S.L. v. Aviva Insurance Company of Canada 2020 OLAT mini 165

Citation: [S.L.] vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-002783/AABS

Released Date: 03/02/2020

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:

[S.L.]

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

VICE CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Kevan Wylie, Counsel

For the Respondent: Mohamed Hashim, Counsel

HEARD: In-Person: January 27, 2020

OVERVIEW

1The applicant, SL, was involved in a car accident on November 4, 2016 and as a result, he alleges he sustained physical and psychological injuries. Because of those injuries, he claims he required treatment and he stopped working.

2SL applied for income replacement and medical benefits to the respondent, Aviva Insurance Company of Canada (“Aviva”), in accordance with the Schedule.¹

3Aviva denied the treatment plans on the basis that they were not reasonable and necessary because SL was in the Minor Injury Guideline (“MIG”) and he had exhausted all funding available to him. The income replacement benefits (“IRB”) were denied because the applicant did not meet the test for the benefit.

4SL disagreed and filed an application for dispute resolution with the Tribunal.²

ISSUES IN DISPUTE

5The questions to be determined are:

(i) Is SL subject to the MIG as defined by the Schedule?

(ii) Is SL entitled to the following treatment plans for medical benefits and cost of assessments:

(a) $1,977.05 for chiropractic treatment submitted on March 31, 2017?

(b) $1,582.15 for chiropractic treatment submitted on May 29, 2017?

(c) $2,200.00 for a chronic pain assessment submitted on August 8, 2017?

(d) $2,228.72 for a psychological assessment submitted on December 6, 2016?

(e) $2,909.00 for a social work assessment submitted on October 26, 2017?

(f) $2,219.54 for a driving evaluation assessment submitted on May 1, 2018?

(g) $3,641.09 for psychological treatment submitted on April 6, 2017?

(h) $26,400.00 for a catastrophic assessment submitted on October 26, 2018?

(iii) Is SL entitled to receive a weekly income replacement benefit in the amount of $400.00 from November 11, 2016 until April 10, 2017?

(iv) Is SL entitled to an award pursuant to s. 10 of Regulation 664 for unreasonably withholding or delaying payments of benefits? and

(v) Is SL entitled to interest?

RESULTS

6I find the applicant:

(i) is in the MIG and is not entitled to any treatment and assessment plans.

(ii) is entitled to an IRB in the amount of $400.00 per week from November 12, 2016 until March 13, 2017 with interest in accordance with the Schedule.

(iii) is not entitled to an award.

ANALYSIS

Is the applicant in the Minor Injury Guideline?

7The MIG establishes a treatment framework available to an injured person who sustains a minor injury as a result of an accident. A “minor injury” is defined in the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.” Under s. 18(1) of the Schedule, a person who sustains an impairment that is predominantly a minor injury for any one accident is subject to a $3,500.00 funding limit on their treatment.

8To request treatment above the $3,500.00 funding limit, the applicant must prove on the balance of probabilities that their injuries do not fall within the definition of “minor injury” in section 3 of the Schedule. The applicant can establish that by:

(i) Producing compelling evidence, provided by a health practitioner, that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subjected to the funding limit; or

(ii) Establishing an impairment sustained in the accident that is not a predominantly minor injury.

9SL submits that he should not be subject to the MIG because he has pre-existing conditions that prevent maximal recovery within the MIG funding limits and he has been diagnosed with conditions that do not fit within the definition of a minor injury.

10SL submits that he had pre-existing low back pain/strains and has re-injured the same area. Therefore, he should not be subject the MIG limits. He also submits that he has been diagnosed with a psychological condition and chronic pain disorder, neither of which fall under the definition of a minor injury. SL relies on his assessment reports, the clinical notes from the family doctor and the testimony of his witnesses to support his position.

11Aviva submits that the applicant has nothing more than strains and sprains and that the injuries fall within the definition of the MIG. It points to many inconsistencies in the applicant’s reports compared to the testimony of the applicant and the family doctor’s records. Aviva relies on its s. 44 assessments to support its position SL is in the MIG.

12I find that SL’s pre-existing injuries, his previous low back strains, do not bring him out of the MIG. Between the period of 2013 to 2016 the clinical notes from the family doctor reveal that SL had injured his lower back approximately 4 times prior to this accident. Those notes do not reveal any follow up from the family doctor, recommendations to other medical professionals or that the issues persisted for a long period of time. In order to be out of the MIG due to pre-existing injuries, SL must prove through compelling medical evidence that being subject to the $3,500.00 limit would prevent him from achieving maximal recovery within those limits. I have no such evidence from SL. I also find that even though SL injured his lower back in this car accident, I do not have a medical opinion that those injuries were exacerbated or worsened by this accident.

13SL claims that, based on his assessment reports, he suffers from a psychological condition and chronic pain disorder and therefore his injuries should not be considered minor³. He submits that the psychologist, Dr. Vitelli, diagnosed him with “adjustment disorder with mixed anxiety and depressed mood and specific phobia situational type” and that Dr. Wilderman diagnosed him with chronic pain disorder.

14Aviva relies on its s. 44 assessments that confirm that SL suffers nothing more than minor injuries and that he does not suffer from a psychological condition.

15In order to be diagnosed with a psychological condition, Dr. Vitelli testified that it is based on the overall clinical impressions, when symptoms interfere with functional impairments and the clinical testing. That is why, despite similar testing results, medical opinions can differ in whether the results amount to a diagnosis. In this case SL’s and Aviva’s psychological testing ended in similar results yet differed in opinion on whether SL suffered from a psychological condition. Dr. Vitelli also testified that the opinion of a medical assessor is only based on symptoms and testing conducted in that period of time, so conditions may change. Dr. Vitelli testified that SL had an inability to cope, an inability to interact with his family, and social issues, and that’s how he arrived at a psychological diagnosis.

16Aviva’s assessment found that there are only “subtle indications that [SL] may have current/active depressive and anxiety experience” and that “physical issues are more of a concern at the present time than his psychological complaints”. The report concludes that SL’s “distress is considered subclinical”.

17I prefer Aviva’s psychological assessment report over SL’s because Aviva’s report goes into greater detail on various aspects of SL’s life, how it may be affecting him psychologically and it conducted significantly more psychological testing than Dr. Vitelli’s report. I find the results of Aviva’s report to be the most consistent with SL’s testimony and the clinical notes from the family doctor. SL’s testimony supports that his main concern is that his lower back is still bothering him. His testimony also supports that the small amount of avoidance behaviour regarding his kids or the gym are related to his physical conditions and not his psychological issues. Also, the clinical notes from the family doctor does not indicate any psychological symptoms. For those reasons, I find SL does not suffer from a psychological condition.

18SL submits that his injuries should not be considered minor because he was diagnosed with chronic pain disorder. SL relies on the chronic pain assessment of Dr. Wilderman. SL submits that Dr. Wilderman’s assessment should hold greater evidentiary weight because his diagnosis is based on the American Medical Association Guides, which have been found by the Tribunal as a credible way of assessing the disorder.⁴

19Aviva submits that Dr. Wilderman’s report is inconsistent with other evidence. The family doctor’s report does not confirm that SL has chronic pain, and indicates SL was overusing marijuana when SL testified he only used it once. Also, Aviva submits that, in order to be diagnosed with chronic pain disorder, the Tribunal’s decision in 17-007825 v Aviva Insurance Canada⁵, states that the symptoms need to show a severe debilitating condition of ongoing pain which SL does not.

20I find the applicant does not have a chronic pain disorder. I give little weight to Dr. Wilderman’s report for the following reasons.

21In his report, Dr. Wilderman describes chronic pain disorder as a condition that prevents a person from partaking in daily activities as he did prior to the accident, a pattern of re-occurrence over months or years and it is also associated with significant and reliable impairment of functional status.

22The report states that SL is prevented by his injuries from engaging in his pre-accident activities. However, SL testified and reports to various assessors, that he returned to work in April 2017 and he still plays with his children, although maybe not at the same level as he used to. Further, while the report states that SL is the primary caregiver to his two children, SL testified that his wife does most of the childcare duties.

23Dr. Wilderman gives the opinion that SL has become unfit to engage in any employment. However, SL testified that he has over the last few years taken on different employment opportunities and is currently working at CN McNally.

24The report also states SL uses medical cannabis beyond the recommended duration, abuses it or is dependent on it. However, SL testified that he has used cannabis once.

25I recognize that SL has complained of pain to various assessors and to his family doctor. I also recognize that some of his pre-accident activities have changed, but I cannot say that the changes amount to a “significant and reliable impairment of functional status or that he shows a severe debilitating condition of ongoing pain” or that it meets the definition of chronic pain disorder as outline in Dr. Wilderman’s report.

26The video surveillance on November 9, 2017 shows SL picking up one of his kids, leaning into the back of the car and buckling them in with no visible functional impairments. The surveillance on December 6, 2017 shows SL was helping a friend complete very heavy physically demanding construction work with no visible functional impairments. The same is true on May 24, 2019 where SL was working on another construction project with no visible functional impairments. Based on the inconsistencies found in Dr. Wilderman’s report, the testimony of SL, the video surveillance and the clinical notes from the family doctor, I cannot conclude SL suffers from a chronic pain disorder.

27Overall, I find SL has minor injuries as result of the car accident on November 4, 2016 and is subject to $3,500.00 worth of treatment.

Is the applicant entitled to the treatment and assessment plans in dispute?

28As SL is limited to $3,500.00 worth of treatment, and since Aviva has approved treatment up to that amount, I have no jurisdiction to decide the reasonableness or necessity of the treatment and assessment plans that are in dispute.

Is the applicant entitled to a weekly income replacement benefit?

29SL stopped working his physically demanding construction job at […] because of the injuries he sustained in the car accident. SL relies on the Disability Certificate (“OCF-3”) dated November 12, 2016 that confirms he is unable to perform the essential tasks of his employment. The OCF-3 states the anticipation duration of the injuries preventing SL from returning to work would last approximately 9-12 weeks.

30Upon receipt of the OCF-3, Aviva asked SL to attend a series of s.44 assessments to determine whether he qualified for an IRB⁶.

31On March 13, 2017, Aviva, based on its s. 44 assessments, determined that SL did not meet the test for an IRB and denied the benefit.

32For an employed person to be entitled to a pre-104 week IRB, s. 5 (1)(1)(i) of the Schedule states that the applicant must suffer a substantial inability to perform the essential tasks of his pre-accident employment. To meet the pre-104 week IRB test, a comparison needs to be made to determine the following:

(i) what were the injuries resulting from the accident?

(ii) what are the essential tasks of the applicant’s employment? and,

(iii) does the applicant suffer a substantial inability to complete them?

What were the applicant’s accident related injuries?

33As a result of the accident, I find SL suffers from strains and sprains, headaches, and sleep issues. This is supported in the OCF-3, the clinical notes from the family doctor and the various assessor reports.

What were the applicant’s essential tasks of his employment?

34SL testified that, at the time of the accident, SL worked as a Form Setter with […]. His job would include forming a casing or mold out of wood or steel in order to make a concrete pillar or curb. This would necessitate heavy strength work, handling loads greater than 40 pounds, activities involving upper limb coordination and other body positions.⁷

Does the applicant suffer a substantial inability to perform the essential tasks of his employment?

35I find that the applicant suffered a substantial inability to perform the essential tasks of his employment from November 12, 2016 until March 13, 2017.

36The OCF-3, completed by the applicant’s chiropractor, stated that the applicant met the test for an IRB because of the injuries he sustained in the car accident. On the balance of probabilities, it is reasonable to conclude that someone who is diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal the injuries. Based on the OCF-3 the anticipated duration that the impairments would prevent SL from working for 9-12 weeks.

37During that period of time, SL attended a series of s. 44 assessments and they determined that, at that time, SL suffered from strains and sprains, headaches, and lack of sleep. Based on those injuries, the s. 44 assessors concluded that SL did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Consequently, Aviva denied the IRBs in a letter to SL on March 13, 2017.

38SL testified that he returned to work in April of 2017. Between March 13, 2017 and April 10, 2017, I do not have any evidence to suggest that SL continued to meet the test for an IRB. There is no medical evidence to support that SL continued to suffer from any medical limitations that would prevent him from returning to work. I have already found that he did not suffer from a psychological condition and on that basis, he could not be affected by a psychological impairment that prevented him from returning to work. Aviva’s psychological assessor had already found that his psychological symptoms were subclinical, and it did not prevent him from returning to work.

39Since the OCF-3 was not dated until November 12, 2016, s. 36(3) of the Schedule states that no entitlement to the specified benefit may begin until the completed OCF-3 is submitted. Therefore, entitlement to the benefit can only begin on November 12, 2016.

40Therefore, based on the balance of probabilities, SL is entitled to an IRB in the amount of $400.00 per week from November 12, 2016 until March 13, 2017.

Award:

41SL claims that Aviva has unreasonable withheld or delayed payments of his IRB. SL submits an award is justified because his assessments support an inability to return to work, Aviva’s s. 44 assessment reports did not take into account the family doctor’s clinical notes, and because Aviva followed SL with surveillance when he had already returned to work.

42I find SL is not entitled to an award. The parties had a difference of opinion on whether SL could return to work. At the time the surveillance was conducted, he was still claiming entitlement to an IRB and Aviva was unaware SL had returned to work. It wasn’t until the hearing that the IRB claim was limited to April 10, 2017. I do not find the conduct of Aviva amounts to an unreasonably withholding or denying of the IRB benefit.

CONCLUSION AND ORDER:

43I find SL has not met his burden of proof for removal from the MIG. His treatment funding is limited to $3,500 under the MIG. Since all funding under the MIG has been exhausted, SL is not entitled to the treatment plans.

44SL is entitled to a weekly IRB in the amount of $400.00 per week from November 12, 2016 until March 13, 2017.

45SL is not entitled to an award.

46SL is entitled to interest for the IRB in accordance with the Schedule.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
3. 3Assessment reports of Dr. Vitelli and Dr. Wilderman
4. 4M.F.X. v. Certas Home and Auto Insurance Company, 2019 CanLII 43874 (ON LAT)
5. 52018 CanLII 98282 (ONLAT)
6. 6Aviva’s letter to SL dated December 9, 2016
7. 7Physical Demands Analysis dated March 10, 2017