S.Y.Q. v. Aviva Insurance Company, 2017 CanLII 148380

Tribunal File Number: 16-001349/AABS

In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

S.Y.Q. Applicant

and

Aviva Insurance Company Respondent

DECISION

Adjudicator: S. F. Mather Appearances: Jessie V. Tran, Paralegal for the Applicant Ed J. Brodgden, Counsel for the Applicant Petro Yannakis, Counsel for the Respondent Heard in writing on: April 6, 2017

REASONS FOR DECISION AND ORDER

Overview

1S.Y.Q. (the “applicant”) was involved in a motor vehicle accident on February 26, 2014 and sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”).

2The respondent denied several treatment and assessment plans (OCF-18s) put forward on behalf of the applicant by York Medical Centre.

3The applicant appealed the denial of the treatment and assessment plans to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on July 4, 2016.

4Following the case conference parties were unable to resolve three of the treatment and assessment plans in dispute. A written hearing was ordered.

Issues

5The issues to be decided are as follows:

i. Is the applicant entitled to receive a rehabilitation benefit in the amount of $3,321.60 for chiropractic services recommended by York Medical Centre in a treatment plan dated November 3, 2014 and denied by the respondent on December 2, 2014?

ii. Is the applicant entitled to payment for the cost of an examination in the amount of $2,270.00 for a social service assessment, to be provided by York Medical Centre, submitted on April 6, 2015 and denied by the respondent on April 17, 2015?

iii. Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for an orthopaedic assessment, to be provided by York Medical Centre, submitted on June 15, 2015 and denied by the respondent on June 16, 2015?

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

v. Is the respondent entitled to costs?

Results

6(i) The applicant is not entitled to a rehabilitation benefit in the amount of $3,321.60 for chiropractic services recommended by York Medical Centre in a treatment plan dated November 3, 2014 and denied by the respondent on December 2, 2014.

(ii) The applicant is entitled to payment for the cost of an examination in the amount of $2,200.00 for a social service assessment, to be provided by York Medical Centre, as set out in the treatment plan dated submitted on April 6, 2015 and denied by the respondent on April 17, 2015.

(iii) The applicant is not entitled to payment for the cost of an examination in the amount of $2,200.00 for an orthopaedic assessment, to be provided by York Medical Centre submitted on June 15, 2015 and denied by the respondent on June 16, 2015.

(iv) The applicant is entitled to interest on the overdue amount in accordance with the Schedule.

(v) The respondent is not entitled to costs.

BACKGROUND

7The applicant was involved in a motor vehicle accident on February 26, 2014 when she was 25 years old. The applicant was stopped in traffic when the car she was driving was rear-ended by another vehicle causing her to hit the vehicle in front. She did not go directly to the hospital from the accident scene but went some hours later the same day.

8The applicant saw her family doctor, Dr. Tang, the day after the accident and complained that her neck and right arm were sore and had tightness. Dr. Tang concluded that the symptoms of tightness were likely from muscle strain and recommended physiotherapy, massage and “Aleve” and a follow-up appointment in 4-6 weeks.

9The applicant saw her family doctor, Dr. Tang, several times in the year following the accident, but the visits were not accident related. It was not until April 7, 2015 that she again reported symptoms from the accident to Dr. Tang. Dr. Tang was not involved on an ongoing basis in treating the applicant’s injuries from the accident.

10The applicant began attending the York Medical Centre operated by Dr. San Bui, a chiropractor, the day after the accident and attended at the clinic on a fairly regular basis until February 2016.

11Dr. Bui states at paragraph 5 of in his affidavit that as far as he knows he is the sole or primary Health Practitioner treating the applicant in respect of injuries arising from, and subsequent to the accident.¹

12The applicant has a pre-existing scoliosis which is reported in the x-ray taken at Mackenzie Health on February 27, 2014² and in an x-ray taken at X-Ray Associates³ on March 23, 2015.

Analysis

13The respondent is liable under s. 14 of the Schedule to pay for medical and rehabilitation benefits to or on behalf of an insured person who sustains an impairment as a result of an accident. The test for the payment of medical benefits found in section 15 of the Schedule is whether the benefits claimed are “reasonable and necessary expenses.” The test for rehabilitation benefits found in section 16 of the Schedule is whether the expenses are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability arising from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.

14I agree with the respondent’s submission that the applicant has the burden of proving that the treatment and assessment plans are reasonable and necessary.

15This well accepted principle is confirmed by the Ontario Superior Court of Justice (Divisional Court) in the case of Scarlett v. Belair Insurance Co.⁴ The Court stated that it is fundamental to insurance law that the burden of proof rests with the insured to establish a ‘right to recover’ under the terms of a policy.

16In this case the respondent required the applicant to undergo an insurer examination (IE) under section 44 of the Schedule for all three of the treatment and assessment plans in dispute. None of the opinions of the respondent’s examiners agree with the opinions of the applicant’s health care practitioner, Dr. Tang, who certified that the goods and services contemplated by the treatment and assessment plans were reasonable and necessary. I have considered and weighed the evidence of both parties to determine, on a balance of probabilities, whether the treatment and assessment plans in dispute are reasonable and necessary.

17I do not agree with the submissions of the applicant at paragraph 19 of the reply submission that “where no reasonable and necessary alternate plan is presented, doubt in favour of the OCF Plan should tip the scale in favour of the OCF-18 treatment plan”.

18In my view there is no obligation on the respondent to propose an alternate plan. Pursuant to Section 38 (8) of the Schedule, the only obligation on the respondent, when denying a treatment and assessment plan is to provide medical reasons and other reasons why the benefit claimed should not be paid.

19Upon receipt of a denial, an insured may appeal the denial to the Tribunal. On appeal the applicant has the opportunity to provide evidence and make arguments as to why the treatment and assessment plans are reasonable and necessary.

20In order to find a benefit is payable I must be satisfied that the applicant has met the burden of proof and has shown on a balance of probabilities that the treatment and assessment plans are reasonable and necessary.

Issue 1: Is the applicant entitled to chiropractic treatment?

21A copy of the treatment and assessment plan for chiropractic services dated November 3, 2014, is included in the applicant’s reply submissions.⁵

22In addressing whether this treatment and assessment plan is reasonable and necessary I am confronted with the conflicting opinions of chiropractors, Dr. Bui and Dr. Jim Getsos.

23The only opinion of Dr. Bui is the required statement in the treatment and assessment plan that the goods and services contemplated are reasonable and necessary for the treatment and rehabilitation of the insured.

24Dr. Bui lists four injuries and sequelae as being a direct result of the accident including dislocation and strain of the joints and ligaments of shoulder girdle, whiplash associated disorder (WAD3) with complaint of neck pain and neurological signs, anxiety disorder and phobic anxiety disorders.

25Dr. Bui recommends 18 one and one-half hour physical rehabilitation sessions at a cost of $2,700 to be provided by himself, a massage therapist and an acupuncturist. The goals of the treatment are stated to be pain reduction, increased range of motion, return to activities of normal living and return to pre-accident work activities. He does provide any details on how the proposed treatment will reduce or eliminate any effects of the applicant’s disability or how the proposed treatment will facilitate her reintegration into her family, the rest of society and the labour market. He also does not report on the progress, if any, that the applicant has made under his treatment.

26Following his examination of the applicant, Dr. Getsos recommends denial of the treatment plan in a report dated January 20, 2015.

27In Dr. Getsos’s opinion, the plan was not reasonable and necessary because at the time of his assessment there were no orthopaedic indicators supporting any ongoing impairment or injuries. Dr. Getsos was of the view that the applicant was capable of addressing her residual complaints with her home exercise program. He also suggested that the applicant follow-up with her family doctor for pain control.

28Dr. Getsos concludes that there were no indicators of musculoskeletal impairment that would require the treatment proposed in the plan and opined that, moving forward no further facility based care or assessment of any kind are anticipated or required.

29The applicant submits that Dr. Getsos and other IE examiners who examined the applicant in connection with other treatment and assessment plans did not recognize the impact of the applicant’s scoliosis on her ability to recover from the accident.

30The report of Dr. Getsos and other IE reports submitted as evidence recognize that the applicant has scoliosis. The applicant is correct that they do not address the impact, if any, of the scoliosis on the applicant’s ability to recover from the accident or on her medical and rehabilitation needs. The applicant’s evidence, however, does not address these issues either. The treatment and assessment plan for chiropractic services makes no mention of scoliosis and Dr. Bui indicates in the plan that the applicant had no known prior condition.

31Without any evidence with respect to the impact, if any, of the scoliosis I am unable to find that the treatment and assessment plan was reasonable and necessary because of the scoliosis.

32I am not satisfied that the applicant has introduced sufficient evidence under Section 16 of the Schedule to show that the plan is reasonable and necessary for the purposes of reducing or eliminating the effects of any disability of the applicant arising from the impairment or to facilitate the applicant’s reintegration into her family, the rest of society and the labour market. It is not clear to me what disability arising from her impairment the treatment plan is going to reduce or eliminate.

33The applicant provided affidavits for Dr. Tang and Dr. Bui along with their clinical notes and records attached as exhibits in her reply. There is nothing in the clinical notes and records of Dr. Tang to support the claim for physical rehabilitation, massage and acupuncture.

34I also find there is nothing in the clinical notes of the York Medical Centre⁶ to support the finding that the continued sought in the treatment and assessment plan dated November 13, 2014 is reasonable and necessary. The Daily Sign-In sheets simply confirm the applicant’s attendance at treatment.

35The Patient Condition Appraisal records of the York Medical Centre prior to the date of the treatment and assessment plan are difficult if not impossible to read and provide no evidence that the proposed treatment was reasonable and necessary. There is a note that says the applicant was feeling better but I am not satisfied that this is sufficient evidence to find that the proposed additional treatment was reasonable and necessary.

36The affidavit of Dr. Bui⁷ does not provide any additional information or opinions on the three treatment plans in dispute.

37The affidavit sworn on November 16, 2016 only addresses the question of as to whether or not the injuries of the applicant can be treated to maximal recovery within the Minor Injury Guideline. Dr. Bui was of the opinion that they could not be treated within the Minor Injury Guidelines. The respondent’s reply submissions confirm that the applicant’s entitlement to the treatment and assessment plans is the only issue in dispute.

38I am troubled by the affidavit of Dr. Bui. It refers to an incorrect date for the accident and appears to me to be a generic or “boiler plate” affidavit for providing an opinion that an insured person has an injury that takes them out of the Minor Injury Guideline. In paragraph 10 of the affidavit Dr. Bui states that “CMT, (a name different from the applicant) does not meet the criteria for the Minimum Injury Guideline limitation”.

39It appears to me that Dr. Bui swore the affidavit without properly reviewing it to ensure it was correct. Due to the inaccuracies in the affidavit and the fact that it appears to be a “boiler plate”, I find that the affidavit to be unreliable and I am unable to give Dr. Bui’s affidavit any weight. Even if the date and name were accurate the affidavit does not address whether the treatment and assessment plan is issue is reasonable and necessary.

40The respondent’s submission raises the issue of Dr. Bui’s credibility in light of the fact that in 2012 he was disciplined by the Discipline Committee of the College of Chiropractors for submitting false treatment plans.⁸

41I agree with the applicant that the fact that Dr. Bui has been disciplined by the College for false reports cannot be used by me to conclude that the reports which he prepared for the applicant in this case are false and I have disregarded this evidence in reaching my conclusion.

42I have also considered the observations of the respondent’s examiners with respect to the applicant’s pain reports. Dr. Getsos makes the observation in his report that that the applicant’s self-reported pain levels did not match the apparent nature and severity of the injury and suggested there may be a non-organic cause.

43While the treatment and assessment plan mentions pain reduction without more elaboration, I am not satisfied that the treatment plan is reasonable and necessary to deal with pain issues.

44Therefore on the basis of the above, I do find the chiropractic services to be reasonable and necessary.

45The proposed cost for this assessment is $2000.00 plus $270.00 for the completion of the treatment and assessment plan.

46I have allowed the claim for this OCF-18 in the amount of $2000.00 for a social service assessment and $200.00 for the completion of the treatment and assessment plan form. I agree with the respondent that the maximum payable for the completion of a treatment and assessment plan form is $200.00 in accordance with the Appendix to the Superintendent’s Guideline No.03/14.⁹ The applicant does not dispute the maximum fee payable in her reply submission.

[47] The description of the injuries and sequelae is :

Problems related to Social Environment
Problems related to certain psychosocial circumstances
Problems in relationship with spouse or partner
Problems related to employment and unemployment and problems related to housing and economic circumstances

48The goals of the assessment are stated to be “other” and additional comments are provided on an attachment to the forms.

49The form states that the applicant is experiencing financial and social stresses related to her disability and experiencing difficulties with re-integration to the work force.

50The form also explains how the social worker will facilitate the rehabilitation process to assist the client and sets out the issues to be addresses by the assessment.

51The clinical notes of Dr. Tang¹⁰ confirm that the applicant was seen on April 7 and April 8, 2015 with complaints about interrupted sleep and fears of driving.

52The respondent relies on an IE report¹¹ of Dr. Jana H. Atkins, a licenced psychologist, dated July 29, 2015, as evidence that the assessment proposed is not reasonable and necessary.

53Dr. Atkins finds that the applicant was experiencing symptoms of anxiety and depression in relation to her ongoing pain and physical symptoms and diagnoses the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Atkins documents that the applicant was having relationship issues with her boyfriend and that she was worried about her inability to get a job. Dr. Atkins also recognized that the applicant was experiencing symptoms of driving and passenger related fears but did not feel they were of a severity to warrant a diagnosis of a specific phobia.

54Dr. Atkins did not consider the treatment and assessment plan to be reasonable and necessary because the goods and services that the assessment proposed to address represent social functions of the applicant.

55In Dr. Atkins’s opinion the applicant was in need of a psychological assessment rather than a social function assessment and she recommended that a psychological assessment take place.

56Dr. Atkins’s report clearly documents that the applicant was having relationship issues and job-related issues related to the accident. These issues are the same issues identified in the treatment and assessment plan as issues that need to be addressed. For this reason I am satisfied that the treatment and assessment plan recommending a social service assessment was reasonable and necessary.

57I am of the view that in denying the social services assessment on the basis that a psychological assessment was more appropriate, Dr. Atkins should have provided the basis upon which she reached this conclusion.

Issue 3: Is the applicant entitled to the Orthopaedic Assessment

58Neither party included a copy of the June 15, 2015 treatment and assessment plan recommending the orthopaedic assessment in their evidence.

59The respondent relies on the IE report ¹²of Dr. Fathi Abuzgaya dated July 22, 2015 to deny the applicant’s request for what Dr. Abuzgaya describes as a “total body assessment”. According to Dr. Abuzgaya’s report the applicant had no evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the accident to warrant an assessment.

60I am of the view that without being able to review this treatment and assessment plan that is in issue before me, I am unable to find that the assessment proposed was reasonable and necessary. I do not know the injuries and the sequelae the examination was meant to address and I do not know the goals of the assessment that is being sought.

61The applicant does not directly address this treatment and assessment plan in her submissions or reply submissions other than to argue that the respondent has not addressed the issue of the applicant’s scoliosis and that the IE assessors did not spend sufficient time with the applicant to be able to give an opinion on whether the proposed plan was reasonable and necessary.

Issue 4: Is the Applicant entitled to interest on Overdue Amounts?

62I find that the respondent must pay to the applicant interest on the cost of the examination for the social service assessment to be provided by York Medical Centre pursuant to Section 51 of the Schedule.

Issue 5: Is the Respondent entitled to Costs?

63The respondent’s request for costs found is denied.

64Rule 19.1 of the LAT Rules made under Rule 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 permits a party to make a request to the Tribunal for costs.

19.1 Where a party believes that another party to a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith that party may make a request to the Tribunal for costs.

65The respondent has not proffered any evidence to show that the applicant has acted unreasonably, frivously, vexatiously or in bad faith in these proceedings.

ORDER

66(i) The applicant is not entitled to a rehabilitation benefit in the amount of $3,321.60 for Chiropractic services recommended by York Medical Centre in a treatment plan dated November 3, 2014 and denied by the respondent on December 2, 2014.

(ii) The applicant is entitled to payment for the cost of an examination in the amount of $2,200.00 for a social service assessment, to be provided by York Medical Centre, submitted on April 6, 2015 and denied by the respondent on April 17, 2015.

(iii) The applicant is not entitled to payment for the cost of an examination in the amount of $2,200.00 for an orthopaedic assessment, to be provided by York Medical Centre, submitted on June 15, 2015 and denied by the respondent on June 16, 2015.

(iv) The applicant is entitled to interest on the outstanding amount in accordance with the Schedule.