Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: S.F. vs. Aviva Insurance Canada, 2020 ONLAT 19-002415/AABS

Tribunal File Number: 19-002415/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:

S.F. Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES: Counsel For the applicant: Anthony Paslat Counsel for the respondent: Alexander Hartwig

HEARD in writing: November 15, 2019

OVERVIEW

1The applicant, S.F, was injured in an automobile accident on November 16, 2016 (“2016 accident”). S.F. sought benefits pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), from the respondent, Aviva Insurance Canada (“Aviva”).

2Aviva denied S.F.’s claims because it had determined that S.F.’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).¹ As a result, S.F. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on July 10, 2019 and the matter proceeded to a written hearing.

ISSUES

4The disputed claims in this hearing are:

(i) Did S.F. sustain predominantly minor injuries as defined under the Schedule?

(ii) Is S.F. entitled to a medical benefit in the amount of $2,947.77 for occupational therapy services recommended by Functional Ability in a treatment plan (OCF-18) submitted on July 7, 2017 and denied on October 20, 2017?

(iii) Is S.F. entitled to a medical benefit in the amount of $3,564.76 for physiotherapy services recommended by Apollo Physical Therapy Services in a treatment plan (OCF-18) submitted on August 21, 2017 and denied on October 20, 2017?

(iv) Is S.F. entitled to receive payment for the cost of examinations in the amount of $2,200.00 for a psychological assessment recommended by Ricci & Associates in a treatment plan (OCF-18) submitted on October 10, 2018 and denied on November 6, 2018?

(v) Is S.F. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, and on a balance of probabilities, I find that:

(i) S.F. did not sustain predominantly minor injuries as a result of the accident and that she is removed from the MIG as I find she suffers from chronic pain syndrome and a psychological impairment (specific phobia, situational, vehicle-related).

(ii) S.F. is not entitled to a medical benefit in the amount of $2,947.77 for occupational therapy services recommended by Functional Ability in a treatment plan (OCF-18) submitted on July 7, 2017 and denied on October 20, 2017.

(iii) S.F. is entitled to a medical benefit in the amount of $3,564.76 for physiotherapy services recommended by Apollo Physical Therapy Services in a treatment plan (OCF-18) submitted on August 21, 2017 and denied on October 20, 2017.

(iv) S.F. is entitled to receive payment for the cost of examinations in the amount of $2,200.00 for a psychological assessment recommended by Ricci & Associates in a treatment plan (OCF-18) submitted on October 10, 2018 and denied on November 6, 2018.

(v) S.F. is entitled to interest in accordance with s. 51 of the Schedule.

Background

6S.F.’s vehicle was stopped in traffic when it was rear-ended by a pick-up truck carrying a load of aluminum beams and towing a flatbed trailer carrying six large concrete blocks. Her vehicle then impacted the vehicle in front of her.² Paramedics placed her on a backboard and put a cervical collar around her neck, and she was transported by ambulance to the hospital. There was conflicting information regarding the speed the pick-up truck was traveling when it rear-ended S.F.’s vehicle. The paramedic call report noted it was traveling 50 kph.³ The emergency room (“ER”) report noted the truck was traveling less than 10 kph, yet elsewhere in the ER report it was noted the truck was traveling more than 10 kph. The ER report further noted that S.F. could not turn her neck. An x-ray of the cervical spine⁴ noted a loss of cervical lordosis but no fracture. The estimated cost to repair S.F.’s vehicle was just under $11,000.00.⁵ On a balance of probabilities, and based upon the evidence noted above, including the mechanism of injury, the impairment to S.F.s cervical spine, and the damage to S.F’s vehicle, I accept that the truck which rear-ended S.F.’s vehicle was traveling in excess of 10 kph.

7On February 6, 2018, S.F. was involved in a subsequent motor vehicle collision. The emergency room report from that incident noted she hit her head on the vehicle window and that she sustained injuries to her neck and back. S.F. was involved in two other motor vehicle collisions prior to the 2016 accident. One occurred on August 31, 2013, for which she received $215.00 in medical benefits, and the other occurred on June 29, 2015, for which she received $1471.00 in medical benefits. In this case, the application filed with the Tribunal is for the 2016 accident.

Causation

8Within its submissions, the respondent raised the subsequent and prior motor vehicle collisions, and noted the injuries sustained by S.F. The respondent made no argument regarding the test for causation. I find the applicant meets the test for causation under the “but for” test and that the applicant’s current impairments are as a result of the 2016 accident. I rely on the Supreme Court of Canada case of Clements v. Clements⁶ in support of this conclusion. I find the mechanism of injury to be consistent with the details of the 2016 accident. I find S.F. sustained significant impairments to her neck and back in the 2016 accident. I am not persuaded these injuries had resolved prior to her being involved in the 2018 motor vehicle collision. As a result, I accept that she developed chronic pain syndrome and a psychological impairment as a result of the 2016 accident. I have provided further analysis below.

ANALYSIS

Did S.F. sustain predominately a minor injury?

The Minor Injury Guideline (“MIG”)

9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the Schedule.

10Section 18(1) of the Schedule limits entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

11The onus is on S.F. to prove that her injuries fall outside of the MIG.⁷

12S.F.’s position is that the injuries she sustained as a result of the 2016 accident warrant her removal from the MIG. These injuries include chronic pain syndrome and a psychological impairment (phobia, situational, vehicle-related).

13Aviva argues that S.F. sustained soft tissue injuries as a result of the 2016 accident which do not warrant her removal from the MIG. Additionally, Aviva argues that she sustained further injuries to her neck and back as a result of the 2018 motor vehicle collision, and that she has been inconsistent with information she reported to medical assessors.

Chronic Pain Syndrome

14On a balance of probabilities, I find S.F. suffers from chronic pain syndrome as a result of the injuries she sustained from the 2016 accident which warrant her removal from the MIG. I find the injuries to her neck and back stemming from the 2016 accident had not resolved within 20 months by the time she underwent a chronic pain assessment with Dr. M. Friedlander in August 2019.⁸ I am persuaded by the findings and conclusions reached within Dr. Friedlander’s report. The physical findings, restrictions with movement in her neck, and subjective pain complaints are consistent with what was evidenced within a July 2017 report issued by Dr. D. Marion, chiropractor. Her subjective pain complaints and restrictions with her neck and back are also noted in the October 2017 insurance examination (“IE”) assessment of Dr. M. Aiello. I find this evidence persuasive that S.F.’s impairments to her neck and back had not resolved by the time S.F. was involved in the 2018 collision. While the respondent submitted S.F. was paid $1,605.41 in medical and rehabilitation benefits relating to the 2018 collision, I am not persuaded that the 2018 collision is the cause of S.F.’s ongoing impairments. This is because of the mechanism of the injury sustained from the 2016 accident, and the chronicity of the applicant’s symptoms with her neck and back, which I do not accept had resolved prior to the 2018 collision.

15S.F. relies on her own assessment report issued by Dr. D. Marion, chiropractor,⁹ who diagnosed her with whiplash injury, end plate disc herniation in C4-C6 as noted in the MRI, C3-6 discogenic pain pattern on the right, myofacial pain complex, and segmental sensitization in the thoracic and lumbar spine. Dr. Marion further noted S.F. demonstrated painfully restricted cervical extension in combination with end range pain throughout her cervical spine. A compression test was negative for nerve root impingement in her cervical spine. Dr. Marion noted her injuries are not appropriate for treatment within the MIG. I am persuaded by Dr. Marion’s report as his physical findings provide confirmation of the information S.F. self-reported during her MRI one month earlier.

16The respondent relies on the IE report of Dr. M. Aiello, physician.¹⁰ S.F. reported to Dr. Aiello that her physical symptoms remained the same since receiving treatment for the 2016 accident. His report noted there was tenderness to touch on the left side of her cervical spine and reduced lateral rotation. The muscles on both sides of her lumbar side were tender to palpation. He diagnosed S.F. with mild cervical and lumbar muscle strain. He further noted the impairment of the reduced range of motion in the lateral rotation of her cervical spine was temporary, and that her cervical and lumbar injuries sustained in the 2016 accident could be treated within the MIG. Dr. Aiello issued an addendum report, dated October 9, 2019, and noted his original findings remain unchanged.

17I also find that S.F. was not experiencing any ongoing impairments to the areas of her neck and back prior to the 2016 accident. This is because upon review of Appendix A contained within Dr. Friedlander’s 2019 report which he noted he had reviewed, contained an OHIP summary referencing sprains/strains in the neck/low back coccyx in August 2012. The OHIP summary noted no further musculoskeletal entries for these areas prior to the 2016 accident.

18I accept that there was a deterioration in S.F.’s neck, back, and right shoulder following the 2016 accident. I prefer the report of Dr. Marion over Dr. Aiello’s reports. In 2017, both assessors found S.F. had restricted movement within her neck, though Dr. Aiello concluded it was temporary. I also find her impairments had not resolved by the time she underwent a chronic pain assessment by Dr. Friedlander in August 2019. I accept the finding noted within Dr. Friedlander’s report as he noted a direct causal relationship with the 2016 accident and S.F. developing chronic pain syndrome. Her impairments from the 2016 accident had not resolved in 2017 when she was assessed by Dr. Marion and Dr. Aiello, and physiotherapy treatment had ceased between May-October 2017. As a result, I accept on a balance of probabilities the conclusion reached by Dr. Friedlander that the 2016 accident caused S.F. to develop chronic pain syndrome.

19I am persuaded by Dr. Friedlander’s 2019 report. His report was thorough, it included an analysis of S.F.’s subjective complaints, a physical examination, a documentation review, and he was aware of the 2018 collision. Dr. Friedlander noted that S.F. had a reduced range of motion in all directions in her neck and had limited abduction with both shoulders and limited flexion in her lower back which is consistent with limitations in range of motion also noted by Dr. Marion and Dr. Aiello in 2017. S.F. further reported to Dr. Friedlander she can no longer do the cooking, cleaning, and laundry in the home, and cannot do any lifting. She continues to work but requires frequent breaks and stretches to remain comfortable. She also reported anxiety and fear while driving.

20The CNRs from CBI Physiotherapy and Rehabilitation Centre (“CBI”) from November 28, 2016 to February 8, 2017 noted that, with physiotherapy, S.F. was making progress with being able to straighten her neck. Treatment at CBI stopped in May 2017. The following month, an MRI of the cervical spine¹¹ noted a 60% improvement, but that S.F. was not progressing as expected. The report further noted a straightening of the normal lordosis and multi-level disc herniation from C4 - C6 and limited disc desiccation. A letter dated August 1, 2017 was issued to the respondent by Steve Savage,¹² the treating physiotherapist at CBI from January 4 - May 8, 2017. The letter noted S.F.’s injuries were treatable within the MIG and was based on a review of documentation including: paramedic report, emergency report, x-ray, MRI, and the records of Dr. Neal, family doctor. I afford little weight to this letter because the records of Dr. Neal were not produced for the hearing, so I am unable to ascertain what was noted within them. Further, the last CNR produced from CBI, dated February 8, 2017, noted improvements with S.F. being able to straighten her neck and that she was feeling better. I do not know the effects of physiotherapy treatment beyond that date and what the basis is for Mr. Savage reaching his conclusion.

21Through its reply submissions, S.F. introduced a Minor Injury Discharge report (OCF-24), dated February 1, 2017, prepared by Steve Savage. The report noted the applicant’s injuries may be non-MIG. I have not considered this document. I find there would be prejudice to the respondent which outweighs potential prejudice to S.F. by accepting this document for the hearing. The respondent was not afforded the opportunity through its responding submissions to be able to properly address it.

22I find the Tribunal’s decision in 17-008413 v. Aviva General Insurance¹³ relied upon by the respondent is not persuasive. In that case, the adjudicator was not persuaded by the chronic pain assessment report diagnosing the applicant with chronic pain. The report was almost four years old at the time of the hearing and the adjudicator did not find the applicant suffered any functional impairment. This case is distinguishable. Dr. Friedlander’s chronic pain report is approximately seven months old and I have accepted that S.F. suffers from chronic pain syndrome. I accept that the limitations with her neck, back, and right shoulder had not resolved at the time Dr. Friedlander assessed her in 2019. I find this evidence supports she was suffering from an ongoing functional impairment as a result of the 2016 accident.

Psychological Injuries

23I find S.F. sustained a psychological impairment: specific phobia, situational, vehicle-related as a result of the 2016 accident. I am persuaded by the psychological reports of Dr. Gerber and Dr. Payne.¹⁴ Both assessors concurred that the level of anxiety S.F. experienced was significant enough to warrant the diagnosis of a phobia related to driving. I find the information relating to driving that she reported to both of these assessors was consistent. She had also reported fear and anxiety while driving to Dr. Friedlander. She reported anxiety with driving on curved roads to Dr. Payne and to the psychological insurance examination (“IE”) assessor, Dr. D. Prendergast. I afford less weight to Dr. Prendergast’s psychological IE report,¹⁵ which is further referenced below as he concluded her mild in-vehicle anxiety does not reach the level of diagnosis of a phobia as S.F. had reported returning to driving in largely all situations. Dr. Prendergast issued an addendum report dated September 26, 2019 after reviewing the psychological reports of Dr. Payne and Dr. Gerber, and his opinion remain unchanged.

24I do not agree with the recommendation noted within Dr. Prendergast’s September 2019 addendum report. He noted that the best way for S.F. to deal with her driving related issues would be to maintain her regular driving. I find that S.F. continues to report avoidance behaviour to more than one assessor in relation to driving on curved roads. It is more than three years since the 2016 accident. This represents a significant timeframe. Therefore, I do not accept that regular driving would resolve these driving issues. Indeed, she has already continued to drive regularly, to no avail.

25Dr. Payne also provided a diagnosis of somatic symptom disorder with predominant pain. The assessments of Dr. Payne and Dr. Gerber relied upon clinical objective testing and subjective reporting. Both assessors referenced the 2018 collision, reported by S.F. However, both assessors concluded that the development of the specific phobia was a result of the 2016 accident.

26The respondent argues S.F. has been inconsistent with the information she reported to assessors. For example, S.F. reported to Dr. Gerber that she had hit her head and lost consciousness in the 2016 accident and that she sustained no injuries in the 2018 collision. Dr. Friedlander’s report also noted S.F. reported striking her head on the steering wheel in the 2016 accident. Dr. Gerber and Dr. Friedlander noted within the appendix section of their reports that a copy of the 2016 accident ER report was reviewed. I noted these documents did not reference S.F. striking her head. S.F. reported to Dr. Payne that she lost consciousness after the 2016 accident. The document appendix within Dr. Payne’s report noted he reviewed the police report and the ambulance call report for the 2016 accident, and I note these documents did not reference S.F. striking her head. A further discrepancy submitted by the respondent is that Dr. Prendergast’s initial psychological IE report did not note the applicant was involved in the 2018 collision. However, the report makes no reference to S.F. being asked about being in a subsequent collision. In Dr. Prendergast’s September 2019 addendum report he references that he reviewed Dr. Payne’s and Dr. Gerber’s psychological assessment reports and therefore would have been aware of the 2018 collision. Therefore, I do not find the discrepancies to be significant. The documentary evidence before the assessors did not reference S.F. striking her head in the 2016 accident, and I am not persuaded that the applicant is not credible because she referenced hitting her head in the 2016 accident.

27Both Dr. Payne and Dr. Gerber both recommended psychological interventions to assist S.F. in dealing with her driving anxiety and managing her pain and/or fear of pain. Both Dr. Payne and Dr. Gerber attributed the psychological diagnoses to the 2016 accident. Dr. Payne noted S.F. had reported anxiety driving on curved roads, which she avoids or endures with panic level anxiety. Dr. Payne further noted that she avoids highway and long-distance driving. Dr. Gerber noted S.F. continues to drive almost daily but she considered her vehicle-related anxiety, which has not improved over the past three years, to be her primary emotional problem. Dr. Gerber noted she provided a convincing report of anxiety with physical symptoms when she drove. His report further noted she had distressing dreams related to the subject accident.

28The respondent submitted there were issues with the reliability and consistency regarding the information S.F. reported to Dr. Prendergast. In particular, it highlighted the fact that his June 2019 IE report noted that some of her test endorsements on the Rey and TOMM cognitive-based effort tests were in the critical range, suggesting she embellished her symptoms. I do not find this significant since Dr. Prendergast further noted in his report that no further embellishment was noted on further tests and results were interpretable. The respondent further submitted that Dr. Prendergast noted S.F. did not identify any distressing dreams which contrasts what Dr. Gerber noted within his report that S.F. reported having distressing dreams. I do not afford much weight to this discrepancy as Dr. Prendergast did not note within his report what information he asked S.F. relating to her dreams. Therefore, depending on the context in which the subject was discussed, it can influence the information which was provided.

29As I have found that, as a result of the 2016 accident, the applicant suffers from chronic pain syndrome and a psychological impairment, namely specific phobia, situational, vehicle-related. These impairments remove her from the MIG.

30I do not find on a balance of probabilities the applicant has met her onus of establishing that this treatment plan submitted in July 2017 is reasonable and necessary. I accept the applicant was experiencing pain in her back and shoulders and had restrictions with moving her neck as evidenced with Dr. Marion’s July 2017 chiropractic report. He further noted she has some difficulty around the home and may benefit from further occupational therapy intervention. However, Dr. Marion did not identify the specific tasks at home she has difficulty performing.

31The occupational therapy services proposed were to assist S.F. with improving her independence and function at work, leisure, and with her housekeeping duties. She had already returned to work in March 2017 and nothing from her employer was produced identifying she requires any specific modifications or accommodations to perform her job duties as an administrative assistant. Dr. Friedlander noted in his 2019 Chronic Pain report that this treatment plan was reasonable and necessary, however that was two years after this treatment plan was submitted and after he had diagnosed her with chronic pain syndrome. I do not accept the applicant was suffering from chronic pain syndrome at the time this treatment plan was submitted as there had been no diagnosis provided at that time. I have not considered documents included in Tabs 2, 3, 5, 6 included with the applicant’s reply submissions as I find these are new documents introduced by the applicant which did not directly respond to arguments raised within the respondent’s response and I have therefore not considered them.

32I find this treatment plan is reasonable and necessary and the applicant is entitled to the cost of the treatment plan (OCF-18) in the amount of $3,654.76. I find the physiotherapy records from CBI produced up to February 2017 note the applicant was making progress with reducing pain and straightening her neck. The MRI report of June 2017 noted the applicant reported a 60% improvement. The reports of Dr. Marion (July 2017) and Dr. Aiello (October 2017) noted the applicant had restricted movement with her neck. I find this evidence supports that the issues with S.F.’s neck had not resolved, and therefore I find this physiotherapy treatment plan is reasonable and necessary.

33I find this treatment plan is reasonable and necessary and the applicant is entitled to $2,000.00 for the cost of the assessment and $200.00 for the cost for preparing the OCF-18. I accepted the diagnosis made by Dr. Gerber within this assessment of specific phobia, situational, vehicle-related. As a result, I accepted the applicant suffered from a psychological impairment as a result of the 2016 accident which warranted her removal from the MIG.

ORDER

34Based on the above information, I order the following:

(i) S.F. did not sustain predominantly minor injuries as a result of the accident. She is removed from the MIG as I find she suffers from chronic pain syndrome and a psychological impairment (specific phobia, situational, vehicle-related).