Entitlement to Benefits Partially Shown - Paridis-Blais and Aviva

December 18, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Paradis-Blais and Aviva Canada

Decision Date: November 9, 2017
Heard Before: Adjudicator Marshall Schnapp

ENTITLEMENT TO BENEFITS: applicant demonstrates that injuries are result of car accident; applicant fails to demonstrate that all treatments sought were reasonable or necessary; insurer fails to provide evidence countering that of applicant; some treatment obtained without approval of treatment plans

Ms. Paradis-Blais was injured in a car accident August 19, 2009, and sought accident benefits from Aviva but when mediation failed she applied for arbitration at the FSCO.

Issues:
Is Ms. Paradis-Blais entitled to an income replacement benefit of $400.00 per week from August 26, 2009 to the present and ongoing?

1. Is Ms. Paradis-Blais entitled to the following medical benefits:

1. Treatment Plan dated March 26, 2013 in the amount of $1,330.64;
2. Treatment Plan dated October 17, 2013 in the amount of $2,467.24;
3. Treatment Plan dated November 6, 2013 in the amount of $2,798.54;
4. Treatment Plan dated November 11, 2013 in the amount of $950.30;
5. Treatment Plan dated February 21, 2014 in the amount of $8,173.92;
6. Treatment Plan dated July 15, 2014 in the amount of $10,152.24;
7. Treatment Plan dated October 17, 2014 in the amount of $11,602.56;
8. Treatment Plan dated February 26, 2015 in the amount of $7,251.60;
9. Treatment Plan dated March 3, 2015 in the amount of $7,899.60;
10. Treatment Plan dated June 16, 2015 in the amount of $13,690.56;
11. Treatment Plan dated April 9, 2015 in the amount of $30,000.00 (USD);
12. Treatment Plan dated April 9, 2015 in the amount of $22,000.00 (USD);
13. Treatment Plan dated July 21, 2015 in the amount of $10,051.26;
14. Treatment Plan dated November 13, 2015 in the amount of $11,468.80; and
15. Treatment Plan dated September 21, 2015 in the amount of $568.98?

1. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Paradis-Blais?
2. Is Ms. Paradis-Blais entitled to interest for the overdue payment of benefits?
3. Is either party entitled to its expenses of the Hearing?

Result:

1. Ms. Paradis-Blais is entitled to an IRB of $400.00 per week from March 2, 2014 to the present and ongoing.
2. Ms. Paradis-Blais is entitled to the following medical benefits:
   1. Treatment Plan dated March 26, 2013 in the amount of $1,330.64;
   2. Treatment Plan dated October 17, 2013 in the amount of $2,467.24;
   3. Treatment Plan dated November 6, 2013 in the amount of $2,798.54;
   4. Treatment Plan dated November 11, 2013 in the amount of $950.30;
   5. Treatment Plan dated July 15, 2014 in the amount of $10,152.24;
   6. Treatment Plan dated February 21, 2014 in the amount of $8,173.92;
   7. Treatment Plan dated October 17, 2014 in the amount of $11,602.56;
   8. Treatment Plan dated February 26, 2015 in the amount of $7,251.60;
   9. Treatment Plan dated June 16, 2015 in the amount of $13,690.56;
   10. Treatment Plan dated September 21, 2015 in the amount of $568.98; and
   11. Treatment Plan dated November 13, 2015 in the amount of $11,468.80.   
3. Ms. Paradis-Blais is not entitled to the following medical benefits:
   1. Treatment Plan dated March 3, 2015 in the amount of $7,899.60;
   2. Treatment Plan dated April 9, 2015 in the amount of $30,000.00 (USD);
   3. Treatment Plan dated April 9, 2015 in the amount of $22,000.00 (USD); and
   4. Treatment Plan dated July 21, 2015 in the amount of $10,051.26.
4. Aviva is not liable to pay a special award because it unreasonably delayed payments to Ms. Paradis-Blais.
5. Ms. Paradis-Blais is entitled to interest for the overdue payment of benefits which I have found are payable.
6. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Ms. Paradis-Blais was driving to work. She was stopped waiting to make a right-hand turn.  She recalls feeling her car being lifted up and pushed forward.  As a result of the impact of the MVA, she was projected forward and then felt the seat belt pull her back.  She recalled a “crushing pull in lower back, felt sudden pain and neck pain.”  The only necessary repair to the vehicle was the replacement of the rear bumper cover at a cost of $763.02. She did not attend a hospital or seek medical attention immediately after the MVA.  She testified that she was on her way to write an exam required for her job and did not want to miss it.  She did attend an Urgent Care facility after her exam.  She was told she sustained soft tissue injuries and was prescribed anti-inflammatories.  Subsequent to the MVA her condition eventually deteriorated to the point where she two required surgeries: a coccygectomy and a sacroiliac joint fusion.

The dispute between Ms. Paradis-Blais and Aviva in this matter boils down to whether or not the MVA on August 19, 2009 is responsible for Ms. Paradis-Blais’s impairments and disabilities.  The key issues in dispute between the parties are: 1) causation and 2) credibility. 

According to Ms. Paradis-Blais’s testimony she had a number of incidents prior to the 2009 MVA that may be considered as pre-disposing her to back injuries most of them of minor nature throughout her childhood and early life.  Ms. Paradis-Blais was also involved in an MVA in 2007.  She was a passenger when the vehicle was hit on the rear-side.  She sustained a broken wrist and contusions.  She notes there was a mention of a loss of consciousness, but she testified she recalled the incident and was intoxicated at the time – she and others had been celebrating the end of school.  She advised that within one week of the 2007 MVA she started intensive training for her new job; while she was sore she was functional and able to do everything.

With respect to the MVA as noted above, Ms. Paradis-Blais did experience pain and discomfort immediately after the MVA.  She did not attend a Hospital as she was concerned about missing her exam which was necessary for her employment.  Ms. Paradis-Blais testified she attended an Urgent Care centre in Orleans after her exam.  She recalls the doctor advising her that he thought she sustained Whiplash Associated Disorder (“WAD 2”) / soft tissue injuries.  No x-rays were taken, and she was prescribed anti-inflammatory medication.  She testified she was pushing through as she did not want to lose her job and she was able to write all of her exams.  She then testified that when she woke up on her first day off, she had a flare up.  She had gained 20 pounds around her pelvic area all the way up to her arm pits due to swelling.  She went back to Urgent Care and saw the same doctor who referred her to the Ottawa Hospital, where they performed x-rays but they indicated there was too much swelling, so they prescribed additional anti-inflammatory medication.  Ms. Paradis-Blais advised that as a result of the MVA, she attended physiotherapy and received Prolotherapy - injections to her ligaments and tendons in her back, buttocks and left side of hip.  She also saw an Osteopath.

Ms. Paradis-Blais’s gave evidence that after the 2009 MVA, she could never go back to sports and had to stop attending the gym for a period of time.  She testified that when she would start a new job she would often have a flare up within a few weeks and have to take time off from work.  In October 2010 she started a catering job and within two weeks she was on leave for a week and then back on crutches.  She further testified that the muscle relaxants and anti-inflammatory medication had caused her significant stomach issues and she was told not to take them unless she had a “huge flare-up”.

Ms. Paradis-Blais further testified that after she slipped on ice in 2013, she was unable to work for a week.  Eventually she had to stop working all together because her back condition had deteriorated because she was no longer able to take medication.  By the end of 2013 to early 2014, her pain increased and spread from her back to her legs and it was difficult to bear any weight.  Ms. Paradis-Blais further testified that she felt a constant crushing feeling which resulted in her being confined to her bed.  She could no longer drive, feed herself or bathe and had to rely on her husband for all of her caregiving.  Ms. Paradis-Blais ended up being hospitalized in January of 2014 as she could no longer walk.  She was then referred to an Orthopedic Surgeon but was waitlisted for 12 to 24 months.

At this point Ms. Paradis-Blais did some online research and came across Dr. Katzman, an Orthopaedic Surgeon, who practices in Florida.  After sending him her MRI and having a phone consultation, the doctor advised her that she had a malunion in the coccyx region and he suggested surgery.  He advised that the full extent of her issues may not be known until after the surgery and she may require another surgery.  The surgery took place on July 31, 2014 in Florida and she returned to Ottawa on August 2, 2014.  Ms. Paradis-Blais’s pain on the side of her coccyx came back and while she was able to sit, she could not stand.  She underwent an MRI in Quebec as she would have had to wait six months for one in Ontario.  She sent the MRI results to Dr. Katzman, who advised that while he had hoped the surgery would help her SI joint heal, the damages were further than expected so he thought she required another surgery.  She recalls Dr. Katzman discussing other options, but according to Ms. Paradis-Blais she had already tried many of them and they had not worked.  Ms. Paradis-Blais stated she could not take certain medications and felt there were no other possible options, so she opted for and underwent the second surgery. According to Ms. Paradis-Blais, her condition has improved drastically since the surgeries.  She was able to sit and walk and not use a cane on good days.  She can also bathe on her own and make her own meals.  Her endurance is improving, and she continues to improve with therapy.

With respect to her income loss due to the MVA, Ms. Paradis-Blais provided a report dated September 22, 2015[3] outlining her income loss.  According to the report, her income replacement benefits (“IRBs”) payable through December 31, 2014 total $70,208.30.  This amount was based on a weekly benefit of $400.00.

A number of important admissions and issues were covered during cross-examination. Ms. Paradis-Blais confirmed that a photograph of her and her husband dog-sledding on February 12, 2012 which was taken from a video created by her and her husband was accurate.  Ms. Paradis-Blais advised she was able to participate in dog-sledding as she was on medication.  Ms. Paradis-Blais confirmed when she applied for Employment Insurance (“EI”) benefits in December of 2009; the basis of her application was she was not able to work nights.  She also noted that she requested an amendment be made to add the MVA.  She requested this amendment around February 2016 and she advised EI it needed to be corrected because she was going to a mediation.  Ms. Paradis-Blais also testified that her EI stopped in April 2010 and at that time she was available and capable of work, as long as it was not overnight shifts, as the doctors told her she required sleep to heal.  She confirmed that the notes of the Physiotherapy document that she slipped in May and June of 2010 but she did not recall any slips.  Ms. Paradis-Blais was also questioned about an incident on December 29, 2010.  She was asked if she slipped when out walking her dog.  She answered that she slipped but did not fall – her foot went through snow, and she crumpled unto herself, she fell into a low ball onto herself and made contact with the top of snow.

At first she did not recall but then she did recall being involved in another MVA on April 23, 2011, at which time according to Ms. Paradis-Blais, another vehicle came into contact with her car.  She was sore but functional after it.  She specifically did not recall an increase in her back pain following this MVA and she did not report it.  She testified that she left her employment in August 2011 because of a shortage of work and not due to her injuries.  She confirmed that as of October 4, 2011, she applied for regular EI benefits, looking for work and was ready, willing and capable of working immediately.

Ms. Paradis-Blais also confirmed that during the EUO she testified she was 90% recovered and she agreed with that statement.  She explained that she was doing physiotherapy, going to the gym and obtaining injections; she felt her treatments and medication were maintaining her condition.

Ms. Paradis-Blais also confirmed she sent an email on January 28, 201 to her work supervisor.  The email indicated that she slipped and fell hurting her back and was going to get a CT scan.  Ms. Paradis-Blais explained that in her email she did not use the proper term, as she did not fall even though she wrote in the email that she had fallen; the email should have said that she had fell through the snow, but that she did not fall down. 

Counsel for Aviva questioned several contradictory statements made to various service providers about falling, not falling and what causes flare ups of pain.

The surgeon who performed two surgeries on Ms. Paradis-Blais, also provided testimony during the Hearing by Skype.  He is an Orthopaedic Surgeon who practices in Florida and has been doing so for the past 20 years.  He has an expertise in coccyx problems.  He testified that Ms. Paradis-Blais presented with complaints of pain in her coccyx and pelvic area.  The doctor went on to testify that “when she presented to the office, she had coccyx pain and she had a mobile coccyx segment, which means that at some point in time in her life it became loose or injured, and often the simple removal of that cures the condition, which otherwise is chronic…”

He went on to testify that Ms. Paradis-Blais advised she has had these issues since the MVA.  Dr. Katzman believed the 2009 MVA either caused the problem or aggravated her coccyx as per the history provided by Ms. Paradis-Blais.  He also noted the cause of her issues were irrelevant to him as his goal was to make Ms. Paradis-Blais feel better and improve. He completed two surgeries; the first on her coccyx and the second on her SI joint.  He completed treatment plans and testified that he felt both surgeries were reasonable and necessary to resolve the pain issues from the MVA. During his cross-examination, Dr. Katzman testified that Ms. Paradis-Blais “had a coccyx problem and she had an SI problem.  That is, in my opinion, not disputable.  The question is: Where did it come from.”

According to her physiotherapist Ms. Paradis-Blais has had a couple of flare-ups each year.  He recalled a flare-up caused by her moving oddly on a couch and another time when she stepped out of a vehicle.  Her therapy was ongoing and was occurring prior to the couch flare-up incident. He testified that the majority of her flare-ups resulted in pain in her low back, SI area, down the leg and resulted in limited walking and tolerance issues with sitting.  He does not agree with the Physiatrist for the Aviva as he believes Ms. Paradis-Blais was improving with physiotherapy treatment and medication. He also noted an improvement after the first surgery and he believes the surgeries absolutely assisted Ms. Paradis-Blais and improved her condition.

When cross-examined the physiotherapist could not find any records of Ms. Paradis-Blais’s flare-up from getting off the couch, nor did the initial assessment include a diagnosis of any injury to her coccyx or sacroiliac joints.  Further review of the physiotherapists charts noted multiple slips and incidents Ms. Paradis-Blais complained of which aggravated her condition. 

Aviva called a physiatrist to testify as he prepared a report and multiple addendums to his report on Ms. Paradis-Blais.  As he was testifying to his document review in preparation of his report, he noted that the Whole Body Scan conducted on Ms. Paradis-Blais noted something with her SI joints. The doctor also testified that he was unable to come to a conclusion in his report dated May 23, 2014 without specific investigations to be completed, including a dynamic x-ray, which would be able to show if there was any sublimation.   He felt that the MVA may not be responsible for her complaints as it was difficult to see how her coccyx pain started.  He thought her fall in 2013 was a contributing factor to her coccyx pain because all her symptoms and investigations came after 2013 and there were no investigations in 2009 and 2010, and if symptoms started 4 or 5 years later it is not MVA-related. He testified that while Ms. Paradis-Blais believes she received some relief from her two surgeries, he thinks it is due to the placebo effect. 

Aviva also believes that it was the “fall” in January of 2013 that is responsible for Ms. Paradis-Blais’s coccyx issues.  Her medical records reveal a significant change in her reported   symptoms starting in 2013.  While her complaints had previously focused on the areas of her lumbar spine and her left hip, Ms. Paradis-Blais began to include complaints of pain to her coccyx area.  According to Aviva, Ms. Paradis-Blais’s subjective evidence linking the coccyx injury to the MVA cannot be accepted due to significant issues with her credibility.   

The Arbitrator reviewed all of the evidence and the testimony and found overall Ms. Paradis-Blais to be a credible witness.  She appeared to answer questions to the best of her ability and had a good recall of the events.  She explained things as best she could and when inconsistencies were brought up between some of the documentation, both non-medical and medical, her evidence provided at the EUO, and the Hearing, she was able to explain it.  It may be at certain times she told different things to different individuals but there was no persuasive evidence of an intention to deceive.

With respect to whether or not she had a “fall” in January 2013, the Arbitrator did not think a finding on this is even necessary as to determine causation, as the evidence shows she had not fully recovered before this incident and was still receiving treatment, I do find that based on Ms. Paradis-Blais’s testimony at the Hearing and during her EUO, her husband’s testimony was that she did not fall and land on her back.

On the whole there is insufficient evidence that the incident in January of 2013 led to any significant new injuries but rather further aggravated the injuries which had not resolved and were sustained by Ms. Paradis-Blais in the MVA.

Aviva provided no evidence to show that Ms. Paradis-Blais is capable to return to regular gainful employment and therefore the evidence before the Arbitrator has shown on a balance of probabilities that Ms. Paradis-Blais as a result of and within 104 weeks after the accident suffered a substantial inability to perform the essential tasks of employment as required by the Schedule. 

As well, the evidence shows that Ms. Paradis-Blais from on or about July 2013, as a result of the MVA, was suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. 

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.