Jefford v. Aviva General Insurance, 2022 CanLII 106452

Citation: Jefford v. Aviva General Insurance, 2022 ONLAT 19-012053/AABS

Licence Appeal Tribunal File Number: 19-012053/AABS

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

Between:

Arthur Jefford

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Arthur Jefford, Applicant – Self represented

For the Respondent:

Jenny Tran, Representative

Michael W Chadwick, Counsel

Court Reporter:

Anne Geuzebroek

Heard by Videoconference:

October 3, 4, 5 and 6, 2022

BACKGROUND

1The applicant was involved in an automobile accident on February 21, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant applied for medical benefits and submitted an application for a catastrophic impairment determination, all of which were denied by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The Application for Determination of Catastrophic Impairment Form ("OCF-19") is dated September 18, 2018 alleging the applicant sustained a catastrophic ("CAT") impairment as a result of the accident based on criterion 8. The respondent denied the applicant sustained a CAT impairment as a result of the accident and denied the medical benefits for psychological treatment. It claims that the applicant has a class 1 (no impairment) rating as a result of the accident.

3The respondent claims the applicant has not met his burden of proof. The respondent submits the medical evidence indicates the applicant had mental disorders prior to the accident which are not related to the accident. It denies the applicant requires psychological counselling as a result of this accident and as such the treatment plans in dispute are not reasonable and necessary.

Witnesses

4The applicant testified, as did his spouse. Dr. Luczak, psychiatrist testified for the respondent and was qualified at the hearing as an expert in psychiatry.

ISSUE IN DISPUTE

5The following issues are to be determined at the hearing:

I. Has the applicant sustained a catastrophic impairment pursuant to the Schedule?

II. Is the applicant entitled to $3,779.54 ($4,492.10 less the partially approved amount of $712.56) for physiotherapy and cognition counselling¹ recommended by Dale Blenkhorn, physiotherapist in a treatment plan (OCF-18) submitted on July 6, 2018 and denied July 19, 2018?

III. Is the applicant entitled to $3,566.63 for psychological treatment recommended by Dr. Stephen White, psychologist in a treatment plan (OCF-18) submitted on August 14, 2018 and denied on August 21, 2018?

IV. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of regulation 664? ²

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

RESULT

6The applicant has not sustained a catastrophic impairment as defined in the Schedule. The applicant is not entitled to the medical benefits as they are not reasonable and necessary. No payments for benefits were unreasonably withheld or delayed by the respondent and therefore the claim for an award is dismissed. The claim for interest is dismissed.

Preliminary Motion

7A preliminary motion was made by the applicant for a copy of the transcript or recording of the hearing at no cost to him. No submissions were advanced to support the request. The respondent objected to such an order. After hearing brief submissions, I declined to order a copy of the transcript at no cost to an applicant. As to allowing him to record the hearing, this could be allowed under Rule 13.3 of the Tribunal's Common Rules of Practice and Procedure; however, Rule 13.3 requires 10 days advance written notice of the request prior to the hearing. No such notice was provided and although recognizing the applicant is self-represented and that Rule 3.1 requires the Tribunal to apply the Rules in a liberal interpretation to ensure a fair, open and accessible process regardless of whether a party has legal representation or not, I declined the applicant's request.

BACKGROUND

The Applicant's Impairments

8The applicant was driving his motor vehicle when he was involved in an accident and sustained injuries and has pain in his neck, hips, right knee, right shoulder and occasional headaches. He testified that he sustained a broken foot, fractured ribs, bruised hips, a cracked sternum and psychological injuries as a result of the accident. No medical evidence was presented that the applicant sustained a broken foot or fractured ribs from the accident. He testified the airbags did not deploy but his sternum hit the steering wheel in the collision. There is no evidence of a cracked sternum.

9The applicant testified he struggled to get his health back after the accident. He was sent to see a psychiatrist on several occasions and it took a toll on him. He testified he is the chief of an Indigenous band. The medical evidence including the psychological report of Dr. Stephen White dated February 20, 2018 confirm the applicant had psychological issues prior to the accident which includes post traumatic stress disorder (PTSD) since 1980, a delusional disorder, and persecutory and grandiose continuous disorders.³ The applicant testified he did not tell his doctor he had a psychological injury.

10A disability certificate (OCF-3)⁴ dated April 21, 2014 was filed by the respondent but it is not legible. In his Physiotherapy Assessment Report dated October 3, 2018, Michael Drinkwater, physiotherapist, described the injuries listed in the OCF-3 listed the injuries as whiplash, lumbar strain and right knee strain.⁵ There is no reference in the OCF-3 to psychological injury. The applicant testified about a head injury from the accident. He stated he applied Polysporin to a cut on his head and it cleared up.

Evidentiary Issue – No Documentary Evidence from the Applicant

11The applicant did not submit any document brief for the hearing. He did not submit any expert medical report or other medical evidence from a family doctor or other physician or expert to support his claim that he sustained physical or psychological injuries from the accident or continues to suffer from these injuries.

The Applicant's Position

12The applicant testified that as a result of the accident, he experienced severe financial stress, changes in his relationships and with memory. He claims that all of his current financial, legal and social difficulties have occurred since the accident and are due to the accident. As discussed below the evidence does not support this claim.

13The applicant testified that his home was demolished by the municipality immediately after the accident. He testified and stated in his oral opening and closing submissions that the government bulldozed his home. He testified he feels persecuted by the government and the insurance company.

14He submitted an OCF-19⁶ to the respondent completed by Dr. Veluri and dated September 18, 2018 claiming a CAT Impairment under criterion 8, being an impairment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, that results in a class 4 marked impairment or class 5 impairment due to a mental or behavioural disorder. Dr. Veluri states the applicant had a marked impairment in social functioning, concentration, persistence and pace, and adaptation.

15The applicant submits that his catastrophic impairment is from the mental damages he sustained when the insurer failed to pay medical benefits and that created financial stresses that resulted in him losing his home. He claims any pre-existing psychological issues were worsened by the accident and the respondent's failure to approve in a timely fashion the medical benefits and the CAT impairment.

16In his closing submissions⁷ and testimony he stated he has struggled with ongoing challenges from being deliberately harassed and badly treated by various government and other agencies, in addition to a reported incident including kidnapping by the CIA.

17In his closing submissions, the applicant claims the CAT Impairment was caused by the accident. The insurer failed to make proper timely evaluations and remain open to additional information as such became available to it. It did not respond appropriately. He maintains the respondent failed to provide timely reasonable and necessary denial of the accident benefits when adjusting his accident benefits claim. The respondent had the responsibility to "carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner". The CAT Impairment was caused by the respondent relying on the opinions of its IE assessors or medical professionals when denying a benefit without a review of an assessment of the life of the applicant before the accident and monitoring and maintaining life after the accident especially when he lost income which led to his losing his home. This, he claims, warrants a punitive special award to him.

18He makes a further claim that the respondent's ongoing denial of the benefits claim resulted in crippling the applicant and a breach of the Criminal Code, section 83.01 and engaging in actions of terrorism, systemic racism and genocide. The loss of his business, home and lands resulted in forced homelessness.

19The applicant testified he has been under psychiatric treatment and has seen psychiatrist since 1980. The applicant testified that in the 1980's he had a UFFI insulation business that failed when the government banned UFFI insulation due to an identified health hazard. The respondent indicates that the applicant saw Dr. Kong, psychiatrist, in 2020, who concluded the applicant was permanently disabled due to stress arising from his business failure.⁸ The applicant stated during cross examination that it is not possible that he could be employed and have this medical condition. The applicant admitted going to CAMH for treatment after the accident The CAMH consulting report discusses psychological trauma sustained by the applicant from the loss of his business and money due to various lawsuits. He had flashbacks and nightmares.⁹

Applicant's Spouse Testimony

20The applicant's spouse, Edith Gunby, testified that she was not aware of the insurer's examination (IE) reports as the applicant never shared these with her. She testified he had a lots of stories and there must be some truth to them. She indicated a doctor he saw in Sudbury (she did not provide a name) who did not believe all the applicant's stories including being kidnapped in Malaysia and tortured by Bin Laden. She indicated that after the accident she had more stress. There were financial and emotional issues. She did not elaborate about these during her testimony and did not provide any details. She was not aware that the applicant had been under psychiatric treatment since 2000 or that he was being treated by Dr. Look Tong. She was aware of the PTSD diagnosis. She stated she does family volunteer work and worked between 2005 to 2013. She worked part-time but generally worked full-time hours. She left her employment in 2013 due to downsizing. I fully appreciate Ms. Gunby's evidence, though I find that her testimony provides little assistance in determining whether the applicant meets his burden of proving the medical benefits and CAT Impairment claimed by the applicant.

21The respondent maintains that any claimed financial problems are due to Ms. Gunby being laid off in 2013. It maintains there is no evidence that any financial problems were caused by the accident.

The Respondent's Position

22The respondent relies on the family doctor notes of the applicant and the IE assessor reports to support its denial of the OCF19 and medical benefits which it states were properly denied. The respondent submits the applicant has had ongoing battles with the government and municipal authorities which date back to the 1980s when he was first diagnosed with PTSD. His business failures started well before the accident including when his business with UFFI insulation failed after UFFI was banned. The clinical notes and records of his family doctor, Dr. Stewart of May 17, 2012¹⁰ indicate the applicant became embroiled in a dispute with the municipality prior to the accident. When he was dealing with these issues his blood pressure rose as he was under a lot of stress.

23The clinical notes of Dr. Stewart indicate the applicant never went to a doctor about his injuries from the accident until April 2014. Dr. Stewart confirmed this in a letter responding to a request by the applicant dated February 21, 2018. Dr. Stewart stated that he has no records of the applicant seeking medical aid from him regarding the injuries sustained in the accident. The only record is a physiotherapy report dated April 21, 2014 which was the first medical treatment he sought.¹¹

24The respondent maintains the applicant's position that his financial troubles and the fact that his home was demolished by the municipality only started after the accident is not correct. Dr. Stewart in his clinical notes refers to a notice of eviction that was served upon the applicant on April 14, 2014. It claims the planned demolishing of the applicant's home started before the accident although the actual demolishing was one month after the accident.¹²

IE Assessments

25The respondent in November 14, 2018 scheduled several IEs to address the OCF-19. This included IE assessments with Dr. Luczak, psychiatrist, Penny Briggs, an occupational therapist (OT), Dr. Yuri Marchuk, physiatrist and Dr. David Mula (physician) completed in January 2019 and February 22, 2019. In its Explanation of Benefits letter dated April 15, 2019 the respondent advised the applicant that he does not meet criterion 8 for CAT impairment.

26In his section 44 psychiatric assessment report ¹³ dated April 5, 2019, Dr. Luczak found the applicant's current psychiatric symptoms and impairments are not consistent given the mechanics and details of the accident. He found the applicant had a pre-existing psychiatric history characterized by paranoid and grandiose ideas and delusions that are better explained by a psychotic disorder such as schizoaffective disorder, bipolar type. This pre-existing condition explains his current clinical presentation.

27Dr. Luczak assessed the OCF-19 and concluded that the applicant does not suffer from a catastrophic impairment as a result of the accident. From a psychiatric perspective, he assigned a Class 1 (no impairment) rating for each of the four domains of function being activities of daily living, social function, concentration, persistence and pace, and adaptation.¹⁴

28Dr. Luczak testified that the applicant has a long history of psychiatric issues. He questions his reliability as a historian in that the applicant has a psychiatric disorder which predates the accident. He opined that he has a schizophrenia disorder and grandiose ideas. There was no verifiable evidence that the accident had a significant impact on his mental state. He testified in relation to a psychiatry addendum report completed on September 1, 2020¹⁵ after he received additional information which included psychiatric consultations with Dr. Look Hung (spelled differently than Dr. Stewart in his clinical notes) and by Dr. P. Achlume, psychiatric consultation. His conclusions after reviewing the new documentation remain unchanged.

29Dr. Luczak was also asked to assess additional medical information provided by Dr. Veluri's independent medical examination and psychiatry addendum of October 16, 2020. Dr. Veluri's position is that the applicant has suffered a traumatic brain injury as a result of the accident. Dr. Veluri indicated this was based on the applicant's self reporting to Dr. Veluri that his head had jerked forward and backward in the collision. Dr. Luczak found that Dr. Veluri's diagnosis that the applicant had a diagnosis of a major depressive episode was questionable and likely formed part of the applicant's pre accident psychiatric history. Dr. Luczak noted the applicant never told his family doctor about any head injury. There are no records of lacerations to the head. He was never referred to a neurologist. He concluded his opinion from his previous psychiatric assessment remained unchanged.¹⁶

30Dr. Luczak further indicated that the theme and severity of the applicant's mental health symptoms did not appear to be significantly different than they were before the accident. In summary, there were no rateable impairments due to mental and behavioural disorders as a direct result of the accident. ¹⁷

31In the section 44 CAT report completed by Dr. Yuri Marchuk, physiatrist, dated April 5, 2019, he diagnosed the applicant with a whiplash, a cervicothoracic bilateral shoulder myofascial dysfunction, right shoulder tendinosis, a lumbar musculoligamentous dysfunction, bilateral iliotibial band myofascial dysfunction and bilateral trochanter bursitis (right greater than left). Dr. Marchuk opined that the claimant has pre-existing moderate to severe degenerative changes of the right knee and moderate degenerative changes. He found he had pre-existing age-related degenerative changes in the cervical and lumbar spine. He concluded that since CAT was only being assessed under Criterion 8, he completed the report for information purposes only, and would not provide any CAT impairment rating.

32In the section 44 CAT report completed by P. Briggs (OT) dated April 5, 2019 she concluded that the applicant has a long-standing history of PTSD and emotional and financial stress related to a failed business and lawsuits. The applicant had ongoing challenges from his belief that he was being deliberately harassed and badly treated by various government and other agencies. He claimed that all of his current financial, legal and social difficulties had occurred since the accident, and he attributed all of his current difficulties to changes that have occurred as a result of the accident. Upon testing, the assessor concluded that the claimant is able to perform the activities of daily living.

33In his s. 44 CAT Executive Summary Report, completed by Dr. David Mula, physiatrist dated April 5, 2019, the applicant was assessed to have overall Class 1 (No Impairment) rating, as per the AMA Guides, as a result of accident-related mental illness. He does not have Class 4 (marked) or Class 5 (extreme) impairment in any domain. The applicant was advised of this in the Explanation of Benefits dated April 15, 2019.

Analysis and Decision

34The applicant bears the burden of proof on a balance of probabilities that, as a result of the accident, he suffered a catastrophic impairment as a result of the accident, and that any of the accident benefits he claims are reasonable and necessary.

Catastrophic Impairment

35The applicant's OCF-19 relies on criterion 8.¹⁸ The OCF-19 states that the applicant qualifies under Criterion 8 because he has a marked impairment in accordance with the 4th edition of the AMA Guides that results in a class 4 marked impairment or a class 5 impairment physical impairment due to a mental or behavioural disorder.

36In order to be found to have a catastrophic impairment under the Schedule, the applicant must prove on a balance of probabilities that the impairments he suffers from as a result of the accident have an impairment rating that results in a whole person impairment (WPI) of 55% or more under criterion 8. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one.¹⁹

37The applicant presented no documentary evidence to support his claim of a CAT impairment or that would challenge the findings of the respondent's IE Assessors. The respondent's IE assessments referenced above found the applicant is not CAT impaired under criterion 8. The respondent submits that the applicant does not meet the definition of a catastrophic impairment under criterion 8. I agree. The applicant's testimony and that of his spouse do not support his claim that he is CAT impaired under criterion 8. The applicant has psychiatric issues, but I find based on the totality of evidence, that they are unrelated to the accident; rather, they are from his life struggles and feelings of being harassed by the government and other agencies as well as due to his business failures which is well documented by several medical professionals including his family doctor.

38Further, the applicant claims the respondent's failure to respond to new information made available to it and to properly assess his benefits claim resulted in his being CAT impaired. I find there is no evidence that the respondent failed to address new information as such became available to it. To the contrary, the psychiatric addendum reports refer to new documentation that was provided to Dr. Luczak and whether the new information changed his opinion. He concluded it did not.

39The applicant has failed to present medical evidence to identify or support his claim that he sustained a mental and behavioural impairment under criterion 8. The medical evidence presented by the respondent indicates otherwise and his pre-existing psychiatric issues which began in the 1980s are responsible for his psychological condition and not due to the accident. The evidence presented does not support a CAT impairment under criterion 8.

40The applicant bears the burden to prove that he is CAT impaired. I find based on the totality of evidence he has not met his burden of proof.

Medical Benefits

Issue # 2 – OCF-18 in the amount of $3779.54 ($4,492.10 less $712.56 approved) for physiotherapy and social work counselling, prepared by Dan Blenkhorn, physiotherapist dated June 15, 2018.

41The OCF-18 refers to the following injuries: muscle strain, hip injury, whiplash, pain in the low back, thoracic spine and headaches. The goals are to reduce pain, increase strength, and range of motion and facilitate a return to activities of normal living. The applicant was sent to a s. 44 physiotherapy assessment, which subsequent report was completed by Michael Drinkwater, physiotherapist on October 3, 2018, and concluded that the applicant sustained soft tissue sprains and strains, contusions to his neck, right knee, right hip, and right shoulder. Documentation indicates he had a pre-existing right foot complaint. He found the physical therapy component of the OCF-18 was reasonable and necessary and supported 8 sessions of physiotherapy for the right shoulder, knee and hip. On October 18, 2018 the respondent partially approved the OCF-18 in the amount of $712.56.

42The respondent denied the balance of the treatment plan on August 10, 2018 and scheduled an IE by Dr. Luczak, psychiatrist, to assess the portion of the treatment plan for counselling services. The balance of the treatment plan for 13 sessions of counselling was denied on the basis that it is not reasonable and necessary. Dr. Luczak in his s. 44 assessment report dated October 3, 2018, did not find a psychological impairment as a direct result of the motor vehicle accident. He indicated the applicant's mental health issues at the time of his assessment predated the accident and were not attributable to the accident. He concluded the proposed counselling is not reasonable and necessary as a result of the accident. I concur based on the totality of evidence. The treatment plan is not reasonable and necessary.

Issue # 3 – OCF-18 for $3,566.63 for psychological treatment, prepared by Dr. White, psychologist, dated August 9, 2018

43The OCF-18 refers to the following injuries including PTSD, first diagnosed in 1980, mixed anxiety and an adjustment disorder, chronic pain, a sleep disorder and delusional disorder. The goals of the treatment plan are to address difficulties arising from the accident, increase the applicant's skills related to mindfulness, distress tolerance and emotional regulation. Dr. White states the applicant's mental health has deteriorated and there are significant concerns regarding his stability and safety. I find there is no evidence presented of any stability or safety concerns.

44The respondent denied the OCF-18 on the basis of Dr. Luczak's assessment. In his psychiatric assessment²⁰ report dated October 3, 2018 Dr. Luczak could not find a specific psychiatric diagnosis as a result of the accident. He stated the applicant has a long history of grandiose and persecutory delusions that predate the accident which he described as bipolar disorder, paranoid disorder or possibly schizoaffective disorder-bipolar type. He concluded any recommended counselling in the OCF-18 is not reasonable and necessary because any such psychological issues are not a direct result of the accident. Any mental health issues predate the accident and have been ongoing since the 1980s. Dr. Luczak testified to the same effect at the hearing.

45I find the applicant has not presented medical evidence to support his claim that the OCF-18 is reasonable and necessary. On this basis, I find the treatment plan is not reasonable and necessary.

An Award Under Regulation 664

46The applicant in his closing submissions stated that he has grounds for an award under section 10 of Regulation 664 that permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has "unreasonably" withheld or delayed payments.

47I find there is no basis on which to make an award. There is no evidence the respondent unreasonably withheld or delayed payments. An insurer is not held to a standard of perfection. The applicant's award claim is dismissed.

INTEREST

48As no payments for benefits are overdue, the claim for interest is dismissed.

CONCLUSION AND ORDER

49For the above-noted reasons, I find that the applicant has not sustained a catastrophic impairment as defined in the Schedule. The applicant is not entitled to the medical benefits in dispute as the treatment plans are not reasonable and necessary. The claims for an award and interest are dismissed.

Released: November 8, 2022

Thérèse Reilly

Adjudicator

Footnotes

1. 1The case conference report and order of October 8, 2021 refers to this OCF-18 as a treatment plan for a chronic pain program. The OCF-18 is for physiotherapy and cognition counselling.
2. 2The applicant advanced a claim for an award during his closing submissions on the fourth day of the hearing. Although his claim for an award was late, I exercised my discretion to consider it with the outcome on this issue appearing at the end of this decision.
3. 3Psychological Report by Dr. Stephen White, dated February 20, 2018.
4. 4Exhibit 8, OCF-3, dated April 21, 2014, respondent document brief, tab 9, page 45.
5. 5Physiotherapy Assessment Report of Michael Drinkwater, dated October 3, 2018, respondent document brief, page 5 of 9.
6. 6Application for a Determination of a Catastrophic Impairment , (OCF-19) dated September 10, 2018, respondent document brief, Tab 10.
7. 7Closing written submissions filed with the Tribunal on October 6, 2022.
8. 8Exhibit 1 is the report of Dr. L. Tong, referenced in the clinical notes of Dr. Stewart, family doctor, respondent document brief, page 349.
9. 9Exhibit 6, CAMH Consultation note, page 859 of the respondent document brief.
10. 10Exhibit 2, clinical notes of Dr. Stewart, page 375, respondent document brief.
11. 11Letter of February 21, 2018 from Dr. Stewart in response to a request for medical records by the applicant, page 902.
12. 12Exhibit 4, CNRs of Dr. Stewart, April 30, 2014, page 437.
13. 13Exhibit 18, Psychiatric Assessment Report dated April 5, 2019, respondent document brief, page 147.
14. 14Exhibit 18, Psychiatric Assessment Report dated April 5, 2019, respondent document brief, pages 146 and 147.
15. 15Exhibit 19, Psychiatry Addendum Report dated September 1, 2020, page 204, respondent document brief.
16. 16Exhibit 20, Psychiatric Addendum Report dated November 6, 2020, page 212, respondent document brief.
17. 17Explanation of Benefits, September 2, 2020, tab 20, respondent document brief.
18. 18OCF-19 , exhibit 37, tab 102 of the respondent brief, dated February 27, 2020.
19. 19See Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras. 29-30.
20. 20Exhibit 17, psychiatric assessment report, dated October 3, 2018.