Citation: Rodda v. Aviva Insurance Canada, 2025 ONLAT 23-006019/AABS

Licence Appeal Tribunal File Number: 23-006019/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:

Jane Rodda

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Sophia Chaudri, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jane Rodda, the applicant, was involved in an automobile accident on June 11, 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 the respondent, Aviva Insurance Canada, 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. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to $452.02 ($3,954.57 less $3,502.55 approved) for assistive devices proposed by Tier 1 Assessments Ltd. in a treatment plan/OCF-18 (“plan”) dated June 28, 2021, and partially denied on July 13, 2021?

iii. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,580.66 per month from April 12, 2021 to date and ongoing?

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

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

3In her submissions, the applicant withdrew issues 3 and 4 as set out in the Case Conference Report and Order dated January 18, 2024.

RESULT

4The applicant is not catastrophically impaired (“CAT”) as defined by the Schedule.

5The applicant is not entitled to the remainder of the plan for assistive devices.

6The applicant is not entitled to ACBs.

7The respondent is not liable to pay an award.

8No interest is payable.

ANALYSIS

The applicant is not CAT as defined by the Schedule

9For the following reasons, I find that the applicant has not demonstrated on a balance of probabilities that she is CAT as a result of her accident-related impairments.

Criterion 7

10The applicant seeks a CAT determination under Criterion 7. The applicant bears the onus to prove, on a balance of probabilities, that she is CAT because of the accident. The test to determine whether the applicant is CAT is a legal test and not a medical one: see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571. Relevant to this hearing, the criteria to establish CAT under Criterion 7 are found under paragraph 7 of s. 3.1(1) of the Schedule.

11To qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment (“WPI”) threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, and is combined with the physical WPI rating from the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”) using the Combined Values Table. An impairment percentage derived by means of the Guides is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished. WPI ratings are rounded to the nearest 5 (e.g. a 52% WPI is rounded down to 50, while a 53% is rounded up to 55).

The applicant’s CAT assessments

12The applicant relies on the CAT assessments conducted by Dr. Tajedin Getahun, orthopaedic surgeon, Dr. Vincenzo Santo Basile, neurologist, and Dr. Reena Chopra, psychologist.

13Dr. Getahun assessed the applicant on October 14, 2021 and prepared an Orthopaedic Catastrophic Assessment Report wherein he diagnosed the applicant with the following accident-related injuries:

i. Chronic myofascial strain of the cervical spine and the lumbosacral spine with nonverifiable radicular symptomatology.

ii. Right shoulder rotator cuff pathology with element of adhesive capsulitis.

iii. Left shoulder strain with internal derangement and restricted range of motion.

14Dr. Getahun assigned the following physical impairment ratings, resulting in a combined 24% WPI rating:

i. Spinal impairment – 10% WPI

ii. Right shoulder – 8% WPI

iii. Left shoulder – 6% WPI

iv. Use of medications/effects of treatments or lack thereof – 3% WPI

15Dr. Getahun prepared a CAT Executive Summary Report dated January 19, 2022.

16Dr. Getahun refers to Dr. Basile’s neurologic evaluation report dated November 24, 2021, wherein Dr. Basile diagnoses the applicant with post concussive syndrome, posttraumatic headaches, vertigo, musculoskeletal soft tissue injuries as a source of pain in the neck and back, and chronic pain. Dr. Basile assigned the following impairment ratings, resulting in a 31% WPI rating from a neurologic perspective:

i. Mental status and integrative functional abilities – 14% WPI

ii. Headaches – 13% WPI

iii. Sleep and arousal disorders – 3% WPI

iv. Vertigo class II – 4% WPI

v. Sexual dysfunction – 2% WPI

17Dr. Getahun also refers to Dr. Chopra’s psychological assessment report, based on assessments conducted on October 14 and 20, 2021, wherein Dr. Chopra diagnosed the applicant with “other specified trauma,” “stress-related disorder,” and chronic pain. Dr. Chopra also rated the applicant according to the four domains of mental and behavioural impairments as follows: marked impairment in “activities of daily living” and “adaptation,” and moderate impairment in “social functioning” and “concentration, persistence and pace.” Dr. Chopra obtained a 15% WPI rating.

18Dr. Getahun indicates that the applicant’s neurologic impairment rating of 31% WPI, combined with her orthopaedic impairment rating of 24% WPI, and further combined with her mental and behavioural impairment rating of 15% WPI, results in a combined 56% WPI rating. Dr. Getahun also notes that the applicant was rated by Dr. Chopra as suffering a marked impairment in adaptation, resulting in her inability to return to work. Dr. Getahun concludes that the applicant satisfies Criterion 7 of the Schedule for CAT.

Other medical evidence relied upon by the applicant

19The applicant refers to an MRI of her left shoulder dated July 7, 2020, which revealed the following:

i. Moderate supraspinatus and infraspinatus tendinopathy with partial thickness intrasubstance footprint tearing. No full thickness rotator cuff tear is seen.

ii. No rotator cuff muscle atrophy or denervation edema.

iii. Mild AC joint osteoarthritis.

iv. Posterior inferior quadrant complex tear of the labrum with subchondral cyst inferring the presence of high-grade degenerative chondrosis.

v. Mild glenohumeral joint osteoarthritis.

vi. Mild degenerative chondrosis of the humeral articular cartilage.

20The applicant refers to an MRI of her right shoulder dated August 11, 2020, which revealed the following:

i. No rotator cuff tear is seen.

ii. Severe tendinopathy seen of the rotator cuff centered at the cojoined portion of the supraspinatus space tendons.

iii. Mild AC joint osteoarthritis.

iv. Mild rotator interval synovitis.

v. Low-grade partial thickness footprint intrasubstance subscapularis tendon tear with mild tendinopathy.

21The applicant submits Dr. Franco Tavazzani, orthopedic surgeon, conducted surgery on her right shoulder on November 9, 2020. The operative report indicates the surgery was performed for a diagnosis of right shoulder osteoarthritis and subacromial impingement of the right shoulder.

The respondent’s position regarding CAT

22The respondent submits that the applicant had significant pre-accident medical conditions, including surgery to her left knee at the age of thirteen, carpal tunnel syndrome dating back to 2002, a right shoulder injury, vertigo, a right lower leg and ankle injury after falling through a deck in 2017, osteoarthritis of the patellofemoral joint, a slip and fall in August of 2019 causing injury to her right lower leg, a motor vehicle accident in 2009 and again in 2016, the latter accident causing multiple myofascial contusions as well as pain in the lower back, left arm and shoulder. The respondent argues that causation remains at the forefront of the dispute.

23The respondent refers to the following medical evidence demonstrating the applicant’s pre-accident medical conditions:

i. X-ray and ultrasound report dated August 9, 2017, indicating evidence of mild osteoarthritis in the patellofemoral joint.

ii. An entry dated September 21, 2017 in the clinical notes and records (“CNRs”) of Dr. Amritpal Singh Thind, physician, indicating chronic right shoulder discomfort and history of a rotator cuff tear two years prior. Dr. Thind noted the applicant had pain radiating “from traps down to mid upper arm.” Dr. Thind also indicated that the applicant was engaged in physiotherapy and taking Percocet as Advil gave her no significant benefit. Dr. Thind assessed the applicant with rotator cuff injury and trap sprain.

iii. An X-ray and ultrasound of the right shoulder dated September 29, 2017, indicating mild degenerative changes in the AC joint, and supraspinatus tendinopathy.

iv. An entry dated November 3, 2017 in the CNRs of Dr. W. Ker Leggatt, physician, noting that the applicant had been attending eight weeks of physiotherapy for right rotator cuff tendonitis with only moderate improvement. Dr. Leggatt discussed cortisone injections with the applicant and advised her that she needed to be on a long-term anti-inflammatory.

v. The applicant attended to see Dr. Leggatt on November 17, 2017 for an injection of the right shoulder for rotator cuff tendonitis.

vi. An entry dated January 22, 2019 where Dr. Leggatt noted that the applicant attended due to a recent flare up of her tendonitis which occurred when lifting her ill dog. The applicant requested an injection in her right shoulder.

24The respondent refers to the following medical evidence which it submits is in line with the applicant’s pre-existing issues:

i. An ultrasound of the right shoulder dated February 7, 2020, indicating calcification within the supraspinatus and subscapularis tendons, suggestive of calcific tendinitis, and suspected small focal intrasubstance tear of the supraspinatus tendon. The test concludes there is no full thickness tear and no impingement.

ii. The applicant’s MRI of the right shoulder dated August 11, 2020, which rules out a full rotator cuff tear and identifies mild synovitis and osteoarthritis.

25The respondent submits that the applicant underwent arthroscopic subacromial decompression in the fall of 2020 for non-accident-related issues including the right shoulder osteoarthritis and impingement. The respondent refers to Dr. Tavazzani’s report dated September 16, 2020, wherein he indicates that the applicant reported that she had pain in both of her shoulders since the accident. Dr. Tavazzani noted that the applicant reported she had previous problems with her right shoulder because of a very athletic past, particularly playing baseball, and she managed it with a cortisone injection, but that she has had no problem with her right shoulder for several years. The respondent points out that this is inconsistent with the applicant’s doctor’s records which note several pain complaints in the immediate time period prior to the accident, on September 21, 2017, November 3, 2017, November 17, 2017, and January 22, 2019 (as set out in paragraph 23, above).

The applicant is not CAT

26I find that the applicant has not established on a balance of probabilities that she is CAT as a result of her accident-related impairments.

27I find that the medical evidence of the applicant’s pre-accident impairments calls into question the findings in Dr. Getahun’s CAT report.

28In Dr. Getahun’s report dated October 14, 2021, he indicates that the applicant reported being involved in a motor vehicle accident in the 1990s, but that she recovered fully following physiotherapy. The applicant also reported childhood knee surgery that she recovered from fully. Dr. Getahun indicates that the applicant did not report any significant pre-accident musculoskeletal complaints or any significant medical history otherwise. I note that the applicant reported bilateral shoulder pain, with the right side being worse than the left. The applicant also reported having undergone right shoulder surgery in November of 2020 after the accident. I note, however, that the applicant did not report to Dr. Getahun her pre-accident history of a right shoulder rotator cuff tear, supraspinatus tendinopathy in the right shoulder, or right rotator cuff tendonitis.

29In his report, Dr. Getahun indicates that the applicant has painful restricted range of motion of the right shoulder consistent with specific injury and subsequent surgical intervention. He diagnoses the applicant with a right shoulder rotator cuff pathology with element of adhesive capsulitis, because of the accident. Dr. Getahun indicates that he reviewed the (post-accident) August 11, 2020 MRI of the right shoulder, noting there was “severe tendinopathy of the rotator cuff along with mild osteoarthritis of the acromioclavicular joint and low-grade partial thickness foot print intrasubstance subscapularis tendon tear with tendinopathy.” Dr. Getahun does not indicate that he reviewed the applicant’s pre-accident x-rays dated August 9, 2017 and September 29, 2017 or Dr. Thind’s CNRs, referred to in paragraph 23, above. In addition, although Dr. Getahun indicates that he reviewed Dr. Leggatt’s CNRs, it is not clear the dates of the CNRs he reviewed as he only refers to entries from 2020.

30In his report, Dr. Getahun does not discuss how the applicant’s pre-accident history of a right shoulder rotator cuff tear, supraspinatus tendinopathy in the right shoulder, or right rotator cuff tendonitis factored into his assignment of an 8% WPI of the right shoulder. For these reasons, I do not accept his 8% WPI rating of the right shoulder. Considering that Dr. Getahun arrived at a 24% WPI rating based in part on an 8% WPI of the right shoulder, I am not persuaded on a balance of probabilities by Dr. Getahun’s opinion that the applicant has an orthopaedic impairment rating of 24% WPI because of the accident.

31To qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. Since I am not persuaded by Dr. Getahun’s orthopaedic impairment rating of 24% WPI, and his opinion that the applicant has a combined WPI of 56% depends on this rating, I find the applicant has not established that she meets the requirements for a Criterion 7 CAT determination.

32For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that she is CAT as defined in the Schedule.

33The applicant also makes submissions with respect to why the Tribunal should not consider the respondent’s insurer examinations (“IEs”). Since I have reached my decision without considering the respondent’s IEs, I do not need to address these submissions.

The applicant is not entitled to the remainder of the plan for assistive devices

34The applicant has not established on a balance of probabilities that the remainder of the plan for assistive devices is reasonable and necessary.

35To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

36The applicant did not put the plan for assistive devices into evidence, nor did she make any submissions with respect to the plan. Accordingly, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the remainder of the plan for assistive devices is reasonable and necessary.

The applicant is not entitled to ACBs

37The applicant is not entitled to ACBs because she has not demonstrated on a balance of probabilities that they are reasonable and necessary or that the ACBs have been incurred.

38Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

39The applicant put into evidence an Occupational Therapy In-Home Assessment Report dated June 4, 2020, that was prepared by Raymond Wong, O.T. This report recommended attendant care in the areas of feeding and hygiene in the estimated monthly amount of $1,107.68. Mr. Wong indicated in the report that the benefit should be re-assessed in eight weeks’ time to determine if the applicant continued to have a need for the benefit.

40The applicant did not put into evidence a Form-1 indicating the need for ACBs in the amount of $1,580.66 per month from April 12, 2021 to date and ongoing. Further, the applicant did not make submissions on the reasonableness and necessity of ACBs, nor did she provide evidence that she incurred any ACB expenses in accordance with s. 19 of the Schedule.

41For these reasons, I find on a balance of probabilities that the applicant is not entitled to ACBs.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

43The applicant sought an award under s. 10 of 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.

ORDER

44For the above reasons, I find:

i. The applicant is not CAT as defined by the Schedule.

ii. The applicant is not entitled to the remainder of the plan for assistive devices.

iii. The applicant is not entitled to ACBs.

iv. The respondent is not liable to pay an award.

v. Interest is not payable.

vi. The application is dismissed.