Z.S. v. Aviva Insurance Company, 2019 CanLII 119744

Citation: Z.S. vs. Aviva Insurance Company, 2019 ONLAT 18-004424/AABS

Tribunal File Number: 18-004424/AABS

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:

Z. S. Appellant

and

Aviva Insurance Company Respondent

DECISION

PANEL: Thérèse Reilly, Adjudicator

APPEARANCES: For the Applicant: Alicia Stuart, Counsel For the Respondent: Geoffrey Keating, Counsel

HEARD: In Writing on: May 10, 2019

OVERVIEW

1The applicant was involved in an automobile accident on July 3, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant applied for medical benefits for occupational therapy (“OT”) services, which were denied by the respondent on the basis that the treatment plans are not reasonable and necessary.

2The applicant raises a procedural argument that the respondent failed to meet the section 38 requirements in that it did not provide a valid denial and it failed to re-assess the applicant after it determined his injuries were not minor. The respondent submits its denials are valid. These benefits were considered by an expert insurer examination assessor. Moreover, the respondent states it assessed these benefits on the basis of reasonableness and necessity.

3The issues¹ in dispute are as follows:

i. Is the applicant entitled to a medical benefit in the amount of $962.77 for occupational therapy devices recommended in a treatment plan (OCF-18) submitted on June 2, 2016, and denied on June 3, 2016?

ii. Is the applicant entitled to a medical benefit in the amount of $1,920.71 for occupational therapy treatment recommended in a treatment plan (OCF-18) submitted on May 31, 2016, and denied on June 2, 2016?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons set out below, I find the applicant is not entitled to the medical benefits as they are not reasonable and necessary. The respondent’s denials are valid. The claim for interest is dismissed. The applicant is not entitled to an award under section 10 of Ontario Regulation 664.

ANALYSIS

THE LAW

5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of a motor vehicle accident.

6The applicant bears the burden of proving, on a balance of probabilities, that the treatment plans are reasonable and necessary. Whether a treatment plan is reasonable and necessary depends on whether:

i. The treatment goals, as identified, are reasonable²;

ii. The treatment goals are being met to a reasonable degree; and,

iii. The overall costs of achieving these goals are reasonable.

7Based on the totality of the evidence before me, and for the reasons that follow, I find the applicant has not proven on a balance of probabilities that the treatment plans are reasonable and necessary. Moreover, the respondent has met its obligations under section 38 of the Schedule in responding to the applicant’s claim for benefits.

APPLICANT’S POSITION

8The applicant submitted the records of his family doctor, the OCF-18s and report of Ms. Kuchar, occupational therapist to support his position on entitlement. The applicant saw his family doctor beginning on July 9, 2015 and had several visits between August and December 2015.³ He was diagnosed by his family doctor with whiplash, minor sprains and strains and a mild concussion.

9In the Disability Certificate (“OCF-3”) dated August 11, 2015,⁴ it was stated the applicant could not work, carry on activities of normal life and do home maintenance and housekeeping. In April 2016, the applicant was diagnosed with post concussion syndrome.⁵ On July 5, 2016 he was removed from the MIG.

10Ms. Kuchar completed an occupational functional assessment of the applicant on May 6, 2016⁶. She stated the applicant had decreased cervical range of motion, guarded postures, decreased sitting tolerance, fatigue, low mood and sadness. She submitted the treatment plans in which she outlined the need for a pillow, obus back support and a mattress overlay due to sleep disturbances.⁷ The treatment goals are to reduce the applicant’s pain, and enable him to return to activities of normal living, regain functional independence with self care (the treatment plan states in contradiction, that the applicant is independent with self care), return to his pre-accident work activities and regain functional independence with leisure and social activities.

THE RESPONDENT’S DENIAL

11On June 3, 2016⁸ the respondent advised the applicant it was denying the OCF-18 as the OCF-18 indicated the applicant sustained predominantly minor injuries and the respondent stated that an insurer examination was required under section 44 to assess entitlement to the benefit. A second letter dated June 9, 2016 was sent to the applicant⁹ advising that both treatment plans were being denied on the basis that the injuries are predominantly minor injuries. The letter gave notice that the applicant was to attend a section 44 IE examination to be completed by Ms. Knudstrup, occupational therapist, to determine entitlement to the OT benefits.

12Ms. Knudstrup examined the applicant on June 22, 2016 and issued her OT assessment report on July 8, 2016.¹⁰ She concluded from her physical testing and self-reports by the applicant that he was able to do most activities which Ms. Kuchar claimed he was unable to do. For example, he had returned to work on a part time basis and although his work functions were not as they were before the accident, he was able to do these tasks for ½ a day each day of the week. He was able to stand, walk and sit with no difficulties. He had returned to home maintenance, gardening such as cutting the grass, and had used a snow plow. He had also returned to some leisure activities such as fishing and was planning a hunting trip. She concluded the treatment goals of being able to return to pre-accident work activities, do home maintenance and regain functional independence with leisure and home interests and social activities were being achieved. As to physical care and safety, Ms. Knudstrup indicated his range of motion was normal.

13The benefit was denied in an Explanation of Benefit dated July 11, 2019¹¹ which enclosed Ms. Knudstrup’s report and outlined her conclusion that the two treatment plans were not reasonable and necessary.

14The applicant was also assessed in June 2016 and July 2016 relating to the two approved treatment plans noted in footnote 1 of this decision. Dr. Derby, neurologist, completed a neurological assessment of the OCF-18 for a concussion assessment and issued a report on July 5, 2016. He found the injuries were minor with no neurological deficits. He concluded the assessment proposed was not reasonable and necessary.¹² Dr. Khaled, physician, assessed the applicant in June 2016 in relation to the OCF-18 for physiotherapy and in his report¹³ found the injuries sustained included whiplash and minor sprains and strains, which is consistent with the clinical findings of the family doctor. He stated the prognosis for recovery was excellent. He stated “not applicable” when asked about the question whether the treatment plan was reasonable and necessary. A physiatry assessment was also completed by Dr. Marchuk for a different treatment plan. Dr. Marchuk found the applicant’s thoracic, cervical and lumber spine normal. Dr. Marchuk also concluded the applicant had sustained soft tissue injuries to the lumbar and cervical spine.

Are the Medical Benefits reasonable and necessary?

15The applicant bears the burden to prove the treatment plans are reasonable and necessary. I agree with the respondent that the applicant has not met the burden to establish the two treatment plans are reasonable and necessary.

16Contrary to the conclusions reached by Ms. Kuchar, the physical testing by Ms. Knudstrup revealed ranges of motion were within functional and normal ranges of motion except for cervical rotation, which was limited. As to home maintenance activities, the applicant based on his self reports indicated he had done some gardening, had cut the grass and used a snow blower. He reported being independent with self-care. He had also returned to work for half a day each day. As to leisure activities, he had gone fishing and was planning a hunting trip. Ms. Knudstrup − based on her physical examination and the reports from the applicant relating to his life, work, home maintenance, social and leisure activities − concluded that the recommended treatment plans were not reasonable and necessary.

17When the reports of Ms. Kuchar and Ms. Knudstrup are compared, there are a number of contradictions (mentioned above). I prefer the report of Ms. Knudstrup over the report of Ms. Kuchar as Ms. Kuchar’s treatment plans refer to treatment goals that have already been achieved. Moreover, Ms. Knudstrup’s findings are consistent with the findings of the three IE assessors who support the findings that the applicant’s injuries are predominantly minor. Dr. Derby also found the treatment plan he reviewed was not reasonable and necessary.

18Ms. Knudstrup’s report also demonstrates the treatment goals identified in the OCF-18 have been met by the applicant to a reasonable degree. Moreover, one of the goals was to reduce pain. Neither OT in their assessment report refer to or discuss pain reduction as a necessary goal. The applicant presents no arguments on this in his submissions. There is no evidence that the recommended OT sessions would reduce pain.

19The applicant also argued Ms. Knudstrup in her report did not consider whether the goods and services submitted are reasonable and necessary but focussed on whether the treatment goals were not reasonable and necessary. I find no merit in this argument. Ms. Knudstrup, based on her physical examination, the medical and the self-reports from the applicant relating to his life, work, home maintenance, social and leisure activities, concluded that the recommended treatment plans were not reasonable and necessary.

SECTION 38 COMPLIANCE

20I find the denial of the disputed OCF-18s was valid. The respondent issued two notices of examination dated June 3, 2016 and June 9, 2016 advising the applicant, as required under section 38(8), that it had received the treatment plans, that it was not agreeable to paying for these on the basis that the OCF-18s did not provide medical information to support the applicant’s position that the injuries were not predominantly minor injuries. It gave the applicant notice that it required a section 44 insurer’s examination to assess entitlement to the benefits claimed. Moreover, the denial dated July 11, 2016 attached Ms. Knudstrup’s report which explained the medical and other reasons for finding that the treatment plans were not reasonable and necessary. I acknowledge the June 3, 2016 letter incorrectly referred to an “attendant care assessment” however, the OCF-18 prepared by the applicant refers to the services as “in-home follow up” which could create confusion.

21The applicant also argues the respondent failed to re-assess the disputed treatment plans once it was determined his injuries were not minor. I disagree. The denial of July 11, 2016 refers to the conclusion by the OT and her finding that the disputed treatment plans were not reasonable and necessary. A further assessment in these circumstances was not required as the determination was already made, after the applicant was removed from the MIG, that the treatment plan was not reasonable and necessary and would not have made a difference in the result.

22Based on the totality of the evidence before me, the two treatment plans are not reasonable and necessary. The respondent validly denied the treatment plans. The applicant is therefore is not entitled to the medical benefits.

INTEREST

23Since no benefits are payable, the applicant is not entitled to any interest.

An Award under Ontario Regulation 664

24Section 10 of Ontario Regulation 664 states that 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. As I have found nothing payable, the respondent cannot have unreasonably withheld or delayed payments.

25The applicant raises the issue of an award relating to the two approved treatment plans. The respondent delayed advising the applicant of the approval until December 2018. Neither treatment plans have been incurred. The applicant argues the delay was unreasonable and may have made a difference to the applicant’s recovery. No evidence was presented to support that position. Although the notice that the treatment plans were approved was delayed, I have no evidence to find the respondent unreasonably withheld the approval so as to meet the test for an award under section 10 of Ontario Regulation 664.

26Lastly, the applicant in his submissions referred to the previous LAT decision¹⁴ involving the same parties and accident but a denial of a treatment plan based on Dr. Khaled’s report of June 20, 2016. The Tribunal found in that appeal that the denial of the treatment plan was not valid and the respondent had failed in its obligation to re-assess the applicant. I am not bound by the decision in the prior decision which has no application to this appeal and the issues in dispute before me.

CONCLUSION

27For the reasons outlined above, I find that the treatment plans are not reasonable and necessary. The respondent’s denial was valid. The claim for interest is dismissed. The applicant is not entitled to an award pursuant to section 10 of Ontario Regulation 664.

Released: November 8, 2019

Thérèse Reilly Adjudicator

Footnotes

1. 1The respondent in its submissions filed by letter dated December 14, 2018, approved the cost for an examination for $1495.00 for a concussion assessment dated April 13, 2016 recommended by Dr. Meldrum, chiropractor and the cost of $2142.77 for physiotherapy treatment, dated May 6, 2016 recommended by Dr. Meldrum and as such these items are no longer in dispute.
2. 2The respondent refers to the decision 17-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT) for the position that the relevant test with respect to the reasonableness and necessity of a medical benefit includes a requirement that the treatment goals be reasonable.
3. 3Written submissions of the applicant, paragraphs 6-10, 12-14, clinical notes and records of the family doctor, tab 25.
4. 4Written submissions of the applicant, tab 13.
5. 5Written submissions of the applicant, paragraph 15.
6. 6Written submissions of the applicant, report of Ms. Kuchar, OT Functional Assessment, tab 34.
7. 7Written submissions of the applicant, paragraph 17.
8. 8Written submissions of the applicant, paragraphs 19, 20, tab 8, Respondent letters to the applicant dated June 3, 2016 and June 9, 2016, tab 8 and 9.
9. 9Written submissions of the applicant, paragraph 24, Notice of Examination dated June 9, 2016.
10. 10Written submissions of the applicant, paragraph 25, OT Assessment Report, Ms. Knudstrup’s, Tab 11.
11. 11Written submissions of the respondent, Tab H, Explanation of Benefit dated July 11, 2019.
12. 12Written submissions of the applicant, Report of Dr. Derby, date July 5, 2016, Tab 19. This report was not attached or referred to in the respondent’s submissions.
13. 13Written submissions of the applicant, Report of Dr. Khaled, dated June 20, 2016, Tab 19. This report was not attached or referred to in the respondent’s submissions.
14. 14Written reply submissions of the applicant, paragraph 4, prior Decision of Adjudicator Anita Goela on March 1, 2018, Tab A, file 17-005125, Z.S. v Aviva Insurance Company involving the same parties and accident.