Citation: Choopani v. Aviva General Insurance, 2021 ONLAT 19-011120/AABS

Released: March 3, 2021

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:

Sogand Amir-Choopani

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Michael Ferrante, Paralegal

For the Respondent:

Jessica Telfer, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant, Sogand Amir-Choopani (“Ms. Amir-Choopani”), was injured in an automobile accident on February 5, 2016 (the “first accident”). Ms. Amir-Choopani was involved in a second automobile accident on May 24, 2018 (the “second accident”).

2As a result of the first accident, Ms. Amir-Choopani sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance (“Aviva”), the respondent.

3Aviva determined that all of Ms. Amir-Choopani’s injuries from the first accident fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² Aviva also denied Ms. Amir-Choopani’s claims for chiropractic treatment, massage therapy and for a chronic pain assessment. As a result, Ms. Amir-Choopani submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4A case conference was held on March 18, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Are Ms. Amir-Choopani’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within MIG?

(ii) Is Ms. Amir-Choopani entitled to chiropractic treatment and massage therapy recommended by Synergy Rehab & Physiotherapy Centre Inc. as follows:

(a) $2,696.10 in a treatment plan (“OCF-18”) dated June 26, 2017, and denied on July 17, 2017?

(b) $2,449.72 in an OCF-18 dated July 26, 2018, and denied on August 24, 2018?

(iii) Is Ms. Amir-Choopani entitled to $2,200.00 for a chronic pain assessment recommended by Scarborough Physiotherapy & Rehab Clinic in an OCF-18 dated June 8, 2018, and denied on August 10, 2018?

(iv) Is Aviva liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Amir-Choopani?

(v) Is Ms. Amir-Choopani entitled to interest on any overdue payment of benefits?

RESULT

6I find that:

(i) Ms. Amir-Choopani’s injuries to her left cheek/eye, left shoulder, left knee, neck (left side), headaches and nausea were caused by the first accident;

(ii) The first accident caused new injuries to Ms. Amir-Choopani’s right wrist and hand, and was also a necessary cause that exacerbated her pre-existing conditions in her right hand and wrist;

(iii) Ms. Amir-Choopani’s injuries to her left wrist and low back and also her psychological impairments were not caused by the first accident;

(iv) Ms. Amir-Choopani’s injuries from the first accident are not predominantly minor as a result of chronic pain and, therefore, Ms. Amir-Choopani is not subject to treatment within the MIG;

(v) Ms. Amir-Choopani is entitled to the July 26, 2018 OCF-18 and the June 16, 2017 OCF-18 for chiropractic treatment and massage therapy, plus interest in accordance with s. 51 of the Schedule, as a result of Aviva’s failure to comply with s. 38(8) of the Schedule;

(vi) Ms. Amir-Choopani is, upon submission of an invoice, entitled to $2,200.00 for the proposed chronic pain assessment set out in the June 8, 2018 OCF-18 for the period of Aviva’s non-compliance with s. 38(8), plus interest in accordance with s. 51 of the Schedule; and

(vii) Ms. Amir-Choopani is not entitled to an award under O. Reg. 664.

ANALYSIS

Causation

7Aviva raised two causation issues related to Ms. Amir-Choopani’s injuries. First, Aviva asserts that Ms. Amir-Choopani’s complaints do not stem from the first accident but rather from her pre-existing degenerative changes and/or osteoarthritis. Alternatively, Aviva submitted that Ms. Amir-Choopani’s injuries were not caused as a result of the first accident, but rather arose as a result of the second accident.

8In reply, Ms. Amir-Choopani disagreed and submitted that she has provided sufficient medical evidence to establish that her ongoing complaints are due to the first accident.

9In order to determine entitlement to accident benefits, Ms. Amir-Choopani is required to prove, on a balance of probabilities, that the first accident caused her impairments. The applicable test in making this determination is the “but for” test: whether Ms. Amir-Choopani would have had the impairments but for the first accident.³ The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the accident need only to have been a “necessary cause.”⁴

10I find that Ms. Amir-Choopani has proven on a balance of probabilities that, but for the first accident, her complaints and injuries to her left cheek and eye, her left shoulder, her left knee, her neck (left side), her headaches and her nausea, would not have arisen. I also find that the first accident caused new injuries to Ms. Amir-Choopani’s right wrist and hand and was also a necessary cause that exacerbated her pre-existing conditions in her right hand and wrist. That said, I also find that Ms. Amir-Choopani failed to prove on a balance of probabilities that, but for the first accident, her left wrist and low back complaints would not have arisen. As a result, I find that any impairments and injuries to Ms. Amir-Choopani’s low back and left wrist were not caused by the first accident. I also find that Ms. Amir-Choopani’s psychological impairments were not caused by the first accident.

Ms. Amir-Choopani’s Physical Injuries/Impairments

11Following the first accident, Ms. Amir-Choopani attended the Mackenzie Richmond Hill Hospital and complained of left side pain, left cheek pain, left knee pain and tenderness, headaches and had an abrasion on her right palm. Ms. Amir-Choopani’s multiple x-rays were negative for fractures and she denied any neck or back pain at that time.

12Ms. Amir-Choopani had a plaster splint applied to her right wrist while at Mackenzie Richmond Hill Hospital despite her x-ray showing normal alignment and no bony abnormality. Ms. Amir-Choopani was seen by Dr. Chris Watson, orthopaedic surgeon, on February 18, 2016 as follow-up to her emergency visit. In his February 18, 2016 clinic note to Dr. Farnaz Ghorbani,⁵ Ms. Amir-Choopani’s family physician, Dr. Watson confirmed that repeat x-rays completed that day again showed no obvious bony injury. As a result, he diagnosed Ms. Amir-Choopani with a contusion to her right wrist. Therefore, I find that Ms. Amir-Choopani did not sustain a fracture but only a contusion to her right wrist following the first accident.

13Ms. Amir-Choopani visited Dr. Ghorbani for the first-time after the first accident on February 6, 2016. During this visit, Ms. Amir-Choopani reported having recurrent headaches, some nausea, left knee pain, left side neck pain, had bruising under her left eye and her right wrist was in a cast. Dr. Ghorbani noted that Ms. Amir-Choopani had muscle tension and tenderness at the left side para-vertebral muscles at the left side of her neck. Ms. Amir-Choopani’s left knee patella was also tender and had a limited range of motion due to significant pain at flexion and extension. Dr. Ghorbani recommended that Ms. Amir-Choopani use a proper pillow and a knee brace, that she rests and elevate her legs, that she take anti-inflammatory medication and that she attend for physiotherapy.

14Dr. Ghorbani also completed a Disability Certificate (“OCF-3”) dated March 8, 2016 in which he listed the following under the injury and sequelae information section: right wrist and right hand pain; face (left side) trauma with large bruising under the left eye; left knee pain; neck pain and left side of neck sprain; headaches; and dizziness and nausea for a few days after the first accident.

15Ms. Amir-Choopani first complained of left shoulder pain to Dr. Ghorbani on April 5, 2016. Dr. Ghorbani reported in his April 5, 2016 clinical notes and record (“CNR”) entry that Ms. Amir-Choopani had limited range of motion in her left shoulder at abduction and forward extension.

16Additionally, between the first and second accident, Ms. Amir-Choopani complained of low back pain to Dr. Ghorbani for the first time on January 31, 2017 and of left dorsal wrist pain for the first time on October 17, 2017.

17In summary, the evidence suggests that after the first accident, Ms. Amir-Choopani complained of physical injuries to her left knee, right hand and wrist, neck (left side), left shoulder, her left cheek/bruising under her left eye as well as experiencing some nausea and headaches. Additionally, Ms. Amir Choopani also reported low back pain and left wrist pain to Dr. Ghorbani after the first accident but prior to the second accident.

Ms. Amir-Choopani’s Pre-existing Physical Injuries/Impairments

18When comparing Ms. Amir-Choopani’s physical complaints after the first accident with her injuries and impairments prior to the first accident, I find that Ms. Amir-Choopani has proven on a balance of probabilities that the injuries that she sustained to her left cheek/left eye, to her left shoulder and her headaches and her brief period of nausea did not arise as result of any pre-existing health conditions or impairments. In making this finding, I place significant weight on Dr. Ghorbani’s CNRs as there were no visits within the year prior to the first accident regarding these complaints.

19I also find that Ms. Amir-Choopani has proven on a balance of probabilities that the injuries that she sustained to her neck, specifically to the left side, did not arise as a result of any pre-existing condition or impairment. Although Ms. Amir-Choopani reported neck pain to Dr. Vincenzo Santos Basile, neurologist, on February 3, 2016, this neck pain was in relation to pain on Ms. Amir-Choopani’s right side that also included pain in her right hand, elbow and shoulder. There is no indication in Dr. Basile’s February 3, 2016 clinic note that Ms. Amir-Choopani was experiencing pain on the left side of her neck. Furthermore, while Ms. Amir-Choopani denied neck pain immediately after the first accident to Mackenzie Richmond Hill Hospital, she complained of neck pain to Dr. Ghorbani at her first visit to him after the first accident on February 9, 2016 as well as on March 29, 2016 and April 5, 2016. I am also persuaded by Dr. Ghorbani’s inclusion of neck pain and left side of neck sprain on the list of injuries and sequelae in the March 8, 2016 OCF-3 in finding that Mr. Amir-Choopani’s left side neck injuries were not pre-existing.

20I also find that Ms. Amir-Choopani has proven on a balance of probabilities that her left knee complaints were not caused by pre-existing health conditions, as Ms. Amir-Choopani made no complaints regarding her left knee to Dr. Ghorbani or to any other specialists in the year preceding the first accident.

21Moreover, although it was discovered that Ms. Amir-Choopani had a small knee effusion, mild tendinosis of the quadriceps and patellar tendons and moderately advanced degenerative changes of the patellofemoral joint compartment of the left knee following a March 3, 2016 MRI report,⁶ Ms. Choopani’s left knee was asymptomatic leading up to the first accident as evidenced by the lack of references to any services provided on the OHIP summary regarding Ms. Choopani’s left knee from three years prior to the first accident. There is an entry on the OHIP summary dated December 1, 2015 that indicates, “sign/symptoms not yet diag[nosed] – musculoskeletal system – leg” which references a visit to Dr. Ghorbani. Dr. Ghorbani’s December 1, 2015 CNR entry, however, references Ms. Amir-Choopani’s right wrist and not her leg or left knee.

22Prior to the accident, Ms. Amir-Choopani was also diagnosed with carpal tunnel syndrome in both wrists which required surgical release of her right wrist in 2009 and of her left wrist in 2013. Dr. Ghorbani’s CNRs, however, show that Ms. Amir-Choopani was only having difficulties within the year prior to the first accident with her right wrist. For example, Dr. Ghorbani’s December 1, 2015 CNR entry noted that Ms. Amir-Choopani reported that she was having pain and tingling in her right hand. At this visit, Dr. Ghorbani advised her to avoid heavy lifting and high impact on her wrists, to wear a wrist splint at night and referred her to Dr. Basile for an assessment and a nerve conduction study.

23In Dr. Basile’s February 3, 2016 clinic note,⁷ Ms. Amir-Choopani reported to Dr. Basile that she had numbness and tingling of the first through third fingers on her right hand, but that pain was her main limiting factor which Dr. Basile stated was more likely related to musculoskeletal arthritic pain. Dr. Basile also noted that Ms. Amir-Choopani reported symptom improvement with anti-inflammatories, such as Tylenol, but that pain returned after three to four hours after taking medication. Dr. Basile diagnosed Ms. Amir-Choopani with mild right greater than left median neuropathy at the right wrist that was consistent with a clinical diagnosis of mild carpal tunnel syndrome and encouraged her to use her carpal tunnel wrist splints.

24Without question, Ms. Amir-Choopani experienced difficulties and pain with her right hand and wrist prior to the first accident. Even so, I find that the first accident caused new injuries to Ms. Amir-Choopani’s right wrist of an abrasion, a contusion and a strain/synovitis. For example, the York Region Paramedic Services report noted that Ms. Amir-Choopani had an abrasion to her right hand following the first accident. Dr. Watson also noted that Ms. Amir-Choopani had her right wrist plaster-splinted following the first accident despite x-rays showing no bony injury in his clinic note dated February 18, 2016. Dr. Watson also diagnosed Ms. Amir-Choopani on February 18, 2016 with a contusion to her right hand which is a new diagnosis. Finally, in his July 14, 2016 clinic note to Dr. Ghorbani, Dr. H. Amani, physiatrist, diagnosed Ms. Amir-Choopani with right wrist strain/synovitis and noted that there was evidence of right medial neuropathy at Ms. Amir-Choopani’s right wrist with positive Tinel sign over the right median nerve also at her wrist.

25I also find that the first accident exacerbated Ms. Amir-Choopani’s complaints regarding her right hand and wrist. For example, Ms. Amir-Choopani only reported right hand and wrist issues to Dr. Ghorbani once on December 1, 2015 in the one year prior to the first accident whereas following the first accident, Ms. Amir-Choopani reported right wrist pain monthly to Dr. Ghorbani on March 30, 2016, April 5, 2016 and May 10, 2016. On May 16, 2016, Dr. Ghorbani escalated his treatment of Ms. Amir-Choopani’s right wrist by ordering an MRI and referring her to Dr. Hossein Amani, a physiatrist, given her report of pain and tenderness at her wrist upon Dr. Ghorbani’s examination on May 16, 2016.

26Dr. Amani also recommended treatment for Ms. Amir-Choopani’s right wrist in addition to what she was undergoing prior to the first accident. Dr. Amani recommended physical therapy and gentle massage for Ms. Amir-Choopani’s right wrist and hand as compared to Ms. Amir-Choopani only using a carpal tunnel wrist splint at night and taking over the counter pain medication prior to the first accident.

27Following the MRI of Ms. Amir-Choopani’s right wrist on July 21, 2016, Ms. Amir-Choopani saw Dr. Amani again on September 8, 2016. In his September 8, 2016 clinical note to Dr. Ghorbani, Dr. Amani diagnosed Ms. Amir-Choopani with chronic right wrist strain and synovitis with multiple abnormalities seen on her right wrist MRI. Dr. Amani also referred Ms. Amir-Choopani to a plastic hand surgeon for further follow-up. Dr. Amani again diagnosed Ms. Amir-Choopani with chronic right wrist strain and synovitis with multiple abnormalities seen on her right wrist MRI when he saw her again on December 6, 2016.

28Dr. Amani’s diagnosis of impairments to Ms. Amir-Choopani’s right wrist is consistent with the diagnoses by Aviva’s Insurer’s Examination (“IE”) assessors. For example, in his October 4, 2017 Medical Physician Assessment report, Dr. Mark Goldstein, physician,⁸ diagnosed Ms. Amir-Choopani with, among other conditions, a sprain/strain limited to her right thumb as a result of the first accident. Additionally, while the IE assessment took place after the second accident, Dr. Ian Finkelstein, physician, diagnosed Ms. Amir-Choopani with a right-hand strain/sprain as a result of the first accident in his September 4, 2018 IE Medical Physician Assessment.⁹

29Regarding Ms. Amir-Choopani’s left wrist, I find that she has failed to prove on a balance of probabilities that but for the first accident, she would not have had complaints regarding her left wrist. Ms. Amir-Choopani first complained of left wrist pain to Dr. Ghorbani on October 17, 2017, one year and seven months after the first accident. Dr. Ghorbani’s October 17, 2017 CNR entry stated that the pain at the left dorsal wrist “started since a week ago.” Given Ms. Amir-Choopani’s report to Dr. Ghorbani of when her left wrist pain started and Ms. Amir-Choopani offering no explanation for the significant delay in reporting pain in her left wrist following the first accident, I find that the first accident did not cause any injuries or impairments to Ms. Amir-Choopani’s left wrist.

30Similarly, I also find that Ms. Amir-Choopani has failed to prove on a balance of probabilities that but for the first accident, she would not have had complaints regarding her low back. Ms. Amir-Choopani first reported low back pain to Dr. Ghorbani on January 31, 2017, almost one year after the first accident. Dr. Ghorbani’s CNR entry for this date stated that Ms. Amir-Choopani had low back pain “since 5 days ago.” An August 27, 2017 MRI report of Ms. Amir-Choopani’s lumbar spine revealed that Ms. Amir-Choopani had left sided herniation of L5-S1, multilevel mid disc degenerative disease and overall interval progression. Given the timing of Ms. Amir-Choopani’s report to Dr. Ghorbani of her low back pain along with her report as to when it started, I find that it is more likely that her low back pain was caused by her degenerative disease rather than by the first accident.

31In summary, I find that Ms. Amir-Choopani’s injuries to her left knee, neck (left side), left shoulder, her left cheek and bruise under her left eye as well as her nausea and headaches did not arise as result of any pre-existing heath conditions. Additionally, I find that Ms. Amir-Choopani sustained new injuries to her right wrist following the first accident and also that the first accident was a necessary cause that exacerbated her pre-existing health conditions of her right wrist. I also find that the first accident did not cause injuries to Ms. Amir-Choopani’s low back and left wrist. These findings, however, do not end the causation analysis, as Ms. Amir-Choopani was involved in a second accident on May 24, 2018.

The Second Accident

32After the second accident on May 24, 2018, Ms. Amir-Choopani saw Dr. Ghorbani and reported, among other things, neck pain, shoulder pain, left knee pain, numbness in her hands and that her hand pain radiated into her arms.

33Given that there were no complaints—at this first visit with Dr. Ghorbani after the second accident or at any other visits with Dr. Ghorbani or to any IE assessors post-second accident—of headaches, nausea, or injuries to Ms. Amir-Choopani’s left cheek and eye, I find that these injuries were caused by the first accident.

34I also find that the first accident caused Ms. Amir-Choopani’s injuries to her left shoulder, neck (left side), left knee and to her right hand and wrist and was a necessary cause that exacerbated her pre-existing right hand and wrist conditions rather than the second accident for the following reasons:

(i) From a review of Dr. Ghorbani’s CNRs, it is clear that Ms. Amir-Choopani reported pain complaints in her left shoulder, the left side of her neck, her left knee and in her right hand and wrist following the first accident and prior to the second accident;

(ii) Ms. Amir-Choopani had been attending Synergy Rehab & Physiotherapy Centre Inc. and The Wellness Group for physical treatment between the first and second accident;¹⁰

(iii) Aviva’s IE assessment reports that were completed after the second accident still attribute Ms. Amir-Choopani’s diagnoses to the first accident. For example, Dr. Ian Finkelstein diagnosed Ms. Amir-Choopani with a strain/sprain of the right hand and left knee as result of the first accident in his September 4, 2018 IE reports¹¹ even having the benefit of Dr. Ghorbani’s CNRs which speak to the second accident;¹² and

(iv) I was not directed to any medical reports or opinions by Aviva that attributed Ms. Amir-Choopani’s physical complaints, injuries or impairments solely to the second accident.

35Therefore, I find that Ms. Amir-Choopani has proven on a balance of probabilities that the following physical injuries were caused by the first accident such that they would not have arisen but for the first accident: left cheek and eye bruise; left shoulder; left knee; neck (left side); headaches; and brief nausea. I also find that the first accident caused new injuries to Ms. Amir-Choopani’s right wrist and hand and the first accident was also a necessary cause that exacerbated her pre-existing conditions in her right hand and wrist. I also find that the first accident was not the cause of Ms. Amir-Choopani’s low back and left wrist pain.

Ms. Amir-Choopani’s Psychological Injuries/Impairments

36I find that Ms. Amir-Choopani has failed to prove on a balance of probabilities that the first accident caused her any psychological injuries or impairments.

37While Ms. Amir-Choopani’s OHIP summary shows that she attended for a psychiatric consult in September 2013, there is no evidence that Ms. Amir-Choopani had attended for any psychiatric treatment, made any psychological complaints to Dr. Ghorbani or was prescribed any medication for psychological symptoms within the year prior to the first accident. Therefore, I find that any psychological injuries or impairments sustained by Ms. Amir-Choopani were not as a result of any pre-existing condition.

38The first report of any psychological complaints that Ms. Amir-Choopani made to Dr. Ghorbani after the first accident was on January 8, 2019, which was almost three years after the first accident and eight months after the second accident. However, there was no mention of either accident in Dr. Ghorbani’s January 8, 2019 CNR entry. It was only at this time as well that Dr. Ghorbani referred Ms. Amir-Choopani to a psychiatrist. Given the timing of the onset of her psychological symptoms and having no supporting documentation from any treating professionals before me indicating that her anxiety and depression were caused by the first accident, I find that Ms. Amir-Choopani has not met her burden of proving that any of her psychological complaints, injuries or impairments were caused by the first accident.

The Minor Injury Guideline (“MIG”)

39As I have found that the first accident caused injuries to Ms. Amir-Choopani’s left cheek/eye, left shoulder, left knee, neck (left side), headaches and brief nausea and also that it caused new injuries to Ms. Amir-Choopani’s right wrist and hand and exacerbated her pre-existing conditions in these areas, I must now consider if Ms. Amir-Choopani’s impairments constitute “minor injuries” for the purposes of the Schedule.

40The 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.

41Section 18(1) of the Schedule 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. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹³

42I find that Ms. Amir-Choopani has met her onus by proving on a balance of probabilities that her injuries caused by the first accident are more than predominantly minor as a result of chronic pain and, therefore, she is entitled to treatment outside of the MIG for her impairments caused by the first accident.

Chronic Pain

43Ms. Amir-Choopani’s position is that her injuries are outside of the MIG because Dr. Ghorbani diagnosed her with chronic pain of the left knee and right wrist on December 3, 2016 and that she continues to have ongoing pain complaints.

44Aviva submitted that notations of chronic pain alone are not sufficient to remove an applicant from the MIG and that chronic pain that is sequelae to soft tissue injuries is, by definition, within the MIG.¹⁴ While I agree with Aviva regarding its submission on notations of chronic pain, I disagree with its latter argument.

45In the reconsideration decision of T.S. v. Aviva General Insurance Canada,¹⁵ the Executive Chair of the Tribunal held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.¹⁶ The Executive Chair further described 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.”¹⁷

46While I am not bound by other Tribunal decisions, I find that T.S. v. Aviva is persuasive in determining whether or not an applicant suffers from chronic pain and if, as a result, they should be removed from the MIG. I also prefer the reasoning in T.S. v. Aviva over Aviva’s submission because the decisions that Aviva relied on to support its position¹⁸ were released prior to, or within days of, the release of the reconsideration decision in T.S. v. Aviva and the hearing adjudicators would have not had the benefit of the Executive Chair’s reasonings prior to making their decisions.

47In addition to the principles outlined in T.S. v. Aviva, the Tribunal has also consistently found that where pain is severe, constant and causes functional impairment, an applicant may be removed from the MIG. Additionally, removal from the MIG for chronic pain does not require a diagnosis of chronic pain or chronic pain syndrome by a physician.

48In this matter, Ms. Amir-Choopani consistently complained of pain, especially in her left knee and right wrist, that persisted well beyond 3 to 6 months after the first accident. This ongoing pain also caused functional impairments for Ms. Amir-Choopani well beyond the 3 to 6-month period after the first accident. For example, in the September 8, 2016 clinic note by Dr. Amani to Dr. Ghorbani, Dr. Amani advised Ms. Amir-Choopani to decrease her standing, walking, use of stairs and to avoid running activities. Dr. Amani also advised Ms. Amir-Choopani to avoid repetitive or heavy lifting, pushing, and pulling with her right wrist and hand. Dr. Amani made similar recommendations to Ms. Amir-Choopani on December 6, 2016 which is the same day that Mr. Amir-Choopani also reported sleep disturbances to Dr. Ghorbani due to pain in her left knee.

49Additionally, Dr. Goldstein found that Ms. Amir-Choopani had ongoing impairments related to the first accident in his October 4, 2017 IE Medical Assessment report. In this report, Dr. Goldstein noted that Ms. Amir-Choopani had impairments from the first accident with her left knee motion, she was limited in performing a squat motion and reported pain upon palpation over the base of her right thumb in the region of the thenar eminence, which was made worse with ulnar deviation, tenderness in her left knee along the left medial joint line and tenderness with palpation of the left medial joint line only.¹⁹

50In the end, however, Dr. Goldstein opined that Ms. Amir-Choopani’s injuries as a result of the first accident were minor as she sustained a left knee sprain/strain contusion which Dr. Goldstein noted that underlying osteoarthritis should be queried.²⁰ I place little weight on Dr. Goldstein’s opinion that Ms. Amir-Choopani’s injuries are minor because he fails to comment on Ms. Amir-Choopani’s reports of ongoing pain in her left knee and right thumb during his examination despite his credentials stating that he has been practicing at the Jacobs Pain Centre, that he has been designated with a diplomate status of both the Canadian and American Academy of Pain Management, and that he has lectured on the topic of chronic pain.²¹ Clearly the issue of chronic pain needed to be addressed by Dr. Goldstein in his report but, for whatever reason, it was not.

51For all of the reasons set out above, I find that Ms. Amir-Choopani’s injuries from the first accident are not predominantly minor as a result of chronic pain that was ongoing well beyond the 3 to 6-month period after the first accident and which also caused Ms. Amir-Choopani functional limitations and restrictions. Therefore, Ms. Amir-Choopani’s injuries as a result of the first accident are not subject to treatment within the MIG.

52Ms. Amir-Choopani submitted that Aviva failed to provide medical reasons for its denials of the three treatment plans in dispute and, therefore, failed to comply with its obligations under s. 38(8) of the Schedule.

53Aviva disagrees and submitted that its denials were based on the findings of the IE assessors and, therefore, it did provide medical reasons for the purposes of s. 38(8).²²

54Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan.

55The requirement of medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,²³ in which the Executive Chair stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.²⁴

56Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given an opportunity to “cure” a defective notice but without such a cure, any goods, services, assessment and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.²⁵

57I find that Ms. Amir-Choopani is entitled to:

(i) the July 26, 2018 OCF-18 and the June 16, 2017 OCF-18 for chiropractic treatment and massage therapy as a result of Aviva’s failure to comply with its requirements under s. 38(8) of the Schedule; and

(ii) $2,200.00 for the proposed chronic pain assessment set out in the June 8, 2018 OCF-18, plus interest in accordance with s. 51 of the Schedule, upon submission of an invoice for services rendered.

June 16, 2017 OCF-18

58The June 16, 2017 OCF-18 was completed by Dr. Sabaa Aziz, chiropractor, and sought funding for a total body assessment, 18 sessions of chiropractic treatment and 8 sessions of massage therapy in the total amount of $2,696.10.

59Aviva first denied this treatment plan by way of correspondence to Ms. Amir-Choopani dated July 17, 2017. Under the title, “explanation of benefits,” Aviva wrote:

Based on the information we have available, your injuries appear to be treatable within the Minor Injury Guideline, (MIG) however the OCF 18 submitted by your provider is recommending goods and services outside of the MIG.

We re [sic] unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.

In the meantime, you are entitled to treatment under the Minor Injury Guideline up to a maximum of $2200. Please have your treating practitioner submit a Pre-Approved Treatment Confirmation Form (OCF-23) to Aviva. You may begin this treatment immediately.

60The July 17, 2017 correspondence also advised Ms. Amir-Choopani that she was required to attend an IE assessment with Dr. Robert Webster, general practitioner, on August 15, 2017. Under the heading of “medical reason” for the IE assessment, Aviva stated:

Upon review of the minor injury guideline and the treating practitioners [sic] medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not a predominantly minor injury.

61On October 6, 2017, Aviva again wrote to Ms. Amir-Choopani and denied the June 16, 2017 OCF-18. In this correspondence, Aviva stated:

Please review the enclosed insurer’s examination completed by Dr. Goldstein, from Canassess. The accident-related injuries appear to be considered as minor as defined in the SABS and consistent with a left knee pain contusion and a right thumb sprain.

They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.

62I find that neither the July 17, 2017 correspondence nor the October 6, 2017 correspondence discharged Aviva’s obligations under s. 38(8) of the Schedule.

63While the July 17, 2017 letter to Ms. Amir-Choopani referred to her injuries being treated within the MIG, Aviva failed to include specific details about Ms. Amir-Choopani’s condition or even mention what her injuries were. Additionally, I find the July 17, 2017 correspondence is confusing and not sufficiently clear to enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue because Aviva says that it is unable to pay benefits but then also states in the same correspondence that Ms. Amir-Choopani may begin her treatment immediately.

64Furthermore, Aviva’s October 6, 2017 simply informs Ms. Amir-Choopani that “they,” in reference to Dr. Goldstein, determined that the “treatment recommended” was not reasonable and necessary. Aside from lacking meaningful details, this “reason” is the conclusion of Aviva’s consideration of the disputed treatment and provides no explanation why Aviva concluded the plan was not reasonable and necessary. While I agree that Aviva referenced Dr. Goldstein’s report in this letter and specified Ms. Amir-Choopani’s injuries of a left knee pain contusion and a right thumb sprain, simply attaching an IE report to a denial letter and asking an applicant to review it with a bare statement that the assessor determined that the proposed treatment was not reasonable and necessary is not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and certainly does not serve the Schedule’s consumer protection goal.

65For all of these reasons, I find that Aviva’s denials fall short of its obligations under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the June 16, 2017 treatment plan for chiropractic treatment and massage therapy is payable starting on the 11th business day after the day that Aviva received the OCF-18 as Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

July 26, 2018 OCF-18

66The July 26, 2018 OCF-18 was completed by Dr. Angelo La Delfa, chiropractor, and sought funding for 18 sessions of chiropractic treatment and 6 sessions of massage therapy in the total amount of $2,449.72.

67Aviva first denied this OCF-18 by way of correspondence to Ms. Amir-Choopani dated August 24, 2018. This correspondence stated:

We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay you benefits at this time.

68This letter also informed Ms. Amir-Choopani of her required attendance at an independent medical examination with Dr. Finkelstein on August 31, 2018 with the reasons for the examination being, “the type(s) of treatment does not appear consistent with the patient’s diagnosis.”

69Aviva sent a second denial letter to Ms. Amir-Choopani dated September 4, 2018 which asked Ms. Amir-Choopani to review Dr. Finkelstein’s enclosed September 4, 2018 IE report and stated:

He [Dr. Finkelstein] determined that the proposed treatment is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.

70I find that neither the August 24, 2018 nor the September 4, 2018 correspondence discharged Aviva’s obligations under s. 38(8) of the Schedule. Neither denial provided any details regarding Ms. Amir-Choopani’s condition that formed the basis of Aviva’s decision as both letters simply refer to Ms. Amir-Choopani’s “injuries” without further detail. Aviva’s September 4, 2018 correspondence also simply repeated Dr. Finkelstein’s conclusion and failed to provide an explanation of why Aviva concluded the plan was not reasonable and necessary. I find that neither denials provided a medical reason to Ms. Amir-Choopani that was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

71As a result, I find that Aviva’s denials fall short of its obligations under s. 38(8) of the Schedule. Therefore, the consequences set out in s. 38(11) are again triggered and the July 26, 2018 treatment plan for chiropractic treatment and massage therapy is payable starting on the 11th business day after the day that Aviva received the OCF-18 as Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

June 8, 2018 OCF-18

72The June 8, 2018 OCF-18 was completed by Dr. Nayyar Razvi, physician, and sought funding for a chronic pain assessment in the total amount of $2,200.00. The estimated duration of the treatment plan was 1 week.

73Aviva denied this treatment plan on August 10, 2018 by way of correspondence to Ms. Amir-Choopani that stated:

We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.

74Aviva’s August 10, 2018 correspondence also provided notice to Ms. Amir-Choopani of her required attendance at an IE assessment with Dr. Ian Finklestein on August 16, 2018. The medical reasons stated for the IE assessment were, “the type(s) of treatment does not appear consistent with the patient’s diagnosis.”

75I find that Aviva’s August 10, 2018 denial notice falls short of Aviva’s obligations under s. 38(8) of the Schedule and agree with Ms. Amir-Choopani’s submission that it is a boiler plate response. This letter provides no details about Ms. Amir-Choopani’s conditions that formed the basis of Aviva’s decision and it did not clearly identify what information that Aviva did not have but required through the IE assessment. I also find that Aviva’s reasons in its August 10, 2018 letter for denying the June 8, 2018 treatment plan are also not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

76Aviva, however, sent out a second denial notice to Ms. Amir-Choopani for the June 8, 2018 OCF-18 on November 1, 2019. In this correspondence, Aviva identified the June 8, 2018 OCF-18 at issue and provided the following reason for its continued denial of this treatment plan:

Enclosed you will find a copy of the report completed by Dr. Finklestein through Canassess. Your physical examination failed to show any valid indicators of orthopedic [sic] or neurological impairments. The exam also confirmed that there was no medical rational for a chronic pain assessment. Given this information no funding will be provided for the OCF-18 in question.

77I find that Aviva’s November 1, 2019 correspondence complied with s. 38(8) of the Schedule and cured its previous defective August 10, 2018 correspondence. In its November 1, 2019 letter, Aviva explained its reasoning for its denial of the treatment plan which was based on a lack of orthopaedic and neurological impairments along with there being no medical rational for the chronic pain assessment. Aviva also provided information to Ms. Amir-Choopani on her condition, or lack thereof, that formed the basis of its decision. Aviva also stated that it was not funding the June 8, 2018 treatment plan and, therefore, I find that the November 1, 2019 notice was sufficiently clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

78My finding that Aviva “cured” its defective notice, however, does not end the discussion. Although Ms. Amir-Choopani has not provided any evidence that she incurred the cost of the chronic pain assessment prior to the hearing, Aviva is still required to pay for the chronic pain assessment set out in the June 8, 2018 OCF-18 that relates to the period starting on the 11th business day after the day that Aviva received the disputed OCF-18 and ending when Aviva provided a compliant denial notice on November 1, 2019. I make this finding based upon the modern approach to statutory interpretation²⁶ and a plain reading of s. 38(11)2., which uses the phrase “that related to the period” and not “incurred” despite the word “incurred” appearing in countless other sections of the Schedule. Therefore, when s. 38(11)2 is read harmoniously with the Schedule as a whole, it is readily apparent that the legislature purposefully used the wording “that relate to” in lieu of “incurred” in s. 38(11)2. As a result, I find that Ms. Amir-Choopani is entitled to the chronic pain assessment as proposed in the June 8, 2018 OCF-18 for the period from the 11th business day after Aviva received the OCF-18 until November 1, 2019 even if the assessment was not incurred during this period as, in my opinion, this is not what is required by s. 38(11)2. of the Schedule.

79As stated above in paragraph [72], the estimated length of the treatment plan was 1 week. Although it is not clear when Aviva received the June 8, 2018 treatment plan, Aviva acknowledged receipt of it in its August 10, 2018 correspondence. Aviva failed to remedy its non-compliance with s. 38(8) of the Schedule until almost one year and four months after this time. As the estimated length of the treatment plan of 1 week would clearly have elapsed during the period that relates to Aviva’s non-compliance with s. 38(8), I find that Ms. Amir-Choopani is entitled to the full amount of the treatment plan of $2,200.00 upon submission of an invoice for services rendered. This interpretation is also consistent with s. 38(15) of the Schedule which only obliges an insurer to pay for goods and services it is required to pay for under s. 38 upon receiving an invoice for them.

Award

80Section 10 of O. Reg. 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.

81In this matter, Ms. Amir-Choopani seeks an award based on her position that if I find that she is entitled to the denied medical benefits, that an award would flow from this finding because Aviva unreasonably withheld or delayed payment of benefits to Ms. Amir-Choopani.

82It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

83I find that Ms. Amir-Choopani has not met her burden of proving on a balance of probabilities that she is entitled to an award in this matter as my findings that Aviva failed to comply with its obligations under s. 38(8) of the Schedule does not in and of itself amount to an unreasonable withholding or delay of payment of benefits. No other evidence is before me that supports a finding that Aviva’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate but rather that this was a situation where Aviva misapplied the Schedule and “got it wrong.”

84Therefore, I find that Ms. Amir-Choopani is not entitled to an award under s.10 of O. Reg. 664.

Interest

85Ms. Amir-Choopani is entitled to interest in accordance with s. 51 of the Schedule for the June 16, 2017 OCF-18 and the July 26, 2018 OCF-18 for chiropractic treatment and massage therapy and the June 8, 2018 OCF-18 for a chronic pain assessment.

ORDER

86For the reasons outlined above, I find that:

(i) Ms. Amir-Choopani’s injuries to her left cheek/eye, left shoulder, left knee, neck (left side), headaches and nausea were caused by the first accident;

(ii) The first accident caused new injuries to Ms. Amir-Choopani’s right wrist and hand, and was also a necessary cause that exacerbated her pre-existing conditions in her right hand and wrist;

(iii) Ms. Amir-Choopani’s injuries to her left wrist and low back and also her psychological impairments were not caused by the first accident;

(iv) Ms. Amir-Choopani’s injuries from the first accident are not predominantly minor as a result of chronic pain and, therefore, Ms. Amir-Choopani is not subject to treatment for her injuries from the first accident within the MIG;

(v) Ms. Amir-Choopani is entitled to the July 26, 2018 OCF-18 and the June 16, 2017 OCF-18 for chiropractic treatment and massage therapy, plus interest in accordance with s. 51 of the Schedule;

(vi) Ms. Amir-Choopani is entitled to $2,200.00 for the proposed chronic pain assessment set out in the June 8, 2018 OCF-18 plus interest in accordance with s. 51 of the Schedule upon submission of an invoice for services rendered; and

(vii) Ms. Amir-Choopani is not entitled to an award under O. Reg. 664.

Date of Issue: March 3, 2021

_______________________

Lindsay Lake

Adjudicator

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Sabadash v. State Farm et al., 2019 ONSC 1121.
4. 4Ibid. at para. 39.
5. 5Dr. Watson’s February 18, 2016 clinic note is included in the clinical notes and records (“CNRs”) of Dr. Ghorbani, Written Hearing Submissions of the Applicant, tab 4.
6. 6Brief of Authorities of the Respondent, tab H.
7. 7Written Hearing Submissions of the Applicant, tab 6.
8. 8Brief of Authorities of the Respondent, tab X.
9. 9Brief of Authorities of the Respondent, tab Z at page 7.
10. 10Written Hearing Submissions of the Applicant, tabs 10 and 11.
11. 11Brief of Authorities of the Respondent, tabs Y and Z both at page 3.
12. 12Ibid. at pages 5 and 10, respectively.
13. 13Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
14. 14Written Submissions of the Respondent, para. 23.
15. 152018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
16. 16Ibid. at para. 20.
17. 17Ibid. at para. 23.
18. 1817-004824 v Aviva Insurance Canada, 2018 CanLII 81880 (ON LAT) released May 30, 2018; 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) released July 30, 2018; 17-002240 v Aviva Insurance, 2017 CanLII 70685 (ON LAT) released October 18, 2017; and 17-005179 v Aviva Insurance Company of Canada, 2018 CanLII 81910 (ON LAT) released June 4, 2018.
19. 19Supra note 8 at page 8.
20. 20Ibid. at page 10.
21. 21Ibid. at page 2.
22. 22Written Submissions of the Respondent, para. 39.
23. 232018 CanLII 39373 (ON LAT Reconsideration Decision).
24. 24Ibid. at para. 19.
25. 25See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT Reconsideration Decision) at paras. 50-52, 59 and 64.
26. 26Supra note 25 at para. 39.```