S.S. v. Aviva Insurance Company, 2019 CanLII 94028

Citation: S.S. vs. Aviva Insurance Company, 2019 ONLAT 18-006390/AABS

Tribunal File Number: 18-006390/AABS

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:

S.S.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Tanjoyt Deol, Counsel

For the Respondent: Robert Jones, Counsel

HEARD IN WRITING: April 29, 2019

OVERVIEW

1The applicant, S.S., was injured as a passenger in an automobile accident on October 10, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva Insurance Company (“Aviva”), the respondent.

2Aviva denied S.S.’s claims because it had determined that all of S.S.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (the “MIG”).¹ As a result, S.S. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on November 22, 2018 and the matter proceeded to a written hearing on April 29, 2019.

ISSUES IN DISPUTE

4In her submissions, S.S. withdrew an issue in dispute between the parties concerning her entitlement to a treatment plan for physiotherapy services. As a result, the remaining issues to be decided are as follows:

(i) Did S.S. sustain predominately minor injuries as defined under the Schedule?

(ii) Is S.S. entitled to payment for the cost of an examination in the amount of $2,680.00 for an orthopaedic assessment, recommended by Complete Rehab Centre in a treatment plan dated August 1, 2017, and denied by Aviva on August 14, 2017?

(iii) Is S.S. entitled to interest on any overdue payment of benefits?

RESULT

5I find that S.S. sustained predominately minor injuries as a result of the accident and that she is also not removed from the MIG as a result of any pre-existing conditions, psychological injuries or chronic pain/chronic pain syndrome. However, as a result of Aviva’s non-compliance with ss. 38(8) and 38(9) of the Schedule, S.S. is entitled to payment for the treatment plan in dispute for an orthopaedic assessment plus any applicable interest in accordance with s. 51 of the Schedule.

ANALYSIS

Did S.S. sustain a predominately minor injury?

a) The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) 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 defined in the Schedule.

7Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on S.S. to show that her injuries fall outside of the MIG.²

b) Soft Tissue Injuries

9As a result of the accident, S.S. was diagnosed with several injuries, including: tension type/headache/cervicalgia; injury of muscle and tendon at neck level; sprain and strain of other parts of shoulder girdle; superficial injury of head; injury of muscle at hip and thigh level; injury of muscle and tendon at lower leg level;³ body aches; shoulder, neck and back pain; musculoskeletal pain;⁴ myofascial strain – cervical and thoracolumbar spine; contusion left shoulder with post traumatic painful arc syndrome; contusion left knee; tension-type headache and headache.⁵

10Therefore, I find that S.S. sustained soft tissue injuries and contusions, which alone would mean that she sustained a “minor injury” as defined in s. 3 of the Schedule. In this case, however, S.S. argues that she should be removed from the MIG because she had a pre-existing condition, she sustained psychological injuries as a result of the accident and/or because she suffers from chronic pain. I find that S.S. has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing condition, psychological injuries and/or chronic pain or chronic pain syndrome.

c) Pre-existing Condition(s)

11S.S. has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions.

12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁶

13The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

14S.S. argues that her pre-existing conditions, including headaches, chest pain, dislocated left shoulder, non-specific body pains and aches and potential sleep apnea, were exacerbated as a result of the accident and, accordingly, she should be removed from the MIG. This, however, is not the test to meet for removal from the MIG based on a pre-existing condition. Additionally, S.S. has failed to submit any evidence that any of her pre-existing conditions would prevent her from achieving maximal recovery within the MIG. Therefore, I find that S.S. is not removed from the MIG based on any pre-existing conditions.

d) Psychological Injuries

15S.S. has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any psychological injury from the accident.

16S.S. relies upon the November 30, 2016 Disability Certificate (OCF-3) wherein “other anxiety disorders” is listed in the injury and sequelae information portion and it is also recorded that S.S. has nightmares and a fear of driving. This OCF-3, however, was completed by Dr. Pearl Mehra, a chiropractor, and I do not accept her opinion on any psychological injuries allegedly sustained by S.S. from the accident as any such diagnosis is outside of her practice area.

17For the same reason, I also give no weight to the July 19, 2017 treatment and assessment plan that lists “other anxiety disorders” in the injury and sequelea section as this form was also completed by a chiropractor, Rahim Jessa, and any such psychological diagnosis is outside of his area of practice.

18The only other additional medical evidence submitted by S.S. that diagnoses her with a psychological impairment is Dr. Michael West, orthopaedic surgeon. In his October 15, 2017 report,⁷ Dr. West diagnoses with post-traumatic fatigue and post traumatic anxiety and stress with depressive episodes. Such diagnoses, as even admitted by Dr. West, are outside the scope of his practice and, therefore, I give them very little weight.

19S.S. also failed to make any psychological complaints to her family doctor following the accident.

20For all of the above reasons, I find that S.S. had failed to prove on a balance of probabilities that she sustained a psychological impairment as a result of the accident. Therefore, she is not removed from the MIG for this reason.

e) Chronic Pain

21S.S. has failed to prove on a balance of probabilities that she suffers from chronic pain or chronic pain syndrome and, therefore, she is not removed from the MIG as a result of same.

22S.S. relies upon the reconsideration decision of T.S. v. Aviva General Insurance Canada⁸ in which Executive Chair Lamoureux found that a “minor injury” does not encompass chronic pain because chronic pain is not included in the definition of “minor injury” and it does not fit into the MIG’s 12-week treatment program. S.S. also references Executive Chair Lamoureux’s acceptance of the definition of chronic pain as a condition that persists for more than 3 to 6 months after an initial trigger or injury.⁹

23S.S. argues that she suffers from ongoing pain 2 years post-accident, which is well beyond the 6-month recovery period set out in T.S. v. Aviva and relies upon Dr. West’s diagnosis that S.S. suffers from chronic injuries. I have difficulty in placing weight on Dr. West’s report for the following reasons:

(i) Dr. West’s reporting of the accident details is substantially different than the details contained in the William Osler Health Centre ED Triage report and emergency record. For example, the ED Triage report states that S.S. was a rear passenger but that she was seated on the floor behind the driver’s seat because there were no seats in the back of the van. The emergency record also indicates that S.S. was not wearing a seatbelt. Dr. West, however, reports that S.S. was a “seatbelted passenger;”

(ii) The only documentation that Dr. West reviewed in preparation of his report was the clinical notes and records (CNRs) from William Osler Health System including the emergency record from the date of the accident. No family doctor’s records or other treating records were reviewed. Furthermore, despite his review of the emergency records, there is no acknowledgement or explanation for the discrepancy in the accident details between Dr. West’s report and the William Osler Health System CNRs;

(iii) Dr. West did not diagnose S.S. with any chronic injuries. Even if I am wrong and Dr. West did diagnose S.S. with a chronic injury, his qualifications do not set out any specialized training or certification in chronic pain or pain management and, therefore, such diagnosis would be outside of his area of expertise as an orthopaedic surgeon; and

(iv) Dr. West’s report lacks details that would assist in having a complete understanding of Dr. West’s involvement in S.S.’s assessment, such as the length of S.S.’s assessment, confirmation that he met with S.S. as it the report only states that she presented to his office and confirmation that Dr. West conducted the assessment.

24S.S. also argues that the medical evidence establishes that her “chronic pain syndrome” has developed from her accident-related injuries and that she requires ongoing treatment. S.S. has not submitted any medical evidence to support a finding that she has been diagnosed with chronic pain syndrome.

25I agree with Aviva that in the almost 3 years post-accident, there are only four related appointments with her family doctor, Dr. Atalla, where S.S. made any accident related complaints despite her attendance with her family doctor on numerous other occasions during this time. Furthermore, Dr. Atalla did not send S.S. for any diagnostic imaging, prescribed her with any pain medication or referred her to any specialists, including any chronic pain specialist.

26For all of the reasons set out above, I find that S.S. has failed to prove on a balance of probabilities that she suffers from chronic pain or chronic pain syndrome and, therefore, she is not removed from MIG on this basis.

27Since I have found that S.S.’s injuries as a result of the accident fall within the MIG, I do not need to determine whether or not the treatment plan in dispute is reasonable and necessary as the maximum of $3,500.00 for medical and rehabilitation benefits in the MIG has been exhausted.¹⁰

28However, S.S. relies upon s. 38(11) of the Schedule and argues that Aviva is prohibited from taking the position that S.S. has an impairment to which the MIG applies regarding the treatment plan in dispute for an orthopaedic assessment. S.S. also argues that Aviva is obliged to pay for the treatment plan as a result of its failure to comply with denial notice requirements set out in s. 38(8) of the Schedule. Aviva disagrees and argues that it issued a proper denial of the treatment plan on August 14, 2017 that complied with the requirements of the Schedule.

29Sections 38(8), (9) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. Section 38(9) requires that if the insurer takes the position that the MIG applies, it must include this information in the notice. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

30The treatment plan in dispute sought funding for an orthopaedic assessment in the amount of $2,680.00 and was submitted to Aviva on August 1, 2017.

31Aviva, through an independent adjusting firm, denied this treatment plan by way of correspondence dated August 14, 2017. The denial letter stated:

There is no coverage provided for such assessment or examination under Section 25 of the Statutory Accident Benefits Schedule. Your treating physician or family doctor should be consulted to provide a referral as part of the processional health care services covered by the Ontario Health Insurance Plan (OHIP).

If the above noted assessment is not available through OHIP of the delay is substantially unreasonable, please provide substantiating documentation and the above assessment will be re-considered.

Please also note that this assessment would come out of your Minor Injury Guideline maximum of $3,500.00 as compelling evidence that shows your injuries to not fall within the Minor Injury Guidelines (MIG) has not been received to date;

The costs associated with the above exceed the Minor Injury Guidelines (MIG) limits).

Once additional compelling evidence that shows your injuries do not fall within the Minor Injury Guidelines (MIG) has been received please resubmit the Treatment and Assessment Plan (OCF-18) for consideration.

32S.S. argues that the denial from Aviva did not contain a medical reason for the denial of the treatment plan. Additionally, S.S. argues that Aviva is prohibited from taking the position that S.S. has an impairment under which the MIG applies. Aviva disagrees and argues that the denial “contained a clear medical reason” that S.S.’s injuries fell within the MIG and that this reason was adequate and sufficient to meet its obligations under s. 38(8) of the Schedule.

33The requirement of medical reasons is explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,¹¹ by Executive Chair Lamoureux stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.¹²

34I agree with S.S. that Aviva failed to provide a medical reason for its denial of the assessment because it referred to s. 25 of the Schedule, which addresses reasonable fees associated with expenses. Furthermore, I disagree with Aviva that the denial letter was clear and advised S.S. that Aviva’s position was that her injuries fell within the MIG. The wording in the denial letter about the MIG is confusing at best, as it first states that the funding for the assessment would come from the $3,500.00 MIG limit but then later states that the assessment would exceed the financial MIG limits. Additionally, the denial letter is confusing as it refers to compelling evidence that shows S.S.’s injuries to not fall within the MIG, but later states that such evidence has not been received.

35As a result, I find that the August 14, 2017 denial letter fails to comply with the requirements of s. 38(8) as it failed to provide a medical reason for its denial and also that it failed to comply with the requirements of s. 38(9) as it was not clear that Aviva’s position was that the MIG applied to S.S.’s injuries.

36As a result of my findings of Aviva’s non-compliance with ss. 38(8) and 38(9), the consequences set out in s. 38(11) are triggered and the treatment plan for the orthopaedic assessment is payable as Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit. Furthermore, I find that Aviva is prohibited from taking the position that the MIG applies to this treatment plan for failing to comply with s. 38(9).

Interest

37S.S. is entitled to interest for the treatment plan in dispute in this matter in accordance with s. 51 of the Schedule.

CONCLUSION

38For the reasons outlined above, I find:

(i) S.S. sustained predominately minor injures as a result of the accident and is not removed from the MIG as a result of a pre-existing condition, psychological injuries or chronic pain/chronic pain syndrome; and

(ii) S.S. is entitled to payment for the treatment plan for an orthopaedic assessment and any interest payable in accordance with s. 51 of the Schedule as a result of Aviva’s failure to comply with ss. 38(8) and 38(9) of the Schedule.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.), para. 24.
3. 3Disability Certificate dated November 30, 2016, Applicant’s Submissions, tab B.
4. 4Clinical Notes and Records of Dr. Atalla, Applicant’s Submissions, tabs D and E.
5. 5AB Orthopaedic Assessment Report dated October 15, 2916, Dr. Michael West, orthopaedic surgeon, Applicant’s Submissions, tab F.
6. 6Supra note 1 at page 5, heading 4, “Impairments that do not come within this Guideline”.
7. 7Supra note 5.
8. 82018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
9. 9Ibid. at para. 20.
10. 10While S.S. submitted that only $3,415.00 in medical benefits had been paid to date by Aviva, Aviva submitted that S.S. had exhausted the full statutory MIG financial limits of $3,500.00. As S.S. filed no reply submissions and the date of Aviva’s submissions is after S.S.’s submissions, I accept Aviva’s position that S.S. has exhausted the MIG financial limits.
11. 112018 CanLII 39373 (ON LAT).
12. 12Ibid. at para. 19.