Citation: S.I. vs. Aviva General Insurance Company, 2020 ONLAT 20-011048/AABS

Released Date: 05/01/2020

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.I.]

Applicant

and

Aviva General Insurance Company

Respondent

DECISION [AND ORDER]

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Michael Ferrante, Paralegal

For the Respondent:

Annamarie N. White, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

REASONS FOR DECISION [AND/OR ORDER]

OVERVIEW

1On July 31, 2009, the applicant, [the applicant], was five-years old. She attended [daycare] in [city 1]. Just before the children were to take their afternoon nap, as they were in a circle, a car driving in the parking lot outside lost control and drove through the wall of the daycare. It sent a doll’s house flying. Immediately thereafter, [the applicant] complained of pain in her back. Although no-one had seen it happen, [the applicant] thought the doll’s house had hit her. As there would seem to be no other explanation for [the applicant]’s pain, this scenario is the most likely.

2[The applicant] was taken to hospital by ambulance and, thankfully, it was determined that she had no serious injuries. After a period of treatment, described in one report as the application of hot towels to the back, [the applicant] got back to the serious business of being a child.

3There are no medical records for the next seven years, indicating continued symptoms. When she was 11-years old or so, she sought treatment for back and neck pain, headaches and sleep disturbance. She attributes these symptoms to the July 31, 2009 accident. She seeks payment for physiotherapy, chiropractic and psychological treatment and a cognitive assessment.

4Aviva General Insurance Company of Canada (“Aviva”) takes the position that [the applicant] has reached maximum medical recovery with respect to the 2009 injuries and that no further treatment is reasonable and necessary. It assigns the cause of [the applicant]’s current issues to poor posture and the separation of her parents. It points to [the applicant]’s school record to state that there are no indications of cognitive impairment. It has denied payment of the benefits.

5[The applicant] has filed an application with the Tribunal to resolve her dispute with Aviva under the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg 403/96 (the “Schedule”).

6I find that [the applicant] reached maximum medical recovery shortly after the accident in 2009 and is not entitled to the benefits she seeks.

ISSUES

7The issues in dispute were identified and agreed to as follows:

a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,842.01 for chiropractic and massage treatment recommended by Health Bound Health Network in an OCF-18 submitted on August 18, 2016, and denied on December 1, 2016?

b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,608.78 for psychological services recommended by Excel Medical Diagnostics in an OCF-18 submitted on December 10, 2016, and denied on March 30, 2017?

c. Is the applicant entitled to a cost of examination in the amount of $2,664.43 for a cognitive assessment recommended by Excel Medical Diagnostics in an OCF-18 submitted August 17, 2016, and denied on March 30, 2017?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8For the reasons below, I find that [the applicant] is not entitled to the above treatment plans.

ANalysis

9Section 14 of the Schedule sets out Aviva’s obligation to pay for medical benefits provided they are reasonable and necessary. In 17-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), relied on by Aviva, Adjudicator Watt identifies that the burden to prove entitlement to a specific benefit resides with the applicant. This burden is, of course, on the civil standard of a balance of probabilities. Adjudicator Watt identifies three factors to be considered, which I find helpful:

The reasonableness and necessity of treatment requires:

i. The treatment goals as identified are reasonable;

ii. The treatment goals will be met to a reasonable degree; and

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

10The case was decided under the version of the Schedule effective after 2010, but there is no material change in the wording of entitlement to medical benefits. I find Adjudicator Watts reasoning equally persuasive with respect to injuries sustained before September 1, 2010.

11It follows from point i. above that if [the applicant] has fully recovered from her 2009 injuries, then the goals of further treatment would be unreasonable. Further treatment would have no impact on her recovery, and she may be said to have reached maximum medical recovery.

Mechanism of the Accident

12As I read through the evidence, I noted that there are various accounts of the accident. Over time, the accounts crystallized into an orthodox view that became the version reported to and by every healthcare practitioner from 2015 onwards. That version originated in the emergency room attendance following the accident. It incorrectly states the mechanism.

13The details of the accident are set out clearly in the Durham Police accident report. [The applicant] was attending daycare. Given the date of the accident, it is reasonable to assume that her kindergarten had finished for the summer. Outside of the building housing the daycare was a parking lot. A driver lost control of her car in the parking lot and broke through the exterior wall of the building, stopping when it hit a structural support. The collision projected a doll’s house across the room. The children were in a circle on the other side of the room prior to settling down for their afternoon nap. The beds were made ready. [the applicant] was standing near her bed when the incident happened. It is believed that she was hit by the doll’s house, as after the accident she complained of a sore back.

14By the time [the applicant] had arrived at hospital a short time later with her mother, the story had changed. The hospital notes indicate that [the applicant] was lying in her bed when a car came through the window, causing the doll’s house to fall on her. It is this version, or some slight variant of it, that was then consistently reported by healthcare providers. Since the police report is based on eye witness accounts given immediately following the events, I accept it as more reflective of the actual sequence of events.

The Chiropractic and Massage August 18, 2016 OCF-18

15[The applicant] submits that, beginning with a visit on March 17, 2015 to her family doctor, her doctor, Dr. Laura Musat, diagnosed her with back pain which the doctor relates to back pain from the motor vehicle accident. Since Dr. Musat’s notes are central to [the applicant]’s submissions on both the physical and psychological issue, below are the relevant portions of the March 17 visit:

Mar 17, 2015

cc: back pain

cant [sic] sit down for long

had an accident at daycare - toy house fell on back (2009 - at 6 yo)

went to ER xray [sic] normal - pain lowad [sic] upper since - recom massage, no broken bones all back pain after long stitting [sic] - needs to change positions

had massage tx for 3 mo

no medications

pain getting worse

has nightmares since waking up during the night

mood affected. sad

flashbacks with the accident

back no tenderness, ROM full

Ch back pain post injury in 2009

Posttraumatic stress disorder post injury 2009

tyl or advil prn, recom massage and PT for back pain

referral to Shoniker clinic done

cerumol rtc if not better

16As of March 17, 2015, it appears that long periods of sitting triggered back pain. The pain is noted in the lower and upper back, but on palpitation there was no tenderness and there was full range of motion.

17There are also two statements which form the basis of [the applicant]’s submission – “toy house fell on back (2009 – at 6 yo)” and “pain lower and upper since.” My difficulty with these two statements is Dr. Musat’s use of the word “since.” I can find nothing in the medical evidence elsewhere submitted for the hearing that suggests that [the applicant] suffered any form of back pain between 2009 and 2015, when back pain prompted the March 17, 2015 visit to Dr. Musat.

18From March 17, 2015 onwards, all of [the applicant]’s treating healthcare practitioners accept that [the applicant]’s back pain has been continuous as fact without further objective enquiry. This approach is problematic. Not only does it appear that there were no complaints of back pain to any healthcare practitioner for the six years before, but all diagnostic imaging and tests show no abnormalities and normal range of motion.

19I do note that, in her psychological assessment by Dr. Valentin, [the applicant] states that the back pain was constant since the accident. Dr. Valentin points out that there is no clinical condition that would cause back pain, and surmises that its cause may be psychosomatic. Dr. Valentin also notes poor posture.

20Aviva relies on the assessment conducted on its behalf by Dr. Gregory Soon-Shiong, an orthopaedic surgeon. Dr. Soon-Shiong assessed [the applicant] on October 19, 2016 and released his report four weeks later, on November 16. His review of [the applicant]’s immediate post-accident treatment and health since the accident explains the lack of medical records for six years. He states:

Following the subject accident in 2009, [the applicant] attended a physiotherapy centre. She was given physiotherapy, which she describes as an application of hot towels for two to three months. Apart from applying hot towels to her body, there was absolutely no other form of therapy. She had no exercise therapy. She had no other passive or active modalities…Past medical history is totally unremarkable. [The applicant] has been totally healthy with no significant medical problems.

21Dr. Soon-Shiong determines that [the applicant]’s injuries from the accident have resolved and her current complaints of pain in the lumbar spine arise from bad posture. As Dr. Musat did in her notes, Dr. Soon-Shiong also comments on [the applicant]’s obesity. He concludes:

[the applicant] was involved in acceleration/deceleration accident seven years ago and any soft tissue injuries sustained at that time are expected to have healed at this point in time.

As far as her current diagnosis is concerned, [the applicant] has mechanical back pain. She has absolutely no signs of neurological deficits and no signs of any physical disability. The back pain appears to be discogenic in nature and is exacerbated by poor postural mechanics, especially with prolonged periods of sitting with a slouched posture, which typically would result in increased interdiscal [sic] pressure. This is a benign condition and I doubt that this is in any way related to the above motor vehicle accident.

I have advised [the applicant] and her mother that the therapy that she is currently receiving is unlikely to give her any significant benefit over the long term.

22I find Dr. Soon-Shiong’s report persuasive. Unlike the other medical evidence put forward, he has taken the time to enquire into the six-year hiatus between treatment immediately post-accident and the appearance of symptoms in 2015 and 2016. His objective findings of normal range of motion in both the cervical and lumbar spine without pain accord with the results of diagnostic imaging, all of which find that [the applicant]’s back is normal. Dr. Soon-Shiong indicates the mechanism for the current back pain complaints as prolonged sitting with poor posture. The factor was also commented on by [the applicant]’s psychologist in her recommendation for physiotherapy and chiropractic. There is also mention of obesity, a factor that concerned Dr. Musat and led to nutritional counselling.

23On the evidence reviewed above, I find that [the applicant] is unlikely to achieve any further benefit for her injuries sustained in the motor vehicle accident through the treatment modalities set out in the August 16, 2016 OCF-18. It is not reasonable and necessary.

Further Psychological Treatment December 10, 2016 OCF-18

24On March 17, 2015 Dr. Musat noted that [the applicant] was having nightmares. As a result, [the applicant] underwent a psychological assessment on July 14, 2016. In her report dated August 5, 2016, the assessing psychologist, Dr. Irina Valentin, diagnosed [the applicant] with Adjustment Disorder with mixed anxiety and depressed mood, and Specific Phobia (ambulance). Dr. Valentin recommended 12 one-hour treatment sessions.

25Aviva funded these treatments, and, on December 5, 2016, Dr. Valentin authored a progress report noting: “At this time, [the applicant] continues to present with mild symptoms of anxiety and post-traumatic stress.” The report, together with a further OCF-18 dated December 10, 2016 recommending a further 15 sessions, was forwarded to Aviva. Aviva denied it.

26In its submissions, Aviva points out that the session notes indicate that [the applicant] was a reluctant participant in the psychology sessions. She described herself as happy both before and after the accident. Aviva further points out that the source of much of the information relied on by Dr. Valentin comes from [the applicant]’s mother and not [the applicant] herself.

27Aviva’s psychological assessor, Dr. Syed, assessed [the applicant] on March 9, 2017. Dr. Syed concluded that [the applicant] did not have a psychological condition that would warrant a diagnosis under the standard diagnostic manual DSM-V.

28In applying the factors set out above to the December 10, 2016 OCF-18, I find that the plan is not reasonable and necessary. I note that, even accepting Dr. Valentin’s diagnosis uncritically, [the applicant] is suffering from mild psychological symptoms. The substance of Dr. Valentin’s findings, and the dispute between [the applicant]’s view of herself contrasted with her mother’s view of her are set out in Dr. Valentin’s report:

The results of objective measures completed by [the applicant] indicate she portrayed herself as relatively free of the common shortcomings to which most individuals will admit and it is likely that her responses underrepresent the extent and degree of her present psychosocial distress and difficulties. With this in mind, her responses on all measures indicate no significant psychosocial difficulties at present. By contrast, her mother's ratings indicate mild clinical risk level difficulties with inattention, impulsivity, and hyperactivity, which are having mild effects on [the applicant] academically, and in personal and social contexts, representing a mild clinical risk of attention deficit. [emphasis added]

29The question then is whether a further 15 sessions of psychological treatment at a cost of $4,608.78 is reasonable when confronted with the mildness of the condition and [the applicant]’s reluctance to take the treatment. Applying the factors set out above, it appears to me that the treatment is not reasonable. The goals have limited scope when faced with mild symptoms. In any event, given [the applicant]’s reluctance to attend, the goals are unlikely to be achieved. I note too that the treatment is expensive.

Cognitive Assessment OCF-18 August 17, 2016

30Dr. Valentin recommended an assessment on the basis that there may be mild clinical risk of attention deficit. The wording in the OCF-18 is an assessment for “psycho-educational support.” I do not find the treatment proposed in this OCF-18 to be reasonable and necessary. I come to this conclusion on two grounds.

31My first ground echoes my concerns over the continued psychological treatment. The condition is noted as mild. There would appear to be little or no impairment of [the applicant]’s success or failure in school. [the applicant] has not been held back in school and has proceeded through each grade as expected. Her 2014 to 2016 report cards show application and her grades cluster from B+ to C+ with the some Cs and a D+. I conclude from this that [the applicant] is an average to good student.

32The second area that I find significant in approaching this OCF-18 is that it would appear to be duplicative of efforts already put in place by [the applicant]’s school to address identified shortcomings. While [the applicant]’s mother stated to Dr. Syed that [the applicant] had a learning disability, she could not identify it or provide any details. Notwithstanding this fact, it appears that [the applicant]’s school developed an Individual Education Plan for [the applicant]. Such a plan would seem to be the goal of the proposed assessment. It is not reasonable to duplicate the school’s efforts in this area.

Non-Compliance with the Timelines in [ss. 38](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html#sec38_smooth) and [42](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html#sec42_smooth) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html)

33[the applicant] submits that Aviva has run afoul of the timelines set out in ss. 38 and 42 of the Schedule. Section 38 generally sets out the mechanism for making claims and puts obligations on insurers to respond within certain time limits. Of particular importance in this regard is s. 38(8.2)2, which states that, when an insurer does not comply with the notice provisions, “ the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice.”

34[the applicant] points out that Aviva failed to give proper notice with respect to the OCF-18s in dispute. A review of the dates of Aviva’s response to OCF-18 indicates, that Aviva did not respond within the 10 days required by s. 38(8)1. Tardiness in providing a response does not automatically lead to a right to payment of a treatment plan. Where an insurer does not respond in accordance with s. 38(8)1., an insured is entitled to payment for any services provided during the time from the 11th business day after receipt of a treatment plan until the insurer sends the appropriate notice. By way of example, if an insurer does not send notice for 20 business days, the insurer is entitled to payment for goods and services provided from the 11th day until the 20th day. If no goods or services were provided during this period, nothing is payable.

35[the applicant] makes no further submissions with respect to the cost of any goods and services provided from the 11th day until the compliance date when valid notice was given. I have no evidentiary basis to conclude that [the applicant] is entitled to payment under s. 38(8.2)2 for services provided during any period when Aviva may have been in default of its obligations.

CONCLUSION AND ORDER

36I find that none of the proposed treatment plans in issue in this matter are reasonable and necessary. [the applicant]’s application is dismissed. Given that none of the treatment plans is outstanding, no interest is payable under the Schedule.