Lack of Medical Evidence to Show Chronic Pain is Clinically Associated with Sequela of the Accident - TS and Aviva - 17-000835 v Aviva

October 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

TS and Aviva - 17-000835 v Aviva General Insurance, 2017 CanLII 59495 (ON LAT)

Date of Decision:  August 17, 2017
Heard Before: Adjudicator Christopher A. Ferguson

MIG: plain reading of the schedule and definitions is clear; chronic pain falls outside MIG; lack of medical evidence to show whether his chronic pain is clinically associated to the sequela of the accident

TS was in a car accident on January 16, 2015 and received some benefits from Aviva and applied to the LAT with respect to other benefits which were denied.

Issues:

1. Did TS sustain predominantly minor injuries as defined under the Schedule?
2. Is TS entitled to the cost of examination for a psychological assessment in the amount of $2,460?
3. Is TS entitled to a medical benefit for psychological treatment recommended in a treatment plan dated November 1, 2016, in the amount of $3,841.48?
4. Is TS entitled to a medical benefit, for massage and chiropractic services, recommended in a treatment plan dated June 1, 2015, in the amount of $2,755.06?
5. Is TS entitled to a medical benefit for massage and chiropractic services recommended in a treatment plan dated November 5, 2015 in the amount of $2,399.49?
6. Is TS entitled to the cost of examination, for an orthopaedic assessment recommended in the amount of $2,460?
7. Is TS entitled to the cost of examination for an in-home assessment submitted in the amount of $2,248.90?
8. Is TS entitled to interest on any overdue payments from Aviva?

RESULT

TS’s injuries are classified under the Schedule as predominantly minor in nature and fall within the MIG because:

1. TS has failed to prove he sustained a psychological injury from the accident in support of his claims for benefits set out as issues 2 and 3.
2. The chronic pain symptoms experienced by TS and giving rise to issues (iv)-(vi) in this case are covered by the definition of “minor injury” prescribed by the Schedule.
3. TS’s injuries and classification of those injuries within the MIG mean that that TS is not entitled to the benefit claimed in issue 7.
4. There is no interest payable by Aviva.

Aviva argues that all of TS’s injuries fit the definition of “minor injury” and subject to the $3,500.00 benefits limit. TS’s position is exactly the opposite.

TS first argues that he has psychological impairments which remove him from the MIG. I agree with TS that psychological impairments, if established, fall outside the MIG.

TS relies exclusively on the psychological assessment conducted by a clinical psychologist on July 25 and August 1, 2016. Based on the examination TS was diagnosed with adjustment disorder, mixed anxiety and depressed mood and was recommended “a minimum of 12 sessions of psychotherapy to help him [i.e. TS] address clinical symptoms.”
Aviva relies on its psychological examination on August 4, 2016, which noted that TS denied psychological problems, depression, anxiety or driving phobia.  According to the report, TS stated that he did not need to see a psychologist.  These statements were directly quoted from the 1.25 hour clinical interview with TS. The report concluded TS does not suffer from a formal psychological condition and doesn’t require psychological treatment under DSM V criteria.

The Adjudicator found that TS’s self-reporting to the examining psychologists is contradictory, and  TS’s own words in examination interviews are powerful evidence in determining whether the psychological problems claimed are real and whether treatment and assessment plans are reasonable and necessary. TS does not deny making the statements reported, and offers no explanation for his denials of psychological issues. 

The Adjudicator found that the unexplained inconsistency in TS’s self-reporting to different examining specialists, the express denial of psychological issues by TS in an IE and the absence of any noted flaw in the examination or diagnostic testing in the IE are compelling reasons to give greater weight to the IE report than to TS’s report by Dr. Mills. Accordingly, TS has not proven that he has sustained psychological injuries as a result of the accident.  The claim for benefits set out as issues (ii) and (iii) is unsupported by the evidence, and should be denied.

Does TS have Chronic Pain?

TS  argues that he has chronic pain syndrome, and that this removes him from the MIG.  Aviva contends that TS does not suffer from chronic pain syndrome as a result of the accident, relying on its IE reports to establish doubts about TS’s claimed diagnosis and causality. After reviewing the medical evidence submitted by both parties, the Arbitrator concluded that TS does suffer chronic pain syndrome as a result of the accident.

The Arbitrator found no basis on which to deny TS’s assertion that medical benefits and costs of assessments enumerated above as issues (iv)-(vi) in para. 5 are reasonable and, having found his medical evidence persuasive, found that they are necessary. The Adjudicator found the treatment plans would be payable if TS’s chronic pain syndrome in this case fall outside the MIG.

Is TS’s Chronic Pain Syndrome within the MIG? Aviva also argues that chronic pain syndrome, if caused by soft-tissue injuries, falls within the MIG.  TS cited FSCO cases and a number of Superior Court cases to support its contention that chronic pain falls outside the MIG: Pereira v Contardo, 2014 ONSC 6894 (CanLII), 2014, ONSC 6894, paras. 15, 19, 56; Bridgewater v James 2004 CanLII 48701 (ON SC), 2004 CanLII 48701 para. 42; and Hensworth v Mismar, 2006 CanLII 38232 (ON SC) para. 81.

The Adjudicator found the cases are unpersuasive because none of them purport to interpret the meaning of the Schedule. The point these cases address is that chronic pain syndrome is serious, requires treatment and can give rise to claims in tort. However, those points are not at issue here; the meaning of section 3 of the Schedule is at issue.  TS’s submissions do not explain how the cited cases can be used to interpret the Schedule, and as a result are not persuasive.  TS does not argue the issue of whether the chronic pain symptoms he reports are or are not clinically associated sequelae to his minor injuries, nor do his medical reports provide evidence on this question. 

The Adjudicator found that the chronic pain symptoms in this case fall within the MIG.

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