Brown v. Aviva General Insurance, 2022 CanLII 53797

Licence Appeal Tribunal

Citation: Brown v. Aviva General Insurance, 2022 ONLAT 20-008454/AABS

Licence Appeal Tribunal File Number: 20-008454/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:

Lesleon Brown

Applicant

and

Aviva General Insurance

Respondent

AMENDED DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Robert Lamot, Counsel

For the Respondent:

Vicky Chan, Counsel

Gina Nardella, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Lesleon Brown ("the applicant") was involved in an automobile accident on December 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹ She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") after her claims for benefits were denied by Aviva General Insurance ("respondent").

2The applicant was an operator of a vehicle that was struck by another vehicle that lost control. The airbags deployed but she did not lose consciousness as a result of the impact from the accident. The applicant was transported to Brampton Civic Hospital via ambulance. At that time, she presented with burning in her chest and headaches.² The applicant left Brampton Civic Hospital without being seen by the emergency physician.

3The applicant submits that all the disputed treatment plans are reasonable and necessary and that she is entitled to an award. The respondent disagrees with this.

ISSUES

4The following are the issues to be determined, as per the Case Conference Order, released on March 11, 2021:

1. Is the applicant entitled to the cost of an examination in the amount of $1,850.00 for a Functional Cognitive Test Battery recommended by Ontario Independent Assessment Centre, as per the OCF-18 dated August 18, 2018?

2. Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a Chronic Pain Assessment recommended by Ontario Independent Assessment Centre, as per the OCF-18 dated October 29, 2018?

3. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5The applicant is entitled to the cost of the chronic pain assessment and interest which is payable in accordance with s.51 of the Schedule.

6The applicant is not entitled to the cost of the functional cognitive test battery assessment or interest for the cost of this examination.

7Further, the applicant is not entitled to an award pursuant to Regulation 664.

ANALYSIS

Are the treatment plans Reasonable and Necessary?

8I find that the cost of the chronic pain assessment is reasonable but not the cost for the functional cognitive test battery assessment, for the reasons that will be discussed below.

9Sections 14 and 15 of the Schedule provide that the insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the evidentiary onus of proving on a balance of probabilities that the benefits she seeks are reasonable and necessary and are related to the accident. To do so, the applicant shall demonstrate that the goals as identified are reasonable, that the goals are being met to a reasonable degree, and the overall costs of achieving the goals of the assessment are reasonable.³

10The respondent's position is that the applicant has failed to demonstrate that the cost of the examinations is related to the impairments sustained from this accident as she had pre-existing: chronic pain syndrome, chronic myofascial pain, chronic neck pain, chronic back pain with myofascial etiology, shoulder pain, partial tear in the right rotator cuff, degenerative disc disease in her neck and lower back, and hip issues. Further, the applicant was seeking medical attention from her family physician, Dr. G. Li and Karmy Chronic Pain Medical Clinic for her pre-existing conditions. The respondent submits that the applicant has sustained only soft tissue injuries from this accident as she denied neck and back pain immediately after the accident⁴ and Dr. Li completed an OCF-3 which only diagnosed her with myalgia and cervical strain from this accident.⁵ I also note that the OCF-3 completed by Dr. Li indicated that the applicant did not have pre-existing disease, condition or injury that affected her employment, activities of daily living and housekeeping tasks.⁶ I place significant weight on this because Dr. Li concluded that as a result of her accident-related impairments, she was impaired from doing these activities for 9-12 weeks.

11The applicant submits that this accident materially contributed to her physical injuries and that she sustained: neck pain, shoulder pain, wrist pain, upper back pain, lower back pain, and knee pain. I disagree with the applicant that she sustained any injuries to her right knee as a result of this accident. The first time, the applicant complained of right knee pain was on July 9, 2020 to Dr. Li.⁷ Dr. Li noted that the right knee pain had gradually started in May of 2020, and he did not conclude that this pain was a result of the accident.⁸ The applicant has failed to demonstrate on a balance of probabilities that there is a nexus between her right knee injury and the accident.

12It is well settled that the default test for causation to determine benefits remains the "but for" test except in exceptional circumstances. The applicant referred to a number of non-binding authorities from FSCO which indicated that material contribution is the correct test for causation. I disagree with this, as the primary causation test is the "but for" test, and the material contribution test is applicable in limited circumstances.⁹ The applicant has failed to demonstrate that her matter is exceptional, and the material contribution test is applicable. However, the applicant does not need to demonstrate that the accident is the sole cause for her injuries, but rather the accident was a necessary cause.¹⁰ I find that the applicant has demonstrated that she exacerbated her pre-existing chronic pain as a necessary cause of this accident for the reasons outlined below.

13I acknowledge the pre-accident records of Dr. Li indicate that the applicant: had ongoing chronic pain; limitations with housekeeping tasks such as cleaning, sweeping, vacuuming, and grocery shopping; was undergoing treatment, such as massage and physiotherapy; and that chronic pain injections were recommended. However, the pre-accident records of Dr. Li also demonstrate that her neck pain was improving on April 25, 2015.¹¹ Also, the last pre-accident entry by Dr. Li was on January 17, 2017. Dr. Li indicated that the applicant had back pain, which was worst with bending, however there are no further complaints after that date to Dr. Li.¹² The records of Dr. Li demonstrate that the applicant's pre-existing chronic pain syndrome was aggravated by this accident, as she required a cane post accident and underwent trigger point and nerve block injections post-accident. The clinical notes demonstrate that the applicant only attended Dr. Karmy's office once pre-accident wherein trigger point and nerve block injections were recommended.¹³ More importantly, the applicant did not proceed with these injections until after the accident, when she was referred back to Dr. Karmy's office by Dr. Li.¹⁴ This demonstrates that the applicant's pre-existing conditions were exacerbated by this accident, and she underwent chronic pain injections as a result.

14On April 29, 2019, Dr. Li opined that the applicant had myofascial neck and lower chronic pain syndrome which were caused by the injuries sustained in this accident.¹⁵ I place significant weight on this, as Dr. Li is the applicant's family physician and was fully aware of her pre-accident medical history and he still opined that the applicant had chronic pain syndrome following this accident. On June 6, 2019, Dr. M. Bajzath, physician from Karmy Chronic Pain Medical Clinic, met with the applicant and was aware of the applicant's pre-accident medical history. In particular, Dr. Bajzath noted that the applicant had ongoing pain since the early 2000s and that after this accident, the applicant's pain had significantly increased post-accident and her accident-related pain had minimally improved to date.¹⁶

Issue 1 – Functional Cognitive Test Battery Assessment

15Overall, I find that the applicant has failed to prove on a balance of probabilities that the cost for a functional cognitive test battery assessment is reasonable and necessary.

16On August 18, 2018, Mr. J. Amchislavsky, occupational therapist, submitted the OCF-18, the goals of which were: to return to her activities of normal living, to return to modified work activities, and assess for specific functional cognitive deficits.¹⁷ The OCF-18 further stated that this assessment was required to assess the impact of her cognitive deficits to her activities of daily living, personal care, housekeeping and homemaking, and vocational tasks.¹⁸

17The applicant has failed to demonstrate that she sustained a cognitive deficit as a result of this accident that are unrelated to her psychological impairments. Further, she has failed to address why the recommended cognitive behavioral sessions are insufficient to address any of her ongoing cognitive impairments. I am not persuaded by the psychological assessment of Mr. M. Chiodo, psychological associate, dated August 17, 2018.¹⁹ Mr. Chiodo did not recommend the cost for a functional cognitive test battery. The applicant clearly advised that her diminished focus and concentration were as a result of physical pain.²⁰ She advised that her sleeping issues, indecisiveness and forgetfulness are as a result of her psychological impairments and not cognitive deficits caused by a neurological injury. She further advised that any limitations with respect to her activities of daily living were a result of physical impairments and not cognitive impairments.²¹ Moreover, the applicant has failed to demonstrate that this cost for examination is reasonable and necessary, when Mr. Chiodo recommended a cognitive behavioral treatment program which would address her potential cognitive deficits.²²

18I prefer the psychological assessment of Dr. A. Marino, psychologist, dated October 17, 2018. Dr. Marino opined that there was no indication that the applicant experienced post-concussive syndrome or a head injury.²³ Further, he opined that the assessment for cognitive functioning was premature as the applicant's concentration concerns were being managed by her treating psychologist.²⁴ This is also supported by Dr. M. Friedlander, chronic pain consultant, who concluded that the applicant's headaches were most likely cervicogenic in nature and also likely a tension headache component.²⁵

19Dr. Marino, conducted a further report, dated September 16, 2020, upon receipt of additional documentation from the applicant. The applicant advised that she had concentration issues at work, however this had improved and she failed to demonstrate that it was a result of cognitive deficits unrelated to her psychological impairments.²⁶ In fact, the applicant denied any significant functional impairment around concentration and her current employment.²⁷ As such, Dr. Marino concluded once again that this OCF-18 was not reasonable and necessary, as there was no evidence that the applicant sustained a brain injury or that she currently had a functional disability from a cognitive perspective.²⁸ Dr. Marino opined that any of her concentration difficulties are related to her ongoing pain and psychological impairments.²⁹ As such, Dr. Marino recommended an additional 8 sessions of cognitive behavior therapy to address her ongoing adjustment related difficulties.³⁰

20Dr. Marino, conducted a further addendum report, dated April 20, 2021 to address the additional documentation received by the applicant. Dr. Marino maintained his opinion that the applicant did not present with any significant cognitive impairment which required a cognitive assessment.³¹ I agree with Dr. Marino as the applicant has failed to demonstrate on a balance of probabilities that she sustained a cognitive deficit as a result of this accident that are unrelated to her psychological impairments. The applicant has also failed to address why her reported cognitive deficits cannot otherwise be addressed through the recommended cognitive behavioural therapy sessions.

Issue 2 – Chronic Pain Assessment

21I find that the applicant has demonstrated on a balance of probabilities that the cost for a chronic pain assessment is reasonable and necessary based on the records of Dr. Li and Dr. Bajzath and the assessments of Dr. Friedlander and Dr. Wilderman.

22On October 29, 2018, Dr. I. Wilderman, physician, and Ms. S. Narmin, registered nurse, submitted the OCF-18, the goals of which were: pain reduction, increased strength, and to return to her activities of normal living.³² $2,000.00 was proposed for the cost of the chronic pain assessment and $200.00 for the completion of the OCF-18, which is reasonable and in keeping with the industry standard.³³ The purpose of the assessment was to determine how the applicant's chronic pain was having an impact on her life and what kind of treatment was available to assess her impairments.³⁴

23I am not persuaded by the s.44 physician assessment report, by Dr. P. Tepperman, dated December 11, 2018. The applicant advised Dr. Tepperman that she had difficulties with performing her personal care tasks and that she missed some time from work and returned on a part time basis for a period of time.³⁵ During the examination, the applicant advised that she had low back pain, neck pain, shoulder pain, and headaches.³⁶ In particular, her low back was aggravated by sitting, standing, and bending. Further, Dr. Tepperman, objectively noted that the palpation of her paraspinal musculature revealed tenderness to light touch in the right trapezius and paralumbar musculature.³⁷ As such, I am not persuaded by Dr. Tepperman's opinion that there was no substantial evidence of a musculoskeletal impairment as a result of the accident.³⁸ I also disagree that the applicant only sustained myofascial strain of her cervical and lumbar paraspinal musculature, post-traumatic headaches and left knee strain.³⁹ I am also not persuaded by the addendum reports of Dr. Tepperman, dated August 21, 2020⁴⁰ and April 19, 2021,⁴¹ as it was clear that the applicant had ongoing physical impairments from her chronic pain that impacted her activities of daily living. I also place little weight on Dr. Marino's opinion that the applicant does not have chronic pain syndrome as a result of the accident because she had returned to most of her activities of daily living.⁴² The applicant advised Dr. Marino that her ongoing pain and concentration difficulties interfered with her pre-accident work performance and her salary was reduced.⁴³ The applicant further advised that as a result of the reduced salary, she started a new job after the accident.⁴⁴

24I prefer the evidence of the applicant over the respondent. The records of Dr. Li show that she sought consistent medical attention for her accident-related injuries. On December 14, 2017, the applicant advised Dr. Li that she had ongoing headaches, sore arms, leg pain, neck pain, shoulder pain, back pain, and right palm pain.⁴⁵ Further, she had difficulty with sleeping due to aching.⁴⁶ Moreover, Dr. Li objectively noted that she had limited range of motion in her limbs and a slow gait.⁴⁷ On August 18, 2018, Dr. Li addressed the injuries sustained from this accident and concluded that the applicant suffered from chronic pain syndrome.⁴⁸ On April 29, 2019, Dr. Li opined that the applicant had myofascial neck and lower chronic pain syndrome which were caused by the injuries sustained in this accident.⁴⁹ Moreover, Dr. Li opined that the applicant's slip and fall in February of 2018 did not impact her accident-related impairments⁵⁰ Dr. Li further advised that the applicant had ongoing limitations in her routine, hobbies and employment activities from this accident as a result of her chronic pain syndrome and psychological symptoms, and should seek treatment from a mental health professional for this.⁵¹ I acknowledge that Dr. Li stated that the applicant was independent with all aspects of her basic activities of daily living, however this does not detract from the fact that he also noted that she had limitations with her hobbies, employment and routine.⁵² On May 11, 2019, Dr. Li opined that the applicant had ongoing chronic myofascial neck pain.⁵³ On June 28, 2019, Dr. Li noted that the applicant continued to have chronic pain, was using a cane and had started trigger point injections and nerve block injections.⁵⁴

25Following this accident, the applicant was referred to Dr. Karmy's chronic pain clinic for a chronic pain program by Dr. Li. I place significant weight on this referral by Dr. Li because it demonstrates that the chronic pain assessment is reasonable, and her own family physician referred her to a chronic pain program to address and treat her chronic condition. On June 6, 2019, Dr. Bajzath met with the applicant. Dr. Bajzath was aware of the applicant's pre-accident medical history. The applicant advised Dr. Bajzath that she had neck pain, shoulder pain, and low back pain which was aggravated by prolonged sitting, prolonged walking, and prolonged lying down.⁵⁵ Dr. Bajzath's physical examination of the applicant revealed: decreased range of motion in her back; tenderness diffusely over her lower back and buttock; FABER positive for posterior pain bilaterally; SI compression test positive for posterior pain bilaterally; decreased range of motion in her neck; and tenderness over her shoulders.⁵⁶ As a result, Dr. Bajzath opined that the applicant had a history of chronic neck, shoulder and back pain post-accident.⁵⁷ As a result, Dr. Bajzath discussed several options to treat the applicant's chronic pain.⁵⁸

26I am also persuaded by Dr. Friedlander's report, dated January 12, 2021. The applicant advised Dr. Friedlander that she had restrictions with her housekeeping tasks, and no longer took part in leisure activities like hiking due to pain.⁵⁹ In particular, Dr. Friedlander noted that the applicant's lower back pain was aggravated by physical activities or standing for long periods of time.⁶⁰ As such, I find that the chronic pain assessment is reasonable and necessary because the applicant has an ongoing chronic pain condition which is impeding her activities of daily living. As a result of the accident, Dr. Friedlander diagnosed the applicant with: cervical vertebral column sprain/strain causing aggravation of chronic musculoskeletal neck and shoulder blade pain; lumbar vertebral column sprain/strain causing aggravation of pre-existing mechanical and myofascial pain; aggravation of chronic post traumatic headaches; aggravation of sleep disorder associated with chronic pain; psychological impairments; and a chronic pain syndrome.⁶¹ Further, Dr. Friedlander opined that despite the applicant's pre-accident history, this accident significantly aggravated her pre-accident symptoms.⁶² As a result, Dr. Friedlander recommended an assessment with a chronic pain interventional specialist to provide pain treatment modalities for her chronic pain syndrome.⁶³

27It appears that the applicant incurred the cost of the chronic pain assessment when Dr. Wilderman conducted an independent medical evaluation report, dated January 20, 2021. This report further demonstrates why the chronic pain assessment was reasonable and necessary as it allowed Dr. Wilderman, a physician, to assess the applicant's ongoing chronic pain condition, the impact on her daily activities and how to address these concerns. Dr. Wilderman made a number of recommendations to treat the applicant's chronic pain which included: participation in a multidisciplinary chronic pain treatment program; active chiropractic treatment; physiotherapy; active exercises; aqua-fit program; anti-inflammatory medications; and medical cannabis.⁶⁴

Interest

28Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the chronic pain assessment only.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

29The applicant did not provide any particulars on why she is entitled to an award. It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order for an award to be awarded, the respondent's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.

30Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

31Although, I have found the applicant is entitled to the chronic pain assessment, I do not find the respondent's reliance on the IE report of Dr. Tepperman to amount to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find the applicant is not entitled to an award.

ORDER

32For the reasons set above, I find that the applicant is entitled to $2,200.00 for the cost of the chronic pain assessment with interest payable in accordance with the Schedule. However, the applicant is not entitled to the cost of the functional cognitive battery test assessment nor an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Respondent's Submissions, Tab 6, Brampton Civic Hospital Records.
3. 317-001007 v. Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT).
4. 4Respondent's Submissions, Tab 6, Brampton Civic Hospital Records.
5. 5Respondent's Submissions, Tab 7, OCF-3 dated December 16, 2017 from Dr. Li.
6. 6Ibid.
7. 7Applicant's Submissions, Tab B, Clinical Notes and Records of Dr. Li.
8. 8Ibid.
9. 9Sabadash v. State Farm, et al. 2019 ONSC 1121.
10. 10Ibid.
11. 11Respondent' Submissions, Tab 5, Clinical Notes and Records of Dr. Li.
12. 12Ibid.
13. 13Respondent's Submissions, Tab 4, Clinical Notes and Records of Karmy Chronic Pain Medical Clinic.
14. 14Respondent' Submissions, Tab 5, Clinical Notes and Records of Dr. Li.
15. 15Ibid.
16. 16Ibid.
17. 17Applicant's Submissions, Tab G, OCF-18 dated August 18, 2018.
18. 18Ibid.
19. 19Applicant's Submissions, Tab D, Psychological Assessment Report.
20. 20Ibid.
21. 21Ibid.
22. 22Ibid.
23. 23Respondent's Submissions, Tab 10, IE Psychology Assessment Report dated October 17, 2018.
24. 24Ibid.
25. 25Applicant's Submissions, Tab F, Medical Report of Dr. Friedlander, dated January 12, 2021.
26. 26Respondent's Submissions, Tab 12, IE Psychological Assessment Report, dated September 16, 2020.
27. 27Ibid.
28. 28Ibid.
29. 29Ibid.
30. 30Ibid.
31. 31Respondent's Submissions, Tab 13, IE Psychological Assessment Report, dated April 20, 2021.
32. 32Applicant's Submissions, Tab H, OCF-18 dated October 29, 2018.
33. 33Ibid.
34. 34Ibid.
35. 35Respondent's Submissions, Tab 15, IE Report of Dr. Tepperman, dated December 11, 2018.
36. 36Ibid.
37. 37Ibid.
38. 38Ibid.
39. 39Ibid.
40. 40Respondent's Submissions, Tab 17, IE Addendum Report of Dr. Tepperman, dated August 21, 2020.
41. 41Respondent's Submissions, Tab 18, IE Addendum Report of Dr. Tepperman, dated April 19, 2021.
42. 42Respondent's Submissions, Tab 13, IE Psychological Addendum Report, dated April 20, 2021.
43. 43Respondent's Submissions, Tab 12, IE Psychological Assessment Report, dated September 16, 2020
44. 44Ibid.
45. 45Respondent' Submissions, Tab 5, Clinical Notes and Records of Dr. Li.
46. 46Ibid.
47. 47Ibid.
48. 48Ibid.
49. 49Ibid.
50. 50Ibid.
51. 51Ibid.
52. 52Ibid.
53. 53Ibid.
54. 54Ibid.
55. 55Ibid.
56. 56Ibid.
57. 57Ibid.
58. 58Ibid.
59. 59Applicant's Submissions, Tab F, Medical Report of Dr. Friedlander, dated January 12, 2021.
60. 60Ibid.
61. 61Ibid.
62. 62Ibid.
63. 63Ibid.
64. 64Applicant's Submissions, Tab I, Dr. Wilderman's Report dated January 20, 2021.