Citation: K.K. vs. Aviva General Insurance, 2020 ONLAT 18-012611/AABS

Released Date: 10/13/2020

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:

[K K.]

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

VICE CHAIR:

Susan Mather

APPEARANCES:

For the Applicant:

Matt Gervan, Counsel

Ashley N. Dunkley, Paralegal

For the Respondent:

James Brown, Counsel

Heard by way of written submissions

1The applicant is a fifty-three year old man who was involved in an automobile accident on March 24, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ He was denied income replacement benefits and a medical benefit for physical therapy services by the respondent (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Three case conferences were held. At the March 3, 2020 case conference, after hearing submissions from the parties, the Tribunal ordered that the hearing be held in writing.²

ISSUES

3The issues to be decided by me are as follows:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 22, 2017 until June 12, 2017 and from October 3, 2017 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $1,661.53 for physiotherapy recommended by Ivan Vukosavljevic in a treatment plan (OCF-18) submitted on March 2, 2017 and denied on September 6, 2017?

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

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

RESULT

i. The applicant is entitled to income replacement benefits in the amount of $400.00 per week from January 22, 2017 to June 12, 2017.

ii. The applicant is entitled to income replacement benefits in the amount of $400.00 per week from October 3, 2017 to March 24, 2018.

iii. The applicant is entitled to ongoing income replacement benefits in the amount of $340.94 per week from March 24, 2018.

iv. The applicant is not entitled to a medical benefit in the amount of $1,661.53 for physiotherapy recommended by Ivan Vukosavljevic in a treatment plan (OCF-18) submitted on March 2, 2017 and denied on September 6, 2017

v. The applicant is entitled to interest on the overdue payments of income replacement benefits as provided for in s. 51(4) of the Schedule.

vi. The applicant is entitled to an award under Ontario Regulation 664.

INCOME REPLACEMENT BENEFITS

4The applicant was a self-employed taxi driver at the time of the accident. The Schedule requires an insurer to pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person was a self-employed person at the time of the accident and suffers as a result of and within 104 weeks after the accident a substantial inability to perform the essential tasks of his self-employment.³

5Aviva is not required to pay the applicant an income replacement benefit to the applicant for the first week of his disability or after the first 104 weeks of disability unless, as a result of the accident the applicant is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.⁴

Impairments

6Aviva does not question that the applicant sustained impairments in the accident. Aviva refuses to pay the applicant the IRBs claimed on the basis that the impairments sustained by the applicant did not result in a substantial inability to perform the essential tasks of his employment for the full 104 weeks after the accident and did not result in a complete inability of the applicant to engage in any employment or self-employment for which he is reasonably suited by his education, training or experience.

7After my review of the evidence, I am satisfied on the balance of probabilities that the applicant sustained both physical and psychological impairments as a result of the accident. The Emergency Report from the [hospital] confirms that the applicant hit his head on the steering wheel. A concussion was diagnosed. ⁵ The CNRs of his family physician confirm that the applicant reported headaches, body aches and dizziness in the months after the accident.⁶

8In his December 2016 assessment report, Aviva’s neuropsychologist Dr. Darren Schmidt found the applicant to have an Adjustment Disorder Mixed Anxiety and Depressed Mood; and an Unspecified Depressive Disorder.⁷ Dr. Schmidt recommended a three-month course of psychological therapy and a referral to a medical specialist to rule out insomnia. In its Explanation of Benefits letter terminating the applicant’s IRB as of January 21, 2017 Aviva requested the applicant to submit a treatment plan for psychological therapy based on the recommendation of Dr. Schmidt. ⁸

9In his December 2016 Orthopaedic assessment, Dr. David Simon found that the applicant sustained minor injuries in the form of Whiplash Disorder Type II and lumbar spine strain/sprain in the accident.⁹ Dr. Simon provided the opinion that that the applicant was more likely to achieve clinical progress under the care of a psychologist to optimize his coping mechanisms and kinesiophobic anxiety. He also recommended a referral to a physical medicine and rehabilitation physician to provide insight into the applicant’s myofascial pain symptoms.

10In May 2017, psychologist Dr. Lesley MacLeod diagnosed the applicant with “Major depressive disorder, single episode, severe with anxious distress; Rule out somatic symptom disorder”.¹⁰ Dr. MacLeod recommended a psychiatric evaluation to clarify the diagnosis and offer psychotropic medication. As a result of her assessment, Dr. MacLeod found the applicant’s prognosis from a psychological perspective to be limited. She stated that the applicant’s disability appeared to be ingrained. On June 13, 2017, she completed a disability certificate (OCF-3) indicating that the applicant was unable to perform the essential tasks of his self-employment as a taxi driver.

11Dr. Christopher Hope, a neuropsychologist, performed an IE neuro-cognitive assessment on the applicant in August 2017 as part of a multi-disciplinary report. In his opinion, the applicant appeared to have a mild traumatic brain injury as a result of the accident.

12In October 2017, the applicant was assessed by Dr. Nancy Briscoe, a neurologist he was referred to by his family physician. Dr. Briscoe found that the applicant’s headaches are likely due to a combination of post-traumatic headache, migraine and medication overuse. Dr. Briscoe recommended some changes to the applicant’s headache medication and gave him a prescription for cervical physiotherapy. ¹¹ Dr. Briscoe saw the applicant in a follow-up in July 2019. Her letter to the family physician confirms a chronic daily headache due to migraine with cervicogenic headache.

13The applicant was in a second car accident on October 2017 which resulted further IEs. The reports from the IEs following the second accident confirm that the applicant was still suffering with psychological impairments sustained in the March 24, 2016 accident.¹²

14In a March 29, 2018 independent psychiatric evaluation of the applicant, Dr. Sivasubramanian found that that since the March 24, 2016 accident the applicant appeared to have developed a major depressive disorder, general anxiety disorder with panic attacks and specific phobia (driver and passenger anxiety).¹³

15Dr. Mitchell Fox, a physiatrist who assessed the applicant in June 2018,¹⁴ found that his physical examination failed to reveal substantial evidence of objective ongoing impairment from the March 24, 2016 accident. He suggested that that the applicant’s over-reporting of his physical symptoms supported the idea that non-physical factors were contributing to the applicant’s presentation. Dr. Fox found that applicant’s neck, back and left-shoulder pain to be related to the accident. He recommended that the applicant be referred to a multi-disciplinary pain program at the [hospital] Rehabilitation Program.

16The assessment report of psychologist Dr. Peter Corbin from an IE completed on June 27, 2019 on behalf of Aviva concludes that the applicant is suffering from post-traumatic stress disorder. He found that the applicant’s narrative and the chronology of events indicated that the stress disorder was a direct result of the March 24, 2016 accident.¹⁵ Dr. Corbin noted the relative severity of Mr. [K]’s psychological difficulties and noted that likely that he was not yet at maximum medical improvement. He provided the opinion that the applicant’s post-traumatic stress disorder was a serious disorder

17The July 4, 2019 letter of Dr. MacLeod confirms her May 2017 diagnosis of Major Depressive Disorder and finds there is evidence to support a Somatic Symptom Disorder.

18Based on the evidence reviewed above, I am satisfied on the balance of probabilities that the applicant suffered both physical and psychological impairments as a result of the accident. While there is evidence that the applicant no longer suffers from physical impairments as a result of the accident, there is no doubt from the evidence that the applicant’s psychological impairments are serious and have not resolved.

First 104 Weeks After the Accident

19At the time of the accident the applicant had been a taxi driver for fifteen or sixteen years.¹⁶ The applicant returned to work after the accident, working reduced hours. Almost two months after the accident his family physician submitted a disability certificate (OCF-3) which indicated that he had a substantial inability to perform the essential tasks of his employment and a complete inability to carry on a normal life. He elected to receive IRBs.¹⁷ Aviva determined that the applicant was entitled to IRBs and paid the benefit from April 1, 2016 to January 21, 2017.¹⁸

20Aviva required the applicant attend at Insurer’s Examinations (IE) to determine his eligibility for IRBs. He was assessed by a multidisciplinary team at Viewpoint. In a report dated December 16, 2016, the consensus of the opinions of the assessors was that the applicant did not suffer from a substantial inability to engage in the essential tasks of his employment.¹⁹

21As part of its investigation of the claim, Aviva put the applicant under surveillance. According to Aviva, the surveillance report revealed that, in December 2016, he was driving his taxi for much longer periods than he reported. ²⁰

22Aviva terminated the IRBs as of January 22, 2017 based on the December 16, 2016 Multidisciplinary Assessment Report²¹ and surveillance evidence.²²

23Roughly six months after the IRB benefit was terminated, the applicant submitted a disability certificate dated June 13, 2017 completed by psychologist Dr. MacLeod. After receiving this disability certificate, Aviva reinstated the applicant’s IRBs effective June 13, 2017. In response to this certificate, Aviva also arranged for a second multidisciplinary assessment, which resulted in a report dated September 14, 2017.²³ The opinions of the assessors in this report are the essentially the same as the opinions of the assessors in the December 16, 2016 report.

24Aviva paid the applicant IRBs from June 13, 2017 to September 30, 2017. It terminated the benefits as of September 30, 3017 after it received the second multidisciplinary report.²⁴

25Aviva paid the following IRBs to the applicant for the 104-week period following the accident:

i. $400.00 per week from April 1, 2016 (one week after the accident) until January 21, 2017.

ii. $400.00 per week from June 13, 2017 until September 30, 2017

26The applicant is claiming IRBs for the period January 22, 2017 to June 12, 2017 and October 3, 2017 to March 24, 2018.

27The applicant submits that the fact Aviva paid him IRBs from April 1, 2016 to January 21, 2017 and from June 13, 2017 to September 30, 2017 confirms that Aviva concluded he suffered from a substantial inability to drive a taxi. The applicant submits that his condition got progressively worse in the months after the accident and became chronic in nature. He submits that Aviva has provided “no clear explanation or reasoning from the Respondent’s adjuster as to why Mr. [K.] would have been entitled to an IRB from April 1, 2016 through to September 25; then not be entitled in the months of January to June of 2017 but again re-entitled as of June 13, 2017 through to August 8, 2018.”

28Aviva disagrees. Aviva submits that it resumed paying IRBs in June 2017 to give the applicant the benefit of the doubt while it awaited the result of IEs before denying the benefit. Aviva submits that no further IRBs are owing to the applicant for the 104-week period following the accident.

29The burden of proof is on the applicant to show on the balance of probabilities that he suffered a substantial inability to perform the essential tasks of his self-employment as a self-employed taxi driver during the time periods he is seeking the benefits for.

30Being satisfied that the applicant suffers from ongoing psychological impairments as a result of the accident, I must decide if these impairments resulted in the applicant being substantially unable to perform the essential tasks of his employment as a taxi driver.

31For the reasons provided below, I am satisfied on the balance of probabilities that the applicant is entitled to IRBs for the period from January 22, 2017 to June 21, 2017 and from October 3, 2017 to March 24, 2018.

32Viewpoint occupational therapist Sally Anne Nicholson did a Physical Demands Analysis of the job of a taxi driver.²⁵ According to Ms. Nicholson’s analysis, the essential tasks of a taxi driver include among other things:

i. Being social, taxi driving involves interpersonal contact;

ii. Opening and closing car doors

iii. Pushing, pulling and lifting luggage

iv. Sitting for long periods of time

v. Standing when loading/unloading, standing to talk to fare and other drivers

vi. Walking around the taxi

33Aviva was initially satisfied that the applicant qualified for IRBs but changed its mind based on the December 2016 Multidisciplinary report of orthopaedic surgeon Dr. Simon, neuropsychologist Dr. Schmidt and occupational therapist Ms. Nicholson and a surveillance report.²⁶

34For the reasons provided below, I give little weight to this report.

35Ms. Nicholson was of the view that the applicant’s observed limitations and barrier to his performance in functional testing were not reliable due to the significant inconsistency on his physical assessment. She could not determine if he could meet the job demands. She did not give any consideration to whether the applicant was suffering from psychological impairments that were affecting his performance on the evaluation. According to her report, she did not review any investigative or diagnostic reports as part of her report.²⁷

36Dr. Schmidt’s opinion that the applicant did not suffer a substantial inability to perform the tasks of his employment was based on his understanding that the applicant had returned to work. Dr. Schmidt’s opinion gives no consideration to the fact that the applicant told him he had returned to work only two to three hours a day or how his psychological diagnosis impacted his ability to return to work full-time.

37The Schedule permits a person receiving income replacement benefits to return to or start self-employment at any time during the first 104 weeks for which he or she is receiving the benefit, without affecting entitlement to resume receiving any benefits to which they are entitled to, if as a result of the accident they are unable to continue their self-employment.²⁸

38The Schedule contemplates that an insured person might receive income from self-employment during the period for which he or she is eligible to receive an income replacement benefit.²⁹ Aviva was entitled to consider any income the applicant earned while driving his taxi in the calculation of his IRB. The evidence of the income that the applicant earned in the months following the accident does not support Aviva’s contention that the applicant was working full-time.

39The applicant’s income from self-employment was derived from both driving the taxi cab which he owned and from renting his taxi cab to other drivers. According to a letter to Aviva from its accountants PWC recommending the IRBs payable to the applicant, the applicant had a total revenue of $5,981.80 for the period September 16, 2016 to January 21, 2017. Most of this revenue ($4,919.27) is attributed to being from the rental of the applicant’s taxi cab.³⁰ In my view, these revenue figures do not support Aviva’s contention that the applicant was working full-time.

40The applicant does not submit that he never drove his taxi cab following the accident. In his reports to the various assessors, he stated that he worked much shorter hours after the accident. He reported stopping work completely in February 2017 and then attempted to work again in April 2017. His evidence is that he has not worked since April 2017.

41The opinion of Dr. Simon as to whether the applicant suffered a substantial inability to perform the essential tasks of his self-employment as the owner and driver of a taxi cab as a result of the accident was limited to a strictly an orthopaedic point of view. As stated above, he provided the opinion that the applicant would be more likely to achieve clinical progress under the care of a psychologist to manage his psychological distress and kinesiophobic anxiety.

42All of the assessors for the December 2016 Multidisciplinary report only considered the applicant’s physical ability to drive a taxi cab.³¹ They failed to give consideration to whether the applicant’s psychological impairments affected his ability to drive his taxi cab or his ability to perform the other essential tasks of being an owner of a taxi cab. Ms. Nicholson’s Physical Demands Analysis gives no recognition to the fact that the applicant’s self-employment tasks were not limited to driving his taxi cab.

43Aviva submits that the surveillance evidence of Norman Lalonde Investigations is evidence that the applicant did not suffer a substantial inability to perform the essential tasks of his employment in the months following the accident.³² The applicant was placed under surveillance for one week beginning on December 14, 2016. The surveillance evidence reveals that the applicant was not the only driver of his taxi cab and that there were periods of time during the surveillance where the investigators were unable to locate the taxi. In my view, the fact the applicant’s taxi was not parked at his residence at all times during the periods of surveillance does not lead to the conclusion that he was picking up passengers during the whole period of time. The report of PWC, referred to above, confirms that the applicant’s income was mostly from the rental of his taxi cab.

44In May 2017, Norman Lalonde Investigations was hired for the second time by Aviva to follow the activities of the applicant. The investigators found no evidence that the applicant was driving his taxi on the four days that surveillance was undertaken (May 21-24, 2017).

45Aviva reconsidered the applicant’s eligibility for IRBs again in June 2017 upon receipt of a disability certificate of Dr. MacLeod. Dr. MacLeod found that the applicant was experiencing symptoms consistent with a major depressive episode. He presented to Dr. MacLeod with observable psychomotor retardation, difficulties with attention and concentration and marked irritability.

46The applicant was denied ongoing IRBs after September 27, 2017 on the basis of a Multi-Disciplinary Report dated September 14, 2017³³. This report consisted of a physiatry assessment of Dr. Alborz Oshidari, a psychology and a neuro-psychology assessment of Dr. Christopher Hope and a functional capacity evaluation by occupational therapist Brenda O’Grady.

47I also give little weight to this report. In his physiatry assessment, Dr. Oshidari was unable to detect any organic cause for the applicant’s physical limitations. His opinion that the applicant did not suffer from a substantial inability to perform his pre-accident employment of a taxi driver does not account for any psychological impairment the applicant sustained in the accident. Dr. Oshidari found that the applicant appeared to be in a moderate degree of psychological distress as the encounter was dominated by pain-focused and self-limiting behaviour.

48The psychology assessment of Dr. Hope states that the applicant told him he tried to return to work after the accident but was not successful. He was not able to continue because he found it was too difficult focusing with people talking in his vehicle and he was too anxious.

49Dr. Hope found that the results of his psychometric testing were invalid because of probable negative response bias and symptom overreporting. He found that a psychological diagnosis could not be offered. He went on to say that this finding did not rule out the possibility that the applicant was experiencing genuine symptoms of psychological distress. This opinion of Dr. Hope is contrary to the earlier diagnoses of Dr. Schmidt and Dr. MacLeod. It is also contrary to the later diagnoses of Drs. Sivasubramanian³⁴ and Corbin³⁵. I give more weight to the opinions of Drs. Schmidt, MacLeod, Sivasubramanian and Corbin. Their diagnoses take into account the negative response bias and symptom overreporting identified by Dr. Hope.

50Dr. Hope’s Neurocognitive Assessment of the applicant found the applicant appeared to have sustained a mild traumatic brain injury. He provides the opinion that a small percentage of individuals will continue to report prolonged concussive symptoms possibly attributable to psychological factors. Dr. Hope’s assessment does not recognize that the applicant had already been diagnosed with Major Depressive disorder arising from the accident. For this reason, I am unable to give his opinion on the applicant’s ability to return to work much weight.

51Breanna O’Grady did a two-hour Workwell Functional Capacity Evaluation of the applicant.³⁶ The applicant declined to participate in the majority of the testing and she formed that opinion that the capabilities the applicant demonstrated during the assessment were not an accurate representation of his true capabilities.

52I give the report of Ms. O’Grady little weight for the following reasons. Page one of her report indicates she did a one-day functional assessment that lasted only two hours.³⁷ On page two, Ms. O’Grady indicates that the applicant demonstrated an inconsistent effort during both days of the evaluation. These obvious errors lead me to question the accuracy of the report. The only function of a taxi driver that she found the applicant was able to perform was the ability to walk around the taxi. Ms. O’Grady’s report does not acknowledge the applicant’s previously diagnosed psychological impairments.

53I am satisfied based on the evidence of the applicant’s ongoing psychological problems and headaches reviewed above that he remained substantially unable to perform the essential tasks of his self-employment as a taxi driver for the full 104 weeks after the accident. Aviva points to the applicant’s failure to participate in much of the IE physical testing the IE assessors required of him for their reports and the inconsistencies in his test results on the psychological and functional evaluation assessments.

54Aviva’s submissions essentially ignore the solid evidence of even its own assessors of the psychological impairments the applicant suffered in the accident. I place more weight on the opinion of Dr. MacLeod in her letter dated July 24, 2019.³⁸ Dr. MacLeod points out in her letter that psychological issues had been identified early on by the applicant’s family physician and Aviva’s own physicians. She also points out the IE from the second accident of Dr. Sivasubramanian diagnoses the applicant with psychiatric impairments from the first accident.

55Dr. MacLeod provides a reasonable explanation as to why the applicant may have performed so poorly in the testing that was part of the multi-disciplinary assessments. Dr. MacLeod acknowledges that the applicant’s response style on psychological measures created some challenges in formulating a diagnosis.

56Her opinion is corroborated by Dr. Corbin who pointed out that English is a second language for the applicant and the psychometric test he administered was validated using native English speakers. It is also corroborated by the opinion of physiatrist Dr. Fox who provided the opinion that there are non-organic factors at play in the applicant’s presentation. Dr. Fox stated that while the applicant was noted in a previous psychological examination as over-reporting symptoms, this does not necessarily imply that he was over-reporting his physical symptoms, but rather non-physical symptoms are perhaps contributing to his presentation during the assessment. Dr. Fox recommended that the applicant would benefit from a multidisciplinary pain program to deal with his self-limiting behaviour due to fear of pain.

57Aviva submits that while Dr. MacLeod disagreed with Dr. Hope’s diagnosis, she did not provide an opinion on the claimant’s ability to work. This submission of Aviva is contradicted by the fact the it was Dr. MacLeod who signed the July 13, 2017 disability certificate certifying that the applicant was substantially unable to carry out the essential tasks of his pre-accident employment.

58For the reasons provided above I am satisfied that the applicant remained eligible for IRBs for the full 104-week period after the accident. I am of the view that Aviva ignored the applicant’s psychological diagnosis when it terminated the benefits as of January 21, 2017. I am also of the view that Aviva again chose to ignore the applicant’s diagnosis of psychological impairments when it terminated the benefits for a second time after receiving the September 14, 2017 Multi-disciplinary Assessment.³⁹

After the First 104 Weeks of Disability

59The applicant submits that, as a result of his severe psychological impairment and considering his age, he is not suitable for any employment for which he is reasonably suited by education, training or experience. He submits that it is consistently demonstrated in the medical evidence and as a result he meets the test in the Schedule.

60The applicant completed a degree in computers and mathematics at [university]. He worked in the high-tech industry after graduation for two to three months before being laid off. While at university, he drove a taxi part-time and, following his layoff, he resumed driving taxi on a full-time basis.⁴⁰

61There is no evidence of the applicant having any employment other than as a taxi driver for at least 15 years prior to the accident. ⁴¹

62Due to the psychological impairments including his ongoing pain issues, I am satisfied on the balance of probabilities that the applicant is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

63The first Multi-disciplinary report provides uncontroverted evidence that the applicant suffered psychological impairments in the accident. ⁴² Aviva’s psychologist Dr. Schmidt diagnosed the applicant with an Adjustment Disorder Mixed Anxiety and Depressed Mood; and an Unspecified Depressive Disorder in December 2016. Even Dr. Simon, the orthopaedic surgeon, recognized the applicant was suffering from psychological distress as his encounter was dominated by pain-focused and self-limiting behaviour.⁴³ In May 2017, the applicant’s psychologist, Dr. MacLeod, diagnosed him with “Major Depressive Disorder, single episode, severe with anxious distress; Rule out somatic symptom disorder; Rule out posttraumatic stress disorder”.⁴⁴

64Dr. MacLeod was of the opinion at that time that the applicant’s prognosis from a psychological perspective was guarded.

65More than 104 weeks after the accident, the applicant underwent the following assessments that confirm he was still suffering from psychological impairments and headaches and the seriousness of his psychological impairment.

66The June 2018 Psychiatric Assessment of Dr. Sivasubramanian diagnosed major depressive disorder, general anxiety disorder with panic attacks and specific phobia (driver and passenger anxiety). This report was done following the second accident in October 2017. Dr. Sivasubramanian found that the applicant was significantly impaired with respect to psychiatric signs and symptoms as a result of the March 24, 2016 accident. He found the applicant to be significantly impaired.

67The March 2019 Psychology Assessment of Dr. Corbin found the applicant was suffering from post-traumatic stress disorder as a direct result of the accident. He provided that opinion that the applicant had not yet met maximum medical improvement. In Dr. Corbin’s opinion, the applicant suffers from a serious disorder that may seriously impair his judgement, insight, behaviour, communication and social functioning.⁴⁵ On Dr. Corbin’s recommendation, Aviva approved a treatment plan for psychotherapy dated March 3, 2019. ⁴⁶

68While Dr. Fox’s June 21, 2018 Physiatry assessment failed to reveal substantial evidence of an objective ongoing physical impairment, Dr. Fox suspected that there were non-organic factors at play and that there were perhaps non-physical factors contributing to his presentation during the assessment. Dr. Fox recommended the applicant be referred to a multi-disciplinary pain clinic. ⁴⁷

69In her July 4, 2019 letter of Dr. MacLeod found there was evidence to support her originally queried diagnosis of a Somatic Symptom Disorder.⁴⁸

70The assessment of occupational therapist Valerie Wilson further persuades me on the balance of probabilities that the applicant remained unable to work 104 weeks after the accident and ongoing. In her March 30, 2019 assessment report Ms. Wilson states: “…he presents with a complex mental health impairment which has limited his ability to return to his pre-collision meaningful daily activities.”

71She finds the applicant to have impairments in day-to-day functioning and that he requires both equipment and services of an interdisciplinary rehabilitation team.

72It is clear from the assessment of Ms. Wilson that the applicant leads a sedentary life as a result of the accident and is often not motivated to shower or to get dressed. Ms. Wilson also mentions the medications prescribed to the applicant (including mood medications) and recommended that his medication management needed review to ensure that he is using his medication to maximize its effectiveness. She recommended an intensive reactivation program as well as assistance with bathing.

73Aviva does not refute the psychological impairments that the applicant has suffered in the accident and offers no evidence with respect to appropriate employment or self-employment for a person with the applicant’s impairments.

74On the basis of the evidence of the applicant’s ongoing psychological impairments and the evidence that he requires daily medications for his headaches and moods, I am satisfied on the balance of probabilities that the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. There is no evidence to show what employment or self-employment this 53-year old gentleman has the ability to do given his psychological impairments and the fact that he has not worked for over four years since the accident.

Quantum of IRBs Payable

75Both parties submitted calculations of the IRB payable for the first 104 weeks after the accident. Aviva’s calculations only covered the period it has paid the benefit for. The applicant’s calculations cover both the 104-week period after the accident and the benefit payable after 104 weeks. Aviva does not raise any objections to the applicant’s calculations.

76For that reason, I find that the applicant is entitled to IRBs in the amount of $400.00 per week from April 1, 2016 to March 24, 2018 and $340.94 per week from March 24, 2018 and ongoing.⁴⁹

MEDICAL BENEFIT FOR PHYSIOTHERAPY

77The Schedule requires Aviva to pay for all reasonable and necessary expenses incurred by the applicant as a result of the applicant for physiotherapy services.⁵⁰ The applicant must prove on a balance of probabilities that the proposed treatment is reasonable and necessary.

78The applicant submits that the physiotherapy treatment proposed in the treatment plan is reasonable and necessary because he suffers from chronic low back pain and neck pain as a result of the accident. He submits that pain relief in and of itself can be a legitimate and rehabilitative goal and therefore reasonable and necessary even if it does not promote recovery. He submits that the treatment plan in dispute is reasonable and necessary based on the medical evidence of both treating practitioners and medical experts.

79I am not satisfied on the balance of probabilities that the treatment plan in dispute is reasonable and necessary for the following reasons.

80As Aviva points out, there is no copy of the treatment plan in evidence. The applicant had the opportunity to file a copy with his reply evidence and has not done so. In my view, it is difficult to determine whether a treatment plan is reasonable and necessary without the opportunity to review the diagnosis relied upon in the treatment plan, the goals of the treatment plan and the treatment that is proposed.

81The applicant has not provided any evidence of the amount or types of physical therapy treatment he received prior to submitting the treatment plan in dispute. He has also not provided evidence of any progress made as a result of earlier treatments.

82The only evidence with respect to this treatment plan is found in the IE report of Dr. Oshidari dated April 28, 2017.⁵¹ According to this report, the treatment plan is for 12 sessions of physical therapy and six sessions of treatment. The diagnosis relied on for the treatment was “WAD-II and traumatic rupture of lumbar intervertebral disc disorder”.

83Dr. Oshidari concluded that, at 17 months post-accident, there was no reason for the applicant to require to more physiotherapy treatment. He recommended that the applicant enroll in a self-directed community aquatic program to prevent further self-imposed general deconditioning. As a result of the recommendation, Aviva was prepared to have the applicant assessed for a hydro-therapy program.

84For the reasons provided above I am not satisfied on the balance of probabilities that the treatment plan proposed is reasonable and necessary.

INTEREST

85The applicant is entitled to interest on the IRBs I have found to be payable. Having found that the treatment plan for physiotherapy before me is not reasonable and necessary, it follows that there is no interest owing to the applicant on the medical benefit claimed for physiotherapy.

86The Schedule provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under the Schedule.⁵² When a dispute arises in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured is entitled to, interest on the benefits in dispute is calculated in accordance with s. 51(4) of the Schedule which provides that the pre-judgment interest rate is the rate prescribed in the Courts of Justice Act. ⁵³

AWARD UNDER O. REG 664

87If I find that Aviva unreasonably held or delayed payment of IRBs to the applicant, section 10 of Ontario Regulation 664⁵⁴ gives me the discretion, in addition to awarding the benefits and interest to which the applicant is entitled, to award a lump sum of up to 50 percent of the amount to which the applicant is entitled at the time of the award together with interest on all amount then owing to the applicant (including unpaid interest) at the rate of 2 per cent per month compounded monthly from the time the benefits first became payable under the Schedule.

88The applicant is seeking a lump sum award of 50% of the income replacement benefits he is entitled to. The applicant submits he is entitled to a lump sum award because he was unfairly treated by Aviva. The applicant submits that Aviva’s decisions to start and stop his IRBs despite the evidence confirming his psychological impairments was unfair treatment.

89Aviva submits that because the applicant is not entitled to the benefits claimed they were not unreasonably withheld or denied. Aviva submits that even if the benefits are payable an insurer is not held to a standard of perfection and an award is not made anytime a claimant succeeds at a hearing.

90In the LAT reconsideration decision of F.P. v. Pilot Insurance Company (“Pilot”) Executive Chair Linda Lamoureux found the determination of whether benefits have been unreasonably withheld requires looking beyond the reasonableness of the insured’s conduct in seeking benefits, whether the adjudicator agrees with the insurer’s conduct or even whether the adjudicator finds the insurer’s decision to be wrong. ⁵⁵ Rather, she found it entails an assessment whether the insurer exceed the limits of what is reasonable. In Pilot, the Executive Chair found the adjudicator did not address the issue of whether the insurer’s conduct in withholding the benefits was unreasonable. I am persuaded by the reasoning of the Executive Chair in Pilot.

91I am satisfied on the balance of probabilities that the applicant is entitled to a lump sum award on the income replacement benefits he is entitled to. I find the applicant’s claim for IRBs was unreasonably denied for the following reasons:

i. Aviva failed in its ongoing adjustment of the claim to give recognition to the fact that the applicant suffered psychological impairments in the accident despite its own assessors diagnosing the applicant with psychological impairments.

ii. Aviva failed to recognize the severity of the psychological impairment. despite the comments of its own assessors. Well over three years after the accident, Aviva approved a plan for further psychotherapy and did not reconsider whether the applicant was entitled to ongoing IRBs.⁵⁶

92When Aviva terminated the applicant’s IRBs as of January 21, 2017, it accepted Dr. Schmidt’s incorrect conclusion that the applicant had returned to work full-time. Aviva relied on the surveillance report of Norman Lalonde Investigations without considering the fact that the majority of the income the applicant received from September 15 to January 21, 2017 was from the rental of the taxi cab as opposed to the applicant driving the cab himself.

93Aviva’s submissions recognize that Dr. Hope found that the applicant may have sustained a mild brain injury but failed to recognize his proviso that the applicant may have been experiencing genuine symptoms of psychological distress.

94Aviva’s submissions mention the assessment of Dr. Sivasubramanian but fail to recognize his diagnosis that the applicant suffered from posttraumatic stress disorder due to the March 2016 accident.

95Aviva refers to the assessment of physiatrist Dr. Fox but fails to recognize that Dr. Fox recommended the applicant be referred to a pain management clinic.

96Most strikingly, Aviva failed to recognize the June 2019 IE assessment of Dr. Corbin diagnosing the applicant with post-traumatic stress disorder. Dr. Corbin noted the relative severity of Mr. [K]’s psychological difficulties and found that likely that he was not yet at maximum medical improvement.

97Insurers have an obligation to continue to adjust claims made under the Schedule. I find that Aviva unreasonably refused to pay IRBs to the applicant in the face of the solid evidence that the applicant suffered serious psychological impairments as a result of the accident

98Aviva never posed the question to any of its IE assessors who completed assessments more than 104 weeks after the accident if the applicant met the requirement for ongoing IRB benefits.

99For the reasons provided above I am satisfied on the balance of probabilities that Aviva unreasonably withheld payment of the IRBs claimed.

100O. Reg. 664 allows me to order a lump sum award of up to 50% of the income replacement benefits found to be owing. The applicant asks for 50%. Aviva made no submissions on the percentage.

101I am satisfied that 50% is appropriate in this case because of Aviva’s actions in essentially completely ignoring the fact that the applicant suffered psychological impairments in adjusting the claim.

ORDER

102For the reasons provided above I order:

i. The applicant is entitled to income replacement benefits in the amount of $400 per week from January 22, 2017 to June 12, 2017.

ii. The applicant is entitled to income replacement benefits in the amount of $400 per week from October 3, 2017 to March 24, 2018.

iii. The applicant is entitled to ongoing income replacement benefits after March 24, 2018 in the amount of $340.94 per week.

iv. The applicant is not entitled to the medical benefit for physiotherapy treatment $1,661.53 recommended by Ivan Vukosavljevic in the OCF-18 submitted March 2, 2017.

v. The applicant is entitled to interest on the overdue income replacement benefits in accordance with s.51(4) of the Schedule.

vi. The applicant is entitled to an award of 50% of the income replacement benefits he is entitled to together with interest on all amounts owing to him (including unpaid interest) at the rate of 2 per cent per month, compounded monthly from the time the benefits first became payable under the Schedule.

vii. If the parties are unable to agree on the interest calculation or the calculation of the award under Ontario Regulation 664 they may contact the Tribunal to arrange for a case conference call.

Released: October 13, 2020

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