A.A. v. Aviva Insurance Company

Citation: A.A. v. Aviva Insurance Company, 2021 ONLAT 19-004510/AABS Released: March 18, 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:

A.A.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melody Maleki-Yazdi, Adjudicator

APPEARANCES:

For the Applicant:

Frank Van Dyke, Counsel

For the Respondent:

Alexander Hartwig, Counsel

Court Reporter:

[CD]

Interpreter:

[AA] (Somali)

HEARD:

By teleconference and in writing: November 2, 2020

OVERVIEW

1A.A. (“the applicant”) was injured in an automobile accident (“the accident”) on September 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when his claims for benefits were denied by the respondent.

2I heard evidence from the following individuals: the applicant and Ms. S.M. (the applicant’s niece).

ISSUES

3The following issues are in dispute for this hearing:

(i) Is the applicant entitled to receive income replacement benefits in the amount of $377.30 per week for the period of June 3, 2017 to date and ongoing?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $1,394.76 for physiotherapy recommended by Ontario Ltd. Senses Physiotherapy & Massage in a treatment plan submitted May 5, 2017, and denied on May 26, 2017?

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

RESULT

4The applicant is entitled to income replacement benefits at the rate of $377.30 per week from June 3, 2017 up to 104 weeks after the accident. The applicant is not entitled to post-104-week IRBs.

5The applicant is not entitled to the treatment plan for physiotherapy in the amount of $1,394.76.

6The applicant is entitled to interest on any overdue payments of benefits.

ANALYSIS

Pre-104-week income replacement benefits

7Pursuant to s. 5 of the Schedule, the respondent is required to pay Income Replacement Benefits (“IRBs”) to the applicant if, as a result of and within 104 weeks after the accident, he suffers a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident.

8I find that the applicant has a substantial inability to perform the essential tasks of his employment and is therefore entitled to IRBs at the rate of $377.30 per week from June 3, 2017 up to 104 weeks after the accident.

9I rely on my finding that the applicant suffers from psychological impairments and physical impairments from this accident which have rendered him unable to return to his pre-accident employment.

10The applicant submits that he is entitled to IRBs because he has a substantial inability to perform the essential tasks of his pre-accident employment as a janitorial cleaner. He submits that due to his injuries that include physical injuries to his back and neck, mood-related disorders and concussive-related problems leading to cognitive issues, he is unable to return to work. He testified that he does not think there is something else he can do in terms of work because he is unable to sleep.

11The respondent submits that the applicant does not meet the test for IRBs because it agrees with the opinion of its assessors, Dr. Anthony Aiello (chiropractor), Dr. Kerry Lawson (neuropsychologist), Dr. Michael Aiello (general practitioner) and Dr. Minh Nguyen (neurologist), who concluded that the applicant does not meet the pre-104-week IRB test. The respondent submits that the evidence indicates that rather than go on a leave, the applicant simply quit his job and did not attempt to return to work. I find that the applicant would have great difficulty maintaining his employment as a janitorial cleaner with his current psychological impairments and physical impairments and I am persuaded by the applicant’s testimony regarding his lack of sleep, his loss of balance at times and his difficulties with prolonged sitting and walking, and general inability to perform the essential tasks of his pre-accident employment.

12Prior to the accident, the applicant worked full-time as a janitorial cleaner. A letter from his former employer dated December 29, 2016, as well as his employment file dated February 14, 2020, indicates that his period of employment was April 1, 2016 to September 23, 2016. The applicant’s employment file indicates that the reason for his termination was that he “alleged to have been in a car accident. Never provided proof for leave. Never called back. As per manager not to rehire…”. The applicant testified that his employment duties involved: vacuuming with a machine that he estimated was approximately two to three kilograms; cleaning the floor with a heavy machine on wheels that required pushing that he estimated was approximately between 10 to 12 kilograms; changing light bulbs while on a ladder; and cleaning tiles.

13In support of his claim for IRBs, the applicant relies on the opinion of Dr. Tammie Ricci, psychologist. Dr. Ricci indicates in her psychological addendum report that is undated, but was faxed on August 19, 2020, that she has been asked by the applicant to provide an opinion as to whether or not the applicant is able to work in his pre-accident employment as a janitor. She indicates that based on her assessment of the applicant on May 5, 2020, and as outlined in her report of May 18, 2020, it is her opinion that given the applicant’s current accident-related psychological diagnoses, he is unable to engage in pre-accident levels of functioning. Dr. Ricci sees no evidence that he would be able to return to his pre-accident job as a janitor given his clinically significant Somatic Symptom Disorder including Post-Traumatic Stress Disorder features, vehicle-related anxiety and generalized anxiety symptoms. Dr. Ricci indicates that his prognosis with respect to returning to pre-accident levels of functioning, including work, is considered guarded given that he presents as “concrete in nature.” Dr. Ricci indicates that the applicant lacks psychological insight and that he presents as severely depressed and has not been treated, in her opinion, adequately for his depression. Dr. Ricci also indicates that the applicant also presents as pain-focused with an entrenched chronic pain condition.

14The respondent relies on the five assessments conducted by Dr. A. Aiello (who conducted two assessments), Dr. Lawson, Dr. M. Aiello and Dr. Nguyen in support of why the applicant is not entitled to IRBs. The applicant was assessed by Dr. A. Aiello for a job site evaluation on March 23, 2017 (report dated May 12, 2017), by Dr. A. Aiello for a functional abilities evaluation on March 23, 2017 (report dated May 12, 2017), by Dr. Lawson for a psychological assessment on April 7, 2017 (report dated May 12, 2017), by Dr. M. Aiello for a physician’s assessment on April 10, 2017 (report dated May 12, 2017) and by Dr. Nguyen for a neurological assessment on April 28, 2017 (report dated May 12, 2017).

15The respondent submits that Dr. Lawson was not available to conduct an addendum report so Dr. Jonathan E. Siegel, another psychologist, provided a psychological paper review report dated September 23, 2020, but that Dr. Siegel was unable to comment on the applicant specifically as he had no opportunity to assess him in person. Instead, Dr. Siegel opined on why it was not appropriate for the applicant to take psychological test measures home following the initial assessment with Dr. Ricci and that it is not advisable to have a family member of an examinee act as a translator during an assessment because if an examinee does take a test with a family member or if a family member of an examinee acts as a translator during an assessment, then the findings of the psychological test measures are of questionable reliability and validity, as it is not clear to what extent a family member has influenced the examinee’s responses.

16Dr. A. Aiello in the insurer’s examination (“IE”) report for a hypothetical job site evaluation identified the applicant’s job as a janitor using the National Occupational Classification obtained from Human Resources Development Canada. The applicant’s essential job tasks as a janitor were the following: responsible for cleaning and maintenance of three buildings attached internally; wax floors; change light bulbs; and vacuuming. Dr. A. Aiello concluded that the applicant’s pre-accident job as a janitor is most closely categorized in the medium strength category. Based on the National Occupational Classification Career Handbook (Second Edition, 2006), work activities within the medium strength category involve handling loads (such as pulling, pushing, lifting and/or moving objects) of 10 kilograms to 20 kilograms.

17Dr. A. Aiello in the IE report for a functional abilities evaluation included the following testing analysis: spinal range of motion (“ROM”); extremity ROM; mobility, reaching and dexterity testing; hand and pinch grip, and dynamic lifting. Dr. A. Aiello concluded that the applicant’s cervical spine ROM was reduced and painful with flexion, extension, bilateral lateral flexion, and bilateral rotation. His lumbar spine ROM was reduced and painful with flexion, extension, bilateral lateral flexion, and bilateral rotation. His hip ROM was full, but painful in his low back with bilateral internal and external rotation. The applicant reported discomfort during a couple tests and numerous tests were not completed due to pain. Dr. A. Aiello concluded that since the applicant did not complete any of the dynamic lifting/carrying tests, it was his opinion that the applicant’s ability to perform work cannot be categorized based on the National Occupational Classification Career Handbook (Second Edition, 2006). Dr. A. Aiello noted that based on the coefficient of variation scores, the applicant’s overall effort was consistent, although he appeared to give sub-maximal efforts with the majority of tests as evidenced by the percent of normal for the strength-hand and pinch tests and by the Methods-Time Measurement tests.

18Dr. Lawson in the IE report for a psychological assessment opined that from a psychological perspective, the applicant’s current degree of psychological distress does not constitute an impairment that renders him substantially unable to perform the essential tasks of his employment as a janitor as a direct result of the accident. The applicant’s results indicate that the applicant is likely experiencing a degree of pain severity and associated symptomatology commensurate with that experienced by individuals who are contending with a chronic pain condition. The applicant’s results also indicated that he ascribed a moderate degree of disability for family/home responsibilities, recreational pursuits, social activities, occupational duties, sexual behaviour and life support activities, and a mild degree of disruption for self-care tasks. Dr. Lawson diagnosed the applicant with an Adjustment Disorder with mixed anxiety and depression, moderate. The differential diagnosis is Major Depressive Disorder with anxious distress. He opined that the applicant remains vulnerable to the development of a Somatic Symptom Disorder.

19Dr. M. Aiello in the IE report for a physician’s assessment opined that the applicant’s impairments as a result of the accident are a decreased range of motion in his neck, difficulty bending at the waist, and he is suffering from a mild to moderate cervical and thoracolumbar muscle strain. The cervical muscle strain has caused daily headaches. Dr. M. Aiello concluded that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a janitor.

20Dr. Nguyen in the IE report for a neurological assessment opined that the applicant’s examination was fairly normal except for some limitation in his neck range of motion. Dr. Nguyen opined that the applicant’s neck and low back pain are likely musculoskeletal in nature while he also has some post-traumatic headaches, mostly occipital, which may be cervicogenic in nature without strong evidence of migraine. Clinically, there is no evidence of neurological injury, radiculopathy or myelopathy. Dr. Nguyen concluded that, from purely a neurological standpoint, the applicant does not suffer a substantial inability to perform the essential tasks of his employment as a result of the accident.

21I am persuaded by the applicant’s testimony that his neck and back hurt, and that he has headaches that come and go. At night, he cannot sleep well and he gets about three to four hours of sleep. He testified that sometimes he loses his balance and that he has lost his balance a number of times since the accident. He feels pain after 10 to 15 minutes of sitting and he has a problem walking long distances. The applicant shared that he feels that he is nothing at present and that he is really suffering. He feels that he is sick psychologically.

22I place weight on the testimony provided by the applicant’s niece, S.M., who currently lives in the same residence as the applicant. She has observed that the applicant’s functioning has deteriorated. He is constantly complaining that he cannot sleep and that he is not comfortable. She testified that around the house he does his laundry and makes his breakfast early in the morning, and that aside from that, herself and her mother do the majority of the housekeeping. She testified that he complains of back pains, neck pains, stomach bloating, ankle swelling, and he is very forgetful. She testified that he cannot carry a box up and down, so how can he be on his feet at a job.

23I agree with the classification reached by Dr. A. Aiello in the job site evaluation that the applicant’s job as a janitorial cleaner is most closely categorized in the medium strength category meaning that work activities involve handling loads (such as pulling, pushing, lifting and/or moving objects) of 10 kilograms to 20 kilograms. Furthermore, the applicant’s essential job tasks as set out in Dr. A. Aiello’s job site evaluation align with the applicant’s testimony of his essential job tasks. As noted above, the applicant’s evidence supports that the janitorial cleaner job involved vacuuming with a machine that he estimated was approximately two to three kilograms; cleaning the floor with a heavy machine on wheels that required pushing that he estimated was approximately between 10 to 12 kilograms; changing light bulbs while on a ladder; and cleaning tiles.

24I placed weight on the functional abilities evaluation. As noted above, Dr. A. Aiello concluded the following regarding the applicant’s movements: cervical spine ROM was reduced and painful with flexion, extension, bilateral lateral flexion, and bilateral rotation. His lumbar spine ROM was reduced and painful with flexion, extension, bilateral lateral flexion, and bilateral rotation. His hip ROM was full, but painful in his low back with bilateral internal and external rotation. The applicant did not complete any of the dynamic lifting/carrying tests due to pain.

25Both the applicant and the respondent agree that the applicant experiences psychological impairments. I also agree. I find that the applicant’s pre-accident job was physically demanding. As a result of his ongoing impairments, which include his psychological impairments, as well as his lack of sleep, his loss of balance at times, and difficulties with prolonged sitting and walking, I find that the applicant is unable to perform the essential tasks of his pre-accident employment as a result of the accident.

26The respondent made submissions regarding Dr. Ricci’s report and how she allowed the applicant to complete the psychometric testing on the applicant’s own accord over the period of almost a month, and possibly with the assistance of others, compromising the validity and reliability of Dr. Ricci’s findings. Furthermore, the respondent submits that the applicant’s niece acted as an interpreter during the assessment which also compromised the validity and reliability of the findings. When questioned regarding this, the applicant testified that his niece acted as a translator during the assessment, but that he completed the tests after the assessment. He said that if there was any question regarding the tests that he did not understand, he would ask his niece. His niece testified that she helped with interpreting, but that the applicant understood some of the assessment and had a clear idea of what was going on. I agree with the respondent’s submissions that the validity and reliability of Dr. Ricci’s findings may be compromised, and I have therefore placed less weight on her report as a result. The totality of the evidence before me in this hearing, however, finds in favour of the applicant in regard to his claim for pre-104-week IRBs.

27I find that the applicant has a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident and is therefore entitled to IRBs at the rate of $377.30 per week from June 3, 2017 up to 104 weeks after the accident.

Post-104-week income replacement benefits

28I find the applicant does not meet the more stringent post-104-week test for entitlement to IRBs. The statutory test to meet to be eligible for an IRB post 104 weeks is set out in s. 6 of the Schedule which provides that for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

29The applicant has not provided any evidence that addresses the complete inability test for post-104-week IRBs. Dr. Ricci does not address whether she believes that the applicant is incapable of performing any job that the applicant is reasonably suited by education, training or experience. The applicant testified that he has not attempted to return to work because he is trying his best to recover and get back to his health, and then he will go and look for a job. He has failed to provide any evidence of comparable jobs or wages and I am not convinced that it would be detrimental to his recovery to obtain employment or self-employment in a job that is reasonably suited by his education, training or experience.

30I find the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.

Is the treatment plan for physiotherapy and massage therapy treatment reasonable and necessary?

31The treatment plan completed by Makram Guirguis (physiotherapist) in the amount of $1,394.76 is listed as for physiotherapy, but it is for both physiotherapy and massage therapy treatment. I find that this treatment plan is not reasonable and necessary, and the applicant is not entitled to this treatment plan.

32The respondent submits that this treatment plan is not reasonable and necessary because Dr. M. Aiello’s IE paper review report dated June 2, 2017, concluded that the applicant has suffered a mild to moderate cervical and thoracolumbar muscle strain. Dr. M. Aiello opined that the applicant does not require any additional physical therapy for his injuries and that he would benefit from self-directed physical exercise to increase his pain free range of motion.

33I am not convinced that the treatment plan for a combination of physiotherapy and massage therapy treatment would be beneficial to the applicant. He has not been consistent in his remarks regarding whether physiotherapy has truly helped his pain symptoms. He told Dr. M. Aiello on April 10, 2017 that his symptoms have improved by approximately 10% since the accident. He told Dr. Nguyen on April 28, 2017 that physiotherapy helped the low back and slightly the right shoulder pain, but not his headaches, light sensitivity, nausea and neck pain. Dr. Jean Oosthuizen, a family physician, noted on July 26, 2017, that the applicant has had persistent neck pain despite physiotherapy. Dr. Oosthuizen noted that the physiotherapy did help, but symptoms subsequently recurred. The applicant told Dr. Ricci on May 5, 2020 that physiotherapy treatment increases his pain symptoms. He testified at the hearing that physiotherapy helped him a lot regarding his back, but not much with his neck and headaches. The applicant testified that he did not say that physiotherapy increases the pain as noted by Dr. Ricci.

34The respondent submits that it approved a different physiotherapy treatment plan in the amount of $4,272.52 in September of 2019, but that to the respondent’s knowledge, no treatment has been incurred under this treatment plan. When the respondent asked the applicant why he did not get more physiotherapy after it approved the treatment plan, the applicant did not seem aware that more physiotherapy had been approved. I find that if the applicant truly sees the benefit in additional physiotherapy treatment, then the applicant should first exhaust the treatment plan that the respondent previously approved. Therefore, the applicant is not entitled to the treatment plan for physiotherapy and massage therapy treatment in the amount of $1,394.76.

CONCLUSION and ORDER

35The applicant is entitled to income replacement benefits at the rate of $377.30 per week from June 3, 2017 up to 104 weeks after the accident. The applicant is not entitled to post-104-week IRBs.

36The applicant is not entitled to the treatment plan for physiotherapy in the amount of $1,394.76.

37The applicant is entitled to interest on any overdue payments of benefits.

Footnotes

1. 1O. Reg. 34/10.