Rajaratnam v. Aviva Insurance Company of Canada, 2022 CanLII 11142

Citation: Rajaratnam v. Aviva Insurance Company of Canada, 2022 ONLAT 19-008985/AABS

Licence Appeal Tribunal File Number: 19-008985/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:

Pushparani Rajaratnam

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Adam Kuciej, Counsel

For the Respondent:

Sonya Katrycz, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant (P.R.) was injured in an automobile accident on April 4, 2017 and sought benefits and an income replacement benefit (“IRB”) from Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (including amendments effective June 1, 2016). Aviva denied the disputed benefits on the basis of its determination that P.R.’s accident-related injuries and impairments were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”). It denied the IRB because the applicant failed to provide sufficient information to support her claim. P.R. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2I am asked to determine the following:

a. Are P.R.’s injuries predominantly minor as defined in s. 3 of the Schedule, and therefore subject to treatment within the $3,500.00 limit and in the MIG?

b. Is P.R. entitled to an IRB in the weekly amount of $215.00 from August 29, 2017 ongoing?

c. Is the medical benefit in the amount of $1,446.90 for physiotherapy services, recommended by Scarborough Rehabilitation Centre in a treatment plan (OCF-18) dated October 4, 2017, reasonable and necessary?

d. Is the cost of examination expense in the amount of $2,486.00 for a physiatry assessment, recommended by David Huang, dated July 13, 2020, denied on July 22, 2020, reasonable and necessary?

e. Are the cost of examination expenses recommended by Scarborough Rehabilitation Centre, reasonable and necessary, as follows:

i. $2,032.69 for a psychological assessment in an OCF-18 dated August 18, 2017;

ii. $1,592.41 for an occupational therapy assessment in an OCF-18 dated August 18, 2017; and

iii. $2,289.85 for a chronic pain assessment in an OCF-18 dated October 31, 2017?

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

g. Is P.R. entitled to interest on any overdue payment of benefits?

FINDINGS

3P.R. has demonstrated that her ongoing pain warrants removal from the MIG. As such, she is entitled to payment for the following:

a. OCF-18 dated October 4, 2017 in the amount of $1,446.90 for physiotherapy services;

b. OCF-18 dated July 13, 2020 in the amount of $2,486.00 for a physiatry assessment;

c. OCF-18 dated August 18, 2017 in the amount of $1,592.41 for an occupational therapy assessment; and

d. OCF-18 dated October 31, 2017 in the amount of $2,289.85 for a chronic pain assessment.

4P.R. is entitled to IRBs for the period of August 29, 2017 to April 3, 2019.

5Interest is payable on the outstanding payments of benefits.

6P.R. is not entitled to the following:

a. OCF-18 dated August 18, 2017 in the amount of $2,032.69 for a psychological assessment;

b. IRBs for the period of April 4, 2019 and ongoing; and

c. An award.

ANALYSIS

Applicability of the MIG

7Section 18(1) of the Schedule sets out the provisions regarding medical and rehabilitation benefits being limited to $3,500.00 if an insured sustains impairments that are predominantly minor in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” It is possible for an insured to be taken out of the MIG if they can establish that their accident-related injuries fall outside the MIG or, pursuant to s. 18(2), they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they remain within the confines of the MIG. The Tribunal has determined that chronic pain with functional impairment or a psychological condition may also justify removal from the MIG. In all cases, the applicant bears the burden of proof. For the reasons to follow, I find that P.R. has met her burden.

8P.R. submits that she continues to experience back pain and right shoulder pain as a result of the accident that is extensively documented in her medical file. She relies on the clinical notes of her family physician, Dr. O’Brien, the chronic pain report from Dr. Chen dated September 21, 2020 and the treatment records of Appletree Medical Group in support of her position that her accident-related injuries continue to affect her activities of daily living and require removal from the MIG.

9In response, Aviva submits that P.R. suffered predominantly minor injuries as a result of the accident and did not see Dr. O’Brien until April 24, 2017, approximately 20 days post-accident, that his diagnosis was cervical and lumbar whiplash with bilateral shoulder strain, that the diagnostic imaging reports noted “mild degenerative changes” in the lumbar region and no signs of any degeneration in the cervical spine. It asserts that P.R. sought more medical attention pre-accident when he accessed OHIP-funded medical care on 47 occasions in the year prior to the accident and only four times post-accident by August 2019. Further, Aviva points to the October 5, 2017 OCF-3 from Dr. O’Brien in which the injuries noted fall within the definition of predominantly minor, which it posits is supported by the report from Dr. Chen and the limited records from Appletree. In support of its position, Aviva relies on the February 1, 2018 s. 44 insurer examination (IE) report of general physician, Dr. Gelman, who noted that P.R. may have suffered sprain and strain injuries of her cervical and lumbar spine, which have since healed. Dr. Gelman concluded that no further facility-based treatment was reasonable and necessary.

10The records of Dr. O’Brien and Appletree note numerous visits that document back and right shoulder pain. Tears, albeit partial, were noted in her right shoulder, for which she presented with on numerous occasions to Dr. O’Brien and received ongoing treatment for from Appletree. There are several off-work notes commissioned due to disability² noting that P.R. is unable to return to work and would require time off due to pain as a result of the accident. P.R. has presented with consistent pain complaints over nearly three years post-accident, and was recommended for, and received, injections for her pain. She has incurred expenses for various treatment modalities, which I find to be indicative of her need for ongoing treatment for pain affecting her daily activities.

11P.R. has presented on several occasions to Dr. O’Brien complaining of ongoing right shoulder and low back pain. In the pre-accident records, there are no records of any right shoulder pain, and sporadic complaints of back-related pain. Post-accident, there are regular presentations between 2017 and 2020, wherein Dr. O’Brien notes right shoulder and low back pain and indicates that the pain has been ongoing or worsened since the accident. In addition, the treatment records of Appletree also note consistent pain during the course of treatment from 2017 ongoing.

12In the report, Dr. Chen noted P.R.’s significantly reduced range of motion limitations due to pain in her cervical and lumbar spine and right shoulder. This is consistent with the medical records of Dr. O’Brien and Appletree Medical. Dr. Chen went on to note that P.R. is limited in her ability to lift heavy materials and operate heavy equipment to clean. Dr. Chen opined that she is limited with respect to physically demanding work, prolonged standing or walking, heavy lifting and carrying, and repetitive or prolonged bending and twisting. In addition, Dr. Chen noted that P.R. is significantly limited in terms of vocational options available to her.

13P.R.’s pain complaints are consistently documented to be ongoing as a result of the accident. In addition, Dr. Chen considered the impact of her pain symptomatology on her ability to work as well as her limitations of potential post-accident employment prospects.

14As such, I find on a balance of probabilities that P.R. has established that her accident-related pain symptoms warrant removal from and treatment beyond the MIG.

OCF-18 dated October 4, 2017 in the amount of $1,446.90 for physiotherapy services

OCF-18 dated July 13, 2020 in the amount of $2,486.00 for a physiatry assessment

OCF-18 dated August 18, 2017 in the amount of $1,592.41 for an occupational therapy assessment

OCF-18 dated October 31, 2017 in the amount of $2,289.85 for a chronic pain assessment

15The parties relied on the same evidence in support of their respective positions for these OCF-18s, as such, I will address the issues together.

16On the evidence, I find that P.R. is entitled to receive funding for the OCF-18s as they are reasonable and necessary.

17Similar to the facts set out above in paragraphs 10-12, P.R. relies on the same evidence in support of her claim for the disputed OCF-18s. The pre-accident medical records show no reporting of any right shoulder pain, and sporadic complaints of back-related pain. Post-accident, P.R. frequently presented to Dr. O’Brien, between 2017 and 2020, with complaints of right shoulder and low back pain, indicating ongoing or worsened pain since the accident. Appletree Medical records also note consistent post-accident pain complaints.

18Aviva relies on the February 1, 2018 s. 44 IE of Dr. Gelman, who reported that P.R. was self-limiting, and pain focussed with exaggerated pain reactions. Aviva questions P.R.’s credibility as she reported that she had fractured her shoulder and lower back, which has not been proven or diagnosed in any medical record. Dr. Gelman opined that there was no evidence of ongoing physical pathology and concluded that the OCF-18 was not reasonable and necessary. I note that P.R. reported to Dr. Gelman that despite receiving massage therapy, electrotherapy and heat applications, the treatment is not helpful.

19I prefer the totality of the medical evidence that P.R. relies on to establish that the OCF-18 is reasonable and necessary. The contemporaneous records from Dr. O’Brien, the report from Dr. Chen, a chronic pain specialist, and the treatment records from Appletree are persuasive in that the active treatment recommended in the OCF-18 would provide more benefit than the passive treatment that P.R. indicated to Dr. Gelman was not helpful.

20The Tribunal has found that when supported by objective, contemporaneous medical evidence, pain relief is a reasonable goal of treatment, and can justify removal from the MIG and the need for ongoing entitlement to, and funding for, continued treatment. To determine whether an OCF-18 is reasonable and necessary, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

21Regarding the assessments, they are conducted to determine if an applicant has a specific condition or meets a specific threshold. In order for an assessment to be reasonable and necessary, P.R. still has the onus, on a balance of probabilities, to establish entitlement to an assessment.

22Having determined that she is entitled to the OCF-18 for physiotherapy, it is reasonable that she has a condition that would justify funding for a physiatry assessment. Given her physical pain complaints, and the medical evidence considered above, I find that a physiatry assessment is reasonable to determine the extent of her accident-related pain symptomatology. Further, establishing what best forms of treatment would provide her with the most effective long-term pain relief and allow her to resume her pre-accident level of engagement in her activities of daily living.

23The medical evidence shows that she has not been able to return to her pre-accident employment or engage in a substantial amount of daily activities. This is evidenced by the off-work notes indicating she requires to be off from work for weeks and/or months at a time due to accident-related pain. P.R. indicated that her children have taken over the majority of the household duties that she was able to fully engage in pre-accident. Her shoulder limitations and back pain have been documented by various treatment practitioners and a chronic pain specialist, all of whom have connected her impairments to the accident. Her limitations are noted to impact her ability to work and maintain her home. Therefore, I find it reasonable that an occupational assessment is required to determine the extent of her abilities and limitations as it pertains to daily function.

24Regarding the chronic pain assessment, P.R.’s pain complaints have been documented by Dr. O’Brien for at least three years. It is well-reported that her back pain, which was noted to exist before the accident, was exacerbated by and has worsened since the accident. Her documented shoulder tears have also been noted to cause her functional limitations impacting her ability to engage in her pre-accident employment.

25Given that she has regularly sought treatment from her family physician, received injections for her accident-related pain, has been prescribed various medications to help with pain relief, is unable to return to her pre-accident employment, and relies on her children to perform household duties, I am satisfied that P.R. suffers from a condition which warrants further investigation under the premise of a chronic pain assessment. It is reasonable to conclude that her ongoing pain complaints, which are noted to have worsened as a result of the accident, are indicative of a condition that may be determined to be chronic.

26For the reasons set out above, P.R. has established, on a balance of probabilities, entitlement to the OCF-18s in order to treat her accident-related pain complaints.

Entitlement to IRBs within 104 weeks of the accident

27Section 5(1)1.i of the Schedule sets out the test for entitlement to an IRB. In order to receive payment, the insured person must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. P.R. maintains the burden of proving, on a balance of probabilities, that she meets the test. I find she has met her burden.

28The parties agree that P.R. worked for Waterford Services Inc. as cleaner for approximately six years, working 25 hours per week. P.R. submits that as a result of the accident, her shoulder injury, back pain and other accident-related injuries prevents her from engaging in her pre-accident employment. She purports that she is unable to do any heavy lifting, use heavy machines, and her pain is worsened through prolonged walking, bending and lifting.

29P.R. relies on four OCF-3s³ which note her complete inability to live a normal life with a duration of 5-8 weeks (Dr. Arabkhari) to more than 12 weeks (Dr. O’Brien). She also relies on the functional abilities evaluation by s. 44 IE assessor, Dr. Kominek, who noted spinal ranges of motion were approximately 50-60% of normal for cervical and lumbar spine. Dr. Kominek opined that a minimum of 25th percentile should be demonstrated for her to safely perform simulated lift testing. P.R. demonstrated 10th/11th percentile for arm and leg lift testing.

30Aviva relies on the IE report from Dr. Gelman in support of its denial of entitlement to the IRB. Dr. Gelman reviewed various medical documents including the report from Dr. Komenik, the April 6, 2017 OCF-3 and a psychological report from Dr. Moshiri. Dr. Gelman opined that it was difficult to get a true representation of her abilities, and P.R.’s presentation was not consistent with any objective musculoskeletal accident-related pathology that he could relate to the accident. Dr. Gelman concluded that he found no objective indication from a musculoskeletal perspective that P.R. suffers from a substantial inability to perform the essential tasks of her employment.

31I prefer the medical evidence relied on by P.R. and place more weight on the report of Dr. Chen and the report of IE assessor Dr. Kominek. I have previously considered the other medical evidence of P.R.’s injuries, so, I refrain from repeating it here, however, I am persuaded by the evidence from Dr. Chen and Dr. Kominek, that supports P.R.’s medical documentation.

32Both Drs. Chen and Kominek considered the impact of P.R. injuries, specifically in terms of her ability to engage in her pre-accident employment. Dr. Chen, as previously noted, opined that P.R. has significant limitations with her range of motion, lifting, bending and prolonged activities. Dr. Kominek’s report also supports that P.R. has substantial range of motion limitations, that directly impact her ability to engage in her pre-accident employment.

33In addition, Drs. Chen and Kominek considered the factors that would necessitate a return to pre-accident employment, and through their respective specialties, provided me with convincing evidence that a return to her pre-accident employment is not likely, given her functional limitations.

34I am further persuaded by the OCF-3s about the significance of P.R.’s accident-related impairments and the impact on her ability to engage in her pre-accident employment.

35For these reasons I find that P.R. has proven on a balance of probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment as a cleaner as a result of the accident. As a result, P.R. is entitled to IRBs in the amount of $215.00 weekly from August 29, 2017 to April 3, 2019.

Entitlement to IRBs beyond 104 weeks of the accident

36Section 6(2)b of the Schedule provides that, in order to be eligible to receive IRBs beyond the first 104 weeks of disability, an insured person must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience.

37P.R. bears the onus to prove on a balance of probabilities that she is entitled to IRBs for the period of April 4, 2019 ongoing.

Employment for which P.R. is reasonably suited

38On the evidence, P.R. immigrated to Canada with the equivalent of a Grade 10 education, as well as participating in basic ESL courses. P.R. has an elementary proficiency in English and requires an interpreter and translator. With limited English proficiency, I find that there are little, if any, suitable employment options for P.R. where fluency in English is a requirement.

Complete inability to engage in any reasonably suitable employment

39P.R. did not specifically address post-104 eligibility for IRBs, only claiming ongoing IRBs. While I appreciate that the medical records discussed previously are relied on to establish that she is unable to return to her pre-accident work, more is required to satisfy the test of “complete inability”.

40There is no engagement with the test of complete inability. I am not directed to any evidence that P.R. has relied on any objective evidence that supports she suffers a complete inability. The main evidence she relies on is Dr. Chen’s report, which I also am not persuaded confirms she has a complete inability. While I appreciate she continues to be off work at the commencement of this proceeding, it is simply not enough to have not attempted a return to pre-accident employment or any employment, there must be objective evidence that supports a complete inability.

41While I appreciate the medical evidence that talks about her ability to engage in her pre-accident employment, there is no evidence that considers what other potential options may be available to her. P.R. does not point to any report or other evidence that considers her ability to engage in any other ‘light duty’ work, as her pre-accident employment was determined to be.

42For these reasons, P.R. is not entitled to IRBs for the period of April 4, 2019 ongoing as she has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which she is reasonably suited by education, training or experience during this period.

OCF-18 dated August 18, 2017 in the amount of $2,032.69 for a psychological assessment

43P.R. has not demonstrated that the OCF-18 is reasonable and necessary.

44On the evidence, there are no psychological complaints in Dr. O’Brien’s records or the records of Appletree Medical. I note that P.R. reported to Dr. Moshiri, the s. 44 psychologist, that “I am sure if I got rid of the physical pain, I would go to work and mentally and emotionally, I would be alright. I just need more physical treatment and not psychological….” It is apparent to me, that P.R. did not subjectively feel that the accident caused her significant psychological impairment.

45Dr. Moshiri’s opinion that the sub-clinical findings as it relates to an adjustment disorder is indicative of the findings not being of a severity to justify clinical illness. I agree with Aviva that Dr. Moshiri’s conclusion that P.R. did not meet the diagnostic criteria for any objective illness under the DSM-V, is indicative that she did not suffer any significant accident-related impairment.

46P.R. has not pointed me to any compelling evidence that she suffered a psychological impairment that would require further investigation by way of an assessment. Her own self-reporting, the limited evidence of any psychological symptomatology from the accident, and her failure to establish that the goals of the OCF-18 are reasonable, that the goals are being met to a reasonable degree, and the cost of the OCF-18 is reasonable, fail to satisfy the test of entitlement to the OCF-18. Consequently, I find that on a balance of probabilities, P.R. has failed to establish that the OCF-18 is reasonable and necessary.

AWARD

47P.R. sought an award under s. 10 of O. Reg. 664. She submits that Aviva repeatedly failed to provide its assessors with the MRI and ultrasound reports that it requested. Further, that it failed to recognize any of the diagnoses of the treating physicians or Dr. Chen, only relying on the opinions of its assessors. In accordance with s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insure unreasonably withheld or delayed payment of benefits.

48Under the circumstances, I find that an award is not appropriate. I disagree that Aviva unreasonably withheld or delayed payment of any benefits. I found that P.R. was entitled to some benefits, finding that she met her burden, not that Aviva failed to do its due diligence. Aviva rightly determined that there were some benefits that were not payable, and I agreed with their position.

49In determining the type of conduct for which an award may be appropriate, it is well-settled that the standard is set out in the FSCO case Plowright v. Wellington Insurance Co.⁴ The conduct in Plowright was found to be an “immoderate, imprudent, inflexible, and excessive” approach, as the arbitrator found the insurer’s decision-making to be “disturbing” and “puzzling.” The award was less than 10% of the total benefits.

50In order to attract a s. 10 award, the insurer’s conduct must rise to the level described in Plowright—it must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that Aviva’s handling of the file does not meet the high threshold of behaviour that would warrant an award. P.R. has not demonstrated that Aviva’s conduct met the test set out in Plowright.

51Accordingly, P.R. is not entitled to an award.

CONCLUSION

52P.R. suffered injuries that warrant removal from and treatment beyond the MIG. Accordingly, she is entitled to payment for the following:

a. OCF-18 dated October 4, 2017 in the amount of $1,446.90 for physiotherapy services;

b. OCF-18 dated July 13, 2020 in the amount of $2,486.00 for a physiatry assessment;

c. OCF-18 dated August 18, 2017 in the amount of $1,592.41 for an occupational therapy assessment; and

d. OCF-18 dated October 31, 2017 in the amount of $2,289.85 for a chronic pain assessment.

53P.R. is entitled to IRBs for the period of August 29, 2017 to April 3, 2019.

54Interest is payable on outstanding payments of benefits.

55P.R. is not entitled to the following:

e. OCF-18 dated August 18, 2017 in the amount of $2,032.69 for a psychological assessment;

f. IRBs for the period of April 4, 2019 ongoing; and

g. An award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Dr. O’Brien – April 24, 2017, August 23, 2017, December 15, 2017; Dr. Arabkhari – May 29, 2017, July 24, 2017, September 21, 2017, November 20, 2017; Dr. Thinakaran – April 10, 2017; Dr. Shanmugarajah – January 2020
3. 3Dr. Arabkhari, Chiropractor – OCF-3s dated April 6, 2017, June 22, 2017, July 24, 2017; Dr. O’Brien – OCF-3 dated October 5, 2017.
4. 41993 OIC File No.: A-003985 (FSCO) [“Plowright”]