F.A. v. Aviva Insurance Company, 2018 CanLII 97840

Date: 2018-04-05

Tribunal File Number: 17-003364/AABS

Case Name: 17-003364 v Aviva Insurance Company

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:

F.A.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

Adjudicator: Anna Truong

Appearances: F.A., the Applicant Maciek Piekosz, Counsel for the Applicant Brian Catton, Representative for Aviva Amanda Faulker, Counsel for the Respondent

Court Reporter: Nicole Marcigewski

Heard in writing and in-person on: November 6, 2018

OVERVIEW

1F.A. (the “Applicant”) was involved in an automobile accident on March 21, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), which were denied by the Respondent.

2The Applicant disagreed with the Respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

3The following are the issues to be decided:

1. Is the Applicant entitled to a medical benefit outlined in a partially approved treatment plan dated September 1, 2015, for documentation and a total body assessment in the amount of $399.50?
2. Is the Applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated May 19, 2016, in the amount of $1,708.25?
3. Is the Applicant entitled to interest on any overdue payments?
4. Is the Applicant entitled to an award pursuant to section 10 of Ontario Regulation 664 (“O/Reg 664”), because the Respondent unreasonably withheld or delayed payments?

RESULT

4Based on the totality of the evidence before me, I find the Applicant is entitled to the balance of the treatment plan dated September 1, 2015, but he is not entitled to the treatment plan dated May 19, 2016. Since I found a benefit payable, the Applicant is entitled to all applicable interest. I further find the Applicant is entitled to an award in the amount of 50% of the amount payable plus interest.

ANALYSIS

5A one day in-person hearing was conducted. The Applicant and the adjuster, L.S., both testified and were cross-examined. Both parties submitted written submissions prior to the in-person portion of the hearing. I have reviewed all the submissions and evidence led and I have only summarized what I found relevant to my determination below.

6Sections 14 and 15 of the Schedule provides an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The Applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.

1. Treatment Plan dated September 1, 2015

7The treatment plan dated September 1, 2015, in the amount of $798.50 outlined four items:

1. Documentation for $200;
2. A total body assessment for $199.50;
3. Documentation for $199.50; and
4. Two physiotherapy treatment sessions for $199.50.

8In a letter dated November 21, 2014, the Respondent approved the $200 for documentation and the two physiotherapy treatment sessions. The documentation for $199.50 appeared to be approved as the letter stated, “The costs of completing a progress report in the amount of $199.50 would also be considered reasonable and necessary, as long as a copy of the report is provided to Aviva”.

9An assessment and report was completed and a copy was provided to the Respondent on May 16, 2016. It was submitted as evidence in this hearing. Based on the Respondent’s letter, I find the documentation expense of $199.50 to be payable. The Respondent agreed to fund any progress report as long as a copy was provided and a copy was provided.

10The Respondent argued the report was completed in contemplation of the second treatment plan in dispute. I was not persuaded by this argument for two reasons. First, it logically follows a progress report would contemplate further treatment. That fact alone does not negate the Respondent’s agreement to fund a progress report. Obtaining a progress report is reasonable and necessary where there is an ongoing impairment. A progress report can be a report on the progress of the Applicant’s impairments, or the progress of his treatment. The approval letter is ambiguous about what a progress report includes. Therefore, in the spirit of consumer protection, that ambiguity should be resolved to the benefit of the Applicant.

11Second, the progress report was not completed for the purpose of the second disputed treatment plan, because in the second treatment plan there is no documentation expense for $199.50 or an assessment expense in order to complete that report listed. Therefore, I am not persuaded by the Respondent’s argument the report was completed in contemplation of the second treatment plan in dispute.

12It would go against the consumer protection purpose of the Schedule and undermine the whole accident benefits system if an insurer can approve a benefit and after the insured person has incurred it, renege on that approval and refuse to pay the benefit. The Applicant has incurred the progress report and submitted it to the Respondent. Furthermore, during the cross-examination of the adjuster, she agreed if a progress report was completed and sent, it should be paid for given the Respondent’s letter dated November 21, 2014.

13With respect to the $199.50 for the total body assessment. The Respondent denied this portion of the treatment plan based on the Financial Services Commission of Ontario Professional Services Guideline (“FSCO Guideline”), “which has determined $200 is the maximum fee payable for the completion of an OCF-18, including any required assessments for the completion of that OCF-18”.

14The Respondent argued the total body assessment was for the purpose of completing the treatment plan. Therefore, it is subjected to the $200 limit per the FSCO Guideline. However, as I indicated above, the assessment was completed after the treatment plan was submitted and it was not completed for the purpose of completing the treatment plan. Therefore, the Respondent is mistaken in its reason for denying the assessment.

15Subsection 38(8) states an insurer must give the insured person notice within 10 business days of receiving a treatment plan, “the medical and any other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable or necessary.”

16If an insurer fails its obligation under subsection 38(8), it triggers the consequences in subsection 38(11), which states: “The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).”

17The Applicant argued the Respondent did not provide any medical reasons for denying the total body assessment. Therefore the Respondent has not provided notice compliant with subsection 38(8) and the consequences in subsection 38(11) should be triggered. During the hearing, the adjuster agreed there was no medical reason given for the denial of the total body assessment. I agree no medical reason was given in the letter of November 21, 2014. Therefore, that notice is in non-compliance with subsection 38(8).

18To date, the Respondent has not provided notice compliant with subsection 38(8) of the Schedule and has maintained its initial denial despite now being aware the assessment was not for the purpose of completing the treatment plan. Therefore, the consequences of subsection 38(11) is triggered and the total body assessment is payable.

19For the reasons outlined above, I find the Applicant is entitled to balance of the treatment plan dated September 1, 2015.

2. Treatment Plan dated May 19, 2016

20The Applicant did not apply for accident benefits until March 12, 2014, almost two years post-accident. After the accident, the Applicant underwent an initial course of physiotherapy from January to March 2014. The physiotherapy treatment plan dated May 19, 2016, in the amount of $1,708.25 was completed by Denise Vandermeulen, physiotherapist. It recommends 10 sessions of physiotherapy and other items. In Part 6 of the treatment plan, Ms. Vandermeulen lists the diagnoses as low back pain, sciatica, meralgia paraesthetica, and laceration of muscle(s) and tendon(s) of the rotator cuff of shoulder. This treatment plan was submitted over four years post-accident.

21Both parties made submissions with respect to the correct test to apply for causation. The Applicant submitted it should be the “material contribution” test, while the Respondent submitted it should be the “but-for” test. For the sake of brevity, I will not make a finding as to which is the correct test to apply, because using either test, I find the diagnoses listed in Part 6 of the treatment plan are not accident related.

Shoulders

22In a Disability Certificate (OCF-3) dated March 14, 2014, Dr. Binh Vu, the Applicant’s family physician, only lists neck and left shoulder strains as the Applicant’s accident related injuries. In Dr. Vu’s clinical notes and records, there is a notation of the Applicant’s left shoulder pain improving. The Applicant’s last appointment with Dr. Vu is in June 2012. The Applicant does not visit Dr. Vu again until January 2014, a year and a half later.

23Presumably, the Applicant’s left shoulder strain had resolved, otherwise, I would expect him to continue visiting Dr. Vu. From June 2012 to January 2014, there are no medical records supporting ongoing left shoulder problems as a result of the accident. Furthermore, the Applicant continued to work as an industrial electrician, which is a physically demanding job. From the records, it appears the Applicant sustained a left shoulder strain in the accident, which subsequently resolved.

24With respect to the Applicant’s right shoulder, the clinical notes and records of Dr. Vu indicates the Applicant did not complain of right shoulder pain until March 3, 2014. The onset of this right shoulder pain was caused by the Applicant breaking ice with a shovel, which resulted in his attendance at the [Hospital] on January 29, 2014.

25At the hearing, the Applicant testified he complained of both shoulders hurting equally to Dr. Vu immediately post-accident, but claimed Dr. Vu did not note this in his records. I do not find this plausible. There is a two year gap from the time the Applicant testified he began complaining about his right shoulder and when Dr. Vu began to note his complaints. It would be plausible Dr. Vu could have missed noting the Applicant’s complaint of his right shoulder once or even twice, but it is implausible Dr. Vu could fail to note the Applicant’s complaints of right shoulder pain altogether post-accident.

26Furthermore, after the Applicant’s complaints of left shoulder pain immediately post-accident, Dr. Vu ordered a left shoulder ultrasound in May 2012. It would logically follow, if the Applicant had complained of both shoulders equally, Dr. Vu would have noted both shoulders in his records and would have ordered an ultrasound on both shoulders.

27Therefore, on a balance of probabilities, I find it more likely than not, the Applicant did not make complaints of right shoulder pain to Dr. Vu prior to March 3, 2014. Furthermore, based on the Applicant’s testimony and supporting medical records, I find it more likely than not, the Applicant’s right shoulder injury was caused by the “ice shovel incident” of January 2014.

Low Back Pain

28Dr. Vu’s clinical notes and records indicate the Applicant did not complain of back pain until January 2015, after golfing in the Dominican. This onset is almost three years post-accident and there is a distinct and intervening cause for this back pain. Furthermore, in an MRI report dated September 18, 2015, only degenerative changes unrelated to the accident are indicated. Therefore, I find the Applicant’s low back pain is unrelated to the accident.

Sciatica and Meralgia Parasethica

29With respect to the sciatica and meralgia parasethica, there is no evidence before me to support these conditions were caused by the accident. The onset of these conditions began years post-accident and there are no medical records of complaints in the affected areas shortly post-accident. Furthermore, the Applicant’s sciatica appears to be linked to the degenerative changes in his back.

30The Applicant bears the onus of proving on a balance of probablities his impairments are accident-related in order for this treatment plan to be payable. Based on the evidence before me, I find none of the diagnoses listed in the physiotherapy treatment plan dated May 19, 2016 are accident related. Therefore, the treatment plan is not reasonable and necessary and nothing is payable.

3. Interest

31Since I found the balance of the treatment plan dated September 1, 2015 payable, the Applicant is entitled to all applicable interest.

4. An Award Pursuant to O/Reg 664

32Section 10 of O/Reg 664 states an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. The Applicant is seeking an award pursuant to section 10, because he alleges the Respondent unreasonably withheld or delayed payment of benefits. The threshold for an award under O/Reg 664 is very high. In this case, I find the threshold has been met.

33The reason I am granting an award is due to the handling of the first treatment plan. The Respondent approved $199.50 for the progress report and explicitly stated it would pay if a copy of said report was submitted. The report was submitted, but the Respondent refused to pay. Furthermore, once it became clear the total body assessment proposed was not for the purpose of completing the initial treatment plan, especially since it was incurred after the treatment plan was submitted, the Respondent should have provided an updated notice compliant with subsection 38(8). Instead, the Respondent unreasonably maintained its initial denial.

34The expense amounts were nominal and both were incurred. There was a clear approval of one expense and an unclear denial of the second. The Respondent should have paid these expenses upon clarification. It was unreasonable for this treatment plan to proceed to a written and a one-day in-person hearing. There is very little behaviour that can be considered more unreasonable than withholding payment of an approved expense. For these reasons, I am inclined to award the maximum 50% pursuant to section 10 of O/Reg 664. Therefore, the Applicant is entitled to an award equivalent to 50% of the amounts owing plus interest.

CONCLUSION

35For the reasons outlined above, I find the Applicant is entitled to the balance of the treatment plan dated September 1, 2015, plus interest and an award equivalent to 50% of the balance plus interest. I further find the Applicant is not entitled to the second treatment plan in dispute.