Tribunal File Number: 17-007626/AABS
Case Name: 17-007626 v Aviva Canada Inc.
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 Canada Inc.
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Aline Avanessy & Chris Rizzo
Counsel for the Respondent: Aimee Draper
Written Hearing on: June 4, 2018
OVERVIEW
1The applicant was injured in a rear-end vehicle collision on February 21, 2015. As a result of the accident, she suffered injuries to her neck, shoulders and back, as well as headaches, sleep difficulties and psychological impairment. [The applicant] sought benefits from the respondent, Aviva Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2[The applicant]’s application for benefits was denied by Aviva on the grounds that the injuries sustained were predominately minor injuries, as defined by the Schedule, and are therefore treatable under the Minor Injury Guideline (MIG). [The applicant] disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. This initial application was later withdrawn before a hearing took place.
3[The applicant] filed a second application with the Tribunal on November 1, 2017. At the case conference between the parties, Aviva approved a series of treatment plans, conceding that [the applicant]’s injuries fall outside of the MIG. Although the parties were able to resolve several of the issues in dispute, the remaining issues proceeded to this written hearing.
ISSUES TO BE DECIDED
4The following are the issues to be decided, as per the case conference order of Adjudicator Baker, dated February 15, 2018:
i. Is the applicant entitled to receive a medical benefit for assistive devices, in the amount of $656.53, that was recommended by Scarborough Physiotherapy in a treatment plan submitted to the respondent on April 18, 2016 and denied on April 28, 2016?
ii. Is the applicant entitled to receive a medical benefit for chiropractic treatment, in the amount of $2,471.80, that was recommended by Myo Health Rehabilitation and Wellness in a treatment plan submitted to the respondent on November 9, 2016 and denied on November 22, 2016?
iii. Is the applicant entitled to $1,370.51 compensation for a functionality assessment by Scarborough Physiotherapy, a request that was submitted to the respondent on March 9, 2016 and denied on March 18, 2016?
iv. Is the applicant entitled to a special award under regulation 664?
v. Is the applicant entitled to interest on the delayed receipt of benefits?
RESULT
5I find on the evidence that [the applicant] is entitled to the medical benefits for assistive devices, chiropractic treatment and the functionality assessment, as they are all reasonable and necessary. I find that interest on overdue benefits is also payable in accordance with the Schedule, however, [the applicant] is not entitled to a special award.
ANALYSIS
Reasonable and Necessary
6[The applicant] bears the onus of establishing that the disputed plans are reasonable and necessary, pursuant to sections 14, 15 and 25 of the Schedule. I find that [the applicant] has satisfied her onus to prove, on a balance of probabilities, that all of the treatment plans are reasonable and necessary for the reasons that follow.
Assistive devices
7The s. 44 IE report and addendum of Dr. Belfon, arranged by Aviva, indicates that the devices listed in the OCF-18—a back support, a personal massager, a TENS machine and a tube of Biofreeze—are not reasonable and necessary because [the applicant] is engaged in passive modalities and self-directed home-based exercise. I disagree.
8I find that denying a 66 year old self-employed applicant with ongoing pain complaints of the basic tools necessary to provide herself with treatment and comfort at home, at a reasonable price point, is unreasonable. I find that this is especially so given that Aviva later removed [the applicant] from the MIG. In my view, the devices—as well as the relatively meagre cost associated with providing them—are minor allowances on Aviva’s part to potentially address the pain experienced by [the applicant] in her day to day work and home life.
9Further, [the applicant] works in a sedentary job and still complains of pain two years post-accident. As Aviva took the position that formal treatment is not necessary and that her pain could be manageable with a home-based exercise plan, I find it reasonable and necessary that Aviva also provide [the applicant] with the devices and modalities to complement that home-based plan.
Chiropractic treatment
10Contrary to Aviva’s position, I find that it is reasonable to allow [the applicant] to pursue alternative forms of pain relief and treatment where other avenues—in this case, physiotherapy—have plateaued.
11In her affidavit, [the applicant] indicates that she found physical treatment to be helpful in reducing pain and that her pain became worse as treatment was reduced. Aviva relies on the report of Dr. Belfon as evidence that chiropractic treatment is not reasonable because [the applicant]’s recovery has plateaued under physiotherapy and there is no medical evidence to suggest that it is necessary. I disagree. I see no reason to believe that chiropractic treatment cannot be effective for pain relief simply because [the applicant]’s physiotherapy plateaued and she discharged herself from that particular treatment. The Functional Abilities Evaluation recommends that [the applicant] explore alternative methods of rehabilitation. Considering that [the applicant] is out of the MIG, it is reasonable to allow her the opportunity to pursue other forms of treatment on the basis that she still has pain over two years post-accident.
12Dr. Belfon also opined that [the applicant] has reached maximum medical recovery. Although this may be true, I find that pain relief is a legitimate goal for treatment and that an attempt at easing the pain of a 66 year old self-employed seamstress is reasonable. In my view, the scope of the plan and the goals of treatment are proportional to [the applicant]’s injuries and ongoing pain and are therefore reasonable and necessary.
Functional Abilities Evaluation/Assessment
13By all accounts, [the applicant] complains of pain consistently. A factor in MIG determination is the applicant’s functional impairment at work and in their home life. When Aviva denied the treatment plan on the basis that [the applicant]’s injuries were within the MIG, it was reasonable for [the applicant] to seek an evaluation on how her injuries functionally impair her life at work and at home in order to escape the MIG. That Aviva eventually removed [the applicant] from the MIG suggests, in my view, that the evaluation was necessary. Although [the applicant] is self-employed, an examination of her functionality in her workspace and the potential for her to re-injure are necessary considerations to explore.
14Further, I find that [the applicant] returned to her work immediately after sustaining her injuries out of necessity and not because her pain is insignificant. This is confirmed in her affidavit, where [the applicant] indicates that she is the only income earner in the household and has considered selling her business due to the pain she experiences as a result of her work. In my view, [the applicant]’s determination to work through pain renders a functional abilities evaluation a necessity to ensure that she does not re-injure or continue to work through preventable pain.
15In addition, [the applicant] indicates that she was never sure what movements in her day to day work were causing her the type of pain that she was experiencing. She indicates that the evaluation was helpful for her because it identified which of her movements were causing her pain and educated her on how to possibly reduce that pain. In my view, educating [the applicant] on her limitations and identifying preventative measures is necessary to manage her pain and could arguably prevent additional treatment costs in the future. The goals of the treatment plan are proportional to the injuries and the cost is in line with industry standards. As a result, I find that the functional abilities evaluation is reasonable and necessary.
Award
16[The applicant] seeks an award under s.10 of O. Reg. 664, arguing that Aviva’s delay in producing her accident benefits file was unreasonable, conducted in bad faith and impacted counsel’s ability to provide timely legal advice. I disagree. Although s. 10 permits the Tribunal to award a lump sum to a party if the opposing party has unreasonably withheld or delayed payments, I find that this minor delay did not prejudice [the applicant] or prevent [the applicant] from receiving benefits to which she is entitled.
Interest
17As I have determined that benefits are overdue, I find that [the applicant] is entitled to interest in accordance with s. 51 of the Schedule.
CONCLUSION
18For the reasons outlined above, I find that [the applicant] is entitled to the medical benefits for assistive devices, chiropractic treatment and the functional abilities evaluation. Accordingly, interest is payable on all overdue benefits. [The applicant] is not entitled to an award.
Released: July 30, 2018
Jesse A. Boyce, Adjudicator