Citation: Yeo v. Aviva Insurance Canada, 2023 ONLAT 21-006451/AABS

Licence Appeal Tribunal File Number: 21-006451/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:

Eunjin Yeo

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Kevin Lundy

APPEARANCES:

For the Applicant: Eunjin Yeo, Applicant Jae Hyon Cho, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By Written Submissions

OVERVIEW

1Eunjin Yeo (the ‘applicant’) was involved in an automobile accident on July 25, 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 Aviva Insurance Canada (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

2On July 25, 2018, the applicant was driving to church to sing in the choir when her vehicle was rear-ended by another vehicle. She was wearing her seatbelt and the airbags in her vehicle did not deploy. Police and paramedics did not attend at the scene. At the time of the accident, she was a 38 year old musician also working as a piano instructor. She contacted her mother-in-law who drove her to church as planned and did not immediately seek medical attention.

ISSUES

3The issues to be decided in the hearing are:

1. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from August 25, 2018 to July 25, 2020?

2. Is the applicant entitled to $2,200.00 for the cost of examination for a psychiatric and chronic pain assessment, proposed by Direct Comfort Ltd. in a treatment plan/OCF-18 (‘plan’) submitted December 26, 2020 and denied December 30, 2020?

RESULT

4I find that:

(i) The applicant is not entitled to a non-earner benefit; and

(ii) The applicant is not entitled to $2,200.00 for the cost of examination for a psychiatric and chronic pain assessment as proposed by Direct Comfort Ltd.

ANALYSIS

Overview

5The applicant relies primarily on a chronic pain physical assessment report prepared by Dr. Jinoos Jianfar, family physician, and Dr. H. Mohsini, chiropractor, dated November 23, 2020 based upon their assessment conducted on November 20, 2020. At this assessment, the applicant reported that within hours of the accident, she experienced increasing pain in her neck, shoulders, back and right knee area. This pain continued to increase over the next few days. As a result of the accident, the applicant has also experienced headaches, difficulty with memory and concentration, poor sleep, anxiety and depression. She reported that sleep had not been restorative with frequent episodes of waking up due to pain preventing her difficulty finding a comfortable position. She has also felt anxious while driving or riding as a passenger in a vehicle. Dr. Jianfar and Dr. Mohsini were not provided with any medical reports or imaging to review with respect to their report.

6The applicant stated during the above examination that she had attended her family physician and was prescribed pain medications. However, clinical notes and records from the applicant’s family doctor, Dr. Daniel Yim, include no mention of the accident to support the applicant’s claim.

7The applicant initially attended for physiotherapy two to three times per week but decreased this level of attendance due to childcare issues. She reported receiving various physical therapy modalities such as electrotherapy, heat therapy, massage therapy and facility-based interventions. Although she reported that her pain improved with physical therapy, she discontinued the therapy entirely in March 2020 due to her pregnancy and restrictions related to the COVID-19 pandemic. She has not returned to any formal physical therapy since that time.

8Dr. Nikolaos Harmantas is a medical doctor practicing in the management of work injuries and disability medicine. On March 7, 2019, he conducted a musculoskeletal examination of the applicant and diagnosed her with soft tissue injuries to her cervical spine (WAD I/II), shoulders and lumbar spine as a result of the accident. Dr. Harmatas remained consistent in his opinion throughout a series of subsequent reports, specifically a paper review report dated August 9, 2019, an addendum report dated November 15, 2019 and an additional in-person musculoskeletal examination conducted on July 2, 2021, none of which included any change to his initial diagnosis.

9On March 22, 2019, occupational therapist, Yaseela Markandu, conducted an occupational therapy assessment with the applicant. Ms. Markandu noted discrepancies between the applicant’s complaints about what she could do and the applicant’s observed activities. Specifically, despite her reported limitations, the applicant demonstrated an adequate range of motion, strength and physical abilities to resume day-to-day activities. She also advised that she was independent in her self-care activities. She described being able to work as a piano teacher, including commuting to this job. Her pregnancy at the time of the assessment had more impact on her ability to complete tasks than any significant accident-related impairment. Ms. Markandu subsequently authored an addendum report, dated November 15, 2019, in which she did not change her original diagnosis.

10On October 31, 2019, Dr. Brandon Matthew Kucher conducted a neurological examination of the applicant. Dr. Kucher noted exaggerated pain responses from the applicant during the assessment and detected no objective neurological impairment. On June 17, 2021, the applicant underwent a psychiatry examination with Dr. Bruce Ballon, psychiatrist. Dr. Ballon diagnosed the applicant with a specific phobia with respect to driving as a driver and a passenger. However, not only did the applicant advise during this assessment that she was not interested in psychological treatment, but she also continued to drive.

Entitlement to Non-Earner Benefit

11I prefer the evidence and submissions of the respondent over those of the applicant and find that the applicant has not demonstrated on the balance of probabilities that she is entitled to a non-earner benefit.

12Subsection 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an 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 and does not qualify for an income replacement benefit. Subsection 3(7)(a) of the Schedule defines “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.”

13In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the Ontario Court of Appeal set out the guiding principles relating a claimant’s entitlement to non-earner benefit:

1. The starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life involves a comparison between the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

2. Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

3. In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.

4. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

5. The phrase “engaging in” should be interpreted from a qualitative perspective to indicate more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity.

6. In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

14Following the Tribunal’s analysis in 16-001698 v. Northbridge General Insurance, 2017 CanLII 77389, the applicant bears the burden of proving her claim for a non-earner benefit on a balance of probabilities and must demonstrate both a causal link between the accident and her impairment and that her impairment results in a complete and continuous inability to carry on a normal life. I find this analysis persuasive and applicable to the present facts.

15In the present case, I find that the applicant has failed to establish that she suffers from a complete and continuous inability to carry on a normal life. Although the volume of her work as a self-employed music teacher declined following the accident, this reduction appears to have been a result of restrictions related to the pandemic rather than as a consequence of the accident. There is also no evidence that the accident significantly impacted the applicant’s day-to-day life as she continues to be fully independent with respect to self-care, childcare and driving, as well as playing the piano, an activity important to her pre-accident life.

16The applicant’s entitlement to the non-earner benefit was also thoroughly assessed through multiple insurer’s examinations. From a musculoskeletal perspective, the applicant was deemed to have suffered soft tissue injuries as a result of the accident. Similarly, no neurological impairment was detected. No significant impairment in her day-to-day functioning was detected that would prevent the applicant from engaging in the activities she enjoyed prior to the accident. Consequently, the applicant was not deemed to suffer from a complete inability to carry on a normal life.

17By contrast, although in their “Chronic Pain Physical Assessment Report,” Dr. Moshini and Dr. Jianfar found that the applicant suffered a “substantial inability” when it comes to completing household chores and that “she is unable to attend some … activities” such as socializing, their report omits any mention of the “complete inability” test or the non-earner benefit.

18Similarly, the applicant also relies on the “Psychiatric Assessment Report” authored by David Ross and Dr. Atih Seif, which also does not reference the non-earner benefit. Instead, this report includes a recommendation that the applicant receive an income replacement benefit, the entitlement test for which is substantively different. To that end, although Mr. Ross and Dr. Seif indicate that the applicant suffers from “a substantial inability to carry on a normal life,” this is not the correct test for the non-earner benefit.

19Ultimately, neither the two reports submitted by the applicant nor the clinical notes and records from her physician indicate that the applicant has suffered a complete inability to carry on a normal life as a result of the comparatively minor accident on July 25, 2018. In light of all of the evidence submitted, I find that the applicant failed to demonstrate any of the factors required to establish entitlement to a non-earner benefit pursuant to the analysis in Heath.

Entitlement to Medical Benefit

20I prefer the evidence of the respondent over that of the applicant and find that the applicant has failed to meet her onus in establishing that this treatment plan is reasonable and necessary.

21The applicant takes the position that the chronic pain and psychiatric assessment was reasonable and necessary to understand her ongoing injuries over two years after the accident and to prepare a treatment plan. However, there must be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment. As noted above, the applicant submitted no clinical notes from her family physician that would demonstrate or support the existence of chronic pain.

22In his musculoskeletal examination report dated July 2, 2021, Dr. Harmantas specifically commented on the reasonableness of this treatment plan. He found that in light of the applicant’s uncomplicated soft tissue injuries and the time that had elapsed since the accident, the treatment plan was not reasonable or necessary.

23I find that the applicant’s evidence submitted in support of a chronic pain determination is unpersuasive. Dr. Mohsini and Dr. Jianfar stated in their report that the applicant continued “to have chronic pain and activity limitations over two years” after the accident and that “the prognosis for complete recovery to a pre-accident functional and physical state” was below average. They also stated that she suffered “a substantial inability to perform some of the heavier pre-accident demanding housekeeping and home maintenance activities” and was “limited in her return to her pre-accident leisure and social activities directly as a result of the injuries sustained in this accident.” They also found that the applicant prefers “to minimize social interactions and activities due to lack of motivation and persistent fatigue” and reported “staying home and keeping to herself.”

24While the above examples relate to the effects of “chronic pain,” the respondent highlighted the criteria needed to establish chronic pain syndrome. In her submissions, the applicant does not distinguish between chronic pain and chronic pain syndrome, the former being the state of having constantly recurring pain in an area of the body and the latter as a debilitating condition. However, the above excerpts from the Direct Comfort Ltd. report appear to address several of the criteria typically cited as evidence of chronic pain syndrome.

25In the 6th edition of “Guides to the Evaluation of Permanent Impairment,” the American Medical Association standardized a definition of chronic pain syndrome (the ‘AMA Guideline’). This guideline states that three or more of its criteria are required for a diagnosis of chronic pain syndrome and, although not binding, has been accepted by the Tribunal as an interpretive tool to determine if an applicant suffers from chronic pain syndrome in the absence of a definitive or clear diagnosis. Although reference to these guidelines is not mandatory, in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282, the Tribunal accepted the AMA Guideline criteria as key factors in assessing an applicant’s claim of chronic pain syndrome. I agree and apply those criteria here. The criteria are as follows:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

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

26In the present case, there is no evidence of an overuse of prescription drugs, or excessive dependence on healthcare providers as a result of the accident, the latter indicated by the omission of any reference to the accident in Dr. Yim’s notes. Although, the applicant offers a broad generalization regarding social withdrawal, it is significant that she has continued to work and attend to childcare obligations, as well as her music. As well, despite her fear of driving or riding as a passenger in a vehicle, significantly, she has continued to drive. As a result, I agree with the respondent that the applicant has failed to demonstrate chronic pain syndrome or any other ongoing physical impairment that would justify chronic pain treatment.

27The treatment plan also includes a “psychiatric pre-assessment screening.” However, the necessity of this component of the plan is not supported by the clinical notes and records of the applicant’s family doctor. Moreover, although Dr. Ballon diagnosed the applicant with driving-anxiety as a result of the accident, she recommended driver desensitization to treat this impairment, rather than a psychiatric pre-assessment screening. Dr. Ballon directly addressed the treatment plan at issue in her report, stating that it was not reasonable or necessary because the assessment was not being performed by a psychiatrist and was not appropriate considering the impairment, a concern evident in the Direct Comfort Ltd. report itself.

28As well, no interpreter was present during the examination despite the applicant not speaking English. As noted above, Dr. Jianfar and Dr. Mohsini reviewed no collateral information prior to the report’s drafting. Both of these factors tend to reduce the reliability of the evidence contained in the Direct Comfort Ltd. report. Lastly, on the applicant’s own evidence, she indicated a lack of interest in obtaining any psychological treatment.

29As a result, I find that the applicant failed to demonstrate that the chronic pain aspect or the psychological aspects of the subject treatment plan are reasonable and necessary on the balance of probabilities.

ORDER

30I find that:

i. The applicant is not entitled to a non-earner benefit; and

ii. The applicant is not entitled to $2,200.00 for the cost of examination for a psychiatric and chronic pain assessment as proposed by Direct Comfort Ltd.