C.P. v. Aviva Insurance Canada, 2021 CanLII 28683

Citation: C.P. v Aviva Insurance Canada, 2021 ONLAT 18-004460/AABS

Release Date: 2021/03/25

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:

C.P.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Kevin Wolf, Counsel

For the Respondent:

Kevin Griffiths, Counsel

In-Person/Teleconference Hearing:

August 28-29, 2019, January 22, 2020

BACKGROUND

1Due to injuries suffered from an accident on September 21, 2015, the applicant sought medical benefits pursuant to the Statutory Accident Benefits Schedule (the "Schedule").¹ The respondent denied some of these benefits by holding him to the funding and treatment limits of the Minor Injury Guideline (the "MIG").

2An in-person hearing was held over two days before the Tribunal in August 2019. At this time, the main issue in dispute was whether the applicant's injuries fell within the MIG, and—if not—was he entitled to two treatment plans for physical therapy from Eramosa Physiotherapy. There was also a request for interest.

3Several months later, the Tribunal was informed that the applicant had passed away. Therefore, in addition to filing an agreed statement of facts (signed January 20, 2020), the parties made further submissions to the Tribunal during a teleconference on January 22, 2020. These submissions included the respondent's position that the applicant's passing rendered the proceeding moot.

4For the following reasons, I do not find that the proceeding is moot. I then find the applicant has not demonstrated that he should be removed from the MIG.

PRELIMINARY ISSUE – MOOTNESS

5Since the applicant has passed away, the respondent argued that a finding on the MIG would have no consequence, because (aside from a small amount of interest in dispute from the applicant's Eramosa Physiotherapy account) there are no actual benefits in issue. Put another way, even if the applicant was found to be outside of this funding limit, this designation does not provide any further benefit unless more treatment is incurred. Rendering a decision at this point would constitute an improper use of Tribunal resources.

6In response, applicant's counsel stated that, beyond needing an order on the disputed interest, a decision from the Tribunal would assist the applicant's estate in pursuing its tort claim.

7I do not find the question of the MIG is moot. Though medical and rehabilitation services are not payable unless they are incurred, s. 3(8) of the Schedule allows an expense to be deemed incurred if the Tribunal finds that it "was not incurred because the insurer unreasonably withheld or delayed payment". If the applicant has access to funding out of the MIG, the Tribunal may one day find that unreasonable withholding of payment on the part of the respondent caused the applicant to choose not to incur a certain form of treatment before his passing.

MEDICAL BENEFITS

8In addition to his request for removal from the MIG, the applicant asked for the following medical benefits from Eramosa Physiotherapy:

a. $1,696.00 (less $1,240.61 already approved) recommended in a treatment plan dated February 2, 2017, partially approved by the respondent on February 22, 2017; and

b. $1,297.00 recommended in a treatment plan submitted April 5, 2017, denied by the respondent on April 19, 2017.

9During the in-person hearing, the applicant revoked his requests for an award and a knee brace.

MINOR INJURY GUIDELINE

10The main means of removal from the MIG is when an insured person demonstrates (on a balance of probabilities) that they have sustained an impairment that is not "predominantly a minor injury". A "minor" injury is defined in the Schedule at s. 3(1) as "a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury".

11Section 18(2) states that insured persons may also be removed from this limit if they establish (on a balance of probabilities) that they had "a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent… achieving maximal recovery from the minor injury if the insured person is subject to the (MIG) limit".

Parties' Positions

12The applicant claimed that the accident caused physical impairments that are not "minor" in nature, i.e., a right rotator cuff injury and a cervical spine/lumbar spine injury, as well as chronic pain. Support for these injuries include the applicant's difficulty working after the accident. The applicant then claimed that his pre-accident left knee pain was exacerbated by the accident.

13The respondent stood by its MIG position for several reasons. First, it argued that the applicant's treatment history suggests he only suffered from minor, accident-related injuries, as the applicant did not receive any form of treatment for about 14-15 months following the accident. Second, although the applicant put significant weight on the argument about his rotator cuff injury, a partial tear falls within the definition of a "minor" injury. Finally, the respondent submitted that there is no psychological evidence supporting the applicant's claim of chronic pain.

Chronic Pain

14Of all the applicant's submissions, I find his claim of chronic pain to be the strongest. That said, I still find that he has failed to establish this accident-related impairment on a balance of probabilities.

15To start, I accept that there are clinical notes and records that establish the existence of long-standing pain, e.g., a September 15, 2017 referral note from his family physician, Dr. Praveen Bansal, stated the applicant "has not been able to work for over 8 months" due to "severe back pain." This referral appears to have arisen from a visit on September 11, 2017 where the applicant reported "developing low back pain" that was being helped by "physio… but he has used up all his benefits".

16The insurance forms filed by the applicant also supports this claim. For instance, the Disability Certificate from Dr. Bansal (signed January 13, 2017) stated that the applicant was experiencing accident-related lower back and upper body pain.

17The applicant also provided the Tribunal with several examples of functional limitations caused by this pain. For instance, the applicant reported being unable to complete all of his pre-accident household chores. He also had trouble playing with his family, and he linked his trouble sleeping to his experience of pain. These limits were different than the minor ones he experienced before the accident, as he testified that his pre-accident knee pain only limited his ability to run.

18These functional limitations are corroborated in the medical evidence. First, in his application for long term disability benefits (dated May 1, 2017), the applicant stated he was unable to climb, kneel, bend/squat, crouch, crawl, and reach due to his accident-related injuries. Similar limits were reported by his physiotherapist, Brent Lunnie, in a letter from February 24, 2017. The applicant also mentioned these difficulties during interviews with Eramosa Physiotherapy in early 2017 (e.g., inability to engage in his hobbies, dressing slowly, etc.).

19Finally, the report from the applicant's surgeon, Dr. Robin Richards, connects these limitations to the accident (dated February 7, 2018). After reviewing the applicant's medical history and conducting a physical examination, the assessor concluded that: "In view of the chronicity and severity of the ongoing symptomatology I consider [the applicant] to have a significant and severe permanent disability consistent of pain…"

20However, despite this evidence, I do not find that the applicant has established the existence of accident-related chronic pain on a balance of probabilities. I base this finding mainly on the fact that the timeline of treatment following the accident raises serious questions about whether this pain can be properly understood as an accident-related impairment.

21Specifically, I place significant weight on the respondent's argument concerning the significant gap between the accident and the start of treatment. According to the February 2017 letter from Mr. Lunnie, the applicant did not start physiotherapy for his accident-related injuries until November 14, 2016. This letter explained the gap as arising from the applicant's failure to appreciate the severity of his injuries, as well his belief that "worsening pain in his left lower leg and foot was related to his pre-existing left knee arthritis".

22A similar explanation was then offered by the applicant during his testimony, as he stated that the period between the accident and November 2016 was marked by intense pain, but he tried to carry on without treatment. For example, though he only took one week off from his job following the accident, he returned to work on modified duties.

23I do not accept this explanation for the following reasons.

24First, the applicant did not sign the OCF-1, the form to initiate one's accident benefits claim, until December 2016—approximately 15 months after the accident. Moreover, the respondent provided the applicant with a copy of this form directly following the accident (letter dated September 24, 2015). Follow up letters were then sent to the applicant, i.e., dated September 30, 2015, November 6, 2015, and January 15, 2016. A further copy of the OCF-1 was also sent to the applicant on November 22, 2016. Considering the applicant was regularly informed of his ability to access treatment as a result of the accident, there are serious questions about Mr. Lunnie's contention that the applicant thought the pain was unrelated to the motor vehicle accident.

25Then, in a note based on a phone call between the applicant and his former employer's long term disability provider from June 23, 2017, the applicant stated that his back pain did not start until November 2016 (i.e., the month when he said the disability underpinning his long term disability claim started). He also linked this back pain to the sciatica pain mentioned in the records before me. The applicant denied this statement during the hearing.

26Not only does the delayed participation in treatment and these inconsistencies in the evidentiary record cast doubt on the severity of the impairments, but—as noted by the respondent's orthopaedic surgeon, Dr. Greg Jaroszynski—there are questions about their connection to the accident. In his report dated March 30, 2017, Dr. Jaroszynski opined that the length of time between the accident and the increased experience of pain in 2017 was the result of "some degenerative changes in those symptomatic areas".

27This opinion was later confirmed in Dr. Jaroszynski's June 20, 2017 addendum (which addressed a March 31, 2017 MRI that found "degenerative changes" in the applicant's spine), and then again in a second addendum from July 24, 2017 (based on notes from Dr. Bansal and diagnostic imaging).² He also restated this conclusion during his testimony, and added that his original opinion was reinforced by these new records. Specifically, he found that they demonstrated the applicant's worsening pain was due to aging and degenerative changes.

28Support for the pain originating from a source other than the accident can also be found in the medical records mentioned above. For instance, there is no mention of the accident in the September 15, 2017 record detailed above from Dr. Bansal. In fact, following the visit shortly after the accident on September 24, 2015, the next mention of the accident in Dr. Bansal's records is not until November 21, 2016.

29In a similar vein, an earlier letter from Dr. Bansal (dated July 24, 2017) mainly attributed the applicant's inability to work to "severe left knee pain due to arthritis"—a pain that Dr. Bansal reported (in a separate note from that same visit) as "ongoing for years now". This note made no mention of the accident.

30Then, in the 2018 report from Dr. Richards, there are consistent references to degenerative changes noted in the diagnostic imaging, and there is no explanation provided for the long period of time between the accident and the start of treatment. I find this second point particularly important, as this expert's explanation for why the applicant's right shoulder pain had to be "traumatically induced" was the applicant's history of pain and related functional limits. That is, since the applicant did not experience "previous shoulder symptomatology", the shoulder pain must have been caused by the accident. He also added during his testimony that the lack of a corresponding tear in the left shoulder was further evidence of a traumatic origin for the right shoulder tear.

31However, without a credible account for the gap between the September 2015 accident and the start of physical therapy in November 2016, I find Dr. Jaroszynski's account to be more compelling.

32I would also note that this gap in treatment stands in stark contrast to case law presented by the applicant. For instance, in S.T. v. Certas Direct Insurance Company, the adjudicator concluded that the applicant had "taken continuous action to try to address his pain."³ Then, in 17-004847 v. Aviva General, the applicant had been making complaints about accident-related pain for the four years following the accident.⁴ Such a timeline is missing from this case.

33Finally, the applicant's ability to continue working after the accident (albeit on modified duties and with pain) raises additional questions. As noted in M.N.M v. Aviva Insurance Canada, the Tribunal accepts the six criteria of chronic pain (enumerated in the American Medical Association Guides) as strong indicia of this impairment.⁵ Several of these factors address the ability to continue with pre-accident work (e.g., "Withdrawal from social milieu, including work…", "Failure to restore pre-injury function", etc.).⁶ Without a compelling explanation for his ability to continue working, I have further doubts about the applicant's claim of an accident-related impairment.

34In sum, I am satisfied that (despite the aforementioned medical evidence and testimony to the contrary) the applicant has not demonstrated the existence of accident-related chronic pain on a balance of probabilities.

Partial Tear

35I will now address the applicant's claim that a tear in his right shoulder should remove him from the MIG. Of significance to this claim are the MRIs showing partial tears. For instance, in a right shoulder MRI he had performed on June 5, 2017, the imaging found "small partial interstitial tears involving the supraspinatus tendon". Despite a note from Eramosa Physiotherapy (dated November 24, 2017) stating that there is a "complete tear of rotator cuff", this finding of a partial tear was confirmed in a letter from [Health Sciences Centre] [("the hospital")] (dated February 20, 2018).

36According to the definition in the Schedule, partial tears are "minor" in nature.⁷ Therefore, it does not merit removal from the MIG.

Radiculopathy

37Regarding the claim of radiculopathy, I do not accept this submission. Briefly, the evidence of this impairment appears to be based on a clinical consultation letter from [the hospital] (dated November 21, 2017), which reported the applicant had "clear radiculopathy in the left lower extremity." Also, there is a mention of left leg radicular pain in the treatment plan from April 2017. However, I do not find these claims are supported by the totality of the medical evidence.

38In a report from Dr. Vincenzo Basile (dated July 19, 2018), this neurologist concluded that both his testing and a review of the medical history "pointed towards mainly musculoskeletal type of symptomology as there was no current evidence of a lumbosacral radiculopathy". I place more weight on this conclusion, because Dr. Basile's opinion was based, in part, on electrophysiological testing and a physical examination. In contrast, the note from [the hospital] appears to be based on the applicant's medical history.

Pre-existing Left Knee Injury

39As outlined in paragraph 11 above, s. 18(2) of the Schedule states that insured persons may be removed from the MIG if they establish that they had "a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent… achieving maximal recovery from the minor injury if the insured person is subject to the (MIG) limit".

40According to his testimony, the applicant has long suffered from left knee pain. Starting with a motor vehicle accident in 1999 and then a sports injury in 2007 (both of which required surgical intervention), the applicant told the Tribunal that the pain in his left knee went from manageable to unbearable following the September 2015 accident. Mobility issues also arose after the accident.

41In support of this claim, the applicant provided the Tribunal with a pre-accident clinical note from Dr. Bansal that described similar musculoskeletal complaints. That is, on February 24, 2014, the applicant relayed "multiple musculoskeletal complaints", including back, right foot, neck, and left knee pain. Dr. Bansal's notes from around 2010 also include multiple complaints about left knee pain, which appeared to be related to both osteoarthritis and weight gain.

42I accept that there is an established, pre-accident condition, but removal from the MIG through s. 18(2) requires a second step. That is, an applicant must provide compelling medical evidence to demonstrate that "achieving maximal recovery" will be impaired by this condition "if the insured person is subject to the (MIG)".

43In this present case, I once again turn to the applicant's history of treatment to challenge the claim that this pre-existing injury affected his ability to recover under the MIG. By waiting over a year after the accident to access treatment, it is difficult to determine what, if any, effect more expeditious receipt of physical therapy under the MIG would have done for the applicant's recovery. Instead, I am left with the questions of causation I have detailed above.

44I would also note that Dr. Jaroszynski addressed the possible effects of the applicant's pre-existing knee injury in his March 2017 report. Specifically, he reasoned that this condition "would not have in any way affected the recovery from the accident-related injury".

Applicant's Submissions about Dr. Jaroszynski

45In various aspects of my decision, I have relied on the reports of Dr. Jaroszynski. This assessor's opinions were challenged by the applicant, so I find it necessary to address these arguments. Chief among these submissions was the contention that Dr. Jaroszynski did not have sufficient medical evidence to reach a credible opinion. While I accept that Dr. Jaroszynski had limited records during the preparation of his initial report, the clinical notes and imaging he later received largely confirmed his original opinion.

46Further, applicant's counsel challenged Dr. Jaroszynski during the hearing on whether he asked the applicant about his pre-accident health and functional capacity. I do not find this lack of pre-accident information to be of significant consequence. That is, even if I disregarded Dr. Jaroszynski's opinion about the unlikely interaction between pre-accident knee pain and the accident (due to a lack of pre-accident health information), the applicant has still failed to meet his evidentiary burden for this aspect of s. 18(2).

47Finally, the applicant alleged bias. Beyond the fact these allegations require a high level of proof, I fail to see how establishing bias would assist the applicant's case. First, as I have detailed above, much of my analysis concerning the applicant's submission of chronic pain involves the delayed timeline for receiving treatment. Therefore, even if I disregarded Dr. Jaroszynski's opinion about the origin of this pain, there is still the gap in treatment that has gone unaddressed.

48Second, to remove oneself from the MIG based on a pre-existing condition, there must be a documented connection between the pre-existing injury and one's recovery. Once again, even if I found bias, it is difficult to then infer that the removal of this bias would have led Dr. Jaroszynski to find a link between the applicant's pre-existing knee condition and difficulties with recovery. Put another way, without compelling, corroborating evidence to suggest that there is such a connection, I cannot assume that establishing bias in an expert's opinion necessarily means that the opposite of this biased opinion is true.

SECTION 3(8)

49As a final comment on the MIG, the applicant argued that removal from the MIG should then allow for a finding that there was an unreasonable withholding of the treatment plans in dispute under s. 3(8), because he had no funding left to pursue treatment.

50Since I have concluded that the applicant will be held to this MIG, I do not find merit to this argument.

SECTIONS 38(8) & 38(11)

51The applicant also raised the argument that the treatment plan (dated February 2, 2017) was not denied in accordance with s. 38(8) of the Schedule. Briefly, an insurer must deny a medical benefit within ten business days of receiving the treatment plan. Since this plan was partially approved on February 22, 2017 (i.e., 14 business days later), s. 38(11)2 states that the respondent must pay for any expenses incurred between February 17 and February 22, 2017. I do not find it necessary to address this argument, as my understanding from the parties' agreed statement of facts is that the account from Eramosa Physiotherapy has been paid in full. Any incurred services have been paid.

52Further, the applicant argued that the remedy for late denials provided under s. 38(11)1 disallows the respondent from relying on the MIG. This remedy only applies to the treatment plan at issue, such that an insurer may still use the MIG as a means for denying payment of other treatment plans. Put another way, the applicant is not removed from the MIG on account of s. 38(11)1, rather the respondent can no longer use the MIG to justify denying this treatment plan. As such, since the partial approval of this plan was only based on the MIG (i.e., Explanation of Benefits dated February 22, 2017), I find there is now no valid denial of this treatment plan.

53For clarity, the remedy under s. 38(11)1 does not apply to the other treatment plan in dispute (i.e., the plan submitted April 5, 2017).

INTEREST

54Section 51 states that an amount will only incur interest once it becomes "payable" in accordance with the Schedule. In the present case, I am satisfied that there is no interest owing to the applicant, as I have not been pointed to any amount that the respondent failed to pay once it became "payable".

55Beyond there being no medical benefits owing on account of the continuing application of the MIG, the parties' agreed statement of facts provided the following comment about the respondent's decision to cover the outstanding account at Eramosa Physiotherapy:

… (The respondent) paid the entire account without an OCF-21 and without regard to whether funding for some portion of the treatment was available pursuant to a collateral plan (as had been the case with the treatment that was the subject of the March 20, 2017 OCF-21).

56Without an OCF-21 detailing the incurred services, and without evidence to rebut the proposition that the applicant had access to other funding (in compliance with s. 47[2]), this outstanding amount was not considered "payable" under the Schedule. As such, there is no interest that could have attached to the outstanding account at this clinic.

ORDER

57The applicant has not demonstrated that he should be removed from the funding and treatment limits of the MIG and s. 18(1) of the Schedule.

58The respondent may no longer use the MIG as a reason for denying the unapproved portion of the treatment plan dated February 2, 2017.

59No interest is owing to the applicant.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2Dr. Jaroszynski was also provided with a copy of a neurology report from January 2017. However, during the hearing, the applicant stated that he was not the patient detailed in this report. Upon further review, the patient's name in this report is the same as the applicant, but the birthday date is different.
3. 32018 CanLII 115642 (ON LAT), at para. 22.
4. 42018 CanLII 81912 (ON LAT).
5. 52018 CanLII 98282 (ON LAT), at para. 6.
6. 6Ibid.
7. 7See, e.g., B.C. v. Aviva General Insurance, 2019 CanLII 22186 (ON LAT), at paras. 9 + 13.