Tribunal File Number: 17-002313/AABS
Case Name: 17-002313 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
F.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the applicant: Jwan Desai
Counsel for the respondent: David Koots
HEARD: Written Hearing: September 27, 2017
Overview
1The applicant was involved in a motor vehicle accident on May 30, 2014. She sought a number of benefits from Aviva Insurance Company. Aviva denied some of the applicant’s benefit claims. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service for payment of the benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
Issues in Dispute:
2The following issues are in dispute:1
Is the applicant entitled to a $3,500.00 medical benefit for pharmacotherapy services, recommended by Dr. Samuel Wong in a Treatment Plan dated April 9, 2015?
Is the applicant entitled to a $2,269.00 medical benefit for physiotherapy services, recommended by Keswick Active Physiotherapy in a Treatment Plan dated April 7, 2015?
Is the applicant entitled to a $1,755.43 in-home assessment, recommended by ARCG in a Treatment Plan dated August 28, 2014?
Is the applicant entitled to a $2,663.40 chronic pain assessment, recommended by Recovery Rehabilitation and Health Group Corporation in a Treatment Plan dated October 27, 2015?
Is the applicant entitled to interest on any overdue payment of benefits?
Result:
3The applicant’s claims are dismissed. The applicant is not entitled to payment for the pharmacology or physiotherapy expenses for three reasons. First, the expenses were not incurred. Second, the potential existence of collateral benefits prevents me from concluding that the expenses are necessary. Third, the applicant has generally failed to prove that the expenses are reasonable and necessary.
4The applicant is barred from bringing her claim for the cost of the in-home assessment. The claim is outside of the two-year limitation period.
5The applicant is not entitled to the remaining amount of money in dispute for the chronic pain assessment because she did not prove that this portion of money was put toward an authorized transportation expense.
Discussion
Issues 1 and 2: Is the applicant entitled to a $3,500.00 medical benefit for pharmacotherapy services and a $2,269.00 medical benefit for physiotherapy services?
6The applicant is not entitled to a $3,500.00 medical benefit for pharmacotherapy services or a $2,269.00 medical benefit for physiotherapy services. The pharmacotherapy services consist of Botox and other injections to treat migraines. The physiotherapy services consist of acupuncture, exercise, and a number of simulation and mobilization exercises. There are three reasons that the applicant is not entitled to these benefits, each of which independently disentitles the applicant:
The applicant did not incur the expenses
The applicant may have collateral benefits to pay for the expenses
The applicant has not proven that the expenses are reasonable and necessary
7First, the applicant did not incur the expenses. She is required to do so under s. 15(1) of the Schedule:
- (1)… medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident
[Emphasis added].
An expense is incurred in the circumstances of this case only if, among other things, the applicant has already paid for the expense, promised to pay for the expense, or is otherwise legally obligated to pay the expense: see. s. 3(7)(e) of the Schedule.
8Aviva points out that there is no evidence that the applicant paid for the pharmacotherapy or physiotherapy, promised to pay for it, or is otherwise legally obligated to pay for it. The applicant points to s. 3(8) of the Schedule in reply. Section 3(8) allows me to deem the pharmacology and physiotherapy expenses to have been incurred if I find that Aviva unreasonably withheld payment. To be clear, this is the applicant’s only position in reply to Aviva’s submission. The applicant did not submit that she incurred the expense.
9Section 3(8) does not apply in this case because Aviva did not unreasonably withhold payment. Aviva denied the applicant’s respective claims for pharmacology and physiotherapy services on the basis of an insurer’s examination in relation to each expense. Aviva reviewed the reports from the examinations and, based on the reports, determined each expense to not be reasonable and necessary. With regard to the physiotherapy service, Aviva had already paid $7,593.48 for this type of service in the past. It denied the latest claim because of a concern about diminishing effectiveness. This is not the type of unreasonable conduct envisioned by s. 3(8).
10To summarize this first reason for denying the applicant’s claims, the applicant is not entitled to the pharmacology and physiotherapy services because she has not incurred the expenses for which she seeks payment, and I decline to deem the expenses incurred as permitted by s. 3(8).
11Second, the applicant may have access to collateral benefits. The following analysis dovetails with the issue of whether the expenses are necessary. Aviva is not required to pay for any portion of the pharmacology and physiotherapy services for which payment by a collateral benefit is reasonably available: see s. 47(2). The applicant indicated that she has access to collateral benefits in her Application for Accident Benefits. Aviva asked the applicant to disclose a copy of her collateral benefits file. The applicant has not complied with the request. Indeed, the applicant has not even advised of the coverage limits for her collateral benefits.
12The applicant is only entitled to payment of the pharmacology and physiotherapy expenses if their payment is necessary. I cannot conclude that payment is necessary on a balance of probabilities if I do not know whether some or all of the expenses are payable through a collateral benefit. The applicant needs to prove that the benefits are not reasonably available from her collateral benefits coverage, and she has failed to do so. As a result, I cannot conclude that any portion of each expense is necessary.
13Third, the applicant has failed to prove that each expense is reasonable and necessary generally. I will discuss each expense in turn.
14Consider first the expense for pharmacology services. The applicant seeks $3,500.00 for Botox and other injections to treat migraines. The applicant has failed to prove on a balance of probabilities that she suffers from migraines, or that, if she does suffer from migraines, Botox and other injections are a reasonable means of treating migraines.
15I am not satisfied that the applicant suffers from migraines. She was diagnosed with migraines by her physician, Dr. Wong. Aviva commissioned an examination by Dr. Somerville, a physiatrist, who found that the applicant’s headaches do not have any migraine features. In addition, Dr. Jugundan, a general practitioner, examined the applicant and reported that the headaches are not accompanied by aura or visual symptoms, and there is no nausea, vomiting, or dizziness. While Dr. Wong’s diagnosis on its own may be sufficient to prove that the applicant suffers from migraines, Doctors Somerville and Jugundan’s observations cast so much doubt on Dr. Wong’s diagnosis that I am unable to conclude that it is probable that the applicant suffers from migraines.2
16Even if the applicant does suffer from migraines, I am not satisfied on a balance of probabilities that Botox and other injections are a reasonable means of treating migraines. The applicant has provided no evidence linking the effectiveness of this treatment to migraines. I cannot speculate on the link between the two.
17Consider second the physiotherapy services expense. The applicant claims that this expense is reasonable and necessary because it will reduce her pain. The evidence used to support this claim is a brief notation on the Treatment Plan indicating that the physiotherapy services will assist in pain reduction, increase in strength, and increased range in motion. The applicant has already received three courses of physical therapy, which Aviva has paid for, totalling $7,593.48. Aviva arranged for the applicant to be seen by Dr. Yip, a physiotherapist, for an insurer’s examination in relation to the disputed Treatment Plan. Dr. Yip found that the applicant’s pain had not improved despite three courses of physiotherapy. Dr. Yip concluded that there were no objective findings of ongoing impairment. The applicant’s injuries (as distinct from impairment) were found to be decreased mobility in her neck, lower back, left knee and left ankle. Dr. Yip recommended passive modalities of treatment, massage, and active non-facility based therapy.
18I agree with the applicant that pain reduction can be a reasonable treatment goal. I am not convinced, however, that further physiotherapy services will reduce the applicant’s pain. Dr. Yip’s examination suggests the opposite – her pain management has not improved. The applicant has not provided any evidence by way of an affidavit or a medical opinion to show that further physiotherapy services will reduce her pain. This is not required in every case, but in this instance, with Dr. Yip’s report before me, I do not have enough information to conclude on a balance of probabilities that the physiotherapy services will reduce applicant’s pain. All I am left with is a brief notation on the Treatment Plan that speculates this conclusion. As a result, I am unable to conclude that the physiotherapy services are a reasonable and necessary expense.
Issue 3: Is the applicant entitled to a $1,755.43 in-home assessment?
19The applicant is not entitled to the in-home assessment because her claim is outside of the limitation period. Under section 56 of the Schedule, an insured person has two years after an insurer’s refusal to pay an amount claimed for a benefit in which to apply to the Tribunal. Aviva denied the applicant’s claim for an in-home assessment on October 28, 2014, making the last date on which to apply to the Tribunal October 28, 2016. The applicant applied to the Tribunal after this date, on April 11, 2017.
20Section 56 of the Schedule applies only if Aviva fully provided notice of the two year limitation period when it denied the applicant payment for an incurred expense (see especially Smith v. Co-Operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30). The two year limitation period begins when sufficient notice is provided. I am satisfied that sufficient notice was provided. Aviva’s October 28, 2014 denial letter is clear and unequivocal, and it sets out the procedure for disputing Aviva’s denial. The letter even cautions the following before it sets out the method by which to dispute the denial: “Please ensure you initiate your dispute within TWO YEARS [Emphasis not added].”
21The applicant is barred by the limitation period from bringing her claim for an in-home assessment.
Issue 4: Is the applicant entitled to a $2,663.40 chronic pain assessment?
22Aviva partially approved payment for the chronic pain assessment, paying $2,460.00, and leaving $203.40 as the amount in dispute. The remaining $203.40 relates to the applicant’s transportation costs to and from the chronic pain assessment.
23The applicant is not entitled $203.40 in travel expenses because there is no evidence that she travelled more than 50 kilometres to her chronic pain assessment. Section 3(1) of the Schedule limits the amount that she can claim for transportation to and from treatment sessions to “authorized transportation expenses”. Except in cases of catastrophic impairment an insurer person may only claim expenses incurred after the first 50 kilometres.
24In addition, there are different rates of payment depending on whether the applicant travelled with her personal vehicle or by another means. I do not know what means the applicant used to travel to and from the chronic pain assessment. Again, the applicant has not provided any evidence on this issue.
25I cannot determine whether the applicant is entitled to payment without knowing if she travelled more than 50 kilometers. I cannot determine how much payment the applicant is entitled to without knowing the means by which she travelled. Since the applicant has to prove these things, I cannot conclude that she is entitled to $203.40 for travel to and from the chronic pain assessment.
Issue 5: Interest
26The applicant is not entitled to interest because there are no overdue payments.
Conclusion:
27The applicant is not entitled to any of the benefits sought. All of her claims are dismissed.
Released: December 1, 2017
_____________________________
Chris Sewrattan, Adjudicator
Footnotes
- The Tribunal’s Order for this written hearing listed an issue that is unaddressed by the parties: is the applicant entitled to $200 for the cost of a disability certificated, prepared by ARCG on an unspecified date? Since the parties did not address this issue, I will not decide it.
- The applicant indicated to Dr. Somerville that she does not suffer from migraines. I have not relied on this self-report in making my decision. I am cautious on relying on an applicant that is not a medical professional to self-diagnose a medical condition.