Tribunal File Number: 17-005176/AABS
Case Name: 17-005176 v Aviva General Insurance
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:
Applicant
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES
Michael Wentzel, Paralegal for the Applicant
Robert Bowman, Counsel for the Respondent
Heard in Writing: December 13, 2017
OVERVIEW
1[The applicant] ("the applicant") was involved in an automobile accident on September 30, 2015 ("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 by Aviva ("the Respondent").
DISPUTED BENEFITS
3The issues to be decided by the Tribunal are:
- Is the applicant entitled to receive a medical benefit for services, recommended by Health Plus Rehab Centre for the following:
a. $1,050.00 for physiotherapy services, as detailed in a treatment plan dated February 23, 2017, denied by the respondent on March 29, 2017?
b. $1,502.00 for physiotherapy services, as detailed in a treatment plan dated August 15, 2016, denied by the respondent on August 29, 2016?
Is the applicant entitled to payments for the cost of examinations in the amount of $2,410.00 for an orthopaedic assessment, recommended by All Health Medical Centre, as detailed in a treatment plan dated August 26, 2016, denied by the respondent on March 29, 2017?
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?
Is the applicant entitled to interest on any overdue payment of benefits?
FINDINGS
4The applicant has not proven that any of the medical benefits claimed are reasonable and necessary. Her appeal is not allowed, with the exception noted below.
5The applicant is entitled to be paid her claim for the medical benefit set out as issue 1.b. above, because the respondent's explanation of benefits (EOB) pertaining to that claim was deficient.
6The applicant's request for an award is denied.
REASONS
Are the disputed treatment and assessment plans reasonable and necessary?
7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary and that are incurred as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any treatment or assessment plan ("OCF-18") is reasonable and necessary.3
Issues 1(a) and (b): Physiotherapy Treatment Plans
8The applicant has not met the onus on her to show that the proposed physiotherapy OCF-18s are reasonable and necessary.
9The parties do not argue about the soft-tissue injuries sustained by the applicant in the accident: WAD I4, sprains and strains of the cervical and lumbar spine with resultant pain, possible sprain and strain of the pelvis.
10The respondent disputes whether or not the applicant's left-knee impairments, which are addressed in the OCF-18s, and which were eventually treated with arthroscopic surgery, arose from the accident.
11The applicant's claim is that her left knee impairment was aggravated by the accident, and her medical evidence is based on an orthopedic assessment by Dr. Osama Benmoftah, orthopedic surgeon, dated September 15, 2016, who diagnosed myofascial strain to the left knee which he characterized as exacerbating pre-existing left knee pain. Dr. Benmoftah in fact carried out the assessment disputed as issue 2.
12I have determined that that the applicant has not proven that her left knee impairment was caused or aggravated by the accident, for the following reasons:
i. An MRI of the applicant's left knee, taken on October 10, 2016 at the request of Dr. Sandor Gyomorey, the applicant's orthopedic surgeon, indicates a radiologic finding of moderately severe tricompartmental osteoarthritis and a Baker's cyst, which arise from degenerative joint disease, and a meniscal tear, which can be associated with degeneration. Nothing in the MRI report suggests the accident or indeed any trauma as causation or aggravation. The applicant does not refute the MRI report findings.
ii. Her OCF-18s appear to simply assume that her left knee impairment is accident-related. Nothing in them addresses causation or aggravation.
iii. Dr. Louis Weisleder, orthopedic surgeon noted in his insurer's examination (IE) report of May 29, 2017 that the applicant's left knee problems arose and were being treated two years before the accident. This statement was not denied by the applicant, and is corroborated by Dr. Osama Benmoftah in his OCF-18, dated August 23, 2016.
iv. Earlier treatment plans approved by the respondent did not mention knee problems. Explicit mention of left knee impairment in treatment plans begins with the disputed OCF-18 of February 23, 2017, after the applicant had undergone arthroscopic surgery by Dr. Gyomorey on December 5, 2016.
v. I find it not credible that the disability certificates ("OCF-3s") and CNRs from her family physician and treating physiotherapists in October and November of 2015 – the weeks following the accident – would fail to mention aggravation of the applicant's left-knee condition arising from the accident. There is no explanation of this or alternatively of why the onset of aggravated symptoms would be delayed.
13The respondent is not obliged to pay for the treatment of impairments that were not caused or aggravated by the accident. The applicant cannot add unrelated impairments to her treatment or assessment plans.
14I find that any treatment plan or portion thereof that focuses on treating the applicant's left knee is not covered by her accident benefits.
15It is open to the Tribunal to determine that a treatment and assessment plan is partially reasonable and necessary. In a case like this one with distinct and discrete injuries, where the causation of only one of the injuries is contested, such an approach would be reasonable, fair and effective.
16I cannot find any basis for a determination of partial entitlement for the following reasons:
i. The applicant has not provided me with any information that would assist me in determining what portion of any of her treatment and assessment plans are or were associated with her left knee impairment. Where the left knee impairment is expressly mentioned in her plans, it appears to me that the assessor has simply assumed that her knee problems arose from the accident because it is not noted as a pre-existing condition or post-accident injury, but integrated into the notes on proposed treatment goals. As I have found, the medical evidence indicates that the left-knee impairment is not accident related.
ii. My reading of the disputed OCF-18 dated February 23, 2017 by Nimisha Patel, physiotherapist, is that the applicant's left knee function was improving as the result of previous treatments, implying to me that the earlier disputed treatment plan by Dr. Jaspreet Sandhu, chiropractor, dated August 15, 2016 and actually consumed by the applicant, included work on the left knee, whether or not such treatment was noted.
iii. The IE conducted by Dr. Weisleder indicates that the proposed treatment plans are not reasonable and necessary. His opinion is persuasive to me because it was based on in-person physical examination and interview of the applicant, and it explained why her impairments would not benefit from the proposed treatments or orthopedic assessment. The IE focused properly on the applicant's WAD I and spinal sprains and strains once Dr. Weisleder established that her left knee impairment was not accident-related.
iv. The applicant's criticism of Dr. Weisleder's report offers no persuasive critique of his clinical methodology. The applicant's other complaints about the IE are without merit:
a. The applicant asked me to discredit the IE report because the assessor did not review clinical notes and records (CNRs) from health providers. I do not find Dr. Weisleder's failure to review CNRs from the applicant's family doctor and other service providers to be a material flaw in his approach, as suggested by the applicant. My own reading of those CNRs provided me with no sense that Dr. Weisleder missed any information that would have influenced an assessment of the injuries actually caused by the accident.
b. The applicant offers no evidence or jurisprudence to show that review of previous medical records is an essential part of an IE, or how much weight such reports must be given by an IE assessor.
c. The applicant contends that the respondent was negligent in not requiring an amendment to its IE reports after she was removed from the MIG. This contention is meritless because:
Dr. Weisleder provides medical reasons for denial on a "not reasonable and necessary basis", based on the injuries he observed, reasons which apply to non-MIG treatment plans and that are persuasive to me in the absence of stronger contradictory evidence. The disputed treatment plans were not denied solely of the basis of the MIG.
The applicant was removed from the MIG on the basis of uncontested psychological injury, which is irrelevant to the issue of whether physiotherapy or other mechanical modalities for treating physical impairments are reasonable or necessary.
The applicant's removal from the MIG because of psychological injury does not render the conclusion or description of "minor injuries" with respect to her physical injuries clinically invalid. It does not trigger an obligation on the respondent to reassess the applicant medically. It does not entitle her to benefits for treatments that she has not shown to be reasonable and necessary.
17In summary, the applicant's evidence does not prove that, on balance, the claimed physiotherapy treatment plans are reasonable and necessary.
Did the respondent give proper notice of denial for the OCF-18 in issue 1(b)?
18The applicant asserts that the respondent has never denied the OCF-18 for physiotherapy dated August 15, 2016. She had incurred the cost of the plan and argues that she is entitled to be paid the full amount of the claim plus interest.
19I find that the applicant is mistaken. Aviva did give her an explanation of benefits (i.e. notice of denial) and I find that the respondent is liable to pay her for the August 15th OCF-18.
20Under 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.
21Under 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 11th business day after the insurer received the application, and ending on the day the insurer gives the notice required by s. 38(8).
22In support of her argument, the applicant states that:
i. The respondent's HCAI5 response summary issued in response to her claim indicates "unable to consider as per our insurer's exam."
ii. The respondent has never provided her with a formal letter confirming its refusal to pay the disputed OCF-18 dated August 15th.
23The respondent submits as evidence a letter it sent to the applicant dated August 29, 2016. The letter expressly addresses the disputed OCF-18 dated August 15, 2016. It clearly stated that the respondent refused to pay the disputed treatment plan, and gave reasons for the denial, and included notice of the applicant's right of appeal to the Tribunal.
24However, I find that the respondent's explanation of benefits – that is, its notice of denial – was insufficient. My reasons for this finding are:
i. No medical reason for refusal was given. The respondent linked its determination that the proposed treatment plan was not reasonable and necessary to the applicant's failure to attend an IE previously scheduled in relation to different, earlier claims.
ii. I find that the respondent gave an invalid reason that was misleading to the applicant and frustrated the purpose of the notice to provide the applicant with accurate information on which to base her decisions. The respondent effectively stated to the applicant that it would refuse to even consider the August 15th claim because of her failure to attend an IE scheduled in June 2015 to assess another, different and earlier claim. No such right exists: it could have and should have issued a new, proper notice of examination ("OCF-25") in relation to the August 15th claim and notified the applicant that it would not pay that claim until the IE was done. The respondent further stated that no new IEs would be scheduled until the applicant provided a written commitment to pay no-show fees for any missed or cancelled IEs.
iii. It is well-established that to be effective, all notices governed by the Schedule must be clear and readily understandable to the unsophisticated person. I found the August 29th notice confusing, and I find that its imprecise and unexplained references to sections of the Schedule would confuse or at least fail to help the typical reader.
iv. The respondent's OCF-18 fax back on this benefit – worded exactly as the applicant submits, with boxes unchecked and unsigned by the adjuster -- was confusing, provides no support to its purported basis for refusal, and I find that it militates against the respondent's claim that it gave sufficient notice of claim.
25Because the respondent's explanation of benefits dated August 29, 2016 was insufficient and not in accordance with the Schedule, I find that the respondent is liable to pay the cost of the August 15th OCF-18 plus interest, as prescribed by s.38 of the Schedule.
Issue 2: Orthopedic Assessment Plan
26The applicant has not met the onus on her to show that the proposed orthopedic assessment is reasonable and necessary.
27My reasons for this finding are the same as for the physiotherapy treatment plans with the following additional reasons:
i. The applicant fails to show why an insurer-funded orthopedic assessment was reasonably necessary when she had been under the active care of an orthopedic surgeon, Dr. Gyomorey since March 2016 – care that was continuing, as noted by Dr. Benmoftah.
ii. Dr. Benmoftah's conclusion that the applicant's knee pain was aggravated by the accident is frankly cursory and assumptive in tone and is inconsistent with the evidence I canvass in para, 14v. above. I do not find his evidence with respect to aggravation of the applicant's left knee condition convincing.
iii. As with the treatment plans, the assessment plan is not segmented in a way that enables me to consider partial entitlement.
28The proposed orthopedic assessment is denied.
Award
29Section 10 of Regulation 664 ("the Regulation") 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.
30Having denied the applicant's claims, I have no basis for determining that the insurer unreasonably withheld or delayed any payments.
Request for Interest
31Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
32In this case, payments are not overdue and no interest is owed.
CONCLUSIONS
33The applicant has not proven her entitlement to the treatment plans that she claims. Her appeal is denied.
34The applicant's claim for payment of the physiotherapy treatment plan is granted because the respondent failed to provide her with an EOB that complies with the Schedule.
35The applicant's request for an award is without merit and is dismissed.
Released: May 28, 2018
Christopher A. Ferguson, Adjudicator
Footnotes
- O.Reg. 34/10
- R.R.O. 1990, Reg. 664
- Scarlett v. Belair, 2015 ONSC 3635
- i.e. whiplash associated disorder (WAD) I
- i.e. Health Care for Auto Insurance online invoicing and payment system.