Falconi v. Aviva Insurance Company of Canada, 2021 CanLII 110963

Citation: Falconi v. Aviva Insurance Company of Canada, 2021 ONLAT 20-000335/AABS

Licence Appeal Tribunal File Number: 20-000335/AABS

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:

Virginia Falconi

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant: Frank Calcagni, Counsel

For the Respondent: Cara L. Boddy, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Virginia Falconi, was involved in an automobile accident on January 6, 2015, and sought benefits from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent denied some of the applicant's claims for medical and rehabilitation benefits. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the applicant entitled to $3,192.00 for physiotherapy treatment, recommended by Eramosa Physiotherapy in a treatment plan (OCF-18) dated February 1, 2019?

b. Is the applicant entitled to $3,591.00 for physiotherapy treatment, recommended by Eramosa Physiotherapy in a treatment plan dated August 2, 2019?

c. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Psychology Health Solutions in a treatment plan dated October 17, 2019?

d. Is the applicant entitled to $4,262.73 for a psychological treatment, recommended by Psychology Health Solutions in a treatment plan dated December 10, 2019?

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

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

RESULT

4The applicant has failed to establish, on a balance of probabilities, that the disputed medical and rehabilitation benefits are reasonable and necessary as a result of the accident. Therefore, no benefits are payable, and no interest is owing. There is no basis for an award.

PROCEDURAL MATTERS

5The respondent submits that two of the medical reports relied on by the applicant should be excluded from evidence because the applicant produced them after the production deadline ordered by the Tribunal. The reports are those of Dr. Ann Huang dated December 15, 2020, and the Psychological Review Report of Psychology Health Solutions, dated February 2, 2021.

6While it is important that parties comply with procedural orders issued by the Tribunal, exclusion of evidence is an extraordinary remedy. The respondent has not established that it has suffered or will suffer any prejudice from the admission of the late-produced records. Therefore, I am prepared to admit the reports and deal with their late production as a matter of weight.

ANALYSIS

1) Medical and Rehabilitation Benefits

7To be eligible for the medical and rehabilitation benefits in dispute, the applicant bears the onus of establishing on a balance of probabilities that the proposed treatment and assessments are reasonable and necessary as a result of the accident, pursuant to s. 15 of the Schedule.

8It is well-established that the test for causation in the accident benefits context is whether the accident is a 'but-for' cause of an impairment: see Sabadash v. State Farm et al, 2019 ONSC 1121 [Sabadash]. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be "a necessary" cause. There is no need for the applicant to prove that the accident alone caused her impairment.

9I am not satisfied that the treatment and assessments sought by the applicant in 2019 are reasonable and necessary to address her accident-related injuries. The applicant has significant pre-existing conditions, including depression, anxiety, and a chronic lumbar condition that required a discectomy in 2009. While there is evidence to suggest that the accident may have exacerbated the applicant's back pain, on balance, the evidence before me does not establish that the interventions proposed in the disputed treatment plans were reasonable and necessary nearly four years after the accident.

a) Physiotherapy Treatment Not Reasonable and Necessary

10The records of the injuries the applicant sustained in the accident do not support a finding that continued physiotherapy would be reasonable and necessary in 2019, when the disputed treatment plans were proposed. The ambulance and hospital records from the date of the accident show that the applicant sustained a hematoma to her left leg below the knee, and other soft tissue injuries to the right ankle and right shoulder, though her shoulder range of motion was "adequate".

11At the hospital, the applicant denied pain in her neck and back, and physical exam findings in relation to the back were "unremarkable". She later reported to assessors that the day after the accident, she felt stiffness and pain in her neck, chest, back and abdomen.

12When the applicant attended her family physician, Dr. Ann Huang, on January 12, 2015, she noted complaints of being "more sore" in her left lower back and noted some bruises on her left lower leg. However, Dr. Huang described the applicant's overall condition as "not too bad." Dr. Huang ordered no changes to the applicant's care plan.

13The applicant suffered a herniated disc in 2006 due to heavy lifting at work. She had back surgery (a discectomy) in 2009 and eventually had to stop working due to her condition. The applicant submits that her back pain had mostly resolved before the accident. She submits that the accident resulted in pain and functional limitations that persisted for years after the fact. While I accept that the accident may have exacerbated the applicant's pre-existing back pain to some extent, I do not find her submissions as to the role of the accident in her ongoing back pain persuasive.

14The reported to her psychological assessors that she was taking Oxycocet (Percocet) before the accident due to her back pain. Hospital records from the date of the accident confirm that she was on this drug at that time. The medical records show that the applicant's Percocet use remained relatively unchanged after the accident. The applicant's pre-accident reliance on opiates to treat her pre-existing pain does not support a finding that, as she submits, that condition had largely resolved before the accident.

15Diagnostic imaging, including a lumbar spine MRI conducted on June 7, 2015 showed features of the mid and low back that were unchanged since March 2008, and suggested that the applicant may have developed post-operative fibrosis following her discectomy. In addition, an EMG and nerve conduction study conducted on July 29, 2016, showed changes to the applicant's L4/L5 area that were "old chronic L4/5 changes" and "no new significant changes". The author of the report described the accident as having prompted a "flare-up of pain" and concluded, "at this point Virginia, although she has had a flare-up, feels that she has improved and I would suggest she is actually getting better". While the diagnostic imaging objectively establishes the features of the applicant's pre-existing and chronic spinal conditions, it reveals no evidence of trauma-related changes that could be attributed to the accident.

16The applicant has tendered the clinical notes and records of her rheumatologist, Dr. Pauline Boulos, who has long treated the applicant for chronic conditions unrelated to the accident. On September 18, 2015, the applicant visited Dr. Boulos and mentioned the accident. Dr. Boulos' note from the visit states that the applicant "is ok now […] No joint pains and no weakness […] looks well and comfortable." The applicant continued to see Dr. Boulos into 2019, and she documented no further complaints related to the accident.

17Finally, the applicant had a history of extensive reliance on passive rehabilitation before the accident. She attended routinely for years. The records before me show a total of 394 visits between 2012 and 2020. There is little change in the frequency of her attendance after the accident. Moreover, at the applicant's first post-accident physiotherapy session, her treatment provider noted her pre-existing L4/5 disc pathology, radiculopathy and WAD II (whiplash associated disorder), and proposed two therapy sessions per week for 12 weeks. The treatment plans in dispute were submitted 205 and 231 weeks after this visit.

18The applicant refers me to the evidence of Dr. Ann Huang, her family physician, that the accident may have made her pre-existing back pain much worse. Dr. Huang's records to that effect are dated January 13, 2020, when she noted at a clinical visit that the applicant was frustrated that her insurance company was denying her coverage even though she was in a significant accident. At the time, the applicant was seeking a determination of catastrophic impairment. Dr. Huang noted that she had reviewed the criteria and did not feel that the applicant met the 55% whole person impairment threshold, stating, "unfortunately she had a previous back injury and the car accident may have made this much worse." Dr. Huang advised the patient to get back in touch with her lawyer.

19To decide whether the respondent is liable for the proposed interventions, I must ask whether the treatment the applicant seeks was reasonable and necessary at the time it was proposed. Although a clinical note of Dr. Huang dated October 16, 2019 recommended that the applicant receive physiotherapy for back pain and leg pain, the totality of the evidence does not establish that the need for physiotherapy as a result of the accident. The medical evidence shows severe pre-existing conditions affecting the spine that required continuous treatment before and after the accident. The diagnostic imaging shows no evidence of traumatic changes that could be attributed to the accident. The applicant's heavy pre-accident reliance on physiotherapy appears largely unchanged in the post-accident period. The applicant denied pain in her back on the date of the accident, and even days later, only reported an increase in soreness to her family physician. I am left to conclude on the evidence before me, that at most the applicant suffered soft tissue injuries to her back in the accident. While this may have mildly exacerbated her pre-existing condition, therefore amounting to "a necessary cause" per Sabadash, the analysis here turns on the reasonableness of the proposed treatment. I find that the proposed interventions were not reasonable at the time they were proposed, since any effect of the accident would have likely been resolved long before four years post-accident, when the treatment plans were submitted.

20Therefore, the applicant has not met her onus in establishing entitlement to the proposed physiotherapy treatment, and those plans are not payable. No interest is owing.

b) Psychological Assessment and Treatment Not Reasonable and Necessary

21In addition to her pre-existing physical conditions, the applicant has a long history of mental health challenges, including anxiety and depression. She has been prescribed anti-depressant medication for over a decade. Hospital records show that at the time of the accident, she reported taking antidepressants daily in addition to Imovane, a sleep aide. In a clinical note from June 26, 2018, a nurse working for the applicant's family physician lists the applicant's depressive disorder as "chronic" and notes that her symptoms are "stable", recommending continuing with medications. A note from the same date by Dr. Ann Huang lists "acute" anxiety due to "new stressors". I find it unlikely that three years post-accident, Dr. Huang could be describing the accident as among these "new" stressors, and I see no other reference to the accident as causing psychological issues in Dr. Huang's clinical notes. The applicant did, however, report to her assessors that her family doctor had referred her to a psychologist to address "stressors related to her brothers' illness and death, her own cancer and other physical ailments".

22The applicant has referred me to the psychological assessment report of Ms. Alaleh Shakourianfard, a psychotherapist, and Mr. Sean Shahrokhnia, a psychologist. The report is dated December 10, 2019. While its authors diagnose the applicant with post-traumatic stress disorder, major depressive disorder, and chronic pain as a result of the accident, I find the report's conclusions to be largely unreliable in establishing the necessity of the proposed treatment and assessment as a result of the accident. Firstly, the report's causation analysis lacks cogency. The report details the applicant's self-reported symptoms and concludes, without a supporting rationale, that the accident caused those symptoms. The authors diminish the significance of the applicant's pre-existing physical conditions, adopting the applicant's report that it had mostly resolved by the time of the accident, despite strong evidence from the medical records that this was not the case. I find little basis for the report's findings as to the accident as a cause of serious, lasting psychological impairments, even in the self-reporting of the applicant.

23The medical records demonstrate that the applicant was receiving sound treatment, counselling, and follow up, including referrals to specialist care when needed, from her family physician for years before and after the accident. The applicant has failed to demonstrate how the proposed assessment and treatment sessions are necessary (a) as a result of the accident or (b) reasonable in addition to the primary care she was receiving through OHIP.

24The applicant has not met her onus in respect of the psychological assessment and treatment in dispute. These benefits are not payable and there is no interest owing.

Award

25The applicant claims an award under Regulation 664 for unreasonably withheld or delayed benefits. The well-established standard for awards under Regulation 664 set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co.² is conduct that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

26In claiming an award, the applicant submits that she is clearly entitled to the denied benefits. She also asserts that the respondent failed to produce adjuster's log notes beyond August 8, 2016. The applicant submits that she is prejudiced by the lack of production, and that the respondent's failure to disclose the documents shows that it determined her claim without considering the entirety of the medical evidence.

27I do not agree that a failure to produce adjuster's log notes establishes predetermination of the applicant's claim before the medical evidence could be considered. As these reasons demonstrate, on balance, the medical evidence shows the opposite of entitlement to the denied benefits. The applicant has also failed to explain what prejudice she suffered as a result of the failed production. However, if she had suffered prejudice, it was open to her to bring a motion to the Tribunal for a remedy. She did not do so.

28The applicant established conduct on the part of the respondent that meets the threshold set out in Plowright for meriting an award. The request is therefore denied.

CONCLUSION

29The applicant has not discharged her onus in establishing that the disputed treatment plans are reasonable and necessary as a result of the accident. Therefore, no benefits are payable, and no interest is owing. There is no basis for an award.

30The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 21993 OIC File No.: A-003985 (FSCO).