B.A. v. Aviva Insurance Company, 2020 CanLII 30397

B.A. v. Aviva Insurance Company

Citation: B.A. vs. Aviva Insurance Company, 2020 ONLAT 19-000972/AABS

In the matter of an Application pursuant to Ontario Regulation 34/10 under the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[B.A.]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Patricia Conway

APPEARANCES:

For the Applicant: Aftab Alam

For the Respondent: Sjawal Bhutta

HEARD: In Writing February 2, 2020

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on October 18, 2016, 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 applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant claims entitlement to chiropractic and physiotherapy services, along with orthopedic and functional impairment assessments proposed in several OCF-18s totalling $9,205.80, interest on that amount, and a special award under Regulation 664 enacted under the Insurance Act.

3The respondent has paid for chiropractic and physiotherapy services to the maximum amount allowed for a minor injury under the Schedule. The respondent has also paid for an orthopedic report, a psychological assessment and a functional assessment by independent experts. It has refused the applicant’s requests for more physiotherapy and chiropractic services on grounds they are not reasonable and necessary but has acknowledged that the applicant suffers psychological damage from the accident and now suffers from chronic pain syndrome. It has approved a request for psychological services. It has acknowledged that the applicant falls outside the minor injury guideline (MIG) because of his psychological problems and chronic pain.

4After reviewing all of the evidence, I find that the applicant in not entitled to the benefits he seeks in this application. There is thus no entitlement to interest or a special award.

ISSUES

5The issues in dispute in this proceeding are as follows:

i. Is the applicant entitled to the chiropractic services proposed in OCF-18 dated March 3, 2019 costing $2,965.00;

ii. Is the applicant entitled to the physiotherapy services proposed in the OCF-18 dated May 11, 2017 costing $2,252.00;

iii. Is the applicant entitled to the orthopedic assessment proposed in the OCF-18 dated March 29, 2018 costing $2,000;

iv. Is the applicant entitled to the Function/Impairment Assessment proposed in the OF-18 dated May 30, 2018 costing $1,988.80;

v. Should the applicant be awarded interest on the services he seeks;

vi. Are there grounds for a special award under Regulation 664?

LAW

6The applicant must prove that the benefits he claims are reasonable and necessary. He must satisfy the Tribunal of the following:

i. The treatment goals as identified are reasonable;

ii. The treatment goals will be met to a reasonable degree by the services proposed;

iii. The overall costs of achieving these goals are reasonable.¹

EVIDENCE

Applicant’s background

7The applicant emigrated from Pakistan as a young man. He was 67 when the accident occurred. His medical history indicates that he has Type 2 diabetes that he sometimes needs help to manage. He had a stroke in 2003 which led to hemiparesis on the left side. He has “improved” since then. The evidence is unclear if there is any residual impairment from the stroke. He lived with his wife in an apartment until late 2017, when they moved in with their son and his family, at least in part to receive the benefit of his care.

The accident

8The applicant was driving his vehicle with his seatbelt on. He had stopped at a red light and was rear-ended by another vehicle. He had his hands on the steering wheel and claims that he hit his head against the wheel. The airbags did not deploy. The applicant sat in his car for a few minutes. The other vehicle drove away but the applicant’s granddaughter, in the back seat, took a photo of its licence plate on her cellphone.

9The applicant took the vehicle to a body shop. The shop could initially find no damage but eventually replaced the bumper cover at a cost of $180.00.

10The applicant states that he felt dizzy immediately after the incident and felt pain in his shoulders and back. That evening he went with his son to a walk-in clinic reporting pain in his neck, lower and upper back and left shoulder.

11He had physiotherapy and chiropractic treatments starting a week after the accident, attending first twice a week and then once a week, until the cost reached $3,500. Then he stopped going because, he says, the insurer refused to pay for more. His evidence is that he felt little improvement as a result of these treatment sessions, but after he stopped going he felt worse.

12He says that he is still greatly affected by the accident. He is limited in his movements. He can do little of the housework he used to do. He has no social activities and spends much time alone. He has difficulty sleeping because of pain and has to take frequent naps during the day. He is anxious and depressed. These psychological issues are confirmed by reports as detailed below and are accepted by the insurer, as evidenced by its having agreed to pay for psychological counselling to address depression and chronic pain.

The Reports commissioned by the Insurer

Orthopedist: Dr. Abuzgaya

13The insurer retained an Orthopedic specialist, Dr. Abuzgaya, to examine the applicant and advise the insurer whether the requested services detailed above were reasonable and necessary. Dr. Abuzgaya diagnosed the applicant with cervical sprain, lumbosacral sprain and soft tissue injury to the left shoulder but found that the applicant demonstrated significant symptom magnification behaviour, i.e. he was exaggerating his injuries and self-limiting his abilities. Dr. Abuzgaya concluded that the applicant had minor soft tissue injuries only, and that further treatment was not necessary.

Psychologist: Dr. Mills

14The insurer commissioned a psychological assessment that was performed in May 2017 by Dr. Mills. He concluded that the applicant presented symptoms of acute psychological impairment. He reported that the applicant was severely depressed and suffered from mild anxiety. He expressed feelings of uselessness, was spending most of his time alone and a great deal of time in bed. The psychologist opined that the applicant’s injuries were not minor, because he really could not perform the tasks of daily living. The assessment recommended that the applicant needed a comprehensive rehabilitation program and psychotherapy. The insurer has approved psychotherapy, but the applicant has not yet received this.

Psychological: Dr. Ornstein

15The insurer retained another independent examiner, Dr. Ornstein, who in August 2017 examined and tested the applicant for three hours and 45 minutes, going through the “Structured Inventory of Malingered Symptomology” protocol. She concluded that the applicant was moderately depressed and mildly anxious. According to Dr. Ornstein, he demonstrated above average hypochondriasis. She recommended psychological treatment.

Chronic Pain: Dr. Wilderman

16The insurer also approved an assessment of the applicant for chronic pain by Dr. Wilderman. He reported that the applicant did suffer from chronic pain syndrome. The insurer has accepted this assessment and the applicant is not in the minor injury category for purposes of medical benefits.

Functional assessment: Dr. Mills

17A functional assessment has also been performed by Dr. Mills. This report is very detailed and thorough, going through each task the applicant must perform on a daily basis and where he needs help because of his limitations resulting from the accident. Dr. Mills concluded that the applicant is unable to perform many of his daily tasks and requires attendant care, and breaks down how many hours and minutes of attendant care are required on a daily and weekly basis.

Orthopedic: Dr. Kruger

18The insurer retained Dr. Kruger to examine the applicant and offer his recommendation on the further treatment the applicant is requesting. Dr. Kruger reported that he was unable to carry out any diagnostic tests of the applicant’s left shoulder or left arm since the applicant refused to perform the range of motion tasks for those areas because of the pain he anticipated it would cause him. Dr. Kruger recommended that the applicant should have no further treatment until an MRI has been performed on his left shoulder and his cervical and lumbar spine, to obtain some objective evidence of their condition. It appears that the applicant has thus far been unwilling to do this.

GP: clinical notes and records

19The only evidence from the applicant’s caregivers, apart from the statements made in the OCF 18’s, which are not evidence comes from the applicant’s general practitioner, whose notes and records were produced. In his submissions, counsel for the respondent points out that the clinical notes and records of the applicant’s general practitioner from 2014 through March 2018 do not mention the accident, nor any physical or other issues stemming from the accident. There is one note of a referral to physiotherapy in May of 2018, but no report from that referral. I find it inexplicable that the applicant did not discuss his injuries from the accident and their sequelae with his doctor. The applicant’s counsel does not address this issue in his submissions.

ANALYSIS

20I have briefly touched on all the medical evidence so that my decision considers the applicant’s request for medical benefits against the background of everything I have been given concerning his present physical and mental condition. The question I must decide is whether, within this context, the benefits claimed are necessary and their cost reasonable.

Chiropractic and physiotherapy services

21The absence of any but the smallest damage to the applicant’s vehicle suggests to me that the impact of the rear-ending was very minor. I am surprised that the impact was forceful enough to cause the applicant to hit his head on the steering wheel, especially when both hands were on the wheel and he was buckled in. I note that the appellant has not complained of any head or neck injury as a result of the impact, except for dizziness immediately following the collision. His ongoing complaints are about his middle and lower back and his left shoulder.

22I am also puzzled that the applicant did not go to his general practitioner after the accident. In fact, that doctor seems from his notes to have been unaware of the accident until May 2018. It appears from the notes that the applicant did not ask his doctor for analgesics, even when he was not getting any therapy and, according to him, the pain was getting worse. This leads me to question whether the appellant has exaggerated not just his limitations, but also the pain he is experiencing. The appellant has given no explanation of why he did not seek help from his general practitioner, either immediately after the accident or when his benefits under the minor injury category were cut off. Applicant’s counsel does not deal with this question at all in his submissions.

23The applicant’s failure to seek medical assistance from his own doctor for the physical injuries he claims to have suffered in the accident, together with the opinions provided by the insurer’s experts commenting that the applicant appears to be overstating or magnifying his physical injuries, together with the absence of any evidence to the contrary from the applicant and the evidence of the very slight damage done to his vehicle by the accident lead me to reason that the applicant’s impairment resulting from the accident is probably more psychological than physical.

24The evidence from independent examiners submitted by the insurer supports this view, as I shall now explain.

25I find the report of Dr. Abusgaya, on its own, difficult to rely on. He examined the appellant for only 40 minutes. He spoke to him through an interpreter, who spoke Urdu, rather than the appellant’s language. Although the languages are purportedly very similar, it is easy to make mistakes in translation of the doctor’s questions and the applicant’s responses. Dr. Abusgaya relies on his observations of the appellant to form the opinion that he is magnifying his injuries, pointing to things like the appellant’s sighing frequently, evidencing pain on the slightest touch, and other behaviours. I felt that it was possible the appellant’s noted behaviours may have resulted at least in part from his culture.

26However, the report of Dr. Ornstein is persuasive. Her examination was very long and very detailed, and the tests administered are well understood and widely accepted as useful in identifying patients who are, consciously or not, overstating their pain and consequent disability. Dr. Ornstein formed an opinion similar to Dr. Abusgaya’s. I find that these two reports, especially Dr. Ornstein’s give further credibility to the thesis that the applicant is suffering from psychological more than physical injuries. My reason for finding her report persuasive is as already noted, that she relies not on her own observation, but also on the results of evidence-based tests that she administered.

27Having come to the conclusion that the applicant’s impairment stems mostly from psychological issues, I cannot see how further physiotherapy and chiropractic services would help the applicant in his present state. I take into account that the authors of the two OCF-18s requesting those services state that the applicant has improved as a result of the treatments and that further treatment is necessary to complete the appellant’s rehabilitation. However, against this I note that the appellant himself is quoted several times as saying that these treatments were not effective. Treatments are not necessary within the meaning of the Act unless they stand a good chance of improving the appellant’s condition. The only people who assert that the services requested would improve the applicant’s condition are the service providers. Dr. Mills and Dr. Wilderman do recommend rehabilitation treatment in addition to psychotherapy, and ultimately rehabilitation may be advisable, but in my view the appropriate time would be after the applicant has had the benefit of psychotherapy so that, hopefully, the applicant’s present perception of himself as totally disabled can be investigated and mediated. In a more positive state of mind he may be able to benefit from rehabilitative treatment. I am convinced by the reports I have read that these treatments would not help him at present. I also think that a better assessment of what kind of rehabilitation would be most helpful to him can be made after, or in conjunction with, psychotherapy.

28I note as well, although this has not been remarked on in the reports, that the appellant had a stroke in 2003. This resulted in left side hemiparesis. It is said to be “improving”, but this statement offers no useful evidence regarding any residual limitations the appellant may have been experiencing before the accident occurred. I do not give any weight to this in my decision, however, as it was not raised by either party.

29I conclude that the applicant’s psychological issues resulting from the accident prevent him from accurately demonstrating his physical limitations resulting from the accident. Dr. Kruger opined that objective evidence of whether and what extent the appellant’s left shoulder and back have suffered injury from the accident is necessary before further treatment is undertaken. He recommended an MRI and I am persuaded that his is a sensible approach to obtaining the information that is needed for successful treatment.

Orthopedic assessment

30I see no necessity for another orthopedic assessment at this point, for two reasons. First, no fewer than three physicians have assessed the applicant’s condition from this standpoint. Second, Dr. Kruger was unable to perform an assessment on the applicant’s left arm and shoulder injuries because the applicant, anticipating pain, would not do range of motion exercises in these areas. There is nothing to suggest that the applicant would react any differently during another assessment.

Functional assessment

31As to the request for a functional assessment, in my view Dr. Mills’ lengthy functional assessment is clear and detailed on the limitations he witnessed in the appellant’s ability to perform his activities of daily living and the assistance he requires. There is no evidence before me that the applicant disagrees with the report. Given the thoroughness of that report and the absence of any criticism of it, a further report is not reasonable or necessary.

Interest

32The Schedule provides that the appellant is entitled to interest where the Tribunal finds that services that have been denied are reasonable and necessary. I have not found the services reasonable and necessary, so no interest is payable.

Special Award

33A special award is appropriate in cases where the insurer has unreasonably delayed or withheld payment. It is a stringent test. The denial must be unreasonable. Based on my reasons, above, the denial was reasonable, so no special award can be considered.

34Based on all of the evidence, I conclude that this appeal should be denied. The appellant has not satisfied the onus on him of proving that the requested services are reasonable and necessary.

35Accordingly, the application is dismissed.

Footnotes

1. 117-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309.