Licence Appeal Tribunal
Tribunal File Number: 18-007868/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:
M.M. Applicant
and
Aviva General Insurance Respondent
DECISION
PANEL: Craig Mazerolle, Adjudicator
APPEARANCES:
For the Applicant: Antonio Afecto, Counsel
For the Respondent: Laura Meschino, Counsel
HEARD IN-PERSON: November 18 + 19, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on May 25, 2016. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). When some of these claims were denied by the respondent, she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2For the reasons to follow, I find the applicant is entitled to payment for the disputed medical benefits. However, she has not established her entitlement to a non-earner benefit.
3The respondent also requested costs. I decline to order costs in this proceeding.
ISSUES
4In addition to a non-earner benefit (from February 15, 2017 and ongoing), the applicant is requesting funding for the following medical benefits:
(1) Chiropractic services in the amount of: $3,433.70, $1,246.72, and, $1,700.85.
(2) Chronic pain assessment in the amount of $2,000.00.
5The applicant is also requesting interest on any overdue payment of benefits.
NON-EARNER BENEFIT
6Section 12(1) of the Schedule states that an insured person is entitled to a non-earner benefit in the amount of $185.00 per week if they sustain an accident-related impairment that causes “a complete inability to carry on a normal life” within 104 weeks of the accident. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
7The Court of Appeal for Ontario’s seminal case of Heath v. Economical Mutual Insurance Company provides guidance for applying this standard.2 Briefly, the Tribunal must compare an applicant’s pre- and post-accident activity levels to determine if there has been a continual inability to not simply perform, but rather engage in, substantially all of one’s pre-accident tasks. Greater weight is placed on those activities that had a greater importance to the applicant.
8This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule, and—as with other benefits—the onus is on the applicant to establish entitlement on a balance of probabilities.
Parties’ Positions
9The applicant argued that the accident exacerbated her pre-accident, psychological complaints, namely, her depression and bipolar affective disorder. She was also diagnosed with fibromyalgia following the accident, even though she had no pre-accident complaints of physical pain. Together, these physical and psychological conditions have impeded her ability to perform her pre-accident tasks, especially the important tasks of caring for her two adult children, volunteering with her church congregation, and helping members of the local Sri Lankan community.
10The respondent contended that the applicant has not met the high threshold for entitlement to a non-earner benefit. Most notably, the respondent challenged the applicant’s credibility through the use of surveillance video that seemingly contradicted her self-reported, accident-related limitations.
Analysis
11Surveillance evidence is not the “trump card” that some parties may believe it to be. That is, while footage of an applicant dancing at his daughter’s wedding could be used to challenge his credibility, this hypothetical applicant would likely retort by stating that the video does not capture the listless week in bed that followed. Or, his counsel might argue that the tape cannot peer into the numerous painkillers lining his medicine cabinet, nor can it witness the weeks of psychotherapy that were necessary to prepare for this once-in-a-lifetime event.
12This is not to say that surveillance is meaningless. Quite the opposite. Rather, surveillance—like any other form of evidence—cannot be viewed in isolation. Instead, a decision-maker must consider how the information gleaned from surreptitious recordings compare and contrast with information obtained from other sources. Put another way, the totality of evidence has to be considered.
13In her testimony to the Tribunal, as well as during the numerous assessments both parties conducted, the applicant described her pre- and post-accident lives as dramatically different. That is, while the applicant used to be an active mother and volunteer, these important roles became impossible to fulfill following the accident in May 2016. Whether it is pain preventing her from performing certain household chores, or her lack of motivation to engage socially, she—in the words of Heath—no longer “engages in” the meaningful aspects of her pre-accident life.
14I do not deny that the applicant is unable to participate in some of her pre-accident activities. In particular, I accept that the applicant has consistently reported her inability to volunteer with her church community. What is more, I afford this pre-accident task extra weight in my analysis, due to the observation from Heath that personally important activities should be given more value in this analysis. The applicant has also consistently reported that the accident caused significant distress in her relationships with her children. The applicant’s children are a central aspect of her life, and so psychological distress that stands in the way of these relationships must also be given additional weight.
15However, even with this added import, the respondent’s surveillance evidence still raises many serious questions about the applicant’s post-accident activity levels—questions that have allowed me to conclude that the applicant has not met her onus to demonstrate entitlement.
16Briefly, the surveillance video was shot over two days in late August 2018, and it shows the applicant engaging in a series of involved activities out in the community: e.g., operating a motor vehicle over an extended period of time; retrieving a number of items from a drive-through window; shopping with a family member at a busy mall; interacting with store clerks; jaywalking, etc. During my viewing of the video, I saw no obvious signs of distress while she was performing these tasks—an observation shared by the respondent’s assessor, Dr. Pravesh Jugnundan.
17As noted above, there could be a reasonable explanation for the seemingly smooth and effortless actions in this video. However, when considering the totality of the evidence before me, I find the video both challenges her testimony, as well as the reliability of the answers she provided to the parties’ various assessors.
18To start, a major point raised by the applicant to explain the inconsistency between the video and her self-reported limitations is that she can temporarily perform some of her pre-accident tasks with the assistance of localized pain injections. By receiving approximately 20-30 shots every two weeks, the applicant is able to temporarily perform physical tasks, like walking her dogs. This relief will eventually subside, but, according to the applicant, this fleeting normalcy is worth the pain of these regular injections.
19The difficulty with accepting this explanation is that the surveillance video predates her first pain injections by several months (i.e., the video is from August 2018, while the injections began in January 2019). Additionally, she told a rheumatologist, Dr. Thanu Ruban, as far back as October 2016, that she “walks her dog twice per day, at least 45 minutes each time.” A similar comment was made to a family physician on April 25, 2018—again, well before these pain injections began.
20Beyond my inability to accept this explanation, the activities observed in the video cast serious doubts on the applicant’s credibility when explaining her functional limitations. For instance, the applicant spoke at length with assessors about her fears as a driver and as a pedestrian, yet surveillance paints a different picture. For instance, during an assessment conducted around the same time that this video was shot, she told one of the respondent’s psychological assessors, Dr. Amena Syed, that driving causes her significant anxiety (report dated November 8, 2018). As such, she has tended to avoid operating a vehicle since the accident. She noted a similar limitation during her testimony to the Tribunal (i.e., she has only driven a few times since the accident, and then only on an emergency basis for her daughter). However, the video shows the applicant driving herself and several passengers to various locations in the community to pick up food and run errands.
21I have put a particular focus on the applicant’s ability to drive, as one of the most significant, pre-accident activities that she testified being no longer able to do is volunteer translation services for the local Sri Lankan community. According to the applicant’s testimony, she is no longer able to do this volunteer work, in part, because she can no longer drive. Due to the evidence listed above, I am not satisfied that this driving limitation exists.
22I also raise the psychological assessment from Dr. Syed, as her psychometric testing revealed serious concerns about the applicant’s self-reported symptomology. Specifically, the applicant provided a number of conflicting answers on these surveys that led the assessor to conclude she “presents with certain patterns or combinations of features that are unusual or atypical in clinical populations but relatively common among individuals feigning mental disorder.” The respondent’s other psychological assessor, Dr. Mohammad Nikkhou, classified this exaggeration as a “cry for help”—though he did comment during his testimony that his assessment was more limited than Dr. Syed’s testing. Regardless, I am largely satisfied that, when seen alongside the totality of the evidence (including the surveillance video), there are serious concerns about the applicant’s self-reported limitations.
23In addition to these inconsistencies, I also highlight the in-home assessment conducted by the respondent’s occupational therapist, Robert Campos (reports both dated June 15, 2017), wherein the applicant stated that she was unable to perform a number of household and self-care tasks. Mr. Campos’ reports are significant, as he established that the applicant has the physical capacity to perform basic household tasks (e.g., putting on and taking off clothing, making a cup of tea, etc.). His measurements of the applicant’s range of motion and strength also found largely normal results, and testing revealed no significant, cognitive issues. Ultimately, though the applicant described herself as severely limited, Mr. Campos concluded that she had the physical and psychosocial capacities needed to complete her self-care activities.
24Even if she has the physical capacity, Heath still requires me to consider whether pain and psychological distress prevent her from “engaging in” these tasks. For instance, in the report from Dr. Jugnundan (dated February 23, 2017), the applicant reported that, while she had the capacity to perform most household tasks, she “lacks motivation to do anything.” Then, in a record from October 3, 2017, the applicant’s family physician noted that the daughter attended the visit to warn about how pain is limiting her mother’s ability to function around the house. As such, she suggested her mother should receive psychotherapy.
25These reports about debilitating, psychological distress are at odds with progress notes from the psychiatrist that has been treating the applicant for many years—reports that I place significant weight on due to the longstanding relationship between the applicant and Dr. Jegapathy Rajendra. That is, in spite of the applicant’s complaints elsewhere, Dr. Rajendra found her emotional state was well managed following the accident. For example, in a record dated July 20, 2016, Dr. Rajendra found the applicant’s “moods have been very well stabilized”. Then, on October 31, 2018, Dr. Rajendra stated that the applicant’s depression was “not as severe”, and her hypomanic symptoms were “mild” (though anxiety was more prevalent). Therefore, while I accept that there have likely been some limitations caused by the exacerbation of her pre-accident psychological complaints, I am not satisfied (on a balance of probabilities) that these issues have impeded her to the point of causing a continuous inability to engage in her pre-accident activities.
26A final point raised by the applicant is that the surveillance video was shot over four days, yet she was only seen out of her apartment on August 30 and 31, 2018. She also noted in her testimony that she has good days and bad days. Beyond the fact that my conclusion does not rest solely on this surveillance, I reiterate that—to demonstrate a “complete inability”—applicants must show that they are continuously prevented from engaging in substantially all of their pre-accident activities. Therefore, since the surveillance shows the applicant engaging in an assortment of activities on half of the random days she is observed, I cannot conclude that she is continuously prevented from engaging in a substantial number of her pre-accident tasks.
27For these reasons, I find that the applicant has not met her evidentiary burden for entitlement to a non-earner benefit.
MEDICAL BENEFITS
28Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the services listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.
29All of the treatment plans recommending chiropractic services share the goals of pain reduction, increased range of motion, and a return to pre-accident activity levels. The goal of the chronic pain assessment is: “to evaluate the extent of the patient’s chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery.”
Parties’ Positions
30The applicant argued that the disputed physical therapy is a reasonable and necessary expense to help address her accident-related pain. She further contended that the chronic pain assessment should have been approved as soon as there was a “reasonable possibility” she suffered from such a condition.
31The respondent challenged the need for this proposed therapy by citing the opinion of Dr. Jugnundan who concluded that the applicant did not continue to suffer from any physical, accident-related impairments. Further, the respondent relied on comments from the applicant herself wherein she stated that this treatment was not helpful. The respondent also contended that the applicant has not established that she suffers from any pain conditions as a result of the accident.
Analysis
32Though I may not have accepted that the applicant suffers from a “complete inability” to carry on with most of her pre-accident tasks, I do accept that the accident left her with a serious pain condition. That is, after her initial, post-accident visit on May 26, 2016, the applicant reported physical pain or headaches to the family physician on June 6, 2016, July 4, 2016, and August 16, 2016, with the physician eventually diagnosing fibromyalgia on October 24, 2016. This same practitioner eventually diagnosed the applicant with “myalgia/chronic pain syndrome” on May 9, 2017, as a result of “aches and pains all over the body with persistent headache ever since the MVA.”
33The applicant was also referred to a rheumatologist, Dr. Ruban, following the accident. In a report dated October 5, 2016, Dr. Ruban concluded that the applicant “symptoms are suggestive of fibromyalgia and myofascial strain in her spine.” Similar symptomology was recorded in reports from Dr. Ruban dated February 17 and May 15, 2017.
34The respondent raised the argument that the applicant has long suffered from physical ailments, and there is no medical opinion that connects the accident to a diagnosed pain condition. For instance, in a record from the family physician dated November 5, 2015, the applicant reported “back pain on and off for the past two mths”. The applicant was also diagnosed with carpal tunnel syndrome back in July 2015.
35In reviewing the medical records before me, I find that the frequency of the applicant’s pain complaints increased significantly and immediately following the accident. As such, while there was likely some pre-accident discomfort, it is still reasonable to connect these ongoing pain complaints (and their related diagnoses of fibromyalgia and chronic pain syndrome) to the accident.
36Following on this finding, I can then conclude that the proposed chronic pain assessment was reasonable and necessary at the time it was proposed in December 2017. Therefore, even though the respondent’s assessors have cast doubt on the existence of a pain condition, I still find that there was sufficient evidence to justify exploring this avenue of inquiry.
37I am then satisfied that this pain has continued to affect the applicant—strong evidence that ongoing physical therapy is needed. For instance, evidence of this ongoing pain can be found in the chronic pain assessment from Dr. Howard Jacobs (dated January 18, 2018) and the letter from Dr. George Gale (dated April 4, 2019).
38I will note that I find the assessment of Dr. Howard Jacobs (dated January 18, 2018) to be of little persuasive value beyond its recitation of the applicant’s pain complaints. Specifically, this assessor did not appear to be aware of the applicant’s extensive, pre-accident pain, even though he had access to a Disability Certificate (dated June 20, 2017) that cited “chronic pain” as a pre-accident impairment. Without a full understanding of her pre-accident headaches, back pain, and carpal tunnel syndrome, this report is not a convincing diagnosis of her medical condition. However, even with these reservations, I still accept this report to be additional evidence that the applicant continued to complain about pain for several years after the accident.
39In addition to ongoing pain complaints, she has reported finding relief from physical therapy. For instance, in the psychological assessment by Dr. Andrew Shaul, the applicant stated that “the treatment helps to alleviate her pain.” Similar comments were made to Mr. Campos and Dr. Syed, and she also stated during her testimony before the Tribunal that this therapy has helped her pain (albeit, in a small way).
40The respondent noted that these comments are at odds with statements she made to Drs. Jugnundan and Nikkhou, wherein she stated that physical therapy either made no difference or caused additional harm. These comments are troubling, but, in light of the totality of evidence, I am satisfied (on a balance of probabilities) that the applicant has received some relief from these services.
41There is also evidence that the applicant’s psychological complaints are, in part, brought on by her physical impairments. That is, in the report from Dr. Shaul, he noted that:
As long as her physical condition, along with its pain and restrictions remain present, it is likely that [the applicant] will experience significant emotional distress… appropriate measures need to be made to ensure that she continues to receive appropriate care to address her physical conditions which will continue to be a barrier to recovery if left untreated.
While Dr. Shaul is not qualified to speak about the applicant’s physical condition, I am still satisfied that this comment is strong evidence for the proposition that physical therapy will assist with her ongoing psychological distress.
42Therefore, in light of the physical and psychological benefits she will likely obtain from this therapy, I find the disputed chiropractic services to be reasonable and necessary.
COSTS
43Rule 19 of the Tribunal’s Common Rules of Practice & Procedure states that costs may be awarded where a party has “acted unreasonably, frivolously, vexatiously, or in bad faith” in a proceeding.
44The respondent argued that the applicant’s actions during this proceeding caused it to incur significant costs. Specifically, the respondent alleged that the applicant acted carelessly in requesting several adjournments, delays that caused the respondent to waste time and money. It also claimed that these delays were caused by the applicant’s lack of preparation, and they are an affront to the Tribunal’s obligation to conduct its affairs in an efficient manner.
45In response, the applicant claimed that the hearing was first adjourned due to an administrative error on the part of the Tribunal. Then, regardless of the reason for her second request, this further adjournment was granted by the Tribunal, and so, if there had been a “strategic or cynical” reason behind the request, it would have been denied.
46I accept that these delays have caused the respondent prejudice, but I find that the applicant’s actions do not reach the high standard under Rule 19. Though the applicant would have been aware of the original hearing dates during the case conference, an administrative oversight on the part of the Tribunal was the reason for the first adjournment request. I am then satisfied that if any sharp practice had been apparent in her second request, it would have been addressed by Adjudicator Paluch in his order granting the second adjournment (dated August 7, 2019). In sum, I see no reason to grant costs in this proceeding.
ORDER
47I find the chiropractic services and chronic pain assessment proposed in the disputed treatment plans to be reasonable and necessary. Interest is also payable in accordance with s. 51 of the Schedule. The applicant is not entitled to a non-earner benefit.
48No costs will be awarded in this proceeding.
Released: May 5, 2020
__________________________
Craig Mazerolle Adjudicator
Footnotes
- O. Reg. 34/10.
- 2009 ONCA 391 (“Heath”), at para. 50.```