A.P. v. Aviva Insurance Canada
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:
[A.P.]
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
PANEL:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
[A.P.], Applicant
Stefan Juzkiw, Counsel
For the Respondent:
Karen Brandt, Claims Representative
Christine McKenna, Counsel
Court Reporter:
Sarah Cooper
HEARD:
In Person on: September 26, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant, [A.P.], was involved in an automobile accident on December 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg 34/10 (the ''Schedule''). She is in a dispute with her insurance company, Aviva Insurance Canada (“Aviva”), over the upper limit of medical coverage to which she is entitled. She says she is entitled to $50,000 of medical coverage; Aviva says she is entitled to $3,500. The resolution of the dispute turns on the nature and severity of her injuries and impairments sustained as a result of those injuries.
2There is a section of the Schedule, s.18 that sets out three levels of insurance coverage, depending on the severity of the impairments sustained as a result of a motor vehicle accident. Predominantly minor injuries, such as sprains, strains and bruises are subject to a $3,500 limit. More serious injuries causing a greater functional impairment were, at the time of this accident, subject to a $50,000 limit. The highest category, for people who have been catastrophically impaired, were subject to a $1 million limit on medical and rehabilitation benefits. Minor injury and catastrophic impairment are defined terms in the Schedule.
3For [A.P.] to be successful, she must prove, on a balance of probabilities, that her injuries are more severe than predominantly minor injuries. She has failed to do so.
ISSUES
4The issues in dispute were identified and agreed to as follows:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(ii) If the applicant did not sustain predominantly minor injuries,
i. Is the applicant entitled to a medical benefit in the amount of $2,748.89 for physiotherapy services provided by ProMED Rehabilitation Clinic, as set out in a treatment and assessment plan (“OCF-18”) submitted on June 22, 2017 and denied by the respondent on June 27, 2017?
ii. Is the applicant entitled to a medical benefit in the amount of $3,671.48 for psychological services provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 29, 2017 and denied by the respondent on July 18, 2017?
iii. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a psychology assessment provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 15, 2017 and denied by the respondent on June 27, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $1,765.20 for medical services provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 22, 2017 and denied by the respondent on June 29, 2017?
v. Is the applicant entitled to a medical benefit in the amount of $1,209.75 for medical services provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on August 17, 2017 and denied by the respondent on August 23, 2017?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
DEFINITION OF MINOR INJURY
5The overall obligation of Aviva under the Schedule is to pay for benefits to, or on behalf of [A.P.] if she sustained an impairment as a result of an accident (see s.14 and s. 18(1)). With respect to medical benefits, the insurer must pay for all reasonable and necessary medical benefits, subject to the coverage limits set out in s. 18 (see s. 15).
6The limitation of coverage section, s 18(1) of the Schedule, caps the amount Aviva is required to pay for treatment of impairments arising out of predominantly minor injuries to $3,500. The term “minor injury,” which may be generally characterized as “soft tissue injuries,” is defined in the Schedule as follows:
“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
7There is a tension between the Schedule’s focus on impairment to trigger a right to benefits and s. 18(1) which limits benefits based on the nature of the injuries. Thus, a person who sustains a moderate whiplash injury who may require treatment to resolve any resulting impairments is limited to $3,500 of insurance coverage for that treatment, notwithstanding that the person may need treatment in excess of $3,500 to achieve maximum medical recovery. Section 18(1) does not apply only to soft tissue injuries. It applies to injuries that are “predominantly” minor. It contemplates a wider scope than the simple definition of minor injury in s. 3.
8The use of the word “predominantly” in s. 18, then, clearly identifies that [A.P.] may still be subject to the $3,500 coverage limit even if she sustained injuries leading to impairment that are not caught by the definition in s. 3. In my view, in looking at these injuries, it flows from the wording of s. 18(1) that the focus is on the manner in which the non-listed injury creates a loss or abnormality of structure or loss function.
9[A.P.] alleges that she has suffered psychological injuries as a result of the accident. My analysis of s. 18(1) then requires me to first ascertain if she did suffer injuries not included in the definition of minor injury and, if she did, do those injuries impair her to such an extent that it cannot be said that the minor injuries predominate.
ANALYSIS
[A.P.] Carries the Onus
10It is now clear law that [A.P.] carries the onus of establishing, on a balance of probabilities, that she is entitled to the benefits she seeks. Included in that onus is a requirement to establish that she should not be subject to the $3,500 limit in s. 18(1). It is worth mentioning at this point that s. 18(2) contains provisions that allow for treatment in excess of the $3,500 limit if [A.P.] suffered from a suitably documented pre-existing medical condition that would prevent her from achieving maximum medical recovery if she were subject to the $3,500 limit. The medical evidence before me shows that [A.P.] had no documented pre-existing condition and this argument was not advanced at the hearing.
11[A.P.] advances three grounds in support of her position that she does not fall within the definition of minor injury: she suffers from a chronic pain condition, she sustained a nerve impingement injury to her right elbow, and she has developed a psychological condition. The medical records are not supportive of her allegation that she suffers from chronic pain or a nerve impingement injury as a result of the accident. These conditions would appear to have developed independently of the accident. Her psychological condition is documented in a report authored by Dr. Romeo Vitelli, a psychologist. Aviva relies on the report of Dr. Marc Mandel, also a psychologist. For reasons more fully outlined below, I give little weight to Dr. Vitelli’s report and I accept the findings of Dr. Mandel that [A.P.] suffers from no diagnosable psychological condition.
Ongoing (Chronic) Pain Not Accident-Related
12On December 21, 2015, [A.P.] was struck by a left-turning vehicle as she walked across a very broad intersection with the pedestrian right-of-way. She was thrown several feet by the force of the impact and stated that she hit the ground on her right side. She was taken by ambulance to [a hospital] and released later that day after being diagnosed with soft tissue injuries. She followed up with her family doctor, Dr. Geraldine Cruz, two days later. Dr. Cruz notes a range of soft tissue injuries, particularly in the cervical spine, lower back and a large bruise of the right hip. Dr. Cruz ordered a right hip x-ray and recommended physiotherapy. The x-ray, dated the same day, showed no bone or joint abnormalities in the hip or pelvis. These injuries fit the definition of “minor injury.”
13[A.P.]’s first complaint of right elbow pain was at her second visit to Dr. Cruz on January 5, 2016. Thereafter, through April 2016, she complained of elbow pain on each visit to Dr. Cruz. Aviva submits that the elbow pain is not accident related as [A.P.] did not complain about it on the date of the accident or for thee weeks after. It speculates that there must have been some intervening event. I note that the [A.P.] was struck heavily on the right side and landed on her right side. There is no evidence of an intervening event and the time between the accident and the report to her doctor is not lengthy. On a balance of probabilities, I find that the right elbow injury is accident related.
14Dr. Cruz’s notes indicate three more visits in 2016 relating to injuries sustained in the accident on January 15, January 30 and April 30. Thereafter, [A.P.] did not visit Dr. Cruz again until she had an annual check-up on March 5, 2017. The January 30 visit note indicates that Dr. Cruz referred [A.P.] to the Rothbart Centre for Pain Care for possible cortisone treatment of her right elbow, indicating that this pain had become her predominant focus through the spring of 2016. Otherwise, [A.P.] did complain of cervical and lumbar spine pain. Her range of motion in these areas was normal and the pain was insufficient to prevent her from returning to work.
15It appears from Dr. Cruz’s records that between April 30, 2016 and March 5, 2017 [A.P.]’s pain symptoms resolved. The notes of the March 5, 2017 visit record:
(i) Functional enquiry - Current health issues and ROS No concerns
(ii) MSK [musculoskeletal] - Normal No swelling of joints ROM normal
(iii) Extremities - Normal
(iv) Reflexes - Normal
(v) Healthy for age.
16There is no mention of back or elbow pain and Dr. Cruz’s recommendation is for a continued balanced diet and regular exercise.
17The notes from the Rothbart Centre indicate that [A.P.]’s elbow pain was resolved by cortisone treatment. Further imaging of [A.P.]’s spine showed that she was suffering from degenerative disc disease in her cervical spine. [A.P.] asserts that the Rothbart Centre found neurological damage in her right elbow. With respect I do not agree. The notes speculate about the existence of two possible neurological conditions, finding that one is more likely than the other. There is no diagnosis, however, and the enquiry appears to have been dropped following successful cortisone treatment.
18From [A.P.]’s next visit to Dr. Cruz in April 2018 forward the focus of Dr. Cruz is pain arising from [A.P.]’s degenerative disc disease and the development of what appears to be carpal tunnel syndrome. There is no further concern from either Dr. Cruz or the Rothbart Centre about accident-related injuries.
19Notwithstanding that Dr. Cruz found no evidence that [A.P.] continued to be impaired by accident-related injuries on March 5, 2017, [A.P.] chose to attend ProMED Rehabilitation Clinic (“ProMED”) starting in and around June 2017. She did not make this decision based on medical advice but did so at the urging of her lawyer. Through June 2017, ProMED submitted several OCF-18s seeking various treatments and assessments. For me to consider these OCF-18s, I must first determine if [A.P.]’s fall within the definition of “minor injury.”
20Addressing only her physical injuries, it is clear from the medical evidence above that [A.P.] sustained soft tissue injuries as a result of the accident and that those injuries had resolved fully by March 2017. Her physical injuries fall within the definition of minor injury and, without more, would limit her recovery to $3,500.
No Diagnosable Psychological Condition
21[A.P.] submits that she suffers from a psychological condition that means the impairments she suffered from the accident do not fall within the minor injury definition. She relies on a psychological assessment reported dated June 19, 2017 authored by Dr. Romeo Vitelli, psychologist. Dr. Vitelli diagnosed [A.P.] with “Post Traumatic Stress Disorder, Specific Phobia and Driver/Passenger Type” according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). He further concludes that:
From a psychological perspective, it is my opinion that [A.P.] currently suffers from an inability to perform her pre-accident activities of self-care and housekeeping. Her current level of psychological functioning and perceived level of pain impacts her ability to complete necessary tasks, and she experiences a lack of desire to complete non-essential tasks of living.
22Aviva relies on a psychological assessment conducted on its behalf by Dr. Marc Mandel, psychologist. Dr. Mandel notes that [A.P.] has some issue with adapting to life following her accident but considers these adaptation issues to be minor as she is coping with them and to fall below the level required for a DSM-5 diagnosis. He does not recommend treatment.
23I prefer the evidence of Dr. Mandel over that of Dr. Vitelli for two reasons. [A.P.] testified that she had never met Dr. Vitelli. Dr. Vitelli never assessed her. She had psychometric testing performed by Dr. Vitelli’s psychometrist, Laura Turnbull. It appears she also attended psychotherapy sessions with Ms Turnbull. It is hard to give credibility to Dr. Vitelli’s observations when he wasn’t there to make them. For instance, in a section entitled Behavioural Observations Dr. Vitelli purports to record presentation difficulties observed during the assessment, as follows:
[A.P.] was cooperative, appropriately groomed and attentive. [A.P.] appeared to be in pain, as she slouched in her seat, walked slowly and carefully, and winced at several points throughout the interview. [A.P.] displayed signs of cognitive impairments in memory as she had difficulty remembering some of the questions asked of her, and recalling some of the details of her accident. [A.P.] was not disoriented or confused during the assessment.
24I find the reality of [A.P.]’s life is at odds with Dr. Vitelli’s report where he notes an inability to perform pre-accident self-care and housekeeping activities. [A.P.] returned to work in February 2016, shortly after the accident. She reported to Dr. Mandel that she had returned to full-time duties at both of her jobs. She also reported that she was independent in personal care after needing some help from a friend earlier on after her injury and that the focus of her life was looking after her daughter. There would seem to be little similarity between the person who Dr. Mandel assessed, and the person Dr. Vitelli never met.
CONCLUSION
25Having weighed the psychological evidence, I find that [A.P.] does not suffer from a diagnosable psychological condition that causes any impairment of her activities. I find that her injuries fall within the definition of minor injury in s. 3 of the Schedule and are subject to the $3,500 limit set out in s. 18(1).
26Having found that the limit in s. 18(1) applies, I do not need to address whether the individual treatment plans are reasonable and necessary. I do point out my finding that [A.P.]’s accident related impairments had resolved by March 5, 2017. It flows from this finding that treatments commencing in June 2017 are not to address accident-related impairments and, therefore, are not reasonable and necessary.
27Since no benefits are outstanding, no interest is payable under the Schedule.
ORDER
(i) [A.P.]’s application for the following relief is dismissed:
i. a medical benefit in the amount of $2,748.89 for physiotherapy services provided by ProMED Rehabilitation Clinic, as set out in a treatment and assessment plan (“OCF-18”) submitted on June 22, 2017 and denied by the respondent on June 27, 2017;
ii. a medical benefit in the amount of $3,671.48 for psychological services provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 29, 2017 and denied by the respondent on July 18, 2017;
iii. the cost of an examination in the amount of$2,200.00 for a psychology assessment provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 15, 2017 and denied by the respondent on June 27, 2017;
iv. a medical benefit in the amount of $1,765.20 for medical services provided by ProMED Rehabilitation Clinic, as set out in an OCF-18 submitted on June 22, 2017 and denied by the respondent on June 29, 2017; and
v. interest.
Released: March 31, 2020
D. Gregory Flude
Vice-Chair