Y.B. v. Aviva Insurance Canada, 2017 CanLII 99138

Licence Appeal Tribunal

Date: 2017-12-29

Tribunal File Number: 17-003257/AABS

Case Name: Y.B. v Aviva Insurance Canada

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:

Y.B.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Elvis Viskovic, Counsel

For the Respondent: Rina Mikhail, Counsel

HEARD in Writing on: October 25, 2017

OVERVIEW

1Y.B. (“the applicant”) was involved in an automobile accident on July 28, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is the applicant entitled to the cost of an orthopedic assessment in the amount of $2,486.00 recommended by Advanced Healthcare Management in an assessment plan submitted November 20, 2015 and denied by the respondent on December 3, 2015?

2. Is the applicant entitled to the cost of a chiropractic examination in the amount of $2,344.67 recommended by Skymark Health & Fitness Inc. in a treatment plan dated November 16, 2015 and denied by the respondent on December 8, 2015?

3. Is the applicant entitled to interest on any overdue payments from the respondent?

FINDINGS

4I find that the applicant has not proven her entitlement to the benefits she seeks: her appeal is denied.

5The respondent is not liable to pay interest on any overdue payments.

REASONS

6Section 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.²

Cost of Examination: Orthopedic Assessment

7In this case, the respondent denied the applicant’s claim for an orthopedic assessment and in the same letter requested that she attend an in-person insurer orthopedic examination to determine if her request for an orthopedic assessment was reasonable and necessary.

8The reason provided for the request was that “the type(s) of treatment does not appear consistent with the patient’s diagnosis”. The applicant takes issue that no explanation or file reference to the “diagnosis” or the alleged inconsistency was provided.

9The applicant argues that it is unfair for the respondent to deny a request for orthopedic assessment funding on the basis that is not reasonable and necessary and then proceed to require the applicant to attend an orthopedic assessment. She contends that the reasonableness of her request is substantiated by the insurer’s own request.

10The applicant submits that the insurer has created a “paradox” by asking its assessor to determine the reasonableness of a request for an assessment similar to the one that they themselves have just asked him to perform.

11The applicant submits that in-person examinations in response to assessment requests are not reasonable as they “lead to an absurd outcome.” She then states that s.44 of the Schedule allows for “paper file reviews”, which she states “do not lead to such an outcome”.

12The applicant submits that the insurer’s request for an examination failed to comply with s.44(5)(a) of the Schedule because it failed to provide a “clear and substantiated” reason for the request. She does not say what the remedy for this should be, but the implication is that it supports a case that the respondent caused an unreasonable delay in adjusting her claims.

13Finally, the applicant takes issue with these alleged flaws in the respondent’s IE process and asserts that they contravene s.1(9) of Regulation 7/00³, which prohibits “any conduct resulting in unreasonable delay in, or resistance to, the fair adjustment and settlement of claims.”

14The applicant does not offer any case law or other legal argument in support of its contention: she lays out her argument as an exercise in reasoned logic and fairness.

15I find nothing in the Schedule, in particular in s.44 – which governs insurer examinations (IE) – to support any of the applicant’s arguments. Nothing to suggest that an insurer cannot set up an IE to assess the merits of any request for medical benefits. Nothing to suggest that the respondent can or should be limited to a “paper file review” under any circumstances.⁴

16I disagree with the applicant that the respondent’s IE requests were non-compliant with s.44(5)(a) and with s.38 of the Schedule because:

i. s.44(5)(a) does not require medical reasons to be “substantiated” as implied by the applicant: its exact wording is “the medical and any other reasons for the examination”;

ii. the documents submitted in evidence stated plainly that the insurer had insufficient information with which to determine the claims, and that the information that it did have was not consistent with the treatment and assessment plans sought, which I consider a sufficient statement of medical reasons under the circumstances of this case.

17Altogether, I find no regulatory or legal basis on which I can invalidate the IE conducted by the respondent, or the denial notices issued by it.

18For the exact same reasons, I reject the submission of the applicant that the insurer’s IE requests and process represent a violation of s.1(9) of the Unfair and Deceptive Practices section of Regulation 7/00.

Is the proposed orthopedic assessment reasonable and necessary?

19The applicant does not argue the substantive merits of the proposed treatment plan, which appears from my reading of it to be based solely on the self-reporting of the applicant without any reference to medical records or documentation, preliminary observations of the applicant by the practitioner of any explanation of the barriers to recovery cited in the document.

20In addressing the disputed assessment plan, the respondent makes its case, which is uncontroverted, that the applicant does not furnish persuasive medical evidence to establish that the requested orthopedic examination is reasonable and necessary. In addition, the respondent notes that the applicant:

i. missed two treatment sessions on a previously approved plan in January 2014, without explanation and without rescheduling;

ii. has not attended or sought funding for any treatment since October 17, 2013 – two years before the disputed treatment plans were submitted;

iii. has not provided any clinical notes or records for any examination or treatment for accident-related complaints since the accident;

iv. has failed, despite requests, to produce clinical notes and records (“CNRs”) from her service provider Advanced Healthcare Management or any other medical practitioner to demonstrate accident-related injuries that would warrant an orthopedic assessment.

21The respondent’s denial of the claimed benefit relies on an insurer’s examination (IE) report, dated February 18, 2016, by Dr. Ato Sekyi-Otu, orthopedic surgeon, who concluded that:

1. The request for an orthopedic evaluation is “neither reasonable nor necessary”;

2. “I observed no evidence of ongoing musculoskeletal pathology that would substantiate the request for an orthopaedic evaluation”; and

3. “An orthopaedic evaluation would not lead to a treatment plan that would alter her functional outcome or facilitate symptom resolution.”

22I note that Dr. Ato Sekyi-Otu conducted both an in-person examination of the applicant on February 3, 2016 and a documentary review of her relevant medical history.

23I find that the applicant has not met her onus to show that the proposed orthopedic assessment is reasonable and necessary because:

i. she provides insufficient medical documentation to make an affirmative case for the proposed assessment;

ii. I find her assessment plan less persuasive than the respondent’s evidence as the result of my own reading of it (see paragraph 19 above);

iii. the failure to provide CNRs or other records from the proponent of her claimed orthopedic assessment – Advance Healthcare Management – weakens the credibility of the assessment plan on which she relies;

iv. the IE examination and report by Dr. Sekyi-Otu is persuasive evidence that an orthopedic examination is not reasonable and necessary in this case; and

v. the applicant provides insufficient medical evidence to contradict the conclusions set out by Dr. Sekyi-Otu’s in his IE report.

Cost of Examination – Chiropractic Assessment

24After stating the issue as a chiropractic assessment, the applicant goes on to discuss a treatment plan for physiotherapy, active therapy and massage in the amount of $2,344.67, recommended by Skymark Health & Fitness Inc. in a treatment plan dated November 16, 2015 and denied by the respondent on December 8, 2015. It includes the treatment plan in its evidence.

25The dates and the amounts of the treatment plan are exactly the same as stated in the issues statement and there is no mention of a “chiropractic assessment” in the evidence or argument advanced by either party, which on balance suggests a drafting error on the part of the applicant.

26The respondent notes the discrepancy in the issue description but proceeds to engage the applicant’s treatment plan for physiotherapy and other treatments on its merits: its evidence clearly indicates that it received and was adjusting the treatment plan for physio, active and massage therapy as detailed by the applicant in the body of her submissions.

27The applicant leads no medical evidence and makes no argument with respect to whether the disputed treatment plan is actually “reasonable and necessary”.

28The applicant submits that the respondent “failed in [sic] adhering to SABS notice requirements and that [the] treatment plan dated November 16, 2015 should be approved”.

29Under s.38(14)(a) of the Schedule, an insurer that has conducted an IE must provide the insured person with a notice that, among other things, indicates the goods and services described in the treatment plan that it refuses to pay for; and the medical and any other reasons for the insurer’s decision.

30The applicant’s case is that the respondent did not meet its obligations under s.38(14)(a) of the Schedule.

31My review of the documents submitted in evidence lead me to find that the notices of denial and request for IE examinations were compliant with the Schedule for the same reasons stated for issue 1, at paragraph 16 above.

32The respondent’s denial notice of the disputed treatment plan for physiotherapy and related treatments states that it is based on an insurer’s examination (IE) report, dated February 18, 2016, by Dr. Ato Sekyi-Otu, orthopedic surgeon, who reviewed the proposed plan and concluded that:

i. The OCF-18 in dispute is neither reasonable nor necessary.

ii. “At an interval of over two years following the subject accident it is unlikely that further supervised therapy would lead to a treatment plan that would alter her functional outcome, or facilitate symptom resolution.”

iii. “Furthermore, the injuries outlined in the OCF-18 in dispute are not consistent with the diagnosis that I offered today.”

33I note that Dr. Ato Sekyi-Otu conducted both an in-person examination of the applicant on February 3, 2016 and a documentary review of her relevant medical history. He conducted one IE examination but authored two reports on the same date to deal with distinct issues: the disputed orthopedic assessment plans and the treatment plan for physiotherapy etc., respectively.

34The applicant offers no persuasive medical evidence or argument to refute the IE Report, nor does she question the methodology or any specific medical finding reached by the IE assessor.

35As noted, the applicant offers little or no persuasive evidence in affirmative proof of a medical need for the disputed treatment plan.

36The applicant has failed to meet her onus to show that the disputed treatment plan is reasonable and necessary. Her appeal is dismissed.

Request for Interest

37Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

38In this case, because I find that no benefits are payable, no payments are overdue and therefore no interest is payable.

CONCLUSIONS

39The applicant has not proven her entitlement to the benefits she claims. Her appeal is dismissed.

40The applicant is not entitled to interest on overdue payments.

Released: December 29, 2017

___________________________

Christopher A. Ferguson, Adjudicator

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3O.Reg. 7/00 -- Unfair and Deceptive Practices, pursuant to the Insurance Act, RSO 1990, c.I.8
4. 4s.44(4) of the Schedule allows the insurer to conduct an IE limited to information and documents provided by the insured person, but does not prescribe or suggest any conditions under which an insurer would be required to adopt such an approach. The respondent is entitled to ask for an in-person examination of any claimant if necessary to determine entitlement to a medical benefit – but only as often as is reasonable and necessary.