[The Applicant] v. Aviva Insurance Company, 2020 CanLII 14484

Licence Appeal Tribunal

Citation: [The Applicant] vs. Aviva Insurance Company, 2020 ONLAT 19-002841/AABS

Tribunal File Number: 19-002841/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:

[The Applicant]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Haider Bahadur, Counsel

For the Respondent: Jean-Claude Rioux, Counsel

Written Hearing: February 5, 2020

OVERVIEW

1[The applicant] was injured in an automobile accident on March 24, 2018 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). [The applicant] applied for medical and rehabilitation benefits that were denied by Aviva because it determined his injuries were predominately minor and therefore subject to the Minor Injury Guideline ("MIG"). [The applicant] disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

2The following issues are in dispute, according to the Case Conference Order:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a cost of examination in the amount of $2,200 for psychological assessment recommended by Injury Management and Medical clinic in a treatment and assessment plan (OCF-18) submitted on November 5, 2018 and denied on November 28, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $2,401.09 for physiotherapy treatment recommended by Health Max clinic in a treatment plan (OCF18) submitted on January 5, 2019 and denied on January 8, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,300 for physiotherapy treatment recommended by Health Max Clinic in a treatment plan (OCF18) submitted on June 26, 2018 and denied on June 29, 2018?

RESULT

3I find [the applicant] has demonstrated, on a balance of probabilities, that his psychological impairments justify treatment beyond the MIG. Accordingly, I find he is entitled to payment for the cost of the psychological assessment as it is reasonable and necessary and incurred.

4I find [the applicant] is not entitled to payment for either of the physiotherapy treatment plans as they are not reasonable and necessary.

ANALYSIS

Applicability of the Minor Injury Guideline

5I find the medical evidence indicates that [the applicant] suffered predominately minor physical injuries as a result of the accident. The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, however, if [the applicant] can demonstrate that he has pre-existing conditions documented by a medical practitioner that prevent maximal medical recovery under the MIG, he may receive treatment outside of the limits. Applying Scarlett v. Belair Insurance,² [the applicant] must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.

6[The applicant] submits that the impairments he sustained as a result of the accident—described as shoulder pain and sprain, anxiety, PTSD, depressive mood, apprehension, insomnia, frustration, headaches, neck pain, back pain, joint pain and swelling—warrant treatment beyond the MIG. [The applicant] relies on various clinical notes and records, two Disability Certificates ("OCF-3"), a psychological assessment report by Dr. Wagner and a letter from his family physician, Dr. Saini, as evidence that his physical injuries are not "minor injuries" as defined in the Schedule. [The applicant] argues that his pre-existing psychological impairments and physical conditions justify treatment beyond the MIG. Specifically, he alleges his neck, shoulder and lower back pain, depression and anxiety were exacerbated by the accident, that he suffered psychological and psychosocial impairments and has developed chronic pain. His pre-existing condition is significant for diabetes, rectal surgery and high blood pressure.

7In response, Aviva argues that the injuries alleged by [the applicant] are all soft-tissue in nature and fall within the definition of minor injuries under the Schedule. Aviva argues that [the applicant] only missed one day of work as a result of the accident and the medical records do not support impairments that require treatment beyond the MIG. It relies on two s. 44 examinations. First, the physical assessment by Dr. Nesterenko, who found that [the applicant]'s impairments were properly within the MIG and that his complaints were largely sprain and strain-type injuries and that he would not benefit from further facility-based intervention. Second, a psychological assessment conducted by Dr. Syed, who determined that [the applicant]'s scores were indicative of feigning psychological impairment.

8On the evidence, I find the physical injuries documented in the weeks and months after [the applicant]'s accident fall squarely within the definition of "minor injury" under the Schedule, as they are listed as pain and sprain and strain-type injuries. On the medical records, I find little to suggest that [the applicant]'s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. Even if I accept that [the applicant] has lingering physical pain that can be definitively traced to the accident, I find that he has not demonstrated that recovery from his pain is practically prevented if he is kept within the MIG, as he suggests. In a similar vein, I echo the submissions of Aviva that there is limited evidence of any functionally-disabling chronic pain in the medical documentation to justify removal from the MIG on that basis. Further, I find the determinations in both OCF-3's indicating that [the applicant] has a substantial inability to perform the essential tasks of his employment (and, more concerning, the opinion in the April 2018 OCF-3 that he meets the stringent Non-Earner Benefit test) to be very inconsistent with his complaints and the fact that he continues to work full-time.

Psychological Impairments

9However, [the applicant]'s claim for removal from the MIG is rooted largely in his psychological issues that he alleges arose from the accident. In turn, he argues that these impairments justify removal from the MIG. To escape the MIG due to psychological impairments, [the applicant] must show that he has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress. Here, I find that [the applicant] has provided evidence sufficient to demonstrate that his psychological impairments prevent maximal medical recovery if he is kept within the MIG.

10In support of his position, [the applicant] relies on the psychological assessment report from Dr. Wagner. In this report, Dr. Wagner diagnosed [the applicant] with Major Depressive Disorder, Single Episode, Without Psychotic Symptoms and Somatic Symptom Disorder, with Predominant Pain, persistent. The report recommends that [the applicant] undergo 15 psychotherapy sessions and see a chronic pain specialist to assist him with his persistent pain and physical restrictions. [The applicant] reports that post-accident he is experiencing sleep issues, irritability, driving and passenger anxiety, sadness/depression and identifies as being 90% disabled from a psychological perspective as a result of the accident.

11The psychological report is opposed by Aviva's psychological report from Dr. Syed. In response, Aviva criticizes the veracity of Dr. Wagner's findings, arguing that the report diagnoses psychological impairments without conducting validity testing and solely on the basis of [the applicant]'s subjective self-reporting. Aviva argues that the findings of the two reports are irreconcilable because Dr. Syed conducted more testing, her testing involved validity measures where Dr. Wagner's did not, and Dr. Syed critically assessed [the applicant]'s self-reporting.

12While I am alive to Aviva's submissions, I find it difficult to ignore [the applicant]'s consistent reports of depression, flashbacks and psychological disability. On review of the medical documentation and clinical notes provided, I find that there is evidence of psychological complaints (depression, sadness, PTSD, sleep issues) and perhaps cognitive issues (memory loss, concentration issues, headaches) in [the applicant] post-accident. Indeed, I found Dr. Wagner's report and ultimate diagnoses to be reasonable and measured based on the documents in evidence, both clinical interviews with [the applicant], my understanding of [the applicant]'s history of complaints and the psychological impairments that are being alleged.

13With regards to [the applicant]'s psychological impairments, the parties disagree over the severity. Dr. Wagner made a diagnosis that his psychological impairments are significantly impacting his function post-accident. Dr. Syed opines that [the applicant] could be suffering from psychological distress but ultimately rules out a diagnosis based on the validity tests. I find the report of Dr. Syed captures many of the same complaints identified in Dr. Wagner's report, but the diagnoses differ considerably. Aviva argues that, despite the consistencies in [the applicant]'s self-reporting across both reports, the reality of his impairments is revealed by the psychometric testing, which suggests that [the applicant] is feigning a psychological impairment.

14I disagree. I find [the applicant] has provided sufficient evidence to demonstrate, on a balance of probabilities, that he suffers from psychological impairments that justify removal from the MIG in order to explore further with a professional. I follow the opinions of Dr. Wagner and the family physician, Dr. Saini, and find there is enough medical evidence, consistency in self-reporting and diagnoses to suggest that further exploration and, potentially, treatment for the various non-physical issues affecting [the applicant] post-accident is reasonable. I find the consistency of [the applicant]'s self-reporting overcomes the findings of Dr. Syed. For instance, I find her opinion that [the applicant] does not exhibit any clinical symptoms of depression, anxiety or post-traumatic stress in the face of [the applicant] consistently self-reporting the opposite to be somewhat disingenuous. I find the fact that [the applicant] incurred the cost of the psychological assessment in order to better gauge what he is struggling with to be a compelling indication that his concerns are legitimate and are genuinely affecting him. Incurring the cost, combined with his self-estimation of 90% disability from a psychological perspective, leads me to find that removal from the MIG is required.

15As a result, I am satisfied on a balance of probabilities that [the applicant]'s psychological impairments require further exploration and justify removal from the MIG.

Are the treatment plans reasonable and necessary?

16Having determined that [the applicant] should be removed from the MIG, it is necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary. Section 15(1) of the Schedule states that an insurer shall pay for all medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. [The applicant]. bears the burden of proof.

$2,200 for psychological assessment

17I find the treatment plan in the amount of $2,200 is reasonable and necessary. As detailed above, I find that the basis for [the applicant]'s removal from the MIG is based on his psychological impairments. Accordingly, I find [the applicant] is entitled to payment for the cost of the psychological assessment as it was incurred. On the evidence before the Tribunal, I found it reasonable and necessary for [the applicant] to have undergone an examination with a professional in order to achieve the goal of identifying the psychological impairments that have affected him since the accident, to identify potential avenues for treatment and to assess his prognosis for recovery. In my view, these goals are rather humble and achievable for the cost proposed, which is in line with the Superintendent's Guideline. Accordingly, I find it reasonable and necessary and payable.

$2,401.09 for physiotherapy treatment

$1,300.00 for physiotherapy treatment

18I find [the applicant]'s physical complaints centre around his pain, which is intermittent and not debilitating, as he is able to work and continue with his activities of daily living. While I accept that [the applicant] has lingering pain, I find that he has not demonstrated that further facility-based intervention will help him achieve maximal medical recovery or even that same has been beneficial. I find that further facility-based intervention is not reasonable and necessary to address physical impairments that, by all accounts, are predominantly minor.

CONCLUSION

19[The applicant] has demonstrated, on a balance of probabilities, that he sustained psychological impairments that justify removal from the MIG. Accordingly, [the applicant] is entitled to payment for the cost of the psychological assessment as it is reasonable and necessary and incurred.

20[The applicant] is not entitled to payment for either of the treatment plans for physiotherapy as they are not reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 22015 ONSC 3635