A.J. v. Aviva General Insurance, 2019 CanLII 18325

Citation: A.J. vs. Aviva General Insurance, 2019 ONLAT 18-000214/AABS

Date: January 24, 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:

A.J.

Appellant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

VICE CHAIR: Susan Mather

Appearances:

For the Appellant: Michael Ferrante, Paralegal

For the Respondent: Amanda Fowler, Counsel

Heard: In Writing September 24, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant was involved in an automobile accident on August 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The appellant was denied several treatment and assessment plans (“treatment plans”) and attendant care benefits, and, as a result, submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

2At a case conference held on May 28, 2018, a written hearing was ordered. The Order made at the case conference lists four treatment plans as being in issue.² Three of the treatment plans have been resolved, and one for physical rehabilitation remains in dispute.

3In addition to payment for this treatment plan for physical rehabilitation, the appellant also seeks an award under O. Reg. 664 with respect to the chronic pain assessment that Aviva paid after the parties’ case conference. The appellant argues that Aviva unreasonably withheld or delayed payments of this benefit.

4For the reasons provided below, both the treatment plan for physical rehabilitation and the request for a lump sum payment award under O. Reg. 664 are denied.

ISSUES

5The issues I must decide are as follows:

(1) Is the appellant entitled to receive a medical benefit in the amount of $4,531.43 for physical rehabilitation, recommended by Health Bound Health Network (“HBHN”) in a treatment plan submitted on December 23, 2015 and denied by the respondent on March 16, 2016?

(2) Is the appellant entitled to interest on any overdue payment of benefits?

(3) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the appellant?

(4) Is the appellant entitled to costs?

BACKGROUND

6The appellant was the driver of a vehcile involved in an accident on August 13, 2015. At the time of the accident, he was not working due to a knee injury sustained in 2012 for which he had surgery in 2013. The appellant sustained injuries in the accident which included fractures of the right tranverse processes at L2, L3 and L4.

7Aviva approved some of the treatment plans submitted by the appellant and denied others. Aviva has paid HBHN almost $9000.00 for chiropractic and massage therapy treatment for the appellant.³

8On August 30, 2018, the day before the appellant’s written submissions were due, Aviva settled the account with HBHN for the chronic pain assessment.

9The Schedule⁴ requires an insurer to pay medical and rehabilitation benefits to or on behalf of an insured person who sustains an impairment as a result of an accident.

10Section 15 of the Schedule provides that the insurer shall pay medical benefits for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for chiropractic, psychological, occupational therapy, and physiotherapy services.

11The burden of proof is on the appellant to show that, on the balance of probabilities, the treatment and services proposed in the treatment plan are reasonable and necessary.

12For the reasons provided below, I am not satisfied that the appellant has met this burden of proof. His application for payment of the treatment plan is, therefore, denied.

13The treatment plan in dispute was submitted on December 23, 2015 and denied by Aviva on March 22, 2016.⁵ It was the fourth treatment plan for physical rehabilitation submitted by HBHN and the first one Aviva denied.

14Aviva denied the plan based on the recommendation of Dr. Dessouki, an orthopaedic surgeon. Following an Insurer’s Examination (“IE”), Dr. Dessouki opinioned that the applicant had reached maximal recovery and would not benefit from further treatment.

15To support his application for payment of the treatment plan, the appellant relies on his Disability Certificate,⁶ the CNRs of his family physician and the treatment plan itself.⁷

Disability Certificate

16The appellant’s Disability Certificate was completed on August 21, 2015. Among other things, it provides that the disability will last 9-12 weeks. Given that the disputed plan was completed on December 23, 2015, some 16 weeks later, the Certificate does not, on its face, support the need for medical treatment.

CNRs of Family Physician

17I agree with the appellant that the CNRs of a family physician do not need to make reference to a specific treatment plan in order to be considered supportive of the plan. The appellant relies on the CNRs from his family physician dated August 17, 2015 and June 29, 2016 to support this treatment plan.⁸

18There is no question that the CNR from the appellant’s August 17, 2015 visit to his family physician supports the initial treatment plans proposed by HBHN. The family physician recommended physical therapy and, for that reason, referred the applicant to a physical rehabilitation medical doctor.

19Following this recommendation, Aviva approved and paid for three treatment plans for physical rehabilitation.⁹ The appellant cancelled his November 9, 2015 appointment with a rehabilitation medicine doctor for a consultation on the management of his fractures of his lumbar spine transverse process tips and did not visit his family physician again until January 7, 2016, four months after the accident.¹⁰

20The second CNR the appellant relies on is dated June 29, 2016. On this date, 10 months after the accident, the appellant complained to his family physician of pain. The family physician recommended home exercises because the appellant did not have coverage for physiotherapy. The appellant argues that this recommendation for physical therapy supports the treatment plan in dispute.

21While this note supported the appellant receiving more physical therapy it does not address whether the specific treatment proposed in this treatment plan is reasonable and necessary. For the reasons provided below I am not satisfied that the treatment proposed in the treatment plan was reasonable and necessary.

22The treatment plan in dispute describes the appellant’s improvement at the end of the previous treatment plan as “continued pain and joint dysfunction.” There is no indication of any improvements or relief, if any, that the appellant gained from the previous plans, and no evidence to show that the plan in dispute was any different from the previous plans.

23I do not agree with the appellant that the therapy recommended in the plan “falls in line with the recommendations of Dr. H.”¹¹ The family physician’s initial recommendation for physiotherapy was made before the appellant had received any treatment, and the family physician was not specific about the treatment modalities to be used.

24The appellant has not provided any evidence to convince me on the balance of probabilities that the earlier treatments he received at HBHN were beneficial and that more treatment was required.

25Aviva raises this lack of evidence in its submissions. According to Aviva’s submissions, the applicant did not provide Aviva with any CNRs or attendance records from HBHN despite Aviva’s requests for them.

26In his reply submission, the appellant states that HBHN’s CNRs are found at pages 156-166 of his submissions. However, those records are the Rouge Valley Health System Emergency Records that the appellant authorized HBHN to obtain from the Rouge Valley Health System. There are no CNRs from HBHN or attendance sheets from HBHN in evidence, and the appellant has not provided any evidence that it has ever provided Aviva with the these records.

27Without evidence to show that the prior treatments were beneficial and that continued treatment was necessary, I am not satisfied on the balance of probabilities that the December 23, 2015 treatment plan was reasonable and necessary.

28My conclusion does not rely on but is supported by the IE report of Dr. Dessouki.

INTEREST

29Having determined no benefits are payable I need not consider if interest is payable.

LUMP SUM AWARD

30The appellant asks to make a lump sum award on the benefit that Aviva paid for the chronic pain assessment to Excel Medical following the case conference on the basis that Aviva unreasonably withheld or delayed payment of the benefit.

31If I am satisfied that Aviva unreasonably withheld or delayed payment of a benefit, s.10 of O. Regulation 664 allows me to award a lump sum of up to 50 percent of the amount that the appellant is entitled to at the time of the award together with interest on all amounts then owing to him (including unpaid interest) at the rate of 2 per cent per month, compounded monthly from the time the benefits first became payable under the Schedule.

32The appellant argues that I have the authority to award a lump sum payment on this benefit claim that was settled after the case conference and before the hearing took place. He relies on the Tribunal decision in the Tribunal File Number 17-006657¹² to support his position.

33In its written submissions, Aviva disputes the appellant’s claim for an award on the basis that the appellant did not provide any particulars in support of his claim for an award or address the issue within his written submissions. The appellant made further submissions on his claim for a lump sum award in his reply submissions, which resulted in Aviva’s motion to strike a portion of the reply submissions.

34In my motion disposition released on December 18, 2018, I allowed Aviva the opportunity to make further submissions to address the reply submissions of the appellant and the Tribunal’s decision in 17-00675. Aviva made no further submissions and does not argue that I do not have the jurisdiction to make a lump sum award on the benefit Aviva paid on August 30, 2018.

35For that reason, I will only address the issue of whether the appellant has shown on the balance of probabilities that Aviva unreasonably withheld or delayed payment of the chronic pain assessment benefit.

36I do not agree with Aviva that the appellant did not provide any particulars with respect to his claim for a lump sum award or address the award in its submissions.

37While the applicant’s submissions are not easy to understand, I am satisfied that the applicant provided particulars of his claim for a lump sum award on pages seven and eight of his submissions and page three of his reply submissions.

38On these pages, he argues that Aviva became obligated to pay the benefit for the chronic pain assessment because it did not deny the treatment plan within the ten days required by the Schedule and did not provide a proper medical reason in its notice of denial.¹³

39He argues that he is entitled to a lump sum award because Aviva unreasonably delayed or withheld payment of the benefit after it became obligated to pay it by the provisions of the Schedule.

40I do not agree with the appellant that Aviva was obligated to pay the benefit by virtue of s. 38(8) and 38(11) of the Schedule.

41For a treatment plan proposing an assessment, the Schedule requires an insurer within 10 days after it receives the treatment plan to give the insured person a notice that identifies the assessment described in the treatment plan that the insurer agrees to pay for, and the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers the assessment or the proposed costs, not to be reasonable and necessary.¹⁴

42The Schedule also provides that, if the insurer does not give notice in accordance with s. 38(8), it shall pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day the insurer received that application and ending on the date the insurer gives a notice that complies with s. 38(8).¹⁵

43The appellant submitted the treatment plan for the chronic pain assessment on September 8, 2016, which Aviva then denied on September 21, 2016. There is no doubt that the treatment plan was not denied within the ten days provided for in the Schedule.

44The medical reason provided by Aviva was the IE of Dr. Dessouki dated March 8, 2016.¹⁶ In his report, Dr. Dessouki concludes that the appellant had reached maximum recovery and did not require any treatment, goods or services, assessments/examinations or diagnostic tests to facilitate his recovery as a result of the motor vehicle accident.

45While Aviva’s notice denying the treatment plan was delivered late, the appellant did not incur the expense for the chronic pain assessment until December 22, 2016, which was long after Aviva delivered its notice denying the plan. For that reason I am satisfied that the benefit did not become payable by virtue of the notice being delivered late.

46The appellant argues that the medical reason provide by Aviva was not proper because the IE exam of Dr. Dessouki was six months before the treatment plan for the chronic pain assessment was submitted and the condition of the applicant had changed.

47The appellant relies on the December 22, 2016 chronic pain assessment of Dr. N. Dhillon¹⁷ that diagnoses the applicant with chronic pain to support his position that Aviva did not provide proper medical reasons when it denied the benefit.

48I do not agree with the appellant that Aviva did not provide proper medical reasons in its September 21, 2017 notice denying the treatment plan. The notice clearly sets out the IE being relied upon and includes quotes from Dr. Dessouki’s opinion.

49In my view, it was open to Aviva to rely on an earlier IE report that provides the opinion that the appellant had reached maximum recovery and no further treatment was required. There is nothing in the Schedule to suggest an insurer need obtain an IE report for each treatment plan.

50The appellant has not provided me with any case law to support his position that an IE report dated before a treatment plan cannot be relied upon as a medical reason for denying a subsequent plan.

51The facts in this case are distinguishable from the facts in 17-006757 which the appellant relies on in asking me to find that the benefit became payable because Aviva did not comply with s. 38(8) of the Schedule.

52In 17-006757 the adjudicator found that Aviva was in violation of the Schedule because its notices denying the four medical treatment plans were all delivered late and did not provide reasons why the benefits were denied. The adjudicator found that the benefits became payable because of Aviva’s failure to comply with requirements of the schedule for the timing and contents of the notices. He found that by not complying with the requirements of the Schedule Aviva unreasonably delayed or withheld payments of benefits.

53In this case Aviva gave notice denying the treatment plan for the chronic pain assessment before the expense was incurred and I am satisfied the medical reasons provided by Aviva in the notice meet the Schedule’s requirement for medical reasons.

54The request for a lump sum award is denied. Aviva did not become obligated by the Schedule to pay the benefits and for that reason did not unreasonably withhold or delay the payment of the benefit.

COSTS

55Rule 19.1 of Tribunal’s Rules allows a party who believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith to make a request to the Tribunal for costs.¹⁸

56Rule 19.2 allows a request for costs to be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.

57In its written submissions, Aviva reserved its right to seek costs in this matter. I have no notice from Aviva that it is seeking costs in this matter.

58In his reply submissions, the appellant objects to the respondent’s request for costs. He asks for his own costs on the basis that Aviva did not provide any evidence to satisfy the requirement of Rule 19.1 and that Aviva routinely requests an award of costs from the Tribunal in an effort to punish applicants from disputing its denial of benefits.

59The appellant’s request for costs is denied. Aviva has not requested costs in this matter. For that reason there is no merit to the appellant’s argument.

ORDER

60For the reasons provided I Order:

1. The application is dismissed.

2. The appellant’s request for costs is denied.

Footnotes

1. 1O. Reg. 34/10.
2. 2Order of Adjudicator M. Letourneau released July 9, 2018.
3. 3Page 312, Appellant’s Documents.
4. 4Section 14, O. Reg. 34/10
5. 5Page 319, Appellant’s Documents
6. 6Page 14, Appellant’s Documents.
7. 7Pages 4, 5 and 6, Appellant’s Submissions
8. 8Page 5, Appellant’s Submissions
9. 9Page 312, Appellant’s Documents Treatment plans dated August 21, 2015, October 23, 2015 and November 6, 2015 were approved an paid for totalling $8,984.19.
10. 10Page 128, Appellant’s Documents
11. 11Dr. H. is the appellant’s family physician
12. 1217-006757 v. Aviva Insurance Canada ; 2018 CanLII 81949 (ON LAT)
13. 13The lack of paragraph number in the appellant’s written submissions makes them difficult to read and refer to. While the Order made at the case conference did not require the paragraphs to be numbered I consider numbered paragraphs to be the proper form for written hearing submissions.
14. 14S. 38(8) O. Reg. 34/10
15. 15S. 38(11) O. Reg. 34/10
16. 16Page 359, Appellant’s Documents
17. 17Page 361, Appellant’s Documents
18. 18Common Rules of Practice and Procedure, October 2, 2017