[The Applicant] v. Aviva Insurance Canada, 2019 CanLII 101466

Citation: [The Applicant] vs. Aviva Insurance Canada, 2019 ONLAT 18-005087/AABS

Date: September 26, 2019

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:

[The Applicant]

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

VICE CHAIR: Susan Mather

Appearances: For the Appellant: Miguel Maruszki, Counsel

For the Respondent: Robert H Rogers, Counsel

Heard: In Writing Hearing: December 17, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant was involved in an automobile accident on March 5, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The appellant was denied certain medical benefits by the respondent (“Aviva”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The appellant seeks approval of three treatment and assessment plans for chiropractic and massage services. Aviva denied the plans on the basis that the appellant’s recovery from his injuries had plateaued and that no further treatment was required. The appellant argues that the plans are reasonable and necessary for relief of his ongoing pain.

3The appellant also seeks payment in full of a treatment plan for chiropractic and massage therapy that was approved by Aviva. Aviva has partially paid for the plan but argues that the appellant has not provided it the documentation required to confirm that the expense for the remaining recommended treatment was incurred.

4At a case conference held on September 12, 2018, the parties agree to proceed to this written hearing.

ISSUES

5The issues in dispute are as follows:

1. Is the applicant entitled to medical benefits for treatment recommended by Complete Rehab Centre for the following: (a) $1,124.22 ($2,200.28, less $944.54 paid) for physiotherapy and massage therapy services submitted in a treatment plan dated October 6, 2017, and denied on October 6, 2017? (b) $2,220.89 for chiropractic and massage therapy services submitted in a treatment plan dated May 27, 2016, and denied on June 6, 2016? (c) $1,938.87 for chiropractic and massage therapy services submitted in a treatment plan dated August 3, 2016, and denied on September 11, 2016? (d) $1,952.10 for chiropractic and massage therapy services submitted in a treatment plan dated December 13, 2017, and denied on January 2, 2018?¹ (e) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6For the reasons below, I find that the appellant is entitled to the following medical benefits plus interest owing on the benefits pursuant to the Schedule:

1. The balance outstanding on Invoices # 2715900, #2716251 and #2716251 for physiotherapy and massage therapy.
2. The costs incurred for the massage therapy services proposed in the treatment plans set out in paragraphs, 5(b) and 5(c). above.

7I also find that:

1. The appellant has not shown on the balance of probabilities that the multiple body site therapy proposed in the three treatment plans set out in paragraphs 5(b), 5(c) and 5(d) above are reasonable and necessary.

BACKGROUND

8At the time of the accident, the appellant suffered from bipolar disease diagnosed in 1980. He also suffered from neck, back and bi-lateral should pain from a motor vehicle accident he was involved in on February 19, 2013. Following the accident, the appellant experienced significant neck back and bi-lateral should pain, as well as an exacerbation of his bipolar disease. Eleven days after the accident, he was involuntarily hospitalized because of his bipolar disorder. He spent over a month in the psychiatric unit of [the hospital].

9Several months later, on September 15, 2015, the appellant began a course of physio, chiropractic and massage therapy at Complete Rehab Centre (“CRC”). He attended at CRC on a regular basis. According to his submissions, which Aviva did not dispute, he attended for therapy at least 80 times between September 2015 and August 2016. He continued regular therapy at CRC until May 8, 2017, when he had to stop due to another episode of psychosis requiring a one-month hospital stay.

10From the summer of 2017 to October 2018, the appellant received another 33 sessions of therapy at CRC. Throughout the sessions, he suffered from pain and discomfort in his chest and spine (cervical, thoracic and lumbar), as well as muscle stiffness.

11Aviva relies on both a paper review Insurance Examination (“IE”) and two in-person IEs done by Dr. Marchuck, physiatrist, to deny the treatment plans in dispute.² In his IE report dated September 15, 2017, Dr. Marchuk diagnosed the appellant with Whiplash Associated Disorder 2, cervicothoracic bilateral shoulder myofascial dysfunction and lumbar musculo-ligamentous dysfunction. Dr. Marchuck was of the opinion that further facilities-based treatment for the appellant was not reasonable and necessary because the applicant’s recovery from his injuries had plateaued.

12In May 2018, Dr. Marchuk reassessed the appellant to determine whether he was catastrophically impaired. Dr. Marchuk made the same diagnosis he made in September 2017.

13There is no doubt from Dr. Marchuk’s report that the appellant continues to have a reduced range of motion and suffers from pain. The CRC’s CNRs continually document the appellant’s ongoing neck and shoulder pain.³ The CNRs of his psychiatrists document the appellant’s ongoing struggle with bipolar disease.

14I will deal first with the treatment plan that was has been approved and partially paid.

Approved and Partially Paid Treatment Plan Submitted October 6, 2017

15This treatment plan was approved by Aviva on October 12, 2017. However, the present dispute arises over whether Aviva received the information it requested from both CRC and the appellant to substantiate that the services covered by the invoices had been received.

16The Schedule provides mechanisms to allow an insurer to confirm its liability for payment for treatment plans. Specifically, an insurer may request certain information from a service provider or insured person necessary to assist the insurer to determine its liability to pay for benefits: see s. 46.2 and 46.3.

17The Schedule bars an insured person from filing an appeal with the Tribunal if the issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that:

i. the insurer requested information from a provider, and, ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.⁴

18The Schedule does not contain a similar provision with respect to a written confirmation or statutory declaration requested by an insurer. Presumably, this is because an appellant will have the opportunity to provide this evidence at the hearing.

19Aviva argues that the outstanding amount is not yet due because of outstanding demands for information to either or both CRC and the appellant. Aviva submits the outstanding amount will become payable once the demands for information are properly met “presuming the services have been provided and the expense incurred.”

20Aviva does not argue specifically that the appellant is barred by s. 55(1)3 from commencing its appeal for payment of the balance outstanding on this treatment plan.

21The following three invoices are in dispute:⁵

Invoice No.	Date	Amount of Invoice
2715900	Nov. 27, 2017	$372.27
2716251	Dec. 27, 2017	$627.86
2717052	Jan. 28, 2018	$124.09

Invoice # 2715900

22On February 18, 2018, Aviva advised the appellant that it was unable to pay Invoice #2715900 because its was still waiting for the CNRs from CRC to support the services for this invoice.⁶ The appellant argues that the CNRs from CRC are attached to the appellant’s hearing submissions and the invoice is payable forthwith. The respondent’s hearing submissions do not specifically address this invoice or the appellant’s submission that the CNRs for this invoice were provided to Aviva as evidence in this hearing.

23I have reviewed CRC’s CNRs and am satisfied that they document that the appellant attended CRC for therapy on October 20, October 24 and November 8, 2017 for three sessions as itemized on Invoice# 2715900. For that reason, I am satisfied that Aviva, is able to determine that the invoice is payable. Aviva has not provided any reason why it is unable to rely on the CNRs of CRC that were provided by the appellant, and I see no reason why the CNRs need to come directly from CRC before the invoice is payable.

Invoices # 2716251 and #2717052

24On March 16, 2018, Aviva wrote the appellant, asking for him to complete an attached statutory declaration to confirm whether or not he had received the treatment covered by Invoices #2716251 and #2717052.⁷

25The Schedule allows an insurer to request a statutory declaration and, in this case, the appellant raises no objection to the form of the statutory declaration he was asked to provide.⁸ Rather, the appellant argues that he has provided Aviva with written confirmation that he received the goods and services in question, and that this is all he is required to do.

26On March 30, 2018, Aviva wrote CRC requesting the following documents for Invoices #2716251 and #2717052:⁹

• all clinical notes and records relating to each date of service on each invoice;
• a copy of all attendance records sign-in sheets for each date of service on each invoice.

27The appellant appears to argue that his hearing submissions are confirmation in writing that he received that services billed on the invoices and that suffices to meet the requirements of the Schedule. He also relies on CRC’s CNRs and account statement to support his claim.¹⁰

28Aviva argues that the appellant is not entitled to payment of the balance owing on these invoices until it complies with Aviva’s request for the statutory declarations from the appellant and CRC provides its CNRs and attendance records for the appellant pertaining to these invoices

29I have reviewed CRC’s CNRs and have found entries to correspond to all of the treatments that are included in Invoices #2716251 and #2717052.¹¹

30Based upon this review, I am satisfied that the appellant received the services included in the invoices and I see no reason why Aviva should not pay the balance owing on both invoices.

31While it does not appear that Aviva received the CNRs of CRC until after the appeal was filed with the Tribunal, Aviva does not specifically ask that the appeal be barred. I have no evidence to suggest that the CNRs of CRC are not reliable and I can see no reason why the balance owing on the invoices should not be paid. In any event, even if Aviva had have asked for a determination that this application be barred, I would have exercised my discretion under s. 55(2) and determined the parties’ dispute as I have done here.

32For the reasons provided above, I order that Aviva pay to the appellant $1,124.22, being the balance owing on Invoices #2716251 and #2717052 together with interest from the date that Aviva received the CNRs of CRC from the appellant.

Denied Treatment Plans

33The Schedule provides that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of the accident for, among other things, chiropractic and physiotherapy services, or any other goods and services of a medical nature that an insured person requires, other than goods and services for which a benefit is otherwise provided for in the Schedule.¹²

34The treatment plans in issue are for chiropractic and massage therapy services. Aviva denied these plans on the basis that the treatment proposed in them was not reasonable and necessary so long after the accident.

35The appellant argues that pain relief is a legitimate goal of a treatment plan and that he requires ongoing therapy for pain control. He argues that treatment does not necessarily have to improve the claimant’s symptoms or lead to recovery.

36The decision in Cubello v Guidolin (“Guidolin”) establishes that pain control is a reasonable goal of continued treatment.¹³ In Guidolin, the Ontario Superior Court of Justice found that treatment plans for ongoing massage therapy and chiropractic therapy for pain control were reasonable and necessary. More particularly, the Court found that, despite the fact the insureds had achieved maximal recovery, it was reasonable and necessary that they continue therapy to help with pain control.

37The appellant also argues that Aviva has not considered how his bipolar disease affects his ability to follow a self-directed exercise program. He argues that his psychological condition cannot be separated from his physical condition, and that continued therapy is reasonable and necessary to treat both. The appellant argues that his condition deteriorated because he was not receiving the treatment he required.

38Aviva argues that the therapy proposed in each plan treatment plan must be shown to be reasonable and necessary. It argues that the benefits that the appellant received from CRC facilities-based treatment plateaued, and that the appellant has not shown on the balance of probabilities why the facilities-based treatment plans were reasonable and necessary. Aviva argues that the fact that appellants range of motion decreased overtime is evidence that the treatment he was receiving was no longer reasonable and necessary.

39Avia relies on the IE of Dr. Marchuk to deny all three plans.¹⁴ It also relies on the May 26, 2016 CNR of the appellant’s family physician, who recommended that the appellant do a home-based exercise program 30 minutes per day, five days per week.

40I have reviewed the treatment plans in issue and, for the reasons below, am not satisfied that the all treatment proposed in the plans is reasonable and necessary.

Massage Therapy

41Because of the appellant’s ongoing pain issue, I am satisfied that those portions of the plans proposing massage therapy are reasonable and necessary.¹⁵ Aviva’s submissions do not specifically address the proposal for massage therapy.

42I have reviewed the CNRs in evidence and accept the notations that the appellant felt better after his massages. Given the appellant’s ongoing pain issues, I am not persuaded by Aviva that continuing massage therapy was not reasonable and necessary.

43I have confirmed that there is a CNR corresponding to the visits documented in the CRC Account Summary.¹⁶ On that basis, I find that Aviva must pay the total of $657.50 for 10 sessions of massage therapy services provided by CRC on the dates set out in the CRC Account summary for the treatment plans dated May 27, 2016 and August 3, 2016.

Multiple Body Site Therapy

44For the reasons that follow, I am not satisfied that those portions of the plans proposing multiple body site therapy were reasonable and necessary. The appellant’s claim for payment of the expenses incurred for this therapy is, therefore, denied.

45The goals of all three plans are the same. Those goals include pain reduction, increase in strength, increase cardio-vascular fitness level, strengthen endurance and flexibility, improve motor control of lumbopelvic and cervical thoracic muscles and return to activities of daily living.

46The plans also propose the same methods be used to evaluate the effectiveness of treatment. Clinical evaluation methods include range of motion testing, muscle palpitation, orthopaedic and neurological testing. Subjective testing includes visual analysis scale, Owestry and Neck Disability Index Score, and the applicant’s ability to perform activities of daily living, household chores and work-related tasks. The barriers to recovery include the appellants continuing pain and dysfunction.

47I do not find these plans to be reasonable and necessary for the following reasons:

• While the goals of the plans include pain reduction, the other goals include increasing strength, increasing cardio-vascular fitness and strengthening endurance and flexibility. I have allowed the portion of the treatment plan for massage therapy for pain control. There is no evidence as to how the multiple body site therapy recommended will address pain control or any of the other goals of the treatment plan.
• The Progress Reports found in CRC’s CNRs indicate that the appellant’s response to the multiple treatments he received has never been more than “fair”.
• Dr. Marchuck assessed the appellant on two occasions and has reviewed the appellant’s medical records. He provides the uncontroverted opinion that the appellant has achieved maximal recovery from his accident related impairments. Dr. Marchuck does not provide any opinion on whether it was reasonable and necessary for the appellant to continue massage therapy for pain relief.
• I give little weight to the treatment plans themselves since they are proposed by the same chiropractor who will deliver the services and are essentially identical.
• Aviva is correct that the Roland-Morris Disability Questionnaires and the Neck Disability Indexes completed by the appellant over the course of his treatment at CNC suggest that the treatment had not been effective.¹⁷ These assessments were done at several intervals over the course of the appellant’s treatment. There is no evidence to show that the treatment plans in dispute will provide any better outcome for the appellant.
• The family doctor’s March 24, 2016 CNR recommends a moderate exercise program 30 min per day, five days a week. There are no further recommendations from the family doctor or a CNC health care provider to continue facilities-based treatment.¹⁸
• The appellant argues that his psychological issues affect his ability to do self-directed exercise. There is no evidence that the treatment proposed by these plans is therapy that replaces the type of exercise included in a self-directed plan.
• Occupational Therapist Dilini Mohan comments in her report that physical exercise promotes neurocognitive rehabilitation.¹⁹ I am not satisfied that the treatment plan proposes the type of physical exercise the occupational therapist was referring to or advocates for the appellant.
• The accounting records of CRC indicate that the therapy provided to the appellant based on the treatment plans was an active, functional restoration program, not the multi-site body therapy proposed in the treatment plan.²⁰

48For these reasons, I find that the multi-site therapy proposed in the three disputed treatment plans is not reasonable and necessary.

INTEREST

49The Schedule requires an insurer to pay interest on overdue benefits.²¹ When payment of a benefit is delayed because a provider or insured does not respond in a timely way to a request for information under s. 46.2 or s. 46.3 of the Schedule, the amount payable by an insurer under an invoice is not overdue and no interest accrues on it during the period in which an a provider or insured person fails to comply with the request for information.²²

50In this case the CRC did not provide Aviva with the CNRs requested for any of the unpaid invoices and did not provide the attendance records that Aviva requested for Invoices #2716251 and #2717052. The appellant did not provide Aviva with the statutory declarations requested for Invoices #2716251 and #2717052.

51The appellant, however, provided Aviva with the CNRs of CRC as evidence in this hearing. I am unable to determine the exact date that the CNRs were provided. The fax cover sheets included in the appellant’s documents suggest that the appellants did not receive the CNRs of CRC applicable to these invoices until after he filed his application with the Tribunal.

52Neither party has made any submissions or provided any case law on the interest provisions found in 46.2 and 46.3 of the Schedule. Having determined that the CNRs themselves are enough evidence to require Aviva to pay the outstanding amounts, I find it is reasonable that the appellant be entitled to interest on the overdue amounts from the date that Aviva received the CNRs pertaining to the invoices.

53The appellant is also entitled to interest on the overdue payments for massage therapy as provided for in the Schedule.²³

54For the reasons provide above I Order

1. Aviva shall pay medical benefits in the amount of $1,124.22 for the services set out in Invoices # 2715900, #2716251 and #2717052.
2. Aviva shall pay interest on the Invoice # 2715900, #2716251 and #271705 from the day it received the CNRs from the appellant pertaining to the invoice at the rate set out in the Schedule.
3. Aviva shall pay the expenses the appellant has incurred in the amount of $657.50 for the massage therapy treatments recommended in the treatment plans sets dated May 27, 2016 and August 3, 2016 together with interest as required by the Schedule.
4. Aviva is not required to pay any costs for the multiple site body therapy set out in the treatment plans in dispute.

Footnotes

1. 1The order made at the Case Conference stated this treatment plan was for physiotherapy services. The treatment plan (Tab E, appellant’s submissions) is, however, for chiropractic and massage therapy services.
2. 2Tabs F, J and K Aviva’s submissions.
3. 3The appellant has submitted copies of CNRs from CRC. The CNRs are not found at one Tab and are not in chronological order making it difficult to get an overview of the appellant’s treatment at CRC.
4. 4Section 55(1)3, O. Reg. 34/10.
5. 5Tab Bi, Bii, and Biii, Aviva’s submissions.
6. 6Tab Z, appellant’s submissions.
7. 7Tab AA, appellant’s submissions.
8. 8Section 46.3(1)2, O. Reg. 34/10.
9. 9Tab C, Aviva’s submissions. Note: the invoice numbers reference in the March 30, 2018 letter appear to contain typographical errors.
10. 10Tab AA, appellant’s submissions, Paragraph 1, appellant’s reply submissions.
11. 11Tab X, appellant’s documents.
12. 12S. 15(1)(b) and (h), O. Reg. 34/10.
13. 13[2000] O.J. No. 1468 (Ont. SCJ).
14. 14Tabs F, J K, Aviva’s submission.
15. 15Tab E, appellant’s submissions.
16. 16Tab AA, appellant’s submissions.
17. 17Tabs, M and N, Aviva’s Submissions.
18. 18Page 82-83, Tab L, Aviva’s Submissions.
19. 19Tab R, appellant’s submissions.
20. 20Tab AA, appellant’s submissions.
21. 21Section 51(2), O. Reg. 34/10.
22. 22Section 46.2(3) and s. 46.3 (3) O. Reg. 34/10.
23. 23Section 51(2) O. Reg. 34/10.