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:
[O.R.O.]
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Shannon Braun
Appearances:
For the Appellant: Jeton Memeti, Paralegal
For the Respondent: Nora Refai, Counsel
Heard: In Writing May 21, 2019
OVERVIEW
1O.R.O. (“the applicant”) was injured in an automobile accident on June 2, 2016 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute when his claims for benefits were denied by Aviva.
2The applicant was removed from the Minor Injury Guideline (MIG) on November 16, 2016. A case conference was held but the parties were unable to resolve the issues and, thus, proceeded to this written hearing.
ISSUES IN DISPUTE
3The issues in dispute were outlined in the January 21, 2019 Case Conference Order as follows:
i. Is the applicant entitled to a medical benefit in the amount of $3,171.00 for chiropractic treatment, recommended by Complete Rehab in a treatment plan dated August 24, 2017 and denied by the respondent on September 24, 2017?
ii. Is the applicant entitled to a medical benefit in the amount of $564.05 for physiotherapy treatment, recommended by Complete Rehab in a treatment plan denied by the respondent on September 18, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $200.00 for the cost of a disability certificate, submitted in an OCF-3 and denied by the respondent on August 30, 2017?
iv. Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant withdrew issue number ii. in his written submissions to the Tribunal.
RESULT
5I find the applicant has not established on a balance of probabilities that the treatment plan at issue is reasonable and necessary, nor has he established that the cost of the disability certificate should be borne by the respondent. Consequently, he is not entitled to interest, as there are no amounts owing to him. Finally, I was not persuaded that the respondent’s adjusting of the claim warrants an award under Ontario Regulation 664.
ANALYSIS
6In assessing the applicant’s entitlement to the medical benefits sought, I am guided by section 15(1) of the Schedule, which states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
7The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.
Chiropractic treatment plan
8The applicant argues the proposed treatment plan is reasonable and necessary, because he continues to seek out such treatment in an effort to experience further recovery from his accident-related injuries and finds the treatment claimed to be beneficial.
9In support of his position, he relies on an OCF-18, dated August 24, 2017, completed by Dr. Rahim Jessa, chiropractor, from Complete Rehab Centre. This treatment plan notes that the applicant reports:
…continued pain in his neck, bilateral shoulders, mid-back, lower back and chest. Pain is aggravated with prolonged sitting/standing, bending, lifting, carrying objects, pushing/pulling tasks, deep breathing, coughing and sneezing…
10The proposed treatment includes an active functional restoration program, massage therapy and acupuncture, with stated goals of: achieving decreased pain; increased range of motion, strength, cardiovascular fitness levels, endurance and flexibility; improved motor control of the lumbopelvic and cervicothoracic muscles, resulting in a return to activities of normal living and pre-accident work activities. In addition, Dr. Jessa indicates under the “Additional Comments” heading:
…[the applicant] reports that therapy has been progressing. He feels better when attending therapy and therapy is advised to continue to tolerance.
11The applicant also relies upon clinical notes and records of his family physician, Dr. Praveen Bansal. Dr. Bansal’s notes make several references to the applicant’s complaints of ongoing/continual back pain, shoulder pain, neck pain, etc., from immediately after the accident in June 2016 to January of 2019, as well as a prescription for physiotherapy dated July 26, 2017.
12Additionally, the applicant points out that clinical notes and records of sessions with his psychologist, Dr. Pilowsky, include multiple corroborative references of reports of persistent physical pain resulting from his accident-related injuries between December 2016 and September 2017.
13The applicant submits that the treatment sought is beneficial and, in his reply, indicates that he continues to seek treatment for his ongoing injuries, noting that although he has recovered to 60%, no plateau has been reached and he would like to receive further treatment in order to get 100% better.
14The respondent submits there is no evidence to support the applicant’s assertion that he requires ongoing physical therapy for injuries arising from the June 2, 2016 motor vehicle accident and that the additional chiropractic treatment sought is not reasonable and necessary. It is noted that the respondent already approved a total of three prior chiropractic and massage therapy treatment plans and that fifteen months after the accident, the applicant reported to the Insurer’s Examination (IE) assessor that his physical treatment efficacy had reached a plateau.
15The respondent relies upon the report of the IE assessor, Dr. Frank Loritz, dated October 23, 2017. In the report, Dr. Loritz provided the following summary of the applicant’s post-accident symptoms and treatment:
[The applicant] reported developing painful symptoms in his neck, shoulders, low back and left knee as a well as dizziness as a consequence of his accident. He was initially assessed by his family physician, Dr. Praveen Bansal, but no diagnostic imaging was arranged. He stated that he declined a referral to a pain management clinic. He began rehabilitative treatments at the Complete Rehab Centre soon after the accident and treatments have consisted of TENS, heat, and massage therapy, as well as elastic and bicycle exercise at a frequency of two treatments per week. He stated that he completed exercise at home on a daily basis and that he started exercising at a gym on a periodic basis. He is currently receiving similar treatments twice a week and he characterized his treatments as providing temporary symptomatic relief. He stated that his treatment efficacy had reached a plateau.
16On the day of the examination, the applicant reported to Dr. Loritz that he was experiencing dizziness, right shoulder pain, low back pain, left knee pain and neck pain. With respect to right shoulder pain and left knee pain, Dr. Loritz noted the applicant described his recovery as better than 60% and, with respect to low back pain, it is noted that the applicant had not experienced such symptoms prior to the accident and that the applicant’s recovery has plateaued.
17Dr. Loritz opines that the applicant suffers from ‘myofascial sprain/strain injuries of the cervical spine (whiplash WAD1-2), shoulders, and lumbar spine and a contusive injury to the left knee’. He concludes the proposed treatment plan is not reasonable and necessary noting, ‘[the applicant] has completed over one year of similar treatments, whose efficacy is characterized as having reached a plateau’ and he indicates ‘further facility-based treatments are unlikely to provide any significant therapeutic benefit’.
18In this case, the respondent does not refute the applicant’s assertions that he suffers from persistent pain arising from his accident-related injuries. Rather, the respondent’s position is that the specific treatment plan at issue is not reasonable and necessary, based on Dr. Loritz’s opinion that further facility-based treatment would not provide “any significant therapeutic benefit” and the applicant’s self-reporting to the assessor that his treatment had plateaued.
19While I acknowledge Dr. Jessa’s recommendation for further treatment and his statement that ’therapy has been progressing and the applicant feels better when attending therapy,’ I was not provided with clinical notes and records from either Dr. Jessa or the treating rehabilitation facility to support this opinion. In my view, such notes and records would have been helpful in assessing the reasonableness and necessity of the treatment plan, as there would likely have been some commentary with respect to treatment efficacy over time and/or the progress of the applicant’s therapy.
20In the absence of clinical notes and records from the treating chiropractor or rehabilitative facility, I find there is no compelling medical evidence before me to suggest that the proposed treatment would improve the applicant’s symptoms and/or achieve the stated goals of the treatment plan.
21I also acknowledge Dr. Bansal’s notation from July 2017 that physiotherapy may help and the provision of a prescription for same, as well as the applicant’s reporting to Dr. Loritz that twice weekly treatments of TENS, heat, and massage therapy, as well as elastic and bicycle exercise were providing temporary symptomatic relief. However, it is clear from the clinical notes of his healthcare providers that the applicant consistently reported ongoing pain, which continued in spite of his participation in ongoing treatment and recommended exercises.
22While Dr. Bansal’s records indicate the applicant’s rehabilitation seemed to be helping in September 2016, his subsequent entries indicate that his pain persisted and on May 4, 2017, it is noted that the applicant’s pain had worsened and Dr. Bansal was ‘not sure what else to offer’ to manage it.
23In addition, Dr. Pilowsky’s notes regularly reference the applicant’s reporting of persistent/unchanged pain. I found the following notations to be of particular significance: ‘pain persists – continues to do treatment and take medication’ (December 2016); and, [applicant] ‘felt even worse today as he saw his GP and was apparently told that his pain “will never improve”’ (June 2017).
24I am not persuaded that the applicant’s condition had appreciably improved as a result of ongoing treatment and/or participation in the recommended exercises, nor am I persuaded that the proposed treatment would achieve the stated goals of the plan (decrease pain; increase range of motion, strength, cardiovascular fitness levels, endurance and flexibility; and improve motor control of the lumbopelvic and cervicothoracic muscles, resulting in a return to activities of normal living and pre-accident work activities).
25Moreover, I find the clinical notes and records of the applicant’s healthcare providers tend to support Dr. Loritz’s conclusion that ‘the proposed treatment plan is not reasonable and necessary, as the applicant had completed over one year of similar treatments and reported that his treatment had reached a plateau and further treatment would not provide any significant benefit’.
26Accordingly, I find the applicant has not discharged his onus to establish that the treatment plan is reasonable and necessary and he is therefore not entitled to the benefit.
Cost of the Disability Certificate (OCF-3)
27Section 25(1) of the Schedule states an insurer shall pay for reasonable fees charged and incurred for preparing a disability certificate if required under sections 21, 36 or 37. Section 21 deals with lost educational expenses. Section 36 deals with the initial application for a specified benefit. Section 37 deals with continuing entitlement to specified benefits. Section 36 indicates that for the purposes of sections 36 and 37, ‘specified benefit’ means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 23.
28The applicant submits that the disability certificate’s purpose is to provide the insurer with an update on the applicant’s injuries and impairments and, because an updated medical opinion of the family doctor was provided, the respondent should provide funding for the preparation of the certificate.
29The respondent submits that the disability certificate at issue was not requested and that there was no ‘specified benefit’ at issue per section 36 and 37 of the Schedule. Moreover, it is noted that the certificate provided no new medical information beyond what was contained in the clinical notes and records of the applicant’s family physician, which the insurer had already paid for and received.
30Given that the respondent did not request the disability certificate and it was not required under sections 21, 36 or 37 of the Schedule, I find the cost of preparing it is not payable, pursuant to section 25(1).
Interest and award
31As the applicant is not entitled to the benefits claimed, no interest is payable pursuant to section 51.
32The applicant also claimed an award pursuant to s. 10 of Ontario Regulation 644, which permits the Tribunal to award a lump sum of up to 50% of the amount to which the applicant was entitled at the time of the award together with interest on all amounts owing if it finds that the respondent has unreasonably withheld or delayed such payments. As I have found that there are no amounts to which the applicant is entitled, there can be no award.
33However, even if I had found that the applicant was entitled to the benefits claimed, I am not persuaded that the respondent’s adjusting of the claim led to unreasonably withheld or delayed payments which would warrant an award for the reasons that follow.
34The applicant submits the respondent acted in bad faith when adjusting the claim, in that it failed to: comply with s. 38 (13) and (14) by not providing a copy of the IE report until over one year after the examination; that it failed to review all available medical documentation resulting in an unreasonable denial of necessary treatments and assessments, leading the applicant to continue to suffer in pain and that the unreasonable denial of access to the treatment claimed and the insurer’s failure to remove the applicant from the MIG after the collision caused his condition to significantly deteriorate.
35Finally, in support of his claim for an award, the applicant alleged that the respondent failed to comply with the production order dated January 21, 2019 and requested that the Tribunal take this into consideration when making its determination with respect to the award claimed. The respondent argued that they made best efforts to comply with the order and provided evidence of such efforts. While I acknowledge the foregoing arguments respecting exchange of productions, I find them irrelevant to the claim for an award, as they relate to conduct during the proceeding rather than in the handling of the applicant’s claim.
36I find the applicant has not provided any compelling evidence to support the argument that the denial of the treatment plan caused his condition to significantly deteriorate as claimed, nor did he provide any evidence that the respondent’s failure to comply with s. 38(13) resulted in any prejudice to him. There is also no compelling evidence to suggest that the respondent failed to review all of the available medical evidence when making their determinations or that the respondent acted in bad faith in the handling of the applicant’s claim. It would appear from the evidence before me that the respondent preferred the findings of their IE assessor and the applicant’s reporting to the IE assessor that his treatment had plateaued when making their determinations in this case, which I do not find unreasonable.
CONCLUSION
37I find the applicant has not established that the treatment plan claimed is reasonable and necessary, nor has he established that the respondent should bear the cost of the disability certificate as claimed. Consequently, he is not entitled to payment for any of the amounts claimed.
38The applicant is not entitled to an award or interest; and,
39The application is dismissed.
Released: September 12, 2019
Shannon Braun
Adjudicator