G.K. v. Aviva Insurance Canada, 2020 CanLII 61468

Citation: G. K. vs. Aviva Insurance Canada, 2020 ONLAT 18-009299/AABS

Released Date: May 20, 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:

G.K.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: David Cutler

Counsel for the Respondent: Michael Silver

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on May 11, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a passenger in a vehicle that was involved in an automobile accident. As result of the accident, the applicant suffered a concussion and soft-tissue injuries to her neck and back.

3The applicant applied for medical benefits that were denied by the respondent on the basis that the applicant’s injuries were within the definition of “minor injuries” and therefore subject to treatment under the Minor Injury Guideline (the “MIG”) and that they were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4The applicant was subsequently removed from the MIG by the respondent.²

5On February 18, 2020 the Tribunal sent a letter on my behalf to the parties that the applicant’s submissions were not in compliance with the Order dated March 31, 2019 which required the submissions to be double spaced, 12 point font and not to exceed 12 pages in length. As a result, the applicant was required to resubmit her submissions to the respondent and the Tribunal and the respondent filed submissions in response.

ISSUES TO BE DECIDED

6The following are the issues to be decided:

a. Is the applicant entitled to a medical benefit in the amount of $1,147.62 for occupational therapy assessment, denied by the respondent September 26, 2018?

b. Is the applicant entitled to medical benefit in the amount of $3,287.55 for an occupational therapy services, denied December 12, 2018?

c. Is the applicant entitled to medical benefit in the amount of $751.40 for an optometry assessment, denied January 14, 2019?

d. Is the applicant entitled to interest on any overdue benefit?

e. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

7In the applicant’s submissions she seeks to add the issue of a gym membership and personal trainer in the amount of $5,651.10 submitted to the respondent on March 15, 2019. The respondent does not consent to this issue being added.

8The respondent, in its submissions, seeks to add the issue of costs.

9Both additional issues raised in the submissions will be addressed below.

RESULT

10I find the applicant is entitled to the claimed benefits including the treatment plan for a gym membership as well as interest on the overdue payment of the benefits in accordance with the Schedule.

11The applicant is not entitled to an award; and

12The respondent is not entitled to costs.

ANALYSIS

Preliminary Issue

Should the treatment plan in the amount of $5,651.10 for a gym membership and personal trainer be added as an issue in dispute?

13This issue shall be added as an issue in dispute for the purposes of this hearing for the following reasons.

14Although the Tribunal Order dated March 31, 2019 did not list the issue of a gym membership and personal trainer as an issue in dispute, the applicant, in her written submissions seeks to add this issue as part of this written hearing.

15The respondent does not consent and submits that this issue should not be added to this written hearing as the applicant did not seek the consent of the respondent and nor did she file a motion with the Tribunal seeking to add this as an issue in dispute.

16The respondent further submits that it has been prejudiced by being forced to use a portion of its submissions responding to this preliminary issue.

17Although the Tribunal Order did not list this as an issue in dispute, there are ways an applicant can attempt to add an issue in dispute after a case conference has taken place. The appropriate way to do so would be to seek the consent of the respondent, or to bring a motion to the Tribunal under Rule 15.³

18In this case, neither option was done and instead the applicant, for the first time, seeks to add this issue as part of her written submissions. Despite this, I find that the issue can be added as an issue in dispute for the purposes of this hearing because the respondent has not persuaded me of any prejudice it has suffered as a result and also because Rule 3.1 of the Rules requires the Tribunal Rules to be liberally interpreted and applied, waived or varied to ensure an efficient, proportional and timely resolution of the merits of the proceedings.

19In my opinion, adding this issue in dispute to the hearing would ensure an efficient and timely resolution between the parties, otherwise the applicant would be forced to commence a separate application for one issue which would not be proportional or efficient. Furthermore, I find that the respondent is marginally prejudiced by the inclusion of this issue due to way in which it is being raised; however, that prejudice is cured as the respondent was provided with an opportunity to respond to the issue and has in fact done so.

20As a result of the above, it is my finding that the applicant is able to add the issue of the gym membership as an issue in dispute for this hearing.

Is the respondent entitled to add the issue of costs?

21The respondent is entitled to add the issue of costs to this proceeding as the Rules allow for costs to be added in-writing at a hearing anytime before a decision is released.⁴

22In accordance with the Rules, the respondent is entitled to add costs to the issues in dispute.

23I will now turn to discuss the substantive issues in dispute for this hearing.

Is the applicant entitled to a medical benefit for an occupational therapy assessment in the amount of $1,147.62 and occupational therapy in the amount of $3,287.55?

24Based on the following, I find the medical benefit for an occupational therapy assessment and the occupational therapy treatment to be reasonable and necessary for the following reasons.

Occupational Therapy Assessment

25In my view, in order to show that an assessment is reasonable and necessary the applicant must adduce evidence that demonstrates there is a reasonable possibility that she has the condition or the circumstances the assessment is proposing to investigate.

26The applicant submits she has struggled with pain and disability constantly since the accident occurred and was generally unable to work part-time after the accident. She became socially isolated due to her symptoms and fatigue and suffered from headaches, cognitive problems, poor concentration, mood problems, anxiety, fatigue, dizziness, nausea, light and noise sensitivity, as well as back and neck pain.⁵

27The applicant further submits she has needed help since the accident at home, at school and at work as she has very limited support in Canada, and an occupational therapy assessment was recommended in order to properly assess her needs.

28The occupational therapy initial assessment report of Jaelle Brien notes the applicant has resumed school on a modified capacity and she has received accommodations through her school; however, the applicant has increased difficulties in concentration, increased anxiety and increased pain in her back and neck due to seating in her class.⁶

29According to the initial assessment report, the applicant has resumed her part-time job as a bakery assistant with accommodations including decreased lifting and carrying, decreased access to the freezer and refrigerators; however, she reports increased difficulty in being in a cold environment like a walk-in fridge or freezer as it creates immediate headaches and symptoms. She often feels dizzy and nauseous when leaving work and reports increased stress the night before she goes to work.

30The interim progress report by Dr. Gow, psychologist,⁷ notes the applicant to have reduced attention, distractibility, reduced focus, poor memory, forgetfulness, multitasking problems and emotional symptoms. Dr. Gow further notes that applicant has fatigue, as well as dizziness, blurred vision and ringing in the ears. Dr. Gow recommends occupational therapy treatment amongst her other recommendations.

31The respondent submits the applicant continued to attend school and received support and assistance from the university. Further, as a result of the opinion of the applicant’s doctor, Dr. Greenberg--a physician who opined that the applicant was capable of completing a full-time graduate program--the respondent’s position is that the occupational therapy assessment and treatment are not reasonable and necessary because the applicant successfully completed her academic career.

32I disagree with the respondent. Dr. Greenberg saw the applicant to complete the medical certificate on the Functional Limitation and Learning Needs Assessment Form for the University of Ottawa.⁸ As a result of completing this form, the applicant was provided accommodations based on her functional limitations with respect to her graduate program. It did not have the same relevance or scope as an occupational therapy assessment.

33Based on the initial assessment report of Jaelle Brien and the interim progress report of Dr. Gow, I find that it is a reasonable possibility that the applicant may have the condition or the circumstances the assessment proposes to investigate, and in my view, the occupational therapy assessment is reasonable and necessary.

Occupational Therapy Treatment

34The treatment being proposed is to increase her ability to perform schoolwork by 30 minutes without an increase in her symptoms, to implement two pacing strategies to manage her post-concussion symptoms, to implement two or more sleep hygiene principles daily to improve her sleep and one or more strategies to manage her anxiety and depressive symptoms.⁹

35Dr. Gow, psychologist, in her report dated November 6, 2018 recommends occupational therapy to assist the applicant with respect to various activities on her headaches, sleep disturbance and overall symptom level as well as to help manage her activities, implementing pacing and to implement cognitive compensatory strategies.¹⁰

36Dr. Greenberg noted the applicant has mild to moderate functional limitations with respect to the following:¹¹

a. Walking

b. Lifting

c. Carrying

d. Pushing/pulling

e. Bending/twisting/turning

f. Repetitive activity

g. Sustained postures

h. Balance

i. Concentration

j. Memory

k. Decision making; and

l. Light sensitivity

37He further opines that the applicant has mild or moderate functional limitations in:

a. Attention and concentration

b. Organization

c. Information processing verbal or written

d. Rational thought and reasoning

e. Working memory

f. Information retention

g. Interpersonal skills

h. Management of internal and external distractions; and

i. Physical stamina

38The respondent relies upon the IE assessments of Dr. White, physician and Dr. Howse, neurologist. The respondent submits that as a result of the applicant’s academic career being complete, the occupational therapy treatment is not reasonable and necessary and that the applicant reported to Dr. White that she cooks for herself and did not report any limitations academically.

39Dr. Howse in his report dated March 8, 2019 opines that the occupational therapy treatment plan is not reasonable and necessary because the organic neurobiological effect of the concussion has resolved and her ongoing symptoms are related to myofascial injuries and psychological factors.¹²

40Dr. Howse goes on to opine that the applicant has not reached maximum medical recovery from her posttraumatic headache as her headache is associated with ongoing myofascial complaints and psychological factors which appear to be significant with respect to her depression and anxiety symptoms.¹³ Dr. Howse recommends a headache specific program targeted at her multiple specific symptoms including the use of tricyclic such as imipramine, or a graded use of topiramate, or the intermittent use of Botox in conjunction with the management of her myofascial and psychological injuries.¹⁴

41I do not agree with the respondent. I find that the applicant is entitled to choose treatment that is not as invasive as recommended by Dr. Howse in his IE. He has opined that the applicant has not reached maximum medical improvement and the occupational therapy treatment being proposed is to help the applicant with her symptoms of fatigue, anxiety and headaches, which are similar symptoms to which Dr. Howse finds the applicant requires treatment for as well.

42The respondent further relies upon an insurer examination (“IE”) of Dr. White, physician, dated March 8, 2019 who opined that the treatment plan was not reasonable and necessary as the applicant had a normal musculoskeletal examination.¹⁵

43The respondent’s IE assessor Dr. White diagnosed the applicant with whiplash-associated disorder and back pain and finds her injuries to be within the MIG. However, Dr. White merely recites the self-reports by the applicant, and a deferral to specialists on those issues. Dr. White further states that occupational therapy and other measures to treat her mild traumatic brain injury are not her area of expertise.¹⁶

44I place less weight on the IE report of Dr. White for the following reasons. Dr. White’s opinion was that the treatment plan is not reasonable and necessary because the applicant is within the MIG; however, the applicant was subsequently removed from the MIG by the respondent. Further, the purpose of the IE was to opine on an income replacement benefit test under the Schedule, which is not an issue in dispute before me. Furthermore, Dr. White provides an opinion on the occupational therapy services which includes a referral to a psychologist and neuro-optometrist while stating these areas are not within her expertise. She also defers to these specialists within her report and suggests that the applicant may have some affective disorder with respect to her mental status.¹⁷

45As a result of the above and the IE assessor Dr. Howse who opines that the applicant has not reached maximum medical recovery, I find on a balance of probabilities that the applicant has proven that the occupational therapy services are reasonable and necessary.

Is the applicant entitled to medical benefit in the amount of $751.40 for an optometry assessment?

46I find the applicant is entitled to an optometry assessment for the following reasons.

47The applicant submits she suffers from visual issues and light sensitivity and relies upon the Interim Progress Report dated November 6, 2018 of Dr. Gow and letter from her occupational therapist, Jaelle Brien. Dr. Gow notes that the applicant has blurred vision and light sensitivity¹⁸ and the letter to the respondent from Jaelle Brien dated December 21, 2018 notes that the applicant was assessed by her and she found the applicant to have visual issues as well light sensitivity.¹⁹

48The applicant also self-reports to Dr. Howse that she has light sensitivity, intermittent blurriness of vision, a bilateral loss of vision and blurred vision at time of stress or fatigue.²⁰

49Dr. Howse, the respondent’s IE assessor, also noted the applicant may have had transient visual symptoms at the time of the accident but he found no current symptoms at the time of his assessment. However, Dr. Howse further opines that a referral to an optometrist might be appropriate to investigate a diagnosis of “Disorders of the vitreous body.”²¹

50In my view, the fact that the respondent found it necessary to have the applicant assessed by its own assessor after being presented with the applicant’s assessment would appear to undermine its claim that the applicant does not require any further assessment or evaluation.

51As a result of the recommendations from Dr. Gow, Jaelle Brien and Dr. Howse who opines that a referral to an optometrist might be appropriate, I find that on a balance of probabilities an optometry assessment is reasonable and necessary.

Is the applicant entitled to a gym membership and personal trainer in the amount of $5,651.10?

52I find that the treatment plan proposing a gym membership for six months is reasonable and necessary for the following reasons.

53The treatment plan proposes a gym membership and personal training sessions to help achieve the goals of pain reduction and management of her concussion and mental health symptoms as well to help her return to her activities of daily living.

54Under Part 9 of the treatment plan and in response to the question “If this is a subsequent Treatment and Assessment Plan, what was the applicant’s improvement at the end of the previous plan?”, it was stated that the applicant attended the gym after the accident and benefited from physical exercise to improve her pain, concussions symptoms and her mood.²²

55Under the Additional Comments section of the treatment plan, it states that through being physically active and having a supervised program, it will assist the applicant in her pain levels and strength in her neck and back as well as improve her concussions symptoms and assist with her mood.

56The applicant also submits that the gym and training program was a significant benefit as she felt much better when she was engaged in this treatment. The gym and training program was also acknowledged and recommended by her psychologist, Dr. Gow, who recommends the applicant be provided a gym membership to be encouraged to continue with her regular exercise routine as it was benefitting and achieving some alleviation of her symptoms and that cardiovascular and resistance training have been documented to stimulate recovery, manage depressive and anxiety symptoms.²³

57The applicant’s occupational therapist, Jaelle Brien, also noted in her report that when the applicant was attending the gym with a personal trainer and she reported that this is the only thing that makes her happy and it was reducing her symptoms in the period following her workout.²⁴

58The applicant also advised Dr. Howse during her IE assessment that she was advised by the University Health Service to join a gym and she was directed by a personal trainer. She found the program proved to be effective treatment and that she was beginning to feel “good” and “happy”.²⁵

59The respondent submits that the applicant did not suffer from any physical impairment and relies upon the IE assessment of Dr. White from her report dated April 15, 2019, wherein she opines that the applicant had reached maximal medical recovery from a musculoskeletal perspective and had entirely normal function and no further treatment or therapy was required from a musculoskeletal perspective.

60I do not agree with the respondent. Although Dr. White opined that the applicant had completely normal function based on her physical examination of her, Dr. White still diagnosed the applicant with Whiplash Associated Disorder and back pain. Furthermore, Dr. White notes that the applicant reported daily headaches and emotional symptoms which were not her area of expertise.²⁶

61As mentioned above, the goals of the treatment plan were to help with pain reduction and management of her concussion and mental health symptoms.

62Based on the fact that the applicant’s psychologist, Dr. Gow, recommends a gym membership to help alleviate her mental health symptoms and from the notes from her occupational therapist that attending the gym has had a beneficial impact and reduced her symptoms as well as the applicant’s comments to Dr. Howse that the University Health Service recommended that she attend at the gym, I find that the applicant has proven on a balance of probabilities that the treatment plan for a six month membership is reasonable and necessary.

Interest

63As a result of finding that the treatment plans are reasonable and necessary, the applicant is entitled to interest in accordance with the Schedule.

Is the applicant entitled to an award?

64The onus is on the applicant to prove on a balance of probabilities and the applicant has provided no submissions or evidence in support of her claim for an award and as a result, I find that there are no unreasonably withheld or delayed payments that would justify an award from the respondent.

Is the respondent entitled to costs?

65The onus is on the party seeking costs to prove on a balance of probabilities that the other party acted unreasonably, frivolously, vexatiously or in bad faith in the proceeding.²⁷

66In this case, the respondent seeks costs as a result of having to respond to the applicant’s late request to add the gym membership issue in dispute to this written hearing.

67In my opinion, having to respond to an issue in dispute which was denied by the respondent and the respondent having an opportunity to respond to cure any potential prejudice is not evidence of the applicant having acted unreasonably, frivolously, vexatiously or in bad faith in this proceeding.

68As a result, the respondent’s request for costs is dismissed.

ORDER

69For the reasons outlined above, the applicant is entitled to the claimed benefits and interest in accordance with the Schedule.

70The applicant is not entitled to an award; and

71The respondent is not entitled to costs.

Released: May 20, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s written submissions at Tab 5, Letter from respondent dated February 20, 2019.
3. 3Common Rules of Practice & Procedure, October 2, 2017. (Rules)
4. 4Ibid, Rule 19.2
5. 5Applicant’s written submissions at Tab 1, Occupational Therapy Initial Assessment Report of Jaelle Brien dated October 24, 2018.
6. 6Ibid.
7. 7Ibid at Tab 2, report dated November 6, 2018
8. 8Respondent Written Submissions at Tab H.
9. 9Applicant’s Written Submissions at Tab 7, page 11.
10. 10Ibid at Tab 2.
11. 11Respondent Written Submissions at Tab H
12. 12Respondent’s Written Submissions at Tab L, page 14.
13. 13Ibid.
14. 14Ibid.
15. 15Written Submission of the Applicant at Tab A, Dr. White IE report at page 11.
16. 16Applicant’s Written Submissions at Tab A, page 7.
17. 17Ibid at page 6.
18. 18Applicant’s Written Submissions at Tab 2.
19. 19Ibid at Tab 14.
20. 20Respondent’s Written Submissions at Tab L, page 6.
21. 21Respondent’s Written Submissions at Tab L, page 13.
22. 22Applicant’s Written Submissions at Tab 12.
23. 23Ibid at Tab 2.
24. 24Ibid at Tab 1.
25. 25Respondent’s Written Submissions at Tab L, pages 6-7.
26. 26Ibid at Tab M, page 6.
27. 27Rule 19 of the Common Rules of Practice and Procedure, October 2, 2017.