Badowich v. Aviva Insurance Company, 2023 CanLII 119815

Citation: Badowich v. Aviva Insurance Company, 2023 ONLAT 21-001952/AABS

Licence Appeal Tribunal File Number: 21-001952/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:

Alexandra Badowich

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Velvet Michelle, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By way of written submissions

OVERVIEW

1Alexandra Badowich, the applicant, was involved in an automobile accident on July 30, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The applicant raised a preliminary motion pursuant to section 38 (8), 38 (9), 38(11), 38 (13) and 38 (14) of the Schedule. The applicant submits that the respondent issued denials or explanations of benefits (EOBs) on March 26, 2019, July 10, 2019, August 10, 2021, and on October 19, 2022, that fail to comply with the requirements under section 38. The respondent asserts that the denials or EOBs are proper and in compliance with section 38 of the Schedule or constitute section 33 (1) requests for medical information.

3Under section 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan, the insurer will approve or refuse to pay for. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable and necessary. This notice must be provided within ten business days after the insurer receives a treatment plan.

4Under section 38(11) of the Schedule, if the insurer fails to give a notice in accordance with section 38(8), it must pay for all goods, services, assessments, and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the proposed OCF-18 and ending on the day the insurer gives the proper notice as required by section 38(8).

5Under section 38(13) of the Schedule, within 10 business days after receiving the report of an examination conducted under section 44 for the purpose of a treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to a regulated health professional who prepared the treatment and assessment plan. Section 38(14) of the Schedule states the required actions that the insurer shall comply with within ten days of receiving a report. Section 38(9) of the Schedule states that if the insurer believes that the Minor Injury Guideline (MIG) applies to the injured person’s impairment, the notice under subsection 38(8) must advise the insured person.

6As described, the respondent contends that the denials or explanation of benefits (EOBs) are proper and in compliance with section 38 of the Schedule. I do not agree with the applicant’s submissions that the respondent’s denials are non-compliant with section 38 for reasons which follow. The EOB dated July 10, 2019, and the EOB dated March 26, 2019, state that based on the medical evidence of the applicant that the MIG applies to her injuries. Both of these EOBs, make section 33(1) requests for medical information. I further note that the applicant did not attend an IE section 44 examination in contravention of the Schedule with reference to correspondence from Aviva dated March 29, 2019. The EOBs dated August 10, 2021, and October 19, 2022, base the denials on the medical opinions in the IE section 44 assessment reports of Dr. Arnold Dr Rubenstein and Dr. Frank Loritz. It is referenced in correspondence that the section 44 IE assessments have been made available to the applicant and the applicant has not provided evidence which suggests that the reports were not received in conformity with the Schedule. In addition, the applicant has not provided evidence showing a violation of section 38(13) and section 38(14) with reference to the EOBs dated August 10, 2021, and October 19, 2022.

7The applicant has not met her burden demonstrating non-compliance with section 38, in relation to EOBs dated March 26, 2019, July 10, 2019, August 10, 2021, and October 19, 2022. I do not find any non-compliance with section 38(9) or 38(13) in relation to the explanation of benefits dated August 10, 2021. Similarly, I am unable to determine any non-compliance with section 38(9), 38(11), 38(13), or 38(14), relating to the explanation of benefits dated October 19, 2022, as it references the IE examination reports of Dr. Rubenstein and Dr. Loritz as the basis for the determination of the treatment plan. I do not find any non-compliance with section 38(8) and 38(11), in relation to the EOB dated March 26, 2019, and the EOB dated July 10, 2019. Based on the applicant’s submissions, the applicant has failed to meet her burden to demonstrate that the insurer failed to comply with section 38(8), 38(9), 38(11), 38(13), and 38(14) respecting the noted explanations of benefits.

ISSUES

8The issues in dispute are:

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 in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,735.00 for psychological services, proposed by Novo Medical Services in a treatment plan/OCF-18 (“plan”) submitted on April 11, 2019?

iii. Is the applicant entitled to $277.03 ($1,146.53 less $869.50 approved) for physiotherapy services, proposed by Newmarket Health and Wellness in a plan submitted on March 26, 2019?

iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Novo Medical Services in a treatment plan/OCF18 submitted on July 8, 2019?

v. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Novi-Medical Services in a treatment plan/OCF-18 submitted on October 10, 2018?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

9I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

10The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required since the applicant is not entitled to any treatment plans in dispute.

11The respondent is not liable to pay an award under section 10 of Regulation 664 because it did not unreasonably withhold or delay payments to the applicant.

12Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Minor Injury Guideline: Pre-existing and Accident-related Injuries

13I do not find that the applicant has provided sufficient evidence to meet her burden to show that the accident aggravated any pre-existing conditions or resulted in injuries post-accident preventing her from reaching maximal recovery (MR) within the funding limit of the MIG.

14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

15An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

16The applicant must meet all three of the following requirements in order to be removed from the MIG under section 18(2):

1. The insured person has a pre-existing medical condition;

2. The pre-existing medical condition was documented by a health practitioner before the accident; and

3. The insured person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $3500.00 limit under the MIG.

17The applicant submits that she has pre-existing medical conditions consisting of neck and back pain with radiculopathy, in addition to a history of migraine headaches. The applicant also raises the issue of radicular symptoms in her fingertips and a pre-existing injury to her right ring finger when she caught her finger in the car door, which she submits prevents maximal recovery within the MIG, as a result of these pre-existing conditions. The applicant relies on the clinical notes and records her family physician Dr. Carol Bates and a report by Dr Usman Moghal. The respondent submits that the applicant has no objective pre-existing medical conditions preventing her from reaching maximal recovery within the limits of the MIG. The respondent relies on the IE section 44 assessment of Dr. Loritz.

18I find the CNR’s of Dr. Bates do not provide objective medical evidence of a concussion or concussion-related symptoms. The applicant submits that the section 25 neurologist report of Dr. Moghal, dated August 7, 2019, supports that her pre-existing injuries and the injuries which are a result of the accident, require treatment outside the MIG. The respondent submits that Dr Moghal’s report does not opine on or discuss the MIG. In addition, the respondent submits that Dr. Moghal’s report is to a large extent based on the applicant’s personal account of her conditions.

19The applicant stated to Dr. Moghal that she experienced headaches the day after the accident. There is no notation of the applicant suffering a concussion in the CNRs of Dr. Bates, until on February 25, 2021, over a year and a half following the accident, when the applicant mentions headaches caused by the accident. The applicant did not go to hospital following the accident nor seek any medical attention until a month afterward when she had an appointment with Dr. Bates on August 30, 2018. At this visit, the applicant had a normal range of motion in her neck, but she described developing neck and back pain following the accident. The applicant does not request nor is she offered a referral by Dr. Bates to investigate injuries caused by the accident nor does he seek any prescription medication. The CNRs do not show that the applicant’s accident-related injuries are other than sequelae of minor injuries following the accident.

20The CNRs of Dr. Bates do not demonstrate that the applicant has pre-existing conditions aggravated or affected by the accident nor that the applicant experienced injuries beyond the sequelae of minor injuries within the MIG. The applicant has appointments with her family physician on March 28, 2019, November 29, 2019, December 12, and December 18, 2019. She discusses cold symptoms, sinus, and ear pain collateral to respiratory infections but there is no mention of accident-related injuries. The applicant does not describe the effects from the accident nor the event of the accident, until she meets with Dr. Bates on February 25, 2021, over a year and a half after the accident. For the first time since August 30, 2018, the applicant describes headaches that she specifically states are accident-related although at recent appointments beforehand, she described headaches caused by respiratory infections. In addition, on February 25, 2021, the applicant described tingling in her arms and tingling coming down her neck for the first time since the accident.

21On February 12, 2020, the applicant was prescribed Naproxen and Vimovo, as a result of what she describes as congestion, sinus pain and bilateral neck pain due to respiratory illness. The applicant described to Dr. Bates that she was smoking half a pack of cigarettes daily and that she consumed ten to twenty alcoholic beverages each weekend. It is clear from Dr. Bates’ CNR’s that the prescriptions for Naproxen and Vimovo were not for accident-related injuries but rather were to address the symptoms of a respiratory infection.

22The applicant describes to Dr. Moghal that she experiences photophobia and blurry vision as a result of the accident; she reports that she has a history of radicular symptoms from the neck to her fingertips. In terms of Dr. Moghal’s comment on the objective medical evidence, he states that the MRI of the applicant’s head and cervical spine show a normal examination result and that there is no other lab information available demonstrating her reported symptoms being objectively founded. The examination was determined by Dr. Moghal to have an overall normal outcome. The section 25 neurological report of Dr. Moghal, does not suggest otherwise than that the applicant has experienced the sequelae of minor injuries from the accident and that she can be treated within the MIG.

23I find the CNR’s of Dr. Bates and the section 25 neurologist report of Dr. Moghal, dated August 7, 2019, offer insufficient medical evidence that the applicant experienced a concussion as a result of the accident. The applicant underwent an MRI of her brain and cervical spine on November 6, 2018, over three-months post accident, which showed the sectors of her brain within normal limits with no evidence of intracranial hemorrhage or abnormal signal (basal cisterns, lateral ventricles, and cortical sulci equal and symmetrical bilaterally; brain parenchyma within normal limits). The applicant’s cervical vertebrae were intact; there were normal signals in the vertebral bodies; no evidence of fractures; no prevertebral soft tissue swelling; nor loss of normal lordosis secondary to muscle spasm or positioning.

24In the general practitioner assessment by Dr. Loritz, dated June 16, 2021, he determined the applicant’s physical injuries, resulting from the accident, and her pre-existing conditions do not prevent her from achieving maximal recovery within the MIG. Dr. Loritz was unable to identify any objective musculoskeletal impairments, following a clinical examination and his review of medical documentation. Dr. Loritz reviewed diagnostic test results including the MRI completed on November 8, 2018, and an X-ray of the applicant’s right fourth finger dated October 14, 2016. Dr. Loritz noted that the applicant’s right fourth finger had a minimally displaced tuft injury, which was unaffected by the accident.

25Dr. Loritz opined that the applicant sustained sprain and strain injuries to her cervical spine and whiplash associated diagnosis I/II to the shoulder girdles and axial spine, as a result of the accident. Dr. Loritz determined that based on his examination of the applicant and document review, that there was no evidence of a pre-existing injury preventing the applicant from achieving maximal recovery within the MIG. In addition, Dr. Loritz found that the applicant did not develop a radiculopathy, myelopathy, osseous fracture or complete tendon tear as a result of the accident, which would have excluded her injuries from the MIG.

26The onus is on the applicant to show entitlement to medical benefits in excess of the $3,500.00 limit under the MIG. The applicant submits that her pre-existing conditions and injuries from the accident, are objectively proven to be more than minor as described in the CNR’s of Dr Bates, in diagnostic test results, and in the section 25 report of Dr. Moghal. I disagree. The CNRs of Dr. Bates show over a period of a year and a half show sparse mention of accident-related injuries, except for a month after the accident on August 30, 2018, and on February 25, 2021. Neither the MRI of the applicant’s brain and cervical spine nor Dr Moghal’s report diagnose or show objective medical evidence of a concussion or concussion-related symptoms, caused by the accident.

27The IE, section 44, report of Dr. Loritz, and his addendum report, state that following an examination and review of medical documentation, he opined the applicant’s pre-existing conditions do not prevent her from recovery within the MIG. Furthermore, Dr. Loritz was unable to identify any objective musculoskeletal impairments. I find that the applicant has not met her burden to show on a balance of probabilities that her pre-existing medical conditions preclude maximal recovery within the MIG. In addition, I find that the applicant does not have resulting musculoskeletal physical injuries which require treatment outside the MIG.

Chronic Pain Syndrome

28I am not satisfied that the applicant has established on a balance of probabilities that she experiences chronic pain syndrome as a result of the accident that would warrant her removal from the MIG.

29The applicant submits that she experiences chronic pain syndrome following the accident. She relies on the treatment plan proposing a chronic pain assessment, in addition to the medical evidence in the CNR’s of Dr. Bates. The Tribunal has determined that an applicant may escape the MIG if they experience chronic pain that causes functional impairment or if they have a formal diagnosis of chronic pain.

30The respondent submits that the applicant does not support the diagnosis of chronic pain syndrome with reference to the criteria in the six edition, of the American Medical Association Guides (AMA Guides). The Tribunal has adopted the AMA Guides as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and;

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

31I agree with the respondent that following the accident the applicant did not use prescription medication to address accident-related symptoms of pain. The respondent submits medication prescribed to the applicant, as stated earlier, addressed non-accident-related medical conditions (criterion one). In my view, the evidence does not demonstrate the applicant showed any dependence on health care providers or her family. During the span of a year and a half post-accident, the applicant saw her family physician Dr. Bates on two occasions, and she did not describe to Dr Bates any dependence on family members (criterion two). The applicant described withdrawing socially to Dr. Vitelli in his section 25 psychological assessment, but she attributes that to being a response to a recent separation (criterion four). The applicant stated that she suffers pain limiting her functionality to Dr. Vitelli, however, when she attended appointments with her family physician Dr. Bates, she made no such complaint and the applicant returned to her employment immediately following the accident without taking a leave of absence (criterion five).

32Dr Loritz found on examination and a review of medical documentation, that the applicant had no objective musculoskeletal impairments. In terms of functionality, the applicant returned to work and employment immediately after the accident (criterion five). There is no evidence of physical deconditioning, withdrawal from social milieu, or failure to restore the applicant’s pre-accident function (criteria three, four and five). Finally for criterion six, as noted in the section of the reasons addressing the existence of psychological impairments, the applicant did not request prescription medication to address any psychological issue post-accident. The applicant did not complain to Dr. Bates that she is experiencing anxiety or depression as a result of the accident. In addition, Dr. Rubenstein, in his section 44 IE psychological assessment opines that the applicant did not sustain any diagnosable psychological impairment as a direct result of the accident.

33Dr. Vitelli makes findings that the applicant experienced chronic pain. However, as described in the next section of the reasons, I place little weight on Dr. Vitelli’s findings and report related to the applicant’s psychological impairments because his report is based on the applicant’s self-reporting, which is at odds with the medical evidence and details of the accident. In addition, Dr. Vitelli is not qualified to opine in relation to the applicant’s objective musculoskeletal physical injuries, rather those findings are outside his scope of practice. Dr. Vitelli is simply restating the applicant’s reports of pain affecting her functionality, which is at variance with the medical evidence and accident evidence on file.

34Although I am not bound by FSCO decisions, as discussed in Aruda and Western Assurance Company, (FSCO AI 3-003926), I do not accept that pain that lasts for more than six months without discussion of the level of pain, medical evidence of the pain’s effect on the person’s function, or whether the pain is bearable without treatment, is more than mere sequelae. Without something more than the length of time pain lasted, I do not accept based on the applicant’s reports that she has chronic pain syndrome. The applicant has not satisfied me, on a balance of probabilities, that her pain complaints are accident-related and that the chronic pain complained of is not merely sequelae of the soft tissue injuries.

Psychological Impairments

35I am not satisfied that the applicant has established on a balance of probabilities that she sustained psychological injuries as a result of the accident that would warrant her removal from the MIG.

36The Tribunal has determined that chronic pain with functional limitation or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that their injuries are not minor. Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries,” and the prescribed definition does not include psychological injuries.

37The applicant claims that she sustained psychological injuries as a result of the accident that place her injuries outside the MIG. The applicant relies on the section 25 psychological report dated March 17, 2019, of Dr. Vitelli and the CNRs of Dr. Bates. The respondent relies on the section 44 IE psychological assessment of Dr. Rubenstein, dated July 27, 2021.

38The applicant did not mention any psychological injuries following the accident to Dr. Bates based on the CNRs. Following the accident, the applicant was not prescribed medication to address psychological injuries. The applicant did not mention the accident until August 30, 2018, and on February 25, 2021, however, on neither of these occasions did the applicant mention any psychological symptoms to Dr. Bates. None of the CNRs of Dr. Bates mention any psychological impairments, accident-related, or otherwise.

39Dr. Rubenstein, on July 27, 2021, completed a section 44 IE psychological assessment of the applicant, which included psychological testing. The applicant mentioned describing “really bad migraines” shortly after the accident, which was not mentioned as a symptom in the CNR’s of Dr. Bates on August 30, 2019. The applicant described working as a full-time sales representative on the date of the accident without taking a leave of absence. Following testing, Dr. Rubenstein did not find that the applicant had any identifiable accident-related psychological impairment. In Dr. Rubenstein’s opinion, the applicant did not sustain any diagnosable psychological impairment as a direct result of the accident. Dr. Rubenstein confirmed that in the absence of a diagnosis of an accident-related psychological impairment, the applicant would not be removed from the MIG. He confirmed that there was no documented evidence of a pre-existing psychological condition.

40I find, there is insufficient evidence to support that the applicant experienced psychological impairments as a result of the accident, removing her from the MIG. The applicant describes a diagnosis of depression at age thirteen, to Dr. Vitelli, in his section 25 psychological report dated March 17, 2019. Neither depression nor any psychological impairment including anxiety is mentioned in the CNR’s of Dr. Bates. The applicant described to Dr. Vitelli that she had issues with anxiety and depression post-accident, which is not evident in the CNRs. The applicant acknowledged that she had not taken medication to address her mental health issues. She stated to Dr. Vitelli that she is in constant pain; that she suffers headaches every day and hearing problems as a result of the accident. The applicant described that the accident affected her memory and concentration. She described that the damage to the vehicle was extensive and required over six thousand dollars for the purpose of repairs. However, extensive damage does not appear in photographs of the vehicle post-accident and the motor vehicle collision report describes damage to the car wheel and rear passenger panel only, projected to amount to an expense of $2,000.00 for the repairs.

41Dr. Vitelli diagnosed the applicant following psychological testing with general anxiety disorder, major depressive disorder and specific phobia of a situational type relating to vehicles. I place greater evidentiary weight on the findings of Dr. Rubenstein in his psychological assessment, than on the section 25 psychological report of Dr. Vitelli since the information provided by the applicant regarding the consequences of the accident historically speaking and the impact on the applicant’s health and mental health, is at widely at variance with the objective medical evidence in the CNR’s of Dr Bates, the section 44 general practitioner assessment of Dr Loritz, and the section 44 IE psychological assessment Dr. Rubenstein.

42The applicant has not met her burden to prove on a balance of probabilities with objective medical evidence that she experiences any pre-existing or accident related psychological impairments which would prevent her maximal recovery within the MIG.

43Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

INTEREST

44As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.

AWARD

45The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no payments are due, the respondent did not withhold or delay the payment of benefits, therefore, the applicant is not entitled to an award.

ORDER

46I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

47The applicant is not entitled to any treatment plans in dispute, as the MIG limit have been exhausted.

48Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

49The applicant is not entitled to an award.

50The application is dismissed.