Citation: Vogan v. Aviva Insurance Canada, 2023 ONLAT 21-007293/AABS

Licence Appeal Tribunal File Number: 21-007293/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:

Katrina Vogan

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Rupa L Karyampudi, Counsel

For the Respondent: Michael W Chadwick, Counsel

HEARD: by Videoconference: March 7, 2023

OVERVIEW

1Ms. Katrina Vogan, the applicant, was involved in an automobile accident on December 31, 2016. She was struck by a vehicle while riding her bicycle. As a result, she sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Ms. Vogan received income replacement and medical benefits following the accident, but after a series of assessments, the benefits were terminated by the respondent, Aviva Insurance Company. Ms. Vogan applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES

2The issues in dispute are:

i. Is Ms. Vogan entitled to an income replacement benefit (IRB) in the amount of $393.46 per week, less any post-accident income, from July 1, 2019, until September 1, 2022?

ii. Is Ms. Vogan entitled to a physiotherapy treatment plan for $1,311.33 recommended by CBI Health Group and submitted on March 1, 2019?

iii. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Vogan?

i. Is Ms. Vogan entitled to interest on any overdue payment of benefits?

RESULT

3Ms. Vogan is entitled to an IRB in the amount of $393.46 per week from July 1, 2019, until September 1, 2022, less any post-accident income, plus interest in accordance with the Schedule.

4Ms. Vogan is not entitled to a physiotherapy treatment plan or an award.

ANALYSIS

Ms. Vogan is entitled to an income replacement benefit

5Ms. Vogan is entitled to an IRB.

6To prove entitlement to a post-104-week IRB under s. 6 of the Schedule, the insured must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

7Prior to the accident, Ms. Vogan was working full-time. She had completed a high school education and was a few credits short of her bachelor’s degree. She had no other training other than what was provided to her in her previous occupations. At the time of the accident, Ms. Vogan worked in a sales role for a small theatre company. Her duties were group sales, interfacing with customers, and resolving complaints. She also was responsible for some small marketing duties and administrative work. She testified that the work involved using the computer and telephone. Her previous employment included part-time work as a writer, copywriter, and editor for various companies and part-time work as a manager at her university’s pub and lounge.

8Ms. Vogan must prove her accident-related injuries prevented her from returning to a full-time position for any job that would fit within her previous education, training, or experience.

9The parties largely agree on Ms. Vogan’s accident-related impairments. At a minimum, she suffered a cervical and lumbar strain/sprain, a concussion, sensitivity to light, ongoing headaches secondary to a mild traumatic brain injury, an exacerbation of her pre-accident psychiatric symptoms and a new development of adjustment issues because of reported concussion symptoms and anxiety related to riding her bicycle.

10Following the accident, Aviva paid her income replacement and medical benefits. After a series of assessments, Aviva terminated the benefits based on the opinion of various doctors that Ms. Vogan could return to full-time work. However, the neurologist indicated that appropriate accommodations may be required.

11Ms. Vogan argues that she is entitled to IRB because the consistent screen use exacerbated her symptoms, she struggled with fatigue, depression, and chronic headaches. She argues that she must take frequent breaks to manage her symptoms and a reduced university class schedule to minimize the symptoms. Ms. Vogan relies on various medical records from her treating psychiatrist Dr. Bentley, her other treating psychiatrist, Dr. Bhalerao from St. Michael’s head-injury clinic, and her treating occupational therapist (OT).

12During the period in question, the most prevalent symptoms complained about by Ms. Vogan were her headaches, reduced concentration, and fatigue.

13Based on the limitations, restrictions and pacing strategies being recommended by her treating practitioners, I find Ms. Vogan had a complete inability to engage in any employment. For the period she is claiming IRB, I find she was severely limited in the amount of time she could concentrate on one activity without taking an extended break. Both her treating psychiatrists opined on her inability to return to full-time work because of limited concentration tolerances. Dr. Bentley indicated in his letter dated August 29, 2019, that Ms. Vogan’s cognitive, emotional, and physical symptoms worsen after an activity. Dr. Bhalerao supported the opinions of Dr. Bentley and in a letter authored after July 17, 2019, he opined that Ms. Vogan could not return to full-time work because of her decreased energy levels, inability to multi-task, and difficulties with extended focus and screen time. I find that the various clerk positions being recommended by Aviva’s vocational assessor or any job that Ms. Vogan had previous training, experience, or education for, would require at a minimum an ability to focus, multi-task and use a computer.

14I also find her recommended pacing strategies to reduce her cognitive symptoms were such that an employer would not be able to accommodate them. In 2019, when Aviva terminated the IRBs, Ms. Vogan was on a pacing strategy to minimize her fatigue symptoms. The strategy was recommended by her treating OT Ms. Goodfield. Ms. Vogan would complete a one-hour activity followed by a one-hour rest period. She would only complete two writing activities per day. By January 2020, Ms. Vogan’s recommended pacing strategy showed an improvement in her abilities. For example, a planned activity schedule dated January 22, 2020, demonstrates that Ms. Vogan could participate in a two-hour activity before a two-hour break. She then could participate again in an activity for 1.5 hours before taking another rest and then again, a one-hour study session before preparing dinner. Throughout 2020, schedules planned with her treating OT involved anywhere from 1-3 hours of concentration (tutorial, reading, or class) followed by a 1-hour break. Ms. Vogan testified that from August 2021 until September 2022 she could complete 2-3 hours of work with a 1-hour break. I find that Ms. Vogan would not be able to be a productive employee with such schedules and therefore would not be able to engage in any employment.

15Aviva argues that because Ms. Vogan completed her Bachelor’s degree, Master’s degree and was accepted into a Ph.D. program with exemplary marks it proves she is employable. I disagree. I prefer the opinion of Dr. Bentley in his letter dated August 29, 2019, that stated she was not employable because she struggled with her coursework following the accident despite these courses not being held daily, allowing for much rest time in between academic commitments and her ability to self-structure her day. A schedule that would not be available to Ms. Vogan in the workplace.

16Also, Ms. Vogan’s academic accommodation was such that she would not be competitively employed. While completing her bachelor’s degree her accommodation included not assigning more than 1 schedule in a three-day period, exams/tests scheduled at a time of day convenient for her, and a peer note taker. While completing her master’s degree the recommendations by Dr. Tam, Physical Medicine and Rehabilitation Specialist, included structured schedules, a notetaker, and turning the camera off for Zoom classes to avoid visual stimuli. It also involved the need for frequent breaks from writing. Again, I find Ms. Vogan had too many limitations and restrictions that affected her employability and productivity.

17Aviva argues that her ability to work as a teacher’s assistant during her master’s program demonstrates her ability to work. Ms. Vogan testified that she only worked about 10 hours a week. I also note that her very limited part-time job was factored into her pacing schedules with her OT. She could only complete 1-3 hours of concentration, regardless of the activity, followed by a 1-hour break. During that time, Ms. Vogan was also not taking a full-time academic course load. I find that Ms. Vogan’s ability to work 10 hours a week, with a part-time academic schedule, and her ability to self-structure her schedules and take large breaks in between periods of concentration, do not demonstrate an ability to work full-time.

18I prefer the medical opinions of Ms. Vogan’s treating practitioners over Aviva’s assessors. I find Aviva’s assessors did not explain why they felt Ms. Vogan could return to work while still suffering from the impairments caused by the accident. The neurologist, Dr. Desai, said Ms. Vogan has seen some improvement but is not at her baseline. Based on his assessment, it was unclear whether she reached maximal medical recovery. The assessor opined that given her intermittent headaches it was his opinion that she could return to work. He stated that since her headaches are precipitated primarily by bright lights and cognitive tasks, appropriate accommodations such as sunglasses may be required. I am not clear how wearing sunglasses would rectify her limited tolerance for cognitive tasks. Also, Aviva’s expert psychiatrist, Dr. Ballon, in his report stated at the time of the assessment Ms. Vogan had ongoing mild symptoms of an adjustment disorder and phobia of riding her bicycle. He opined that she could return to work, as evidenced by her current level of functionality which allowed her to attend modified and accommodated university work. Again, I am not clear how Ms. Vogan’s ability to attend school on a modified and accommodated basis, to the degree that was being recommended for her, is akin to full-time work.

19Lastly, Aviva argues that Ms. Vogan has not produced a medical opinion that opines on the IRB test and therefore has not met her evidentiary burden. I find she is not required to do so. The IRB test is a legal test, not a medical one. It is not the expert’s or treating practitioner’s role to assert whether the person meets a legal test. An insured or insurer can use medical opinions and/or treatment records to support or determine entitlement to benefits.

20I find that Ms. Vogan is entitled to an IRB during the period being claimed. She has produced enough medical evidence to satisfy me that she was incapable of working in any occupation where she had previous training, education, or experience.

Ms. Vogan is not entitled to a physiotherapy treatment plan

21Ms. Vogan requests entitlement to a massage and physiotherapy treatment plan dated March 1, 2019, recommended by CBI Health Group. Ms. Vogan argues that she found physiotherapy beneficial and reduced her pain levels.

22Aviva argues that the treatment was denied based on a s. 44 independent assessment by Dr. Auguste, an orthopaedic surgeon, who opined that it was not reasonable or necessary. She indicated that Ms. Vogan had reached maximal medical improvement and that there were no ongoing injuries.

23To prove entitlement to a treatment and assessment plan for medical and rehabilitation benefits under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

24I find that Ms. Vogan has not proven that she had ongoing physical impairments that required physiotherapy treatment. Ms. Vogan testified that her physiotherapy helped her feel good physically which helped her feel good mentally. She also testified that it helped her feel less sore and stiff. I do acknowledge that at some point Ms. Vogan had physical impairment issues necessitating treatment but at the time of the s. 44 orthopaedic assessment, Dr. Auguste found no muscle tension and that Ms. Vogan had a full range of motion. Also, during the assessment, Ms. Vogan did not complain of any ongoing pain issues. She expressed to Dr. Auguste that she was having symptoms relating to her psychiatric and brain impairment. Therefore, on a balance of probabilities, I find the physiotherapy treatment plan not reasonable and necessary.

Ms. Vogan is not entitled to an award

25Ms. Vogan sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

26Ms. Vogan claims entitlement to an award because Aviva unreasonably denied her IRB and a physiotherapy treatment plan. She argues Aviva failed to reconsider its prior decision when new medical information became available to it. After the denial of benefits, Ms. Vogan sent updated and new medical information to Aviva between April 14th - May 21^st, 2020. Ms. Vogan claims that based on the adjuster’s log notes, the records were reviewed on August 11^th, 2020, and no further action was taken.

27Aviva argues that there is no evidence that it unreasonably withheld or delayed payment of the benefits. Aviva submits that it relied on the conclusions of its medical assessors and properly denied the benefits. Therefore, it claims Ms. Vogan is not entitled to an award.

28An award is a punitive payment paid to the insured if the insurer unreasonably withheld or delayed the payment of benefits. The following examples could be considered unreasonable conduct by the insurer:

i. failing to provide medical information to its assessors,

ii. failing to consider new information,

iii. blindly following a poorly written or explained expert report,

iv. failing to pay approved benefits.

29For example, the Tribunal has consistently found that an insured may be entitled to an award if they are able to demonstrate:

i. how the benefit was withheld or delayed,

ii. how the insurer failed to take into consideration alternative information or opinions,

iii. when the necessary information regarding the benefit became available to the insurer,

iv. any follow-up made by treating practitioners, the insured or by a representative to the insurance company, or

v. whether damage or harm was experienced by the insured because of the insurance company’s inaction. For example, an exacerbation of symptoms, increased functional impairments, and/or a financial burden.

30The parties should indicate the percentage of the award being sought, and why, directing the Tribunal to specific examples. The insurer may also provide mitigating factors that should be considered. The burden of proof is on the insured.

31In this case, Ms. Vogan claims that medical information was sent to Aviva after it denied the benefits and that this should have changed its opinion regarding the benefits. Ms. Vogan did not provide any evidence to support her submissions that specific documents were sent to Aviva in April and May 2020. From the log notes I cannot determine whether Aviva received the letters by Dr. Bentley or Dr. Bhalerao that could have been influential in reversing Aviva’s decision. From what is contained in the log notes from August 11, 2020, the medical records reviewed by the adjuster did not have information that would have explained Ms. Vogan’s difficulties with her brain injury and how it impacted her ability to work or entitlement to physiotherapy.

32I find Aviva acted reasonably based on the medical information it had. It relied on the opinions of its assessors which it is entitled to do. I am not clear when Aviva received the letters from the treating psychiatrists or the occupational therapy clinical records that might have impacted its decision. Since I do not have enough evidence to support that Aviva had alternative medical information that it ought to have reconsidered its decision, I find that Aviva acted in good faith.

33Ms. Vogan is not entitled to an award.

Interest

34Ms. Vogan is entitled to interest, in accordance with the Schedule, on the overdue IRB.

ORDER

35I order that Ms. Vogan is entitled to $393.46 per week from July 1, 2019, until September 1, 2022, less any post-accident income, and interest.