R.R. v. Aviva Insurance Company, 2019 CanLII 94127

Citation: R.R. vs. Aviva Insurance Canada, 2019 ONLAT 18-006694/AABS

Date: July 31, 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:

R.R.

Applicant

And

Aviva Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Chloe Lester, Vice-Chair

APPEARANCES:

For the Applicant:

Mitchell Kent, Allied Community Legal Services

For the Respondent:

Pina Carusone, Kostyniuk and Greenside

Court Reporters:

Greg Vaughan and Bruce Porter

Interpreters:

Ida Pakdaman and Khalil Popal, Farsi Language

HEARD:

May 10 and 16, 2019

OVERVIEW

1The applicant, RR, was involved in a car accident on April 2, 2016 and alleges she sustained physical and psychological injuries. Because of those injuries, she stopped working.

2The applicant applied for income replacement and medical benefits from the respondent, Aviva Insurance Company, in accordance with the Schedule.¹ The medical benefits requested were detailed in five treatment plans: three for physiotherapy, one for psychological treatment and a chronic pain assessment.

3The respondent denied the medical benefits on the basis that they were not reasonable and necessary, and income replacement benefits on the basis that the applicant did not suffer from a substantial inability to perform the essential tasks of her employment.

4The applicant disagreed and filed an application for dispute resolution with the Tribunal.²

BACKGROUND

5The applicant is a refugee from Afghanistan. She has a grade 7³ education and was working as a hairdresser and makeup artist in Afghanistan. Since arriving in Canada, she worked as a chef at [a restaurant]. The applicant can speak English with some difficulty.⁴

6The applicant first saw her family doctor a few weeks after the accident. She complained of severe pain to her whole body, shoulder, neck pain, severe headaches, left knee problems, fear of driving, sleep issues and panic attacks.⁵

7The applicant reports pre-existing injuries to her knee and claims it has worsened since the accident. She also reports pre-existing psychological injuries that she submits had largely resolved before the accident.⁶

8In the months following the accident, her family doctor recommended that the applicant continue with physiotherapy and prescribed Cymbalta, a medication for her mood and pain complaints.

9At the end of June 2016, the applicant continued to complain of the same injuries and her family doctor confirmed that her right shoulder has limited range of motion with pain, positive impingement sign and supraspinatus strength of 4/5.⁷ The ultrasound resulted in no findings of an impingement. The applicant was later referred to a neurologist.

10By the end of August 2016, the applicant was diagnosed with depression and was on a combination of medications to assist with anxiety and insomnia. The applicant’s family doctor continued to vary her anti-depressant medication for a reduction in her symptoms.⁸

11At the end of 2017, the applicant saw a neurologist who diagnosed her with muscle spasms that affected her brachial plexus.⁹

12Beginning in 2018, the applicant’s doctor continued to trial different medications to assist the applicant with her depression.¹⁰

ISSUES IN DISPUTE

13The questions to be determined are:

(a) did the applicant sustain injuries from the accident?

(b) is the applicant entitled to five treatment plans for medical benefits?

(c) is the applicant entitled to receive a weekly income replacement benefit from April 9, 2016 onward? and,

(d) is the applicant entitled to interest?

RESULTS

14I find the applicant:

(a) did sustain injuries from the accident;

(b) is entitled to all five of the treatment plans;

(c) is entitled to income replacement benefit;

(d) and interest.

ANALYSIS

15The respondent asserts that the applicant suffered from pre-existing injuries and the various complaints do not stem from the accident. It claims those conditions are not clear because we do not have any pre-accident records. The respondent relies on the “but for” test outlined in Sabadash v. State Farm¹¹ to determine whether the injuries complained of stem from the accident.

16The applicant argues that she and her daughter testified that she was happy and active before the accident and there were no intervening acts so there could not be any other reason for her impairments other than the accident.

17I find, on the balance of probabilities, that but for the accident, the applicant would not have suffered from the alleged psychological and physical impairments.

18The “but for” test is an exclusionary test, used to rule out incidental factors. The question is whether the applicant would have had these impairments but for the accident. The only pre-accident record in evidence is the applicant’s prescription summary. For a period of three years pre-accident, there were five prescriptions filled: three were unrelated to her pain complaints or psychological issues, one prescription was for pain relief and one prescription was for anti-depressants. Post-accident, there are numerous prescriptions that were frequently filled for the impairments that are alleged to be from the accident. These records support the applicant and her daughter’s testimony that the applicant was happy and active before the accident and could work a physical job. Even though one prescription was filled to relieve pain, it was only 20 pills with no refills prescribed and that was three years prior to the accident. The anti-depressant was prescribed one year prior to the accident and was a 30-day supply with no refills.

19Even if the applicant suffered from some pain or psychological complaints pre-accident, there is enough evidence, including from her and her daughter’s testimony, to support that she was happy, active and able to work before the accident. Therefore, it can only be but for the accident that her conditions significantly worsened her mood and ability to work. Even the applicant’s family doctor testified that her brachial plexus may be caused by the accident and her depression was worsened by the accident.

Is the applicant entitled to the treatment plans?

20Under section 15 of the Schedule, the respondent is obligated to pay for all reasonable and necessary medical benefits incurred because of injuries sustained in the accident. The terms reasonable and necessary are not defined in the Schedule but some guiding principles to consider when determining if a benefit is reasonable and necessary. Some of those principles include but are not limited to: necessity of the treatment in relation to the injuries sustained in the accident, the reasonableness of the goal, the ability to achieve that goal and the cost.

21The applicant submitted the following five treatment plans that were denied by the respondent on the basis that they are not reasonable and necessary:

(a) $3160.20 for physiotherapy dated July 14, 2016,

(b) $2614.20 for physiotherapy dated August 30, 2016,

(c) $2798.25 for physiotherapy dated March 30, 2017,

(d) $1715.71 for psychological treatment dated March 11, 2017, and

(e) $2034 for a chronic pain assessment dated January 25, 2017.

Physiotherapy treatment plans

22The applicant argues these three treatment plans (the first two treatment plans include physiotherapy, chiropractic treatment and massage therapy; the last treatment plan was for physiotherapy and massage therapy) are reasonable and necessary because:

(a) Her injuries have not resolved and have deteriorated;

(b) Her treating family doctor recommends getting physiotherapy and massage therapy for her muscle spasms; and,

(c) The applicant says the treatment helps her feel better.

23The respondent argues the treatment plans are not reasonable and necessary because:

(a) the applicant reported that the therapy does not make her feel better but makes her feel worse;

(b) the insurer’s assessors find the treatment plans not reasonable and necessary.

24I find that the physiotherapy/chiropractic/massage therapy treatment plans are reasonable and necessary for the following reasons:

(a) When considering the guiding principles for determining whether a treatment plan is reasonable and necessary, the treatment must coincide with the injuries sustained in the car accident. It is uncontested that the applicant sustained strains and/or sprains to various body parts and low grade whiplash as a result of the accident.¹² Therefore, the treatment plans relate to injuries sustained in the car accident. She was later diagnosed with muscle spasms that are affecting her brachial plexus. I find the muscles spasms are a result of the car accident as well. Although not diagnosed until a year and a half later, the applicant had been complaining of pain in that region since the accident.¹³

(b) I find the treatment is necessary because her family doctor recommended massage and physiotherapy for her injuries. The applicant did report that she thought physiotherapy and massage therapy was not helping much but her doctor continued to recommend both. Her family doctor noted that the applicant is continuing with physiotherapy and massage therapy as a course of treatment for the muscle spasms that are affecting her brachial plexus.¹⁴

(c) The treatment plan goals were to increase strength, reduce pain, return the applicant to her pre-accident activities of normal living and work activities. The applicant has not gone back to work and testified she has difficulties taking care of her familial responsibilities including taking care of her children and household chores. Therefore, the goals are extremely important considering the troubles the applicant is having with her day to day function.

(d) Also, the respondent’s general practitioner testified that most soft- tissue injuries resolve within 12 weeks but can take up to six months. The respondent’s orthopaedic assessor expressed in his report that symptoms can persist for an extended period of time and that the applicant has reached maximum medical recovery.¹⁵ I am unclear how she reached maximum medical recovery because, at the time of the proposed treatment plans, she had just reached 12 weeks post-accident and still had ongoing pain complaints. Two of the treatment plans were recommended within the first six months post-accident, therefore, I cannot see how the applicant could have reached maximum medical recovery by the time of the assessment.¹⁶ On the balance of probabilities, there is reason to believe the applicant had not reached maximum medical recovery and therefore would have needed more treatment.

(e) The cost is reasonable. The applicable rates are in line with the professional service fee guidelines.¹⁷

Psychological treatment plan

25The applicant claims she needs psychological treatment to resolve her psychological impairments that resulted from the accident. She claims her psychological injuries prevent her from going to work and taking care of her family responsibilities. She also submits that, despite having no clinical records from before the accident, she was happy and active prior to the accident and was only given anti-depressant medication for 30 days, so we can conclude that any depression issues had resolved.

26The respondent argues that the insurer’s examinations do not support a psychological impairment or a need for treatment. It also asserts that if the applicant has a psychological impairment, it is unrelated to the accident.

27I find the psychological treatment plan reasonable and necessary for the following reasons:

(a) First, I find, on the balance of probabilities, the applicant suffered from psychological conditions because of the accident. For this, I am not relying on either one of the party’s examinations, but rather, I am placing significant weight on the applicant’s, daughter’s and family doctor’s testimony and records. I find fault with the applicant’s examination because it included very little psychological testing and was unsupported by validity scores. I find the respondent’s psychological assessment is unreliable because it fails to consider the family doctor’s records. The assessor felt the records did not change his opinion that the accident may have caused a considerable psychological distress for the applicant and that it was possible that she was experiencing a psychological impairment but, could not conclude she suffered from a psychological impairment because of not having any valid and objective psychological data. The addendum report did not explain why the family doctor’s records did not affect his opinion despite the clear fact the applicant was diagnosed with psychological impairments resulting in multiple anti-depressant prescriptions with varying dosages.¹⁸ The family doctor’s records state the applicant acknowledges having depression about two years prior to the accident and a previous doctor wanted her hospitalized for suicidal ideation. The records go on to say that the applicant still has occasional suicidal thoughts. Despite that, a large amount of her psychological complaints is related to the car accident. Even if the applicant suffered from pre-existing psychological impairments, I find those conditions would have been exacerbated by the accident. The testimony of the applicant and her daughter confirmed the injuries sustained from the accident impaired her daily functioning.¹⁹

(b) Second, the treatment goals specifically relate to the injuries sustained in the accident or exacerbated previous conditions. The treatment plan will try to get the applicant back to her pre-accident activities and employment.²⁰

(c) Third, the applicant’s family doctor testified that the applicant needs counselling to improve her condition. She believes with the right medication and therapies, the applicant could find work in the future.²¹

(d) Last, the cost is reasonable. This was the first treatment plan for psychological treatment and the cost is not excessive.

Chronic pain assessment

28The applicant claims the chronic pain assessment is reasonable and necessary because she is still suffering from chronic pain. The applicant argues that even the respondent’s assessor who testified described her pain medication dosages as high.

29The respondent argues the assessment is not reasonable and necessary because its assessor did not think it was and the applicant did not tender any submissions or evidence to justify it.

30I find the chronic pain assessment reasonable and necessary for the following reasons:

(a) First, the treatment plan relates to the injuries sustained in the car accident. The clinical records from the family doctor, the reports from the assessors and the testimony of the applicant all confirm that she continued to suffer from pain from the injuries resulting from the car accident.

(b) Second, the treatment goals will try to get the applicant back to her pre-accident activities and employment.²² Also, the family doctor wrote a prescription for further massage therapy because of her chronic back and neck pain.²³ The family doctor’s records and the applicant’s testimony support that treatments were only providing a temporary relief of the pain.²⁴

(c) Last, the cost is in line with the Schedule.

31I strongly disagree with the respondent’s assessor who testified that the chronic pain assessment was not reasonable and necessary because many chronic pain treatment programs are mainly injections. He said that virtually all chronic pain clinics give the patient a pain patch or strong pain killers. I find this an inadequate reason for denying a chronic pain assessment. The purpose of an assessment is to investigate and determine a diagnosis, if there is one, and potentially identify the best course of treatment. It appears from the respondent’s assessor’s testimony that he did not base his opinion on whether the pain complaints warrant an investigation but rather on what he presumes the treatment would be. Therefore, I have not placed much weight on the respondent’s assessment.²⁵

32Based on the persistent pain complaints of the applicant and her allegations that it prevents her from pre-accident activities, including her inability to return to work, I find it is reasonable that an investigation is necessary to determine whether she suffers from chronic pain and identify potential solutions for long-term relief.

Is the applicant entitled to a weekly income replacement benefit?

33The applicant stopped working after the car accident because of the injuries she sustained. The applicant claims entitlement to an income replacement benefit (“IRB”) in the amount of $288.62 per week from April 9, 2016 onward.

34The applicant submits she meets the test for entitlement to an IRB for both the pre and post-104 week periods because:

(a) Her disability certificate supports the entitlement to the benefit;

(b) She continues to suffer from the accident-related injuries and they continue to get worse and prevent her from going back to work; and,

(c) Because her family doctor testified that she confirms the applicant’s inability to return to work.

35The respondent denies entitlement to the IRB because:

(a) The insurer’s assessor opined she did not meet the test for the benefit; and

(b) The applicant’s family doctor testified she could go back to work.

36After the accident but before 104 weeks post-accident, the applicant needs to meet one test for entitlement to IRB; and after 104 weeks post-accident, she needs to meet a more stringent test. The applicant has the onus to prove entitlement. The applicant claims that she meets both tests.

37To be entitled to a pre-104 week IRB, section 5(1) of the Schedule states that the applicant must suffer a substantial inability to perform the essential tasks of her pre-accident employment. To meet the pre-104 week IRB test, a comparison needs to be made to determine the following:

(a) what were the injuries because of the accident?

(b) what are the essential tasks of the applicant’s employment? and,

(c) does the applicant suffer a substantial inability to complete them?

What were the applicant’s accident related injuries?

38As a result of the accident, I find the applicant suffers from strains and sprains of various body parts, muscle spasms affecting her brachial plexus, chronic pain complaints, and psychological impairments.²⁶

What were the applicant’s essential tasks of her employment?

39At the time of the accident, the applicant worked as a chef at [a restaurant]. The essential tasks of the applicant’s employment were to prepare and cook food. This involved being on her feet all day, using her hands and turning her head and neck. The applicant testified that to be a chef you need to be in good physical condition and mentally fit to remember many things. The Employer’s confirmation form also includes the following workplace requirements of standing, lifting and bending.²⁷

Does the applicant suffer a substantial inability to perform her essential tasks of employment?

40I find that the applicant suffers a substantial inability to perform the essential tasks of her job. Her job was physical. It involved long work hours and being on her feet for long periods of time. Being around a hot stove and oil would require an individual to be mentally aware and reactive.

41I find the applicant would not be able to return to work because of her physical and psychological injuries. Her family doctor filled out a form “limits to participation” about six months after the accident and confirmed the applicant needed to avoid heavy-lifting because of neck pain related to the car accident. The family doctor also confirmed the applicant has limitations in her ability to concentrate and her energy/stamina.²⁸ This would definitely affect her ability to return to work as a chef.

42I find the applicant’s pain issues prevented her from returning to work.²⁹ The clinical records and the applicant’s testimony demonstrated that physiotherapy, massage therapy and the injections from the pain management clinic only provided temporary relief from the pain. Her psychological issues prevented her from socializing and gave her panic attacks. She was not sleeping properly and has a fear of driving.³⁰ Her family doctor testified that the applicant’s depression is causing a lack of motivation and the chronic pain makes it impossible for her to do heavy-lifting, standing or sitting for long periods of time. As a chef she would have to stand for long periods of time. Also, although the applicant testified that she did not interact with customers, she would have to do some socialization with work colleagues and her depression prevented her from doing that.

43The applicant testified that she could not even make a cup of tea for herself and therefore could not work as a chef at a fast food restaurant.

44Given the evidence of the applicant’s substantial inability to perform the essential tasks of her job, on the balance of probabilities, I find that she could not function as a chef.

Does the applicant suffer a complete inability to engage in any employment?

45To be entitled to a post-104 week IRB, section 6(2) of the Schedule states that the applicant must suffer a “complete inability to engage in any employment…for which she is reasonably suited by education, training or experience”. To meet the post-104 week IRB test, a comparison needs to be made to determine the following:

(a) what are possible employment opportunities that the applicant is reasonably suited for because of her education, training or experience?

(b) does the applicant suffer a complete inability to engage in them?

46The applicant previously worked as a hairdresser and makeup artist and has not completed a high school education.³¹ All of her previous employments required physical labour, and, at this point, the applicant is not capable of physical exertion. Also, the clinical records from the family doctor indicate that the applicant felt that she could not attend her language classes because of the pain in her neck.³² The applicant is a refugee from Afghanistan and has limited English capabilities, coupled with her lack of education, would limit her job prospects to mostly physical and labour-intensive jobs. At this point, I find the applicant is not capable of doing that. The applicant’s family doctor testified that she did not support the applicant returning to work because they have not explored enough treatment to improve upon her psychological conditions. I do note her doctor was hopeful about her recovery and her future ability to return to work.

47In coming to my conclusion, I have given little weight to the respondent’s assessments on the income replacement benefit. There is little to no analysis or explanation of why the applicant can return to work. The reports fail to consider the vast amount of clinical records that demonstrate ongoing interventions from the family doctor in trying to regulate the debilitating symptoms resulting from the accident.

48The family doctor’s clinical records and testimony indicate that there were possible issues of malingering by the applicant. That was one reason why she refused to fill out the Ontario Works forms. The family doctor felt the applicant may lose interest in obtaining work if she was on Ontario Works. Despite this, the applicant’s family doctor still felt ongoing treatment was needed and she did not feel that the applicant could return to work at this time.

49In conclusion, I find the applicant has met both tests for income replacement benefits and is entitled to the weekly benefit.

CONCLUSION

50I find the applicant has shown that the treatment plans are reasonable and necessary. I find she has met the test for both pre and post-104 week income replacement benefits.

ORDER

51I order that the applicant is entitled to all five treatment plans. The applicant may now seek treatment in accordance with the treatment plans, if she has not done so already. The applicant is entitled to an income replacement benefit from April 9, 2016 onward. Interest is owing on overdue payments for any incurred treatment and income replacement benefits in accordance with the s. 51 of the Schedule.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
3. 3One report states the applicant only completed a grade 5 education. In any event, she did not complete a high school diploma.
4. 4Exhibit 11 page 71
5. 5Exhibit 1 page 68-71
6. 6Exhibit 11 page 27/51/57/67
7. 7Exhibit 11 page 57
8. 8Exhibit 11 page 32-34
9. 9Exhibit 2 page 29.
10. 10Exhibit 11 page 24
11. 11Sabadash v State Farm et al., 2019 ONSC 1121
12. 12Respondent’s Brief - Tab 53-56 and 60 Part 6 of treatment plans and insurer’s examinations – diagnosis of impairments sustained in MVA
13. 13Applicant’s Brief Tab 2 page 29, 67
14. 14Applicant’s Brief Tab 2 page 22, 29, 39, 45, 55 and 2 prescriptions for massage therapy (April 2017 and October 31, 2017)
15. 15Respondent’s Brief Tab 53 page 8
16. 16Dr. Maser’s testimony
17. 17Superintendent’s Guideline No. 03/14
18. 18Respondent’s Brief Exhibit 13, Tab 57 and 58, Applicant’s Brief Tab 11, 2 (page 51 and 55)
19. 19Applicant’s Brief Tab 2 page 65, 59
20. 20Applicant’s Brief Tab 10
21. 21Dr. Niel Testimony
22. 22Applicant’s Brief Tab 10
23. 23Applicant’s Brief Tab 5 prescription number 413
24. 24Applicant’s Brief Tab 2 note from September 24, 2018
25. 25Dr Maser testimony, Respondent’s Brief Tab 60
26. 26See paragraph 20-32
27. 27Respondent’s Brief Tab 7
28. 28Applicant’s Brief Tab 2, applicant’s testimony
29. 29Applicant and daughter’s testimony
30. 30Applicant’s Brief Tab 2 page 67, 55, 29, 27, 18, 9, 5
31. 31Applicant’s Brief Tab 2 page 27
32. 32Applicant’s Brief Tab 2 page 29