B.S. v. Aviva Insurance Canada, 2020 CanLII 63572

Citation: B.S. vs. Aviva Insurance Canada, 2020 ONLAT 19-001828/AABS

Released Date: 08/26/2020

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:

B.S.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Melody Maleki-Yazdi, Adjudicator

APPEARANCES:

For the Applicant:

Tanjoyt Deol, Counsel

For the Respondent:

Robert J. Jones, Counsel

HEARD:

By way of written submissions

OVERVIEW

1B.S. (“the applicant”) was injured in an automobile accident (“the accident”) on October 10, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when her claims for medical benefits and costs of examinations were denied by the respondent.

2The respondent determined that the applicant had sustained a predominantly “minor injury” and is subject to the $3,500.00 limit for medical benefits under the Minor Injury Guideline² (“the MIG”).

3The applicant’s position is that the respondent did not satisfy the notice requirements under s. 38(8) of the Schedule when it denied these treatment plans and that the consequences under s. 38(11) of the Schedule should be applied. Furthermore, the applicant submits that her injuries remove her from the MIG and that all the treatment plans in dispute should be found reasonable and necessary.

4The respondent’s submissions do not address s. 38.

ISSUES

5The following issues are in dispute for this hearing:

(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?

(ii) If the applicant’s injuries are not within the MIG, then I must determine the following issues:

(a) Is the applicant entitled to a medical benefit in the amount of $2,281.03 for physiotherapy services, recommended by Avala Wellness in a treatment plan submitted on March 8, 2017, and denied on March 22, 2017?

(b) Is the applicant entitled to payments for the cost of examination in the amount of $2,460.00 for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan dated August 1, 2017, and denied by the respondent on August 14, 2017?

(c) Is the applicant entitled to payments for the cost of examination in the amount of $2,680.00 for a chronic pain assessment, recommended by Complete Rehab Centre in a treatment plan dated September 1, 2017, and denied by the respondent on September 18, 2017?

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

RESULT

6I find that the applicant’s injuries fall outside of the MIG due to her psychological impairments.

7The applicant is entitled to all three treatment plans in dispute because they are reasonable and necessary: physiotherapy services in the amount of $2,281.03; the psychological assessment in the amount of $2,460.00; and the chronic pain assessment in the amount of $2,680.00.

8The applicant is entitled to interest on any overdue payments of benefits.

ANALYSIS

Breaches of Order

9The parties agreed to proceed by way of a written hearing and agreed to page limits on the written submissions as well as deadlines for productions.

10The parties raise a number of arguments regarding various alleged breaches of the Order made by the Tribunal. Below, I have addressed the alleged breaches raised in the submissions where the parties are requesting for the Tribunal to make an Order.

11The applicant submits that the respondent failed to adhere to the page limit by exceeding the limit by two pages. The applicant has asked me to disregard the last two pages of the respondent’s submissions on account of its failure to comply with the Order.

12Furthermore, the applicant submits that the respondent did not comply with the Order because it did not file any evidence with the Tribunal by the agreed upon deadline. The applicant submits that numerous documents filed by the respondent should be excluded for the purposes of this hearing.

13Regarding the page limit, I agree with the applicant that the respondent did not comply with the Order and that this is prejudicial to the applicant who did not have the benefit of the additional pages of submissions. Therefore, I will disregard those two extra pages.

14I have decided to deny the applicant’s request to exclude the respondent’s various documents. In her submissions, the applicant specifies which tabs of the documents relied on by the respondent were unavailable to her as a result of the alleged non-compliance. The documents are the following: Tab 8 is the initial Tribunal application; Tab 11 is the notice of case conference; TAB 12 is a prescription summary; Tabs 23 to 32 include an excerpt from the Schedule, an excerpt from the Minor Injury Guideline and various case law.

15The applicant submits that it would be prejudicial to her to allow this evidence for the purposes of the hearing as the respondent did not comply with the deadline. The applicant does not explain how or why the exclusion of this evidence prejudices her. I am not satisfied that the applicant would suffer any prejudice if these documents were included as evidence in this matter.

Did the respondent satisfy the notice requirements under s. 38(8) of the Schedule?

16The applicant submits that the respondent did not provide a medical reason in its notice letters for the treatment plans in dispute. Specifically, the applicant submits that she was left in the dark and was not provided with any details about her condition in the respondent’s notice letters, which is in contravention of the respondent’s requirements in s. 38(8). The applicant submits that that the consequences under s. 38(11) should be applied and that respondent ought to pay for the treatment plans.

17Section 38(8) of the Schedule requires the insurer to, within 10 business days after receipt of a treatment plan, give the insured person notice identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide “the medical reasons and all of the other reasons” why the insurer considers what has been denied not to be reasonable and necessary.

18In this case, the applicant has been subject to the MIG. Therefore, an insurer who fails to provide the insured with adequate notice of the reasons for denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Furthermore, pursuant to s. 38(11)2, the respondent must pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives a notice that complies with s. 38(8) of the Schedule.

19The applicant relies on the analysis provided in T.F. v. Peel Mutual Insurance Company³ with respect to the meaning of “medical and any other reasons”. I agree with the reasoning in that reconsideration decision in which Executive Chair Lamoureux stated:

… an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.⁴

20The applicant submits that the respondent did not provide a medical reason in its notice letters when it denied the following treatment plans:

(i) physiotherapy services in the amount of $2,281.03, recommended by Dr. Pearl Mehra (chiropractor);

(ii) psychological assessment in the amount of $2,460.00, recommended by Dr. Rahim Jessa (chiropractor) and to be assessed by Dr. Jon Mills (psychologist); and

(iii) chronic pain assessment in the amount of $2,680.00, recommended by Dr. Rahim Jessa (chiropractor) and to be assessed by Dr. Farhan Siddiqui (general practitioner).

21The Explanation of Benefits (“EOBs”) that initially denied these treatment plans are similarly worded. The initial EOB for the physiotherapy services is dated March 22, 2017. The initial EOB for the psychological assessment is dated August 14, 2017. The initial and only EOB for the chronic pain assessment is dated September 18, 2017.

22The cover letters indicate that one of the reasons that the respondent will not pay for the treatment plan is because “compelling evidence that shows that your injuries do not fall within the Minor Injury Guidelines (MIG) has not been received to date.” I find that there are no details provided regarding the “compelling evidence.” The letters also indicate that “an Insurer's Examination will assist in confirming your injuries, impairments and make recommendations for on-going treatment and/ or assessments.”

23I find that the EOBs are vague and do not provide the applicant with a meaningful explanation for the denials to allow the applicant to make an informed decision about whether to either accept or dispute the respondent’s decision. These EOBs do not follow the requirements set out in the reconsideration decision noted above. Accordingly, I find that these EOBs do not satisfy the respondent’s obligations under s. 38(8).

24There is a subsequent EOB dated May 25, 2017, for the treatment plan for physiotherapy services, that was provided following the insurer’s examination (“IE”) with Dr. Maria Nesterenko (general practitioner). The explanation provided in that EOB is as follows: “As per Dr. Nesterenko's report, the above Treatment and Assessment Plan (OCF-18) is not reasonable or necessary for the injuries that you suffered in the above accident. As per Dr. Nesterenko's report, your injuries fall within the Minor Injury Guideline.”

25There is also a subsequent EOB dated October 23, 2017, for the treatment plan for the psychological assessment, that was provided following the IE with Dr. Curt West (psychologist). The explanation provided for that EOB is as follows: “As per Dr. West's report, the above Treatment and Assessment Plan (OCF-18) is not reasonable or necessary for the injuries that you suffered in the above accident. As per Dr. West's report, your injuries fall within the Minor Injury Guideline.”

26There is no subsequent EOB for the treatment plan for the chronic pain assessment. The respondent did not complete an IE for that treatment plan.

27I find that the subsequent EOBs for the treatment plans for physiotherapy services and the psychological assessment are compliant with s. 38(8), and therefore, these EOBs cure the deficiencies in the earlier EOBs. The subsequent EOBs provide more information and refer to the medical reports conducted by Dr. Nesterenko and Dr. West. Dr. Nesterenko concluded that the treatment plan for physiotherapy services was not reasonable and necessary. Dr. West concluded that the treatment plan for the psychological assessment was not reasonable and necessary.

28For all three treatment plans, pursuant to s. 38(11)1, the respondent is prohibited from taking the position that the MIG applies to the treatment plans.

29For all three treatment plans, pursuant to s. 38(11)2, the applicant is entitled to payment for all goods, services, assessments and examinations described in the treatment plans that relate to the period starting on the 11th business day after the insurer received the treatment plans and ending on the day the insurer gives notices as described in s. 38(8).

30In regard to the treatment plan for physiotherapy services, pursuant to s. 38(11)2, the applicant is entitled to any incurred expenses starting on the eleventh business day following receipt of the treatment plan and ending on the day a compliant notice was given. The respondent provided a compliant notice on May 25, 2017.

31In regard to the treatment plan for the psychological assessment, pursuant to s. 38(11)2, the applicant is entitled to any incurred expenses starting on the eleventh business day following receipt of the treatment plan and ending on the day a compliant notice was given. The respondent provided a compliant notice on October 23, 2017.

32In regard to the treatment plan for the chronic pain assessment, there is no evidence before me that the respondent ever gave a proper notice. Therefore, as a result of the respondent’s improper notice and until the respondent gives a notice as described in s. 38(8), I find that the applicant is entitled to any incurred expenses related to the chronic pain assessment.

Applicability of the Minor Injury Guideline

33The term “minor injury” is defined in s. 3 of the Schedule as “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.”

34Section 18(1) limits the recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

35The onus is on the applicant to show that her injuries fall outside of the MIG.

Did the applicant sustain predominantly minor injuries?

36The applicant’s evidence and submissions indicate that she has a pre-existing medical condition, that she has developed a chronic pain condition and that she suffers from psychological impairments as a result of the accident. It is on this basis that she argues that her impairments fall outside of the MIG.

37I find that the applicant is removed from the MIG as a result of her psychological impairments.

38As I have found that she is removed from the MIG based on her psychological impairments, I do not need to address whether or not she had any pre-existing medical condition or chronic pain as a result of the accident that would remove her from the MIG.

The applicant is removed from the MIG on the basis of psychological impairments

39The applicant claims that she suffers from psychological injuries as a result of the accident that cannot be captured within the MIG.

40An applicant can be removed from the MIG if she demonstrates a psychological impairment. Psychological impairments, if established, fall outside the MIG because the MIG only governs “minor injuries” and the definition does not include psychological impairments.

41There are two psychological assessments/reports before me. One is from Dr. Jon Mills, a psychologist who supervised the assessment, while Amrita Narula, a registered social worker, conducted the assessment on January 27, 2018. The other report is from Dr. West, a psychologist retained by the respondent to conduct an IE in relation to the applicant’s request for a psychological assessment. Dr. West conducted the assessment on September 27, 2017.

42In his report, Dr. Mills sets out that a clinical interview was conducted and a number of psychological tests were administered. The test results included the following:

i. Beck Depression Inventory – II: The applicant’s score demonstrated a severe level of depression;

ii. Beck Anxiety Inventory: The applicant’s score demonstrated a moderate level of anxiety; and

iii. Impact of Event – Scale Revised: The applicant’s score demonstrated a moderate level of distress and symptoms related to re-experiencing the event, avoidance/numbing and hyperarousal typically associated with trauma.

43Dr. Mills diagnosed the applicant with the following disorders:

i. Major Depressive Disorder, Single Episode;

ii. Somatic Symptom Disorder, with Predominant Pain, Persistent; and

iii. Specific Phobia, Situational Type (motor vehicles).

44Dr. Mills concluded that the applicant’s clinical presentation and test results provide evidence that she experiences many of the symptoms that would commonly be found in individuals suffering from post-accident psychological impairment. Furthermore, he opined that her physical pain impedes her daily activities and her ability to complete her household tasks and work. To treat the applicant’s psychological impairments, Dr. Mills’ recommendations included a minimum of 16 sessions of psychological treatment to help the applicant address the clinical symptoms she is presently experiencing. He also advised her to consult with her physician to determine her suitability for psychotropic medications to assist in managing her emotional distress at present.

45In Dr. West’s IE report, he sets out that a clinical interview was conducted and a number of psychological tests were administered. Of the test results, the following were particularly significant:

i. Brief Battery for Health Improvement - II: The applicant’s scores indicate a moderately high level of depression and an average level of anxiety. Her scores also indicated a moderately high level of functional complaints. Dr. West concluded that the levels of depression and anxiety reported were not significantly elevated, and as such, it was not expected that they would interfere with her recovery and rehabilitation. Furthermore, Dr. West opined that the applicant’s responses resulted in an unusually low score with respect to “psychological defensiveness” and that the possibility of symptom magnification should be considered. He noted that he is not necessarily implying any conscious or deliberate attempt at symptom exaggeration/amplification on the applicant’s behalf;

ii. Pain Patient Profile: The applicant reported levels of pain/somatic complaints below that of the average pain patient and she reported levels of depression and anxiety equal to the average pain patient; and

iii. Specific Measure for the Identification/Detection of Malingering: According to Dr. West, the applicant’s responses resulted in a score that exceeded the maximum acceptable cut-off score for suspected malingering by a narrow margin, with elevations on three of the five scales. Specifically, she endorsed some symptoms and impairments that are highly atypical of individuals who have genuine psychiatric or cognitive disorders. According to the interpretive guidelines of this measure, this suggests the possibility of some degree of potential symptom exaggeration. He noted that he is not necessarily implying any deliberate attempt on her behalf.

46Dr. West provided no diagnosis. He concluded that the applicant did not have any clinically significant accident-related symptomatology, sequelae or impairment and did not meet the criteria for any specific DSM-IV or DSM-5 diagnosis of mental disorder.

47I prefer the conclusion drawn by Dr. Mills over the conclusion drawn by Dr. West for the following reasons:

i. The applicant reported psychological issues to numerous medical practitioners following the accident. In addition to the psychological assessments, the applicant was assessed by Dr. Siddiqui, a general practitioner with an expertise in chronic pain management, on November 28, 2017. She reported to him that since the accident, she has developed some anxiety that is mostly provoked by driving. She also reported that she is often frustrated by her pain. Dr. Siddiqui diagnosed her with anxiety consistent with post-traumatic stress. In addition, the clinical note of Dr. Maher Atalla (family physician) dated July 20, 2018, makes reference to “psychology”;

ii. Dr. West concluded that the possibility of symptom magnification should be considered. He noted that he is not necessarily implying any conscious or deliberate attempt on the applicant’s behalf. Although the applicant scored a moderately high level of depression and an average level of anxiety, Dr. West concluded that the levels of depression and anxiety reported were not significantly elevated. It is my finding that despite Dr. West’s conclusions, the evidence indicates that the applicant is experiencing genuine symptoms of psychological distress, including depression; and

iii. Dr. Mills opined in his report that the applicant’s objective testing results were within valid limits and indicate that she was not malingering, lying or faking her symptoms in order to procure secondary (monetary) gain.

48Furthermore, my finding that the accident caused the applicant’s psychological impairments is also supported by her accounts of how the accident has affected her emotional and psychological well-being. In the interviews with both psychologists, the applicant discussed post-accident functional difficulties with her activities of daily living. The following are some of the psychological challenges the applicant has experienced since the accident:

i. She told both Dr. Mills and Dr. West that her ability and interest to participate in social and recreational activities, such as attending church and gardening, has been limited since the accident as a result of pain and/or emotionality;

ii. She told both Dr. Mills and Dr. West that she struggles with her sleep. She sometimes awakens as a result of pain and discomfort and then has problems getting back to sleep;

iii. She told Dr. Mills that her emotional functioning has been adversely affected since the accident, such as feelings of sadness, hopelessness, anger, irritability, and impatience, as well as concentration difficulties; and

iv. She told Dr. Mills that she has ongoing distressing thoughts and fears related to her accident, including while driving and as a passenger.

49I find that all of the challenges listed above point to the fact that the accident caused psychological impairments for which appropriate assessment and treatment would be required. The applicant is removed from the MIG.

50I determined above that the insurer provided deficient notices for all three treatment plans. For each treatment plan, in the event that the applicant has not incurred any expense associated with the treatment plan starting on the eleventh business day following receipt of the treatment plan and ending on the day the insurer gives a notice as described in s. 38(8), I must now consider whether each treatment plan is reasonable and necessary.

51Sections 14-16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary.

Is the treatment plan for physiotherapy services reasonable and necessary?

52The treatment plan for physiotherapy services in the amount of $2,281.03 was recommended by Dr. Mehra (chiropractor). Although this treatment plan is listed as for physiotherapy services, it also involves chiropractic and massage therapy treatment. I find that the physiotherapy treatment is reasonable and necessary.

53Dr. Nesterenko (general practitioner) conducted an IE assessment on April 18, 2017, approximately six months after the accident. In her report dated April 28, 2017, she concluded that the treatment plan for physiotherapy services was not reasonable and necessary. Dr. Nesterenko found that the applicant sustained an injury for which the MIG applies and that she does not have a pre-existing medical condition impeding maximal recovery.

54The clinical notes of Dr. Atalla, the applicant’s family physician, include numerous recommendations for physiotherapy and/or massage therapy. On October 19, 2016, he recommended massage therapy and physiotherapy. On January 9, 2018, March 14, 2018 and May 14, 2018, he recommended physiotherapy. On October 29, 2018, approximately two years following the accident, he recommended massage therapy.

55The information contained within the various assessments provides more insight into whether the applicant would benefit from these treatment modalities. Dr. West’s IE report indicates that the applicant received physiotherapy treatment and massage therapy treatment once per week and noted that the applicant found both of these rehabilitative interventions to be helpful. Dr. Siddiqui recommended a rehabilitation program incorporating various modalities including physiotherapy treatment, chiropractic treatment and myofascial release techniques. Dr. Mills recommended a comprehensive rehabilitation program, including physiotherapy, chiropractic care, massage therapy and acupuncture.

56Therefore, I find that the applicant is entitled to the treatment plan because its multidisciplinary approach will help alleviate her pain.

Is the treatment plan for the psychological assessment reasonable and necessary?

57The treatment plan for the psychological assessment in the amount of $2,460.00 was recommended by Dr. Jessa (chiropractor) and to be assessed by Dr. Mills (psychologist). The applicant was assessed by Dr. Mills on January 27, 2018. I find that the psychological assessment is reasonable and necessary.

58I determined above that the applicant is removed from the MIG on the basis of psychological impairments. Therefore, the applicant is entitled to this treatment plan because Dr. Mills’ psychological assessment is reasonable and necessary in evaluating the applicant’s psychological condition following the accident.

Is the treatment plan for the chronic pain assessment reasonable and necessary?

59The treatment plan for the chronic pain assessment in the amount of $2,680.00 was recommended by Dr. Jessa (chiropractor) and to be assessed by Dr. Siddiqui (general practitioner). The applicant was assessed by Dr. Siddiqui on November 28, 2017. I find that the chronic pain assessment is reasonable and necessary.

60I find that there is evidence before me that the applicant experiences constant and/or severe pain as a result of the accident. Dr. Siddiqui assessed the applicant on November 28, 2017, approximately one year and one month following the accident, and he diagnosed her with chronic myofascial pain as well as anxiety consistent with post-traumatic stress. She told him that she experiences severe and/or constant pain in her neck, lower back and shoulders. His recommendations included enrollment in a chronic pain management program. The clinical notes of Dr. Atalla, the applicant’s family physician, include numerous notations regarding her pain, including on October 29, 2018, approximately two years following the accident, where he assessed her back pain and made a recommendation for massage therapy.

61There is also evidence that the applicant experiences some functional limitations as a result of physical pain caused by the accident. As noted above, the applicant told both Dr. Mills and Dr. West that her participation in social and recreational activities, such as attending church and gardening, has been limited since the accident as a result of pain and/or emotionality. She also told both assessors that she struggles with her sleep as a result of pain and discomfort. Therefore, there is compelling evidence that the applicant requires an assessment to provide a diagnosis and recommendations for recovery.

CONCLUSION

62I find that the applicant’s injuries fall outside of the MIG due to her psychological impairments.

63The applicant is entitled to all three treatment plans in dispute because they are reasonable and necessary: physiotherapy services in the amount of $2,281.03; the psychological assessment in the amount of $2,460.00; and the chronic pain assessment in the amount of $2,680.00.

64The applicant is entitled to interest on any overdue payments of benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (Reconsideration).
4. 4Ibid. at para. 19.