Court File and Parties

Date: 2018-05-28 Tribunal File Number: 17-006160/AABS Case Name: 17-006160 v Aviva Insurance Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Maggie Morgan, Counsel

Held by Written Hearing: March 23, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 24, 2016. She applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010¹ (the "Schedule"). The respondent declined to pay for certain medical benefits, because their examination reports found the treatment plans were not reasonable and necessary.

2The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of these disputed issues. For the reasons to follow, I find the applicant is entitled to receive the disputed medical benefits. The applicant is also entitled to interest in accordance with s. 51 of the Schedule. The applicant is not entitled to an award under O. Reg. 664.

ISSUES

3The disputed treatment plans from Activa Mississauga are as follows:

a. $3,133.06 (less $2,200.00 already approved) for chiropractic services in a treatment plan submitted on March 28, 2016, denied by the respondent on April 18, 2016;

b. $1,597.00 for physiotherapy services in a treatment plan submitted on October 26, 2016, denied by the respondent on December 13, 2016;

c. $869.75 for physiotherapy services in a treatment plan submitted on October 26, 2016, denied by the respondent on December 13, 2016;

d. $2,230.58 for physiotherapy services in a treatment plan submitted on December 13, 2016, denied by the respondent on December 23, 2016; and;

e. $4,261.28 for physiotherapy services in a treatment plan submitted on July 26, 2017, denied by the respondent on August 7, 2017.

4The applicant is also requesting interest and an award under O. Reg. 664.

ANALYSIS

Attachments to Respondent's Submissions

5Before considering the substantive issues before the Tribunal, I will first address the procedural issue raised by the applicant.

6Pursuant to Vice Chair White's order (dated December 20, 2017), the respondent's "submissions and evidence" were due on March 9, 2018. The respondent sent its submissions to the applicant on March 9 by e-mail and fax. However, according to the applicant, the submissions did not include the attachments that are now included with the Tribunal's copy of the respondent's submissions. Rather, the respondent's attempt to send these documents through SecureDocs was unsuccessful. The respondent mailed these documents to the applicant on March 12, 2018. The applicant's reply submissions were then due on March 16, 2018.

7In her reply, the applicant asks that these attachments "are not to be considered in making the final decision as [the respondent] failed to provide them on the required deadline as set out in the rules."

8In response, the respondent filed a motion requesting that its attachments be considered by the Tribunal. Briefly, the respondent argues that: the applicant already possessed the attached documents; SecureDocs provided a confirmation number of the document transfer (meaning that the applicant must have received the attachments); and the applicant was not prejudiced by this "short delay".

9I understand that the delay was frustrating for the applicant. However, a technical error—as opposed to inaction on the part of the respondent—caused the delay. Furthermore, while the applicant did not have as much time to consider these documents as had been originally anticipated, she still received the attachments several days before her reply submissions were due. Finally, the respondent would be severely prejudiced if its evidence was not considered by the Tribunal.

10Taken together, I find that the potential prejudice to the respondent greatly outweighs any prejudice that may have been experienced by the applicant. Therefore, I have considered the respondent's attachments.

11The applicant also noted that the "faxes and letters" from the respondent have been addressed to Loreto Scarola, as opposed to her representative, Jeton Memeti. I have not been provided any context for why this error is prejudicial, so I do not accept it as a reason for dispensing with the respondent's attachments.

Entitlement to Medical Benefits and Parties' Positions

12Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

13Though there is disagreement as to why the applicant was removed from the Minor Injury Guideline, both sides agree that the $3,500.00 financial cap under s. 18(1) of the Schedule does not apply to the present case.

14The disputed treatment plans all involve modalities of physical therapy (e.g., chiropractic services, massage therapy, and physiotherapy). All five plans listed "headache" as the primary impairment faced by the applicant, followed by temporomandibular joint ("TMJ") disorders and sprain/strain of the cervical and thoracic spines. They all noted "pain reduction" as a goal of these treatments.

15In support of her argument that these plans are reasonable and necessary, the applicant points to the clinical notes and records of her family physician and to the psychological assessments from Dr. Judith Pilowsky. Specifically, she submits that these records demonstrate that physical therapy has addressed her physical impairments. The applicant also challenges the findings in the insurer's examination reports by questioning the diagnostic methods used by the examiners.

16The respondent contends that the applicant's reliance on the psychological assessments from Dr. Pilowsky is unfounded, as the medical benefits in dispute concern physical therapy. Therefore, the applicant has not met her evidentiary burden. Rather, the respondent submits that their examination reports demonstrate that physical treatment was not necessary to address her accident-related injuries.

Contemporaneous Medical Records

17I have found that the applicant has met her burden of demonstrating that the disputed medical benefits are reasonable and necessary. Contemporaneous medical records demonstrate that the applicant's primary, physical impairments (i.e., headaches and neck/back pain) improved during the period while she received physical therapy.

18As a means of addressing the psychological impairments stemming from the motor vehicle accident, the applicant has been receiving psychotherapy services under the supervision of Dr. Pilowsky. The clinic has produced assessment reports to track the applicant's progress (both psychological and physical), and so she provided the Tribunal with a series of five assessment reports from August 9, 2016 to November 21, 2017. I have found these reports to be a convincing account of the applicant's physical recovery throughout this period.

19For instance, during the initial assessment report from August 2016, the applicant described her accident-related headaches as frequent and "pounding". Over the course of the assessments to follow, these headaches decreased in both intensity and frequency. The applicant reported that the physical therapies during this period assisted her in addressing this pain.

20This account of the applicant's recovery is corroborated by her family physician's records. That is, during visits on May 17, June 14, July 26, August 24, and November 18, 2016, the family physician noted how physiotherapy was assisting with back pain from the accident. The family physician then stated, in records from visits on May 10 and June 28, 2017, that there was "pain in upper back, very stiff and tense mid and low back pain and straight across the shoulders. Hasn't been to physio since Feb 2017." (Dated June 28, 2017).

21Taken together, this timeline of pain reduction—and then intensification after the treatment ended—satisfies me that the goal of addressing the applicant's primary, physical impairments was forwarded by the therapies proposed in the treatment plans. As such, I find that the medical benefits are reasonable and necessary.

Insurer's Examination Reports

22As noted above, the respondent relies on its examination reports to demonstrate that the proposed therapy was not necessary to address the accident-related injuries.

23First, in a report dated May 18, 2016, Dr. Scott McKenzie diagnosed the applicant with soft tissue injuries: i.e., Whiplash Associated Disorder I, cervical spine injury, and mid back strain. Without an orthopaedic impairment, the treatment plan (submitted March 28, 2016) was deemed "not reasonable or necessary".

24The next two examination reports from Dr. Shawn Henderson and Dr. Gilbert Yee (dated December 8, 2016 and October 2, 2017, respectively) again found that the treatment plans under review were not reasonable and necessary² Specifically, Dr. Henderson concluded that, since "her physical injuries were confined to uncomplicated sprain/strain injuries", the plans under review were not reasonable and necessary. Dr. Yee then concluded that the applicant had "myofascial strains of the thoracolumbar spine." Therefore, considering the treatment provided to date, an "active self-directed exercise program" would be sufficient to address ongoing strains.

25Though I understand that the recommendations of these assessors run counter to my findings, I would highlight that these reports support the conclusions in the treatment plans that the applicant continues to experience strains and sprains in the neck and back. Furthermore, the most recent report (i.e., Dr. Yee's assessment from October 2017) stated that the applicant reported a 50% improvement in her physical condition since starting physiotherapy. This self-reported relief provides further evidence to support my finding that physical therapy has, in fact, supported the treatment plans' stated goal of "pain reduction".

26I would note that Dr. Henderson's report raises the possibility that a workplace accident from December 2014 may be the cause of the ongoing pain, specifically "occasional low back pain leading up to the subject accident." However, beyond the medical documents listed above (which link the motor vehicle accident to the impairments); the applicant's injuries extend beyond "low back pain" to include headaches and sprain/strain of the upper spines.

27In sum, I find the applicant has met her onus of demonstrating, on a balance of probabilities, that the disputed medical benefits are reasonable and necessary. In accordance with s. 51 of the Schedule, the applicant is also entitled to interest, payable with respect to the overdue payment of benefits.

Award under O. Reg. 664

28Section 10 of O. Reg. 664 permits the Tribunal to "award a lump sum of up to 50 per cent of benefits and interest" if the Tribunal "finds that an insurer has unreasonably withheld or delayed payments".

29The applicant submits that the respondent's denial of benefits "caused her condition to significantly deteriorate". Furthermore, these denials were not done in accordance with s. 38(8) of the Schedule, and the adjuster's log notes indicate that these treatments should have been approved. The respondent contends that all of the denials were made in compliance with the Schedule, and that there is "no evidence of any conduct on the part of the insurer that could form the basis of a special award"

30My review of the applicant's medical evidence does not support the argument that these denials caused a significant deterioration in her health. As my review above highlights, her condition has generally improved since the accident.

31In regards to the argument that the respondent violated s. 38(8) of the Schedule, I would note that there are conflicting accounts of whether these violations took place. Regardless, violations of this section cannot—in and of themselves—constitute sufficient grounds to merit an award, since there already exists remedies for these violations under s. 38(11).

32Finally, I would note that the Tribunal was not provided with a copy of the adjuster's log notes. Therefore, I cannot comment on this element of the applicant's case. Even still, I have not been directed to any conduct on the part of the respondent that would support an award under O. Reg. 664.

CONCLUSION

33As detailed above, the applicant has demonstrated her entitlement to the medical benefits in dispute. In accordance with s. 51 of the Schedule, the applicant is also entitled to interest, payable with respect to the overdue payment of benefits. The applicant is not entitled to an award under O. Reg. 664.

Footnotes

1. 1O. Reg. 34/10.
2. 2Dr. Henderson's report reviewed the two treatment plans submitted on October 26, 2016, while Dr. Yee's report reviewed the treatment plan submitted on July 26, 2017. The remaining treatment plan (i.e., the plan submitted on December 13, 2016) was denied by the respondent based on the findings in Dr. Henderson's report.