S.A. v. Aviva Insurance Canada, 2018 CanLII 140341

Tribunal File Number: 17-003510/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:

S.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

Ryan M. Naimark, Counsel for the Applicant

Sharla Bandoquillo, Counsel for the Respondent

HEARD in Writing on November 27, 2017

OVERVIEW

1S.A. (“the applicant”) was involved in an automobile accident on December 16, 2014 (“the accident”), 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 a medical benefit in the amount of $392.10 for a paraffin wax bath and foot bath recommended by Dr. Fauzia Ahmed of Mississauga Active Physiotherapy Services in a treatment plan dated August 12, 2015, denied by the respondent on September 22, 2015?

2. Is the applicant entitled to receive a medical benefit in the amount of $2,838.45 for chiropractic and massage therapy recommended by Krishan Sood of Mississauga Active Physiotherapy Services in a treatment plan dated October 6, 2015, denied by the respondent on November 19, 2015?

3. Is the respondent liable to pay an award under s.10 of Regulation 664, Automobile Insurance² (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

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

FINDINGS

4I find that the applicant has not proven her entitlement to the disputed benefits.

5The request for an award is without merit.

6The respondent is not liable to pay interest on any overdue payments.

REASONS

Procedural issue: Is the respondent obliged to pay any disputed benefits due to a failure to comply with notice requirements?

7Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan.

8Under s. 38(11) of the Schedule, if the insurer fails to give a notice in accordance with s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11^th business day after the insurer received the application, and ending on the day the insurer gives the notice required by s. 38(8).

9The applicant argues that the treatment plan for $2,838.00 for chiropractic and massage therapy was dated on October 6, 2015. She states that the first notice from the insurer— indicating that it had insufficient information to determine her claim and requiring her to attend an insurer’s examination—was issued October 28, 2015.

10The applicant submits that because more than ten days elapsed between the date of the treatment plan and the issuing of a response by the respondent, she is entitled to be paid the full cost of the disputed treatment plan.

11A plain reading of s. 38(8) indicates that the date of a treatment plan is irrelevant. The ten- day notice period begins when the insurer receives the treatment plan and claim application.

12I note that the explanation of benefits notice issued by the respondent on October 28, 2015 indicates that it received the applicant’s treatment plan on October 20, 2015. The applicant did not provide any evidence with respect to the date the treatment plan was sent. By checking the calendar, I determined that the respondent issued the required notice six business days after it received the applicant’s treatment plan, in full compliance with s. 38(8) of the Schedule.

13I find no evidence to support the applicant’s claim that the respondent is liable to pay the cost of the disputed treatment plan for chiropractic and massage therapy as the result of any non-compliance with notice requirements under the Schedule.

Causation: Was the applicant’s impairment sustained as a result of the accident? Were her medical expenses incurred as a result of the accident?

14Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains impairment as the result of an accident.

15Section 15 of the Schedule provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person 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.³

16If I find that the injuries for which the applicant seeks medical benefits for treatment were not sustained as a result of the accident, I will not need to determine whether the disputed treatment plans are reasonable and necessary.

17The parties agree that the applicant has a significant pre-accident medical history for which she has received medical treatment, including: arthritis, a shoulder tear and tendinopathy, degenerative changes to her right knee, fibromyalgia and a fracture of her right fifth finger. All of these issues arose or were being treated in the two years preceding the accident.

18The applicant argues that her pre-accident impairments were “aggravated” by the accident. In support of her argument, she cites:

i. a note by Dr. Manokaran, the applicant’s rheumatologist, that “her left shoulder, wrist and left knee are painful after a [sic] MVA in Dec., 2014”;

ii. an occupational therapy assessment by Daljeet Singh, occupational therapist, dated February 19, 2015 which asserts “as a result of the […] accident, [the applicant] sustained a fractured right hand, several soft tissue injuries as well as aggravation of her pre-existing arthritic condition”;

iii. the fact that she received her first-ever injection of the left shoulder on June 17, 2015;

iv. a lengthy series of clinical notes and records (CNRs) from various medical service providers noting complaints of pain and confirming treatments sought and provided by the applicant.

19The respondent contends that the applicant’s injuries were not caused by the accident. To support its contention, the respondent produces the following evidence:

i. numerous pre-accident CNRs from Dr. Manokaran detailing the applicant’s ongoing pre-accident pain and treatments for psoriatic arthritis of the left knee and both hands; and

ii. numerous pre-accident CNRs from the applicant’s family physician, Dr. Figurado, detailing the applicant’s ongoing progressive arthralgia of the knees and back, with limited range of motion in the left knee, and fibromyalgia with recommended treatments including cortisone injections and physiotherapy.

20The respondent also produced numerous CNRs from Dr. Manokaran and Dr. Figurado from after the accident, which indicates that the applicant was experiencing the same medical issues, seeking essentially the same treatments and getting the same results as she did before the accident.

21None of the respondent’s evidence is disputed by the applicant nor is any medical explanation offered for her assertion that her pre-accident conditions were worsened by the accident. She offers no rebuttal to the respondent’s argument that her medical condition had returned to her pre-accident levels at the time that the treatment plans were submitted.

22I find that the respondent’s evidence is more persuasive because:

i. it provides more detailed indications of ongoing pre-accident conditions and treatments that undermine claims of causation by the accident; and

ii. it demonstrates that the applicant’s pre- and post-accident condition and results of treatment were essentially the same.

23As a result of the foregoing evidence, I find that the applicant has not met her onus to show that the medical conditions on which her treatment plans are based were caused by the accident.

24My finding that the applicant has failed to prove causation means that the issue of whether the treatment plans are reasonable and necessary is moot.

25The applicant’s appeal of the respondent’s denial of both treatment plans is dismissed.

Award

26Section 10 of 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.

27Having dismissed the applicant’s claim, I have no basis for determining that the insurer unreasonably withheld or delayed any payments.

Request for Interest

28Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

29In this case, because I find that no benefits are payable, no payments are overdue and therefore no interest is owed.

CONCLUSIONS

30The applicant has not proven her entitlement to the benefits she claims. Her appeal is dismissed.

31The applicant’s claim for an award is without merit and is denied.

32The applicant is not entitled to interest on overdue payments.

Footnotes

1. 1O.Reg. 34/10
2. 2R.R.O. 1990, Reg. 664
3. 3Scarlett v. Belair, 2015 ONSC 3635