JG v. Aviva General Insurance, 2019 CanLII 94021

Citation: JG vs. Aviva General Insurance, 2019 ONLAT 17-009033/AABS

Date: July 29, 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:

JG

Appellant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

PANEL:

Susan Mather, Vice Chair

APPEARANCES:

For the Applicant:

Ioulia Logoutova, Paralegal

For the Respondent:

Megan Cui, Counsel

HEARD:

In Writing on: November 26, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on October 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').The applicant was denied a weekly income replacement benefit (“IRB”) and certain medical and rehabilitation benefits by the respondent (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties disagree about the applicability of the Minor Injury Guideline (“Guideline”) to the applicant’s injuries and whether the treatment and assessment plans (“treatment plans”) submitted by the applicant are reasonable and necessary. The applicant argues that he had a pre-existing condition that prevents his recovering within the Guideline cap of $3,500.¹

3At a second case conference held on August 15, 2018, the issues in dispute were identified and agreed to by the parties.

4For the reasons provided below, I find that the applicant did not sustain more than predominantly minor injuries in the accident and for that reason he is not entitled to medical and rehabilitation benefits that exceed $ 3,500.00.

ISSUES

5The issues in dispute at this hearing are as follows:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule subject to treatment within the Guideline?
2. Is the applicant entitled to receive a medical benefit in the amount of $2,781.57 for physiotherapy treatment pursuant to a treatment plan completed by East Sheppard Rehab, submitted on March 8, 2016 and denied on May 3, 2016?
3. Is the applicant entitled to receive a medical benefit in the amount of $3,694.33 for a FORM 1 assessment and assistive devices pursuant to a treatment plan completed by Normed Assessment Services, submitted on January 27, 2016 and denied on May 3, 2016?
4. Is the applicant entitled to receive a medical benefit in the amount of $4,837.99 for psychological treatment pursuant to a treatment plan completed by Dr. Jon Mills, submitted on April 5, 2016 and denied on May 31, 2016?
5. Is the applicant entitled to the cost of examination in the amount of $1,999.82 for psychological assessment pursuant to a treatment plan completed by Dr. Jon Mills, submitted on January 12, 2016 and denied on May 19, 2016?
6. Is the applicant entitled to the cost of examination in the amount of $2,000 for an orthopaedic assessment pursuant to a treatment plan completed by Normed Assessment Services, submitted on April16, 2016 and denied on May 20, 2018?
7. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400 from May 30, 2016 to October 13, 2017?
8. Is the applicant entitled to interest for the overdue payment of benefits?

MINOR INJURY GUIDELINE

6The Guideline establishes a framework for the treatment of minor injuries. 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.

8Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment costing more than 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.

9In his hearing submissions, the applicant did not claim to have any pre-existing medical conditions documented before the accident that will prevent him from achieving maximal recovery if benefits are limited to the Guideline cap. In his reply to Aviva’s submission that he has pre-existing medical conditions,² the applicant claims he does have pre-existing medical conditions documented by a health care provider before the accident that will prevent him from achieving maximal recovery.³

10The onus of establishing entitlement to medical and rehabilitation benefits beyond the Guideline cap rests with the applicant. To be entitled to benefits beyond the cap, he must prove on the balance of probabilities that he suffered from more than predominantly minor injuries in the accident.⁴

11For the reasons provided below, I find that the applicant has not proven on the balance of probabilities that he sustained more than predominantly minor injuries in the accident. I also find that the applicant has not shown on the balance of probabilities that he had a pre-existing medical condition(s) documented prior to the accident that will prevent him from achieving maximal recovery if benefits are limited to the Guideline cap.

Medical Evidence

12The applicant did not seek medical treatment immediately following the accident. He went to see his family doctor, Dr. Ahluwalia, and attended at East Shepard Rehabilitation Clinic Inc. the day after the accident.

13I do not find anything in the clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Ahluwalia, to support a finding that the applicant sustained more than predominantly minor injuries in the accident.

a. The applicant was assessed as having soft tissue inflammation. Physiotherapy and massage therapy were recommended.⁵ b. The applicant did not seek any attention from Dr. Ahwalia between November 24, 2015 and June 7, 2016. c. In June 2016, he complained of right shoulder pain and right wrist pain. Dr. Ahluwalia ordered an ultrasound of his right wrist and both shoulders on June 13, 2016. No abnormalities were found. There is no mention of a wrist injury in the earlier CNRs. d. The CNR dated June 7, 2016 records that the applicant was going to the gym. e. There is no mention of psychological or pre-existing conditions in Dr. Ahluwalia CNR’s. f. The notes indicate that the applicant was not taking any medications following the accident. g. The CNRs document a visit on September 8, 2015, where he was assessed as having a lumbar strain from his gym pulling down weights at the gym. h. The CNRs also document a visit on September 15, 2015 where the applicant complained of a low moods and emotions switching easily. Dr. Ahluwalia noted the applicant was using “weed”.

14I have reviewed the CNRs of East Shepard Rehabilitation Clinic Inc.⁶ The initial report completed by Dr. Paul Bruni the day following the accident documents neck pain, lower back pain with radiculopathy into the lower extremities, increased stress, increased anxiety, disordered sleep, depressive symptoms and functional deficits. I give little weight to this report and the Treatment Confirmation Form of the same date. I do not see how the diagnosis of disordered sleep and depressive symptoms arising after the accident found in both reports could be made so quickly. I question how Dr. Bruni was able to arrive at the following conclusion just one day after the accident:

“The patient is challenged by several risk factors, recognized by literature, which has been related to increased symptoms towards chronicity. These include: psychological disability, neurological compromise, inability to perform personal care, severity of the collision, head rest ramping, head rotation at the time of the collision, the collision vector and duration of the symptoms. The patient reported disturbed sleep and psycho-emotional symptoms” ⁷

15The Initial Report and Treatment Confirmation Form do not attribute any of Dr. Bruni’s findings to the applicant’s condition before the accident.

16The CNRs of Dr. T. Fecycz are difficult to read⁸. The parties agree that they document:

a. A left knee soccer injury in November 2012 for which the applicant did not attend the schedule MRI. b. A right ankle and right wrist x-ray in October 2013. c. A Workplace Safety & Insurance Board (“WSIB”) form completed in May 2015 in relation to back pain.

17The applicant’s submissions state that in November and December 2016, Dr. Fecycz documented pain complaints. The CNRs are too difficult to read to confirm these entries. In any event, these entries would have been made over a year after the accident and there is no evidence to connect the pain the applicant reported to Dr. Fecycz to the accident.

18On January 18, 2017, Dr. Fecycz referred the applicant to Bodystream Medical Marijuana Services (“Bodystream”) to address anxiety. The initial assessment of the applicant by Bodystream states that the presenting condition/complaint is anxiety. The history of the presenting complaint/condition makes no mention of the applicant’s October 2015 motor vehicle accident. It states:

“brother passed away when he was 12 or 13

Started using cannabis when fiancé left with child and it helped his depression and anxiety

family history of poor reactions to prescription anxiety meds.

Stutters when his anxiety gets bad”

19I give the report little weight because the assessment of Bodystream does not attribute the applicant’s anxiety in February 2017 to the accident. I also note that Dr. Fecycz did not refer the applicant to Bodystream for pain control.

20I also give little weight to the January 2016 attendant care assessment by Beverly Neal. Ms. Neal documented that the applicant had severe restrictions in his ranges of motion, extreme difficulty dressing, grooming and moving. This report is not corroborated by the earlier CNRs of Dr. Ahluwalia which noted that the applicant had full range of motion in his neck and lower back with no difficulty. I prefer the CNRs of Dr. Ahluwalia because he was not proposing services he would profit from. On page 11 of her report, Ms. Neal refers to the applicant as Ms. Newman which leads me to question whether the report was prepared for another person.

21The applicant has provided an affidavit which indicates that after the accident, he developed severe migraine like headaches. I am unable to find any entries in the CNRs of his family doctor to corroborate this evidence. The affidavit does not mention his previous injuries. I give the affidavit little weight as I find it to be self-serving, inconsistent with the remaining evidence and it has not been tested by cross-examination.

Psychological Damage

22The applicant argues that he sustained psychological damage in the accident that takes him out of the Guideline. He relies on the psychological assessment report of Dr. Jon Mills that results from an assessment on April 5, 2016.⁹

23Dr. Mills qualifies his report by stating his impressions, opinions and conclusions may change if the test results are found to be inaccurate or if new information is provided relevant to the facts of this case. The report is based on the applicant’s report that he had no previous medical conditions, surgeries or previous motor vehicle accidents. It is apparent that the applicant did not disclose his earlier knee issues, right ankle and right knee issues, his previous work-related lower back injury and the back pain he reported to his family doctor the month before. He also did not disclose that he experienced low moods and emotional issues before the accident for which he used marijuana. ¹⁰

24Dr. Mills diagnosed the applicant with Major Depressive Disorder, Single Episode. He concluded that the accident materially contributed to the applicant’s impairment and poses a significant barrier to his recovery. Because the applicant did not provide Dr. Mills with an accurate medical history, I am unable to place much weight on his report.

25Dr. Mills’ report does not recognize that prior to Dr. Mills’ assessment, the applicant attended an Insurer’s Examination (IE) for a psychological assessment with psychologist, Dr. A. Syed. Aviva relies on the psychological assessment of Dr. Syed dated March 4, 2016 for its position that the applicant did not sustain psychological impairment as a result of the accident.

26Dr. Syed was asked to provide an opinion where the applicant suffered predominantly minor injuries in the accident and whether the treatment plan for a psychological assessment was reasonable and necessary.

27The applicant did not report his pre-accident mood swings and emotional issues to Dr. Syed and denied suffering from any other injuries or trauma. He also denied having any psychological issues before the accident. He denied using recreational drugs which is contradictory to the CNR of Dr. Ahluwalia.¹¹ I also note that the applicant told Dr. Syed that he was facing a criminal charge because of a “domestic with his ex-fiancee”.

28After interviewing the applicant and administering a number of tests, Dr. Sayed concluded that the applicant may have not answered her questions in a completely forthright manner and for that reason his responses may have led her to form a somewhat inaccurate impression of him as there were suggestions that he attempted to portray himself in a negative or pathological manner in some areas.

29She raised a concern about the distortion of the clinical picture. She found that the applicant presented with certain patterns or combinations of features that are unusual or atypical in clinical populations but relatively common among individuals feigning mental disorder. Dr. Syed concluded that her investigation found no objective psychometric evidence to substantiate the applicant’s self-report of psychological impairment related to the accident and concluded that the applicant suffered predominantly minor injuries in the accident. Dr. Syed did not consider the treatment plan proposing a psychological assessment by Dr. Mills to be reasonable and necessary.

30I prefer the report of Dr. Syed over the report of Dr. Mills for the reason that Dr. Mills did not address the credibility issue raised by Dr. Syed in her report. I find that the applicant’s failure to report his previous injuries and psychological issue to either of the psychologists affects his credibility.

31For the reasons provided above, the applicant has not satisfied me that on the balance of probabilities he suffered psychological issues which take him out of the Guideline.

Pre-Existing Conditions

32The applicant does not dispute Aviva’s submission that the applicant had physical and mental difficulties prior to the accident which he failed to report to the IE assessors. ¹²

33The applicant argues in his reply submissions that these previous physical and mental difficulties take him out of the Guideline.¹³

34I do not find that the applicant has established on the balance of probabilities that his pre-existing medical conditions will prevent him from achieving maximal recovery.

35The reason for this is that the applicant has not provided any compelling evidence that his health care practitioner has determined that his pre-existing medical condition will prevent his maximal recovery from the minor injury if he is subject to the $3,500 cap.¹⁴

36Given that the applicant’s impairments are predominantly minor, the sum of the medical and rehabilitation benefits payable shall not exceed $3,500 less the sum of all amounts paid. Having determined that the applicant is not entitled to claim medical and rehabilitation benefits in excess of the $3,500 cap under the Guideline, I do not need to determine if the treatment plans in dispute are reasonable and necessary.

37I have no evidence that the applicant has not received benefits up to the $3,500 Guideline cap.

INCOME REPLACEMENT BENEFIT (“IRB”)

38The applicant is claiming IRBs for the period May 30, 2016 to August 1, 2016.¹⁵

39The Schedule¹⁶ requires an insurer to pay an income replacement benefit to an insured who sustains an impairment as a result of an accident if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

40Aviva paid the applicant IRBs from October 21, 2015 to May 30, 2016. Aviva terminated the benefit on the basis of three IE reports¹⁷ that provided the opinion that the applicant did not suffer a substantial inability to perform the essential tasks of employment.

41The applicant disputes the IE reports relied on by Aviva to terminate the benefit.

42With respect to the Functional Abilities Valuation Report of occupational therapist John Duong, the applicant points out that Mr. Duong documents that the applicant had the ability to lift a maximum of 50 lbs while in his Work Demand Analysis he wrote that the maximum lifting demand at the applicant’s job at the time of the accident was 160 lbs. The applicant also argues that Dr. Chaudry did not comment on the applicant’s Functional Abilities Evaluation or Work Demands analysis in his report.

43Aviva argues that the fact that Dr. Chaudry did not consider the applicant’s limitations in reaching his opinion that the applicant was not substantially unable to perform the essential tasks of his pre-accident employment is not an error or failure to consider the applicant’s limitation. Aviva argues that the applicant’s overall performance on the test administered by Mr. Duong failed to meet validity measures and for that reason applicant failed to discharge his onus to prove that he was unable to meet his pre-accident employment demands.

44Aviva argues that the fact that Dr. Chaudry did not comment on of Mr. Duong’s reports does not invalidate Mr. Duong’s opinion since there was no evidence of any objective injury or impairment.

45Aviva also submits that any physical and mental difficulties that the applicant may have experience in performing his employment were ongoing issues that existed prior to the accident.

46For the reasons provided below, I find the applicant has not proven on the balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident as of May 30, 2016.

47The applicant was diagnosed with myofascial lumbar strain and was experiencing low moods one month before the accident which he did not disclose to any of the IE assessors. While the CNRs of Dr. Ahluwalia document that the applicant was unable to return to work in the first few months following the accident, they do not document that he was unable to return to work because of the accident after May 30, 2016.

48The applicant relies on the Functional Abilities Valuation Report of occupational therapist John Duong. I place little weight on this report because Mr. Duong concluded that the result of his Functional Abilities evaluation was not a true representation of what the applicant was capable of. He found that there was a lack of observable biomechanical and physiological signs that are typically observed by an individual providing a maximum effort. The applicant has not provided any evidence to refute this finding. Indeed, this finding is similar to the finding of Dr. Syed during her psychological assessment of the applicant where she found that the applicant presented with certain patterns or combinations of features that are unusual or atypical in clinical populations but relatively common among individuals feigning mental disorder.

49For the reasons provided above, I find that there are credibility issues with the applicant’s behaviour following the accident and I am not satisfied that he has proven on the balance of probabilities that he was substantially unable to perform the essential tasks of his employment on the date the IRB was terminated.

INTEREST

50Having determined that none of the benefits claimed in this application are payable, there is no interest owing.

ORDER

51For the reasons provided above, I dismiss the application.

Released: July 29, 2019

___________________________

Susan Mather

Vice Chair

Footnotes

1. 1This argument was raised in the applicant’s reply submissions.
2. 2Paragraph 11, Aviva’s submissions
3. 3Paragraph 8, applicant’s reply submission
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635
5. 5CNR of Dr. Ahwalia dated October 19, 2015, Tab 4 applicant’s submissions
6. 6Clinical Notes of East Shephard Rehabilitation Clinic Inc., Tab 1 applicant’s submissions
7. 7Part 7, OCF 23 dated October 14, 2015
8. 8CNRs of Dr. T. Fecycz, Tab 5, applicant’s submissions.
9. 9Tab 6, applicant’s submissions
10. 10Paragraph 11, Aviva’s submissions. The medical records referred to by Aviva are not disputed by the applicant.
11. 11Page 18, CNRs f Dr. Ahluwalia, Tab 11, applicant’s submissions
12. 12Paragraph 11, Aviva’s submissions
13. 13S. 18(2) of the Schedule sets out the requirement for an insured to escape the Guideline if there is a prior existing medical condition.
14. 14S. 18(2) of the Schedule imposes this requirement to remove an insured from the Guideline because of a prior existing medical condition.
15. 15In his reply submissions the applicant amended the period for which he is claiming IRBs from May 30, 2016 to October 13, 2017 to May 30, 2016 to August 1, 2016 because he returned to work on August 1, 2016.
16. 16S. 5(1)1.(i) O.Reg.34/10
17. 17Medical Physician Report of Dr. J. Chaudry dated May 9, 2016; Work Demands Analysis by occupational therapist Dr. J. Duong dated May 9, 2016; Functional Abilities Evaluation by Dr. J. Duong dated May 9, 2016.