T.K. vs. Aviva Insurance Company, 2019 ONLAT 18-004852/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:
T.K.
Appellant(s)
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
Appearances:
For the Applicant: T.K., Applicant
For the Respondent: Lisa Bishop, Counsel
Interpreter: Olga Sirazhdinora, Russian
Court Reporter: Jovana Velimirovic
HEARD In-person and in Writing: February 12, 2019
OVERVIEW
1The applicant was involved in an automobile accident on April 20, 2017, 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 Appeal Tribunal -Automobile Accident Benefits Service (“Tribunal”).
2A combination hearing in writing and in person, on consent of the parties was scheduled for February 12, 13, 14, 15 in Toronto.
3The applicant ‘s vehicle was stopped when he was hit from behind by a school bus. He claimed that as a result of the accident he had injury to his neck, right shoulder, back dizziness, concussion and numbness in his right arm. He did not have to go to a hospital.
4The applicant, two days later, attended at Downsview Healthcare Inc. where he was diagnosed with: concussion, cervical-sprain/strain; lumbar spine strain/sprain; post traumatic headaches; shoulder strain/sprain of joints & ligaments; post- concussion syndrome, dizziness; behaviour-symptoms and signs involving emotional state.
5The applicant worked in the construction industry which required some heavy lifting. The applicant took two months off work. The applicant received IRB benefits for six months after the accident until November 2017. He indicated in cross examination that he was available for work. The applicant’s position is that he has developed chronic pain disorder that prevents him from participating in his pre-accident activities.
6The respondent’s position is that the applicant suffered minor injuries and has been completely recovered from the accident.
ISSUES IN DISPUTE
7The issues in dispute were identified and agreed to as follows:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, and subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (MIG)?
Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for any period after November 2, 2017 to date and ongoing?
Is the applicant entitled to attendant care benefits in the amount of $521.63 per month for the period from April 20, 2017 to date and ongoing?
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,546.89 for physiotherapy treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted on May 3, 2017, and denied on May 9, 2017?
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,232.12 for physiotherapy treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted on September 11, 2017? Note: The denial date is in dispute.
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,545.96 for physiotherapy treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted on November 7, 2017, and denied on November 16, 2017?
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,335.98 for physiotherapy treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted on January 8, 2018, and denied on January 9, 2018?
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,135.38 for physiotherapy treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted on March 25, 2018, and denied on March 26, 2018?
Is the applicant entitled to payment for the cost of an examination in the amount of $2,000.00 for a chronic pain assessment, recommended by Downsview Healthcare Inc. in a treatment plan submitted on April 9, 2018, and denied on April 11, 2018?
Is the applicant entitled to payment for the cost of an examination in the amount of $2,000.00 for a psychological assessment, recommended by Downsview Healthcare Inc. in a treatment plan submitted on October 3, 2017, and denied on October 10, 2017?
Is the applicant entitled to payment for the cost of an examination in the amount of $1,521.26 for an assessment of attendant care needs, recommended by Downsview Healthcare Inc. in a treatment plan submitted on September 11,2017? Note: The denial date is in dispute.
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
FINDINGS
8I find that the applicant’s injuries are predominantly minor as defined in s 3 of the Schedule, and subject to the treatment within the $3500.00 limit in the Minor Injury Guideline (MIG).
9I find that the applicant is not entitled to receive an income replacement benefit in the amount of $400.00 per week for any period after November 2, 2017, to date and ongoing.
10I find that the applicant is not entitled to attendant care benefits in the amount of $521.63 per month for the period from April 2, 2017, to date and ongoing.
11I find that the applicant is not entitled to the medical and rehabilitation benefits set out in paragraphs 7-4,5, 6, 7, 8.
12I find that the applicant is not entitled to the cost of examination in the amount of $2000.00 for a chronic pain assessment.
13I find that the applicant is not entitled to the cost of examination in the amount of $2000.00 for a psychological assessment.
14I find that the applicant is not entitled to the cost of examination in the amount of $1521.26 for an assessment of attendant care needs.
15I find that the applicant is not entitled to interest on any overdue payment of benefits.
16I find that the applicant is not entitled to an award under Ontario Regulation 664.
ANALYSIS
Are the applicant’s injuries covered under MIG?
17The term minor injury is defined in section 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury”.
18Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for minor injuries.
19The onus is on the applicant to establish that he is entitled to benefits beyond the MIG limits.1
Medical Evidence
20On April 25, 2017 the applicant had x-rays of his cervical and thoracic spine and right shoulder. All x-rays were normal2
21On May 30, 2017, the applicant complained to his family doctor Dr. Bhalla about ongoing shoulder pain, but indicated he felt better than before. His family doctor found no joint line tenderness, normal power, sensation and range of motion in the right shoulder. The applicant had an ultrasound of his right shoulder on June 8, 2017, which revealed no: tendon tear, bursitis effusion or pain with abduction. Everything was found to be normal. Another ultra sound on September 15, 2017 which revealed mild supraspinatus tendinosis without rotator cuff tear.3
22On June 30, 2017 the applicant attended at Dr. Temple neurologist, complaining of numbness and tingling in his right arm, from his shoulder to his fingertips occurring one or twice a day. Dr. Temple’s examination indicated full range of motion of the cervical spine, unassociated with cervical or radicular pain. The neurologic examination and diagnostic studies were normal. Dr. Temple ordered a CT scan and a vascular Doppler study, with both being unremarkable.4 The Assessment of Attendant Care Needs by Elizabeth Lianos nurse on October 30, 2017 confirmed the normal range of motion for both the right and left shoulders.5
23The applicant visited his family doctor last, in September 2017, for accident related injuries. The applicant returned to work in 2017 as a handy man. He was laid off in September 2017, after which his former employer moved to Hamilton and then Ottawa. The applicant declined to move with the company to those locations.
24Dr. P. Tansey on November 16, 2017, on an orthopaedic IE assessment found no evidence of ongoing physical impairment and that the applicant has full range of motion in his back, shoulders, upper limbs, and lower limbs. The report indicated that the applicant had sustained a myofascial strain to his neck and right shoulder.6
25Dr. Shaul a psychologist, on October 16, 2017, diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood7. His position was that the applicant’s symptoms fell outside the MIG. He recommended 14 counselling sessions to focus on alleviating his negative thoughts from the accident including fear and anxiety in a vehicle, building his confidence and managing the various stressors that he has as a result of the accident.8
26Dr. R. Day, psychologist in his IE report dated October 20, 2017, indicated that that the applicant did not report any issues with his mood nor a loss of interest in previously enjoyed activities. The applicant reported that he drives on a regular basis and that his driving anxiety is slowly dissipating. The report indicated that the applicant did not report symptoms with any anxiety disorder.9 The report finds that there is no accident related psychological condition that prevents the applicant from assuming his pre-accident employment.
27Dr. Wilderman assessed the applicant for Chronic Pain on April 2, 2018 and in his report dated September 27, 2018 opined that the applicant had developed a chronic pain disorder preventing him from participating in his pre-accident activities, in both working and in his personal care.
Applicant Evidence
28The applicant gave evidence that his wife and mother help him dress, do laundry, grocery shopping and other household chores. He bought a special shoe horn to help him put on his shoes because of the pain in his back when he bends. His evidence was that he can only stand for an hour and sit down only up to two hours. He admitted that he had a problem with his shoulder a year before the accident, when he strained it at work.
29The applicant when he applied for unemployment insurance on his application indicated that he was laid off and did not indicate that he had an injury preventing him from working.10
Analysis
30There is no evidence before me to show that the applicant has functional issues that prevent him from going back to work. He in fact did go back to work in 2017 until he was laid off. There is no medical evidence before me to show that the applicant has psychological or psychosocial issues with respect to this accident that prevents him from functioning at work, at home, or in his own personal care.
31The claim of chronic pain, has to be assessed in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 6th Edition (“the AMA Guides). At least three of the six criteria set out below must be met to establish a diagnosis of chronic pain syndrome:
i. Use of prescription drugs beyond the recommended duration/and/or abuse of or dependence on prescription drugs or other substances;
ii. Excessive dependence on health care providers, spouse or family;
iii. Secondary physical deconditioning due to disuse and/or fear –avoidance of physical activity due to pain;
iv. Withdrawal from social milieu, including work, recreation or other social contracts;
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs;
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non –organic illness behaviors.11
32I find that the applicant has not proven on a balance of probabilities that he meets at least three of the criteria set out in paragraph [31] in order to take his injuries out of the MIG. I can’t give much weight to Dr. Wildeman’s report as it is based on the applicant’s self- reporting and is also contradicted by the applicant’s going back to work and in his admissions that he has the ability to look after his self- care, with some assistance from family members.
33I find that the claim for a chronic pain assessment is not reasonable and necessary.
34I find therefore that the applicant’s injuries fall with the MIG.
Income Replacement Benefit (IRBS)
35The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.
36The Schedule, at s.5 and s.6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. These change over time after the accident. For this case, the relevant requirements are:
i. Within 104 weeks after the accident, the insured person suffers a “substantial inability to perform the essential tasks of his or her pre-accident employment […] or self-employment”.
ii. After the first 104 weeks of disability, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
Temporary Return to Work
37Section 11 of the Schedule prescribes that a person receiving an IRB may return to work or start new work or self-employment without affecting his or her entitlement to resume receiving IRBs if he or she is unable to continue working as a result of the accident. This only applies to the period during the first 104 weeks after receiving the IRB.
38The applicant did go back to work until he was laid off. When the company moved, he was given the opportunity to move with the company but he did not choose to go. His decision was not based on inability to work because of medical problems. The applicant, when he applied for unemployment insurance, indicated on the application, that he had no medical injury preventing him from working. There is also no evidence that he couldn’t find work, if he had looked for it, after being laid off.
39I find that the applicant does not meet the requirements under the Schedule for IRB benefits.
Attendant Care Benefits and Assessment Claims
40Attendant care benefits and assessments are not available, if the applicant falls within the MIG.12
41I therefore find that that the applicant is not entitled to attendant care benefits, or to an attendant care assessment as I have found that his injuries are under the MIG.
Medical and Rehabilitation Benefits
42The Schedule requires all medical and rehabilitation benefits to be reasonable and necessary, before the insurer is required to pay for them.13
43The applicant has submitted five applications for physiotherapy treatment. All of the medical reports show that the applicant has no medical issues with his right shoulder, normal range of motion for the right and left shoulder, upper and lower back and no evidence of physical impairment. The applicant appears to have full functional restoration.
44I question what value any further physiotherapy treatment would provide to the applicant, since he appears to be fully recovered from a physical point of view.
45I therefore find that the five applications for physiotherapy treatment submitted are not reasonable and necessary.
Claim for Psychological Assessment
46The two reports of Dr. Shaul and Dr. Day are conflicting on the issues of the applicant’s psychological issues. As the applicant has already been assessed by two psychologists even though there is a difference of opinion on findings, there is no need for a third assessment. I accept Dr. Day’s report because it is more in line with what the applicant own evidence as to his functioning both at work and at home.
47I don’t find that further psychological assessment would be reasonable and necessary.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
48The respondent failed to respond to two OCF-18 submitted on September 11, 2017, until November 16, 2017. Section 38(8) of the Schedule requires the insurer to respond with a notice of what the insurer will or will not pay for, within 10 days to the treatment and assessment plan submitted. If the insurer fails to respond within ten days, then the insurer under section 38 (11) of the Schedule can’t take the position that the insured is under the MIG. The insurer is also required to pay for all goods and services after the 11th business day, until proper notice has been given.
49The applicant’s position is that the respondent should pay for the treatment plans for $1,232.12 and for $1,521.26 as these plans were incurred between September 9, 2017, and November 16, 2017 when the respondent responded. The respondent has not paid for these plans to date.
50The applicant also claims that the EOB provided to the applicant on November 16, 2017, was invalid relating to the treatment plans for $1,545.96, $1,232.17 and $1,521.26. The reason for the invalidity was that the respondent did provide a request for an IE relating to the IRB, but not to the other treatment plans, which the applicant was also examined on. There were also no” medical reasons or any other reason “given on the request for the IE on the treatment plans.
51The applicant’s takes the position that any comments as to the applicability of MIG or the reasonableness of the three OFC-18’s are inadmissible in the proceedings. If the plans were denied on the basis of improper IE’s, then the three OCF-18’s have yet to be properly denied and therefore the they are payable under Schedule 38 (11).
52The respondent’s position is that the applicant incurred certain expenses prior to the insurer receiving the two OFC-18s on September 11, 2017, and therefore the insurer is not required to pay for them. Under Section 38 (2) of the Schedule, the insurer is not required to pay for any expenses before a treatment and assessment plan has been submitted to the insurer. The respondent also points out that some of the expenses were incurred before the 11th business day, being September 26, 2017, and therefore the respondent is denying any liability for those expenses. The applicant has not broken down the dates when services were rendered under the OCF-18 in the amount of $1,232.12.
53The respondent’s position is also that the IE notice for IRB was given to the applicant. The IRB IEs set out the findings made by the assessor with those findings relating to the soft tissue injuries, which injuries had been resolved by the IRB IE dates. The applicant’s position is also that the applicant cannot rely on technical deficiencies but has to prove his claim in accordance with the requirements of the Schedule.
54The courts have made it very clear that the applicant is not entitled to benefits under the Schedule because of technical deficiencies. The applicant must still prove his claim under the Schedule.14
55The courts have also held that 38(11) is only applicable to the specific treatment plan(s) for which late notice under section 38(8) has been provided and is not a general prohibition that the MIG applies to the claims with respect to timely denied plans or the overall claim, or that the claim is subject to the $3500.00 limit.15
56As benefits were not owing, there are no grounds for any award.
Released: July 26, 2019
Robert Watt
Adjudicator
Footnotes
- Scarlett v Belair Insurance 2015 ONSC 3635 para 24
- Document Brief of Respondent Tab 32-p15
- Document brief of respondent tab 33
- Document brief of Respondent Tab 34, p 2, 17-19
- Applicant’s Brief of Documents Tab 11, page 19
- Applicant’s document Brief Tab 28 p6-7
- Psychological assessment report of Dr. Shaul Applicant’s Brief of Documents Tab 20 p6-10
- Ibid Tab 18-p191-199
- Dr. Day Report dated October26 2017 Respondent’s Brief of Document. Tab28 p11-12
- Respondent’s Brief of documents Tab6, p45
- Tab 5 Respondent’s Brief of Authorities
- Schedule sections 25(2), 14(2)
- Schedule section 15
- Smith v. Co-Operators 2002 SCC 30 para1
- Zheng, Cai v Aviva 2018 ONSC 5707 (Div Ct.) para 21