R. P. v. Aviva Insurance Canada, 2019 CanLII 22220

Licence Appeal Tribunal

Date: 2019-03-12

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:

R. P.

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Amanda Fricot

APPEARANCES:

For the Applicant:

Alim Ramji

For the Respondent:

Shivani Mehta

HEARD In Writing on:

October 1, 2018

OVERVIEW

1R.P. (the “applicant”) sustained injuries on August 30, 2015¹ when he was struck by a minivan while standing on the road. He rolled over the hood of the minivan, on to the roof and off the side of the roof to the ground. When Aviva Insurance Company of Canada (“the respondent”) denied his application for some accident benefits under the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”), the applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

ISSUES IN DISPUTE

Preliminary Issues

2To determine the applicant’s entitlement to the claims in issue listed below, I must first address the following:

1. Should the Tribunal consider the “Reply Submissions to the Applicant’s Reply”, filed by the respondent on September 25, 2018 (“respondent’s Reply”)?

2. Did the respondent satisfy the notice requirements under Section 38(8) of the Schedule² when it denied the applicant’s claim for the physiotherapy services and the orthopaedic assessment?

Claims in Issue

3The following claims are in issue³ before the Tribunal:

1. Is the applicant entitled to receive a medical benefit in the amount of $1,750.98 for physiotherapy services recommended by [the Rehab Centre] in a treatment plan submitted on April 7, 2016 and denied on May 11, 2016?

2. Is the applicant entitled to receive payment for the cost of examination in the amount of $2,248.90 for an in-home assessment and an assessment of attendant care needs (“Form 1”), performed by [the Rehab Centre], submitted on March 9, 2016 and denied on March 10, 2016?

3. Is the applicant entitled to receive payment for the cost of examination in the amount of $2,460.00 for an orthopaedic assessment, performed by [the Rehab Centre], submitted on March 7, 2016 and denied on April 8, 2016?

4. Is the applicant entitled to receive an award under Ontario Regulation 664⁴ because the respondent unreasonably withheld the payment of benefits?

5. Is the applicant entitled to interest on any overdue amounts?

RESULT

Preliminary Matters

4For the reasons that follow, I find:

1. Only the portions of the respondent’s Reply that allege “misstatements” or “false statements” in the applicant’s Reply have been considered in reaching a decision in this matter.

2. The respondent’s initial notices of denial relating to the treatment plan for physiotherapy services and for an orthopaedic assessment were insufficient. Proper notice of denial of both claims was given June 15, 2016.

Claims in Dispute

5For the reasons that follow, I find:

1. The applicant is not entitled to payment of the treatment plan for physiotherapy services, submitted April 7, 2016, because the treatment plan is not reasonable and necessary. The applicant is, however, entitled to payment for costs incurred, if any, for treatment on June 14, 2016 (the only date that treatment pursuant to this treatment plan was received between April 22, 2016 and, when proper notice of denial was given on June 15, 2016). The applicant is also entitled to interest in accordance with s. 51 of the Schedule, on that amount, if any.

2. The applicant is not entitled to payment of the treatment plan for an in-home assessment, submitted March 9, 2016, because the treatment plan is not reasonable and necessary.

3. The applicant is not entitled to payment of the treatment plan for an orthopaedic assessment, submitted March 7, 2016, because the treatment plan is not reasonable and necessary. The respondent’s initial defective notice of denial does not give rise to any entitlement as no costs were incurred pursuant to this treatment plan.

4. The applicant is not entitled to receive an award under Ontario Regulation 664.

ANALYSIS

Should the Tribunal consider the respondent’s Reply Submissions?

6The Tribunal’s Order dated June 26, 2018 directed that written submissions be filed by the applicant and the respondent, and that the applicant file reply submissions. When the respondent filed a Reply to the applicant’s reply, the applicant objected and submitted that they ought not to be considered by the Tribunal.⁵ The respondent then alleged that the Reply had been filed as the applicant’s submissions contained “misstatements of facts that the respondent needed to address”.⁶

7In light of the respondent’s Reply submission that the applicant’s submissions contained “misstatements of facts”, I concluded that it was necessary for me to review the respondent’s Reply to determine whether the same should be considered. Having done so, I find that only the portions of the Reply that address alleged “false statements”, namely paragraphs 6, 7, and 8, should be considered by the Tribunal, as the remaining portions are submissions and arguments that could have been made in the respondent’s written submissions. I find it would be inappropriate to allow the respondent to make these further submissions following the applicant’s reply submissions.

8Having reviewed paragraphs 6, 7, and 8, I find that the same do not identify any “misstatements of facts” or “false statements” in the applicant’s reply submissions. I note, however, that without the clarification set out in the respondent’s Reply, the applicant’s reply submissions could have been misunderstood to mean that the respondent had received the applicant’s family doctor’s clinical notes well in advance of when they were actually received on May 28, 2018. For the reasons set out below, I do not find that anything turns on this fact.

Did the respondent satisfy the notice requirements under [Section 38(8)](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html) when it denied the applicant’s claim for physiotherapy services and an orthopaedic assessment?

9Under Section 38(8), the insurer must, within 10 business days after receipt of a treatment plan, give the insured person notice of what in the treatment plan the insurer does not agree to pay for. The insurer must also provide “the medical reasons and all of the other reasons” why the insurer considers what has been denied not to be reasonable and necessary.

10Failure to comply with Section 38(8) gives rise to two consequences under Section 38(11).

i. Firstly, an insurer who fails to provide the insured with adequate notice of the reasons for denial is prohibited by Section 38(11)1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline⁷ (“MIG”) applies. In this case, as the respondent removed the applicant from the MIG as a result of psychological injuries, Section 38(11)1 is of no consequence.

ii. Secondly, under Section 38(11)2, an insurer who fails to provide the insured with proper notice of the reasons for denial, must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the treatment plan and ending on the day the insurer gives notice as described in Section 38(8). The onus is on the insurer to establish that the applicant received proper notice of denial that was clear and unequivocal.

11The applicant submits that the respondent did not give proper notice of denial when it denied the treatment plans for physiotherapy services and for an orthopaedic assessment. The respondent submits that it did.

12The Explanations of Benefits (EOBs) that initially denied these treatment plans were both sent prior to the respondent concluding that the applicant was not subject to the MIG as a result of psychological injuries, and are similarly worded⁸. Both indicate that the respondent was “unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury.” Under the heading “Medical Reason” both EOBs state: “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence that impairment sustained is not predominately a minor injury.”

13I find that both initial EOBs are vague and do not provide the applicant with clear or sufficient medical reasons for the denials to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision. It is not clear from the EOBs what the basis is for the respondent’s conclusion that “the health practitioner has not provided compelling evidence”. Accordingly, I find that the initial EOBs do not satisfy the respondent’s obligations under Section 38(8).

14The respondent submits that even if the notice given in the initial EOBs was not sufficient, the further EOB dated June 15, 2016 constitutes proper notice. The June 15, 2016 EOB maintains the denial of the physiotherapy services and the orthopaedic assessment and relies upon the Insurer’s Examination (“IE”) report findings that the same are not reasonable and necessary. A copy of the IE’s reports was attached.

15The applicant submits that enclosing the IE Reports with the EOB is not sufficient and submits that the respondent still has not provided any medical reasons or discussion of the applicant’s condition sufficient to satisfy its obligation under Section 38(8).

16Although attaching an IE Report to an EOB may not always satisfy the respondent’s notice obligations under Section 38(8), in this case the IE Reports are clear and explain the applicant’s medical condition and the basis for the IE’s conclusions that neither the physiotherapy services nor the orthopaedic assessment are reasonable and necessary. Those conclusions are adopted by the respondent by reference to the same in the EOB. I therefore find that the respondent met its notice obligations as of June 15, 2016.

17The treatment plan for physiotherapy services was submitted on April 7, 2016. As a result of the respondent’s improper notice the applicant is entitled to payment for services incurred between April 22nd, 2016 (the 11th business day after the treatment plan was submitted) and June 15, 2016 (the date when proper notice of denial was given). Based on the detailed accounts of [the Rehab Centre]⁹, the applicant received treatment as set out in the treatment plan on June 14, 2016. I therefore find that the applicant is entitled to payment for costs incurred, if any, for treatment on June 14, 2016, plus interest in accordance with Section 51 of the Schedule.

18Effective notice of denial of the treatment plan for an orthopaedic assessment was provided on June 15, 2016. There is no evidence that any costs were incurred in relation to that treatment plan either before or after June 15, 2016. The applicant submits that no costs need be incurred to trigger payment under Section 38(11)2. The respondent submits that there is no entitlement under Section 38(11)2 unless costs have been incurred during the relevant time period. I find that Section 38(11)2 limits entitlement to payment for goods, services, assessments and examinations “that relate to the period” starting on the 11th business day after receipt of the treatment plan, and ending on the day proper notice is given. As no costs were incurred in the relevant period in relation to the orthopaedic assessment treatment plan, I find that there is nothing owing with respect to the same.

Is the applicant entitled to payment for the treatment plans in issue?

Background

19The applicant alleges that he was struck three separate times by a minivan being driven by his ex-girlfriend – once on the right arm, once on the right side of his abdomen, and third time when the applicant alleges that the impact caused him to be “projected over the roof of the car”. There is no evidence regarding the first and second incidents other than the applicant’s brief references to them. The third incident was captured on a 10 second video that shows the applicant standing in the middle of the street facing an approaching minivan. The applicant then appears to jump up immediately before being hit by the minivan, and then rolls over the hood, onto the top of the minivan, off the side of the roof and onto the road. The applicant then gets to his feet immediately and is seen walking on the street.

20The applicant advised Dr. Sharma, who conducted a Physician IE on January 19, 2016, that he landed on his right side and immediately felt pain in his lower back. He further advised that an ambulance attended the scene but that he was not taken to the hospital. The morning after the accident, he experienced headaches and pain in his lower back and right shoulder and went to a walk-in clinic where he was examined and told to take over-the-counter aspirin.

21The applicant visited Dr. Mandel, his family doctor, on September 28, 2015 complaining of pain in his shoulder and back. He advised Dr. Mandel that he had been in an accident and showed him the video and advised that he had been sent for therapy by the walk-in clinic he visited shortly after the accident. The applicant attended therapy 2-3 times per week at [the Rehab Centre] commencing on September 19, 2015 until March 2016. He attended 6 times between April 2016 and October 2016. His therapy included exercises, electrotherapy, heat/cold therapy and massage therapy.

22Dr. Mills conducted a Psychological Assessment on March 29, 2016 and diagnosed the applicant with “Adjustment Disorder and Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder, with prominent pain, Persistent”. In his May 22, 2016 IE Psychological Assessment Report, Dr. Schwartz diagnosed the applicant with “Adjustment Disorder with Anxiety”. On June 15, 2016, as a result of the applicant’s psychological impairment, the respondent concluded that the applicant was not subject to the MIG.

23The applicant submits that he was not able to return to work until October 1, 2017, more than two years after the accident, as a result of accident related injuries. The only evidence to support this is the applicant’s own evidence and his self-reports to various assessors. I find that there is insufficient and conflicting evidence regarding both the nature of the applicant’s employment at the time of the accident and whether he was prevented from returning to work as a result of accident related injuries. For these reasons, I give the applicant’s alleged inability to return to work until October 1, 2017 as a result of accident related injuries no weight in determining his entitlement to the benefits claimed.

Is the applicant entitled to payment for the physiotherapy treatment sought?

24Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.

25The applicant bears the onus of proving, on a balance of probabilities, that the physiotherapy treatment claimed is reasonable and necessary. To satisfy that onus, the applicant must establish that there is evidence supporting the treatment plan for physiotherapy, and that the treatment proposed will be effective to treat injuries sustained in the accident.

26I find that the treatment plan for physiotherapy treatment is not reasonable and necessary for the following reasons.

27The March 29, 2016 treatment plan recommends a continued active functional restoration program. However, other than indicating that the applicant reported some benefit from the prior facility based care, the treatment plan does not adequately address what the applicant’s improvement was as a result of the same type of therapy over the prior seven months or why continued treatment will be effective in treating the applicant’s injuries. Additionally, one of the goals that the treatment plan sought to achieve includes increased range of motion. This is inconsistent with the observations of the applicant’s family on September 28, 2015 and April 28, 2016, that the applicant had almost full range of motion in his neck, shoulder and back, and Dr. Sharma’s observation on January 19, 2016 that his range of motion was within normal limits.

28In his Physician Paper Review Report #2 dated May 15, 2016 (finalized May 25, 2016), Dr. Sharma concludes that the treatment plan in issue is not reasonable and necessary, noting the following: the applicant’s injuries were soft tissue in nature; the applicant had reported at his January 19, 2016 assessment that he had 0% improvement with physical therapy and only temporary pain relief when undergoing therapy; and based on his assessment and review of the documents, the further facility based therapy proposed in the treatment plan is not indicated for the management of the applicant’s injuries.

29When all of the evidence is considered, I find that the treatment plan for physiotherapy services is not reasonable and necessary. I therefore find that the applicant is not entitled to payment of the treatment plan for physiotherapy services.

Is the applicant entitled to payment for the assessments sought?

30Section 25(1) of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. The applicant bears the onus of proving, on a balance of probabilities, that each of the assessment plans sought is reasonable and necessary.

(a) In-Home Assessment

31I find that the applicant is not entitled to payment for an in-home assessment for the following reasons.

32The January 28, 2016 treatment plan, submitted on March 9, 2016, indicates that the objective of the in-home assessment is to address the applicant’s self-reported inability to “effectively engage partially and/or fully in all/most required housekeeping chores” and “to educate the patient on assistive devices used in the transition from dependency to independence in the home environment”.

33The applicant’s family doctor’s clinical notes make no mention of the applicant requiring any assistance with personal care or housekeeping chores when he first examined the applicant on September 28, 2016 or at any time thereafter. The reports of various experts who assessed the applicant indicate that the applicant advised that:

1. he was able to look after his own personal care, although he did it slowly¹⁰;

2. he did not require an attendant to assist with self-care activities¹¹;

3. he had modified his household duties so that he could manage them more easily (for example, he had reduced the weight of the clothes in each load of laundry¹²; he was taking out less garbage at a time¹³; he was taking breaks to sit down when washing dishes¹⁴);

4. he was unable to perform heavy labour such as snow shovelling¹⁵, and during the winter following the accident, the neighbour whom he shared snow shovelling with helped him with a greater share of the snow removal¹⁶; and

5. a number of daily activities caused him pain and he required extra time to complete them.¹⁷

34At a March 30, 2016 assessment¹⁸, the applicant advised that he was taking Advil, 2 tablets, 2-3 days per week for pain.

35I find that when the treatment plan for an in-home assessment was submitted on March 9, 2016, it was not reasonable or necessary. The focus of the treatment plan is stated to be transitioning the applicant from “dependency to independence in the home environment”. Based on Dr. Sharma’s assessment conducted on January 19, 2016, the applicant was already independent in the home environment at that time. The applicant’s self-reporting to other assessors also confirms his ability to complete his personal care and household chores, with modifications where necessary, albeit with pain that was controlled with over the counter medication as needed.

(b) Orthopaedic Assessment

36The applicant submits that because he was experiencing ongoing pain at the time the treatment plan for an orthopaedic assessment was submitted, the respondent should have funded the cost of that assessment in order to further investigate the applicant’s pain symptoms. Despite the evidence that the applicant continued to experience some pain, the evidence is insufficient to establish that an orthopaedic assessment was reasonable or necessary for the following reasons.

37The treatment plan submitted March 7, 2016 recommends an orthopaedic assessment to evaluate the applicant’s ongoing physical status and provide an opinion on causation in relation to the accident. It notes that the applicant reported continued pain, headaches, anxiety, frustration, irritability, depressed mood and very poor sleep quality and that these restrictions were reported to have a “substantial impact on his ability to participate in the majority of work tasks, in home tasks and activities of daily living”. As outlined above, however, the evidence establishes that at the time this treatment plan was completed, the applicant was independent with regards to home tasks and activities of daily living, although he was experiencing some pain when completing the same.

38When the applicant visited his family doctor for the first time after the accident on September 28, 2015, Dr. Mandel viewed the video of the accident and examined the applicant who was complaining of pain in his shoulder and back area, and notes that the he had almost full range of motion in his neck, shoulder and back. Dr. Mandel did blood and urine tests and advised the applicant to continue with physiotherapy, but ordered no x-rays or other diagnostic tests. When the applicant next saw Dr. Mandel on April 28, 2016, he advised that his neck and upper back were still painful and that he was seeing a chiropractor. Dr. Mandel again notes that the applicant had almost full range of motion and that he would “consult with the chiropractor and will refer for physiatry assessment if patient consents”. There is no further mention of any such referral in Dr. Mandel’s subsequent clinical notes. He saw the applicant next on July 13, 2016 with persistent lower back and neck pain. On August 9, 2016 Dr. Mandel notes that he referred the applicant for physiotherapy. There are no clinical notes regarding neck or back pain after August 9, 2016.

39Dr. Sharma’s report of his January 19, 2016 assessment indicates that the applicant reported low back and right shoulder pain and intermittent headaches. Following a physical examination, he diagnosed the applicant as having the following soft tissue injuries: post-concussive headaches, cervical myofascial strain (WAD1) and lumbosacral myofascial strain, which he expected would resolve within the following three to four months. Dr. Sharma notes that it was important for the applicant to resume regular activities and start a home exercise program, and indicates that he could take over the counter medications as needed for pain.

40In his Paper Review Report #1 dated March 17, 2016 (finalized on May 25, 2016), Dr. Sharma, after referring to his January 19, 2016 assessment, concluded that the treatment plan for an orthopaedic assessment was not reasonable because the applicant had sustained uncomplicated soft tissue injuries and there was “no rationale or indication for orthopaedic injuries that would warrant an Orthopaedic Assessment”. When the treatment plan for an orthopaedic assessment was submitted on March 7, 2016, it was still within the three-four month recovery time initially expected by Dr. Sharma. When his Physician Paper Review Report #1 was finalized May 25, 2016, it was just past that expected recovery time, but Dr. Sharma makes no specific reference to this, nor does he provide a revised expected time for recovery. For this reason, I have given somewhat less weight to Dr. Sharma’s opinion.

41If find the evidence from the family doctor’s clinical notes to be the most persuasive evidence. The applicant’s family doctor, who examined the applicant on September 28, 2015 and viewed the video of the accident and saw the impact and how the applicant fell, did not order any diagnostic tests or an orthopaedic assessment. The applicant did not see his family doctor again until April 28, 2016 at which time the possibility of referring the applicant for a physiatry assessment was noted, but there is no evidence that that was ever follow up on by either the applicant or his family doctor. From September 2015 until July 13, 2016, the applicant’s pain was being managed with limited use of over the counter medication. On July 13, 2016 Naprosyn was prescribed along with over the counter medication (Tylenol/Advil). There is no evidence of the applicant reporting any neck or back pain after August 9, 2016.

42Based on a review of all of the evidence, and considering the family doctor’s clinical notes together with the opinion of Dr. Sharma, I find that the applicant has not proven, on the balance of probabilities, that the orthopaedic assessment sought is reasonable and necessary. I therefore find that the applicant is not entitled to payment of the treatment plan for an orthopaedic assessment.

Is the applicant entitled to receive an award under Ontario Regulation 664?

43Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has “unreasonably withheld or delayed payments”, the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled together with interest from the time the benefits first became payable under the Schedule.

44I find that the applicant is not entitled to an award under Ontario Regulation 664 for the following reasons.

45The applicant submits that he is entitled to an award under Ontario Regulation 664 and alleges that the respondent acted in bad faith when it overlooked the medical evidence in Dr. Sharma’s January 2016 report, failed to remove him from the MIG in January 2016, and unfairly denied physiotherapy treatment and an orthopaedic assessment. The applicant relies on Dr. Sharma’s finding that he suffered from post-concussive headaches, which the applicant submits is sufficient to remove him from the MIG. The applicant also relies on Dr. Sharma’s opinion that he was not expected to recover from his injuries until eight to nine months post-accident, which the applicant submits should have caused the respondent to conclude that the applicant suffered from chronic pain that fell outside the MIG.

46The evidence does not support a finding that the respondent should have removed the applicant from the MIG in January 2016 on either of the grounds argued by the applicant. Even if the evidence had supported removal from the MIG in January 2016, as I have found that the physiotherapy and orthopaedic assessment treatment plans are not reasonable or necessary, earlier removal from the MIG would have been of no consequence.

47As non-compliance with Section 38(8) has been remedied in accordance with Section 38(11) as set out above, I find that the applicant is not entitled to an award under Ontario Regulation 664.

ORDER

48I order that:

1. The applicant is entitled to payment for costs incurred, if any, for physiotherapy treatment on June 14, 2016, plus interest in accordance with s. 51 of the Schedule, on any overdue amounts.

2. All of the applicant’s other claims are dismissed.

3. The applicant is not entitled to an award under Ontario Regulation 664.

Footnotes

1. 1The applicant’s Written Submissions and the medical reports refer to an accident date of September 6, 2015. However, the Application for Accident Benefits, signed by the applicant on September 14, 2015, and the respondent’s Written Submissions indicate that the accident was on August 30, 2015.
2. 2All references in this Decision to Section 38(8) or Section 38(11) are references to those sections in the Schedule.
3. 3The Applicant confirmed in paragraph 3 of his Written Submissions dated August 26, 2018 that he had withdrawn his claims for attendant care benefits and non-earner benefits on August 23, 2018, and that all other Issues identified in the Tribunal’s June 26, 2018 Order remain in dispute. Although the respondent’s Written Submissions filed September 11, 2018, state that Issue #1 above has been withdrawn or resolved, there is no evidence to support that assertion.
4. 4R.R.O. 1990, as amended.
5. 5Email from the applicant to the Tribunal, dated September 25, 2018 at 3:17 p.m.
6. 6Email from the respondent to the Tribunal, dated September 25, 2018 at 3:37 pm.
7. 7Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
8. 8EOB dated March 18, 2016 denying the orthopaedic assessment; and EOB dated April 29, 2016 denying the physiotherapy treatment.
9. 9Outstanding Account at [the Rehab Centre], Applicant’s Written Submissions, Tab 5.
10. 10May 22, 2016 IE Psychological Assessment Report by Dr. Schwartz (Assessment May 10, 2016).
11. 11January 19, 2016 IE Physician Assessment Report by Dr. Sharma.
12. 12Supra at footnotes 10 and 11.
13. 13Supra at footnote 10.
14. 14March 30, 2016 IE Occupational Therapy In-Home Assessment Report by Susanna Pui Shan Au.
15. 15Supra at footnote 11.
16. 16Supra at footnote 14.
17. 17Supra at footnote 14; March 20, 2016 In-Home Assessment Report by Rajbir Deo, Occupational Therapist; and March 29, 2016 Psychological Assessment Report by Dr. Mills.
18. 18Supra at footnote 14.