Released Date: 12/30/2019
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:
[S. C.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Shannon Braun
APPEARANCES:
For the Applicant:
Jono Schneider, Counsel
For the Respondent:
Leanne Zabudsky, Counsel
HEARD: by Teleconference:
July 23 & August 2, 2019 and by written submissions
OVERVIEW
1The applicant, S.C., was injured in an accident on January 11, 2017 and sought benefits from the respondent, Aviva Insurance Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2The parties participated in a case conference but were unable to resolve their dispute and proceeded to this hearing, which was held by teleconference with written submissions.
ISSUES
3I have been asked to decide the following issues:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period July 42, 2017 to December 13, 2017?
ii. Is the applicant entitled to the following medical benefits recommended by Fairview Wellness Centre in the following treatment plans:
a) $2,714.54 for physiotherapy submitted October 26, 2017 and denied on November 8, 2017;
b) $2,472.09 for physiotherapy submitted March 10, 2018 and denied on April 23, 2018;
c) $200.00 for a disability certificate denied on March 26, 2017?
iii. Is the applicant entitled to payment in the amount of $11.99,3 for prescription medication denied on September 17, 2018?
iv. Is the applicant entitled to payments for the cost of obtaining records in the amount of $287.60, which was denied on May 23, 2018?
v. Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
4I find the applicant is entitled to the following:
i. an income replacement benefit in the amount of $400.00 per week for the period of July 4, 2017 to December 13, 2017;
ii. $2,714.54 for physiotherapy services recommended by Fairview Wellness Centre in a treatment plan dated October 26, 2017;
iii. $2,472.09 for physiotherapy services recommended by Fairview Wellness Centre in a treatment plan dated March 10, 2018;
iv. the cost of prescription medication in the amount of $11.99; and
v. interest in respect of all overdue payments, in accordance with section 51 of the Schedule.
5The applicant is not entitled to the following:
i. the cost of obtaining a disability certificate in the amount of $200.00;
ii. the cost of obtaining records in the amount of $287.60; and
iii. an award under O. Reg. 664.
ANALYSIS
Income Replacement Benefit (IRB)
6The applicant is entitled to an IRB from July 4, 2017 to December 13, 2017. I am persuaded that, during that time, she suffered a substantial inability to perform the essential tasks of her employment.
7Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person:
(i) Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
8There is no dispute that the applicant was working full-time at [a manufacturing plant] as a Production Worker. in the 52 weeks prior to the accident, and that she returned to working modified hours on December 13, 2017.
9An Employer’s Confirmation Form (OCF-2) lists the applicant’s job description as: Production Line Operator, with essential tasks of: watching cans on lines, capping and some packing. The applicant described the essential tasks of her employment in her affidavit,4 which include: sitting, standing and packing boxes full of jars up to 15 skids.
10She also explained the effects of her accident-related injuries on her ability to carry out such tasks. The job required constant head movements, which caused dizziness; she could no longer sit/stand for long periods due to pain; she struggled to remain alert due to fatigue; she could no longer repetitively move her arms and shoulders due to pain; and her pain and sleep loss made her feel hopeless, anxious and depressed, which affected her ability to function at work.
11The Disability Certificate (OCF-3) dated January 26, 2017 indicated the applicant was substantially unable to perform the essential tasks of her employment and that she was unable to return to work on modified hours/duties. The duration of her disability was estimated between 9 and 12 weeks. Insurer Examinations (IEs) were arranged at the expiration of 12 weeks and, based on the results of those examinations, the respondent terminated the applicant’s IRB effective July 4, 2017.
12The applicant asserts that, although the benefit was terminated, she met the test for eligibility, and continued to meet that test, until her return to work on December 13, 2017. In support of her position, she relies largely upon her testimony, notes and records of her family physician and a physiatry report from Dr. Wong, dated January 17, 2019. For the reasons that follow, I agree.
13I did not find Dr. Wong’s report helpful. His assessment was conducted approximately two years following the accident and, in response to the question of whether the applicant met the test for IRB eligibility between January 11 and December 13, 2017, he states: “I would be unable to provide a definite answer as I did not see [the applicant] during those periods of time”. In short, his evidence offers the applicant no help.
14I was, however, persuaded by the applicant’s testimony, which was largely supported by the evidence of her physician and information provided by her physiotherapist on a treatment plan (OCF-18) dated October 26, 2017.
15Pre-accident records revealed no previous complaints of pain or medications prescribed for pain. Three days after the accident, the applicant visited her physician complaining of bilateral neck pain, shoulder pain and low back pain. Therapeutic recommendations included physiotherapy and prescription medication (Vimovo). On average, the applicant visited her family physician once a month with consistent complaints of pain. Between January and December 2017, the physician provided several notes for the applicant to be absent from work in relation to the above-noted complaints.
16I found the physician’s note of August 8, 2017 to be particularly compelling, as it indicated the applicant would be absent from work “indefinitely.” Although the respondent argued the note did not include a reason for the absence and that there was no indication it was related to the accident, the physician’s notes of August 6, 2017 reveal the applicant visited to address “continuing bilateral shoulder pain, neck pain and back pain since the motor vehicle accident” (emphasis added) and that she was to be off work indefinitely. There is no evidence of complaints/reasons for the applicant’s anticipated absence from work, other than as a result of her accident-related injuries.
17I was also persuaded by the October 26, 2017 OCF-18, in which the physiotherapist indicates the applicant’s injuries affected her ability to carry out her tasks of employment, as her pain was “aggravated with actions such as sitting for long periods of time, bending, lifting, reaching, carrying objects, twisting, lying down, prolonged standing and walking.” I note the applicant’s description of her essential tasks included prolonged sitting, standing and repetitive arm movements.
18The respondent submits the applicant did not meet the test for IRB eligibility beyond July 4, 2017 and relies upon the following IE reports: Dr. Ornstein (psychologist) May 30, 2017; Dr. Deshpande (physician) June 1, 2017; and Mr. Yip, (physiotherapist and functional abilities evaluator) June 5, 2017.
19I placed very little weight upon the report of Mr. Yip, as it was not helpful to the determination of the applicant’s eligibility for an IRB during the relevant time. He indicates that his assessment does not offer a “valid profile” and the applicant’s true functional limitations could not be determined due to “self-limiting” during most tests and her premature termination of the testing due to reports of pain. Given that the assessor considered the results invalid, I am unable to rely on the report for any determination.
20In his report, Dr. Deshpande concluded that, from a musculoskeletal perspective, there was no indication that the applicant was substantially unable to perform the tasks of her pre-accident employment. Although he acknowledged she was “well beyond the 8 to12 week healing period for soft-tissue injuries,” he did not address in any detail the specific tasks of her employment and/or her ability to perform same. He simply notes a lack of objective musculoskeletal finding and opines her functional limitations are due to “subjective complaints of pain.”
21He reached this conclusion in spite of observing limitations in range of motion in her back and shoulders due to pain; normal range of motion in her neck with pain throughout the entire motion; and “numerous pain behaviours, including “widespread complaints, high pain ratings, numerous constitutional symptoms and reported disability level, a flat affect and psychomotor retardation.”5
22Simply put, it would appear as though, based on an inability to correlate the applicant’s pain with a musculoskeletal finding, he disregards the possibility that her subjective pain experience (and the limitations on her range of motion due to same) could result in a substantial inability to perform the essential tasks of her employment. Based on all the foregoing, I was not persuaded by Dr. Deshpande’s opinion.
23Dr. Ornstein diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood, but, from a purely psychological standpoint, opined that the applicant did not suffer a substantial inability to perform tasks related to her employment as a result of the accident. Despite the foregoing, she notes:
In this current evaluation, [the applicant’s] results for pain severity as measured by Visual Analogue Pain scales rated in the Average band, with respect to chronic pain patient norms. This result indicates that [applicant] is likely experiencing a level of pain intensity and pain-related symptomatology commensurate with individuals who are coping with a chronic pain syndrome.
It is further noted that there was no indication of over-endorsement of symptomatology and that the applicant’s “noted limitation per se is pain”.
24Notwithstanding Dr. Ornstein’s opinion that the applicant’s psychological diagnosis would not substantially interfere with her ability to perform the essential tasks of her employment, I found it compelling evidence that the applicant was experiencing pain. In fact, what is consistent through all three IE reports is that the applicant complained of pain and experienced some degree of limitation as a result, which is consistent with her evidence, the records of her family physician and the information contained within the October 26, 2017 OCF-18.
25While I acknowledge the applicant’s involvement in a subsequent motor vehicle accident of October 14, 2017, I also note she did not apply for accident benefits, nor did her treatment providers submit any treatment plans in relation to that accident. But for a brief exacerbation of her existing injuries and new injuries to her left knee and ankle, there is no evidence of ongoing issues relating to these new injuries, nor is there evidence that the second accident resulted in an appreciable change in the applicant’s overall condition or functionality.
26In addition, she had already been assessed by her physician as unable to return to work for an indefinite period on August 8, 2017 and just prior to the second accident, on October 1, 2017, the physician’s notes indicate the applicant continued to complain of pain associated with the January 2017 accident.
27On the basis of the evidence before me, I am of the view that the applicant’s inability to perform the essential tasks of her employment during the relevant time was attributable to the accident of January 11, 2017 and she has established, on a balance of probabilities, that she met the test for IRB eligibility between July 4 and December 13, 2017.
Physiotherapy Treatment plans
28In support of her position that she is entitled to the October 2017 and March 2018 treatment plans, the applicant relies largely upon her testimony, her physician’s records, the January 2019 report of Dr. Wong (physiatrist)6 and an April 2019 report jointly endorsed by her treating chiropractor (Dr. Nguyen) and physiotherapist (Dr. Bararian). The applicant maintains that, without incurring the physiotherapy treatment plans, she would not have recovered and been able to return to work on modified hours.7
29The respondent takes the opposite position and relies upon the June 1, 2017 report of Dr. Deshpande (physician), wherein he was asked to determine whether a treatment plan dated April 22, 2017 was reasonable and necessary. He opines the April 22, 2017 treatment plan is not reasonable and necessary, noting the applicant’s injuries fall within the minor injury guideline and she only reports short-term relief from the treatments proposed. He concludes that she has reached maximum medical recovery and does not require further treatment.
30The respondent notes the October 2017 and March 2018 treatment plans are almost identical to the treatment plan of April 22, 2017 and, on this basis, further IEs were not undertaken, given Dr. Deshpande’s opinion in the June 1, 2017 report.
31I was not persuaded by Dr. Deshpande’s opinion. When he assessed the applicant on June 1, 2017, she reported experiencing ongoing pain and related functional limitation but also reported temporary (2-3 days) relief following her twice weekly physiotherapy, chiropractic therapy and exercise.
32The applicant correctly points out that Dr. Deshpande did not consider a number of relevant factors in his assessment of whether the treatment plan was reasonable and necessary, including the applicant’s improvement, as well as the goals and proposed costs of the treatment plan.
33Based on the foregoing, I preferred the evidence of the applicant’s treating chiropractor and physiotherapist. The respondent argued that little weight should be placed on the April 2019 Nguyen/Bararian report because: it was authored over two years post accident; their notes and records from the relevant time period were not tendered as evidence; and, as treating practitioners, they have a vested interest in the outcome of the dispute.
34I found the report persuasive. As treating practitioners during the relevant time period, they were familiar with the applicant’s injuries, progress and treatment needs. Their statements in the April 2019 report are consistent with their examination of the applicant at the time the treatment plans were recommended and are supported by consistent recommendations from her physician (who, presumably, has no interest in the outcome of the dispute) to attend further physiotherapy to address her accident-related injuries.
35The Nguyen/Bararian report concludes the treatment plans are reasonable and necessary, as the goals of restoring the applicant to her pre-accident level of functioning and relieving her pain were being met to a reasonable degree, the treatment was relatively inexpensive and did not encourage an inappropriate or indefinite dependency or otherwise interfere with other aspects of the applicant’s rehabilitation.
36Further, Dr. Nguyen indicates the applicant’s range of motion had improved between treatment plans. On this basis, he recommends further treatment involving manipulation, exercise and therapy of multiple body sites as well as stimulation of the muscles of the back. This further supports my finding that the treatment plans are reasonable and necessary.
37The treatment plans recommend continuation of therapy to achieve goals including pain reduction and increased range of motion. The assessments of Drs. Ngyuen and Bararian reveal the applicant subjectively reported improvement in her pain and demonstrated improvement in objective range of motion testing.
38For the above noted reasons, I find that the applicant has met her onus in proving on a balance of probabilities that the treatment plans are reasonable and necessary.
Disability Certificate
39I find the applicant is not entitled to payment for the Disability Certificate in the amount of $200.00. I am satisfied that the amount owing for the Disability Certificate has already been paid by the respondent. The adjuster’s log notes dated March 23 and April 7, 2017 indicate that the respondent paid for the disability certificate.
40The respondent filed a copy of the insurer’s ‘financials payment screen’ showing that a $200.00 payment was made to Fairview Wellness on April 7, 2017 in the amount of $200.00. The entry references cheque number 01189048 and the memo column references 395 – the same invoice number referred to in the adjuster’s log notes of both March 23 and April 7, 2017. The payment screen shows the status of the cheque as ‘cleared’. Since I find that the respondent paid for the benefit, I do not find that the applicant is entitled to payment for this disability certificate.
Prescription Medication
41I find the applicant is entitled to payment for the prescription medication claimed. It is clear from the family physician’s records that, prior to the accident of January 11, 2017, the applicant had not complained of pain, nor had she been prescribed any pain medications.
42Pain and pain medication (Vimovo) are addressed for the first time on January 14, 2017. In the months following the accident, the physician continues to prescribe and recommend this medication to address the applicant’s ongoing complaints of pain arising from her accident-related injuries8.
43Sections 14 and 15 of the Schedule indicate that the insurer is liable to pay medical and rehabilitation benefits, including all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident and specifically addresses in s. 15(c) expenses relating to medication. I am persuaded that the medication was prescribed to address the applicant’s accident related injuries and, as such, this expense is reasonable and necessary and payable by the respondent.
Cost of obtaining records
44The applicant did not address this issue at all in her submissions and there is no evidence before me with respect to this issue. As such, I find she is not entitled to payment for the cost of obtaining records in the amount of $287.60.
Award
45Section 10 of O. Reg. 664 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 payment.
46I find the applicant is not entitled to an award. Overall, I was not persuaded by the evidence that the respondent’s decisions to withhold/deny benefits were unreasonable. While the applicant raised numerous arguments in favour of an award, I have only addressed some of the more pertinent reasons for my decision below.
47The applicant submits that the respondent failed to treat her in a fair and balanced manner because there was not a “50% split between decisions favouring the treating doctors’ opinions and the section 44 assessors’ opinions” and the respondent made a “positive decision never to send the medical file to their own assessors”.
48The evidence shows the respondent requested notes and records of the family physician on February 229 and May 5, 201710 and only received same when it received written submissions for this hearing.11 Moreover, the reports of Drs. Wong, Bararian and Nguyen were not prepared until long after IE assessments were completed and were also only provided to the respondent with the written submissions for this hearing.
49It goes without saying that the respondent could not have provided their assessors with files they did not possess and could not have considered same in decisions respecting the applicant’s eligibility for benefits. It would appear the respondent had little compelling medical information upon which to base its decisions and, consequently, I am not persuaded the respondent’s denials were unreasonable.
50The applicant submits the respondent lied to her and unreasonably withheld IRB payments. Based on erroneous information received from the employer that she had long term disability benefits (LTD) which would commence after 16 weeks, the respondent admits that it withheld payment of the applicant’s IRB. The respondent was eventually advised the applicant did not have LTD coverage at all, at which point, the benefit was reinstated. Despite the reinstatement, the applicant specifically alleges that the respondent was not honest with her about it when it received the correct information regarding the LTD from the employer.
51The March 1 and April 5, 2017 log notes indicate the respondent spoke with the applicant’s employer and, on both occasions, received confirmation that she had LTD coverage which would commence after 16 weeks. The log notes further reveal that, on May 9, 2017, the respondent requested information from the applicant’s representative relating to her LTD benefit, including paystubs/payment breakdown. The notes indicate the respondent required LTD information before considering any further IRB.
52On June 6, 2017, the log notes show the applicant’s counsel contacted the respondent to ask why she hadn’t been receiving an IRB and was advised that the employer had confirmed LTD benefits which would start after 16 weeks. It was also noted that, on May 9, 2017, particulars of the LTD benefit had been requested from the applicant’s representative.
53Thereafter, on June 16, 2017, the log notes show the respondent was made aware that the information received from the employer with respect to the LTD benefits was erroneous. A letter was sent to the applicant confirming same and payment was issued for the time period the benefit was withheld.
54The letter does not state the respondent “only just learned that LTD benefits are not payable for the first 16 weeks”, as alleged by the applicant but rather, information was received revealing the applicant did not have LTD coverage (emphasis added). I am satisfied that, prior to June 16, 2017, the respondent was simply acting on information received from the employer and the decision to withhold IRB pending receipt of further particulars was not unreasonable.
55In addition, much was made of a conflict of interest between the respondent and the treatment facility (Lifemark Rehab) to which the applicant was initially referred by the respondent. The applicant was required to sign a conflict of interest disclosure form which she did not understand as there was no Tamil interpreter at the clinic. The applicant testified during cross examination that she attended this clinic only once, as she “did not like it” and “the language barrier was there”. Thereafter she began treatment at a clinic of her choosing.
56At paragraph 52 of the respondent’s submissions, it is noted [the applicant] “was not required to attend Lifemark and has not suggested that she was. The fact that she changed treatment providers indicates that she understood this”. I am in agreement with the respondent and am not satisfied that any issues surrounding a conflict of interest between the respondent and Lifemark Rehab are relevant to the claim for an award.
57The applicant argued that the respondent failed to produce a complete copy of log notes in “direct contravention of the Order of Adjudicator Corapi”12; the adjuster did not keep complete/accurate log notes; and the adjuster’s responses (or lack thereof) to a number of requests for further information from the applicant’s representative throughout the course of the proceedings all warranted an award.
58While it did come to light after the submissions for the parties were received that the respondent had not provided a complete copy of the log notes, there is no reference to log notes or any other productions in Adjudicator Corapi’s order13. Moreover, this has nothing to do with the respondent’s adjusting of the file and is not relevant to the determination of whether an award is warranted. With respect to the allegation that the adjuster failed to keep complete/accurate log notes, the respondent correctly points out that the Schedule does not contain a requirement that the Insurer keep log notes, nor is there any requirement for what ought to be included in log notes. I am not persuaded that an award is warranted based upon the applicant’s dissatisfaction with the level of detail in the adjuster’s log notes.
59Similarly, I was not persuaded that the adjuster’s responses or his lack of response to communications from the applicant’s representative during the proceeding warrant an award, which is contingent upon unreasonable decisions to withhold or delay payments rather than conduct during a proceeding which is unreasonable or perceived as such.
60I considered the all of the applicant’s arguments and evidence in support of an award both individually and cumulatively and do not find that an award is warranted.
Interest
61As I have found the applicant is entitled to IRBs for the period in dispute as well as the two treatment plans claimed, she is accordingly entitled to any interest owing pursuant to section 51 of the Schedule.
62The applicant’s submissions indicate the respondent failed to pay interest with respect to the IRB that was initially withheld and eventually paid for the period of May 8 to June 18, 2017 in the amount of $2,400.00. It is further indicated that, at the time of the hearing, interest remained outstanding on this amount.
63The respondent’s submissions did not address the issue of any outstanding interest on the IRB for the above noted period but did not dispute that the IRB was paid to the applicant for this period, a fact which is reflected in the adjuster’s log note of June 16, 201714. Given the payment of the IRB for this period, it is clear the applicant was eligible for same and, as such, was also entitled to any interest owing on that amount in accordance with the Schedule.
Released: December 30, 2019
Shannon Braun
Adjudicator
Footnotes
- O. Reg. 34/10.
- The Order of April 8, 2019 listed the date of July 3, 2017 but the evidence before the Tribunal is that the respondent terminated the benefit effective July 4, 2017 (Explanation of Benefits dated June 29, 2017).
- The Order of April 8, 2019 listed the amount in dispute as $73.84. At the July 23, 2019 teleconference portion of this hearing, the applicant indicated that the amount initially claimed and listed in the Order was incorrect and the amount at issue is $11.99.
- Pg. 7, Affidavit of the applicant.
- Dr. Deshpande’s physician assessment, June 1, 2017, pp. 3-4.
- As previously stated, I placed little weight upon Dr. Wong’s report, as it was based on an assessment conducted almost 2 years post-accident and the applicant had not been seen by Dr. Wong prior to this assessment.
- Paragraph 17, Affidavit of the applicant
- February 2 “continue same medications”; February 9 “patient given Vimovo 375 mg 2 times daily”; March 5, April 2, April 22 and May 27, 2017 “advised to continue physiotherapy and medications”; July 15, 2017 “continue same management”; August 6, 2017 “continue the pain medications and physiotherapy”.
- Letter dated February 22, 2017 (Respondent’s submissions TAB L).
- Adjuster’s log notes, May 5, 2017 08:10:17 “Sent fax to rep asking that they provide updated regarding the requested CNRs under s. 33”.
- This was stated in the Affidavit of Percy Laryea and this statement was not challenged by the applicant during the cross examination of Mr. Laryea, nor did the applicant produce any evidence in reply to the respondent’s submissions to refute the respondent’s assertion.
- April 8, 2019.
- The order states, “The parties agreed that an order listing the documents to be produced and exchanged is not necessary, but that they shall complete that exchange, including expert reports, by June 28, 2019”.
- “Issued IRB for May 8 to June 18th - $2,400”```
