D.T. v. Aviva General Insurance, 2018 CanLII 131131

Tribunal File Number: 17-004698/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:

D.T.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: David M. Woolcott, Counsel

For the Respondent: Michael Vrantsidis, Counsel

HEARD: In Writing on June 12, 2018

OVERVIEW

1The applicant was injured in an automobile accident on March 6, 2014 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

(1) Is the applicant entitled to receive a medical benefit of $1,126.00 for chiropractic services recommended by Dr. Dukelow in a treatment plan submitted on May 16, 2017 and denied on May 25, 2017?

(2) Is the applicant entitled to receive a medical benefit of $1,327.51 for physiotherapy services recommended by Eastview Physiotherapy in a treatment plan submitted on November 1, 2016?

(3) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The treatment plan dated November 1, 2016 is reasonable and necessary, less the $200.00 in fees related to previous treatment plans. The applicant may incur this treatment and the respondent is liable to pay for the incurred treatment.

4The treatment plan dated May 7, 2017 is not reasonable and necessary.

5The applicant is not entitled to interest as no payments went overdue.

BACKGROUND

6The applicant was a driver in a vehicle which was struck on the driver’s side by a school bus, pushing the applicant’s vehicle into a snowbank. The applicant was taken by ambulance to the hospital where the applicant was given Tylenol 3 and then released. The applicant saw Dr. B. Henry-Ganesh, family physician, the following day and was prescribed physiotherapy and referred for x-rays, which ultimately found no abnormalities.

7The applicant’s medical record shows a moderate pre-accident history of back pain, starting in October 2011 when the applicant complained of low back pain as a result of heavy lifting. In 2012, the applicant appears to have made a claim with WSIB as a result of a lumbar strain. The applicant also appears to have been involved in a previous motor vehicle accident in May 2012 and reported neck and low back pain as a result.

8The respondent takes issue with the applicant’s claims on three grounds.

(1) the treatment was not incurred and therefore is not payable;

(2) the applicant has not proved the injuries are accident-related, and

(3) the plans are not reasonable and necessary.

9During the process of the written hearing, the respondent motioned to exclude some of the applicant’s evidence on the grounds the evidence was not produced in accordance with the Common Rules of Practice and Procedure (“the Rules”). I will address this issue before analyzing the applicant’s entitlement to the disputed plans.

EVIDENCE AND PROCEDURAL ISSUES

10The applicant has provided a document in support of entitlement to the disputed treatment plans: a letter from Malcolm Briggs, physiotherapist at Eastview Physiotherapy dated April 24, 2018 (“the rebuttal letter”). The rebuttal letter was submitted with the applicant’s initial submissions on May 11, 2018 and was not disclosed to the other party before that.

11The respondent takes issue with the rebuttal letter and submits the applicant failed to disclose this evidence prior to the start of the written hearing as outlined in 9.2 and 9.3 of the Rules. The respondent requests the rebuttal letter be excluded from the evidence.

12Rule 9.2 provides a mandatory document disclosure deadline of at least 10 days before the hearing, unless otherwise ordered by the Tribunal. Rule 9.3 provides parties with the option to seek a production order from the Tribunal.

13This hearing proceeded according to an Order dated April 10, 2018 (“the Order”). The Order advises the applicant to submit written submissions and evidence on or before May 11, 2018 for a hearing scheduled for June 12, 2018. Otherwise, the Order does not provide any other guidance on the production of evidence.

14I have reviewed the submissions and the Rules and find the applicant has disclosed the rebuttal letter in accordance with the Rules.

15As noted in rule 9.2, the default document disclosure deadline is at least 10 days prior to a hearing unless otherwise ordered. The Order states a hearing scheduled for June 12, 2018, which would create a default disclosure deadline of Friday, June 1, 2018. The applicant has complied with this date. Further, the Order provides the applicant must exchange and file written submissions and evidence by no later than May 11, 2018. The applicant complied with this date as well.

ARE THE DISPUTED TREATMENT PLANS REASONABLE AND NECESSARY?

16The applicant’s position is that the disputed treatment plans are reasonable and necessary to deal with the applicant’s ongoing complaints of pain. The applicant submits the treatment plans were recommended by the service providers treating the applicant and that these medical professionals are in the best position to comment on the applicant’s injuries and need for treatment.

17The respondent holds the treatment plans are not reasonable and necessary, deal with medical issues which have not been causally connected to the accident, and are not payable because they are not incurred. Additionally, the respondent submits the applicant is not entitled to the disputed treatment because the applicant has returned to a functional life.

The November 1, 2016 treatment plan

18I find the treatment plan dated November 1, 2016 to be necessary because the applicant’s evidence, more specifically the applicant’s medical record, supports the need for ongoing therapy as a form of pain relief and to increase range of motion of the lumbar spine.

19I am compelled by the applicant’s medical record which shows ongoing and consistent complaints of low back pain since the accident. This is particularly evident in the records of the applicant’s family physician, Dr. Henry-Ganesh, who documented the applicant’s pain complaints and is supportive of ongoing massage and physiotherapy treatment in order to treat the applicant’s low back pain.

20In addition to the applicant’s family physician’s records, the section 44 physiatry reports provided by the respondent also confirm complaints of low back pain as well as a slightly decreased range of motion. Therefore, I find the treatment plan is necessary to address this issue as well.

21I am not persuaded by the respondent’s position that the treatment is not reasonable and necessary because the respondent has returned to a functional life as suggested in the respondent’s surveillance report dated December 5, 2017. The surveillance report does not detract from the medical evidence because it was only conducted over 5 days in November 2017 and does not contradict the applicant’s ongoing pain complaints.

22I note the November 1, 2016 treatment plan proposes a $200.00 fee for initial assessments for previous treatment plans. I do not find these fees to be reasonable as they are unrelated to the disputed treatment plan.

The May 16, 2017 treatment plan

23I find the May 16, 2017 treatment plan is not reasonable and necessary because the applicant has not provided enough information for me to conclude further chiropractic treatment is reasonable and necessary.

24The applicant’s submissions and evidence related to this treatment plan does not meet the evidentiary burden to prove the plan is reasonable and necessary. The applicant argues that the treatment is necessary simply because the applicant was assessed by a chiropractor who determined the proposed chiropractic treatment is necessary. I find this position requires supporting evidence and, outside the treatment and assessment plan itself, the applicant has not provided any for the period on or around the time this treatment plan is proposed. The most recent referral for chiropractic care occurred on October 4, 2016. The applicant has not submitted any information to clarify the applicant’s medical status for the 7 months from the last referral to chiropractic care to the time the treatment plan was proposed. Additionally, Dr. Henry-Ganesh’s recommendation on October 4, 2016 appears to be more focused on seeing the applicant engage in physiotherapy than chiropractic care.

CAUSATION

25The respondent takes the position that the applicant has failed to address and satisfy the common law causation requirements to prove the applicant’s case. The respondent submits the applicant’s complaints are the result of pre-existing and unrelated conditions. I disagree.

26The applicant’s medical record notes low back pain and other complaints before the accident; however, the applicant’s complaints following the accident are for increased back pain. Additionally, the clinical notes and records from the applicant’s family physician, Dr. Henry-Ganesh, clearly attribute the applicant’s increased pain to the subject accident. Lastly, the physiatry assessments commissioned by the respondent and conducted by Dr. J. Heitzner, physiatrist, conclude the applicant does have an impairment as a result of the subject accident and concludes there is no evidence of a pre-existing medical condition.

INCURRED MEDICAL TREATMENT

27The respondent takes the position that the disputed treatment plans are not payable because they have not been incurred. The applicant submits the respondent cannot deny reasonable and necessary treatment simply because it is not incurred.

28I find the applicant has taken the correct position with respect to this issue. The “incurred” provision in section 15 provides that the respondent is only liable to pay for a reasonable and necessary medical or rehabilitation benefit after it has been incurred – not at the time the treatment plan is approved. The respondent neglects to appreciate that the applicant may seek a ruling that the proposed treatment is reasonable and necessary, and that the applicant may then receive the treatment or that treatment may be deemed incurred in accordance with section 3(8) of the Schedule.

INTEREST

29Section 51 of the Schedule provides interest is payable on overdue payments.

30I have reviewed the applicant’s claim and the evidence and find no interest is payable because no payments went overdue. Section 15 of the Schedule provides the respondent is liable to pay for reasonable and necessary treatment incurred by the applicant. I have no evidence before me to suggest applicant incurred any of the disputed treatment, nor do I have evidence the applicant or the clinic invoiced the respondent for the disputed treatment.

CONCLUSION

31The treatment plan dated November 1, 2016 is reasonable and necessary, less the $200.00 in fees related to previous treatment plans. The applicant may incur this treatment and the respondent is liable to pay for the incurred treatment.

32The treatment plan dated May 7, 2017 is not reasonable and necessary.

33The applicant is not entitled to interest as no payments went overdue.