Fridays With Rogers Partners

At our weekly Friday meeting, Angie Bellehumeur discussed a decision of the Licence Appeal Tribunal, R.A. v. Aviva Insurance Company, 2020 ONLAT 19-004208/AABS.

The issue in this case was whether a chronic pain assessment costing $2,010 was a reasonable and necessary expense resulting from a motor vehicle accident according to sections 14 and 15 of the Statutory Accident Benefits Schedule – Effective September 1, 2010.

The applicant was stopped in her car at a red light when another motor vehicle rear-ended her, resulting in a exacerbation of hypertension in her shoulder and neck caused by a previous workplace injury.

The applicant sought medical treatment for the pain arising from this motor vehicle accident, and was eventually referred to a pain specialist when the non-pharmacological therapy and over the counter pharmacological treatment provided no relief.

The pain assessment was done approximately a year after the motor vehicle accident to determine whether the applicant suffered from chronic pain or chronic pain syndrome, and to determine what further treatment was needed.

The pain specialist stated that, as a result of the accident, the applicant had developed fibromyalgia, a chronic disorder that causes various symptoms including widespread tenderness and pain.

The respondent, Aviva Insurance Company, argued that the applicant’s ongoing injuries were attributable to her pre-accident workplace injuries, as the motor vehicle accident was a modest rear-ender.

In her analysis, the adjudicator notes that “reasonable and necessary” is not defined in the SABS, and that it must be determined on a case by case basis. Based on the medical evidence submitted, she concluded that the assessment was a reasonable and necessary opportunity for the applicant to explore ongoing pain.

Of particular interest in this case is the adjudicator’s approach to addressing Aviva’s argument that any ongoing impairments were caused by the applicant’s pre-accident workplace injuries, and not the accident.

On the basis that the Insurance Examination assessors did not consider the issue of causation and that one assessor’s impairment diagnosis was attributed to the accident, the adjudicator concluded that the accident at least materially contributed to the applicant’s impairment.

The adjudicator also accepted the applicant’s submissions that her injuries worsened and became more extensive after the accident, as indicated in the applicant’s disability certificate (OCF-3).

The adjudicator used this standard of “material contribution” rather than the “but for” test, because it would be “irrational and unnecessary” to require the applicant to prove her impairments would not have developed had the accident not occurred, or that the accident was the sole cause of her impairments. The applicant was held to have likely been jolted back and forth by the accident and that she likely suffered her strains from tightening her body and grip.

Overall, the adjudicator was not convinced that the way the accident happened is a reliable basis for inferring how the accident impacted the applicant, since individuals experience trauma and pain differently. Accordingly, the applicant was entitled to the cost of the chronic assessment claim at issue and interest.

It will be interesting to see if this decision is appealed as the adjudicator appears to have erred in law by applying the “material contribution” test.