae list varies greatly to other OCF-3s and Treatment and Assessment Plans (OCF-18s) that were completed both before and after Dr. Sivasubramaniam’s OCF-3, as they list multiple injuries, such as: sprain and strain of other unspecified parts of lumbar, thoracic and cervical spine and pelvis; sprain and strain of other and unspecified parts of knee, elbow, finger(s), shoulder joints, joints and ligaments of shoulder girdle, other unspecified injuries of lower limb, level unspecified; of joints and ligaments of other and unspecified parts of neck and hip; muscle strain; chest pain; carpal tunnel syndrome; headache/chronic post-traumatic headache; other chronic pain; disorders of initiating and maintaining sleep (insomnia); other sleep disorders; nightmares; other anxiety disorders; dizziness, giddiness and nervousness; and stress/post-traumatic stress disorder (symptomatology).

17The difficulty in resolving the discrepancies between A.A.’s injuries attributable to the accident and to allow a true comparison of A.A.’s pre- and post-accident condition is the gap in time of the clinical notes and records (CNRs) from Dr. Sivasubramaniam. Aviva submitted Dr. Sivasubramaniam’s CNRs for the period from 1996 to 2014 and A.A. submitted them for the period of May 3, 2016 to July 7, 2016. Moreover, the first entry in the CNRs that contains any information by Dr. Sivasubramaniam about the accident is on May 27, 2016, almost 5 months after it occurred. For whatever reason, even after Aviva raising the issue of causation in its submissions, A.A. failed to file her family doctor’s CNRs for a period closer in time leading up to the accident to the period immediately following the accident until May 3, 2016.

18As a result of the gap in time of Dr. Sivasubramaniam’s CNRs, A.A. has not provided any medical evidence to support her reports of aggravation or increase in symptoms of certain conditions that she experienced prior to the accident. For example, A.A. reported that she suffered from poor sleep that required prescription medication, carpal tunnel syndrome, tendinitis of both elbows, left elbow pain and compensatory back pain prior to the accident. A.A. also reported that since the accident, the dosage of her anti-depression/anxiety and sleep medication has increased,¹² the symptoms from tendinitis of both elbows,¹³ her carpal tunnel syndrome and her pain in her left elbow were worse,¹⁴ but there is no documentary evidence to support these claims.

19I am also unable to put weight on various medical reports submitted by A.A. that conclude her injuries were as a result of the accident. In Dr. J. Pilowsky’s July 25, 2016 Psychological Report,¹⁵ Dr. Pilowsky diagnosed A.A. with major depressive disorder (single episode, severe) and post-traumatic stress disorder with infrequent panic attacks.¹⁶ Dr. Pilowsky also opined, “on the balance of probabilities, the psychological sequelae that the patient is presently experiencing is a result of her motor vehicle accident of January 2016, but [it] must be understood in the context that she has suffered several accidents in her life.”¹⁷ I am unable to place weight on Dr. Pilowsky’s diagnoses and opinions, for the following reasons:

(i) Dr. Pilowsky noted that A.A. denied a pre-existing history of diagnosed psychological problems and found that A.A. appeared to be functioning well psychological prior to the accident. It is clear from Dr. Sivasubramaniam’s CNRs that were submitted that A.A. had been taking prescription medication for depression and anxiety for almost 20 years prior to the accident and had been diagnosed by Dr. Sivasubramaniam with anxiety and depression;

(ii) The only documents from Dr. Sivasubramaniam that Dr. Pilowsky reviewed in preparation of A.A.’s assessment was his February 12, 2016 OCF-3. Dr. Pilowsky did not review any of Dr. Sivasubramaniam’s CNRs, which may provide an explanation for her statement that A.A. did not have a pre-existing history of diagnosed psychological problems;

(iii) Dr. Pilowsky notes that A.A. was involved in three prior motor vehicle accidents, but incorrectly noted that the most recent was in 1995; and

(iv) Dr. Pilowsky’s reports that A.A. cleaned her entire home on a weekly basis, which included cleaning the kitchen, stove, oven, countertops, mopping/vacuuming the floors, cleaning the bathrooms, laundry, ironing and garbage removal, and that A.A. made the beds, cooked and grocery shopped, and enjoyed gardening and taking care of the lawn in the summer prior to the accident.¹⁸ This description of A.A.’s pre-accident activities is inconsistent with reports that A.A. had been using a cane for the three years prior to the accident,¹⁹ that she was not able to complete heavy housekeeping activities or outdoor activities because of her knees²⁰ and that she had a further left knee manipulation surgery in early 2016.

20A.A. also submitted an October 8, 2016 Orthopaedic Consultation Report by Dr. J. Ogilvi-Harris, orthopaedic surgeon. In his report, Dr. Ogilvi-Harris diagnoses A.A. with chronic pain syndrome²¹ and states, “I feel she did sustain soft tissue injuries as a result of her accident on January 2, 2016.” I do not accept Dr. Ogilvi-Harris’ opinion that A.A. sustained soft tissue injuries as a result of the accident conclusive because of the use of the phrase “I feel” when introducing his conclusion. I also do not place weight on Dr. Ogilvi-Harris’ diagnosis because he relies, in part, on A.A.’s psychological and emotional difficulties identified by Dr. Pilowsky,²² which I gave no weight to for the reasons outlined above. Dr. Ogilvi-Harris also relies upon findings made by Dr. Browne, but no CNRs or reports from this medical professional have been submitted as evidence. Furthermore, in the list of “review of medical records” portion of Dr. Ogilvi-Harris’ report, he provides no details on the time parameters of Dr. Sivasurmanium’s CNRs that were reviewed in preparation of his report. As such, it is unclear if Dr. Ogilvi-Harris was aware of A.A.’s entire pre-accident medical history.

21A.A. also relied upon an OCF-18 dated May 19, 2017, completed by Dr. Inese Robertus, physician,²³ and a Chronic Pain Assessment Report also by Dr. Robertus and dated June 9, 2017.²⁴ Dr. Robertus’ Report is duplicated in the OCF-18 under “Additional Comments.” In her report and OCF-18, Dr. Robertus opines that A.A. has developed chronic pain and states, “based on the medical documentation reviewed and examination, it is reasonable to conclude that the motor vehicle collision caused [A.A.’s] constellation of symptoms.”²⁵ I cannot give weight to Dr. Robertus’ opinion and findings for the following reasons:

(i) Under medical documents reviewed, Dr. Robertus acknowledges that she received Dr. Sivasurmanium’s February 12, 2016 OCF-3 and his CNRs, but she fails to identify for what period of time the CNRs covered;

(ii) Dr. Robertus reports that A.A. was not involved in any other motor vehicle accidents, which is incorrect as the evidence supports that A.A. had been in three prior accidents;

(iii) Dr. Robertus reports that A.A. had an “active lifestyle” prior to the accident and participated in a number of activities including taking her dog for a walk on a daily basis, and that she was responsible for performing all of the housekeeping activities prior to the accident. This is, again, inconsistent with A.A.’s reported use of a cane since 2013 and the further required manipulation surgery on her left knee in early 2016; and

(iv) Dr. Robertus concludes that A.A. may benefit from antidepressants; however, A.A. was already on such medication and had been on it for quite some time prior to the accident.

22In this matter, there is substantial gap in time in which A.A. failed to submit evidence to reply to Aviva’s position that A.A.’s impairments were not caused as a result of the accident. Dr. Sivasubramaniam’s CNRs for a period from a time closer to the accident to those immediately after the accident and additional pre-accident documentation, such as CNRs or reports from her treating orthopaedic surgeon, her treating physiotherapist and her treating rheumatologist, would have likely assisted in determining A.A.’s pre-accident complaints and condition. Unfortunately, A.A. did not submit these documents.

23I distinguish the case from the reconsideration decision of J.R. v. Certas Home and Insurance Company,²⁶ in which Executive Chair Lamoureux found the Tribunal had breached procedural fairness and erred by failing to request complete copies of documents referred to by the parties. In this matter, there is no response to the causation issue raised by Aviva and there either appears to be a deliberate decision by A.A. to not produce evidence from at least the year leading up to the accident or an incorrect assumption that this information is not required. This evidence, however, would likely have been key in determining whether A.A has discharged her burden of proving, on a balance of probabilities, that but for the accident, her impairment would not have arisen, or that the accident made a material contribution to her impairments. Without it, I am unable to find that A.A. proved on a balance of probabilities that the accident caused her impairments.

Reasonableness and Necessity of the Treatment Plans

24My finding that A.A. has failed to prove causation means that the issue of whether the treatment plans in dispute are reasonable and necessary is moot.

Award

25Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

26Having dismissed A.A.’s claim, I have no basis for determining that Aviva unreasonably withheld or delayed any payments of benefits.

Interest

27Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

28For the reasons outlined above, I find:

(i) A.A. has failed to prove on a balance of probabilities that her impairments were caused as a result of the accident;

(ii) A.A. is not entitled to interest or an award; and

(iii) The application is dismissed.

Released: June 28, 2019

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