Francis v. Aviva Insurance Canada, 2022 CanLII 78776

Licence Appeal Tribunal

Citation: Francis v. Aviva Insurance Canada, 2022 ONLAT 20-013119/AABS

Licence Appeal Tribunal File Number: 20-013119/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:

Natasha Francis Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Lyndra Griffith

APPEARANCES:

For the Applicant: Shamim Fattahi, Counsel

For the Respondent: Christina Chiu, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant, Natasha Francis, was injured in an automobile accident on July 30, 2018. and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva Insurance Canada, the respondent.

2The respondent denied the applicant’s claims for certain benefits, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on May 10, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are the applicant’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 Minor Injury Guideline?

(ii) Is the applicant entitled to $2,460.00 for psychological assessment, proposed by Dr. Peter Waxer in a treatment plan/OCF-18 (“plan”) dated February 2, 2019 and denied on March 28, 2019?

(iii) Is the applicant entitled to $200.88 ($1,300.00 less $1,099.12 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation in a plan dated November 9, 2018 and denied on November 29, 2018?

(iv) Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie Medical Rehabilitation in a plan dated January 9, 2019 and denied on January 10, 2019?

(v) Is the applicant entitled to $1,384.70 for chiropractic services, proposed by Mackenzie Medical Rehabilitation in a plan dated March 9, 2019 and denied on March 19, 2019?

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

RESULT

5I find that:

(i) The applicant has met her onus of proving that her accident-related impairments require removal from the MIG.

(ii) The applicant is entitled to $2,460.00 for psychological assessment.

(iii) The applicant is entitled to $200.88 for chiropractic services

(iv) The applicant is entitled to $1,977.05 for chiropractic services.

(v) The applicant is entitled to $1,384.70 for chiropractic services.

(vi) The applicant is entitled to interest for the approved plans.

ANALYSIS

The Minor Injury Guideline (MIG)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as neither such impairment is included in the Schedule’s definition of “minor injury.” It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

8The applicant submits that she should be removed from the MIG due to a pre-existing condition, a psychological impairment and chronic pain.

9I find that the applicant has met her burden of proving that her accident-related impairments require treatment beyond the MIG on the basis of a psychological impairment. Therefore, she is removed from the MIG.

10On October 29, 2018, the applicant saw her family physician, Dr. Razack, who wrote the following in his clinical notes and records (CNRs): “The above-named patient was recently involved in a motor vehicle accident with soft tissue injuries to her neck lower back and needs [sic]. She describes poor sleep, low self-esteem, crying spells over the last 3 to 4 months. These symptoms predate accident. She states that she’s suffered depression as a child […]. She describes negative thoughts and admits that in the past she’s attempted to hurt herself. Today mental status examination revealed very depressed and you[sic] feelings of hopelessness and helplessness, fatigue and insomnia with negative thoughts. We discussed pharmacotherapy. I added Zoloft 100mg qhs x100 to be reassessed in 4 to 6 weeks by me. We discussed depression at length I mentioned that she may need to see a psychiatrist if treatment is resistant to medications.”

11There are also three undated entries in Dr. Razack’s CNRs that indicate the following: “exacerbation of anxiety with numbness in face intermittently”; “will come in after the pandemic for a proper assessment”; “flareup of panic/anxiety poor functioning too much poor family dynamics”; “supportive counselling”; and “no more panic around Ziadie attacks tremendous stress and recent family disruption. Patient thinks that sh [illegible]”; “on further questioning it seems like her symptoms are greater than three months and deteriorating there are no homicidal or suicidal thoughts. She will start an antidepressant.”

12The applicant relies on the above noted family physician CNRs in support of her submissions.

13The respondent submits that Dr. Razack attributes the applicant’s suffering a “flare up of panic and anxiety” to “bad family dynamics” and “recent family disruption”. The respondent also submits that there is no opinion by Dr. Razack that her anxiety was exacerbated by the subject accident.

14The applicant submits in reply that it is not clear whether Dr. Razack has attributed the flare up of panic/anxiety to the “bad family dynamics” or “recent family disruption” that was mentioned. The applicant submits that Dr. Razack clearly attributed her psychological issues including depression, fatigue, insomnia, and crying spells over the past 3-4 months, to the subject accident. The applicant submits that on October 29, 2018, Dr. Razack wrote out in detail, also noted pre-existing depression as a child, but did not include mention of any other possible causes of these symptoms. The applicant submits that as a result, Dr. Razack prescribed Zoloft and clearly stated that she may need to see a psychiatrist.

15Based on the evidence before me, I find that the applicant has satisfied me on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment. The applicant’s medical records show that within three to four months following the accident, she complained of poor sleep, low self-esteem and crying spells that started shortly after the accident. Dr. Razack’s later comment of “These symptoms predate the accident” is confusing as it is unclear if he is referring to her physical symptoms and psychological symptoms or whether it was only her psychological symptoms. It’s also unclear how long, and which, predate the accident. In this case, I agree with the applicant that it is unclear to what degree her family physician attributed her flare up of panic and anxiety to “bad family dynamics.” Whether someone has other contributing factors that make them predisposed or susceptible to suffering from a psychological condition should not preclude them from receiving psychological treatment, if the relevant automobile accident is also a contributing factor. Although I don’t think it is clear that Dr. Razack attributed her psychological issues to the subject accident, the timing of her psychological complaints makes it more likely than not, that these symptoms are related to accident.

The applicant’s entitlement to $2,460.00 for a psychological assessment

16I noted the Case Conference Report and Order dated May 12, 2021 lists this issue in dispute as “psychological services,” however the plan clearly indicates that it is for an “assessment, mental health and addictions.”

17The proposed plan recommended by psychologist Peter Waxer dated February 4, 2019, noted the following complaints: "Mood is up and down" which is affected by headaches, changes in temperament, irritability, frustration, easily angered, verbal and physical outbursts, as a result relationship tensions, cognitive impairments such as concentration and short-term memory recall difficulties, fluctuating sleeping patterns and appetite, weight loss and driving anxiety.

18The goals identified on the plan include to assess the applicant’s psychological condition, recommend possible psychological treatment if required, and to help her to function effectively in her social, occupational, and other important areas of functioning.

19The respondent submits that the applicant has not been referred by her family doctor to a psychologist and relies on the Insurer’s Examination (IE) of Dr. Tara Seon in a report dated November 2, 2020. The respondent submits that Dr. Seon opined that, “Based on results of the current psychological assessment, Ms. Francis denied any significant psychological impairment that negatively interfered with her social, occupational, or overall level of functioning, as a result of the injuries sustained in the motor vehicle accident of July 30, 2018.”

20Dr. Seon also opined that this plan is not reasonable or necessary because the applicant denied having been referred to a psychiatrist or a psychologist following her involvement in the subject accident. She noted that the applicant apparently vehemently declined the need for or want to engage in individual psychotherapy during her IE assessment. Dr. Seon also noted that the applicant denied any significant symptoms of psychological distress that negatively interfered with her social, occupational or overall level of functioning that would warrant a psychological diagnosis in relation to her involvement in the subject accident. Dr. Seon concluded that the applicant’s presentation was not of the magnitude to warrant the need for psychological intervention.

21In reply, the applicant submits that Dr. Razack prescribed her Zoloft and clearly stated that she may need to see a psychiatrist. The applicant submits that the respondent’s IE report was prepared without any review of the CNRs of her family physician. The applicant submits that this assessment was conducted without a full appreciation and understanding of her relevant pre- and post-accident conditions and, as such, the report is of limited value.

22In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment. On the evidence, I find that the applicant has satisfied that onus and, therefore, she is entitled to the proposed psychological assessment as it is reasonable and necessary. I am persuaded by the applicant’s evidence. The applicant’s family physician’s notes clearly state that the applicant was suffering from a number of psychological symptoms and as a result she was prescribed pharmaceuticals to help manage her symptoms. Although her family physician did not refer her to a psychologist, he indicated that they discussed her possibly seeing a psychiatrist if the medication did not help. I am not persuaded by the respondent’s IE report, and I agree with the applicant that Dr. Seon’s report omits mention of having reviewed the CNRs of the applicant’s family doctor and. In my view, such omission indicates that Dr. Seon did no such review; without reviewing those CNRs, Dr. Seon could not have a full appreciation and understanding of her relevant pre- and post-accident psychological conditions. Dr. Seon also noted that the applicant declined the need for or want to engage in individual psychotherapy. This plan is for an assessment to determine what if any psychological services would be required. Whether the applicant decides not to undergo this psychological assessment or recommended treatment that may follow the assessment is her choice to make.

The applicant’s entitlement to $200.88 for chiropractic services

23Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

24The applicant bears the onus of proving entitlement to the proposed assessment by proving this plan is reasonable and necessary on a balance of probabilities.

25This plan dated November 9, 2018 was partially approved, up to MIG limits in the amount of $1,099.12. Given that I found that the applicant’s injuries fall outside the MIG and that there are no other reasons provided that the remainder of this plan is not reasonable and necessary, I find the applicant is entitled to the remainder of this plan.

The applicant’s entitlement to $1,977.05 for chiropractic services

26Chiropractor Dr. Mahsa Gordanpour recommended this plan on January 9, 2019. The goals identified on plan include “pain reduction, increase in strength, increased range of motion, return to activities of normal living, return to pre-accident work activities”. The plan states that despite reporting some improvement, the applicant continues to report ongoing neck and back pain.

27The respondent relies on the IE report dated March 8, 2019 of Dr. Edwin Urovitz, orthopaedic surgeon. Dr. Urovitz was of the opinion that the applicant sustained musculoligamentous injuries to the cervical spine, shoulder girdles and dorsolumbar spine and did not demonstrate any objective signs of accident-related impairment. Dr. Urovitz deemed the plan not reasonable and necessary.

28The respondent submits that the CNRs of Mackenzie Medical Rehabilitation confirm sparse visits and that the applicant attended once or twice per month from September 2018 to January 2019, then attended once in March 2019, three times in June 2019 and twice in July 2019.The records do not confirm any further visits for treatment.

29The applicant submits that she stopped attending treatment due to the insurer’s denials.

30On January 17, 2019, according to his CNRs, Dr. Razack noted that the applicant continued to complain of “lower back pain residual since accident.” On September 23, 2019, the applicant was admitted to the emergency room (ER) of The Scarborough Hospital for “right side back pain.” The ER departure diagnosis was “lower back pain.” The records of The Scarborough Hospital dated October 1, 2019 note that the applicant walked into emergency complaining of back pain, including upper back pain. The ER departure diagnosis was “back pain” and “flank pain.”

31There are several other CNRs from her family physician noting “chronic lower back pain” and “total body pain with headaches”. I noted that the applicant reported to Dr. Seon that she stopped attending treatment as she was having to take time off from work, resulting in financial concerns.

32Based on the evidence before me I find that the applicant has met her burden of proving on a balance of probabilities, that this plan was reasonable and necessary. There is ample compelling contemporaneous evidence in support of the treatment plan. There are numerous CNRs that demonstrate that the applicant was suffering significant back pain including two visits to the ER. I place less weight on the respondent’s IE report as, similar to Dr. Seon, Dr. Urovitz’s report omitted mention of the applicant’s family physician’s CNRs. I find this omission means that Dr. Urovitz did not review any of the applicant’s family physician’s CNRs and thus he may not have had a full appreciation of her symptoms.

The applicant’s entitlement to $1,384.70 for chiropractic services

33The respondent submits that the applicant is time barred with respect to the plan pursuant to section 56 of the Schedule. The plan was denied on March 19, 2019 and an application disputing entitlement to medical and rehabilitation benefits was filed on November 9, 2020. The aforementioned plan was not listed. The applicant had until March 19, 2021, to file her appeal. The applicant failed to add the treatment plan as an issue in dispute until May 10, 2021.

34The respondent submits that the evidence clearly establishes that the applicant did not file an application to dispute entitlement to this treatment plan within two years of denial. The respondent submits that it is not appropriate for the LAT to extend the limitation period in these matters.

35The applicant submits that as a result of the COVID pandemic, all limitation periods were suspended from March 16, 2020 to September 14, 2020³. In addition, any periods of time within which any steps must be taken in any proceeding or intended proceeding were suspended during that period, subject to the discretion of the tribunal or decision-maker. As a result of this suspension, the applicant added this issue to the Application within the appropriate limitation period.

36The applicant also submits that the Tribunal has discretion to extend the applicable limitation of time pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999.⁴ The “original” limitation period with respect to this OCF-18 would have ended on March 19, 2021. The applicant submits that she added this issue to the Application less than two months following that date. The applicant submits that the Tribunal should use its discretion to extend the applicable limitation as there is no prejudice to the Respondent in allowing this issue to proceed.

37I agree with the applicant’s arguments relating to the suspension of the limitation periods provided by Regulations 73/20 and 457/20. The combined effect of these two regulations is that the limitation period was paused for 183 days, from March 16 to September 14, 2020 and the remaining days of the original limitation period resume counting down from September 14, 2020⁵. Section 6 of Regulation 73/20 expressly prohibits the 183 days from being counted in calculating the limitation period.

38When Regulation 73/20 came into effect, the applicant had 367 more days remaining of her original 2-year limitation period set out in s. 56 of the Schedule to dispute the respondent’s denial. This meant that starting from September 14, 2020 the applicant had 367 days or until September 16, 2021 to dispute the respondent’s denial. Since the applicant added the issue on May 10, 2021, she is not time barred and therefore she may proceed with this issue. Given my findings on this argument, I do not need to consider the arguments about s. 7 of the Licence Appeal Tribunal Act, 1999. I now turn to the merits of this disputed treatment plan.

39On March 9, 2019, Dr. Gordanpour recommended similar treatment as described in the previous plan dated January 9, 2019, including the same goals set out in paragraph 26 above.

40On March 19, 2019, the respondent advised the applicant that this plan was denied as it had been found that the MIG applies to her impairment.

41The applicant submits that the necessity for achieving the identified goals is well supported by the medical evidence. The proposed costs for achieving these treatment objectives are in accordance with standard rates and are reasonable.

42The respondent submits that the applicant has failed to meet her onus to prove that this plan is reasonable and necessary. The respondent further submits that despite the applicant’s failure to adduce compelling medical evidence substantiating that her injuries are treatable beyond the MIG, the respondent obtained various IE reports to determine whether the proposed treatment was reasonable and necessary for the applicant’s accident-related injuries.

43The respondent denied this plan on the basis of the MIG and I have already found the applicant should be removed from the MIG and the respondent provided no other reasons for denial to the applicant. Turning to the medical evidence before me, I find that the applicant has met her burden of proving on a balance of probabilities, that this plan was reasonable and necessary. Like the similar plan disputed above, there is ample compelling contemporaneous evidence in support of the treatment plan. There are numerous CNRs that demonstrate that the applicant was suffering significant back pain including two visits to the ER.

Interest

44The applicant is entitled to interest in accordance with s. 51 of the Schedule for the following:

(i) The psychological assessment in the amount of $2,460.00 for

(ii) Chiropractic services in the amount of $200.88.

(iii) Chiropractic services in the amount of $1,977.05.

(iv) Chiropractic services in the amount of $1,384.70.

CONCLUSION

45For the reasons outlined above, I find that:

(i) I find that the applicant has met her onus of proving that her accident-related impairments require removal from the MIG.

(ii) The applicant is entitled to $2,460.00 for psychological assessment.

(iii) The applicant is entitled to $200.88 for chiropractic services

(iv) The applicant is entitled to $1,977.05 for chiropractic services.

(v) The applicant is entitled to $1,384.70 for chiropractic services.

(vi) The applicant is entitled to interest for the approved plans.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3See Ontario Regulations 73/20 and 457/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.
4. 4Licence Appeal Tribunal Act, 1999, c. 12, Sched. G, s. 7.
5. 5See, e.g., McAuley v. Canada Post, 2021 ONSC 4528 at paras. 41-43