Citation: L.P.C. vs. Aviva Insurance Canada, 2020 ONLAT 19-001009/AABS

Released Date: 10/27/2020

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:

L.P.C.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice Chair

APPEARANCES:

For the Applicant:

Oksana Turner, Counsel

For the Respondent:

Samuel Davies, Counsel

Court Reporter:

Sarah Cooper

HEARD:

In-Person on January 27, 28, and 29, 2020, and closing submissions via teleconference on February 3, 2020

1The applicant, L.P.C., was involved in an automobile accident on January 21, 2017. She sought medical benefits and an income replacement benefit (“IRB”) from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2Aviva initially approved her medical benefits for up to $3,500 and within the Minor Injury Guideline (“MIG”) but denied her request for further treatment and the IRB. She appealed to this Tribunal. She has been approved for disability benefits through a long-term disability policy and CPP.

3In June 2019, while this matter was pending, Aviva removed L.P.C. from the MIG, and, in December 2019, approved her for IRBs through January 21, 2019 (the first 104 weeks after the accident), as well as the four treatment plans for medical benefits that were in dispute.

4The matter proceeded to a hearing before me on whether L.P.C. is entitled to the IRB after January 21, 2019 (i.e., “post-104 IRBs”), and a “special award” on both the paid and disputed IRBs and on the paid treatment plans, plus interest.

ISSUES

5The parties agree that after the recent approvals, the issues to be decided are:

Is L.P.C. entitled to an IRB in the amount of $35.81 per week from January 22, 2019 to date and ongoing?
Is Aviva liable to pay an award pursuant to s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to L.P.C. regarding (a) the IRBs, both recently paid and those in issue, and (b) the recently approved treatment plans, which are:

i. $4,200.50 for physiotherapy, per a plan by Alexmuir Wellness Clinic dated January 31, 2017 and denied March 14, 2017;

ii. $3,803.58 for psychotherapy treatment, per a plan by Wings Neuro Rehab (Dr. Valentin) dated September 25, 2017 and denied September 28, 2017;

iii. $3,825 for physiotherapy, plan by Alexmuir dated August 11, 2017, and denied August 21, 2017; and

iv. A $1,850 for an Attendant Care Assessment, per a plan by Alexmuir dated January 31, 2017, and denied March 14, 2017;

Is L.P.C. entitled to interest on any overdue payment of benefits?

RESULT

6I find L.P.C. is entitled to the IRB, but not an award on the IRB. She is entitled to an award on the medical plans equal to 30%. She is entitled to interest on past due amounts, as further set forth below.

Analysis

Is L.P.C. entitled to the IRB after January 21, 2019?

7Yes. I find L.P.C. is entitled to the IRB to date and ongoing, as she has established, on a balance of probabilities, that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience. I found her evidence to be reasonably consistent, and her medical evidence more current and relevant.

8Section 5 of the Schedule governs entitlement to an IRB for the first 104 weeks after an accident. It provides that an insurer shall pay an IRB to a person who sustains an impairment as a result of an accident if the insured person suffers “a substantial inability to perform the essential tasks” of his or her pre-accident employment.

9After 104 weeks (“post-104”), s. 6 provides a more stringent test. It provides that an applicant must suffer “a complete inability to engage in any employment…for which he or she is reasonably suited by education, training or experience.” Several factors inform the analysis, including: suitable employment, training and education, comparable wages, any attempts to return to work, any disabilities preventing a return and whether a return to work is detrimental to recovery.¹

10It is well-accepted that L.P.C. bears the onus to prove her entitlement to a benefit. In other words, L.P.C. has the obligation to prove entitlement to the IRB - or medical benefits - rather then Aviva having to disprove entitlement.

L.P.C.’s testimony

11I found L.P.C.’s testimony to be credible, reasonably consistent and accurate.

12L.P.C. testified that she has limited formal education and, since moving to Canada, has only taken some brief training in English as a second language. At the time of the accident, she had been working 10 years as a stock associate at a ‘big-box’ retail store. Before that, she was a machine operator for five years.

13Based on a form filled by the employer, Aviva argued that as L.P.C.’s position involved constant lifting of 10-20 lbs, it is considered medium duty. However, I accept L.P.C.’s testimony that it involved occasional lifting of up to 50 lbs., moving small refrigerators and boxes of merchandise, and thus the vocational evidence considers it “heavy duty”. Aside from the technical classification, I find that it is a physically active job, with constant lifting and movement.

14L.P.C. described the accident. She recalls her vehicle being rear-ended by a pick-up truck as she was stopped at a light. Her vehicle sustained $6,800 in damage and was written off. L.P.C. and her husband described that she was not able to get out from the car, needed assistance, and was taken to the hospital. She denies hitting her head. She complained of pain in her neck, upper and lower back, as well as in her right wrist. She was anxious and scared.

15Some of her injuries did not manifest immediately but did soon after. Importantly, her pain worsened, and she experienced dizziness and nausea. She described that her back and wrist remain in pain and that, perhaps more importantly, her whole personal affect has fundamentally changed: she suffers from severe depression, anxiety (both when driving and not), has stopped doing most of her duties around the house, and has significantly curtailed what she does with her family. She has only started driving recently – on a limited basis – but feels she can not return to work.

The medical evidence

16I prefer L.P.C.’s medical evidence to Aviva’s. Why? It is much broader, current, and based on ongoing relations with L.P.C. In a sense, the medical evidence – particularly the psychological evidence – was less about contradiction, and more about its focus on different periods of time. Most of Aviva’s IEs took place four months after the accident, and Aviva did not appear to consider the psychological impact after that point. L.P.C.’s evidence did and, thus, provided a more complete evidentiary picture.

17I found the testimony of L.P.C.’s family doctor, Dr. Alexov, to be particularly persuasive. An experienced family physician of 35 years, he has treated L.P.C. since 2003 and considered her to have been in “good health.” He explained that while L.P.C. had complained of back pain prior to the accident and even termed it ‘chronic’ – meaning it had lasted a while but was not severe – she had not missed work. Likewise, while she was anemic, the condition was asymptomatic.

18The thrust of his testimony was that, since and as a result of the accident, her health – particularly her mental health – had sharply declined. I agree. She attended at the ER and saw him three days later, but in the ensuing weeks, her pain worsened, and her stress, anxiety, and headaches, among other symptoms, were increasing. He ordered a CT scan. By July 2017, he noted insomnia, personality change, a lack of energy and referred her to a social worker. After she vomited from physical therapy, by August 2017 he diagnosed her with concussion syndrome, and sent her for various treatment in that regard, including a referral to ABI (Toronto Acquired Brain Injury Network). He felt she had depression. He also referred her to a chronic pain specialist, with whom she had a consult on March 7, 2019.

19In response to my inquiries, Dr. Alexov opined that concussive syndrome can occur without a head-strike, as in this situation. He believed L.P.C. is currently unable to work, primarily as a result of her depression, PTSD, and concussion symptoms which he attributed to the accident. He felt there was a very distinct personality change from an upbeat active person to a very subdued affect. I did not sense the he had any doubt about believing her. He also felt she had physical functional limitations, but not structural issues. Still, despite her poor condition, he felt her prognosis in the future, with the right treatment, is good.

20His testimony and records show numerous referrals and reports related to the accident. For instance, Dr. Alice Tam, saw L.P.C. in May of 2018 for concussion symptoms, and was so concerned about her depression and anxiety that she referred L.P.C. to the emergency services at The Centre for Addiction and Mental Health (“CAMH”). At CAMH, she was followed by Dr. M. McIntyre, a staff psychiatrist. Dr. McIntryre records complaints of poor concentration, low energy, and feeling detachment, among other symptoms, indicating her impression to be “most consistent with post traumatic stress disorder.” Other testing revealed a nodule on her neck, which does not appear to be related to the accident but does appear to have added to her stress. L.P.C. is also currently receiving therapy through Durham Family Services, although those records were never provided to Aviva. Recently Dr. Alexov submitted an OCF-19 on her behalf.

21L.P.C. also relied on the testimony of Neuropsychologist Dr. Irina Valentin, which I accept, but with caveats. Aviva submits that Dr. Valentin testified L.P.C. meets the post-104 “complete inability” test, but her October 31, 2017 Assessment Report (“Report”) articulates that L.P.C. suffers “a substantial inability to preform the essential tasks of her employment…”. Likewise, the Report stated L.P.C. was “suffering from pain that is limiting her participation in vocational and daily activities”. Aviva argues that “limiting” and “substantial” both imply less then a complete inability, and so I should give Dr. Valentin’s testimony little weight.

22I disagree based on the whole of Dr. Valentin evidence. First, the timing is important. Her Report occurred on October 31, 2017 – about 10 months after the accident at which point the “substantial inability” test applied. Thus, its natural for her report to speak of that test and even unusual to opine on a test that does not yet apply. As well, while the Report issued during the first year, Dr. Valentin’s facility continued to treat L.P.C. after that until November 26, 2018 – near the two-year mark – and her testimony was also based on that treatment.

23Second, regardless of the legal test, Dr. Valentin’s Report and testimony were consistent as to L.P.C.’s significant psychological issues and diagnosis centered on “severe” depression. For instance, one test showed L.P.C. suffered from “significant depression, is socially withdrawn and presents with somatic issues,” and another showed “severe depressive symptomatology” and has “great difficulty making decisions that she used to and finds it hard to keep her mind on anything for very long.” Cognitive testing also showed problems in areas of attention, memory and executive functioning.

24I note that there were issues raised on the psychometric testing. For instance, although one of the internal validity scales in the Personality Assessment Inventory (PAI) showed invalid results, Dr. Valentin belied the overall results are valid because the most important scale for reliability in medical-legal settings showed no exaggeration or minimization of symptoms. She surmised that the particular invalid score could be due to reading difficulties, carelessness, etc. Conversely, Dr. Valentin read the raw data from the IE Assessor’s testing as showing more significant issues than the IE assessor found.

25Third, I read the underlying facts and findings of the Report and the Report as a whole meeting the “complete inability” test, though it formally only opines on the “substantial inability” test or uses “limiting”. For example, the summary speaks of the many limitations, and then notes “L.P.C. cannot work anymore…” It similarly notes, “She is unable to return to work due to her current psychological and cognitive limitations.” Likewise, statements that L.P.C. suffers “a substantial inability to preform the essential tasks of her employment due to her fatigue, pain, depression and anxiety,” must be understood in context of severe depression and that “[L.P.C.’s] functioning is now at point where she cannot work full time…With effective treatment her recovery and ability to work on modified hours is fair.” As a whole, I do not hear the discussion being of a person that can tolerate a part-time schedule or modified duties; Dr. Valentine’s Report – and certainly her testimony after treatment – is that L.P.C. is not yet able consistently show up to work everyday or effectively function from a psychological or cognitive point of view, but that she may be able to in the future. In other words, I understood Dr. Valentin as opining L.P.C. is not ready to return to work.

26Finally, Dr. Valentin’s December 1, 2017 letter opines on an Orthopaedic Assessment, which struck me as advocacy beyond her scope of practice, which leads me place a bit less weight in her testimony. Still, while not as strong as it could be, for the reasons above, I found her testimony supportive of L.P.C.’s claim and consistent other evidence.

27L.P.C.’s evidence contained other clinical notes, tests and reports, which support my conclusion. For instance, a May 15, 2018 CAMH ER Beck’s Depression Inventory scored “Severe depression” as did the other CAMH records mentioned above. Chronic Pain Specialist Dr. Mark D’Souza, in a March 7, 2019 consultation report, found L.P.C.’s symptoms most consistent with trauma related neck disfunction and post concussive migraines – i.e. related to the accident.

28L.P.C. also relied on the records of Mr. Smith, Manulife’s Case Manager for the long-term disability claim, and Ms. Dauphin, R.N., of the Canadian Pension Plan. Mr. Smith opined L.P.C. is “not able to perform any reasonable alternate occupation.” Ms. Dauphin opined that L.P.C. “meets [CPP’s] definition of severe and prolonged [disability], and is incapable [sic] regularly of pursuing substantially gainful occupation now or into the foreseeable future.”

29I accept Aviva’s assertion that the standards in Manulife’s policy and CPP’s regulations are not stated and are different tests than in the Schedule. Thus, I don’t accept the Manulife or CPP findings as determinative, but I do give them some weight as supporting my factual finding, particularly about causation and L.P.C.’s difficulty in performing any employment.²

The IE Reports

30Aviva relied on several IE assessments arranged by Altum Health: (a) a June 14, 2017 Multidisciplinary Report consisting of assessments from April 27 to May 31, 2017 by Dr. Abuzgaya, orthopaedic surgeon; Dr. Challis, Psychologist; and a Functional Abilities Evaluation (“FAE”) and Job Site Analysis; (b) a May 18, 2017 Psychological Report by Dr. Challis; and (c) an April 10, 2019 Multidisciplinary Report by the orthopaedist and Tony Jung, OT.³

31As a threshold matter, I note that Altum compiled the multidisciplinary reports into a single document containing a single appendix in summary form, rather than each doctor listing the documents they reviewed. For all the witnesses testifying from this report, it was unclear what documents the various assessors actually reviewed, leaving a degree of uncertainty among their testimony.

32In Dr. Abuzgaya’s May 31, 2017 report, he found a minor limited range of motion and tenderness in L.P.C.’s thoracic/lumbosacral spine, but opined she suffered cervical and lumbosacral sprain which resolved months after the accident. He noted magnification behavior, and casual observation showed better range than during examination. His March 26, 2019 assessment similarly found no objective findings. Interestingly, Ms. Enriquez, the physiotherapist who co-authored the FAE, found muscle spasms/increased tone at T1/T2, which she considered to be “objective” findings, although she opined there were some self-limiting behaviors.

33Dr. Challis’s April 27 and May 18, 2017 psychological reports provided a provisional diagnosis of “Specific Phobia, driving”, as well as meeting some but not full criteria for a mild Adjustment Disorder. Despite some inconsistencies, he felt L.P.C. produced valid results on important measures and he could make a diagnosis, which I find was similar to Dr. Valentin’s comments on validity measures. His reports note it would be “of assistance to engage her in an in-vivo driver evaluation” but that could be completed in the MIG.

34He testified that L.P.C. endorsed some symptoms consistent with PTSD but she did not meet the criteria for PTSD, particularly as she did not watch the impact. He felt that her reporting to him was accurately telling her subjective experience. He opined she met the definition of Adjustment Disorder. While he felt she could do her pre-accident employment, he did not consider how she would get there.

35While I find his testimony inherently limited due when he assessed L.P.C. - within months after the accident, I found his testimony particularly helpful on two points. First, he explained the definition of depression and why she did not meet it at the time of his assessment. However, based on the totality of the other evidence I heard – much coming after his assessment – I find she met that definition. Second, he explained that patients with L.P.C.’s symptoms typically resolve within three months, but in a small percentage of cases PTSD develops as time goes by. Again, I find that, after his involvement, that is what occurred.

Inferences and Arguments

36Aviva raised several inconsistencies in L.P.C.’s evidence, which I found to have some but limited importance, such as Dr. Valentin’s use of “limited” as discussed above. In terms of other examples, L.P.C. reported to most of the doctors that her pre-accident health “was good with no issues”, when in fact she did have issues such as back pain and anemia.⁴ Nevertheless, I accept that her health was generally good, but not perfect, and issues were minor, under control, and did effect her daily functioning.

37Surveillance videos also showed L.P.C. attending a few garage sales, driving, and doing some shopping, such as at a grocery store. Aviva argues she has more functional abilities then she lets on. I agree this evidence shows some functional abilities, but not to the extent that it changes the result. I did not view the video as showing a healthy active person, or facts fundamentally inconsistent with L.P.C.’s testimony. While the driving on two of the four days is more than L.P.C. described, it is not by much. The two short drives appear to be very local and, moreover, L.P.C. engaged in limited physical activity with relatively subdued movement and no heavy lifting. More fundamentally, the evidence does not negate L.P.C.’s psychological issues. In this respect, this evidence actually helps L.P.C. Her husband testified, and I accept, that he was trying more recently to help her get out of the house as a step towards her recovery.

38In sum, I accept that L.P.C. currently suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience primarily as a result of her severe depression and related psychological issues from the car accident, as supported by her own testimony, and that of her husband, Dr. Alexov, Dr. Valentin, and the numerous records. Much like the conclusions of the Manulife and CPP inquires, I find she does not appear currently employable with the level of depression she is experiencing.

IS L.P.C. ENTITLED TO AN AWARD UNDER S. 10 of Reg. 664?

39Section 10 provides the Tribunal authority in certain situations to issue an “award” up to 50% of the amount to which an applicant is entitled if the Tribunal finds an insurer “has unreasonably withheld or delayed payments.” Tribunal decisions have established factors to consider in setting the amount of the award.⁵

40I find L.P.C.’s request for an award in relation to her IRB claims is close to, but does not meet, the necessary standard. However, I find that her request for an award in relation to the recently approved treatment plans should be granted.

41Regarding the IRB, Aviva reasonably conducted IEs and initially denied the benefit based on those opinions. Dr. Abuzgaya concluded L.P.C. had recovered and, although Dr. Challis provided a “provisional” diagnosis for psychological issues, he did not believe it prevented L.P.C.’s return to work.

42The difficult question is whether Aviva’s denial became unreasonable as further records arrived. In fact, the parties dispute when or if further documents ever fully arrived. Clearly, on November 2, 2017 – six months after the psychological IE – L.P.C. provided updated family doctor’s records from May 8, 2017 to October 21, 2017 showing referrals to social work, ABI, and a diagnosis of concussion syndrome, supporting her argument that Aviva failed have her re-examined. Conversely, L.P.C. only provided many other records close to the hearing and never provided Aviva with other important records, such as her employment file or from Durham Family Services.

43In any event, while the records did point to more serious psychological issues, Aviva did eventually re-evaluate and approved the pre-104 IRB. As well, while L.P.C.’s most significant issue is her steady psychological decline, Aviva’s psychological IE assessment had already found limited issues. Additionally, as Aviva correctly pointed out, none of L.P.C.’s records directly opine that L.P.C. met the “complete inability” test, her claim is not supported by a vocational report, and there are unanswered requests for reasonably relevant records that have not been produced, which weights against finding a denial unreasonable. Additionally, numerous documents were served close to the hearing, surveillance videos show some functional abilities, L.P.C.’s impairments are largely subjective, and Aviva did not have the benefit of the family doctor’s testimony.

44Thus, while I do find that L.P.C. is entitled the post-104 IRB, and certainly find some evidence weighing in support of an award, I ultimately do not find that the IRB denials meets the standard when considering all of the evidence.

45Regarding the medical benefits, against the same background, I take a slightly different view given how the MIG was applied. That difference results in an order for an award equal to 30% of the treatment plans, and interest at the Reg. 664 rate, for the following reasons.

46First, Aviva’s initial denials were based on the MIG, yet L.P.C. should not have been in the MIG. As L.P.C. argues, Aviva's own psychological assessor made a psychological diagnosis, and even tentatively recommended a further assessment, which means she has impairments that are outside the MIG.

47In that regard, I do not accept Aviva’s position that it is also entitled to rely on that same assessor’s ultimate conclusion that L.P.C. should be in the MIG, since the MIG conclusion is outside the assessor’s expertise. Put another way, the basic error is while Aviva’s initial reliance on the psychological portion of Dr. Challis’s expert report (such as the diagnosis or prognosis) was reasonable,⁶ it was not reasonable to place equal reliance on Dr. Challis’s comments about the MIG. Comments about the MIG are legal or mixed psychological/legal conclusions, which are not Dr. Challis’s expertise, and thus while Aviva might consider them, they are decisions for Aviva to make.⁷ In this case, once Dr. Challis made a provisional diagnosis and even recommended a further assessment, Aviva should not have accepted his erroneous legal conclusion that the applicant is in the MIG.

48Similarly, the assessment includes other comments that are legal in nature about the costs of treatment and whether the L.P.C. should be in the MIG:

I do not believe that the claimant's difficulties require treatment outside of the MIG cap of $3500 as the in-vivo driving assessment should be able to be conducted/completed within those costs. In my opinion, the OCF-18 proposing a psychological assessment cannot be considered reasonable and necessary as the Minor Injury can be treated within the cap of $3500.00.⁸ (Emphasis added.)

49The doctor’s opinion that necessary treatment and assessment can occur within a sum of $3,500 may be within his expertise, but whether that treatment can occur within the “MIG cap of $3,500,” is not. The “MIG cap” also includes physical treatment and other expenses not in the doctor’s expertise or of which he may not be aware. The Schedule does not state that a psychological condition is defined as in the MIG if it can be treated for under $3,500, nor that a determination of whether a psychological diagnosis is treatable within $3,500 should be made with disregard to what are L.P.C.’s physical treatment needs. As well, comments tying “reasonable and necessary” to whether treatment can occur within the MIG cap, also appears to be an incorrect legal assumption.

50Second, although Aviva removed L.P.C. from the MIG in July of 2019, it did not approve the treatment plans until the eve of the hearing, without a cogent reason for that delay.

51I find that delay particularly unreasonable, as Aviva’s original denials were based solely on the MIG. I disagree with Aviva’s submission that it also had denied the plans on the basis that they were not “reasonable and necessary” and thus never conceded that point. In fact, two of the denials plainly state “we are denying the…plans…as we feel your injuries are minor”, with no mention of being unreasonable or unnecessary. The remaining March 14, 2017 denial covering two treatment plans does mention the phrase “not reasonable and necessary” but does so as a function of the MIG: “[t]reatment is payable under the [MIG] up to $2200…, as your injuries are minor this treatment plan is deemed not reasonable and necessary….”⁹ (Emphasis added.)

52Third, despite receiving the November 2, 2017 disclosure showing further psychological issues, including a diagnosis of concussion syndrome, Aviva should have sought at least an addendum report for the psychological plans, particularly as its own assessor has made a diagnosis, recommended an assessment, and had not made findings pointing to malingering or over-reporting.

53In setting the amount of award, I see factors weighing on both sides. The reasons in favour of a larger award are those above. Conversely, I am mindful that Aviva did remove L.P.C. from the MIG, ultimately approved the plans, and the most important of L.P.C.’s impairments – her psychological impairments - can not be objectively measured. I find Aviva’s representative’s comment about recent approvals to reduce Aviva’s exposure troubling, but I accept her explanation of the context – i.e. “exposure” was a consideration, but not the paramount one.¹⁰ In conclusion, I find unreasonable withholding and delay, but certainly not intentional malice and, thus, 30% is appropriate.

CONCLUSION and Order

54I find L.P.C. is entitled to the IRB of $35.81 per week from January 22, 2019 to date and ongoing, with interest. L.P.C. is also entitled to an award on the treatment plans, equal to 30% and interest under Reg. 664. The application is allowed.

Released: October 27, 2020