17-005081 v Aviva Insurance Canada
Tribunal File Number: 17-005081/AABS
Case Name: 17-005081 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:
[The Applicant]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Kal Stoykov, counsel
For the Respondent: Pamela J. Quesnel, counsel
HEARD: Written Hearing: March 16, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1[The applicant], was injured in a motor vehicle accident on December 21, 2015. He was a front seat passenger in a vehicle that was struck by another vehicle on the driver’s side. The applicant struck his left knee against the dashboard. Police and ambulance attended at the scene and he was transferred to [the hospital], where an x-ray of his left knee was reportedly negative. The applicant was discharged home.
2At the time of the accident, the applicant was living with his mother and employed as a landscaper. He was also studying part-time at an adult school to complete his high school credits.
3The applicant applied to the respondent, Aviva Insurance Company of Canada, for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”). The respondent paid for some of the benefits sought and, for a while, income replacement benefits. The respondent also arranged for the applicant to be assessed by several medical health professionals and in the end determined that the applicant is not entitled to a number of benefits claimed.
4A case conference was held in October, 2017 to determine the issues in dispute and to address the disclosure of documents and records by the parties. An in-person hearing was scheduled to take place in February.
5In January 2018, the respondent brought a motion on consent to convert the in-person hearing to a written hearing on the basis that the applicant has withdrawn his claims for ongoing income replacement benefits and for an attendant care assessment. The motion was granted by the Tribunal and a timeline for the parties to submit their written submissions was provided.
ISSUES
6The respondent brought a preliminary issue as to whether the applicant should be precluded from submitting certain evidence, namely, the treatment plans for certain medical services that are in dispute.
7The substantive issues in dispute are:
a) Is the applicant entitled to a medical benefit of $3,643.76 for chiropractic services recommended by Alpha Med Wellness Centre, submitted December 29, 2015, and denied April 15, 2016?
b) Is the applicant entitled to receive a medical benefit for $3,841.09 for psychological services recommended by Auxillium Wellness Centre, submitted May 13, 2016 and denied on May 30, 2016?
c) Is the applicant entitled to a medical benefit of $3,643.76 for chiropractic services recommended by Alpha Med Wellness Centre, submitted April 26, 2016, and denied November 10, 2016?
d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8For the reasons set out below, I allow the applicant to submit as evidence the treatment plans that are under dispute. Further, I find that the applicant is not entitled to the medical benefits claimed in paragraphs 7(a) through 7(c), above, and that no interest is payable.
ANALYSIS
Preliminary Issue: Should the applicant be allowed to submit the treatment plans in dispute?
9As noted above, the respondent raised the issue that two of the treatment plans were not in evidence because the applicant had not submitted them with his application to the Tribunal. These two treatment plans are: the treatment plan for chiropractic services in the amount of $3,643.76 prepared by Dr. George Charalambous dated April 26, 2016 and the treatment plan for psychological services in the amount of $3,841.09 prepared by Dr. Ilya Gladshteyn, dated May 13, 2016.
10Subsequently, the applicant attached these two treatment plans with his reply submissions.
11The respondent submitted that the applicant must adduce all evidence upon which he intends to rely in the first instance, and should be precluded from adducing any new evidence in his reply submissions which reasonably could have been included in initial submissions.
12The applicant explained that these treatment plans were not included previously through administrative inadvertence. The applicant further stated that it is in the interest of justice and fairness to allow the applicant to submit these two treatment plans in question.
13I agree with the applicant that it is in the interest of fairness to admit the two treatment plans in question, notwithstanding that they were filed late. The two treatment plans form the basis of two of the claims that are in dispute. Not allowing the applicant to rely on these two treatment plans may undermine his ability to make his case before the Tribunal. There is little, if any, prejudice to the respondent if I consider these two treatment plans since they are not “new evidence” in that the respondent has previously been given these plans and has in fact made decisions to deny the benefits based on these plans.
14The respondent cited two decisions from this Tribunal in support of its position.2 With respect, these two decisions can be distinguished on facts and in any event, they are not binding on me. In 000863 v. Aviva Insurance, the issue was whether the applicant was entitled to raise the issue for an award, for the first time, in her submissions at the hearing, even though she had never raised the issue at the case conference nor had she provided any explanation for raising this issue at such a late stage in the proceeding. In 16-001063 v. Belair Direct Insurance Company, the applicant did not submit a certain treatment plan in dispute to the Tribunal, and as such the member declined to deal with that dispute. Here, the issues raised were included in the application to the Tribunal and while they were submitted late, the treatment plans are before me now.
15In conclusion, I will admit the two treatment plans as evidence and will, in my decision, refer to them where necessary and appropriate.
Substantive Issues: Is the applicant entitled to the medical benefits and payments sought?
16In assessing the applicant’s entitlement to the medical benefits sought, I am guided by several provisions of the Schedule. These include section 14, which makes an insurer liable to pay medical and rehabilitation benefits for an insured person who sustains an impairment as a result of an accident; and section 15, which states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
17The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.
Issue 1: Is the applicant entitled to a medical benefit of $3,643.76 for chiropractic services recommended by Alpha Med Wellness Centre, submitted December 29, 2015, and denied April 15, 2016?
18The applicant started seeking physiotherapy treatment about two weeks after the accident, at the advice of counsel. He was seen by Dr. Charalambous who issued a Disability Certificate dated January 7, 2016, in which he noted findings of “headache, sprain and strain of cervical spine; spinal instabilities, thoracic region; sprain and strain of joints and ligaments of knees; irritability and anger, sleep disorder, unspecified”.
19Dr. Charalambous also assessed the applicant to determine appropriate treatment and recommended chiropractic treatment. The respondent denied the benefits in question on the basis that Dr. Charalambous had not provided compelling evidence suggesting that the applicant’s impairments were not predominantly minor.
20However, the respondent approved and paid for the treatment in the amount of $2,200.00, prepared by Dr. Charalambous and another treatment in the amount of $1,340.03, also prepared by Dr. Charalambous, pursuant to the Minor Injury Guideline (MIG).
21I note that the insurer initially found the applicant to fall within MIG, but later reversed its decision on MIG. I understand that the insurer still maintains that the applicant is not entitled to the benefits under dispute because there is no evidence that the applicant needs the treatment in question.
22The respondent arranged for an insurer examination (IE) of the applicant to assess the treatment plan by Dr. Charalambous.
23The IE in question was an examination by Dr. Frank Loritz, who examined the applicant and concluded that there were no objective impairments of a musculoskeletal or neurological nature. By the time of the examination, the applicant had completed approximately two and a half months of rehabilitative therapy consisting of active and passive interventions. Dr. Loritz characterized the applicant’s treatment efficacy as having reached a plateau. He noted that there was no evidence on file of a pre-existing medical condition that would prevent the applicant from achieving maximum medical recovery under the Minor Injury Guideline.
24The respondent noted that there is no evidence the applicant had incurred the December 29, 2015 treatment plan and argued that an insurer is only required to pay for medical benefits which have been incurred.
25The applicant did not provide any other medical reports in support of his claim in this regard. The applicant does not have a family physician and did not provide any medical evidence, other than from the treatment provider, in support of his need for treatment. The applicant has also provided no evidence of any pre-existing physical condition.
26My review of Dr. Loritz’s report supports the respondent’s conclusion. Dr. Loritz noted in his report that the applicant was observed to walk with a “normal gait” and “without a limp”. He was not observed to shift his posture while seated during the 30-minute interview. No restrictions in his upper body or neck movements were observed. Examination of the head area showed normal cranial nerve function and normal TMJ function. There was no spasm or atrophy, and a number of mobility tests all fell within the normal range. The applicant was not using any medications at the time of the IE.
27Given the lack of evidence to show there was any impairment of a musculoskeletal nature, I find the chiropractic services in the treatment plan dated December 29, 2015 not reasonable or necessary.
Issue 2: Is the applicant entitled to receive a medical benefit for $3,841.09 for psychological services recommended by Auxillium Wellness Centre, submitted May 13, 2016 and denied on May 30, 2016?
28The applicant was seen by Dr. Gladshteyn for a psychological assessment for the purpose of determining the nature of and the extent to which he was suffering from psychological or emotional difficulties as a result of the accident.
29Psychologically, the applicant reported feeling sad, irritable, and nervous post-accident. The applicant reported that he had ceased or decreased many of his pre-accident activities, including going out with his friends and playing sports. Dr. Gladshteyn recommended the applicant to participate in sessions of cognitive-behavioural-oriented psychotherapy, with the goal of reducing his anxiety and depressive mood. It was further recommended that the applicant participate in ongoing psychometric evaluation and clinical review to ascertain whether he could benefit from practical strategies to deal with his avoidance and anxiety symptoms.
30The applicant relied on the report of psychologist Dr. Annette Lorenz, who was retained by the respondent to examine the applicant from a psychological perspective. In her report dated April 4, 2016, Dr. Lorenz concluded that the applicant was suffering from depression and adjustment disorder.
31The respondent argued that Dr. Lorenz’s expertise was sought to address a separate treatment plan. Instead, the respondent referred to another IE report completed by Dr. Sherri Mackay, a psychologist who was asked to assess the treatment plan proposed by Dr. Gladshetyn. Dr. Mackay administered a number of psychological tests which indicated that the applicant’s score was outside the expected range, indicating caution about possible over-reporting of symptoms. She also administered the Reliable Digit Span and indicated the applicant’s score was below the expected level, indicating caution about possible poor effort on a simple memory task. She also administered the Minnesota Multiphasic Personality Inventory-2-Restructured Form, the result of which was invalid because of extensive over-reporting of psychological symptoms. Dr. Mackay noted that the applicant was not taking any prescription medication and did not have a family physician. She noted the applicants’ long history of behavioural problems and felt that the symptoms the applicant was reporting were best characterized as an Oppositional Defiant Disorder and/or Conduct Disorder. In conclusion, Dr. Mackay was unable to find objective, valid or reliable information that the applicant had a clinically significant accident-related psychological impairment.
32I further note that in her report, Dr. Mackay found no indication of clinical depression or anxiety, and no significant cognitive difficulties or thought disorder. The applicant reported feeling isolated at the time because he was living with his uncle where he had no friends and had no transportation to his former community where his friends live.
33While I note that Dr. Lorenz did make a finding that the applicant might be suffering from depression, her overall impression of the applicant was one of “dishonest, resentment, lack of manners and fatigue”. She also noted a higher than usual level of atypical symptoms and concluded that the personality traits as captured in the test results would be consistent with a history of maladaptive personality traits and are also consistent with less than prosocial trends and attitudes. Dr. Lorenz was also of the view that the treatment plan she was assessing was not reasonable because it did not address pre-existing adjustment issues, as a means of differential diagnosis.
34I note the respondent’s argument that I should not consider Dr. Lorenz’s report because it was arranged for a different purpose. Even if I do take into account Dr. Lorenz’s report in my finding, it would not assist the applicant. Dr. Lorenz did conclude that the diagnosis of adjustment disorder could not be ruled out.
35Given Dr. Mackay’s opinion that the applicant’s psychological issues are likely results of pre-existing behavioural issues, a conclusion that has not been ruled out by Dr. Lorenz, I find on balance the evidence before me does not indicate that the applicant suffers from clinically significant accident-related psychological impairment. As such, the psychological treatment plan as proposed is not reasonable and necessary.
Issue 3: Is the applicant entitled to a medical benefit of $3,643.76 for chiropractic services recommended by Alpha Med Wellness Centre, submitted April 26, 2016, and denied November 10, 2016?
36The applicant submitted another treatment plan for chiropractic services, also provided by Dr. Charalambous. To determine the applicant’s eligibility, the respondent referred the applicant to be examined by Dr. Michael Ko, a physiatrist. Dr. Ko noted in his report that the applicant has active range of motion with full extension in his cervical spine, right and left shoulders, and lumbar spine, passive range of motion with full rotation of his hips, and full extension of his knees. The applicant did not report any palpation tenderness, no ligamentous instability of the knees; his muscle tone was intact, and reflexes were intact. His gait was symmetric and he was able to walk on his heels and toes.
37Dr. Ko concluded that there were no objective signs of ongoing impairments and no objective evidence of an ongoing organic pathology that could explain the applicant’s pain complaints.
38Once again, the applicant did not provide any medical evidence in support of his claim in this regard. I further note that the applicant reported he has not been prescribed any medication for any of his conditions, although he did report to Dr. Lorenz that he takes Advil as needed.
39In light of the lack of evidence about any physical impairment, I find that the treatment plan for chiropractic services not reasonable or necessary.
Is the applicant entitled to interest on the overdue payment of benefits?
40As I find that the applicant is not entitled to the benefits claimed, no interest is payable.
ORDER
41The applicant’s claims are dismissed.
Released: April 20, 2018
___________________________
Avvy Go, Adjudicator
Footnotes
- O. Reg. 34/10.
- 16-000863 v. Aviva Insurance, 2017 CanLII 43843 (ON LAT), and 16-001063 v. Belair Direct Insurance Company, 2017 CanLII 56675 (ON LAT)