P.W. v. Aviva Insurance Canada, 2020 CanLII 30420

Citation: P.W. v. Aviva Insurance Canada, 2020 CanLII 30420

Released Date: 03/19/2020
File Number: 18-000854/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:

[P.W.]
Applicant

and

Aviva Insurance Canada
Respondent

DECISION AND ORDER

ADJUDICATOR:
Paul Gosio

APPEARANCES:

For the Applicant:
[P.W.], Applicant
Maria Mikhailitchenko, Counsel

For the Respondent:
Aviva Insurance Canada
Suhasha Hewagama, Counsel

HEARD: In Writing
November 26, 2018

OVERVIEW

1The parties dispute the applicant’s entitlement to an income replacement benefit and five treatment and assessment plans.

2The applicant was involved in a motor vehicle accident on August 22, 2015. He applied for and received income replacement benefits from October 6, 2015 to May 8, 2016 pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”). The respondent then took the position that the applicant was not entitled to an income replacement benefit as it concluded that his inability to return to his pre-accident employment was due to his congestive heart failure, stroke and cardiac arrhythmia which were not caused by the accident.

3The applicant had also applied for and received medical and rehabilitation benefits. The applicant then submitted additional treatment plans which the respondent denied, taking the position that they are not reasonable and necessary as a result of the injuries sustained in the accident.

4The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to a written hearing.

ISSUES IN DISPUTE

5The following issues are in dispute:

i. Is the applicant entitled to an income replacement benefit from May 9, 2016 to October 1, 2019?

ii. Is the applicant entitled to a medical benefit in the amount of $3,126.16 for chiropractic services recommended in a treatment plan submitted on June 8, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $981.90 for chiropractic services recommended in a treatment plan submitted on July 27, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $3,192.25 for psychological services recommended in a treatment plan submitted on June 5, 2017?

v. Is the applicant entitled to a medical benefit in the amount of $579.99 for other goods and services recommended in a treatment plan submitted on June 18, 2016?

vi. Is the applicant entitled to an examination expense in the amount of $1,131.44 for an attendant care assessment recommended in a treatment plan submitted on October 21, 2015?

vii. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

6Based on the evidence before me, I find that the applicant is not entitled to an income replacement benefit or the medical benefit in the amount of $579.99 for other goods and services but is entitled to the remaining medical benefits and attendant care assessment at issue.

INCOME REPLACEMENT BENEFIT

7Entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his/her employment or self-employment. Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.

8The applicant’s entitlement to income replacement benefits arose after his 65th birthday. As such, pursuant to section 9(1)(a) of the Schedule, the applicant would be entitled to income replacement benefits for not more than 208 weeks after becoming entitled to the benefit. In this case then, the applicant could be entitled to an income replacement benefit up until October 1, 2019. The quantum of the income replacement benefit is not in dispute.

Applicant’s Pre-Accident Employment

9The parties agree that the Applicant was employed as a seasonal, full-time Landscape Helper with [a garden centre] at the time of the accident. The work season typically spanned from April to December and the applicant worked approximately 60 hours per week. The applicant’s main job objective was to provide general labour to the landscaper. The essential tasks of his employment include: loading/offloading equipment and materials; transporting equipment and materials around the job site; spreading topsoil; laying sod; planting flowers, shrubs and trees; pruning trees and shrubs; and general clean up.

10According to the National Occupational Classification, this position is classified as Medium strength demands, however, the applicant and the owner of the company rated the job to fall within the Heavy strength demands category at times.

Causation

11The applicant is entitled to an income replacement benefit only if the accident caused him to sustain an impairment that renders him unable to perform the essential tasks of his pre-accident employment during the first 104 weeks. After the first 104 weeks of disability, the applicant would only be entitled to an income replacement benefit if the accident caused him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

12The applicant submits that his congestive heart failure, stroke and cardiac arrhythmia are as a result of the accident and cause him to suffer a substantial inability to perform the essential tasks of his pre-accident employment and a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The respondent submits that these impairments are not accident related and can not form the basis for entitlement to an income replacement benefit.

The Applicant’s Pre and Post Accident Heart Health

13The applicant has a history of hypertension and coronary artery disease with a myocardial infarction. He had an angioplasty and a stent implant in 2007.

14The August 22, 2015 accident caused the applicant to sustain injuries to his head, neck, ears, and right shoulder. He followed up with his family doctor, Dr. Pietraszek, as a result of these injuries and complained of shortness of breath, fatigue and mild chest discomfort. Based on the reported symptoms, Dr. Pietraszek referred the applicant to Dr. Drzymala, cardiologist. The applicant saw Dr. Drzymala for an initial assessment on November 25, 2015. A stress test and echocardiography were recommended with a follow-up appointment to occur after the completion of the tests.

15On January 1, 2016, the applicant was admitted to St. Joseph’s Hospital with complaints of chest pains and difficulty breathing. He was assessed by Dr. Drzymala, Dr. Fisher, cardiologist, and Dr. Supala-Berger, neurologist. He was discharged on January 6, 2016 with a diagnosis of Congestive Heart Failure. Dr. Drzymala recommended a coronary angiogram with a follow-up appointment to occur after the completion of the angiogram.

16The applicant consulted Dr. Supala-Berger for a neurological re-evaluation on February 23, 2016. Dr. Supala-Berger reviewed the MRI completed in January 2016 and concluded that the applicant’s neurological examination was normal.

17The applicant suffered a stroke on August 10, 2016. He was admitted to St. Joseph’s Hospital and was assessed by Dr. Chepesiur, neurologist. He was then transferred to St. Michael’s Hospital where he underwent an angioplasty. The stroke affected the applicant’s ability to balance while walking due to right leg dysfunction, and his ability to grip and write with his right hand. He reported that he had transient weakness involving his right arm and some dysarthria. In May 2018, the applicant was again hospitalized due to a new onset of cardiac arrhythmia.

The Position of the Parties and Analysis

18The applicant submits that his heart health was stable prior to the accident and that his congestive heart failure, stroke, and cardiac arrhythmia were caused by the accident and prevent him from engaging in any employment. The applicant relies, in part, on Dr. Drzymala’s letter dated August 17, 2018, in support of its position.

19Dr. Drzymala’s letter noted the applicant’s previously established cardiac disease and indicated that the applicant’s cardiovascular health worsened in November 2015 which significantly affected his ability to work. Dr. Drzymala then went on to state:

“While the MVA unlikely caused direct damage to his heart, I can only speculate (with the information at my disposal) that the MVA may have led to the worsening control of his blood pressure and other cardiovascular risk factors which exacerbated his previously stable cardiac conditions and culminated in congestive heart failure, stroke and cardiac arrhythmia.” (Emphasis Added)

20I find that Dr. Drzymala’s note provides little support for the applicant’s position that his congestive heart failure, stroke, and cardiac arrhythmia were caused by the accident. Dr. Drzymala was not the applicant’s treating cardiologist prior to the subject accident and did not have a complete picture of the applicant’s pre-existing health history as it was not provided to him. Dr. Drzymala’s conclusion seem to be based mainly on the applicant’s self reports and are speculative in nature.

21Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878, para. 25 confirm that the default test for determining causation in accident benefit cases is the “but for” test. Only in rare and exceptional circumstances, where it is impossible to prove the cause of the applicant’s injuries using the “but for” test, can an applicant prove causation by indicating that the respondent’s conduct “materially contributed” to the risk of the injury. This is not one of those cases. In this case, the applicant bears the onus of establishing, on a balance of probabilities, that he has met the “but for” test. Dr. Dryzmala’s letter does little to convince me on a balance of probabilities, that the applicant’s congestive heart failure, stroke, and cardiac arrhythmia would not have occurred “but for” the accident. The causal link has not been established.

22The applicant also relies on the evidence of Dr. Gabidulina, psychologist, with respect to the issue of causation. Dr. Gabidulina, in her progress report dated September 25, 2018, stated:

It is my professional opinion that those serious medical problems dealing with the client's heart condition, speech, and orientation in time and space are related to his MVA happened on September 29, 2015…It's very common in my professional experience that patients suffering from tremendous stress may have neurological or cardiac associated health issues or both….I observe that he is suffering from severe stress for sufficient period of time. His level of stress one of a kind that may result in cardiac-neurological problems.

23The applicant submits that Dr. Gabidulina’s evidence should be considered with that of Dr. Rakowski, cardiologist who provided evidence in 16-001535 v. Wawanesa Mutual Insurance Company, 2017 CanLII 69453 (ON LAT). At paragraph 25 of that decision, Dr. Rakowski is noted as testifying to the following:

a highly stressful situation (the accident) occurs and there is an increase in blood pressure and heart rate, which is a typical response to stress (fight or flight). As a result, there is a greater demand put on the heart muscle that cannot be supplied by the narrowed artery. Myocardial ischemia occurs when blood flow to your heart is reduced, preventing it from receiving enough oxygen. The heart becomes 'irritable' (electronically). In this scenario, ventricular fibrillation or ventricular tachycardia can occur.

24The applicant submits that Dr. Rakowski’s expert testimony establishes that cardiac failure need not be caused by the physical/mechanical impact of the collision itself but can be caused by the stress and fear from the accident. The applicant submits that Dr. Gabidulina’s evidence establishing that the applicant’s cardiac symptoms and stroke were caused by the stress of the accident thereby establish the causal connection.

25I agree with the applicant’s position that cardiac failure need not be caused by the physical/mechanical impact of the collision itself but can be caused by the stress and fear from the accident. In this case, however, the applicant has not satisfied me that this is the case.

26Dr. Rakowski’s testimony must be read in the context of the facts of that case. In that case, the applicant’s husband (“H.S.”) was involved in a motor vehicle accident where his car rolled over, and the air bags deployed. H.S.’s car was towed to an auto repair shop. While at the auto repair shop, H.S. was found on the ground, unresponsive. An ambulance was called and H.S. died at the hospital within approximately one hour of his arrival. The Coroner’s report stated, among other things, that the cause of H.S.’s death was Atherosclerotic Coronary Artery Disease. At paragraph 28 of that decision, Adjudicator Gottfried noted the following: “Dr. Rakowski, Dr. Myers and the Coroner were in agreement that stress from the accident could cause H.S.’s death and that his death was temporally linked to the accident.”

27The facts of the present case are distinguishable from the facts of 16-001535 v. Wawanesa Mutual Insurance Company. The applicant in this case sustained heart failure approximately 3 months after the subject accident. He suffered a stroke approximately 10 months after the subject accident. In contrast, 16-001535 v. Wawanesa Mutual Insurance Company involved an individual who suffered a heart attack a few hours after the accident and his death was temporally linked to the accident. In this case, the applicant failed to establish that his heart failure, stroke, and cardiac arrhythmia are temporally linked to the subject accident. Even the applicant’s own treating cardiologist was unable to opine conclusively on any link between the subject accident and the applicant’s subsequent cardiac symptoms and stroke. For these reasons, I have given Dr. Gabidulina’s evidence little weight and find that the applicant has failed to convince me, on a balance of probabilities, that his congestive heart failure, stroke, and cardiac arrhythmia would not have occurred “but for” the accident.

The Applicant’s Right Shoulder

28A right shoulder ultrasound dated June 6, 2016 demonstrated that the applicant sustained a massive tear of the subscapularis and supraspinatus tendons. The applicant submits that this is an accident related injury and that it is highly unlikely that a person with torn shoulder ligaments would be able to perform landscaping work.

29The respondent does not deny that the applicant complained of right shoulder pain following the subject accident but raises a causation issue as the applicant reported that he slipped on ice and “almost fell” approximately two to three months after the accident. On July 26, 2016, the applicant reported to his assessor, Ms. Kurtach, registered nurse, that his shoulder pain was exacerbated from this incident.

30I am not persuaded by the respondent’s submissions and find that the applicant’s torn right shoulder ligaments are as a result of the accident. Despite this, the applicant has not persuaded me, on a balance of probabilities, that this injury entitles him to an income replacement benefit.

31The applicant simply stated that it is highly unlikely that a person with torn shoulder ligaments would be able to perform landscaping work without providing a persuasive analysis supporting his position. The applicant also failed to direct me to any evidence that would indicate how this injury impaired his ability to perform the essential tasks of his pre-accident employment or to engage in any employment for which he is reasonably suited by education, training or experience.

32Furthermore, during chiropractor, Dr. Deborah Kopansky-Giles’ examination on March 28, 2016, the applicant demonstrated that he had fully functional ranges of motion and strength in his right shoulder. At the physiatry assessment with Dr. Czok on August 30, 2017, the applicant’s only current complaint was intermittent neck pain. As a result, although I find that the applicant’s torn right shoulder ligaments were accident related, I do not find that it caused him to sustain an impairment that renders him unable to perform the essential tasks of his pre-accident employment. I also find that the applicant’s right shoulder injury did not cause him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

DISPUTED TREATMENT PLANS

33The applicant’s entitlement to the treatment plans in dispute turns on whether the particular treatment plan is reasonable and necessary in accordance with sections 14 and 15 of the Schedule. The applicant bears the onus of establishing on a balance of probabilities that the treatment plan in dispute is reasonable and necessary.

34Both chiropractic treatment and assessment plans were completed by Dr. Bakalovski, chiropractor. Dr. Bakalovski diagnosed the applicant with the following: sprain and strain of thoracic spine; sprain and strain of other and unspecified parts of lumbar spine and pelvis; sprain and strain of unspecific part of shoulder girdle; sprain and strain of ribs and sternum; other sleep disorders; chronic post traumatic headache; sprain and strain of cervical spine. The treatment plan in the amount of $3,126.16 proposed funding for 12 sessions of massage therapy, exercises and acupuncture and the treatment plan in the amount of $981.90 proposed funding for 10 sessions of acupuncture. The goal of the treatment plans was to reduce pain and increase strength and range of motion and to have the applicant return to his activities of daily living.

35The respondent relied on the IE Physiatry Assessment Report by Dr. Czok, physiatrist dated September 22, 2017. He concluded that from a physical medicine perspective, both treatment and assessment plans were not reasonable and necessary as the continuation of the proposed passive treatment was not beneficial at that stage.

36I disagree with the respondent’s position and find that both of the chiropractic treatment plans are reasonable and necessary. The totality of the medical records before me establishes that the applicant was still dealing with accident related pain at the time the treatment plans were submitted. At that time, the applicant was receiving various passive treatment modalities approximately two to three times per week and found that it was helpful in reducing his pain. Given this, I find that the continuation of the proposed passive treatment was reasonable and necessary as it provided the applicant with much needed pain relief.

37This treatment plan was submitted by Dr. Gabidulina on June 5, 2017 and proposed ten sessions of mental health therapy plus ancillary services, at a total cost of $3,192.25.

38The respondent denied the treatment plan based in part on the strength of Dr. Waiser’s insurer’s examination. In his report, Dr. Waiser noted that the applicant had been to extensive counselling but that it was unclear how much of the applicant’s emotional distress was the result of the subject accident and how much was the result of his subsequent cardiac conditions. Furthermore, Dr. Waiser’s testing suggested that despite the applicant’s reports of significant emotional distress, he was not suffering emotionally at a clinical level. Dr. Waiser then concluded that the applicant was coping with his situation, no longer required psychotherapeutic intervention and that the treatment plan was not reasonable and necessary.

39The applicant has persuaded me that this treatment plan is reasonable and necessary. The totality of the evidence before me establishes that the applicant’s emotional distress was as a result of the accident.

40On April 19, 2016, Dr. Syed submitted a Psychology Assessment Report identifying that the applicant was experiencing an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident.

41On May 16, 2016, Dr. Gabidulina submitted a Psychology Assessment Report indicating that the applicant was experiencing Depressive Episode, Moderate and Situational (isolated) Phobias, Moderate (automobile anxiety – driver/passenger) as a result of the accident.

42The applicant completed two sets of psychological treatment sessions from July 27, 2016 to November 2, 2016 and from February 15, 2017 to April 26, 2017. It is clear from the evidence before me that the applicant was still experiencing a significant amount of stress as a result of the accident which required psychological intervention. As a result, I find that the proposed treatment is reasonable and necessary.

43The applicant has not persuaded me that this treatment plan is reasonable and necessary. The treatment plan was submitted by Dr. Larga, chiropractor, on June 18, 2016 for a cervical pillow, TENS unit and back support. The goal of the treatment plans was to reduce pain and increase strength and range of motion and to have the applicant return to his activities of daily living.

44The applicant failed to provide an analysis as to why this treatment plan was reasonable and necessary. I acknowledge that a treatment plan, signed and submitted by a medical practitioner, attests to the fact that the treatment plan is reasonable and necessary. In this case, however, I do not find that by reading this treatment plan alone, without an analysis as to why it is reasonable and necessary, is convincing. The applicant’s submissions then, do not establish, on a balance of probabilities, that this treatment plan is reasonable and necessary.

45In addition to this, the cervical pillow was submitted on a previous treatment plan and was approved by way of an explanation of benefits dated July 15, 2016. Moreover, Dr. Kopansky-Giles addressed the reasonableness and necessity of this treatment plan in an IE Chiropractic Paper Review Report dated June 26, 2016. In her report, Dr. Kopansky-Giles noted that her objective examination failed to reveal any ongoing, substantive musculoskeletal impairment and that the impairment list noted in the plan was not consistent with what was reported during the assessment. As such, Dr. Kopansky-Giles concluded that the applicant did not require the devices being recommended and that the OCF-18 was not reasonable and necessary. As a result, I find that this treatment plan is not reasonable and necessary.

Examination Expense in the Amount of $1,131.44 for an Attendant Care Assessment

46This treatment plan was recommended by Dr. Aziz, chiropractor, which proposes funding for the completion of an attendant care assessment and Form 1. Pursuant to section 25(1)4 of the Schedule, “an insurer shall pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if incurred by or on behalf of an insured person.”

47Pursuant to section 25(1)4 of the Schedule, the respondent would be liable to pay the fee charged under this treatment plan if:

i. The assessment is completed by an occupational therapist or registered nurse;

ii. The fee charged was reasonable; and

iii. The fee was incurred.

48In this case, the assessment and Form 1 was completed by Ms. Kurtach, a registered nurse. The fee charged for preparing the assessment and Form 1 was $1,131.44. I find this to be reasonable as it is in accordance with section 25(5)(a) of the Schedule which states that an insurer shall not pay more than a total of $2,000.00 for conducting any one assessment. The fee was incurred as defined by section 3(7)(e) of the Schedule. Since the requirements of section 25(1)4 of the Schedule have been met, I find that this treatment plan is payable.

49The respondent made submissions with respect to whether the treatment plan was reasonable and necessary. The respondent pointed to Dr. Yee and Dr. Czok’s IE assessments and other evidence wherein the applicant indicated that he was independent with respect to his personal care tasks albeit with pain. Although the respondent’s submissions raise questions as to the applicant’s entitlement to an attendant care benefit, they do not address the criteria outlined in section 25(1)4 of the Schedule. As a result, I find that the applicant is entitled to the attendant care assessment.

CONCLUSION

50For the reasons outlined above, I find that:

i. The applicant is not entitled to an income replacement benefit from May 9, 2016 to October 1, 2019;

ii. The applicant is entitled to the medical benefit in the amount of $3,126.16 for chiropractic services recommended in a treatment plan submitted on June 8, 2017 and interest is payable pursuant to the Schedule;

iii. The applicant is entitled to the medical benefit in the amount of $981.90 for chiropractic services recommended in a treatment plan submitted on July 27, 2017 and interest is payable pursuant to the Schedule;

iv. The applicant is entitled to the medical benefit in the amount of $3,192.25 for psychological services recommended in a treatment plan submitted on June 5, 2017 and interest is payable pursuant to the Schedule;

v. The applicant is not entitled to the medical benefit in the amount of $579.99 for other goods and services recommended in a treatment plan submitted on June 18, 2016; and

vi. The applicant is entitled to an examination expense in the amount of $1,131.44 for an attendant care assessment recommended in a treatment plan submitted on October 21, 2015 and interest is payable pursuant to the Schedule.