N.C. v. Aviva General Insurance Company, 2020 CanLII 87940

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:

N. C.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

[N. C.], Applicant

Jeton Memeti, Paralegal

For the Respondent:

Sarah Fasih, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, (“N.C.”) is a 55-year-old woman who was involved in an automobile accident on June 7, 2017. N.C. was driving her vehicle when a car in front of her stopped suddenly. She was unable to stop, swerved, and collided with a vehicle in an adjacent lane. Air bags deployed.

2Emergency services were already on scene responding to an earlier accident. Paramedics assisted N.C. with exiting her vehicle. She made a police report and then drove a rental car home.

3N.C. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The respondent (“Aviva”) denied N.C. certain benefits. N.C. disagreed with Aviva’s position and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

4N.C. has a significant pre-accident medical history. She worked as a machine operator and factory worker for 18 years but had to stop work due to pain from prolonged standing. She has been collecting CPP disability benefits since.

ISSUES TO BE DECIDED

5The issues in dispute are as follows:²

i. Did the applicant sustain predominantly minor injuries as defined by the Schedule? If not, then:

ii. Is the applicant entitled to a medical benefit in the amount of $2,285.00 (chronic pain assessment) All Health Medical Centre dated May 3, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,737.00 (chiropractic services) dated March 13, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,395.43 (assistive devices) dated June 24, 2019?

v. Is the applicant entitled to a medical benefit in the amount of $1,910.00 (MRI of cervical spine) dated July 19, 2019?

vi. Is the applicant entitled to a medical benefit in the amount of $3,715.87 (psychotherapy) dated April 24, 2019?

vii. Is the applicant entitled to a medical benefit in the amount of $12,398.54 (multidisciplinary treatment program) dated May 31, 2019?

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

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

RESULT

6N.C. has reached maximum medical recovery from her accident-related injuries. While she is entitled to seek treatment beyond the monetary limit set out in the Minor Injury Guideline (“MIG”),³ she has failed to establish, on a balance of probabilities, that the disputed Treatment and Assessment Plans (OCF-18s) are reasonable and necessary. As such, she is not entitled to payment for the benefits claimed, and she is not entitled to any interest.

7N.C. has failed to establish that Aviva’s conduct is deserving of a special award.

ANALYSIS

8The parties have made no submissions on whether N.C.’s injuries were subject to treatment within the MIG. The issue appears to no longer be in dispute.

9Nevertheless, the evidence shows that N.C. suffered from pre-existing medical conditions that entitle her to seek treatment beyond the MIG.

10Section 18(2) of the Schedule provides that the $3,500.00 limit for the treatment of minor injuries does not apply if there is compelling evidence that a person has a pre-existing medical condition that was documented by a health practitioner before the accident and will prevent maximal recovery from the minor injury if the person is subject to the monetary limit in the MIG.⁴

11N.C. suffered from documented pre-existing medical conditions, including chronic pain syndrome and degenerative disc disease of the lumbar and cervical spine. Those conditions made her unable to work and qualified her for CPP disability benefits. I find that N.C.’s pre-existing medical conditions would have prevented her from achieving maximal recovery from her accident-related injuries if she had been subject to the monetary limit in the MIG.

12As a result of the accident, N.C. sustained myofascial strain and sprain injuries. In addition, I conclude based on Dr. Auguste’s assessment that N.C. suffered accident-related exacerbations of her pre-existing degenerative disc disease and chronic pain syndrome, predominantly affecting her lower back.

13I accept the evidence of Dr. Ko that, as of his September 5, 2019 assessment, there was no objective evidence of ongoing organic pathology.⁵ N.C. sustained no lasting physical impairments as a result of the accident.

Has N.C. reached maximum medical improvement form her injuries?

14I find that N.C. has reached maximum medical improvement from her accident-related injures. Her recovery has plateaued, and her prognosis is poor. I am not satisfied, on a balance of probabilities, that further treatment will substantially aid her recovery from her accident-related injuries.

15I base my conclusions on the following:

i. The May 13, 2019 Treatment and Assessment Plan (OCF-18) for a chronic pain assessment states that N.C. has found physiotherapy helpful, but that it has led to little improvement in her condition;⁶

ii. Dr. Inese Robertus, Family Physician specializing in interventional chronic pain management, found that N.C.’s pain had shifted from an acute pain state to a chronic pain state; that her condition had seen “very minimal pain improvement since the accident” despite conventional interventions; that she was “unable to progress” due pain symptoms; that her chronic pain syndrome was “difficult to treat” and is now “permanent”; and that her prognosis was guarded and poor;⁷

iii. Dr. Michael Ko, Physiatrist, assessed N.C. as having reached maximum medical improvement as she had not noticed any improvement in her back pain since 2017 despite three years of therapy;⁸

iv. Dr. Jacqueline Auguste, Orthopaedic Surgeon, concluded that N.C. had reached maximum medical improvement in that she had “likely returned to baseline and is experiencing the natural progression of and symptoms from her pre-accident conditions”. She also noted no appreciable change in N.C.’s medication profile or MRI findings;⁹

v. Dr. Daniel Toledano, N.C.’s family physician, noted that N.C. was “on aggressive treatment for depression yet seems not to be responding well”; was “likely amplifying her pain”; was “severely treatment resistant”; was “very difficult to change for the better”; “needs to do more activity…at high risk for becoming frail at a very young age”; and that she “seems to be deteriorating”.¹⁰

vi. Dr. Tony Toneatto, Psychologist, determined that N.C.’s prognosis was “not fair”;¹¹ and

vii. Dr. Jonathan Siegel, Psychologist, noted that N.C. felt her condition had not improved at all, and though she finds physiotherapy and psychotherapy helpful, based on her presentation during the assessment, treatment did not appear to have had any long-standing benefit or significant impact on her underlying feelings of suffering; and opined “it is reasonable to posit that her psychological condition has stabilised”.¹²

16The evidence establishes that N.C. has reached maximum medical improvement from her accident-related injuries and exacerbations.

Are the disputed Treatment and Assessment Plans (OCF-18s) reasonable and necessary?

17There are six Treatment and Assessment Plans (OCF-18s) in dispute:

Date	Amount in dispute	Proposed treatment / assessment
March 13, 2019	$2,737.00	Chiropractic services
April 24, 2019	$3,715.85	Psychotherapy
May 3, 2019	$2,260.00¹³	Chronic Pain Assessment
May 31, 2019	$9,359.50¹⁴	Multidisciplinary Treatment Program
July 26, 2019	$1,345.43	Assistive devices
July 26, 2019	$1,910.00	MRI of cervical spine

18I find that the disputed Treatment and Assessment Plans (OCF-18s) represent reasonable and necessary expenses resulting from the accident. N.C. has reached maximum medical improvement from her accident-related injuries. I am not persuaded that further facility-based treatment will yield any substantial improvement in her condition.

19Aviva denied N.C.’s OCF-18s for chiropractic services (March 13, 2019) and a chronic pain assessment (May 3, 2019) based on Dr. Auguste’s April 24, 2019 Orthopaedic Surgery Assessment Report. Based on her review of the available diagnostic imaging, Dr. Toledano’s clinical notes and records, and the findings from her physical examination, Dr. Auguste concluded N.C.’s accident-related injuries were “myofascial sprain/strain injuries” coupled with exacerbations of her pre-existing degenerative disc disease and chronic pain syndrome. She could not equate N.C.’s subjective pain with any objective impairments and opined that N.C. continues to demonstrate non-organic pain-focused behaviour.¹⁵

20I find Dr. Auguste’s assessment compelling. It aligns with the clinical notes and records of N.C.’s family physician, Dr. Toledano, who repeatedly documented N.C.’s poor response to therapeutic interventions, made no referrals for further investigation of her chronic pain syndrome, and whose recommendations focused on in-home self-directed strengthening exercise, reduced reliance on opioids, and lifestyle changes.

21Aviva’s denials of the four other Treatment and Assessment Plans (OCF-18s) – for psychotherapy, a multidisciplinary treatment plan, assistive devices and an MRI - were based on Dr. Siegel’s September 19, 2019 Psychological Assessment. Dr. Siegel concluded that N.C. had reached maximum medical improvement. His evidence is logical and compelling. He conducted a structured clinical interview, self-reported psychometric questionnaires, and performance-based screening measures of cognitive functioning. The results of his testing reflected symptom magnification and possible self-limiting behaviour relative to N.C.’s actual abilities. He observed that “[N.C.] is suffused with a sense of suffering associated with pain” and presents with “strong underlying feelings of suffering”. She received the highest score possible on the Pain Catastrophizing Scale, suggesting that pain is the predominant focus of her attention.¹⁶

22Dr. Robertus was the only assessor who concluded that N.C. had “not yet reached maximum medical improvement” from her injuries.¹⁷ She noted that the best outcomes for complex pain management are achieved by specialists working as a team. However, the balance of Dr. Robertus’s clinical observations as detailed above suggest that further medical and rehabilitative interventions are only minimally likely to result in substantial improvement in N.C.’s conditions.

23Dr. Robertus’s recommendations, including the list of assistive devices in dispute, are only supported by her opinion that N.C. “may also benefit from” them. That opinion is not enough to establish that these are reasonable and necessary expenses as a result of the accident.

24Despite his findings that N.C. appeared to have received no long-standing benefit from physical and psychological therapy and that her condition had stabilized, Dr. Siegel concurred in part with Dr. Robertus’s recommendation of a multidisciplinary chronic pain treatment program. He also recommended that N.C. engage in volunteer work to shift her focus externally.

25Based on Dr. Siegel’s opinion that 12 of the proposed sessions of mental health and addictions therapy would have therapeutic benefit and that additional psychotherapy added no therapeutic value, Aviva partially approved N.C.’s claim for a multidisciplinary chronic pain treatment program. I find that Aviva acted in good faith in partially approving this plan, since on a balance of probabilities it is unlikely that the treatment goals identified in the plan are reasonably achievable.

26The claim for an MRI of the cervical spine is unreasonable because repeated diagnostic imaging showed no change in N.C.’s physical condition, and because the cost of the MRI would ostensibly be covered by OHIP.

27I can accept that from a clinical perspective, it may be reasonable to recommend ongoing treatment to a patient who is severely treatment-resistant and whose prognosis is poor. However, I am legally and factually constrained by the Schedule and the evidence before me and based on a review of the evidence I find that the disputed treatment plans are not reasonable and necessary.

28I do not discount that N.C. continues to suffer from debilitating, near-constant pain. However, Aviva is only required to cover reasonable and necessary medical expenses that result from the accident.

29It is not reasonable to hold Aviva liable for any and all expenses aimed at addressing N.C.’s pre-existing medical conditions when she has reached maximum medical improvement from her accident-related injuries and exacerbations.

30N.C. submits that she has incurred some of the costs claimed in this application. However, the mere fact an expense has been incurred does not require an insurer to cover it.

Interest

31Since I have determined that there are no payments of benefits outstanding, N.C. is not entitled to payment of interest under the Schedule.

Special award

32N.C. submits that Aviva has acted in bad faith in adjusting her claim. She submits that Aviva failed to comply with the Schedule and failed to review all available medical evidence. She submits that this amounts to frivolous and vexatious behaviour.

33In support of her position, N.C. submits that she made detailed requests for treatment and that Aviva’s adjusters ignored medical evidence and used prior medical opinions to deny new treatment requests.

34N.C. points me to the Psychological Assessment of Dr. Tony Toneatto and the clinical notes and records of Dr. Daniel Toledano, highlighting the evidence of N.C.’s persistent pain complaints and pain-related psychological distress.

35N.C. has not linked the evidence that she suffers from ongoing, debilitating pain to her submission that Aviva acted vexatiously or in bad faith. As is demonstrated in the reports of the assessors cited in these reasons, I find that Aviva and its s. 44 Insurance Examiner’s thoroughly and fairly considered this medical evidence in determining that the proposed treatments and assessments were not reasonable and necessary.

36Aviva submits it had good faith reasons for its denials. The evidence supports this. N.C. has failed to establish entitlement to a special award.

ORDER

37The application is dismissed. No amounts are owing and no interest is payable. The request for a special award is denied.

Released: October 13, 2020

Theresa McGee

Vice-Chair

Footnotes

Ontario Regulation 34/10.
As identified in the Case Conference Order of Adjudicator S. Driesel dated October 10, 2019.
Superintendent’s Guideline No. 01/14.
Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 18(2).
Applicant’s Brief, Tab 14: Multidisciplinary Reports of Dr. Michael Ko dated September 5, 2019 (Physiatrist) and Dr. Jonathan Siegel dated September 4, 2019 (Psychologist).
Applicant’s Brief, Tab 1: OCF-18 dated May 3, 2019 at p. 11.
Applicant’s Brief, Tab 4: Chronic Pain Assessment Report dated June 24, 2019, at pp. 17-20.
Applicant’s Brief, Tab 14: Multidisciplinary Reports of Dr. Michael Ko dated September 5, 2019 (Physiatrist) and Dr. Jonathan Siegel dated September 4, 2019 (Psychologist).
Applicant’s Brief, Tab 6: Orthopaedic Surgeon Report of Dr. Jacqueline Auguste dated April 24, 2019 at p. 8.
Respondent’s Brief, Tab 5: Dr. Toledano’s clinical notes and records dated January 10, 2015 to October 31, 2016.
Applicant’s Brief, Tab 16: Psychological Report of Dr. Tony Toneatto dated October 20, 2017.
Applicant’s Brief: Tab 14: Multidisciplinary Reports of Dr. Michael Ko dated September 5, 2019 (Physiatrist) and Dr. Jonathan Siegel dated September 4, 2019 (Psychologist) at pp. 20-21.
The Case Conference Order lists the amount in dispute as $2,285.00. The total amount claimed in the OCF-18 is $2,260.00. N.C. has incurred $2,285.00.
The Case Conference Order lists the amount in dispute as $12,398.54. Aviva partially approved the plan for $3,093.04, leaving $9,359.50 in dispute.
Applicant’s Brief, Tab 6: Orthopaedic Surgeon Report of Dr. Jacqueline Auguste dated April 24, 2019.
Applicant’s Brief: Tab 14: Multidisciplinary Reports of Dr. Michael Ko dated September 5, 2019 (Physiatrist) and Dr. Jonathan Siegel dated September 4, 2019 (Psychologist).
Applicant’s Brief, Tab 4: Chronic Pain Assessment Report dated June 24, 2019, at p. 20.