Barker v. Aviva Insurance Company, 2023 CanLII 72645

Citation: Barker v. Aviva Insurance Company, 2023 CanLII 72645

Licence Appeal Tribunal File Number: 20-010264/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:

Marilyn Barker

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Syed M. Raza, Counsel

For the Respondent: Stanford Cummings, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Marilyn Barker, the Applicant, was involved in an automobile accident on January 19, 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, Aviva General Insurance, the Respondent, 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. Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the Applicant is entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week from February 27, 2019 to date and ongoing?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,198.79 for a psychological assessment, proposed by Dr. A. Mohseni in a treatment plan/OCF-18 (“plan”) dated March 7, 2019?

iv. Is the Applicant entitled to a medical benefit in the amount of $538.81 ($1,328.48 less $789.79 approved) for chiropractic services, proposed by Oshawa Physiotherapy and Rehabilitation in a plan dated April 17, 2019?

v. Is the Applicant entitled to a medical benefit in the amount of $2,200.00.00 for psychological assessment proposed by Gozlan Psychology Professional Corporation in a plan dated April 1, 2020?

vi. Is the Applicant entitled to a medical benefit in the amount of $2,892.98 for psychological services, proposed by Gozlan Psychology Professional Corporation in a plan dated September 29, 2020?

vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

viii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the Applicant sustained a minor injury as defined in the Schedule. The treatment and assessment plans in dispute are not reasonable and necessary because they propose treatment outside the MIG and beyond the $3,500.00 limit on treatment.

4The Applicant is not entitled to non-earner benefits.

5No interest or award is payable.

PROCEDURAL ISSUES

Section 33 Non-Compliance

6Section 33 of the Schedule states that an Applicant shall, within 10 business days, provide the Insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit. The Respondent’s position is that the Applicant has failed to comply with its s. 33 requests, therefore, pursuant to s. 33(6), the insurer is not liable to pay a benefit in respect of any period which the insured fails to comply.

7By letter dated March 15, 2019, the Respondent requested to following information in order to determine her eligibility for NEB: (1) a completed questionnaire comparing her pre-and post-accident activities; (2) a decoded OHIP summary; (3) clinical notes and records of the family physician from 5 years pre-accident to present; (4) the ODSP file. The letter states that she had 10 business days to provide the documents.

8The letter dated April 22, 2019 re-iterated the Respondent’s requests and extended the timeline to May 7, 2019.

9The July 16, 2019 letter advised that the Respondent had received a decoded OHIP summary only, that it had provided her two extensions, and she had not complied with the request in full.

10By letter dated September 6, 2019, the Respondent acknowledges receipt of the completed questionnaire and an x-ray report, but that it had not received all the requested information.

11The Applicant included a portion of her ODSP file with her hearing submissions. She has been in receipt of benefits for over 20 years yet provided documentation from 2016 to 2019 only. She also has not provided any pre- or post-accident records from her family physicians. The Applicant indicated that her pre-accident family doctor had retired, and she was unable to obtain any records. However, the Applicant failed to provide evidence of any efforts made to obtain the pre-accident records and has provided no post-accident records from any treating health practitioner.

12Partial compliance with a request under section 33 is not sufficient to trigger the insurer’s obligations under section 3(6). See Mahhamoud v Aviva General Insurance.¹ The Applicant provided no submissions in reply to the Respondent therefore the Respondent’s arguments are unrefuted.

13I agree with the Respondent that the requested records are relevant and are necessary to assist both the Insurer and the Tribunal in the determination of the Applicant’s entitlement to non-earner benefits. As a result, I find that the Applicant’s non-compliance with the request triggers the s. 33(6) provision, and the Respondent is not liable to pay the NEB.

ANALYSIS

MINOR INJURY GUIDELINE

14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

15Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

16An insured may also be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the Applicant.

17The Applicant submits that she had pre-existing conditions that precluded recovery within the MIG. She also submits that she suffered chronic pain and psychological impairments as a result of the accident that fall outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The Respondent submits that she has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the Respondent.

Pre-Existing Conditions

18The Applicant claims that she suffered pre-existing anxiety, chronic low back pain and arthritis and infers that it precludes her from recovering within the MIG and the $3,500.00 funding limit for treatment. The Respondent submits that there is no evidence that her pre-existing conditions would preclude her recovery. I agree with the Respondent.

19The Applicant directs me to no evidence from a healthcare provider that indicates the Applicant’s recovery from accident-related injuries would be affected by a documented pre-existing condition. The Applicant has not provided any pre- or post-accident clinical notes and records of her family doctor, or any other treating health practitioner. She submits that her family doctor retired prior to the accident, and therefore she couldn’t obtain the records. However, she provided no evidence any effort was made to obtain the records. Further, that doesn’t explain why no post-accident records were provided.

20I acknowledge the Applicant’s pre-existing Fragile X syndrome, identified by Dr. Dr. Gozlan, psychologist, in his report dated October 13, 2020. The Applicant reported that she started receiving ODSP after she was diagnosed with this condition in 2000, and her symptoms included fatigue, mild pain, cognitive impairment and learning disability. However, she also reported that her symptoms were not severe, she was in good health, and was not taking any medication other than for acid reflux at the time of the accident. There is no indication that Dr. Gozlan was concerned about a prolonged recovery for the Applicant as a result of her prior conditions. There is no indication that the Applicant required a unique or specialized treatment regime for her accident-related injuries. Therefore, I am unable to conclude that she is precluded from recovery if subject to the MIG and $3,500.00 funding limit.

Psychological Injuries

21I find that that Applicant has not met her burden of proof to establish that she sustained psychological injuries as a result of the subject accident.

22Aside from the report of Dr. Gozlan, there is no evidence to corroborate that the Applicant sustained a psychological impairment as a result of the accident. As noted above, there are no clinical notes and records from any treating practitioners, nor has the Applicant provided a post-accident OHIP summary or any prescription summaries. The Applicant has not provided any clinical notes and records or sign-in sheets from any of the allegedly incurred psychological treatment. I find Dr. Gozlan’s report unpersuasive. His conclusions were based solely on the Applicant’s self-reports. He didn’t review any additional medical information or other insurance claim documents. The Applicant’s lack of concurrent complaints to any objective medical practitioner is inconsistent with her alleged level of impairment. Further, the Applicant’s reports regarding her abilities and the observations of the Insurer’s Examination (“IE”) assessors are inconsistent with the impairments identified by Dr. Gozlan.

23I prefer the opinion of the IE assessor Dr. Seon, psychologist, in her reports dated November 12, 2019, April 26, 2021, and December 2, 2021. These reports include a summary of the available medical evidence. In the November 12, 2019 report Dr. Seon noted that the Applicant reported symptoms of vehicular anxiety that pre-dated the accident and prevented her from obtaining a driver’s licence, but denied any significant impairment in her overall level of functioning, and described herself as “happy-go-lucky”. Dr. Seon also administered psychometric testing and concluded that the Applicant’s presentation was not of the magnitude to warrant a psychological diagnosis in relation to the injuries sustained in the subject accident. Dr. Seon’s conclusion was the same in the subsequent reports.

24I find the Applicant has not met her burden to prove she sustained a psychological impairment as a result of the accident.

Chronic Pain

25Like psychological injuries, chronic pain conditions are not included in the minor injury definition. In order to establish that she has a chronic pain condition, the Applicant must demonstrate that her pain causes a functional impairment which adversely affects her well-being. A diagnosis of chronic pain, absent a functional impairment due to pain, is insufficient to establish a non-minor injury.

26I find that the Applicant has not established that she suffers from chronic pain as a result of the subject accident.

27The Applicant reported to various assessors that she was taking Oxycocet prior to the accident to treat her pre-existing arthritis in her upper back but that post-accident, her new family doctor refused to prescribe her pain medication and she stopped taking it. The Applicant has not provided any medical records from a family physician, walk-in clinic, hospital, or even a post-accident decoded OHIP summary. The OHIP summary provided doesn’t even include the year prior to the accident. One x-ray dated May 3, 2019 revealed mild osteoarthritis in the right hip.

28The Applicant’s self-report to Dr. Gozlan of inability to perform household chores, cooking, or shopping is inconsistent with the physical injuries she sustained. If she were unable to engage in such activities, one would expect that she would seek medical attention. Dr. Gozlan’s report is also inconsistent with the observations of the IE assessors.

29In his musculoskeletal assessment report dated October 2, 2019, Dr. Belfon reviewed the file documentation, examined the Applicant and diagnosed uncomplicated, soft tissue injuries. The diagnosis was maintained by Dr. Belfon following his subsequent assessment and report dated April 26, 2021. The Applicant underwent an occupational therapy assessment with Mr. Rasul Kassam, dated November 12, 2019, which revealed functional ranges of motion and strength within normal limits. Dr. Dessouki, orthopedic surgeon, examined the Applicant and diagnosed soft tissue injuries, and concluded that there was no objective evidence of any residual musculoskeletal impairment.

30Given the lack of objective medical evidence and the diagnoses of the IE assessors, I find the Applicant has not established that she suffers from chronic pain as a result of the accident.

31Having found that the Applicant sustained a predominantly minor injury, it follows that she is subject to the MIG and the $3,500.00 funding limit on treatment. The treatment and assessment plans in dispute propose goods and services beyond the MIG and the $3,500.00 funding limit on treatment. Therefore, an analysis of whether the disputed treatment plans are reasonable and necessary is not required. However, the Applicant argues that the denial of the psychological assessment was not compliant with section 38(8) of the schedule, which I address below.

Psychological Assessment Plan dated March 7, 2019

32The Applicant claims entitlement to this treatment plan because the Respondent failed to reply to it pursuant to the timelines set out in section 38(8) of the Schedule.

33The parties agree that the treatment plan was replied to late. It was submitted to the Respondent on March 7, 2019 and the Respondent replied to the plan on March 25, 2019. As a result, pursuant to section 38(11)(1), the insurer is prohibited from taking the position that the MIG applies with respect to this treatment plan.

34The Applicant submits that, because the response was provided late the Respondent is required to fund the assessment pursuant to s. 38(11)(2). The Respondent submits that that there is no automatic entitlement for this treatment plan since there is no evidence the assessment was incurred.

35Section 38(11)(2) indicates that an insurer is only liable for payments for assessments incurred between the 11th day and the date the insurer provides a proper notice described in subsection (8).

36I find that the Respondent’s March 25, 2019 letter was untimely and failed to comply with section 38 of the Schedule when it denied this psychological assessment. Consistent with prior decisions of this Tribunal, given that there was no evidence that the assessment was incurred during the period of non-compliance I must then assess the plan on the basis of whether it is reasonable and necessary.

37I find that the Applicant has not met the onus to demonstrate that this assessment plan was reasonable and necessary. According to the April 26, 2021 report from Dr. Seon, the Applicant denied any significant symptoms of anxiety, depression or post-traumatic stress that negatively interfered with her social and overall level of functioning. She also noted that the Applicant was unaware of the services proposed in the subject plan. Further, the Applicant had already undergone a psychological assessment with Dr. Gozlan, so this would be a duplication of services.

NON-EARNER BENEFITS

38Notwithstanding the Applicant’s non-compliance with section 33 of the Schedule, the Respondent also submits that the claim for NEB be dismissed on its merits.

39Pursuant to section 12 of the Schedule, the Applicant qualifies for NEBs if she suffers from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, she must show that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

40Although I have found that the Respondent is not liable to pay the benefits due to s. 33 non-compliance, I further find that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.

41The Applicant states in her submissions that she was on ODSP since 2016, however the Applicant repeatedly told assessors has been in receipt ODSP for over 20 years.

42The disability certificate indicates that the Applicant suffered a complete inability to carry on a normal life for an anticipated duration of 9-12 weeks. A disability certificate alone is not sufficient to establish entitlement to NEBs.

43In a questionnaire provided by Aviva, the Applicant indicates that she not able to do dishes, cleaning, cooking, childcare, pet care, grooming, needed help with laundry, and was not getting much sleep. I find it is not enough for an Applicant to simply say that she cannot do her pre-accident activities, but rather the Applicant must provide objective medical evidence of inability to perform her activities.

44As noted above, there is very little objective medical evidence, such as records from her family doctor to support that she had a complete inability to carry on a normal life. There is one x-ray that revealed mild osteoarthritis in her hip. Despite being in receipt of ODSP for over 20 years, the few pages of the file provided did not include any medical evidence or evidence regarding her level of activity.

45The Applicant’s pre-accident activities are identified in the reports to various assessors. The evidence demonstrates that the Applicant has some difficulty with some of her pre-accident activities, but does not suffer a complete inability to engage in substantially all of her pre-accident activities. The Applicant was assessed by Dr. Belfon, and in his report dated November 12, 2019 he concludes that the Applicant sustained uncomplicated soft-tissue injuries. The Applicant was able to shower and dress herself, but required help from a friend to wash her hair. She was able to feed herself and toilet independently. She was able to prepare light meals and wash dishes, with breaks after standing for five minutes. She was able to vacuum with breaks. Her friend helped with strenuous cleaning. Her son carried the laundry basket, and she would sort and fold the laundry. She did not have a driver’s licence, but continued to accompany her friend and boyfriend to run errands, and they would carry the bags.

46According to Dr. Seon’s November 12, 2019 report, the Applicant reported that she was independent with the majority of her self care, but required assistance with washing her hair on occasion. Her friend was helping with cooking. She reported that she continued to activity engage in social activities with friends and family. She enjoyed spending time with others. On a typical day she would get up at 7:30 and prepare herself breakfast, sit on the balcony and smoke, get a tea with a friend on a consistent basis, and visit with other friends throughout the day. She would relax and watch tv before preparing dinner. The Applicant reported that the primary change in her daily routine was her inability to participate in housework at the same level and frequency. She denied any significant impairment in her social or overall functioning.

47During the occupational therapy assessment with Mr. Kassam, dated November 12, 2019, the Applicant reported that she was able to participate in simple meal preparation, and all her self-care, but she relied on a friend for housekeeping. Mr. Kassam found functional ranges of motion and normal strength. The assessor opined that she demonstrated sufficient ability to perform all of her daily living tasks.

48I have considered the evidence and submissions and conclude that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.

AWARD AND INTEREST

49The Applicant may be entitled to an award if it is determined that the Respondent unreasonably withheld or delayed the payment of benefits. Having found that no payment of benefits was delayed, it follows that no award is payable.

50Similarly, interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found no benefits are payable or overdue, it follows that no interest is payable.

CONCLUSION

51The applicant sustained predominantly minor injuries as a result of the accident. She is not entitled to the treatment and assessment plans in dispute as they propose goods and services which are not included in the MIG.

52The Applicant is not entitled to NEBs because she has not demonstrated that she suffers a complete inability to carry on a normal life as a result of the accident.

53Having found no overdue payment of benefits, no interest or award is payable.

Footnotes

1. 12022 CanLII 65564 (ONLAT).