Citation: Reid v. Aviva Insurance Company, 2021 ONLAT 19-006720/AABS

Released Date: 10/12/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Ti-Shai Reid

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Ti-Shai Reid, Applicant

Rajwant Singh Bamel, Counsel

For the Respondent:

Natasha Vujovic, Litigation Specialist

Sarah Fasih, Counsel

Court Reporter:

Bruce Porter

HEARD:

On February 2, 2021 Via videoconference followed by written submissions

OVERVIEW

1The applicant, Ti-Shai Reid, was injured in an automobile accident on March 31, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva Insurance Company, the respondent.

2The respondent denied the applicant’s claims for various treatment and assessments because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² The respondent took the position that the applicant failed to submitted a completed application for non-earner benefits (NEBs). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3Case conferences were held on November 6, 2019 and November 26, 2019, and the matter was originally scheduled to proceed as a combination hearing with the in-person portion scheduled for April 23-24, 2020. The in-person portion of the hearing could not proceed due to COVID-19 and was rescheduled to February 2-3, 2021. The in-person portion of the hearing ultimately took place via videoconference on February 2, 2021 with written submissions due April 1, 2021.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) Is the applicant entitled to $3,327.60 for chiropractic treatment, massage therapy, acupuncture, and assistive devices recommended by Prime Health Care Inc. in a treatment plan (OCF-18) dated March 31, 2017?

(iii) Is the applicant entitled to $1,749.28 for chiropractic treatment and assessment, massage therapy, aqua massage, and acupuncture recommended by Prime Health Care Inc. in an OCF-18 dated April 11, 2018?

(iv) Is the applicant entitled to $205.85 ($1,305.10 less $1,099.25 approved) for chiropractic treatment and re-assessment, and massage therapy recommended by Prime Health Care Inc. in an OCF-18 dated August 15, 2017?

(v) Is the applicant entitled to the following assessments recommended by Prime Health Care Inc.:

(a) $1,230.92 for an attendant care assessment in an OCF-18 dated April 3, 2017?

(b) $2,000.00 for a psychological assessment in an OCF-18 dated June 26, 2017?

(vi) Is the applicant entitled to a NEB of $185.00 per week from June 13, 2017 to June 19, 2019?

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

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

RESULT

5I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. The applicant is also not entitled to the disputed treatment plans, to NEBs for the period of June 13, 2017 to June 19, 2019 or to an award under Regulation 664. No interest is payable, and the application is dismissed.

ANALYSIS

The MIG

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment.

8I find that the applicant has not met her burden³ of proving that her accident-related impairments require treatment beyond the MIG on the basis of chronic pain, a pre-existing condition and/or a psychological impairment.

Pe-existing Condition

9As described earlier, s. 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order for the exemption to apply, the applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁴

10The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

11The applicant submitted that her pre-existing conditions of back pain and a 2014 right-hand fracture predisposed her to chronic pain and exacerbated her accident-related injuries. This, however, is not the test to meet for removal from the MIG based on a pre-existing condition.

12The applicant did, however, submit a July 5, 2019 Chronic Pain Assessment report by Dr. Grigory Karmy, physician,⁵ in which Dr. Karmy opined that the applicant could not achieve maximum medical recovery if she was treated within the MIG as a result of her pre-existing chronic lower back and left knee pain.⁶ It was Dr. Karmy’s opinion that the applicant’s pre-existing conditions should exclude her from the MIG.⁷

13I place little weight on Dr. Karmy’s opinion, however, because Dr. Karmy confirmed in cross-examination that his knowledge of the extent of the applicant’s pre-accident conditions was based solely upon the applicant’s self-reports. Dr. Karmy confirmed that he did not have access to any pre- or post-accident clinical notes and records (CNRs) of the applicant’s family physician or walk-in clinics that she attended, hospital records or an OHIP summary as part of his assessment of the applicant.

14Moreover, the pre-accident evidence before me demonstrates that the applicant’s back pain and knee pain were asymptomatic in the period leading up to the accident. For example, the CNRs from the walk-in-clinic South Common Medical Centre (South Common) show that the applicant was diagnosed with osteochondroma and Osgood-Schlatter disease in her left knee in December 13, 2014. This was the sole complaint of knee pain in the CNRs from South Common prior to the accident. Similarly, there was only one complaint of back pain in the South Common’s CNRs on March 11, 2016 while the applicant was pregnant.

15Unfortunately, the CNRs from the applicant’s family physician, Dr. Friesner, are illegible and, therefore, are of little assistance in determining the applicant’s pre-accident health status. Even if they were legible, however, they likely would not show any significantly different pre-accident information as the applicant testified that she attended South Common more often than her family physician because South Common was closer to her.

16Finally, the absence of back pain and knee pain complaints from the applicant leading up to the accident is consistent with information included on the May 24, 2017 Dr. Andrew Shaul Psychology Professional Corporation Interview Sheet.⁸ The question of whether the applicant had any medical conditions prior to the accident was answered “no” on this questionnaire.

17Therefore, while the applicant had one episode of pre-existing back pain and osteochondroma and Osgood-Schlatter disease in her left knee, I find that these conditions were asymptomatic leading up to the accident. As a result, I disagree with Dr. Karmy that these pre-existing conditions would have prevented the applicant from achieving maximal recovery under the MIG limits. As such, I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions.

Chronic Pain

18In analyzing the issue of chronic pain and the MIG, the applicant relied upon the reconsideration decision of T.S. v. Aviva General Insurance Canada (T.S. v. Aviva).⁹ In this reconsideration decision, the Executive Chair held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.¹⁰ In this decision, the Executive Chair also defined chronic pain as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being (my emphasis added).”¹¹

19The applicant primarily relied upon Dr. Karmy’s July 5, 2019 Chronic Pain Assessment report in which Dr. Karmy diagnosed the applicant with several impairments as a result of the accident including chronic pain syndrome.¹²

20The respondent submitted that I should give little weight to Dr. Karmy’s report because he relied almost entirely on the incomplete self-reports of the applicant which casts doubt on their reliability. To support its position, the respondent relied upon the decision in C.D. v. Aviva Canada¹³ in which the Tribunal found Dr. Karmy’s report to be deficient because he relied almost entirely upon the applicant’s inaccurate self-reports to form his diagnosis.¹⁴

21I agree with the respondent and find the decision in C.D. v Aviva Canada persuasive as I find that Dr. Karmy’s report in this matter was also largely based upon the applicant’s self-reports which were incomplete. For example, the applicant was unfortunately seriously assaulted on January 4, 2019 that the applicant described in her testimony as a near death experience. As a result of the assault, the applicant sustained a soft tissue contusion to her face, was knocked unconscious and diagnosed with a concussion.¹⁵ Dr. Karmy, however, diagnosed the applicant with a concussion as a result of the accident¹⁶ and testified that he had no information on the assault. In my opinion, the absence of information provided to Dr. Karmy regarding the January 2019 assault renders Dr. Karmy’s report deficient and calls into question the accuracy and his findings as the applicant was diagnosed with a concussion by South Commons following the January 2019 assault¹⁷ and not following the accident.

22I also give little weight to Dr. Karmy’s report and his diagnosis of chronic pain syndrome because his definition of chronic pain syndrome is limited to duration of pain and does not consider the applicant’s functionality and its adverse effects on the applicant’s well-being. Dr. Karmy testified that his diagnosis of chronic pain syndrome was based upon his assessment of the applicant two and a half years post-accident and that her pain was still present at that time. In fact, Dr. Karmy only testified regarding the applicant’s functionality after being prompted by applicant’s counsel. Again, however, Dr. Karmy’s information regarding the applicant’s functionality was based solely on the applicant’s self-reports, the reliability of which are questionable due to the incomplete reporting of the applicant’s post-accident injuries from her January 2019 assault.

23The CNRs from South Common also do not show any ongoing accident-related complaints. The only mention of the accident in the CNRs was on April 24, 2017 and, as a result, I find that these CNRs also do not support a finding that the applicant suffers from chronic pain.

24For all of these reasons, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain and/or chronic pain syndrome such that she is removed from the MIG.

Psychological Impairment

25Although the applicant did not submit that she is entitled to benefits outside of the MIG framework on the basis that she sustained a psychological impairment as a result of the accident, she did rely upon evidence for the hearing that addresses her post-accident psychological state. As a result, and for completeness, I have considered whether the applicant sustained a psychological impairment such that she would be removed from the MIG framework. On the evidence, however, I find that the applicant is not entitled to treatment outside of the MIG on the basis of a psychological impairment.

26The applicant submitted an undated Psychological Pre-screen Interview Report signed by Dr. Andrew Shaul, supervising psychologist, and Helen Ilios, registered psychotherapist.¹⁸ This pre-screen report stated that the applicant was interviewed on May 24, 2017 by Ilios who was operating under the “direct supervision” of Dr. Shaul. The report noted that the applicant reported sleep difficulties, changes in her mood, irritability, frustration, symptoms of depression, suicidal ideations, decline in concentration and memory, and nervousness as a driver and passenger since the accident.¹⁹ The pre-screen report recommended a comprehensive psychological assessment to gain a better understanding of the many adverse changes that have occurred in the applicant’s life since the time of the accident.

27The respondent submitted that little weight should be given to the psychological pre-screen interview report as it did not contain any objective testing results and was not supported by any of the applicant’s other contemporaneous medical records. To support its position, the respondent relied upon the Tribunal’s decision in P.S. v. Wawanesa Mutual insurance Company (P.S. v. Wawanesa),²⁰ in which Vice Chair Johal found that a psychological pre-screen interview on its own is not sufficient evidence in support of a psychological impairment as it is entirely based upon the applicant’s self-reports and no diagnostic testing to confirm the results.²¹

28I agree with the respondent and am persuaded by the decision of P.S. v. Wawanesa that a psychological pre-screen based solely on the applicant’s self-reports without anything more is not sufficient evidence of a psychological impairment. As noted by Vice Chair Johal in P.S. v. Wawanesa that an applicant’s self-reporting is not meant to be diminished, I have, however, already determined that the omission of her January 2019 assault from her self-reports to Dr. Karmy calls into question the reliability of her self-reports.

29Moreover, I also agree with the respondent that the applicant has not submitted any other contemporaneous compelling evidence of any psychological complaints for the following reasons:

(i) The CNRs from South Commons contain no post-accident psychological complaints;

(ii) The April 3, 2017 Disability Certificate (OCF-3) did note psychological concerns but it was completed by a chiropractor, who is not qualified to opine on psychological impairments; and

(iii) While Dr. Karmy diagnosed the applicant with a mood disorder with symptoms of driving and passenger anxiety as well as post-traumatic symptoms as a result of the accident in his July 5, 2019 report,²² Dr. Karmy agreed in cross-examination that making a psychological diagnosis is beyond the scope of his practice. Dr. Karmy also conceded that he relied solely on the applicant’s self-reports in arriving at these diagnoses and did not complete any diagnostic testing.

30For these reasons, I find that the applicant had failed to meet her burden of proving on a balance of probabilities that she sustained a psychological impairment as a result of the accident and, therefore, she is not entitled to benefits beyond the MIG on this basis.

31I find that the applicant is not entitled to any of the disputed treatment plans.

32As of February 2, 2021, the parties agreed that the amount of medical and rehabilitation benefits paid by the respondent to the applicant was $3,499.25 out of the $3,500.00 available under the MIG.

33As I have found that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG, I find it is unnecessary for me to determine the reasonableness and necessity of the disputed treatment plans because for all intents and purposes, the MIG limits have been exhausted. The remaining $0.75 in the MIG limits is not enough to fund any of the proposed treatment, assessments, or devices.

34Additionally, all of the second pages of the disputed treatment plans (except the April 15, 2017 OCF-18 that was approved up to the MIG limits) indicate that each of these treatment plans propose benefits outside the MIG framework, to which I have found the applicant is not entitled.

Non-Earner Benefits (NEBs)

35The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that they suffer from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

36Section 36 of the Schedule outlines the process for claiming a NEB. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to s. 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

37The respondent submitted that the applicant is statute-barred pursuant to s. 36(2) of the Schedule from proceeding with her claim for NEBs because she did not submit a “completed” OCF-3 within 104 weeks of the accident. The respondent’s position is that the April 3, 2017 OCF-3 completed by Dr. Chad Hefford, chiropractor, was not “complete” because Dr. Hefford indicated that the applicant did not suffer a complete inability to carry on a normal life.

38I need not determine the issue of whether the applicant’s application for NEBs was “complete” for the purposes of s. 36(2) and 36(3) of the Schedule because I find that the applicant has failed to prove on a balance of probabilities that she was completely unable to carry on a normal life from June 13, 2017 to June 19, 2019. Therefore, I find that the applicant is not entitled to NEBs for this period.

39Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

40“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”²³

41In its submissions, the respondent referred to the decision in Heath v. Economical Mutual Insurance Company (Heath),²⁴ wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.²⁵

42Heath also outlines several principles for the determination of entitlement to NEBs as follows:

(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

(iii) All the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

(iv) The applicant must prove that their accident-related injuries continuously prevent them from engaging in substantially all their pre-accident activities (this means that the disability or incapacity must be uninterrupted);

(v) “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

(vi) If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.²⁶

43The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.²⁷

44The applicant testified that at the time of the accident, she was not employed as she was attending York University since 2016. The applicant stated that she was enrolled in a two-year program and was scheduled to graduate in 2018. The applicant testified that after the accident, her grades dropped “dramatically.” The applicant submitted that she was unable to take her exams, and eventually ended up dropping out of her program. The applicant relied upon her inability to continue with her education after the accident as evidence that she was unable to carry on a normal life such that she should be entitled to NEBs.²⁸

45I find that the applicant’s evidence regarding her education post-accident is not reliable. The applicant testified in cross-examination that she dropped out of school “right away,” probably the month after the accident, which would have been April or May 2017. The CNRs from South Commons, however, show that the applicant requested notes for school to exempt her from an assignment due date on December 6, 2017 and December 16, 2017 due to flu-like symptoms (as opposed to symptoms related to the accident). The applicant later changed her testimony and stated that she dropped out in 2017 or early 2018. Yet when the CNRs from South Commons, which noted that the applicant was in her fourth year at York University in January 2019, were put to the applicant in cross-examination, the applicant only then testified that what she meant when she stated that she dropped out in 2017 was that she stopped attending classes. When pressed for further information, the applicant confirmed that she was still taking one class at York University in January 2019. The applicant was also evasive in answering whether in January 2019 she was still enrolled in her program at York University.

46I find that the applicant has failed to prove on a balance of probabilities that she dropped out and/or stopped attending classes at York University as a result of any impairment from the accident given her unreliable and changing testimony regarding her post-accident education. I also have no documentary evidence before me supporting her testimony that her grades declined after the accident. Therefore, I find that the applicant failed to discharge her burden of proving on a balance of probabilities by providing compelling evidence that she was completely unable to carry on a normal life because she did not complete her program at York University because of the accident.

47In undertaking a comparison of the applicant’s other pre- and post-accident activities, I find that the applicant’s evidence is inconsistent. For example, the applicant reported to Dr. Karmy that prior to the accident she was solely responsible for all the housekeeping and home maintenance chores.²⁹ However, the applicant confirmed during cross-examination that she received assistance from a family member with cleaning, laundry, and grocery shopping prior to the accident. The applicant also reported to Dr. Mohamed Aboujana, physician, in his June 23, 2017 s. 44 Insurer’s Examination (IE) Assessment Report³⁰ that she did not have any home maintenance responsibilities prior to the accident.³¹

48The evidence is also inconsistent regarding a comparison of the applicant’s pre- and post-accident social activities. For example, the applicant reported to Dr. Karmy that she:

(i) was a physically and socially active person prior to the accident;

(ii) enjoyed spending time with her friends; and

(iii) engaged in “leisure and entertainment activities” with her children including practicing soccer with them.³²

49Post-accident, the applicant reported to Dr. Karmy that she was required to “curtail all her hobbies and recreational activities due to pain and functional limitations.”³³

50In contrast, the May 24, 2017 Dr. Andrew Shaul Psychology Professional Corporation Interview Sheet answered “no” to whether the applicant socialized less than she did prior to the accident.³⁴

51The applicant’s evidence regarding her claim for NEBs also lacks important details, such as identifying what period of time she engaged in her pre-accident activities and the frequency in which she engaged in most of these activities as compared to post-accident. For example, the applicant reported to Dr. Abounaja that prior to the accident, she attended the gym and was partially able to go to the movies, visit with friends and relatives, and attend family outings and parties.³⁵ While the applicant reports not being able to do any of these activities post-accident, I am unable to determine how much less the applicant is able to dedicate to these activities post-accident such that it would be said that the applicant was prevented from engaging in “substantially all” of the pre-accident activities in which she ordinarily engaged.

52The applicant also failed to lead any evidence as to what activities were more important to her pre-accident as required by Heath.

53On the evidence, I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident from June 13, 2017 to June 19, 2019. As a result, she is not entitled to NEBs for this period.

Award

54Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

55As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

56As there are no benefits owing, no interest is payable.

CONCLUSION

57For the reasons outlined above, I find that:

(i) The applicant has failed to meet her onus of proving on a balance of probabilities that her accident-related impairments warrant removal from the MIG;

(ii) The applicant is not entitled to the disputed treatment plans;

(iii) The applicant is not entitled to NEBs for the period of June 13, 2017 to June 19, 2019;

(iv) The applicant is not entitled to an award under Regulation 664;

(v) No interest is payable; and

(vi) This application is dismissed.

Released: October 12, 2021