Tribunal File Number: 16-001780/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:
C. A.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for or the Applicant: Thomas McKinlay
Counsel for the Respondent: Leanne W. Zabudsky
HEARD: Written Hearing: January 12, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
The applicant, C.A. was involved in a motor vehicle accident on August 9, 2006. She applied for accident benefits to the respondent. The respondent refused to pay several benefits. The applicant has applied to this Tribunal for a determination that the respondent is required to pay the benefits it refused to pay.
By an order dated November 2, 2016, the Tribunal ordered a written hearing be scheduled for January 12, 2017. The issues to be decided at the hearing were identified and agreed as follows:
- Is the Applicant entitled to receive a medical benefit in the amount of $444.00 as stated in a Treatment and Assessment Plan (OCF-18) dated March 6, 2015 for chiropractic services as recommended by Dr. Ford?
- Is the Applicant entitled to receive a medical benefit in the amount of $1,346.49, as stated in a Treatment and Assessment Plan (OCF-18) dated March 26, 2015 for psychological services as recommended by Dr. Schnurr?
- Is the Applicant entitled to receive a medical benefit in the amount of $1,696.10, as stated in a Treatment and Assessment Plan (OCF18) dated January 26, 2016 for psychological services as recommended by Dr. Schnurr?
- Is the Applicant entitled to receive a medical benefit in the amount of $3,632.72, as stated in a Treatment and Assessment Plan (OCF18) dated March 20, 2015 for occupational therapy services as recommended by Kristen Wood?
- Is the Applicant entitled to interest for the overdue payment of benefits?
The respondent has also raised a preliminary issue in that the Treatment Plans which the applicant submitted to the insurer when they first applied for the benefit were not properly signed. The respondent took issue with the applicant submitting the signed Treatment Plans to the Tribunal after the written hearing has been ordered, and after the applicant has already made their submissions to the Tribunal.
The preliminary issue in this application is as follows:
- Is the respondent not liable to pay the medical benefits because three of the initial treatment plans submitted by the applicant were unsigned when they were initially submitted to the insurer?
- Can the Tribunal consider the signed treatment plans submitted by the applicant in January, 2017?
For reasons set out below, the Tribunal finds that the respondent cannot rely on a technical error in the initially submitted plans to refuse the benefits claimed by the applicant. I also find that the signed treatment plans submitted by the applicant in January 2017 can be considered by the Tribunal.
In addition, the Tribunal finds that the Applicant is entitled to receive:
- a medical benefit in the amount of $444.00 as stated in a Treatment and Assessment Plan (OCF-18) dated March 6, 2015 for chiropractic services as recommended by Dr. Ford.
- a medical benefit in the amount of $3092.72, ($3,632.72 minus the mileage expenses of $540.00) as stated in a Treatment and Assessment Plan (OCF18) dated March 20, 2015 for occupational therapy services as recommended by Kristen Wood.
- interest for the overdue payment of benefits in accordance with the Schedule,
The Applicant is not entitled to receive:
- a medical benefit in the amount of $1,346.49, as stated in a Treatment and Assessment Plan (OCF-18) dated March 26, 2015 for psychological services as recommended by Dr. Schnurr.
- a medical benefit in the amount of $1,696.10, as stated in a Treatment recommended by Dr. Schnurr.
FACTS
The applicant, C.A. was injured in a motor vehicle accident (MVA) on August 9, 2006. The applicant sustained soft tissue injuries to her neck, shoulders, mid and low back as a result of the MVA.
The applicant has received a variety of different medical treatments including massage therapy and physiotherapy treatments. The applicant also received treatments related to the management of her pain.
THE LAW
The accident took place in August, 2006. However, all the treatment plans submitted by the applicant are dated after 2010, when amendments to the Statutory Accident Benefits Schedule, Effective September 1, 2010 took effect.
In Gimondo v. Royal & SunAlliance Insurance Co. of Canada, [2004] O.F.S.C.D. No. 52, it was held that legislation is meant to apply immediately and generally to continuing facts or events, unless its application would interfere with vested rights; and that an amendment to the Schedule which revoked one provision and replaced it with a new version, applied to the insured person's ongoing benefit claims.
Applying that rationale to the case before me, the applicable Statutory Accident Benefits Schedule, is the one Effective September 1, 2010 (the “Schedule”).1
Section 15(1) of the Schedule provides in part that the insurer shall pay for all “reasonable and necessary expenses” incurred by an insured person as a result of the accident for such services as medical, chiropractic, psychological, occupational therapy and physiotherapy services.
Section 38(2) of the Schedule states, in part, that the insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless, among certain criteria are met.
Finally, section 38(3) of the Schedule stipulates, among other things that a treatment and assessment plan must:
(a) Be signed by the insured person unless the insurer waives the requirement; and
(b) Be completed and signed by a regulated health professional.
APPLICATION OF LAW TO FACTS
Preliminary Issues:
Are the benefits not payable because the treatment plans were not signed? Should the Tribunal consider the recently submitted signed treatment plans?
This case involves a dispute with respect to four treatment plans, three of which the applicant initially submitted to the insurer were unsigned. These included the following: Treatment Plan of the Occupational Therapist (OT) Kirsten Wood dated March 20, 2015; Treatment Plan of Dr. Leanee Ford dated March 6, 2015; and, Treatment Plan of Dr. Robert Schnurr dated January 26, 2016, which were not signed by the applicant or a regulated health professional.
These three unsigned Treatment Plans were submitted electronically through HCAI. The Treatment Plan contains a box which would allow the insurer to waive the requirement for the insured’s signature. The box is not checked on any of the subject Plans. At the time, these treatment plans were denied as the respondent determined them to be not reasonable and necessary.
In response to the applicant’s application before this Tribunal, however, the respondent relied on section 38(3) of the Schedule to support their position that a Treatment Plan must be signed by the insured person unless that requirement is waived by the insurer, and it must also be signed by a regulated health professional.
In response, the applicant submitted the Treatment Plans in question with signatures from the applicant and a regulated professional to the Tribunal in early January, 2017, after the Tribunal ordered the written hearing. The applicant did not provide any reason why the initial plans were not signed.
After receiving the signed treatment plans, the respondent made further submissions to the Tribunal arguing that these new copies of the treatment plans are not admissible as evidence in this hearing because they were not filed with the applicant’s initial submissions. The respondent relied on Alcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd. 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18 (Ont.C.A.) in which Justice Schroeder states in part:
A defendant is entitled to know the case which he has to meet when he presents his defence and it is not open to the plaintiff under the guise of replying to reconfirm the case which he was required to make out in the first instance or take the risk of non-persuasion.
- The respondent also quoted from the Law of Evidence in Canada Second Edition (Butterworths 1999) which states:
At the close of the Defendant’s case, the Plaintiff or Crown has the right to adduce rebuttal evidence to contradict or qualify new fact issues raised in the defence. The general rule in civil cases is that matters which might properly be considered to form part of the Plaintiff’s case in chief are to be excluded.
In my view, whether I should consider the signed treatment plans is tied to whether or not these plans were submitted as “rebuttal evidence” as the respondent has suggested, or they formed part of the applicant’s case in chief. It also requires me to examine whether or not the respondent has in fact notified the applicant that the benefits were denied because of the unsigned treatment plans.
With respect to the treatment plan submitted by Dr. Leanna Ford, a letter dated May 28, 2015 was sent by the respondent to the applicant which stated, in part:
The assessors received the Treatment Plan (OCF-18) submitted by Dr. Ford, chiropractor dated March 6, 2015 for chiropractic treatment. They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.
There was no reference in the refusal letter about the treatment plan being unsigned as the ground for refusal.
Similarly, in refusing the treatment plan of Kristen Wood, the respondent’s letter dated May 14, 2015 explained: “[The assessors] determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident as the previously approved kinesiology sessions will be able to address the same goals in that treatment.” Again, no reference was made about the treatment plan being unsigned as the ground for refusal.
Finally, the respondent denied the January 26, 2016 treatment plan submitted by Dr. Robert Schnurr in a letter dated April 6, 2016, because “the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident as [sic] do not currently have a psychological impairment; psychological symptoms are mild, at worst and additional treatment will not have any significant effect on your psychological condition.” Just like the other refusal letters, it made no mention of the treatment plan being unsigned.
The refusal letter with respect to the three treatment plans did not inform the applicant of the respondent’s concerns about the plans being unsigned. Instead, it focused solely on whether the treatment was reasonable and necessary.
Since the applicant was never properly notified of the respondent’s concerns, the respondent cannot now rely on a technical error in the initially submitted plans to buttress its refusal of the benefits. The respondent’s silence in its initial refusal letters constitutes its implicit acceptance of the unsigned plans and its waiver of the signature requirements. I further note that the HCAI system does not have a signature point for the applicant.
Further, given that the respondent raised the issue for the first time in its responding submissions, I find that the inclusion of the signed treatment plans in the Reply is proper and I will allow the applicant to rely on the signed treatment plans.
Main Issues
With that finding, I will now address each of the main issues raised in this matter, which centres on the question of whether the proposed treatment plans are “reasonable and necessary” as the term is defined under the law.
In this regard, I took guidance from the following test for establishing whether or not a medical benefits is reasonable and necessary, as articulated in General Accident Insurance Co. of Canada v. Violi2:
(a) The identified treatment goals are reasonable;
(b) The proposed treatment advance those goals to a reasonable degree;
(c) The overall costs of the treatment plans are reasonable, taking into consideration the degree of success and the availability of other treatment alternatives.
Issue 1: Treatment Plan – Chiropractic - Is the Applicant entitled to receive a medical benefit in the amount of $444.00 for chiropractic services as recommended by Dr. Ford?
Relying on Dr. Ford’s opinion, the applicant submitted that she is entitled to this benefit because she suffers from myalgia in multiple sites, pain in joint and tension-type headache. The applicant’s condition, Dr. Ford opined, has become chronic. As such, Dr. Ford designed a treatment plan for pain reduction and visits every 4-6 weeks for supportive care, and identified the following functional goals: return to activities of normal living, return to pre-accident work activities and to continue with activities of daily living. Dr. Ford determined that 12 therapy sessions over the course of 52 weeks were reasonable and necessary.
The respondent relied on the opinion of its assessor, Dr. Seksek, who opined the treatment was not reasonable or necessary. Dr. Seksek noted that the applicant’s treating pain specialist, Dr. Peterson did not recommend any passive therapies.
In reply, the applicant submitted that Dr. Peterson did recommend active rehabilitation programs and did not in any way suggest that his recommendation was to be to the exclusion of any other treatment. Further, Dr. Peterson noted that massage therapy and acupuncture “may help through multiple mechanisms including improving muscle and psychologic [sic] stress/tension”.
Having reviewed the various reports, I find that the treatment plan submitted by Dr. Ford for chiropractic treatment was reasonable and necessary. The goals as identified to help the applicant to return to activities of normal living, return to pre-accident work activities and to continue with activities of daily living are reasonable, and the proposed treatments do advance these goals to a reasonable degree. Finally, the cost of the treatment plan is reasonable.
I am not persuaded by the respondent’s argument based on my reading of the report by the pain specialist, Dr. Peterson, who did opine that the applicant could benefit from therapies due to her fibromyalgia. I also note that in her affidavit dated November 28, 2016, the applicant stated that she had benefitted from these types of therapies which helped reduce her pain level and headaches, among other temporary reliefs.
I also accept the applicant’s submission that in preparing this treatment plan, Dr. Ford was aware that the applicant was taken off work by her family physician until July 2015, and that she was only able to work part-time upon return to work. As such, a return to pre-accident work activities was a valid treatment goal for the applicant. I also accept the applicant’s argument that the goal of pain reduction and permitting the applicant to continue with her activities of normal living are reasonable goals given the finding of various physicians that the applicant suffers from chronic pain and fibromyalgia.
Issue 2: Treatment Plan– Psychological Treatment - Is the Applicant entitled to receive a medical benefit in the amount of $1,346.49, as stated in a Treatment and Assessment Plan (OCF-18) dated March 26, 2015 for psychological services as recommended by Dr. Schnurr?
Issue 3: Treatment Plan – Psychological Treatment - Is the Applicant entitled to receive a medical benefit in the amount of $1,696.10, as stated in a Treatment and Assessment Plan (OCF18) dated January 26, 2016 for psychological services as recommended by Dr. Schnurr?
There are two treatment plans with respect to psychological services. The first deals with Dr. Schnurr’s treatment plan dated February 26, 2015, in the amount of $2,444.15 of which six sessions were approved, leaving the amount in dispute at $1,346.49. The second denial is with respect to Dr. Schnurr’s treatment plan dated January 26, 2016, almost a year later, in the amount of $1,695.10.
Regarding the treatment plan dated March 26, 2015, Dr. Schnurr opined that the applicant was suffering from chronic intractable pain and mild depressive episode. The goals of the treatment plan were to improve pain coping skills and decrease depression, as well as to return the applicant to as near pre-MVA psychological functioning as possible. Of the 12 sessions recommended, the respondent approved only 6.
Regarding the treatment plan dated January 26, 2016, Dr. Schnurr recommended psychological therapy to help decrease emotional distress and improve overall coping, in addition to returning the applicant to as near pre-MVA psychological functioning as possible.
The respondent arranged for an Insurer Examination (IE) with Dr. Cook, a psychologist, to review Dr. Schnurr’s 2015 plan. Dr. Cook found the applicant did not meet the criteria for any psychological diagnosis, but was demonstrating some psychological symptoms. The respondent noted that the applicant did not attend for the psychological treatment that was approved in 2009 or 2010. Treatment was again approved on June 24, 2015; the applicant did not commence treatment until October 1, 2015. As such, the respondent argued that the applicant was not in significant need of the treatment.
The 2016 treatment plan of Dr. Schnurr was assessed by Dr. Weisz, who also opined that the applicant did not meet the criteria for any psychological diagnosis.
In response, the applicant argued that there was much support from the applicant’s treatment providers for psychological counselling as part of a multidisciplinary approach to reducing pain and increasing function. Citing as support, the applicant referred to a report by Dr. Ogilvie-Harris, an orthopedic surgeon, who noted that Dr. Cook’s and Dr. Weisz’ reports did not deal with ongoing musculoskeletal component of the pain or limitations that the applicant might have been suffering.
Included in the respondent’s submissions, was a letter from Dr. Schnurr who confirmed that the applicant did not attend any of the six sessions approved by the insurer back in 2010. Dr. Schnurr also agreed that it would only make sense to approve and pay for further treatment if the applicant was willing to attend.
I note that, in her written submissions to the Tribunal, the applicant did not provide any explanation as to why she did not attend the approved sessions for psychological treatment by Dr. Schnurr. However, during the examination by Dr. Weisz, the applicant did report that the sessions on a previous treatment plan were “of no benefit with respect to her pain.” She did find that the sessions “were beneficial with respect to assisting her in keeping a positive attitude”. Dr. Weisz concluded that there was no evidence of substantial psychological distress and that the applicant has recovered from any psychological sequelae from the subject accident.
I find that there is insufficient evidence to support the applicant’s request for the two treatment plans by Dr. Schnurr on the basis that these services are “reasonable and necessary”. My finding is based in part on the two IE reports provided by the respondent, and the lack of evidence submitted by the applicant on the other, to support that she continues to suffer from psychological distress as a result of the MVA. I also note Dr. Schnurr’s somewhat qualified support for the treatment plan only if the applicant is willing to attend. The applicant’s failure to attend the previously approved sessions would appear to suggest that she did not regard these sessions as either useful or necessary.
Issue 4: Treatment Plan – Therapeutic Treatment - Is the Applicant entitled to receive a medical benefit in the amount of $3,632.72, for occupational therapy services as recommended by Kristen Wood?
The treatment plan submitted by Kristen Wood, an OT, includes training, planning, travelling, and documentation. The goals for the treatment included, among others: pain reduction, increase in strength, increased range of motion, return to activities of normal living and other (promote re-conditioning, educate regarding body mechanics and postural modifications and assist with pain management while engaging in daily tasks).
The respondent rejected the plan in part because the treatment plan in question was similar to the previously approved kinesiology treatment plan recommended by the same OT. The respondent has also approved a multidisciplinary pain treatment program with goals of pain management and return to activities of daily living, which was consumed by the applicant.
The respondent also questioned Ms. Wood’s qualification to deal with any psychological issues that the applicant may have
Finally the respondent submitted that the OT cannot claim mileage expenses to cover her travel to and from the applicant’s home.
The applicant submitted a report by Ms. Wood to the Tribunal dated November 25, 2016, in which the OT explained why the previous kinesiology plan was not sufficient. Ms. Wood noted that the purpose of the proposed occupational therapy plan was to work side-by-side with the applicant at managing her pain while participating in household tasks. Ms. Wood opined that OTs are trained to give specific and targeted intervention to improve occupational outcomes, and that the applicant has both physical and psychological factors that influence her participation in daily activities and she requires a trained professional who can meet her multi-dimensional needs and foster motivation.
The applicant submitted a report by Dr. Ogilvie-Harris, an orthopedic surgeon, who assessed the applicant on October 18, 2016, and found that the applicant suffers from chronic pain syndrome. As result, Dr. Ogilvie-Harris opined that the applicant has ongoing limitations as a result of her chronic pain and that she has difficulty with sitting, standing, bending, lifting, twisting and turning.
In addition, while the two psychiatrists who examined the applicant on behalf of the respondent opined that she did not have any substantial psychological issues, they did note the applicant’s self-reported depression and her ongoing concern about her pain. Another IE by Dr. Bhardwaj on behalf of the respondent also noted that the applicant reported certain daily activities that made her pain worse, including use of arms at the shoulder and above the shoulder level with heavy lifting and repetitive use.
I also note that both Dr. Peterson and Dr. Kirk, the applicant’s family physician, had recommended a supervised active exercise program and occupational therapy. Dr. Kirk also specifically supported providing education to the applicant on proper body mechanics within household tasks, and alternative ways of performing household and childcare activities, among other things.
I further note that since her MVA, the applicant has never had the benefit of any OT treatment. Based on all of the above, I find the treatment plan of Ms. Wood, with respect to the training and education, reasonable and necessary with respect to its stated goals and benefits. The applicant continues to suffer from limitations in her daily living activities as a result of her chronic pain. It is reasonable and necessary for the applicant to receive support and education on how to improve on her functionality with respect to these daily activities from a trained professional.
However, I agree with the respondent that the claim for mileage expenses by the OT to and from the applicant’s home should be denied. I find support for this position in the Tribunal’s decision, J.H. v. Intact Insurance Company, 16-000009 v Intact Insurance Company, 2016 CanLII 60731 (ON LAT) which confirmed that an insurer is not required to pay for transportation expenses of the treatment provider.
Issue 5: Is the Applicant entitled to interest for the overdue payment of benefits?
- Based on the above findings, I find interest is payable with respect to the $444.00 for chiropractic services, and for the occupational therapy services that the Applicant is entitled to receive.
ORDER
- Pursuant to the authority vested in it under the provisions of the Act, the Tribunal makes the following orders.
The Applicant is entitled to receive:
- A medical benefit in the amount of $444.00 as stated in a Treatment and Assessment Plan (OCF-18) dated March 6, 2015 for chiropractic services as recommended by Dr. Ford.
- A medical benefit in the amount of $3092.72, ($3,632.72 minus the mileage expenses of $540.00) as stated in a Treatment and Assessment Plan (OCF18) dated March 20, 2015 for occupational therapy services as recommended by Kristen Wood.
- Interest for the overdue payment of benefits in accordance with the Schedule,
The Applicant is not entitled to receive:
- A medical benefit in the amount of $1,346.49, as stated in a Treatment and Assessment Plan (OCF-18) dated March 26, 2015 for psychological services as recommended by Dr. Schnurr.
- A medical benefit in the amount of $1,696.10, as stated in a Treatment and Assessment Plan (OCF-18) recommended by Dr. Schnurr.
Released: May 16, 2017
___________________
Avvy Go
Adjudicator