Released Date: 03/30/2020
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:
[D.Y.]
Applicant
and
Aviva General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Patricia Conway
APPEARANCES:
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD: In Writing
February 26, 2020
REASONS FOR DECISION
1The applicant was involved in a motor vehicle accident on November 16, 2016. She sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule).
2The respondent has approved some accident benefits, including some treatments and Non-Earner benefits, until July 26, 2018. However, many of the treatments and assessments recommended by the applicant’s doctors and caregivers were denied, and accident benefits after July 26, 2018 have been refused. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the Tribunal) for resolution of the denied benefits.
ISSUES IN DISPUTE: ENTITLEMENT TO BENEFITS AS FOLLOWS:
3Non-earner benefits of $185 per week from July 27, 2018 to date and ongoing.
4Benefits submitted in a treatment plan (OCF 18) dated April 6, 2017 and denied on April 20, 2017 as follows:
a. Chiropractic treatment of $5,880 recommended by Spinetec Health Care Solutions (Spinetec);
b. Neurological assessment costing $7,401.50 recommended by Meditecs Independent Medical Examinations (Meditecs).
5Benefits recommended in a treatment and assessment plan (OCF-18) dated September 20, 2018 and denied on September 28, 2018 as follows:
a. Chronic pain assessment costing $2881.50 recommended by Spinetec;
b. Functional abilities evaluation costing $2,486 recommended by Spinetec.
6Benefits recommended in treatment plan dated December 6, 2018 and denied January 3, 2019 as follows:
a. Social work assessment costing $2,495.17 recommended by Spinetec. The insurer’s consultant has recommended approval of $1,695.23 for a part of the assessment;
b. Catastrophic impairment (CAT) assessment costing $13,739 recommended by Novo Medical Services. The insurer’s consultant has recommended approval of $12,400 for parts of the assessment.
7Benefits recommended in a Treatment Plan dated January 15, 2019 and denied on January 23, 2019 as follows:
a. Concussion management costing $4,457.15 recommended by Spinetec;
b. Physiotherapy treatment costing $5,927.04.
8Is the applicant entitled to interest on any overdue payment of benefits?
9Is the applicant entitled to an award under Ontario Regulation 664 because the respondent has unreasonably withheld or delayed the payment of benefits?
DECISION
10For the reasons set out below, I find that the applicant is entitled to the following benefits:
a. Non-earner benefit from July 26, 2018 to present, to the extent that the benefit is available for a non-catastrophic injury i.e. maximum of two years with a four-week waiting period;
b. Chiropractic treatment costs $5,880
c. Physiotherapy treatment costs $5,927.04
d. Concussion management costs $4,457.15
e. Chronic pain assessment costs $2,000
f. Functional abilities assessment costing $2,000.00
g. These are in addition to the cost of benefits and assessments already recommended for approval by the insurer’s consultants, totaling $21,167.13.
11The applicant is entitled to interest at the prescribed rate if the cost of treatment has been incurred by the applicant. Where they have been incurred by her (e.g. for chiropractic and physiotherapy) the insurer is liable to pay interest at the prescribed rate under section 51 of the Act from the date payment was made by the applicant until the date of payment by the insurer.
12The applicant is entitled to an award under Ontario Regulation 664 equal to one-third of the amount for medical and rehabilitative benefits and assessments approved by the insurer’s assessors, $21,167.13. That percentage reflects the year’s delay in approving treatment and assessment for the applicant recommended by the insurer’s experts.
BACKGROUND
13The applicant was 27-years-old at the time of the accident. She was living with her parents, boyfriend and daughter, aged six. She was attending Conestoga College in the first year of a legal assistant program. According to all the evidence, she was a physically and emotionally healthy young mother doing well at her studies. She had no existing physical, mental or emotional problems. She was outgoing and enjoyed socializing with friends, reading, swimming, baking and watching movies. She was fully independent in her self-care and in childcare and an equal partner with her mother in carrying out household chores.
14On November 16, 2016, she was properly strapped into the front passenger seat of a car that was entering a roundabout. The car started to enter, then stopped because another vehicle entered the roundabout in front of them. A third car entered the roundabout behind them, hitting the applicant’s vehicle in the right rear passenger side. The impact caused the applicant to hit her head on the right side of the car. She did not lose consciousness, but on attempting to exit the vehicle she became dizzy and had to sit back down. The air bags did not deploy, and the car was drivable, so the driver, her boyfriend, continued on to a garage, where the car was declared a write-off.
15Within the next couple of days, the applicant experienced intense headaches on the right side, neck and shoulder pain on the right side, vision blurring and sensitivity to light, humming in her ears and nausea. She attended a clinic and was diagnosed with a concussion and soft tissue injury to her upper spine. She was prescribed an anti-inflammatory and analgesics, but in a short time elected to use only over-the-counter Tylenol because the other drugs made her drowsy.
16She returned to school but found that her memory and concentration were poor. Her grades plummeted and she decided not to return for the second year of the program. She became pregnant with twins born in October 2017. Because of the pregnancy, the treatment modalities she was prescribed were conservative, primarily physiotherapy and chiropractic. She found that these gave her temporary relief and improvement, but that activity intensified the pain. She was able to do some childcare and household tasks, but only with difficulty and with pain.
17Now, more than three years after the accident, she still feels pain that slows her down, makes her tired and irritable and prevents her from participating fully in child care. Over time, her vision problems have abated, and her headaches have at times become less frequent and less severe, although at other times she states that they are more frequent and more severe. She has not been able to return to school. Moreover, she has ceased all recreational activities and stays at home. She cannot be a passenger in a car without great anxiety. She has been diagnosed by both her own caregivers and consultants retained by the insurer as having post- concussion symptoms, a mild neurological disorder, and is noted to be suffering from anxiety and depression. She is in constant pain and discomfort and cannot sleep except for short periods of time.
18She has been assessed by six consultants retained by the insurer a total of 15 times. She has been assessed by her own caregivers many times. Since the accident, she has attended physiotherapy and chiropractic treatment once or twice a week, presumably at her own expense. The insurer has paid less than $1,000 in medical benefits notwithstanding having recognized that her injuries fall outside the minor injury guidelines.
19In the early summer of 2018, the insurer paid her non-earner benefits from the day she submitted a disability certificate until July 26, 2018, with the exception of a three-month period during which the benefit was withheld because she had failed to attend for an independent evaluation set up by the insurer pursuant to section 44 of the Act. She did attend for the independent examination when another appointment was arranged by the insurer.
LAW AND ANALYSIS
Non-earner benefit
20The test for eligibility for the non-earner benefit is in section 12 of Schedule: that test requires a “complete inability to carry on a normal life within 104 weeks of the accident.”
21Heath v Economical Mutual Insurance Company, 2009 ONCA 391 (Heath) is widely considered the seminal case on the meaning of “complete inability.” Several points made in the case are relevant here. The onus is on the applicant to prove she is completely unable to engage in substantially all of her pre-accident activities. To make this determination, all of the pre-accident activities in which she ordinarily engaged should be considered.
22A qualitative interpretation of engagement in normal activities is called for. The focus in not merely on physical ability but on any restrictions the applicant experiences. If pain is the restrictor, the question is whether the degree of pain practically prevents the applicant from performing these activities. I have kept these principles in mind in my analysis.
23The respondent commissioned reports from five professionals to opine whether the applicant met the test for “complete inability”: two general practitioners, a neurologist, and two occupational therapists. Despite acknowledging that the applicant was in pain, that she had weakness on her right side, that she had difficulty with memory, they all concluded that she was not “totally disabled” and not only recommended denying non-earner benefits, but also recommended against any assessment or treatment other than exercise and returning to her customary lifestyle.
24Spinetec, one of the applicant’s caregivers, in a report supporting the applicant’s disability certificate in April 2017, reported “limited ability to concentrate and focus on many activities of daily living: cooking, cleaning, personal hygiene and dependent care”. The consultant further noted that everything is affected by the applicant’s limited ability to sleep at night, a result of her constant pain.
25I find the Spinetec report, supported as it is by medical evidence regarding her condition, convincing. I do not find the reports of the insurer’s consultants compelling. They are deficient in my view because their reports appear to rely for their conclusions and recommendations on only the applicant’s physical ability to perform tasks in a “test” environment. They do not factor into their analyses her pain, her limited energy, her limited ability to concentrate and focus and her poor memory.
26For example, Dr. Kopyto, a general practitioner, spent only 45 minutes with the applicant, and then reported that while she is in pain, she has uncomplicated soft tissue injury, so no therapy is recommended. Dr. Khaled, another general practitioner, comments that the applicant should not be approved for any prolonged facility treatment, because same is not recommended for “this type of injury” because it may be harmful. He acknowledges that she is in pain, but states that the pain is “benign.” I believe that these comments suggest the doctor is focusing on the nature of the diagnosed injury (i.e. whiplash, sprain and strain of spine and shoulders) rather than on the experience of the particular patient before him.
27Dr. Desai, a neurologist, read the reports of the other consultants retained by the insurer and performed a very limited assessment. He stated that he observed no neurological symptoms in his examination of the applicant and opines on that basis that she is not “completely disabled.” Yet at the same time he recognizes that she has cervicogenic headaches which are a direct result of the whiplash she sustained in the accident. I conclude that his is a very narrow opinion confined to neurological symptoms. He is ignoring any other evidence of her limitations.
28The two occupational therapists who assessed the applicant pursuant to s. 44 independent examinations place importance on the applicant’s physical ability during a short test, and do not consider her lack of endurance, her physical pain, or her inability to concentrate. In my view, these are all factors that these specialists should have factored into their determination. In particular, although they acknowledge her pain, they give no weight to it in arriving at their conclusions. Neither of them factors in the effects of prolonged or repetitive movement, nor the impact on her functionality of her inability to concentrate and memory issues.
29Since the accident occurred, the applicant has consistently reported debilitating pain, including headaches, right-sided neck pain, difficulty living her arms above shoulder height, shoulder pain, poor sleep, difficulty bending. She is noted to have post-concussion symptoms in May 2017. This diagnosis is reiterated in July and August 2017, during her pregnancy. Because of her pregnancy, she is discouraged from having an MRI. Dr. Hosseini, a consultant who saw her in August 2017 notes that because of her pregnancy she cannot be treated pharmacologically, and her treatment is limited to physiotherapy.
30The applicant has provided ample evidence of her continuing disability. For example, a report from Dr. Vitelli, a psychologist, dated October 16, 2018, records that the applicant reported headaches as severe and more frequent than in past weeks. He notes that she is sensitive to light and noise and has fluctuating moods. She has difficulty turning her head, bending, carrying, lifting or standing for prolonged periods. She has difficulty sleeping and her appetite is poor. Her sleep is very disturbed by nightmares and flashbacks. She has high anxiety as a result of which she does not go out. She is anxious, depressed, angry, irritable. She is unable to perform repetitive tasks. She cannot walk or swim as she used to, and she is unable to return to school. To me, these precise details make clear that her experience of everyday life has been profoundly changed and limited by her injuries.
31There is also ample evidence that she is suffering from psychological injuries as a result of the accident. She reported anxiety to Dr. Kopyto during a s. 44 assessment in May 2017. In 2018, Dr. Vitelli diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as a phobia related to driving. Dr. Lewis, assessing her for the insured in August 2018, came to the same conclusion. Dr. Lewis assessed the applicant again in 2019 and diagnosed her with major Depressive Disorder, phobia, and Mild Neurocognitive Disorder due to Traumatic Brain Injury. He recommended that the insurer approve a Treatment Plan put forward by the applicant for psychological treatment.
32I am satisfied that the applicant remains completely unable to carry on her normal life at present. She cannot return to school; her ability to care for her children is limited; her social life is non-existent because of her pain and anxiety, and she is unable to enjoy any of her pre-accident leisure activities such as walking and swimming or even sitting in one place long enough to watch a movie.
33In December 2018, Novo Medical Services submitted to the respondent a request for a detailed and comprehensive CAT assessment. Dr. Khaled, asked by the insurer to comment on the reasonableness and necessity of a comprehensive assessment, agreed that a CAT assessment by a physician, a psychiatrist, an occupational therapist and a neurologist were necessary and reasonable, and that the fee for completing a catastrophic impairment assessment should also be paid. I find that Dr. Khaled’s view implicitly contradicts his position in earlier reports. He appears to have come to the view that the applicant has injuries which are more serious than he reported earlier
34I find that the applicant has met the onus on her to prove her entitlement to a non-earner benefit. As she has not qualified for CAT benefits at this juncture, her entitlement is limited to a total of 104 weeks under the Schedule.
Medical/Rehabilitation Benefits
35Sections 15(1)(b) and 16(1) of the Schedule state that Medical/Rehabilitation Benefits are payable for all reasonable and necessary medical and rehabilitation expenses incurred by or on behalf of the insured person as a result of the accident.
36Rehabilitation benefits are for the purpose of reducing or eliminating the effects of any disability resulting from the impairment caused by the accident or to facilitate the person’s reintegration into their family, the rest of society and the labour market.
37Section 18 of the Schedule limits the amount to be paid to an insured person for these benefits to $65,000 unless a catastrophic impairment has been sustained.
38The material indicates that Dr. Lewis has recommended approval of a benefit of $4190 for 12 weeks of therapy with a social worker to address the applicant’s psychological impairments, requested December 6, 2018 and denied by the insurer January 3, 2019.
39He has also recommended approval of a psychological assessment costing $2,881.50, requested on April 6, 2017 and denied by the insurer on April 20, 2017.
40He has also recommended $1,695.23 for a Social Worker assessment requested on December 6, 2018 and denied January 3, 2019. The total amount recommended was $4,190.40. The denied portion of $2,495.17 is under appeal.
41Dr. Khaled recommended that the insurer agree to pay $12,400 of $26,139.00 requested by Novo on December 7, 2018 for a comprehensive CAT Assessment. The applicant is claiming the balance.
42My decision will deal with all of the items raised by the applicant in its application.
Chiropractic treatment $5808
43Spinetec has advocated this treatment consistently since their first correspondence with the insurer. The reports indicate that the applicant began attending for chiropractic and physiotherapy services shortly after the accident. The applicant is reported as stating that they do alleviate her pain in the short term, although the pain returns with repetitive physical activity and anxiety. The insurer bases its refusal to approve this treatment on the opinions of two physicians, Dr. Kopyto and Dr. Khaled Both acknowledge that the applicant has pain but recommend no treatment. Dr. Khaled’s later report and recommendations imply that he has changed his opinion and recognizes the applicant’s condition as serious and in need of further assessment. The insurer also relies on reports by two occupational therapists who note that they see no impairment in her range of motion, but neither of these considers the applicant’s pain nor her mental and emotional distress. They are for that reason not convincing. In my view, treatment that relieves her pain will improve her quality of life and decrease her mental and emotional distress. The treatment is necessary for this reason and considering the benefits it will provide, the cost is in my view reasonable.
Physiotherapy treatment $5927.04
44This treatment modality has also been recommended consistently since the accident occurred. The applicant is reported as continuing to have weekly treatments with some good effect. Spinetec advocates it and Dr. Lewis, a specialist retained by the insurer, has supported approval of the treatment. I surmise that it has been acknowledged by both sides as reasonable and necessary. I approve it.
Concussion Management $4457.15
45None of the insurer’s consultants has opined on this recommendation. However, both Dr. Vitelli on behalf of the applicant and Dr. Lewis on behalf of the insurer state that the applicant is experiences debilitating post-concussion symptoms. In view of the applicant’s continuing symptomology as described above in paragraph 32, concussion management appears to me a reasonable and necessary treatment. It is necessary as the applicant’s symptoms have not improved and indeed appear to have worsened over three years, and the cost is reasonable.
Examinations/Assessments
46The same test of reasonableness and necessity applies with respect to examinations or assessments. However, the cost of each assessment is limited by s 25(5) of the Act to $2,000.
Psychological assessment: $2,881.50
47This has been found to be reasonable and necessary by Dr. Lewis, reporting to the insurer. As both parties agree, this assessment is approved. However, the Schedule, s 25(5) limits the cost of any single assessment to $2,000. The amount approved is therefore limited to $2,000.
Neurological assessment $7401.50
48I have earlier expressed my view that Dr. Desai ‘s neurological assessment in 2018 was very narrow. In addition, the applicant’s ongoing symptoms of traumatic brain injury are concerning. She was unable to have an MRI in 2017 because she was pregnant. I think that a comprehensive neurological assessment is reasonable and necessary, given her symptoms of traumatic brain injury. However, under s 25(5) of the Act, the insurer’s obligation to pay for any single assessment or examination is limited to $2,000 so the amount to be paid for this assessment must be limited to $2,000 per examination and report. I am unable to be more precise, because the proposed assessment has not been broken down into component parts.
Chronic Pain Assessment $2,881.50
49The applicant has established that her pain is a persistent issue at the centre of her health problems. The pain, according to consultants for both parties, has carried on well beyond the norm for similar injuries. It is telling that Spinetec, as early as April 2017, raised the potential of a chronic pain syndrome in light of the applicant’s reported symptoms. Dr. Khaled was asked to opine on the reasonableness and necessity of this assessment. In his report, he explained that in his view the pain is benign and will go away with daily exercise and return to pre-accident activities. He was evidently incorrect, and implicitly recognized this later -when he supported further assessments. I believe this assessment is necessary to any improvement in the applicant’s condition. Pursuant to s 25(5) of the Act, I limit the amount payable by the insurer to $2,000.
Social Work Assessment $4,190.40
50The cost of this assessment was considered by Dr. Lewis in his 2018 report to the insurer. Dr. Lewis recommended approval of 12 sessions of psychological therapy with a social worker. It appears likely to me that there is some degree of overlap between this therapy with a social worker and the social work assessment. In particular the therapy would include at a minimum the psychological elements of a social work assessment. I therefor limit the cost of this assessment to the amount recommended by Dr. Lewis, which is $1,695.23. The balance of $2,295.17 is denied.
Functional Abilities Evaluation (FAE) Assessment $2,486.00
51The comprehensive CAT assessment proposed by the applicant includes a FAE. Dr. Khaled’s recommendation to the insurer regarding what parts of the CAT assessment should be approved does not include the FAE testing. I am concerned that the OT assessment Dr. Khaled does recommend may not consider the applicant’s abilities over a prolonged period of time, such as an hour, nor her abilities when carrying out repetitive actions. (Neither of the occupational therapists used by the insurer, Mr. Sharma and Mr. Adam did so.) Therefore, I believe that this evaluation is necessary to make an accurate assessment of the applicant’s limitations. The amount the insurer is liable to pay is however limited to $2,000 by virtue of s. 25(5) of the Act.
Catastrophic Impairment Assessment (CAT)$26,139
52Dr. Khaled’s recommendations with respect to this assessment approved six of the 10 individual components of this assessment, totaling $12, 400. These are:
a. CAT assessment by GP
b. Whole person impairment rating by GP
c. Psychiatric CAT part 1;
d. CAT assessment by an occupational therapist at home
e. Situational assessment for CAT by an occupational therapist;
f. CAT assessment by a neurologist.
53I agree with Dr. Khaled’s recommendations. He provides reasons for the necessity of each of the components that appear to me well reasoned and persuasive. These elements of the assessment should be carried out.
54The Treatment Plan asks that the following additional assessments by approved:
a. CAT assessment by a social worker: Dr. Khaled states that a social worker is not authorized to carry out a CAT assessment. I do not know if this is the case. However, I have already approved extensive psychotherapeutic therapy with a social worker. I think a CAT assessment by a social worker would be redundant. I would suggest that the assessment report by the social worker who carries out the psychotherapy with the applicant should ensure that his/her report addresses the CAT issue.
b. File review by a chiropractor: I have ordered extensive chiropractic therapy and expect that the report that results will be based on a complete review of the chiropractic files on the applicant. I recommend that the chiropractor should include in his report analysis relevant to a CAT assessment. A separate file review Is not necessary.
c. Functional abilities examination by a chiropractor for purposes of a CAT assessment: I have already approved a FAE assessment. An additional assessment for CAT purposes would be redundant and is unnecessary. The FAE assessment that has been approved should address the CAT issue.
d. Neuropsychological CAT part 1 and part 2: I have approved a neuropsychological assessment but have limited the cost to $2,000. But the Treatment Plan called for an assessment costing more than $7,000. I am concerned that the $2,000 will not allow sufficient attention to the CAT analysis. I have stated that I believe the neurological element is important because of the ongoing post-concussion symptoms displayed by the applicant (dizziness, nausea, headaches, loss of focus, severe headaches). Therefore, I order that part two of the Neuropsychological CAT assessments should be carried out, limited to a cost of $2,000.
e. Psychiatric assessment part 2: I agree with Dr. Khaled that the Cat assessment can be limited to part 1.
55In summary, I increase the amount approved for the CAT assessment by Dr. Khaled $2,000 to 14,400.
56Dr. Khaled declines to stipulate any amount payable for travel and preparation of forms OCF 18 and 19. I have no information on how these amounts were calculated or what they represent, and therefore I will not approve them.
CONCLUSION
57After considering all of the evidence and the submissions of the parties, I have determined that:
a. The applicant is entitled to non-earner benefits of $185.00/week for the balance of 104 weeks post accident.
b. The applicant is entitled to medical and rehabilitation benefits, including examinations, as broken down and set out in my decision.
c. The applicant is entitled to interest on all amounts she has actually paid for medical examinations and treatments I have found to be approved, in accordance with s. 51 of the Act from the date of her payment to the date she is reimbursed by the insurer.
d. The applicant is entitled to interest on her non-earner benefits at the prescribed rate from the date each amount of $185.00 was payable to the date of payment by the insured. I order this because payment of these benefits was to occur over time, week to week. Therefore, the interest payable on the first payment, which was due in October 2017, will be greater than on the last payment, due two years after the accident, on or about November 16, 2018.
e. The applicant also requests a special award. This is ordered in cases where the conduct of the insured has been unreasonable or wrongly motivated. The insurer in this case sought out independent advice from practitioners, and it is reasonable for the insurer to rely on the advice it received, in my view. I note that Dr. Vitelli told the insurer in his October 2018 report that the applicant was completely unable to perform her ordinary pre-accident tasks. However, this opinion was countered by several other reports. The insurer did follow up by requesting further reports. By mid-2019, when this application was launched, I find that the insurer had enough evidence from its own experts that the applicant was suffering from chronic pain, that she had a psychological impairment, and that she needed chiropractic therapy and physiotherapy. Based on that evidence and the recommendations of its retained specialists, the insurer should have approved payment of everything recommended by their specialists rather than waiting for the results of a hearing. The applicant has had to endure another year of pain. I do not doubt that her complete recovery has been adversely impacted by this. She has also had the expense of retaining a lawyer to present her case.
f. Therefore, I order that the insurer shall pay a special award equal to 33% of the amounts the insurer is required to pay by this order.
DATE OF ISSUE: March 30, 2020
__________________________
Patricia Conway
Adjudicator