Citation: Rinakis v. Aviva Insurance Company of Canada, 2023 ONLAT 21-003665/AABS

Licence Appeal Tribunal File Number: 21-003665/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:

Dimitra Rinakis

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Frank Del Giudice, Counsel

For the Respondent:

Christopher Lamm, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Dimitra Rinakis ("D.R."), the applicant, was involved in an automobile accident on September 29, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). D.R. 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.

ISSUES

2The issues in dispute are:

i. Is the cost of examination expense in the amount of $2,486.00 for a physiatry assessment, recommended by Canadian Medical Association Centre in a treatment plan (OCF-18) submitted March 14, 2019, denied April 4, 2019, reasonable and necessary?

ii. Is D.R. entitled to an award for unreasonably withheld or delayed payments under s. 10 of O. Reg. 664?

iii. Is D.R. entitled to interest on any overdue payment of benefits?

RESULT

3D.R. has not established that the OCF-18 for the physiatry assessment is reasonable and necessary. No interest is payable.

4D.R. is not entitled to an award.

ANALYSIS

5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, D.R. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. In order to do so, D.R. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

The OCF-18 for a physiatry assessment is not reasonable and necessary

6I find that D.R. has not demonstrated on a balance of probabilities that the disputed OCF-18 is reasonable and necessary.

7D.R. submits that as a result of suffering from chronic pain almost eight years post-accident, which impacts her functional ability, the disputed OCF-18 is reasonable and necessary. She further submits that Aviva recognized the severity of her injuries in that it acknowledged her accident-related injuries fell outside of the Minor Injury Guideline. Her position is that the barriers to her recovery, noted to be chronicity of pain, decreased endurance, restricted ranges of motion in her neck and shoulder, will be addressed by the recommended physiatry assessment.

8D.R. relies on the clinical notes and records ("CNRs") of her family physician, a February 13, 2016 chronic pain report from Dr. Brown, a pain specialist who diagnosed D.R. with chronic pain syndrome, and an August 15, 2015 functional abilities evaluation report from Dr. Csumrik, a chiropractor who identified impairments with sitting, standing, kneeling, squatting, pushing/pulling, lifting and carrying.

9In response, Aviva argues that despite D.R.'s submission that she suffers from it, chronic pain is not noted in the list of injuries at Part 6 of the OCF-18. It specifically notes chronicity of pain as a barrier to recovery and general pain reduction as a treatment goal. Its position is that neither Dr. Brown's report nor any medical documentation supports that any alleged ongoing pain is as a direct result of the accident.

10Aviva also points to the evidence that D.R. has completed school, obtaining a Personal Support Worker degree, and surveillance that shows her engaging in various activities, which it argues does not support that the OCF-18 is reasonable and necessary.

11In his report, Dr. Brown opined that D.R. had several risk factors for chronicity, including, but not limited to, high levels of anxiety in the months following the accident, negative mood, social withdrawal, traumatic life events, duration of pain symptoms, and poor self efficacy. Dr. Brown diagnosed D.R. with chronic pain syndrome, chronic headache, chronic shoulder pain, chronic lumbar spine and sleep disorder. Dr. Brown opined that the result of her injuries is that any type of neural input from the right shoulder and low back is more likely to be interpreted as pain. Dr. Brown concluded that D.R.'s chronic pain has led to fundamental, permanent changes of central processing mechanisms and that her pain and psychological distress are directly related to the accident.

12Since the accident, D.R. has received treatment from MCI Main Exchange for her accident-related injuries. The following timeline provides a history of D.R.'s post-accident evaluation and treatment regime from various treating physicians:

i. October 19, 2015 – Dr. Leung noted that D.R. was experiencing shoulder pain and neck spasms since the accident; diagnosing a whiplash injury and left shoulder injury;

ii. November 24, 2015 – Dr. Diena noted back and shoulder pain as a result of the accident. Dr. Diena also noted that D.R. "tried a number of NSAIDS", but the pain had not improved;

iii. March 12, 2016 – Dr. De Billy noted back tenderness and painful flexion and extension; and

iv. April 4, 2016 – Dr. Diena noted ongoing shoulder pain and stiffness since the accident and low back pain with repetitive lifting.

13I agree with Aviva that D.R. has not established that her ongoing pain has developed as a result of the accident.

14Aviva relies on the May 28, 2019 s. 44 insurer examination reports of Dr. Kessie, general physician, and a June 1, 2015 multidisciplinary report from Dr. Harrington, orthopaedic surgeon and Ms. Rutledge, occupational therapist. Dr. Kessie noted full range of motion of both shoulders with no sign of biomechanical weakness of the shoulder muscles. Dr. Kessie also noted full range of motion of the cervical spine (noting that D.R. complained of stiffness) and discomfort and pain across the back on lumbosacral spine testing. Dr. Kessie concluded that D.R. had normal neurological findings with functional range of motion of the spine and upper and lower extremities. The report from Dr. Harrington and Ms. Rutledge was for the purpose of providing an opinion as to whether D.R. suffered a complete inability to carry on a normal life, therefore, I place little weight on this report, as a non-earner benefit is not an issue in dispute before me.

15Despite the treatment history from MCI Main Exchange, some of these events in the timeline suggest causation while others are merely symptoms happened after the accident, without necessarily drawing the causal connection. This is key, because the medical documentation does not clearly bridge the accident as the cause of the pain, eight years later. Dr. Brown's 2016 report does not, the OCF-18 does not, nor do the MCI Main Exchange CNRs do this. As the main pieces of evidence that D.R. relies on, I find that this evidence is not persuasive in establishing that any alleged chronic pain was sustained as a direct result of the accident.

16Further, although D.R. mainly relies on Dr. Brown report, I find the report is not persuasive for a number of reasons. First, Dr. Brown only reviewed the OHIP records and an April 23, 2015 CNR from UHN Hospital. There is no investigation of chronic pain or referral for chronic pain treatment from these records. Second, Dr. Brown relies mainly on D.R.'s self-reporting in order to diagnose chronic pain syndrome. Third, it appears Dr. Brown was unaware that despite all treatment received to date, D.R. did not notice any major improvement in her medical presentation. Lastly, Dr. Brown's reliance on D.R.'s subjective reporting is unreliable as his assessment did not contain objective validity testing results. Notably, D.R.'s reporting to Dr. Brown more than a year after the accident, was different (reporting her condition to be worsened) from her reporting to the s. 44 assessor, Dr. Loritz, approximately six months after the accident, noting that she achieved 50% recovery. Dr. Brown did not discuss this contradiction in his report, nor is there any objective explanation for the alleged worsening of her accident-related injuries.

17I prefer the report of Dr. Kessie over that over Dr. Brown's. First, Dr. Kessie conducted a more recent report which provides a more recent update of D.R.'s pain profile. Second, Dr. Kessie conducted numerous objective tests to determine what pain, if any, D.R. appears to suffer from, and to what extent does the pain appear to impact her range of motion. Third, Dr. Kessie notes where, if any, pain is present, however, does not find, and is not provided with any subjective reporting, that the pain prevents D.R. from engaging in any of her activities as a result of pain. The evidence shows that she has been able to achieve significant life goals and is independent with self-care tasks and housekeeping.

18For these reasons, I find that D.R. has not established that the disputed OCF-18 is reasonable and necessary.

Interest

19Having found that the OCF-18 is not payable, no interest is payable.

Award

20The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

21D.R. submits that Aviva failed to consider the amount of time that passed since the last functional assessment, nor did it properly consider the necessity of an updated functional assessment given D.R.'s ongoing pain complaints. D.R.'s position is that it improperly relied on the opinions of its assessors, without fairly considering the reports of her own medical assessors or any additional medical records.

22In response, Aviva submits that it properly relied on the reports of its assessors, that it conducted five insurer examinations over the course of adjusting the file, and that the conclusions of its assessors were consistent, therefore, it was justified in its determination. Its position is that D.R.'s claim was fairly adjusted based on the medical evidence she provided, as well as that obtained through expert medical opinion.

23I agree with Aviva.

24Although D.R. may disagree with Aviva's determination that the disputed benefit was not payable, this is not a ground for an award. Aviva relied on the conclusions of its assessors, that I found to be consistent, and made a determination that D.R. was not entitled to the claimed benefit. This determination was in line with the opinions of its assessors, and it was not unreasonable for them to rely on same. Further, while D.R. provided additional medical evidence, I do not find that Aviva's assessors erroneously failed to consider any additional medical records.

25Grounds for an award are not based on a differing of opinion from a determination made by an insurer. There must be established grounds that an insurer acted in an imprudent, unwavering, inflexible, or unwavering manner. Aviva had previously removed D.R. from the Minor Injury Guideline, and subsequently approved numerous OCF-18s for treatment. I do not find that Aviva's previous approval of several OCF-18s and its denial of one recent one, justifies the grounds for an award. Consequently, D.R. has not established that any of those grounds exist in Aviva's determination.

26Accordingly, I find that an award is not appropriate.

ORDER

27D.R. has not demonstrated that the OCF-18 for a physiatry assessment is reasonable and necessary. Accordingly, no interest is payable.

28D.R. is not entitled to an award.