K. K. v. Aviva Insurance
Tribunal File Number: 16-000863/AABS
Case Name: 16-000863 v Aviva Insurance
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:
K. K.
Applicant
and
Aviva Insurance
Respondent
DECISION
Adjudicator: Catherine Bickley
Written Submissions: Aislynn Brown, Counsel for the Applicant Elka Dadmand, Counsel for the Respondent
Heard in writing: January 6, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on October 20, 2015. She sought benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2This application appeals the respondent’s denial of three treatment plans (for chiropractic and massage therapy, and physiotherapy) and of the cost of an orthopaedic assessment. I find that the applicant is entitled to the balance of a partially paid treatment plan for physiotherapy. I also find that she is not entitled to the other two treatment plans or to the cost of the orthopaedic assessment.
ISSUES IN DISPUTE
3The following are the issues in dispute as listed in the Tribunal’s case conference order of October 19, 2016:
Is the applicant entitled to a medical benefit in the amount of $1,494.50 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre and denied on May 10, 2016?
Is the applicant entitled to a medical benefit in the amount of $3,652.00 for chiropractic treatment and massage therapy recommended by Mackenzie Medical Rehabilitation Centre and denied on January 26, 2016?
Is the applicant entitled to a medical benefit in the amount of $200.00 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre and denied on February 3, 2016?
Is the applicant entitled to the cost of an orthopaedic assessment by Dr. Ogilivie-Harris in the amount of $2,570.00 and denied on July 28, 2016?
RESULT
The applicant is not entitled to a medical benefit in the amount of $1,494.50 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre and denied on May 10, 2016.
The applicant is not entitled to a medical benefit in the amount of $3,652.00 for chiropractic treatment and massage therapy recommended by Mackenzie Medical Rehabilitation Centre and denied on January 26, 2016.
The applicant is entitled to a medical benefit in the amount of $200.00 plus interest for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre and denied on February 3, 2016.
The applicant is not entitled to the cost of an orthopaedic assessment by Dr. Ogilivie-Harris in the amount of $2,570.00 and denied on July 28, 2016.
PROCEDURAL ISSUES
4The issues in dispute listed above were identified by the parties during the case conference that took place on September 12, 2016. The applicant now seeks to add two additional issues to the dispute:
- an award under section 10 of Regulation 664 enacted under the Insurance Act, and
- Interest on any overdue benefits pursuant to the Schedule.
The respondent objects to these issues being added on the basis that they were not included in the application, not raised at the case conference, and not identified as issues in dispute in the case conference order.
An award under section 10 of Regulation 664
5The issue of whether the applicant is entitled to an award under Regulation 664 is not added to the issues in dispute for the following reasons. The case conference is intended to canvass and identify all the issues in dispute between the parties. The applicant did not raise the issue of an award at that time and raised it for the first time in her submissions at this hearing. The applicant has also failed to provide an explanation for raising this issue for the first time at this late stage in the proceeding. Further, she has not made any submissions as to the basis for an award. She has simply made a request for an award without any particulars. To add the issue at this late stage in the proceeding, in the absence of any explanation for the delay and in the absence of particulars would be unfair to the respondent. For these reasons, I have concluded that it is not appropriate to add this issue to the issues in dispute. Further, in the absence of particulars, there is no basis for such an award.
Interest
6The applicant also raised the issue of interest for the first time in her submission. The issue of interest is added to the issues in dispute since s. 51 of the Schedule is clear that interest is payable on overdue benefits. Unlike the issue of potential entitlement to an award, there is no necessity for particulars on this issue. Simply put, if benefits are overdue, interest is payable.
7Interest is payable only on issue 3 (the $200.00 balance of the treatment plan partially approved on February 3, 2016) as it is the only treatment plan for which I have found payment is required.
SUBSTANTIVE ISSUES
The applicant is not entitled to the following benefits:
- $1,494.50 physiotherapy recommended by Mackenzie Medical Rehabilitation Centre
- $3,652.00 chiropractic and massage therapy recommended by Mackenzie Medical Rehabilitation Centre
8The focus of the applicant’s submissions is on establishing that she should not be in the Minor Injury Guideline (“MIG”). The respondent concedes that the applicant has been removed from the MIG but takes the position that all the applicant’s physical injuries are minor in nature, i.e., soft tissue sprains and strains. It submits that there is no objective orthopedic evidence to support ongoing passive therapy such as physiotherapy, chiropractic and massage therapy. I agree, based on the medical imaging evidence submitted by the parties. The only imaging referenced by the applicant is a December 11, 2015 x-ray which revealed only a pre-existing issue with her thoracic spine. The respondent submitted reports of three x-rays of the applicant’s chest, lumbar spine and hips. None show any abnormalities.
9The applicant also relies on the diagnoses of chronic pain syndrome and pain disorder1. The applicant submits that she has pain and discomfort in her right shoulder, right arm and wrist, her neck, her upper and lower back. She also has headaches. The applicant’s family doctor’s clinical notes and records demonstrate continued complaints of pain, variously in the applicant’s right shoulder, back, flank, lumbar region and legs.
10The parties agree that the applicant has psychological issues, although they disagree about the severity of those issues. In any event, the treatment plans in dispute in this application are for the treatment and assessment of her physical issues. I find that the applicant has not established a connection between her possible chronic pain and the treatment plans in dispute in this application. Her focus on chronic pain have been, as noted above, directed at arguing that she should be removed from the MIG.
11The key question is whether the treatment plans are reasonable and necessary. I find that they are not because the applicant provided very little evidence to establish her entitlement to the treatment. Significantly, the applicant did not provide a copy of the treatment plans in issue. As noted, her submissions focus on why she should be removed from the MIG. As a result, the applicant has not explained why these treatment plans are reasonable and necessary. Lacking that evidence, I find that she has not met her onus of establishing entitlement to these treatment plans.
The applicant is entitled to $200.00 for physiotherapy, the balance of a treatment plan
12This treatment plan differs from the two dealt with above. The respondent approved funding for $1,100.00 of the $1,300.00 sought for physiotherapy treatment. The disputed balance of $200.00 was denied because the funds available under the MIG had been exhausted. The respondent’s Explanation of Benefits states:
We are partially approving the above treatment and assessment plan in the amount of $1,100.00 as that is what remains under the Minor Injury Guideline (MIG)2 …
13It appears that the respondent determined that the treatment plan was reasonable and necessary at the time it approved partial payment and if the MIG funds had not been exhausted, the full treatment plan would have been approved in its entirety. The respondent cannot now argue that the treatment plan is not reasonable and necessary. Therefore, as the respondent concedes that the MIG limit no longer applies, and has not provided a rationale for why the balance was not paid, I find that the applicant is entitled to the balance of $200.00.
The applicant is not entitled to $2,570.00 for an orthopaedic assessment
14On July 22, 2016, the applicant underwent an orthopaedic assessment by Dr. Ogilvie-Harris. Dr. Ogilvie-Harris concluded that the applicant had sustained soft tissue injuries to her neck and back. He diagnosed her with chronic pain syndrome and recommended a comprehensive pain management program. This proposed pain management program is not in issue in this hearing.
15The respondent submits that an orthopaedic assessment was not warranted as there was no objective evidence of an orthopaedic injury. It relies on the section 44 report of orthopaedic surgeon Dr. Rabinovich, who concluded that there was no objective evidence of significant ongoing musculoskeletal accident-related impairments. As noted above, in paragraph 8, no imaging has been submitted supporting accident-related injuries that would result in significant ongoing impairments. The applicant’s submissions with respect to the orthopaedic assessment simply refer back to her submissions regarding the three treatment plans considered above. She provides no specific reasons why this orthopaedic assessment was reasonable and necessary.
16For all of these reasons, I conclude that an orthopaedic assessment was neither reasonable nor necessary.
COSTS
17The respondent requests costs on the basis that attempting to add issues not identified in the case conference order is frivolous and vexatious. I am not persuaded that costs are appropriate as I have partially granted the applicant’s request to add issues.
ORDER
18The issue of an award under Section 10 of Regulation 664 is not added to the issues in dispute in this application. The issue of interest is added.
19The respondent shall pay the applicant $200.00 plus interest with respect to the treatment plan partially approved on February 3, 2016.
20The applicant is not entitled to payment for the treatment plans denied on January 26, 2016 and May 10, 2016 and the orthopaedic assessment denied July 28, 2016.
21No costs are payable.
Released: June 28, 2017
___________________________
Catherine Bickley, Adjudicator