W. W. v. Aviva Insurance Canada, 2018 CanLII 132560

Date: 2018-10-12

Tribunal File Number: 18-001127/AABS

Case Name: 18-001127 v. Aviva Insurance Canada

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:

W. W.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Martha Cook, Counsel

For the Respondent: Jeffrey Pasternak, Counsel

HEARD in Writing and by Teleconference: August 10, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on April 4, 2011 and applied for accident benefits to Aviva Insurance Company of Canada (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).

2At the time of the accident, the applicant was employed as a millwright. He lost some time off work but was able to return to his pre-accident employment within one year. The applicant maintains he has ongoing pain and limitations as a result of the injuries sustained in the accident which he claims are affecting his pre-accident employment. Five years after the accident, he submitted an application for the cost of three examinations being a 1) a functional abilities evaluation (“FAE”), 2) a chiropractic evaluation and 3) a physiatry assessment. All three examinations were denied by the respondent on the basis that they are not reasonable and necessary. The applicant claims otherwise given his ongoing pain and physical limitations.

3The respondent denies the applicant submitted sufficient evidence to support his claim. It states that the applicant returned to his pre-accident employment in June 2012. He has also returned to the majority of his activities of daily living. Further, it argues that the examinations were also not submitted until five years after the accident and, thus, they are not reasonable and necessary.

4The applicant bears the burden of establishing that the three examinations in issue are reasonable and necessary.

5The applicant gave evidence by affidavit dated July 23, 2018, and was cross-examined at a hearing held by teleconference on August 10, 2018. Dr. Stuart Kinsinger, chiropractor, and Dr. Oshidari, physiatrist, also gave oral evidence on August 10, 2018. All other evidence was submitted by way of written submissions with attached documentary evidence.

ISSUES

6The following are the issues to be decided:

a. Is the applicant entitled to a cost of examination, in the amount of $2,065.43, for a FAE recommended by Dr. Kinsinger in a treatment plan submitted on April 14, 2016 and denied on July 15, 2016?

b. Is the applicant entitled to a cost of examination, in the amount of $2,256.55, for a physiatry assessment recommended by Dr. Gordon Ko, physiatrist, submitted in a treatment plan submitted on April 14, 2016 and denied on July 15, 2016?

c. Is the applicant entitled to a cost of examination, in the amount of $2,217.00, for a chiropractic assessment recommended by Dr. Kinsinger, submitted in a treatment plan submitted on April 14, 2016 and denied on July 15, 2016?

d. Is the respondent liable to pay an award under Ontario Regulation 664, Automobile Insurance¹ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

e. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find that the applicant is not entitled to the cost of any of the disputed examinations.

8The applicant is not entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664.

9No interest is payable as there are no overdue payment of benefits.

MOTION

10At the outset of the hearing, the applicant brought two motions. The first was for leave to file the medical report of his family doctor, Dr. Penhearow, dated July 11, 2018. The respondent consented. Thus, I granted leave to the applicant to file the report.

11The second motion was for leave to add the issue of an award under section 10 of Ontario Regulation 664 to the list of issues at the hearing. The respondent received notice of this request prior to the hearing and filed submissions on the award. I therefore granted leave to the applicant to add the issue of an award at the hearing.

BACKGROUND

12The applicant was 48 years-old at the time of the accident. He is now 55 years-old. The injuries sustained included a left mid shaft femoral fracture, a left ulnar shaft fracture and a right bicondylar proximal tibia plateau fracture and a concussion. The three fractures required surgery.² He was hospitalized following the accident. In the vocational assessment dated April 10, 2014,³ the applicant reported to the assessor the following injuries:

a. chronic pain bilaterally in his knees;

b. difficulty with kneeling and crouching;

c. difficulty climbing stairs, ladders, standing for prolonged periods of time and driving for more than 30 minutes;

d. inability to extend his right leg and an altered gait;

e. intermittent low back pain; and

f. left arm pain.

13Dr. Jenkinson, the applicant’s orthopaedic surgeon, reported in January 2014 that the applicant’s fractures had healed well. X-rays taken two years after the accident indicated “good fracture healing.”⁴ Dr. Jenkinson commented that, in future years, the applicant may need knee surgery and possibly some additional treatment should arthritis develop. No evidence was presented that, as of the date of the hearing, the applicant had developed arthritis.

14The evidence indicates that the applicant attended physiotherapy for one year after the accident, and was discharged from physiotherapy on August 31, 2012. He has not had subsequent physiotherapy treatment since that time. The applicant indicates that, prior to the hearing, he attended chiropractic treatment which was initially denied but subsequently approved by the respondent.⁵

15The three treatment plans in dispute are similar in the following respects:

a. Despite the list of injuries noted in the vocational assessment referred to above, the injuries listed are a sprain and strain of the sacroiliac joint, pain in the lower limb and malaise and fatigue;

b. The goals are stated to be to reduce pain, increase strength, increase the applicant’s range of motion and identify impairments and treatment. The functional goal is to enable the applicant to return to activities of normal living; and

c. Schedule “A” attached two of the three OCF 18s, states a thorough assessment is required to determine if and when the applicant is able to return to his pre-collision function.

16The applicant in his affidavit states that the assessments were to identify treatments to reduce his chronic pain, fatigue and help him maintain his employment.⁶ The applicant complains of ongoing pain due to the injuries, including problems kneeling, not being able to walk for long periods of time, and concerns about the ability to continue his work safely as a millwright.⁷

Are the Assessments reasonable and necessary?

17Section 15(1) of the Schedule provides that the insurer shall pay for “all reasonable and necessary” expenses incurred as a result of an accident. Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.

18I find that the applicant has not established that the three assessments are reasonable and necessary.

19I agree with the respondent that there is no supporting medical documentation from treating medical professionals to support the reasonableness of the assessments. Despite complaints of ongoing pain by the applicant, there is little evidence to establish that he is obtaining medical treatment for the chronic pain. The applicant has not attended physiotherapy since 2012. The family doctor’s records reflect only two visits in the years 2012 to 2018 relating to the injuries from the accident.⁸ The medical records of Dr. Penhearow,⁹ his family doctor, also reflect the fact that the applicant in 2014 had injured his back in a slip and fall which could explain ongoing pain in his lower back. On April 24, 2015, Dr. Penhearow noted that the applicant had an injury to his right knee when he was doing work on a deck. The family doctor stated that the applicant “ripped off decking, fell right knee.” ¹⁰ He was disabled as a result of that injury and lost one week off work as a result. This evidence establishes that, despite complaints of chronic pain, the applicant was able to complete some home maintenance work.

20Further, Dr. Oshidari, physiatrist, on June 25, 2016 was retained by the respondent to complete a physiatry assessment of the applicant. Dr. Oshidari noted in his report dated July 7, 2016¹¹ that the applicant’s medical condition was stable. He concluded that formal physical intervention would have no rehabilitative benefit, and that the treatment plan for a physiatry assessment was not reasonable and necessary. There were no active conditions that required assessment or formal treatment. Dr. Oshidari on cross-examination affirmed his findings. Dr. Oshidari completed addendum reports on May 2, 2018 after a review of the assessments conducted by Drs. Ko and Kinsinger. Dr. Oshidari’s opinion remained unchanged.¹²

21The applicant took the position that Dr. Oshidari’s opinion is not relevant. It stated that engaging Dr. Oshidari to complete his own physiatry assessment is an acknowledgement that the physiatry assessment is reasonable and necessary. I disagree. I find his evidence is relevant. The respondent in assessing the reasonableness of the three assessments is able to retain its own medical professional.

22The applicant relies on the evidence of Dr. Ko, physician, and Dr. Kinsinger, chiropractor, who co-authored an Independent Medical Report (“IME”) dated June 8, 2016 for the physiatry and chiropractic assessments.¹³ The report outlined that the purpose of the assessments were to review the applicant’s accident impairment, determine if the applicant had a substantial inability to perform his pre accident employment, and evaluate his activities of daily living.¹⁴ During cross-examination, Dr. Kinsinger admitted that in preparing the report he had not examined the applicant. His role was to review the documentation and draft the report. Dr. Oshidari examined the applicant. I prefer Dr. Oshidari’s report on this basis.

23The applicant also relies on the FAE completed by Chris Agaton, registered kinesiologist.¹⁵ The FAE was also to determine the present functional abilities of the applicant and suitability to perform his pre-accident occupation.

24The goal of the accident benefit system is to return the applicant to the position he was in prior to the accident. The evidence is that, despite his complaints of pain, the applicant had returned to all of his pre-accident employment duties and had done so on a full-time basis since June 2012. On this basis, the three treatment plans were not necessary to determine if the applicant could return to his pre-accident employment. By April 2016 he had worked for a period of at least four years. Moreover, when he returned to his work as a millwright on June 13, 2012,¹⁶ he did so without any modifications. I, therefore, agree with the respondent that it was not necessary to proceed with these assessments to determine if he could return to his pre-accident employment as he had been employed in that capacity for four years prior to the date of the assessments.

25As to the applicant’s position that the assessments were required to ensure he could continue the work safely, a complete vocational assessment including employment counselling was completed in early 2014. The aim of employment counselling was to canvas alternative work options. Steve Van Eindhoven, of DMA Reliability, issued a report dated December 10, 2014.¹⁷ In his report, he recommended that the applicant complete a “functional capacities evaluation with specific medical consultation,” The aim was to re-train the applicant and find alternative work that did not involve the heavy work demands required of a millwright. A re-training program was identified for the applicant, and he was accepted into a retraining program. However, after careful consideration, he did not go ahead with the re-training.¹⁸ He stated in his affidavit that the thought “re-training was frightening to him.” At his place of employment, he had seniority and he liked his work. He declined the suggested re-training and chose to stay in his pre accident employment. ¹⁹ On this basis, I find the FAE is a duplication of services. The applicant was presented with options on re-training and made a decision in 2015 to not pursue re-training. Therefore, obtaining the FAE and other assessments in 2016 to determine if he could return to his pre-accident employment is a duplication of services, and not reasonable nor necessary.

26As to performing the work of a millwright, the evidence indicates that the applicant can perform the duties required of a millwright. Mr. Agaton noted the applicant’s employment as a millwright requires that he lift 60 pounds, involves overhead reaching, low level postures, using small and large tools and climbing machines and equipment. He found the applicant was able to lift 80 pounds and could perform the employment tasks but at a slower pace.

27A further medical report was obtained in August 2017 by Dr. Soriano who completed an orthopaedic assessment of the applicant.²⁰ Dr. Soriano noted the fractures were well healed, the applicant’s gait was normal, he had free range of motion in both his knees, and he reported that the applicant had returned to work one year after the accident with no modifications. He concluded there was nothing further to be done.

28The results of the orthopaedic assessment also reveal some contradictions in between the findings in Dr. Soriano’s assessment, Dr. Oshidari’s physiatry assessment, and the FAE and IME. In the FAE, Chris Agaton noted the applicant was able to sit, stand, and walk and he demonstrated a high level of functioning. The IME noted the applicant had limitations in his personal care and that he would have limitations in performing the essential tasks of his pre-accident employment. The IME also concluded his impairment prevented the applicant from continuing his activities of daily living. As noted below, this is inconsistent with the conclusions stated in the FAE about the applicant’s return to his activities of normal living. Further, the evidence is that the applicant returned to work in June 2012 with no modifications. I prefer the reports of Dr. Oshidari and the findings in Dr. Soriano’s assessment over the IME due to the contradictions and inconsistencies noted.

29As to the applicant’s return to his pre-accident functioning, the evidence establishes that he is able to perform his household chores, home maintenance activities with some limitations, and complete his activities of daily living. The applicant reported to Mr. Agaton that he was independent with personal care tasks. Dr. Oshidari also noted that the applicant had reported to him that he was independent in his activities of daily living and able to perform his household chores.

30I also note a contradiction between the FAE, in which the applicant reported he is performing his personal care and no longer needs help, and Mr. Agaton’s observation that the applicant needs assistance with his personal care. In the FAE, it is stated that there are limitations but these would not preclude the applicant from performing the majority of his home maintenance and housekeeping activities. Based on the totality of the evidence, I find that, despite some minor limitations, the applicant has returned to his pre-accident level of functioning and is able to perform the activities of his daily living. On this basis, I find the assessments are not reasonable and necessary.

Claim for an Award under Section 10 for Unreasonably Held or Delayed Payments

31The applicant claims he is entitled to an award for unreasonably held or delayed payments.

32Section 10 of Ontario Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e., the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e., the respondent) has “unreasonably” withheld or delayed payments.

33Having found that the applicant is not entitled to the assessments there is no basis on which to make an award. The applicant’s award request is dismissed.

CONCLUSION

34For the reasons outlined, I find that:

a. The applicant is not entitled to a claim for the cost of the three assessments. The applicant is not entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664.

b. Interest is not payable as there are no overdue payments.

Released: October 12, 2018

____________________________

Thérèse Reilly

Adjudicator

Footnotes

1. 1R.R.O. 1990, Reg. 664
2. 2Written submissions of the applicant, paragraph 6.
3. 3Vocational Evaluation, April 10, 2014, Applicant document brief, Tab 2.
4. 4Respondent’s written submissions, paragraph 11. Report of Dr. Jenkinson, dated January 17, 2014. Tab 1, applicant’s document brief.
5. 5Written submissions of the applicant, paragraph 15.
6. 6Affidavit of the applicant paragraph 30.
7. 7Affidavit of the applicant, dated July 23, 2018, paragraph 14
8. 8Written submissions of the respondent, paragraphs 14 and 15.
9. 9CNR’s of Dr. Penhearow, Tab G, written submissions of the respondent, paragraph 12.
10. 10Written submissions of the respondent, paragraph 12.
11. 11Report of Dr. Oshidari dated July 7, 2016 Tab 1, Written submissions of the respondent, paragraphs 21-23.
12. 12Written submissions of the respondent, paragraph 26. Reports are at Tabs I and J.
13. 13Independent Medical Report dated June 8, 2016, applicant document brief, Tab 15.
14. 14Written submissions of the respondent, paragraph 30.
15. 15Functional Abilities Evaluation, written submissions of the respondent, paragraphs 32, 33 and Tab N.
16. 16Affidavit of the applicant, dated July 23, 2018, paragraph 11.
17. 17Employment counselling report, dated December 10, 2014, Tab 3 of Applicant Document Brief.
18. 18Affidavit of the applicant, dated July 23, 2018, paragraphs 16 to 19.
19. 19Affidavit of the applicant, dated July 23, 2018, paragraphs 17 and 18.
20. 20Orthopaedic Surgery Assessment Report of Dr. Soriano, dated September 12, 2017, document brief of the applicant, tab 26.