Licence Appeal Tribunal
Tribunal File Number: 17-002023/AABS
Case Name: 17-002023/AABS v Aviva Insurance Company of 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:
K. A.
Applicant
And
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for the Applicant: Michelle Jorge
Counsel for the Respondent: Nathalie V. Rosenthal
HEARD in Writing: October 16, 2017
OVERVIEW
1The applicant, K. A., was injured in a motor vehicle accident on March 20, 2015 and sustained a number of injuries as a result. She applied to the respondent, Aviva Insurance Company of Canada, for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant initially sought to receive a number of benefits including income replacement benefits, attendant care benefits and several medical benefits. After a series of case conference hearings and correspondence between the parties and the Tribunal, the applicant withdrew a number of the claims. Only four issues remain to be determined by way of a written hearing.
ISSUES
3The issues I must decide are:
a) Is the applicant entitled to receive a medical benefit in the amount of $220 for other goods and services of a medical nature (cast and crutches), recommended by William Osler Health System in a treatment plan submitted on June 1, 2015, denied by the respondent on June 22, 2015?
b) Is the applicant entitled to receive a medical benefit in the amount of $1,070 for other assistive devices (body pillow and compression stockings), recommended by Natural Touch Rehabilitation Centre in a treatment plan submitted on May 2, 2016, denied by the respondent on May 24, 2016?1
c) Is the applicant entitled to receive a medical benefit in the amount of $2,706.20 for chiropractic services, recommended by Oral Okem of Natural Touch Rehabilitation Centre in a treatment plan submitted on May 18, 2016, denied by the respondent on May 20, 2016?
d) Is the applicant entitled to interest for any overdue payment of benefits?
RESULT
4For reasons set out below, I find that the applicant:
is entitled to receive a medical benefit in the amount of $1,070 for assistive devices and interest for the overdue payment of this benefit; and
is not entitled to receive the amount of $220 for goods and services of a medical nature and the medical benefit in the amount of $2,706.20 for chiropractic services.
THE FACTS
5The applicant was involved in a motor vehicle accident on March 20, 2015 while driving on Highway 403, when the vehicle she was driving struck the centre median after swerving to avoid a vehicle.
6The applicant was taken to the hospital by ambulance. While at the hospital, she was diagnosed with an open calcaneus fracture, and underwent emergency surgery on her left foot with screws and a plate inserted. The applicant was discharged with her foot being placed in a cast and she was given crutches.
7The applicant had follow up visits with the hospital to be fitted with another cast which she wore for approximately seven weeks. She was then placed in a removable boot.
8Thereafter, the applicant received a variety of treatments from multiple healthcare professionals. The respondent approved a number of treatment plans submitted by the applicant. The applicant has not exhausted all of the approved treatment plans.
ANALYSIS
9In assessing the applicant’s entitlement to the medical benefits sought, I am guided by several provisions of the Schedule, including 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 medical benefits shall pay for all reasonable and necessary expenses incurred including chiropractic and physiotherapy services, as well as assistive devices as incurred by the insured person as a result of the accident.
10The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.
Issue 1: Is the applicant entitled to receive a medical benefit in the amount of $220 for other goods and services of a medical nature (cast and crutches), recommended by William Osler Health System in a treatment plan submitted on June 1, 2015, denied by the respondent on June 22, 2015?
11While the applicant’s claim for a cast and crutches was listed as one of the outstanding issues in the order of Adjudicator Marzinotto dated June 29, 2017, the applicant did not include this issue in her subsequent written submissions to the Tribunal, nor did she make any argument in this regard.
12The respondent pointed out this claim of $220 arose from the applicant’s stay at William Osler Hospital where she was given a semi-private room, covered in part by the applicant’s Extended Health Care Benefit provider. The $220 amount includes the ambulance service ($45.00) and crutches ($35.00) totalling $80.00, and a $140 foam walker cast, invoiced by William Osler Hospital. The respondent submitted that the applicant’s Extended Health Care Benefit provider had paid the $80 claim, and there is nothing to suggest that the applicant had invoiced her provider for the $140.00 cast. The respondent submitted that the applicant must provide proof that these claims were submitted to and rejected by her provider before the respondent could consider payment for such expenses.
13As the applicant has not made any submissions with respect to the $220 claim and in fact did not include this as one of the issues in her submissions, I agree with the respondent that the applicant’s failure to address this issue can be construed as an abandonment of her claim. Even if I am wrong in making that finding, I find the applicant has not provided any information to show that these claims had been rejected by her Extended Health Care Benefit provider, and she therefore cannot proceed with her claim with the respondent in the absence of such information.
Issue 2: Is the applicant entitled to receive a medical benefit in the amount of $1,070 for other assistive devices (body pillow and compression stockings), recommended by Natural Touch Rehabilitation Centre in a treatment plan submitted on May 2, 2016, denied by the respondent on May 24, 2016?
14The applicant’s request for the body pillow and compression stockings was submitted through a Treatment Plan prepared by Samar Arabnezhad, a chiropractor with Natural Touch Rehabilitation Centre. In the treatment plan, Dr. Arabnezhad listed the following diagnosis as a result of the accident: fracture of calcaneus, facture of talus, headache, other sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumber spine, sprain and strain of shoulder joint, sprain and strain of elbow, sprain and strain of other and unspecified parts of knee, and finally dislocation, sprain and strain of joints and ligaments at ankle and foot level.
15As to the goal for the treatment plan, Dr. Arabnezhad noted that it was for ‘pain reduction, increase in strength and increased range of motion” so that the applicant could “return to activities of normal living”. Dr. Arabnezhad also noted that:
Patient reports no overall improvement since the last assessment, but patient is now pregnant and there are biomechanical changes. She reports intermittent pain in the left knee, lower back, neck, shoulders, headaches, and right knee; constant left ankle/calf pain.
16The applicant submitted her pregnancy has limited the types of treatment safely available to her and has thus slowed the progress of her recovery.
17The applicant further submitted, after the case conference hearings, a report dated August 28, 2017 from Dr. Brown, an anesthesiologist in support of her claims. Dr. Brown completed a chronic pain assessment report and diagnosed the applicant with chronic pain disorder associated with both psychological factors and a general medical condition, chronic pain left foot and chronic pain lumbar spine. Dr. Brown noted that the applicant continues to experience left foot pain, low back pain and psychiatric issues including anxiety and depressed mood, and that she has become de-conditioned because of chronic pain. Dr. Brown opined that the claim for assistive devices was reasonable and necessary.
18The respondent took issue with the applicant’s late filing of the report by Dr. Brown, which was never requested by the applicant and no mention was made by the applicant of this report at the case conference. The respondent described the introduction of this report as “trial by ambush” and argued that it should not be permitted by the Tribunal. The respondent further submitted that Dr. Brown’s report should be given no weight since he is an anesthesiologist whose practice focuses on anesthesia and pain control through pharmaceutical intervention. His scope of practice, argued the respondent, does not relate to physical medicine or the musculoskeletal system.
19In further support of their position, the respondent asked the Tribunal to refer to the report by Dr. Louis Weisleder, an Orthopedic Surgeon who provided an insurer’s examination report dated August 26, 2016. Dr. Weisleder noted in his report that both of the proposed assisted devices are related to pregnancy, not injuries that arose out of the accident.
20My review of Dr. Weisleder’s report reveals that he confirmed the applicant has sustained cervical strain, thoracic strain, lumbar strain, and open fracture left calcaneus injuries as a direct result of the accident. Dr. Weisleder further noted in his report that the applicant has impairment in the range of her neck, shoulders, lower back, left ankle and left subtalar joint, as a direct result of the accident. However, with respect to the recommended assisted devices, Dr. Weisleder opined:
The items listed are not reasonably required for injuries sustained in the accident on March 20, 2015. [The applicant] was pregnant at the time of the accident and had a C-section on June 22, 2016. The treatments as outlined are reasonably required for her pregnancy but not reasonably required as a direct result of injuries sustained in the accident on March 20, 2015.
21Given the date of the C-section I assume that the applicant was also pregnant on May 2, 2016, the date the treatment plan was submitted by Dr. Abrabnezhad.
22While I do agree with the respondent that Dr. Brown lacks the requisite expertise to comment on benefits claimed by the applicant, and as such give his report no weight, I find, however, that the assisted devices as claimed are reasonable and necessary, based on the both the information provided by Dr. Arabnezhad and the diagnosis confirmed by Dr. Weisleder. Both of these health professionals confirmed that the applicant was suffering from a number of strains and sprains, as well as open fracture left calcaneus injuries. As noted above, one of the goals of the assisted devices is to reduce pain in the applicant’s left knee, lower back, neck, shoulders, headaches, and right knee; constant left ankle/calf pain.
23While the applicant’s pregnancy may have added additional complications to her conditions, the applicant has been suffering from pain that has been confirmed to have been caused by the accident, independent of her pregnancy. Dr. Abrabnezhad has opined that these devises would help the applicant reduce pain and help her return to normal activities. As such, I find the applicant’s request for the body pillow and compression stockings was reasonable and necessary.
Issue 3: Is the applicant entitled to receive a medical benefit in the amount of $2,706.20 for chiropractic services, recommended by Oral Okem of Natural Touch Rehabilitation Centre in a treatment plan submitted on May 18, 2016, denied by the respondent on May 20, 2016?
24The next treatment plan I have to assess was prepared by Dr. Oral Okem, also a chiropractor from Natural Touch Rehabilitation Centre. The diagnosis as contained in this treatment plan mirrored that included in Dr. Abrabnezhad’s treatment plan. The proposed treatment plan was to provide manipulations and therapy on multiple body sites.
25The applicant noted in her submissions several visits to her family doctors for pain between May, 2015 and July 2016, as well as regular treatments of chiropractic therapy, acupuncture, laser, massage therapy, aqua therapy and active physiotherapy between March 2015 and February 2017. Finally, the applicant also relied on the opinion of Dr. Brown to support her claim that the chiropractic services sought are reasonable and necessary. Once again, I will not give Dr. Brown’s report any weight for the same reasons as outlined above.
26In response, the respondent pointed out that the applicant has submitted a number of treatment plans, many of which were approved by the respondent, for physical treatment. Further, the applicant has yet to fully incur many of the approved treatment plans. They include:
$1,902.48 in physical treatment submitted by Natural Touch Rehabilitation on June 12, 2015, for chiropractic, physiotherapy, massage, and acupuncture treatments. As of February 6, 2016, the applicant had $225.62 remaining in approved treatment plan;
$3,492.78 in physical treatment, also submitted by Natural Touch Rehabilitation on October 15, 2015. As of April 23, 2016, Natural Touch Rehabilitation has invoiced $3,210.73 of the approved treatment;
Another $2,891.24 in physical treatment submitted on December 15, 2015, with $1,102.80 in approved funding remaining yet to be claimed by the applicant; and
Another $2,589.80 in physical treatment was approved on March 10, 2016. As of April March 28, 2017, the balance available under this plan is $2,136.38.
27The respondent submitted that the applicant has failed to articulate exactly how an additional $2,706.20 in chiropractic services are reasonable and necessary since she had not accessed all the treatments approved by the respondent over the last year and a half. The respondent also relied on Dr. Weisleder’s opinion that the proposed $2,706.20 for chiropractic services was not reasonable and necessary.
28While given the opportunity to do so, the applicant did not file any written reply to the respondent’s submissions. As such, I do not have the benefit of knowing how the May 18, 2016 treatment plan of $2,706.20 submitted by Dr. Okem could be differentiated from all the other treatment plans that have yet to be accessed by the applicant totalling more than $3,500.00. Besides, the description in Dr. Okem’s treatment plan is so generic that it could easily be applied to any type of physical treatment.
29The fact that so many approved treatment plans for similar physical services have yet to be fully accessed undercuts, in my view, the applicant’s submission that a new treatment plan offering yet another round of chiropractic service is reasonable and necessary, as similar physical treatment can be made available through the already approved plans which the applicant can still access.
30As such, I conclude the applicant fails to establish that the treatment plan submitted by Dr. Okem is reasonable and necessary.
Issue 4: Is the applicant entitled to interest for the overdue payment of benefits pursuant to s. 51 of the Schedule?
31As I find that the applicant is entitled to the amount of $1,070 for assistive devices, I therefore find that the applicant is entitled to interest for the overdue payment of this benefit pursuant to s. 51 of the Schedule.
Costs
32In their written submissions, the applicant also asked for costs of the hearing on a substantial indemnity basis. Costs are a discretionary remedy. The applicant has not provided any reasons why she is entitled to costs in this case. Besides, the applicant has not proven successful with all her claims. As such, no costs will be awarded.
ORDER
33The Tribunal orders the respondent to pay $1,070 for assistive devices and interest for the overdue payment of this benefit; and dismisses the other claims for benefits.
Released: January 25, 2018
Avvy Go, Adjudicator
Footnotes
- In the Order dated June 29, 2017 issued by Adjudicator Marzinotto, the date of the treatment plan for the assistive device was noted as May 2, 2015 and the date of denial by the respondent as May 26, 2015. In her Application to the Tribunal, the applicant noted that date of the treatment plan as May 2, 2016 but the date of denial by the respondent as May 16, 2015. The actual dates, as shown on the letter from the respondent and the treatment plan are as follows: the date of treatment plan should be May 2, 2016, and the date of denial should be May 24, 2016. Neither of the parties clarified the confusion about the dates in their submissions. The applicant continued to refer to the date of the said treatment plan as May 2, 2015 in her submissions. The respondent did not mention any of the dates with regard to this treatment plan in its submissions. The confusion about the dates made it difficult for me as an adjudicator to decide whether or not I was even looking at the right treatment plan at all. In the end, I went by the amount and the description of the benefits claimed in order to determine which treatment plan was under dispute in this regard. If I am mistaken in this respect, I expect the parties to advise the Tribunal following the issuance of this decision.