C.D. v. Aviva Insurance Company, 2020 CanLII 63601

Citation: C.D.vs Aviva Insurance Company, 2020 ONLAT 19-002213/AABS

Date: June 25, 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:

C.D.

Applicant

and

Aviva Insurance Company

Respondent

ADDENDUM DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Aminder Hayher, Counsel

For the Respondent:

Andrew Smith, Counsel

HEARD: In Writing

December 30, 2019

OVERVIEW

1The applicant claims that as a result of the accident on February 4, 2016 he sustained a number of physical and psychological injuries and sought accident benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule). The applicant applied for medical benefits for chiropractic services and the cost of a psychological assessment and a chronic pain assessment, all of which were denied by the respondent on the basis that the applicant injuries are within the Minor Injury Guideline. The respondent further maintains the treatment plans in dispute are not reasonable and necessary.

2The applicant maintains his injuries are not within the Minor Injury Guideline. He maintains further that he is entitled to the benefits in dispute as they are reasonable and necessary.

ISSUES IN DISPUTE

3The issues are as follows:

a. Did the applicant sustain a predominantly minor injury as defined under the Minor Injury Guideline and, thus, is he limited to a $3,500 limit on treatment?

b. If the applicant’s injuries are found to be outside of the Minor Injury Guideline, is the applicant entitled to the disputed medical benefits and the cost of the examination because they are reasonable and necessary:

i. Is the applicant entitled to receive a medical benefit in the amount of $1392.91 for chiropractic treatment and massage therapy, recommended by Dr. Rahim Jessa, Complete Rehab Centre in a treatment plan submitted November 16, 2017, and denied by the respondent on November 28, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2399.49 for chiropractic treatment and massage therapy, recommended by Dr. Rahim Jessa in a treatment plan submitted November 12, 2018, and denied by the respondent on February 13, 2019?

iii. Is the applicant entitled to payment for the cost of an examination in the amount of $2460.00 for a Psychological Assessment, recommended by Dr. Jon Mills in a treatment plan submitted September 21, 2017, and denied by the respondent on September 25, 2017?

iv. Is the applicant entitled to payment for the cost of an examination in the amount of $2680.00 for a Chronic Pain Assessment, recommended by Dr. Grigory Karmy¹ in a treatment plan submitted November 5, 2018, and denied by the respondent on November 12, 2018?

c. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4For the reasons set out below, I find that the applicant’s impairment falls outside of the Minor Injury Guideline. As the OCF-18s in dispute have not been submitted into evidence, it is not possible to assess and conclude whether the OCF-18s are reasonable and necessary. The same applies to assess and conclude whether the applicant is entitled to a claim for interest and an award.

THE LAW - THE MINOR INJURY GUIDELINE

5The main consideration in this appeal is whether the applicant’s injuries fall within the Minor Injury Guideline.

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. Section 18(1) limits recovery when the MIG applies to $3500.

The Applicant’s Injuries

7The applicant submits that his injuries are not minor, since, as a result of the accident, he suffered a psychological impairment and has been diagnosed with chronic pain and meralgia paresthetica of the left leg, all of which take him out of the MIG.

8The applicant attended at the emergency department of [the Hospital] on the day of the collision complaining of low back and neck pain. X-rays taken on that day did not reveal any fracture of the lumbar or thoracic spine. He was discharged from the hospital and advised to see his family doctor. He was diagnosed with a thoracic sprain.

9The Disability Certificate (OCF-3) dated March 2, 2016 completed by the Physical Therapy Institute states the applicant suffers from a sprain and strain of his thoracic spine and lumbar spine.

10The applicant relies on the records of his family doctor to support his ongoing complaints of pain. The only clinical notes submitted from the family doctor² are dated June 10, 2016 and September 21, 2016. These notes are not supportive of the applicant’s claims as they contain no mention of the accident or any injuries sustained. The notes indicate the applicant had after the accident in June 2016 obtained a gym membership. In the notes of June 2016, there is a reference to anxiety but this is due to marital difficulties and a recent divorce. In the notes of September 2016, the visit was for general malaise. It was noted the applicant had recently travelled to Jamaica.

11The clinical notes and records from Complete Rehab Centre³ document ongoing treatment throughout 2017, 2018 and up to April 2019 for ongoing pain in the upper and lower back, neck, and thighs, and refer to headaches, sleep problems and stress.

Has the applicant developed meralgia paresthetica as a result of the accident?

12The applicant submits he developed meralgia paresthetica as a result of the accident. It is a medical condition imposing pressure on a nerve that causes numbness and severe pain.⁴ The applicant maintains it is a condition that falls outside of the definition of a minor injury. The respondent concedes the applicant developed this condition but submits that, as it did not occur until 5 months after the accident and was not identified as an initial injury, the medical condition is not accident related. It submits there is no medical evidence to support the applicant’s position that he sustained this condition as a result of the accident.

13The emergency records of [the Hospital] and the family doctor records do not record any complaint of a leg injury in the accident. The OCF-3 of March 2, 2016 makes no reference to any leg injury to numbness. It is not until July 18, 2016 when a reference to left leg pain is first recorded and appears in the records of the Physical Therapy Institute. The applicant attended at the emergency department of [the Hospital] on September 21, 2016 complaining of left leg numbness. He is diagnosed with meralgia paresthetica and referred a neurologist. On June 3rd, 2017, he also revisited the emergency department (ER) of [the Medical Centre] seeking relief from severe pain and numbness to his left leg.⁵ The ER diagnosed him with meralgia paresthetica.

14On June 2, 2017 the applicant saw Dr. Glynis Koponen, a neurologist, who confirms the diagnosis.⁶ In her report, the doctor states the applicant may have banged his leg and hip in the accident but also notes the applicant could not recall if he hit his leg or hip in the accident. The doctor concluded trauma to the left leg from the accident may have led to the development of this condition. An ointment medication is prescribed for the condition. The doctor stated the condition began in 2015 but the applicant submitted--and I agree with the applicant--that Dr. Koponen made an error recording 2015 instead of 2016.

15The respondent submits that Dr. Koponen’s conclusion is not conclusive of the cause of the medical condition. She did opine that the trauma to the left leg may have led to the development of the condition. I find that in the absence of another explanation for the onset of this condition and as it arose 5 months after the accident, Dr. Koponen’s opinion is sufficient evidence to support a finding that the medical condition arose from the accident. Although not 100% conclusive, Dr. Koponen’s report provides the evidence to support the causal link between this condition and the accident.

CHRONIC PAIN

16Alternatively, if I am incorrect in that finding, I find the medical evidence establishes the applicant suffers from chronic pain which takes him out of the MIG.

17A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain. In this appeal, however, there is a diagnosis of chronic pain.

18On March 18th, 2019, Dr. Grigory Karmy, a chronic pain specialist, diagnosed the applicant with chronic neck, lower back, chronic neuropathic left thigh pain and chronic pain syndrome as a result of the accident.⁷ The applicant relies of the report of Dr. Karmy to support his chronic pain diagnosis. The Disability Certificate (OCF-3) dated August 14, 2017 also added chronic pain to the list of injuries sustained by the applicant.⁸

19The applicant submits Dr. Karmy is a qualified specialist whose practice is focused on chronic pain. His conclusion is based on subjective reports and objective testing of the applicant's cervical spine, thoracic spine and lumbar spine. The applicant objects to the respondent’s reliance on the AMA criteria⁹ to diagnose chronic pain and, even if one accepted the AMA criteria, the applicant meets three of the stated criteria. Dr. Karmy outlined ongoing physical limitations including issues with prolonged sitting and standing, the impact on his employment duties which have been reduced to visits to engineering sites and spending more time working from a desk. Lastly, the applicant reported continued difficulty with completing vocational and activities of daily living.

20The applicant relies on the decision of T.S. and Aviva General Insurance Company¹⁰ in which Executive Chair Linda Lamoureux decided that a diagnosis of chronic pain should have sufficed to establish that the applicant’s injuries were more serious than a minor injury.

21The respondent relies on the Section 44 IE assessment by Dr. Ahmad Belfon, Physician, dated February 4, 2019, which concluded the applicant suffered only soft tissue injuries as a result of the accident. The respondent submits that the applicant has been diagnosed with only soft tissue injuries as a result of the accident and has returned to a functional level that makes a diagnosis of chronic pain untenable. Further, it points to limitations in the report of Dr. Karmy, who reviewed only the OCF-18 in dispute, the emergency room report from the date of loss, and Dr. Mills’ psychological assessment. It argues it is difficult to understand how Dr. Karmy came to his conclusion without a proper review of the complete medical documents. Further, it argues Dr. Karmy overly relies on the self-reports of the applicant.

22A review of Dr. Belfon’s report, which was completed one year prior to the chronic pain assessment, outlined some of the physical limitations of the applicant such as inability to complete housekeeping activities, inability to work on his cattle farm, job modification to a sedentary job, and limitations with sitting, standing, lifting, bending and lying down, constant numbness of the left thigh and constant neck pain. I find the noted limitations of the applicant in the IE Assessment of Dr. Belfon support a chronic pain diagnosis.

23Based on the totality of the evidence before me, I find the applicant suffers from chronic pain.

Did the applicant sustain a psychological impairment to remove him from MIG?

24To support his position that he suffered a psychological impairment as a result of the accident, the applicant relies on the report dated November 20th, 2017, of Dr. Jon Mills, a psychologist, who diagnosed the applicant with: Adjustment Disorder with mixed anxiety & depressed mood, somatic symptom disorder with predominant pain, persistent; and specific phobia, situational type (motor vehicle).

25The respondent concedes that a psychological impairment can remove an applicant from the MIG; however, it argues the psychological complaints are predominantly minor. It argues Dr. Mills’ report should be given no weight as he has been repeatedly criticized by this Tribunal. It also maintains Dr. Mills did not use objective testing in his reports and does not address the inconsistencies in the applicant’s reporting. For example, the applicant scored “mild” on the Beck Anxiety Inventory but “severe” in the Beck Depression Inventory. Dr. Mills provided no explanation for the discrepancy between the two findings. It also argues there is no evidence that Dr. Mills conducted the assessment and may only have signed the report. It refers to the LAT decision between the Applicant v. Aviva Insurance Company (17-002973)¹¹ where Dr. Mills’ report was given little weight due to there being no evidence on whether he or a psychotherapist performed the examination and Dr. Mills just signed the prepared report. In this case, the respondent submits the report was completed by Robin Dhaliwal and it is unclear what contribution, if any, Dr. Mills gave to the report.

26The respondent also obtained an IE assessment dated February 20, 2018 completed by Dr. Seon, psychologist, who did not find a psychological impairment. I agree with the respondent that the findings set out in the report of Dr. Mills are not consistent with the symptoms reported to Dr. Seon. Dr. Seon noted the applicant denied significant symptoms of anxiety, depression or post-traumatic stress. The applicant denied any referral to a psychiatrist or psychologist and denied the need for psychological intervention. He denied vehicle anxiety. Furthermore, the objective testing done by Dr. Seon, did not indicate any psychological impairment. As a result of the findings, Dr. Seon concluded that the applicant’s injuries fall within the Minor Injury Guideline.

27Despite the applicant’s claim of a psychological impairment, the applicant has neither sought any psychological treatment nor made any complaint to his family physician regarding psychological issue as a result of the accident. The applicant, as noted by Dr. Seon, was not aware of the proposed psychological assessment.

28I note a further limitation in Dr. Mills’ report involving a description of the accident and subsequent events which are not consistent with the records. For example, the report states the applicant lost consciousness at the accident and was taken to hospital and a CT scan was done. The applicant stated he went to the hospital on Feb 4 only an X-ray was taken. The report states the applicant went to see his family doctor soon after the accident and thought he suffered brain damage but never reported this to his family doctor. The records show the applicant did not see the family doctor until June 2016.

29Due to the stated limitations in Dr. Mills’ report, I prefer the report of Dr. Seon. I find based on the totality of the evidence that the applicant did not suffer a psychological impairment to take him out of the MIG.

Are the Treatment Plans Reasonable and Necessary?

30Neither party submitted the OCF-18s in dispute into evidence. This applies to the OCF-18s, the treatment plans that recommend chiropractic treatment and massage therapy, the OCF-18, the treatment plan that recommends a chronic pain assessment and the OCF-18, the treatment plan that recommends a psychological assessment. The applicant refers in its submissions to OCF-18s being submitted to the respondent however submissions are not evidence. As the OCF-18s are not submitted into evidence, it is not possible to review the OCF-18s, the treatment plans, to assess and conclude on the reasonableness and necessity of the proposed goods and services set out in the OCF-18s to treat chronic pain and other pain complaints and injuries.

31The applicant raised technical arguments with respect to the denial of both chiropractic treatment plans. In the absence of the OCF-18s into evidence it is not possible to assess and conclude in respect of the technical arguments.

32The same applies with respect to the issue of entitlement to interest and the award under section 10 of Ontario Regulation 664.

CONCLUSION

33For the reasons outlined, I find that the applicant’s injuries are not predominately minor injuries. As the OCF-18s are not submitted into evidence, it is not possible to review the OCF-18s, the treatment plans, to assess and conclude the treatment plans are reasonable and necessary and whether the applicant is entitled to interest and an award pursuant to Section 10, Ontario Regulation 664.

Additional Submissions

34If the Tribunal is to consider whether the OCF-18s in dispute are reasonable and necessary, the applicant must submit a request to the Tribunal for such by no later than 30 days from the release of this decision. The applicant must submit the OCF-18s in dispute into evidence and may include written submissions limited to two pages. The respondent shall have 15 days to file written reply submissions limited to two pages in response from the date of the written submissions of the applicant and no later than May 19, 2020.

35The written submissions must be double spaced, 12 point, Arial or Times New Roman font, numbered and indexed. Page limits are exclusive of documents or evidence referred to. The hearing adjudicator may not consider submissions which exceed the page limits. The parties are encouraged to submit their documents electronically. Electronic documents should be indexed and bookmarked to enable ease of access to the adjudicator at the hearing.

Released: March 30, 2020

Thérèse Reilly

Adjudicator

ADDENDUM DECISION

Are the treatment plans for chiropractic services and the chronic pain assessment reasonable and necessary?

36The applicant submitted the OCF-18s in dispute via written submissions dated April 29, 2020¹².

37With respect to the two treatment plans in dispute for chiropractic services and the treatment plan in dispute for a chronic pain assessment, the respondent in its additional written submissions¹³ concedes the treatment plans are reasonable and necessary, subject to the limits of costs. As such, I find the three treatment plans are reasonable and necessary.

38As to the limits of costs, I agree with the insurer however that payment under section 25(5) of the Schedule is capped at $2,000.00 in respect of fees for an assessment.¹⁴ As such the limit applies to the chronic pain assessment. I do not agree with the applicant’s claim that he is not subject to the limit as the notice letter from the respondent did not advise the applicant about the capped amount for the chronic assessment.¹⁵ There is no such requirement for notice in the Schedule and section 25 (5) states despite any other provision of this Regulation, an insurer shall not pay more than a total of $ 2000.

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

39The applicant submitted the treatment plan for $2460.00 for a psychological assessment recommended by Dr. Mills. He did not advance any additional submissions in his addendum as to why the treatment plan is reasonable and necessary.

40Based on the totality of the evidence before me and my discussion set out above, the psychological assessment is not reasonable and necessary. Because of a number of limitations in Dr. Mills report, I prefer the report of Dr. Seon over the report of Dr. Mills. An example of a limitation is that the findings set out in Dr. Mill’s report are not consistent with the symptoms reported to Dr. Seon. The description of the accident and subsequent events by Dr. Mills were also not consistent with the records. Lastly, despite the applicant’s claim of a psychological impairment, the applicant did not seek any psychological treatment or make any complaint to his family physician regarding psychological issue as a result of the accident.

41The applicant submits that the psychological assessment was not properly denied¹⁶ and thus under section 38(11) the insurer is required to pay for the treatment plan.

42As to the denial of the psychological assessment, I agree with the respondent that the notice was proper. The treatment plan submitted September 21, 2017 was denied September 25, 2017. In its denial letter, as required by sections 38 (9) and (10), the respondent advised that the Minor Injury Guideline applied and it was sending the applicant to an Insurer Examination. The respondent states its denial letter did not refer to medical documents because at that time there were no medical documents to support a psychological impairment.¹⁷ The treatment plan is not payable on the basis of an improper denial.

INTEREST

43Since I found benefits are payable, the applicant is entitled to interest on overdue payments.

An Award under Ontario Regulation 664 (O/Reg 664)

44Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.

45The applicant submits the respondent consistently failed to comply with section 38 of the Schedule, it maintained a consistent pattern of lateness in responding to the treatment plans including delay in the review of MIG and withheld information from medical assessors that could have been useful in the determination of the benefits.

46I do not agree with the applicant’s submissions that the respondent acted unreasonably to meet the high threshold test for an award. I do not find any evidence to establish the respondent withheld information from medical assessors or ignored medical evidence before it. The respondent relied on the findings of its IE assessors. There is no evidence it took an inordinate amount of time to deny treatments. On this basis, I deny the claim for an award.

CONCLUSION

47For the reasons outlined, I find that the applicant’s injuries are not predominately minor injuries. The applicant is entitled to the treatment plans for chiropractic services and cost of the chronic pain assessment payable to the limit of $2000 under section 25 (5) of the Schedule. The respondent concedes these are reasonable and necessary. The applicant is not entitled to the cost of the psychological assessment as it is not reasonable and necessary. The applicant is entitled to interest, but not an award pursuant to Section 10, Ontario Regulation 664.

Released: June 25, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1The OCF-18 in dispute based on the information set out in Dr. Karmy’s chronic pain assessment report is dated October 29, 2018 and appears to have been recommended by Dr. Rahim Jessa, chiropractor, not Dr. Grigory Karmy. Neither party submitted the OCF-18 into evidence.
2. 2Clinical Notes and Records of the family doctor, Dr. Daya, tab 6 of the applicant’s written submissions.
3. 3Clinical Notes and Records of Complete Rehab Center, tab 8 of the applicant’s written submissions.
4. 4Written submissions of the applicant, paragraph 28, and tab 18.
5. 5Records of Halton Health Care Services, tab 2 of the applicant’s written submissions, and paragraph 11.
6. 6Report of Dr. Koponen, neurologist, June 2, 2017, tab 5, written submissions of the applicant.
7. 7Chronic Pain Assessment Report of Dr. Grigory Karmy, dated March 18, 2019, tab 10, written submissions of the applicant.
8. 8OCF-3 by Dr. Rahim Jessa, tab 12, written submissions of the applicant.
9. 917-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT), tab 12, written submissions of the respondent and paragraph 29 which sets out the criteria to be met under the AMA.
10. 10T.S. and Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), tab 21, written submissions of the applicant, paragraph 33.
11. 11Applicant v. Aviva Insurance Company, 2018 CanLII 76451 (ON LAT), written submissions of the respondent, tab 13.
12. 12Addendum to written submissions of the applicant dated April 29, 2020.
13. 13Additional written submissions of the respondent dated May 14, 2020, paragraph 2.
14. 14Additional written submissions of the respondent dated May 14, 2020, paragraphs, 7, 8, and 9.
15. 15Addendum to written submissions of the applicant dated April 29, 2020, paragraph 18.
16. 16Addendum to written submissions of the applicant dated April 29, 2020, paragraph 18.
17. 17Additional written submissions of the respondent dated May 14, 2020, paragraph 6.