Citation: Kwan v. Aviva General Insurance Company, 2024 ONLAT 22-007063/AABS - A

Licence Appeal Tribunal File Number: 22-007063/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:

Clement Kwan

Applicant

and

Aviva General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Anh Vo, Paralegal

For the Respondent:

Rajesan RajendranGeoffrey Keating, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Clement Kwan, (the “applicant”) was involved in an automobile accident on March 7, 2020, 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 Company (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 Minor Injury Guideline limit? (“MIG”)

ii. Is the applicant entitled to the following treatment/assessments proposed by York Medical Centre:

(i) $2,000.48 for chiropractic, physiotherapy, and massage services, in a treatment plan (“OCF-18”) dated July 13, 2020?

(ii) $2,000.48 for chiropractic, physiotherapy, and massage services, in a OCF-18 dated September 21, 2020?

(iii) $1,550.56 ($2,300.56 less $750.00 approved) for chiropractic, physiotherapy, and massage services, in a OCF-18, dated December 21, 2020?

(iv) $2,200.00 for a Social Work Assessment in a OCF-18 dated September 21, 2020?

(v) $2,200.00 for a General Practitioner Assessment in a OCF-18 dated February 1, 2021?

(vi) $2,200.00 for an Orthopaedic Assessment in a OCF-18 dated February 22, 2021?

(vii) $2,200.00 for a Psychological Assessment in a OCF-18 dated March 1, 2021?

(viii) $2,000.48 for chiropractic, physiotherapy, and massage services, in a OCF-18 dated April 12, 2021?

(ix) $2,000.48 for chiropractic, physiotherapy, and massage services, in a OCF-18 dated July 19, 2021?

(x) $2,000.48 for chiropractic, physiotherapy, and massage services, in a OCF-18 dated March 15, 2022?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

i. The applicant is entitled to the OCF-18s for a social work assessment, general practitioner assessment, and psychological assessment, plus interest in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to the remaining OCF-18s in dispute.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

5An 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 any accident-related 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.

6In all cases, the burden of proof lies with the applicant.

7The applicant argues that he has chronic pain in his neck, left shoulder, left wrist, and back, along with his psychological impairments, which warrant removal from the MIG.

8The respondent argues that the applicant’s injuries are predominately minor and subject to the MIG limits.

The applicant is not removed from the MIG on the basis of his chronic pain

9I find that the applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.

10In analyzing the issue of chronic pain and the MIG, the applicant, submits that I should rely upon the following three criteria outlined by the Tribunal in 18-005777 v Northbridge Personal Insurance Corporation, 2019 CanLII 58161 (ON LAT) (“18-005777”):

i. Does the applicant suffer significant and constant pain – more than simple ongoing or recurrent, intermittent pain?

ii. Has the applicant’s pain persisted well beyond the normal healing times (three to six months after the initial trigger or injury) for the injuries sustained?

iii. Does the applicant’s pain cause functional impairment and disability?

11The applicant argues that the post-accident clinical notes and records of his family physician Dr. Lo, and the s. 25 reports of Dr. Rodrigo Castro, family physician, Dr. Joe Enright, psychologist, Dr. Luke Bui, general surgeon, and Mr. Sebastian Joseph, registered medical and psychiatric social worker demonstrate that he has more than simple, recurrent, or intermittent pain. He also argues that these records demonstrate that he has consistently complained of pain that has persisted beyond the normal healing time. Finally, the applicant argues that his neck, shoulder, back, and left wrist pain have resulted in functional impairments to his employment and activities of daily living.

12Meanwhile, the respondent argues that the applicant sustained soft tissue injuries, which are minor injuries. The respondent argues that there is no objective evidence of a functional impairment as a result of the applicant’s pain complaints. It further argues that the applicant returned promptly to his pre-accident employment and was promoted to a managerial position thereafter. It relies upon the s. 44 report of Dr. Lori Feigelson, physician, dated March 22, 2021 to support its position.

13Even if I were to accept that the applicant meets criteria (i) and (ii), I find that he still has not led sufficient evidence of functional impairment stemming from chronic pain. In order to be removed from the MIG on the basis of chronic pain, an applicant must also establish functional impairment or disability. However, there is limited evidence of any functional impairment.

14I place no weight on the applicant’s self-reporting to Drs. Castro, Feigelson, Lau, Bui, Enright, and Mr. Joseph about his functional limitations due to multiple inconsistencies, which I now turn to.

Inconsistent self-reporting of restrictions to his employment

i. On February 10, 2021, the applicant reported to Dr. Castro that following the accident, he went back to work on modified duties, and as of October 5, 2020, he was allowed to work “full duty, without restrictions.” However, he reported to Dr. Feigelson on March 18, 2021 (one month later) that as of August 5, 2020, he continued to work at his regular hours but was still on modified duties with breaks and was not lifting or carrying.

ii. On March 26, 2021 (a week after meeting Dr. Feigelson), the applicant did not report that he was on modified duties at work to Dr. Lo. Other than stating he was able to take multiple breaks, the applicant did not report any other restrictions to Dr. Lo, or whether taking multiple breaks was a form of his modified duties.

iii. The applicant further reported to Dr. Feigelson that his employer was only closed down between March and June 2020 due to the COVID-19 pandemic. However, on September 25, 2020, the applicant reported to Dr. Lo that he had not returned back to work yet because of COVID-19.

iv. On March 1, 2021, the applicant reported to Dr. Bui, that he returned to work two to three weeks after the accident, with modified duties.

v. On April 1, 2021, the applicant reported to Dr. Enright, that he took six months off from work following the accident, due to his injuries and due to COVID-19. The applicant did not mention that he was on modified duties or whether he was receiving any type of accommodation from his workplace to Dr. Enright.

vi. On December 16, 2021, the applicant reported to Dr. Godwin K. Lau, psychologist, that he was working 40 hours per week and was recently promoted to a manager on duty. Significantly, the applicant did not advise Dr. Lau of any restrictions or that he was on modified duties.

Inconsistent self-reporting with respect to his studies

vii. On February 8, 2021, the applicant reported to Mr. Joseph that following the accident he was unable to successfully resume his studies. To provide some context, the applicant was enrolled in a college program, at the time of the accident. Notably, a few months later (December 16, 2021) the applicant reported to Dr. Lau, psychologist, that he had resumed his studies following the accident, and graduated in April of 2020.

15I acknowledge that the applicant relies largely on this self-reporting to establish that he requires ongoing accommodations from his employer, including modified duties with breaks and no lifting/carrying, and that his lifestyle has completely changed following the accident. Nonetheless, I find that the applicant has been inconsistent with respect to his self-reporting to the various assessors, and therefore I place no weight on this evidence.

16I further acknowledge the applicant’s position that these assessments were conducted approximately one year after the accident, and such precision in terms of date and time is unnecessary given the issues in dispute, I disagree. As noted above, the applicant’s inconsistent reporting to the various assessors occurred within a short period of each assessment, and not a significant period of time. Moreover, this inconsistent self-reporting is crucial to this matter, as the applicant relies on his self-reporting to establish that he has functional limitations.

17Next, I place little weight on the Brief Pain Inventory and Pain Disability Index testing conducted by Dr. Castro and Mr. Joseph because it is based on the applicant’s self-reporting. As noted above, I have found the applicant to be inconsistent with respect to his self-reporting, and thus I find these tests have little evidentiary value.

18Significantly, for the Brief Pain Inventory testing conducted on March 30, 2021, by Mr. Joseph, the applicant reported for the pain interference portion of the testing that his pain interferes with his physical functioning, especially his walking. However, the applicant has not told any of the other assessors or his family physician of this significant restriction in walking. Instead, the applicant reported to Dr. Lau on December 16, 2021, that he was fine with walking. Again, this is another example of the applicant’s inconsistent self-reporting.

19Aside from the applicant’s self-reporting (which I place no weight on due to the inconsistencies noted above), he has not referred me to other evidence, such as a medical opinion or a file from his employer to demonstrate that he has ongoing functional impairments as a result of his accident-related pain. Moreover, Dr. Castro did not provide a medical opinion of whether the applicant had functional limitations as a result of his pain. Instead, Dr. Castro diagnosed the applicant with chronic injuries, and relied largely on the applicant’s self-reported limitations. In a similar vein, Dr. Bui vaguely opined that the applicant was substantially limited with his normal daily activities. However, he provided no particulars of how the applicant was substantially limited, and how this conclusion was formed (i.e., was it based on the applicant’s self-reporting, objective testing, or a combination of both).

20In conclusion, I find that the applicant has not established that he has functional limitations as a result of his accident-related pain, thus he is not removed from the MIG on the basis of chronic pain.

The applicant is not removed from the MIG on the basis of his psychological impairments

21I find that the applicant has not met his onus to establish that his accident-related impairments require treatment beyond the MIG on the basis of a psychological impairment.

22Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he suffered a psychological impairment and not just psychological symptoms or sequelae of a minor injury to be removed from the MIG on this basis.

23The applicant relies on large part on the s. 25 reports of Mr. Joseph and Dr. Enright, who opined that the applicant had severe levels of psychological distress and diagnosed him with: Major Depressive Disorder, Insomnia, Post-Traumatic Stress Disorder, and Somatic Symptom Disorder. Moreover, the applicant argues that both the s. 25 assessors and the s. 44 assessor, Dr. Lau, psychiatrist have conducted psychometric testing which has revealed similar results.

24On the other hand, the respondent argues that the applicant did not report any psychological symptoms to his family physician, Dr. Lo, until March 26, 2021, which is a year post-accident. It further argues that Dr. Lo did not provide a diagnosis, recommend treatment, or refer him to a specialist. It further argues that there are inconsistencies in both the reports completed by Dr. Enright and Mr. Joseph, and, as a result, these reports should be given little weight by the Tribunal. The respondent’s position is that the s. 44 report of Dr. Lau, who concluded that there was no clear and reliable indication that the applicant suffered from a psychological impairment as a result of the accident, should be preferred.

25I find that the applicant has not led sufficient evidence to prove on a balance of probabilities that he has sustained a psychological impairment as a result of the accident.

26First, the applicant did not report any psychological symptoms to Dr. Lo until March 26, 2021 (over a year following this accident). I place significant weight on the delayed reporting of his psychological symptoms to Dr. Lo, because the applicant met with Dr. Lo previously on March 29, 2020, September 25, 2020, December 22, 2020, and December 29, 2020, yet he did not mention any psychological complaints.

27In any event, on March 26, 2021, Dr. Lo noted that the applicant reported that he had trouble falling asleep and was diagnosed with “light depression” by an independent physician. However, Dr. Lo did not diagnose the applicant with a psychological impairment, nor did he prescribe medication or refer the applicant to a specialist. The applicant also did not identify which independent physician diagnosed him with “light depression”.

28Finally, when comparing the respective s. 25 and s. 44 reports, I prefer the latter for three reasons. First, Dr. Enright and Mr. Joseph did not review Dr. Lo’s records. However, in contrast, Dr. Lau did.

29Second, Mr. Joseph and Dr. Enright conducted no validity testing and relied solely on the applicant’s self-reporting to arrive at their conclusions. Significantly, the applicant reported to Dr. Enright on April 1, 2021, that he had driving anxiety following the accident, avoided driving, and avoided going to the accident scene because it made him “freak out.” Yet, a couple of months later on December 16, 2021, the applicant told Dr. Lau that he can drive on local streets and highways, and that he had no issues with driving by the accident scene. Thus, due to this inconsistent self-reporting, I place little weight on the s. 25 reports that are based upon the applicant’s self-reporting.

30In comparison, Dr. Lau conducted not only psychometric testing, such as the Beck Depression Inventory and Beck Anxiety Inventory, he also conducted the Millon Clinical Multiaxial Inventory (MCMI-III), which is validity testing. Dr. Lau noted that the applicant obtained a valid profile during the MCMI-III testing, however, there was an indication of symptom magnification based on elevated scores of the modifying indices. Particularly, under the clinical syndromes, the scores on anxiety, somatoform, and dysthymia scales were elevated. As such, Dr. Lau concluded that caution must be exercised when interpreting this elevated profile because of the symptom magnification tendency.

31I further acknowledge the applicant’s position that the Tribunal in Tambyah v Economical Insurance Company, 2022 CanLII 14960 (ON LAT) placed less weight on the report of Dr. Lau because it was contradictory and unexplained. However, I find that Tambyah is distinguishable on the facts from this case.

32In Tambyah, Dr. Lau did not provide particulars of why there was an indication of symptom magnification, despite the applicant obtaining a valid profile on the MCMI-III. Instead, Dr. Lau opined that the applicant’s extremely elevated psychometric test results were inconsistent with his relatively normal clinical presentation. Here, in this matter, Dr. Lau provided particulars on why there is an indication of symptom magnification. As noted, Dr. Lau’s opinion was based on the modifying indices, where there was elevated scores for the anxiety, somatoform, and dysthymia scales. Thus, I disagree that Dr. Lau’s opinion is contradictory and unexplained in the matter before me. I am also not bound by Tambyah.

33Likewise, the applicant argues that Dr. Lau completely contradicted himself when he opined that, at most, the applicant may be experiencing chronic adjustment disorder difficulties at a subclinical level. He argues that the term chronic adjustment disorder signifies the persistence of symptoms exceeding six months and refers to a website page and a medical article to support this position. However, the article/website page is not fact specific nor is it helpful, as it does not state that a chronic adjustment disorder difficulties at a subclinical level is the same as an adjustment disorder.

34Third, Dr. Lau’s conclusion that there is no clear and reliable indication that the applicant suffers from a psychological impairment, and at most he may be experiencing chronic adjustment difficulties at a subclinical level, is more consistent with the medical record, like the records of Dr. Lo.

35To summarize, the applicant has not established on a balance of probabilities that he has an accident-related psychological impairment that warrants removal from the MIG.

36Having found that the applicant sustained a predominantly minor injury, it follows that he is subject to 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 respondent’s denials of the social work assessment, the general practitioner assessment, the psychological assessment, and the orthopaedic assessment were not compliant with s. 38(8) of the Schedule.

a) The treatment plans for the social work assessment, the general practitioner assessment, and psychological assessment

37I agree with the applicant that the Explanations of Benefits (“EOB”), dated September 23, 2020, February 3, 2021, and March 5, 2021, were non-compliant with s. 38(8) of the Schedule. Thus, the OCF-18s for a social work assessment, a general practitioner assessment and psychological assessment are payable under s. 38(11) of the Schedule once incurred and properly invoiced by the applicant.

38Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

39Moreover, the Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”) found that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.

40The applicant argues that the EOBs for the social work, general practitioner and psychological assessments dated September 23, 2020, February 3, 2021, and March 5, 2021, provide no information with respect to his specific medical conditions or any explanation on why these conditions do not warrant removal from the MIG. The applicant further argues that these EOBs contain boilerplate statements which, as noted in Hedley, constitutes as no reason at all and does not fulfil the respondent’s duty under s. 38(8).

41The respondent did not provide any submissions on this issue.

42In the September 23, 2020, EOB, the respondent denied the OCF-18 for a social assessment for the following reasons:

There is insufficient compelling medical documentation on file indicating that your injuries fall out of the Minor Injury Guidelines or that you have sustained a psychological impairment as a result of the motor vehicle accident.

Further to my correspondences dated 2020-07-14 and 2020-09-09, please submit clinical notes and records to corroborate this request.

43I find that this EOB did not comply with the requirements pursuant to s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. The reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule as no specific details about the applicant’s diagnosis, prognosis, or the detail of the treatment plan was provided. Nor did the respondent identify what information it reviewed in making its determination. While the respondent noted in the EOB that it required clinical notes and records, the applicant has tendered evidence that he produced the hospital records on July 22, 2020. Yet, the respondent did not identify this information in the denial, nor did it advise the applicant which remaining clinical notes and records were required and why. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.

44The respondent provided the following reasons in the February 3, 2021, EOB for denying the general practitioner assessment:

There is insufficient compelling medical documentation on file indicating that your injuries as a result of the motor vehicle accident fall out of the Minor Injury Guidelines. As your minor injury limit has been exhausted, this treatment plan is not approved as it is not reasonable and necessary.

We also note that you have a family physician, Dr. Jason Lo, who you have seen regarding your motor vehicle accident injuries. As such, it is unclear why a General Practitioner Assessment is reasonable,

necessary, and essential. Please submit supporting documentation for further consideration.

45I find that this EOB is non-compliant with s. 38(8), as it is vague and provided inadequate medical reasons. Indeed, the respondent did not provide any information about the applicant’s diagnosis or prognosis. Instead, the respondent noted that the applicant has been seeing his family physician but provides no particulars on why there is no compelling evidence to remove the applicant from the MIG or why the treatment plan is not reasonable and necessary.

46In my interpretation, simply referring to the records of the applicant’s family physician and stating that the applicant has been seeing him, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. In a similar vein, I do not find the respondent advising the applicant that the MIG limit is exhausted, satisfies its obligations under s. 38(8), as again it did not provide any information on the applicant’s diagnosis or prognosis, or whether this renders the OCF-18 to be reasonable and necessary. This also does not serve the Schedule’s consumer protection goal.

47Finally, in its EOB, dated March 5, 2021, the respondent denied the psychological assessment for the following reasons:

Duplicate submission from another provider.

As per my correspondence dated 2020-09-23, there is insufficient compelling medical documentation on file indicating that your injuries fall out of the Minor Injury Guidelines or that you have sustained a psychological impairment as a result of the motor vehicle accident.

Please submit clinical notes and records to corroborate this request.

48In my view, the EOB dated March 5, 2021, does not comply with the requirements under s. 38(8) as it failed to provide adequate medical reasons to deny the disputed OCF-18. The March 5, 2021, EOB fails to provide information about the applicant’s medical conditions, or clear and sufficient reasons for its denial that would allow the applicant to make an informed decision as to whether or not to dispute the respondent’s decision. The respondent failed to identify what information it required from the applicant and, instead, it vaguely requested clinical notes and records, but again did not state which ones, and why. In my opinion, the respondent has used boilerplate wording and, therefore, these reasons constitute as no reasons at all. As a result, I find that the respondent’s EOB dated March 5, 2021, is not in compliance with s. 38(8) of the Schedule.

49Consequently, I find that these EOBs are non-compliant with s. 38(8), and the respondent has not pointed me to correspondence that cures these deficient EOBs.

50As such, I find that the OCF-18s for a social work assessment, general practitioner assessment, and a psychological assessment to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

b) The treatment plans for the orthopaedic assessment

51I find the respondent’s March 5, 2021 EOB with respect to the denial of the orthopaedic assessment was compliant with s. 38(8). As such, the applicant has not established that this treatment plan is payable pursuant to s. 38(11).

52In the EOB, dated March 5, 2021, the respondent denied the orthopaedic assessment for the following reasons:

We have reviewed the medical documentation on file, including clinical notes and records from Dr. Jason Lo for the period of 2019-03-13 – 2020-09-25 and Dr. Castro’s report dated 2021-02-19. There is no indication on file that you have sustained any tears of fractures as a result of the motor vehicle accident. There is no compelling medical documentation on file indicating that an orthopaedic assessment is reasonable, necessary, and essential as a result of the motor vehicle accident.

53The applicant argues that the orthopaedic assessment was denied by the respondent on the basis that there was no indication of tears or fractures in Dr. Lo’s records and Dr. Castro’s report. He argues that these reasons are misguided and presumptive, and that the denial failed to reference Drs. Lo and Castro’s opinions regarding his medical condition, and why the OCF-18s are not reasonable and necessary. As such, the respondent has failed to provide meaningful or well-considered reasons.

54The respondent’s EOB provided specific reference to the applicant’s medical condition, being that there is no tear or fracture, which formed the basis for the respondent’s decision. I find that the reasons cited by the respondent were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond: See Hedley at para 14. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue his claims. Here, the respondent referred to specific records, indicated that the applicant does not have a tear or fracture, and therefore determined that the orthopaedic assessment was not reasonable and necessary.

55Therefore, the applicant has not established that the respondent’s March 5, 2021 EOB was non-compliant with s. 38(8) of the Schedule or that the orthopaedic assessment is payable pursuant to s. 38(11).

The applicant is entitled to interest for the social work assessment, the general practitioner assessment, and the psychological assessment

56Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. As I have found that the social work assessment, general practitioner assessment, and psychological assessment are payable, interest is also payable on those outstanding benefits.

ORDER

57For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. The applicant is entitled to the OCF-18s for a social work assessment, general practitioner assessment, and psychological assessment, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the remaining OCF-18s in dispute.