Citation: Walters v. Aviva General Insurance, 2023 ONLAT 20-013335/AABS

Licence Appeal Tribunal File Number: 20-013335/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:

Sherene Walters

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Catherine Zingg, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Sherene Walters, the applicant, was involved in an automobile accident on July 21, 2016, 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 Aviva General Insurance, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was rear-ended while she was stopped at a red light. She alleges that she suffers from chronic pain in her back and shoulders and a psychological impairment. She also alleges that pre-existing back pain has prevented her from fully recovering from her back injury.

3The applicant sought funding for several assessments and psychological treatment. The respondent refused to provide funding on the grounds that she sustained a predominantly minor injury as defined in s. 3 of the Schedule, and was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”). It also took the position that the proposed services were not reasonable and necessary.

4The applicant seeks determinations that she is not limited to $3,500.00 in medical and rehabilitation benefits, and that she entitled to the assessments and psychological treatment in dispute with interest.

ISSUES

5The issues in dispute are:

1. Did the applicant sustain a predominantly minor injury subject to treatment under the $3,500.00 limit on medical and rehabilitation benefits?

2. Is the applicant entitled to the following assessments proposed by Novo Medical Services:

i. $2,200.00 for a chronic pain assessment, proposed in a treatment plan/OCF-18 (“plan”) dated November 28, 2019;

ii. $2,200.00 for a psychological assessment, proposed in a plan dated June 11, 2020; and

iii. $3,700.00 for magnetic resonance imaging (“MRIs”), proposed in a plan dated August 18, 2020?

3. Is the applicant entitled to $3,641.09 for psychological services, proposed by Novo Medical Services Inc. in a plan dated September 30, 2020?

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

6Issue three is not one of the issues set out in the Case Conference Report and Order of July 13, 2021. The applicant states in her submissions that the Tribunal inadvertently omitted it. The respondent did not object to the issue being added and addressed it in its submissions. I have therefore considered this issue.

7The applicant also claimed an award under s. 10 of Regulation 664 for the first time in her submissions. The respondent objects to this issue being added. As discussed below, I decline to add this as an issue.

RESULT

8The applicant sustained a non-minor injury and is therefore not limited to $3,500.00 in medical and rehabilitation benefits.

9The applicant is entitled to the proposed chronic pain assessment, psychological assessment, and psychological services, with interest. She is not entitled to the proposed MRIs.

DID THE APPLICANT SUSTAIN A PREDOMINANTLY MINOR INJURY SUBJECT TO TREATMENT UNDER THE $3,500.00 LIMIT ON MEDICAL AND REHABILITATION BENEFITS?

10Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

11Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500.00 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

12A minor injury is defined in s. 3 of the Schedule 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.”

13The onus is on the applicant to prove that her injuries are not subject to treatment under the $3,500.00 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

14The applicant sustained strains of her shoulders and lower back in the accident. These are minor injuries as defined in s. 3 of the Schedule. She argues that she suffers from two non-minor injuries: chronic pain and a psychological impairment. She also argues that her pre-accident back pain is a pre-existing medical condition within the meaning of s. 18(2).

15I find that the applicant suffers from chronic pain causing functional impairment that qualifies as a non-minor injury.

16The applicant must prove that she suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28.

17The applicant notes that she frequently visited her family doctor regarding shoulder and lower back pain for years following the accident. She relies on the report of Dr. T. Getahun, an orthopaedic surgeon, who opined that she suffers from chronic pain syndrome according to the test set out in the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”).

18The respondent submits that the applicant does not meet the test for chronic pain syndrome set out in the sixth edition of the AMA Guides.

19I find that the applicant consistently reported experiencing pain to her family doctor and other medical professionals for years following the accident:

1. On July 21, 2016, the day of the accident, the applicant visited her family doctor complaining of pain in her shoulders and lower back. The doctor’s physical examination identified tenderness in both shoulders and the paralumbar spine, and mild range of motion restrictions.

2. The applicant saw her family doctor again regarding pain on July 26, 2016, three times in August 2016, twice in late 2017, once in 2018, and three times in 2020.

3. The applicant’s family doctor ordered diagnostic imaging of her lumbar spine and sacroiliac joints on November 29, 2017, and referred her to a rheumatologist on December 6, 2017 to assess whether and how autoimmune issues were contributing to her pain. MRIs of her lumbar spine and sacroiliac joints were conducted on February 25 and 26, 2018.

4. The applicant reported experiencing pain to Dr. Getahun on June 12, 2020, to Dr. L. Steiner (a psychologist whom she retained to conduct an assessment) on August 27, 2020, and to Dr. R. Day (a psychologist retained by the respondent to conduct an independent assessment) on March 9, 2021.

20I find that the impact of the applicant’s pain on her ability to work constitutes functional impairment. At the time of the accident, she was a meat cutter at a factory. It was physical work that required prolonged standing, walking, and repetitive lifting and carrying of 20-pound objects. The applicant did not return to work until three weeks after the accident due to her pain and limited range of motion. She returned to work on modified duties but continued to struggle with pain, and eventually resigned in 2018.

21The applicant reported to Dr. Getahun that due to pain, she has difficulty performing pre-accident household chores such as cooking, cleaning, laundry, shopping, and garbage removal. This is further evidence that her pain causes functional impairment.

22The applicant reported similar difficulties with caregiving tasks and household chores to Dr. Steiner, but denied having any such difficulties to Dr. Day. As discussed below, I find that the information the applicant provided to Dr. Steiner is more accurate.

23As I have found that the applicant’s chronic pain is a non-minor injury, I need not consider whether she suffers from chronic pain syndrome or a psychological impairment, or whether her pre-accident back pain is a pre-existing medical condition within the meaning of s. 18(2) of the Schedule.

IS THE APPLICANT ENTITLED TO THE ASSESSMENTS AND PSYCHOLOGICAL SERVICES IN DISPUTE?

24The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including the costs of assessments prepared in connection with those benefits. The onus is on the applicant to prove that the proposed services are reasonable and necessary.

Chronic Pain Assessment

25I find that the applicant is entitled to the cost of the proposed chronic pain assessment.

26The applicant submitted the treatment plan for the chronic pain assessment on November 28, 2019. The respondent denied the treatment plan in an Explanation of Benefits dated January 20, 2020. The applicant proceeded with the assessment, which Dr. Getahun conducted.

27The applicant submits that she is entitled to the assessment because she suffers from chronic pain. In response to the respondent’s argument that she does not meet the test for chronic pain syndrome under the AMA Guides, sixth edition, she argues that the test is whether there is a reasonable possibility that she has the condition the assessment is designed to investigate, and whether the evidence supports that the claimed assessment is reasonable and necessary: Almonte v Wawanesa Mutual Insurance Company, 2022 CanLII 45254 (ON LAT) at para 33. She also submits that she is entitled to the assessment pursuant to s. 38(11)2 of the Schedule because the respondent breached s. 38(8) by failing to provide medical or other reasons for the denial and by failing to provide notice of the denial within ten business days.

28The respondent submits that it properly denied the assessment for the reasons given in the January 20, 2020 Explanation of Benefits. It did not address the applicant’s argument that it failed to comply with s. 38(8) of the Schedule.

29I find that the chronic pain assessment is reasonable and necessary. Given that I have found the applicant suffers from chronic pain, there was clearly good reason for an assessment to make a diagnosis and treatment recommendations. As the applicant is entitled to the assessment regardless of whether the respondent complied with ss. 38(8), I need not decide that issue.

MRIs

30I find that the applicant is not entitled to the cost of the proposed MRIs.

31The applicant submitted the treatment plan for MRIs on August 18, 2020. Two MRIs were proposed, one for the “total body” and another for the “spinal vertebrae,” which presumably refer to the shoulders and lower back respectively. In an Explanation of Benefits dated September 1, 2020, the respondent denied the treatment plan on the grounds that the applicant had sustained a predominantly minor injury and the proposed MRIs were covered by OHIP.

32The applicant submits that she is entitled to the assessment pursuant to s. 38(11)2 of the Schedule because the respondent breached s. 38(8) by failing to provide medical reasons for the denial. She also argues that the respondent ignored Dr. Getahun’s report and her medical records, which indicate the need to investigate her lower back and shoulder pain, that the respondent acted in bad faith by suggesting that she obtain the MRIs under OHIP during the COVID-19 pandemic, and that the Explanation of Benefits does not identify the proposed services in the treatment plan.

33The respondent submits that it is not obligated to pay for the MRIs because the applicant could have obtained them under OHIP. It relies on s. 268(6) of the Insurance Act, RSO 1990 c I.8, which provides that the applicant’s accident benefits insurance is excess to any other insurance, and s. 47(2) of the Schedule, which provides that payment of a medical benefit is not required for the portion of an expense that is reasonably available under any other insurance plan or law. It notes that the applicant obtained OHIP-funded MRIs of her lumbar spine and sacroiliac joints in February 2018.

34Section 38(8) provides that if an insurer denies a treatment plan, it must provide “the medical reasons and all of the other reasons” why it considers the proposed services not to be reasonable and necessary. Subsection (9) provides that if an insurer believes that the MIG applies, the notice under ss. (8) must so advise.

35I find that the respondent complied with s. 38(8) by providing the medical and other reasons why it considered the treatment not to be reasonable and necessary. The Explanation of Benefits stated that based on its review of the applicant’s file, the respondent considered her to have sustained a minor injury, and there was no objective, compelling evidence that her injuries required treatment beyond what was available under the MIG or that she had a pre-existing medical condition that would prevent her from achieving maximal recovery under the MIG. It also stated that the proposed goods and services were covered by OHIP. Although the respondent did not refer to the MRIs by name, it clearly understood that these were the proposed services given that it correctly noted the date, author, and amount proposed in the treatment plan.

36Under s. 47(2), the onus is on the insurer to advance some evidence or submission that establishes the MRIs were reasonably available to the insured under OHIP. The burden then shifts to the insured to prove that the benefit was not reasonably available: G.T. v Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) (Reconsideration) at para 27.

37I find that the respondent has met its onus by identifying that the applicant previously obtained OHIP-funded MRIs. This indicates that MRIs can be obtained under OHIP. The applicant did not refer me to any evidence that the proposed MRIs were not reasonably available under OHIP except to note that the COVID-19 pandemic was underway. That fact on its own is insufficient to meet her onus.

38Furthermore, the applicant has not established that an MRI of her lumbar spine is reasonable and necessary given that she had already obtained one when she submitted the treatment plan, and she has not explained why she needed another.

Psychological Assessment

39I find that the applicant is entitled to the cost of the proposed psychological assessment.

40The applicant submitted the treatment plan for the psychological assessment on June 11, 2020. The respondent denied the treatment plan in an Explanation of Benefits dated June 22, 2020. The applicant proceeded with the assessment, which Dr. Steiner conducted.

41The applicant submits that if the respondent sent the Explanation of Benefits by mail, s. 62(18) of the Schedule provides that it would be deemed to have been given more than 10 business days after the submission date of the treatment plan. However, the respondent’s copy of the Explanation of Benefits shows that it was sent by fax on June 22, 2020, which was within 10 business days.

42The applicant also relies on Dr. Steiner’s report, in which he diagnosed her with adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder, and specific phobia – situational phobia. He noted that she broods over her limitations due to the accident, experiences low mood and anxiety as a driver or passenger, exercises and socializes less due to pain and reduced motivation, has concerns regarding loss of concentration, forgetfulness, and difficulty making decisions, and has difficulty performing caregiving tasks and household chores. He found that her scores on several diagnostic tests were indicative of moderately severe depression and anxiety, and frequent catastrophic thinking about her pain.

43The respondent relies on Dr. Day’s report, in which he concludes that the applicant did not sustain a psychological impairment due to the accident. Dr. Day noted that the applicant did not identify any current psychological issues or concerns, did not report any symptoms of a psychological disorder, and “clearly and unambiguously stated that she does not believe that she requires psychological intervention.” According to his report, she stated that despite her pain, she had resumed almost all her pre-accident activities, that the accident did not alter her social interactions, and that there had been no changes in her pattern of activities compared to what it would have been had the accident not occurred. Her score on the Personality Assessment Inventory, a diagnostic test, did not indicate the presence of clinical psychopathology. Her score on the Pain Patient Profile, another diagnostic test, indicated that she experienced less difficulty on the depression and somatization scales than is typically seen in pain patients, and average difficulty on the anxiety scale.

44It is unsurprising that Dr. Steiner and Dr. Day came to different conclusions given that the applicant provided them very different information. On a balance of probabilities, I find that the information the applicant provided to Dr. Steiner more accurately represents the state of her mental health. The following facts belie her assurances to Dr. Day that she has no psychological issues and does not require treatment:

1. She requested that the respondent fund the cost of a psychological assessment. When the respondent refused to do so, she proceeded with the assessment at her own expense.

2. She similarly requested benefits for psychological treatment and obtained treatment at her own expense when the respondent denied those benefits. She had four sessions with a psychotherapist between November 27, 2020 and August 12, 2021. The psychotherapist’s notes indicate that the treatment did not go very far. She denied having any concerns about the accident at the second session, but reported feeling anxiety while driving at the third. She cancelled the fourth appointment and she said she would contact the psychotherapist to book another, but it appears she did not. In my view, this indicates that the applicant did have mental health issues she wanted to address, but that she was reluctant to acknowledge them and ambivalent about obtaining treatment.

3. Given that the applicant met Dr. Day only once for an independent assessment arranged by her insurer, it is understandable that she would be unwilling to confide in him about what was clearly an uncomfortable subject.

4. Dr. Day noted that the applicant’s score on the Personality Assessment Inventory provided “some indication that she may be reluctant to acknowledge difficulties and problems.”

5. Dr. Day noted that the applicant scored in the average range for pain patients on the anxiety scale of the Pain Patient Profile.

6. Dr. Day did not administer the tests for depression and anxiety that Dr. Steiner did, and was unable to score the applicant on the Pain Catastrophizing Scale because she left some questions unanswered.

45As I am persuaded that the applicant experienced continuing mental health issues after the accident, I find that an assessment to investigate those issues was reasonable and necessary.

Psychological Services

46I find that the applicant is entitled to the proposed psychological services.

47Dr. Steiner completed the treatment plan, in which he proposed 12 sessions of mental health counselling and associated expenses for planning, documentation, and support activities. In an Explanation of Benefits dated November 6, 2020, the respondent denied the treatment plan and advised that it would commission an independent assessment. In a follow-up Explanation of Benefits dated April 12, 2021, it maintained the denial based on Dr. Day’s opinion that the applicant had no accident-related psychological condition requiring intervention.

48I find that the proposed psychological treatment is reasonable and necessary. In his report, Dr. Steiner recommended that the applicant obtain 12-16 sessions of psychotherapy. Dr. Day opined that the proposed treatment was not reasonable and necessary based on his conclusion that the applicant did not suffer from a psychological condition due to the accident. As I have found that the applicant does experience continuing mental health issues, I prefer Dr. Steiner’s opinion.

IS THE APPLICANT ENTITLED TO AN AWARD?

49Section 10 of Regulation 664 states that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award if the respondent unreasonably withheld or delayed payments.

50The applicant submits that although an award is not stated as an issue in the Case Conference Report and Order, the Tribunal has jurisdiction to add it at any stage of the hearing process: 17-006302 v Aviva General Insurance, 2018 CanLII 61159 (ON LAT). She argues that the respondent acted in bad faith by failing to obtain an independent assessment of her physical injuries, and by closing her accident benefits file from November 6, 2018 to January 17, 2020 purportedly due to inactivity despite having received an invoice for a disability certificate (OCF-3) on February 20, 2019 and a treatment plan on November 28, 2019.

51The respondent objects to the claim for an award being added as an issue because the applicant did not provide notice or particulars. In answer to the claim, it argues that it was unable to respond to the applicant in a timely manner because she did not provide her medical records under September 29, 2021.

52I decline to add an award as an issue. While the Tribunal has jurisdiction to add an award as an issue at any stage, the applicant has not identified why it should do so given that the respondent would be prejudiced by the lack of notice and particulars.

IS THE APPLICANT ENTITLED TO INTEREST?

53The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ORDER

54The applicant sustained a non-minor injury and is therefore not limited to $3,500.00 in medical and rehabilitation benefits.

55The applicant is entitled to the proposed chronic pain assessment, psychological assessment, and psychological services, with interest.

56The applicant is not entitled to the proposed MRIs.