17-005667 v Aviva Insurance Canada
Tribunal File Number: 17-005667/AABS
Case Name: 17-005667 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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: M. Aftab Alam
Counsel for the Respondent: Alexander D. Hartwig
Written Hearing on: April 3, 2018
OVERVIEW
1The applicant was injured in an automobile accident on April 24, 2015 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2[The applicant] applied for medical benefits and costs of examinations that were denied by Aviva on the grounds that [the applicant] was placed into the Minor Injury Guideline (MIG) and that the treatment and assessment plans were not reasonable and necessary. [The applicant] disagreed with Aviva’s decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. The parties participated in a case conference but were unable to resolve the issues, and proceeded to this hearing.
ISSUES TO BE DECIDED
3The following are the issues to be decided, as per the case conference order of Adjudicator Purdy dated December 4, 2017:
I. Is the applicant entitled to receive a medical benefit in the amount of $3,792.84 for physiotherapy services recommended by Airport Rehab Centre in a treatment plan that was submitted on August 10, 2015, denied by the respondent on August 31, 2015?
II. Is the applicant entitled to receive a medical benefit in the amount of $2,540.91 for physiotherapy services recommended by Airport Rehab Centre in a treatment plan that was submitted on December 17, 2015, denied by the respondent on January 22, 2016?
III. Is the applicant entitled to receive a medical benefit in the amount of $1,902.48 for physiotherapy services recommended by Airport Rehab Centre in a treatment plan that was submitted on August 31, 2016, denied by the respondent on October 3, 2016?
IV. Is the applicant entitled to receive payment for the cost of examination in the amount of $1,318.00 for an in home assessment, performed by Pearson Medical Assessment Centre Inc., submitted to the respondent on October 27, 2015, denied by the respondent on November 3, 2015?
V. Is the applicant entitled to receive payment for the cost of examination in the amount of $2,000.15 for a psychological assessment, performed by Pearson Medical Assessment Centre Inc., submitted to the respondent on December 7, 2015, denied by the respondent on December 10, 2015?
VI. Is the applicant entitled to receive payment for the cost of examination in the amount of $1,988.80 for an impairment assessment, performed by Pearson Medical Assessment Centre Inc., submitted to the respondent on July 28, 2017, denied by the respondent on August 22, 2017?
VII. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline?
VIII. Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of income replacement benefits?
IX. Is the applicant entitled to receive interest on the overdue amounts?
RESULT
4I find on the evidence that [the applicant] suffers from chronic pain that entitles him to treatment beyond the MIG.
5I also find that [the applicant] is entitled to all of the medical benefits for physiotherapy services in the OCF-18’s submitted by Airport Rehab Centre as they are reasonable and necessary.
6I find that [the applicant] is entitled to the cost of examination for the impairment assessment as it is reasonable and necessary. [The applicant] is not entitled to the costs of examination for the in-home assessment or psychological assessments, as they are not reasonable and necessary.
7I find that an award and costs are not appropriate.
ANALYSIS
Applicability of the Minor Injury Guideline
8I find that the medical evidence indicates that [the applicant] suffers from chronic pain that cannot be characterized as falling within the MIG.
9The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3 of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. Applying Scarlett v. Belair Insurance,2 the applicant must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.
10On its face, the injuries listed in the OCF-3 of April 28, 2015, prepared a few days after the accident, fall within the definition of minor injury, as they are sprain and strain-type injuries or unrelated to the accident: headache, sleep apnea, sprain and strain of thoracic spine, sprain and strain of other and unspecified parts of lumbar spine and pelvis and other sprain and strain of cervical spine. I find that these injuries, considered alone, are minor, however, [the applicant] argues that his injuries have worsened post-accident and submits that his pre-existing conditions, psychological impairment and chronic pain remove him from the MIG.
Do any of [the applicant]’s pre-existing conditions, psychological impairment or chronic pain remove him from the MIG?
11Yes. I find that [the applicant] has shown, on a balance of probabilities, that he suffers from chronic pain and should be entitled to treatment beyond the limits of the MIG.
12On the evidence, [the applicant] has shown that his chronic pain causes functional impairment based on the severity and persistence of pain over two years post-accident and its effect on his daily and work life. I rely on clinical notes and records from [the applicant]’s physician, Dr. Kular, the logs from Airport Rehab Centre, the reports of various assessors, as well as the submitted OCF-18’s and the Report of Dr. Nathanson as evidence of [the applicant]’s consistent reporting of pain and functional impairment.
13I agree with Dr. Nathanson that [the applicant] meets the threshold for chronic pain based on the Canadian Institute for Pain and Disability definition and his thorough assessment of [the applicant] All of the diagnoses of chronic pain in the file articulate, in my view, that the level of pain over two years post-accident is consistent and continuous, that the effect on [the applicant]’s functioning has gotten worse and that the pain can be made bearable with physiotherapy. Although I disagree with [the applicant]’s submission that “pain lasting for a long period or more than the period indicated in the MIG itself” is proof that the pain has become chronic and automatically removes an applicant from the MIG, I do find that there is enough evidence to show, on a balance of probabilities, that [the applicant]’s pain is chronic enough in nature to cause impairment—his limited range of motion in his neck, frozen shoulder, the consistent pain in his shoulder, lower back and neck—and that it would be reasonable to remove him from the MIG in order to seek additional treatment.
The medical benefits for physiotherapy
14Having determined that [the applicant]’s chronic pain removes him from the MIG, I find that the medical benefits in the amounts of $3,792.84, $2,540.91 and $1,902.48 for physiotherapy services are also all reasonable and necessary in order to address [the applicant]’s consistent reports that physiotherapy treatment helped reduce his pain.
15The OCF-18 dated August 10, 2015 includes 15 sessions each of active therapy and rehab and seven massage sessions over the course of an eight week period. I consider the plan’s goal of pain reduction to be reasonable, given [the applicant]’s chronic pain two years post-accident and the reports that previous, similar treatment resulted in decreased pain in [the applicant]’s neck, shoulders and lower back. Accordingly, the scope and cost of the treatment plan is proportional to [the applicant]’s needs and it is therefore reasonable and necessary.
16Similarly, I find the medical benefits for physiotherapy in the OCF-18’s dated December 17, 2015 and August 31, 2016, respectively, are reasonable and necessary because they continue the services provided for in the August 10, 2015 treatment plan and mirror the goals, while ramping down the frequency and cost of treatment as [the applicant] moves further away from the date of accident and, presumably, closer to his maximal recovery. In my view, the plans are a reasonable, proportional approach and timeline to determine if there is any utility in continuing treatment.
The costs of the examinations
17I find that [the applicant] is entitled to the cost of examination in the amount of $1,988.80 for the impairment assessment as it is reasonable and necessary. [The applicant] is not entitled to the costs of examination for the in-home assessment or psychological assessments, as they are not reasonable and necessary.
18I find Dr. Nathanson’s Function/Impairment Assessment report to be a comprehensive examination of the impairments and pain that [the applicant] is experiencing. While portions of the report rehashed information found elsewhere in the file, I found the detailed, objective measurements of [the applicant]’s functional impairment in his neck, shoulders and back captured the elements of chronic pain that are often difficult to measure. On this report, I was better able to understand the severity of [the applicant]’s pain and his functional limitations two years post-accident, which provided important context for the OCF-18’s and the requested treatment. Further, the cost of the examination and report is reasonable and in line with the parameters of the Schedule and the various costs Guides. As a result, I find that it is reasonable and necessary.
19I find that the cost of examination for a psychological assessment is not reasonable and necessary. In submissions, [the applicant] contends that Dr. Mills’ diagnosis of DSM-5 automatically takes him out of the MIG. However, aside from Dr. Mills’ Report—which was seemingly prompted on the recommendation of a chiropractor—I find that there are few, if any, psychological complaints in the file or in [the applicant]’s treatment notes dating back to 2008. Dr. Syed’s psychological assessment revealed no accident-related psychological impairment and no objective evidence to support Dr. Mills’ diagnosis. Given the dearth of evidence of a psychological impairment in the rest of the file, I find that the cost of this examination is not reasonable and necessary.
20I also find that the cost of examination for the in-home assessment is not reasonable and necessary. Although I find that [the applicant] suffers from chronic pain, chronic pain was not identified as an injury in the OCF-18, which also failed to address any pain concerns specifically and was generic in nature, listing the daily limitations only as “no heavy lifting, bending or twisting activities.” Further, as evidence that the assessment is reasonable and necessary, [the applicant] references the language in the OCF-18 and cites two letters from his family physician, Dr. Kular, one of which indicates that he should not return to work while the other suggests he seek facility-based treatment. In my view, this evidence does not meet his onus. Although [the applicant] likely experiences pain in some of his daily activities due to his chronic pain, references to home restrictions in the file are sparse, he is independent in his personal care needs and no home safety issues were identified. As a result, I do not find the cost of examination for the in-home assessment reasonable or necessary.
Is [the applicant] entitled to an award under s. 10 of O. Reg. 664?
21[The applicant] submits that he is entitled to an award because Aviva failed to pay a non-earner benefit. Aviva submits that [the applicant] is claiming an award, without proof or evidence, for Aviva failing to make a payment in relation to non-earner benefits which are not actually in dispute and of which $2,590.00 have been paid. After reviewing the issues in the Case Conference Order agreed upon by the parties, I find that Aviva is correct. Accordingly, I find that there is no evidence to substantiate an award.
Is Aviva entitled to costs in this proceeding?
22Rule 19.1 of the Tribunal’s Rules of Practice and Procedure permit me to award costs when a party has acted unreasonably, frivolously, vexatiously or in bad faith. Aviva submits that [the applicant]’s refusal to comply with Adjudicator Purdy’s order to produce the complete accident benefits file from [the applicant]’s 2009 accident, combined with false and vexatious claims in his submissions, amount to bad faith sufficient to garner costs. [The applicant] submits that the file has since been provided and submits that costs should not be awarded. I decline to order costs for either party.
Interest
23[The applicant] is entitled to interest on the payment of any overdue benefits in accordance with s. 51 of the Schedule.
CONCLUSION
24For the reasons outlined above, I find that:
a. I find [the applicant] suffers from chronic pain that entitles him to reasonable and necessary treatment beyond the MIG limits;
b. [the applicant] is entitled to all of the medical benefits for physiotherapy services recommended in OCF-18’s by Airport Rehab Centre;
c. [the applicant] is entitled to the cost of examination for the impairment assessment, performed by Pearson Medical Assessment Centre Inc.;
d. [the applicant] is not entitled to the cost of examinations for the psychological assessment or in-home assessment as neither is reasonable and necessary;
e. I decline to order an award or costs in this matter;
f. [The applicant] is entitled to interest on the payment of overdue benefits.
Released: June 5, 2018
________________________
Jesse A. Boyce, Adjudicator