Donavan Green v. Aviva General Insurance, 2024 CanLII 115437

Licence Appeal Tribunal

Citation: Green v. Aviva General Insurance, 2024 CanLII 115437

Licence Appeal Tribunal File Number: 22-001597/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:

Donavan Green

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Samia Makhamra

APPEARANCES:

For the Applicant:

Madiha Qurashi, Counsel

Nicholas Whelan, Paralegal

For the Respondent:

Derek Greenside, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Donovan Green, the applicant, was involved in an automobile accident on January 30, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 27, 2020, to January 30, 2022?
3. Is the applicant entitled to physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre, as follows: i. $3,696.50 in a treatment plan submitted on February 3, 2020, and denied on February 10, 2020; ii. $206.45 ($1,300.00 less $1,094.67 approved), in a treatment plan submitted on June 8, 2020, and denied on June 18, 2020; iii. $1,977.05 in a treatment plan submitted on July 14, 2020, and denied on July 23, 2020; and, iv. $1,384.70 in a treatment plan submitted on August 25, 2020, and denied on September 8, 2020?
4. Is the applicant entitled to the services and assessments proposed by 101 Assessments as follows: i. $4,912.80 for psychological services, in a treatment plan submitted on December 15, 2020, and denied on December 29, 2020; ii. $2,460.00 for a psychological assessment, in a treatment plan submitted on July 20, 2020, and denied on July 31, 2020; and, iii. $2,460.00 for a chronic pain assessment, in a treatment plan submitted on May 31, 2021, and denied on June 14, 2021?
5. 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?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are not subject to the MIG.

4The applicant is not entitled to an NEB.

5The four treatment plans for physiotherapy services (issues 3.i, 3.ii, 3.iii, and 3.iv above) proposed by Mackenzie Medical Rehabilitation Centre are reasonable and necessary.

6The applicant is not entitled to the treatment plan for psychological services proposed by 101 Assessments (issue 4.i above).

7The treatment plans for a psychological assessment and a chronic pain assessment (issues 4.ii and 4.iii above) proposed by 101 Assessments are reasonable and necessary.

8The respondent is not liable to pay an award.

9As I found the treatment plans for physiotherapy services, chronic pain assessment, and psychological assessment to be reasonable and necessary, any interest is owed in accordance with s.51 of the Schedule.

PROCEDURAL ISSUES

Respondent’s request to exclude evidence

10The respondent has asked that the clinical notes and records from Dr. Alireza Kachooie, physical medicine and rehabilitation specialist, be excluded from the hearing record on the basis that they were not provided by the deadline, as required by a Tribunal order of January 26, 2023. The respondent also submits it has been prejudiced because it did not have an opportunity to respond to these records or complete any addendum reports. The respondent relies on Tribunal Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”), and the Tribunal decision in Davoodabadi v Certas Direct Insurance Company, 2021 CanLII 111157 (ONLAT).

11The Tribunal order of January 26, 2023 required the applicant to provide Dr. Kachooie’s records by no later than 60 calendar days prior to the hearing. The applicant produced Dr. Kachooie’s records along with his written submissions, at 30 days before the hearing.

12Dr. Kachooie’s records consist of a single visit by the applicant on May 4, 2023, following a referral by the applicant’s family doctor, Dr. Shiva Kumar Gaur, on January 26, 2023. There is a report from an x-ray examination also done on May 4, 2023; this was on a referral by Dr. Kachooie.

Result and Analysis

13The respondent’s request to exclude the clinical notes and records of Dr. Kachooie from the hearing record is dismissed. I discuss my reasons in the next paragraphs.

14The disclosure of evidence is guided by section 9 of the Rules. Rule 9.1 provides the Tribunal with the authority to order a party to provide disclosure that is relevant to the issues in dispute. Rule 9.3 provides that if a party fails to comply with a disclosure order, that party may not rely on the document or thing as evidence without the permission of the Tribunal. To determine whether a document can be allowed, I may consider a number of relevant factors, including prejudice, the extent to which the substance of the information lies within the knowledge of the other party, and reasons for non-compliance, to name a few.

15In this case, I am persuaded that the records of Dr. Kachooie are relevant to the issues in dispute because they provide context and recent information about the applicant’s medical condition, in particular as it relates to the claim of chronic pain as a result of the accident. Given that the evidentiary onus rests on the applicant to demonstrate that he warrants removal from the MIG, and that the proposed disputed treatment plans are reasonable and necessary, I am allowing these records. Further, I consider the exclusion of medical records to be a remedy of last resort, to be exercised only sparingly, and when an alternative to prejudice is not possible.

16With respect to prejudice, I am not persuaded by the respondent’s argument. First, I accept that the respondent may not have had enough time to respond. The respondent received Dr. Kachooie’s records 30 days before the hearing. This means that it had 16 days to respond, which is the period between receiving these records, and its own deadline to file responding submissions (14 days before the hearing). However, when I consider the larger context within which Dr. Kachooie’s records came to be, which is a referral from Dr. Gaur, I see that the substance of the information addressed by Dr. Kachooie, was in possession of the respondent. That is, the issue of the applicant’s pain, particularly since complaints of neck, back, and sometimes leg pain, are well documented. Yet, I have no information before me that the respondent sought to respond to these records or obtain an updated opinion. As such, I find its prejudice argument lacking and unpersuasive. I note:

• The contemporaneous records show that Dr. Gaur concerned himself with the applicant’s pain over several appointments and considered a plan to address it. This is clear from appointments in early 2023, about three years after the accident, as well as in late 2021.
• Specifically, on January 26, 2023, Dr. Gaur mentions the applicant’s pain and his plan to refer him to a pain specialist. This appointment led Dr. Gaur to refer the applicant to Dr. Kachooie, who saw the applicant on May 4, 2023, and whose records the respondent is asking me to exclude.
• During a previous visit, on January 19, 2023, Dr. Gaur notes “ongoing backache following MVA”; he assessed back pain.
• On November 17, 2021, Dr. Gaur again noted the applicant’s pain. At the earlier visit, on October 26, 2021, Dr. Gaur assessed chronic back pain from the accident.

17In summary, on the evidence and submissions, there is no dispute that Dr. Kachooie’s records were not disclosed in accordance with the Tribunal order. However, his records are relevant. I find the relevance of Dr. Kachooie’s records outweighs the prejudice claimed by the respondent. As a result, I will exercise my discretion and allow them.

18Lastly, I am unpersuaded by the Tribunal decision mentioned by the respondent. The facts of the case before me are distinguishable. As I understand it, the mentioned decision does not provide details that are relevant to the case at hand, for example, there is no discussion on how late the records in question were delayed, or what consideration was given to the issue of prejudice to both parties.

Respondent’s request to draw adverse inference

19The respondent has also asked that adverse inference to be drawn on the grounds that the clinical notes and records from Dr. Mahsa Gordanpour and Dr. Lital Grinberg were provided after the prescribed production deadline.

20The applicant submits that these records were provided to the respondent on April 19, 2023, and, according to him, ahead of the prescribed deadline in the Tribunal order. He provided a fax confirmation as evidence. Here, I note that the applicant’s submission appears to be a misunderstanding of the deadlines in the Tribunal order. As I understand it, the order required the applicant to produce these records by 30 days after the case conference, which meant that the deadline was around February 26, 2023. Instead, he produced them on April 19, 2023, which means there was a delay of about seven weeks.

21Notably, the respondent did not elaborate on the grounds for this request, other than a missed deadline. For example, I do not have submissions on how the late production may have affected the respondent’s ability to present its case. Accordingly, I decline to grant this request.

ANALYSIS

The applicant’s injuries are not subject to the MIG

22Based on the evidence and submissions, I find that the applicant suffers from chronic pain as a result of the subject accident. He is therefore removed from the MIG.

23Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” 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”.

24An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s.18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from their minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. Importantly, the applicant has the burden of proof.

I find the applicant suffers from chronic pain

25The applicant submits he suffers from chronic pain which is not an injury within the MIG. He argues his ongoing neck and back pain are symptoms that began with the subject accident and have persisted since. He argues the medical records of Dr. Gaur, his family doctor, corroborate this, and the American Medical Association (AMA) Guidelines, which the Tribunal has adopted, also support his position.

26The respondent submits there is no evidence of chronic pain in the medical records. It further relies on a s.44 insurer’s examination (“IE”) report by Dr. Esmat Dessouki, orthopaedic surgeon, dated March 29, 2021, of an assessment that took place on March 21, 2021, and an IE report by Dr. John Presvelos, general practitioner, dated August 27, 2021, of an assessment that took place on August 13, 2021. Both placed the applicant’s injuries in the MIG.

27Dr. Dessouki assessed the applicability of the MIG and whether the treatment plan for physiotherapy services dated August 24, 2020 in the amount of $1384.70 (treatment plan 3.iv above, proposed y MacKenzie Rehabilitation Medical Center) was reasonable and necessary. Dr. Presvelos assessed the applicability of the MIG and whether the treatment plan for a chronic pain assessment dated May 21, 2021 in the amount of $2,460.00 (treatment plan 4.iii above, proposed by 101 Assessments) was reasonable and necessary. Both assessors determined that the applicant sustained cervical strain and lumbosacral strain, did not recommend the treatment plans, and concluded that his injuries placed him in the MIG. The respondent also submits the applicant does not meet the necessary, three out of six criteria for chronic pain, as set out in the AMA Guidelines. I disagree.

28On the submissions and evidence, I find the applicant suffers from chronic pain from the accident. I am persuaded by the clinical notes and records from Dr. Gaur, which show that he complained of neck, back, and leg pain, that began shortly after the subject accident and persisted until 2023, well over three years after the accident. This is clear from the applicant’s visits on January 31, 2020, March 19, 2020, December 5, 2020, June 14, 2021, October 26, 2021, November 17, 2021, January 19, 2023, and January 26, 2023, when he referred the applicant to a specialist for pain management – Dr. Kachooie. Dr. Gaur consistently prescribed medication for pain such as apo-naproxen 500mg, tylenol, and cyclopine.

29With respect to the IEs, I am not persuaded by their conclusions. Both assessors indicated in their reports that the applicant reported neck, back pain, and leg pain but this was not discussed in their conclusions. Dr. Dessouki noted the applicant’s reported pain in the neck being at level 5 out of 10 on a pain scale (10 being most severe), in the back at level 7 out of 10, at level 9 at wake-up time, and pain in his legs at level 4 out of 10 but offered no comments in this regard when providing his diagnosis, or a reason for the pain to have affected the applicant’s daily life as reported.

30Dr. Presvelos determined that the applicant was suffering from myofascial pain as a sequela from his accident-related injuries but offered no comment on the reason for the pain to have persisted for over 18 months after the accident, which is when he assessed the applicant. Dr. Presvelos also noted that activities of daily living were not affected by pain, but I am reluctant to assign this much weight because I see no clinical observations accompanying this comment. In other words, the report is unclear on what led Dr. Presvelos to make this statement. Therefore, with respect to whether the applicant suffers from chronic pain, I do not find the conclusions of the IE assessors persuasive.

31I also find that the applicant’s pain affected several aspects of his life, with functional impairment. When assessed by Dr. Dessouki, he reported feeling pain and needing help with most activities of daily living post-accident, compared to pre-accident. Specifically, unlike before the accident, he reported he needed help from his fiancé with most household tasks, with caring for their two children, and he reported not being able to return to his pre-accident exercise activities and did not return to his hobbies. And while he did return to work as a cook, he did so with modified duties: there was a restriction not to lift above 20 kilograms, and at times was provided with someone to assist him.

32There is evidence of the applicant’s complaints of pain in medical records other than those of Dr. Gaur or the IE reports: the applicant complained of pain during the treatment he received from Mackenzie Medical Rehabilitation Centre, a psychological assessment with Dr. Lital Grinberg on November 11 and 12, 2020, an IE with Dr. Pushpa Kanagaratnam, psychologist, that took place on May 15, 2021, and during his appointment with Dr. Kachooie, on May 4, 2023, well over three years after the accident - amongst other details, Dr. Kachooie noted mild stiffness to the neck, but the major issue was the back pain as well as difficulties with sleep. He diagnosed the applicant with whiplash, mechanical back pain, sacroiliac joint disorder and discogenic pain.

33Further, in applying the AMA Guidelines, I find that the applicant does meet three of the six criteria. These are:

• The applicant’s use of prescription medication satisfies criterion (i) of the Guideline. Dr. Gaur prescribed medication for pain such as apo-naproxen 500mg, tylenol, and cyclopine, and the applicant continues to take medication.
• The applicant satisfies criterion (ii), being excessively dependent on health care providers regarding chronic pain, and on his family for household tasks. The applicant has had regular visits with Dr. Gaur for complaints of pain. For household tasks, he has relied on his fiancé, as noted during a psychological assessment with Dr. Grinberg on November 11 and 12, 2020, as well as during the IE with Dr. Esmat Dessouki of March 22, 2021. Dr. Dessouki noted that the applicant reported being independent before the accident, but after the accident he needed help with groceries, most cleaning tasks (dishes, seeping, dusting, vacuuming, laundry), garbage removal, and caring for their two children.
• The applicant satisfies criterion (iii), secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. Contrary to the respondent’s argument, while the applicant has returned to work, he has done so with modified duties due to his pain, he is limited in caring for his children, and he has not returned to his physical and exercise activities as before the accident. Again, this information is noted in the IE reports.

34In conclusion, on balance, I find the applicant suffers from chronic pain with functional impairment. This has persisted since the accident and is borne by the medical records.

35Lastly, the applicant argues two additional bases that should remove him from the MIG: an MRI examination of the lower back of November 17, 2021 (presumably referred to in error as an MRI of May 4, 2023), and psychological impairment. The MRI results showed relatively mild degenerative disc change at L4-L5 with mild broad-based disc bulging. However, Dr. Gaur indicated that the results were not related to the subject accident and, as such, I’m reluctant to accept this argument. In any event, and while I note that Dr. Gaur offers no reason for his opinion, nothing turns on this given the evidence for chronic pain in the medical records as discussed in earlier paragraphs.

36Regarding the claim of a psychological impairment, the applicant relies on a report from Dr. Lital Grinberg, who assessed him on November 11 and 12, 2020. Following psychodiagnostics testing, Dr. Grinberg provided a DSM-5 diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain (severe), and specific phobia (situational: vehicular). However, I place minor weight on this report because Dr. Grinberg relied on the applicant’s self-reported symptoms and observations but did not examine the validity of his statements with diagnostic tests. In this regard, I prefer the IE report by Dr. Kanagaratnam, psychologist, of May 27, 2021. Dr. Kanagaratnam tested the validity of the applicant’s answers, reviewed the clinical notes and records of his family doctor, and concluded that he did not meet the threshold for a DSM-5 diagnosis.

The applicant is not entitled to an NEB

37I find that the applicant is not entitled to an NEB because he did not properly apply for this benefit when he failed to submit an Election of Benefits Form, an OCF-10, as required by s.35(1) of the Schedule.

38Section 35(1) of the Schedule provides that:

If an application indicated that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days receiving the notice, the benefit he or she wishes to receive.

39The respondent argues that the applicant is barred from claiming an NEB because he failed to complete an OCF-10. I agree.

40On February 11, 2020, the applicant submitted an OCF-3 completed by Dr. Gordanpour, chiropractor, dated January 31, 2020, indicating that he was working at the time of the accident. In addition, under Part 6, she indicated that the applicant was substantially unable to perform the essential tasks of his employment, and that he suffered a complete inability to carry on a normal life.

41Based on the information provided by Dr. Gordanpour, I find that the OCF-3 indicated that the applicant was eligible for both, an income replacement benefit and an NEB.

42On February 21, 2020, the respondent provided an Explanation of Benefits to the applicant, indicating that based on the OCF-3, the applicant may be entitled to an income replacement benefit or an NEB. As such, the respondent requested an OCF-10. On April 23, 2020, the respondent requested an OCF-10 again. To date, the applicant has not completed this form.

43The applicant submits there was no need for a completed OCF-10 because he was not entitled to an income replacement benefit. I disagree.

44It is clear that the OCF-3 indicated the applicant’s eligibility to both benefits, an income replacement benefit and an NEB. As such, he was required to submit an OCF-10 in accordance with s.35(1). As he has not submitted a completed OCF-10, I find that he is barred from claiming entitlement to an NEB because he never properly applied for this benefit.

45Given my finding that the applicant is barred from claiming an NEB, I do not need to address whether he meets the burden to demonstrate entitlement.

The treatment plans for physiotherapy are reasonable and necessary

46I find these treatment plans reasonable and necessary. I rely on my finding that the applicant’s injuries are not subject to treatment within the MIG due chronic pain as a result of the accident, as well as the evidence and submissions.

47The respondent submits the applicant’s injuries are within the MIG and denied these treatment plans on this basis. It also argues that the applicant’s submissions for this hearing do not address the reasonableness and necessity of these plans and should be dismissed. The applicant’s submissions are that he is entitled to the treatment plans based on treatment goals, due to the chronic nature of his injuries and chronic pain, and that pain relief is a legitimate goal.

48In my view there is compelling evidence that the applicant was suffering from chronic pain, and these plans were prepared to address this concern. The goals of the treatment plans were pain reduction, increased range of motion and increase in strength, with functional goals of returning to activities of daily living and to work on modified duties. In efforts to address pain complaints, Dr. Gaur not only prescribed pain medication but recommended physiotherapy at various appointments over the period when these treatment plans were submitted to the respondent for approval: January 31, 2020, March 19, 2020, and December 5, 2020.

49Accordingly, on the evidence and submissions, I find these treatment plans reasonable and necessary.

The applicant is not entitled to the treatment plan for psychological services.

50I find this treatment plan is not reasonable and necessary. I find no evidence in the medical records for this plan, and the applicant’s submissions are of no assistance to me in understanding whether the medical records support this plan, or how its goals can be met. This is more so given the evidence in the psychological IE of Dr. Kanagaratnam, who, contrary to the applicant’s assessor, Dr. Grinberg, found that the applicant did not meet the threshold for a DSM-5 diagnosis.

51As such, I find that the applicant has not met his burden of demonstrating that this treatment is reasonable and necessary.

The applicant is entitled to the treatment plan for a psychological assessment

52I find the psychological assessment reasonable and necessary. Here the applicant’s submissions are of assistance. The goal of this assessment was to determine the nature and extent of the applicant’s symptoms, so as to provide a formal diagnosis and an adequate treatment program.

53Despite finding that the applicant did not suffer from a psychological diagnosis, I note that the applicant’s and respondent’s assessments demonstrated that there were enough psychological symptoms – anxiety, depression, situational phobia - and that it was reasonable to conduct an assessment to determine whether the applicant was suffering from a psychological condition that warranted treatment.

The applicant is entitled to the treatment plan for a chronic pain assessment

54I find the treatment plan for a chronic pain assessment reasonable and necessary. Here the applicant’s submissions are of assistance. The goal of this assessment was to determine the extent of the applicant’s injuries related to the accident, in order to prepare an adequate pain management program to assist in his recovery.

55The applicant continuously complained of back, neck, and leg pain – see discussion under chronic pain - that were not alleviated by medication or the treatment he received, which led his treating practitioners to recommend this assessment. Dr. Gaur noted as much over several appointments, eventually providing a referral for pain management. And, as I said in earlier paragraphs, I find the conclusions of Dr. Presvelos’ report, which were not supportive of this assessment, unpersuasive.

56Therefore, considering both the length of time since the accident, about 14 months, as well as the functional changes during this period, it was reasonable for the applicant to look into whether his pain had become a chronic condition.

The respondent is not liable to pay an award

57The applicant is seeking an award under s.10 of O. 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.

58In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”.

59I do not find that an award is payable in this case. The Insurer considered the applicant’s injuries to be within the MIG and paid for treatment accordingly. In other words, the respondent’s conduct in managing the applicant’s claims does not inform me that an award should be granted.

ORDER

60For the reasons outlined above, I order the following:

1. The applicant’s injuries are not subject to the MIG.
2. The applicant is not entitled to an NEB.
3. The following four treatment plans for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre are reasonable and necessary: • $3,696.50 in a treatment plan submitted on February 3, 2020, and denied on February 10, 2020; • $206.45 ($1,300.00 less $1,094.67 approved), in a treatment plan submitted on June 8, 2020, and denied on June 18, 2020; • $1,977.05 in a treatment plan submitted on July 14, 2020, and denied on July 23, 2020; and, • $1,384.70 in a treatment plan submitted on August 25, 2020, and denied on September 8, 2020.
4. The applicant is not entitled to the following treatment plan for psychological services proposed by 101 Assessments: • $4,912.80 for psychological services, in a treatment plan submitted on December 15, 2020, and denied on December 29, 2020.
5. The following treatment plans for a psychological assessment and a chronic pain assessment proposed by 101 Assessments, are reasonable and necessary: • $2,460.00 for a psychological assessment, in a treatment plan submitted on July 20, 2020, and denied on July 31, 2020; and, • $2,460.00 for a chronic pain assessment, in a treatment plan submitted on May 31, 2021, and denied on June 14, 2021.
6. The respondent is not liable to pay an award.
7. As I found the treatment plans for physiotherapy services, chronic pain assessment, and psychological assessment to be reasonable and necessary, any interest is owed in accordance with s.51 of the Schedule.