Siuda v. Aviva Insurance Canada, 2023 CanLII 119829

Citation: Siuda v. Aviva Insurance Canada, 2023 ONLAT 22-000616/AABS

Licence Appeal Tribunal File Number: 22-000616/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:

Bozena Siuda

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Andrea Bandow, Counsel

HEARD: In Writing

OVERVIEW

1Bozena Siuda, the applicant, was involved in an automobile accident on April 1, 2019, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Prescription Summary and Mini-Psychological Report

2The respondent submits that two documents from the applicant (a prescription Summary and a mini-psychological report by Dr. Erin Langis dated May 16, 2023) should not be admitted into evidence as they were not disclosed in accordance with the timelines ordered in the Case Conference Report and Order (“CCRO”) of December 8, 2022.

3After hearing the submissions of both parties in this regard, I allow the documents to be admitted into evidence.

4The CCRO ordered that no later than 60 days from the date of the case conference, both parties shall exchange all other documents not previously disclosed upon which they intend to rely at the hearing and no later than 90 days after the case conference, the parties shall disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing. Both the Prescription Summary and Dr. Langi’s report were produced with the written submissions of the applicant on July 19, 2023.

5The applicant submits that the Prescription Summary was offered to the respondent on March 6, 2023. However, as the respondent failed to pay for the cost of the summary, the applicant did not produce it.

6The respondent submits that the CCRO did not order prepayment of any documents.

7I agree with the respondent. If the applicant intended to rely upon the Prescription Summary, she should have disclosed it according to the timeline of the CCRO whether it was paid for or not. I therefore find that the Prescription Summary was not produced in accordance with the CCRO.

8With respect to the Mini-Psychological Report of Dr. Langis (“Mini Report), the applicant submits that as this was an “approved” report, the vendor sent the report directly to the respondent on May 18, 2023. The applicant submits that there is no obligation to resend a document that the respondent already has in their possession.

9The purpose of timely disclosure is to alert the other party as to what documents the disclosing party will be relying upon at the hearing. The fact that the other party may have that document in their possession does not relieve the disclosing party of producing the document for the purpose of advising the other party of their intention to rely upon that document. I find that the Mini Report was not produced in accordance with the CCRO.

10Having found that both the Prescription Summary and the Mini Report were both produced outside of the timelines of the CCRO, I put my thoughts to prejudice in allowing both to be entered into evidence.

11The respondent submits that the failure of the applicant to meet her disclosure timelines prejudices the respondent in depriving it of procedural fairness and the opportunity to fully review, consider and prepare the evidence and case brought against it.

12The applicant submits that she is prejudiced if the Prescription Summary and the Mini-Psychological Report are not allowed to be admitted as evidence.

13I agree with the respondent that the applicant failing to meet the timelines of the CCRO is a breach of procedural fairness. However, that it is not such an egregious breach as to hinder the respondent from presenting their case. The same can be said of the respondent’s position that they were denied of the opportunity to prepare. Section 15(1) of the Statutory Powers and Procedures Act allows the Tribunal to admit as evidence any document or any other thing. While I have concluded that the documents at issue were produced outside of the CCRO timeline, I will allow them to be admitted but will afford them less weight.

The OCF-18 in the amount of $4,001.02

14The respondent submits that the applicant failed to submit the OCF-18 in the amount of $4,001.02 into evidence, thereby depriving the Tribunal of its ability to fully and properly assess the reasonableness and necessity of the Treatment Plan in dispute. The respondent submitted that, due to this failure, the Tribunal should dismiss the applicant’s claim over this OCF-18.

15The Tribunal will allow the OCF-18 in the amount of $4,001.02 to be considered in this hearing.

16It is clear from the initial application to the Tribunal as well as in the CCRO and in the submissions of the applicant that the treatment plan in the amount of $4,001.02 is still an issue in dispute. I find that there would be no prejudice to the respondent in including the issue of the Treatment Plan in the amount of $4,001.02 despite the failure on the part of the applicant to include the actual OCF-18 into evidence. There would, however, be significant prejudice to the applicant if the issue of Treatment Plan is not allowed to proceed. I also conclude that there is sufficient information before the Tribunal regarding this issue as to not deprive the Tribunal of its ability to consider the reasonableness and necessity of the Treatment Plan. For those reasons, and in the interest of procedural fairness, the issue of treatment in the amount of $4,001.02 is allowed to proceed.

ISSUES

17The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 7, 2020 to March 31, 2021?
2. Is the applicant entitled to the assessments proposed by LV Rehab Clinic, as follows: (i) $4,515.82 for chiropractic services, in a treatment plan dated submitted on October 28, 2019? (ii) $4,001.02 for chiropractic services in a treatment plan submitted on September 16, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

18The applicant is not entitled to non-earner benefits nor the treatment plans in dispute. The applicant is not entitled to interest or an award.

ANALYSIS

The applicant is not entitled to NEB

19I find that the applicant is not entitled to NEB.

20Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

21The applicant was paid NEB from April 29, 2019 to February 26, 2020. The NEB was then terminated by the respondent based upon the results of s. 44 Insurer Multidisciplinary Report (“IEs ”) dated January 13, 2020.

22The applicant submits that the termination of the NEB was premature and that the IEs were not based on a full picture of the applicant’s medical file. In response, the respondent submits that the applicant has not sustained any injuries that would restrict her daily living and, thus, has not met the onus to prove that she sustained an impairment as a result of the accident and suffered a complete inability to carry on a normal life.

23The applicant relies upon a Disability Certificate by chiropractor Ushma Patel, dated April 3, 2019 and a second Disability Certificate by physician, Dr. Jan Zuchelkowski dated May 1, 2019, both of which advise that the applicant suffers an inability to carry on a normal life.

24The applicant acknowledges that she suffered from pre-existing conditions arising from a 2007 motor vehicle accident but adds that these conditions were aggravated by the motor vehicle accident(“MVA”) as well as new conditions of neck and shoulder pain being added.

25The applicant relies upon a Mini Psychological Assessment Report (“Mini Report”) by psychologist Dr. Erin Langis dated May 16, 2023 in which Dr. Langis stated that the applicant has sustained an 85% loss of in her ability to perform household tasks since the accident. She also noted difficulties with self-care and that the applicant is experiencing suicidal thoughts, deterioration of social life, problems with sleep, and fear in vehicles.

26Dr. Langis concluded that the applicant’s “presentation is consistent with DSM-5 and ICD-10 criteria for the diagnoses of Other specified trauma- and stressor-related disorder (Adjustment-like disorder with prolonged duration of more than six months without prolonged duration of stressor) and Somatic symptom disorder with predominant pain, moderate.”

27Even aside from the fact that the Mini Report was served outside of the CCRO timelines, I attribute little weight to the Mini Report as the report was authored over four years post-MVA and does not speak to the applicant’s medical status for the NEB eligibility period of February 7, 2020 to March 31, 2021. The report also lacks in adequate medical documentary review, as it advises that the only documentation reviewed in its production is a Psychological Report by the same author dated December 8, 2021 (which report was neither produced nor relied upon for this hearing). Lastly, the Mini Report fails to address the issue of and test for the applicant’s eligibility to NEB.

28The applicant also relies upon the notes and records of treating psychiatrist, Dr. Maselle Virey who stated on December 17, 2020 that the MVA “triggered worsening of her psychiatric symptoms”. However Dr. Virey does not address the issue of NEB, nor how the worsening symptoms affect the applicant’s daily life.

29The respondent submits that the applicant suffered from many pre-existing conditions including chronic pain, neck strain, lumbar disc herniation, post-traumatic stress disorder (“PTSD”), Major Depressive Disorders, and other symptomatology. The respondent states that the applicant had previously qualified for CPP benefits as her psychological symptoms were “severe and prolonged”. The respondent submits that none of these symptoms were not exacerbated by the MVA.

30The respondent relies upon the Multidisciplinary s. 44 insurer Report dated January 13, 2020 in which orthopaedic surgeon Dr. Jacqueline Auguste, psychologist Dr. Shari Schwarz and occupational therapist Ms. Lesley Hisey assessed the applicant with respect to her eligibility to NEB and the treatment plans in dispute.

31With respect to NEB, Dr. Auguste concluded that the applicant does not suffer a complete inability to carry on a normal life. Dr. Auguste made note of the applicant’s pre-existing injuries and came to the conclusion that the applicant had sustained no injuries arising from the MVA and that the applicant had no clinical indications that would restrict her daily activities.

32Psychologist Dr. Schwarz opined that the applicant sustained an exacerbation of her previous psychological injuries stating that “[t]here is no impairment, from a psychological perspective, as a direct result of the subject accident.” She also concluded that the applicant did not “suffer a complete inability, from a psychological perspective, to carry on a normal life as a direct result of this motor vehicle accident.”

33I prefer the findings of the respondent’s Multidisciplinary Report to the applicant’s Mini Report. As noted, the Mini Report was completed over two years beyond the eligibility period for NEB and did not comment on NEB, nor address the test for the same. Also, there is a lack of documentation reviewed in the production of the report. By contrast, the respondent’s Multidisciplinary Report was produced within the NEB eligibility period, did address the NEB issue and test (with the exception of Ms. Hisey who did not comment on NEB eligibility), and did utilize extensive medical documentation for review. The Multidisciplinary Report, as stated, found that the applicant does not have a complete inability to carry on a normal life thus failing the test for NEB.

34In my view, the applicant has not provided compelling evidence to support her claim of NEB. While the Mini Report accounts the loss of 85% of housekeeping abilities, sleep disturbance, loss of social life and fear of driving, as well as sleep disturbance, it fails to provide any details with respect to the same. This falls short of particularizing how the applicant’s accident-related injuries prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.”

35For the above reasons I find that the applicant is not entitled to NEB.

The applicant is not entitled to $4,515.82 for chiropractic services

36LV Rehabilitation Clinic Inc. submitted a treatment plan dated October 24, 2019 in the amount of $4,515.82 for chiropractic, massage therapy and osteopathy.

37The applicant submits that the above treatment was necessary as the MVA aggravated her pre-existing injuries, as well as caused added injuries of neck and shoulder pain. The applicant submits that, since the subject accident, she has been prescribed Naproxen and has had an increase of her prescription of Hydromorphine. However, no medical documentation has been submitted to confirm that the Naproxen or the increase in Hydropmophine are directly connected to the injuries and/or aggravation of injuries incurred in the MVA. For this reason I afford the information in the Prescription Summary to be of little weight and value.

38The applicant also states that her treating psychiatrist, Dr. Maselle Virey advised that the 2019 accident triggered a worsening of her psychiatric symptoms. However, Dr. Virey has not weighed in on the Treatment Plan in dispute, nor is her comment relevant to the treatment in the Treatment Plan.

39The respondent submits that the applicant’s injuries pre-date the MVA. It relies upon the Multidisciplinary Report, dated January 13, 2020, in which (name specialty) Dr. Auguste found no substantive musculoligamentous, osseous or neurologic impairments that could be causally linked to the MVA and found the Treatment Plan not to be reasonable and necessary.

40The respondent also submits that the applicant has not presented any evidence that the applicant’s treating physician recommends chiropractic, massage or osteopathic treatment.

41I find the respondent’s argument to be more persuasive than that of the applicant. I find that the applicant’s submissions of the changes in her medications are not persuasive and the comments of psychologist, Dr. Virey are not helpful as they did not speak to the treatment plan.

42I conclude, therefore, that the applicant is not entitled to the treatment requested in the Treatment Plan of October 24, 2019.

The applicant is not entitled to $4,001.02 for chiropractic services

43LV Rehabilitation Clinic Inc. submitted a treatment plan dated September 16, 2020 in the amount of $4,001.02 for chiropractic services.

44The applicant relies upon the same assertions provided in the previous issue that the MVA aggravated her pre-existing injuries, as well as caused added injuries of neck and shoulder pain. The applicant also points to the changes in her prescription history and the comments of Dr. Virey.

45The respondent also relies on their reasoning of the previous issue; that the applicant’s injuries all pre-date the MVA. The respondent relies on the conclusions of Dr. Auguste in the Multidisciplinary Report dated January 13, 2020 as well as the lack of medical verification of the reasonableness and necessity of the Treatment Plan.

46I find, therefore, as with Issue 2, the Treatment Plan of September 16, 2020 is not reasonable and necessary and the applicant is not entitled to the treatment requested therein.

Interest

47As I have found that the applicant is not entitled to the NEB nor the Treatment Plans in dispute, she is not entitled to interest pursuant to s. 51 of the Schedule.

Award

48The applicant has advised in her submissions that she is not pursuing the claim for an award and has not submitted any reasons for the granting of the same. Also, having determined that the NEB nor the Treatment Plans are payable, it follows that I cannot justify a s.10 award in this case. Therefore, no award is granted.

Order

49The applicant is not entitled to a NEB.

50The applicant is not entitled to the Treatment Plans in dispute.

51The applicant is not entitled to interest, or an award.

52The applicant is dismissed.