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:
J.G.T.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Matthew Hyland, Counsel
For the Respondent:
Petros Yannakis, Counsel.
HEARD:
In Writing on: August 8, 2018
OVERVIEW
1The applicant [“J.G.T.”] was injured in an automobile accident on November 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2J.G.T. applied for benefits from the respondent [“Aviva”], and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.
DISPUTED BENEFITS
3The issues before me are:
(i) Is J.G.T.’s claim, in the amount of $2,520.00 for an orthopaedic assessment by All Health Medical dated August 29, 2017, denied by Aviva on October 1, 2017, reasonable and necessary?
(ii) Is J.G.T. entitled to interest for the overdue payment of benefits?
(iii) Is Aviva liable to pay an award under Regulation 6642 because it unreasonably withheld or delayed payments to J.G.T.?
FINDINGS
4J.G.T. is not entitled to payment of the orthopaedic assessment claimed.
5J.G.T. is not entitled to interest on overdue payments from Aviva.
6J.G.T. is not entitled to an award.
7Aviva is not entitled to costs.
REASONS
8Sections 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 the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.3
Orthopaedic Assessment
9It was not J.G.T.’s family physician who referred him for the orthopaedic assessment, the request and referral came from J.G.T.’s counsel4. I find that a recommendation from a legal representative, who is not a medical professional, does not establish the necessity for an orthopaedic assessment. More significant, the treatment plan does not address the specific need for an orthopaedic assessment. The treatment plan does not set out any specific impairment, lack of function or ongoing pain complaints that the orthopaedic assessment is intended to investigate. J.G.T. was treated regularly by his family physician, who referred J.G.T. for other tests, however, there was no recommendation for an orthopaedic assessment.
10On October 13, 2017, J.G.T. underwent an orthopaedic assessment by Dr. Ogilvie-Harris. J.G.T. complained of ongoing pain in his neck, left shoulder, mid-back, low back, hips and knees. Dr. Ogilvie-Harris concluded that J.G.T. had sustained multiple soft tissue injuries to his neck, left shoulder, back, left hip, left leg and left knee. Dr. Ogilvie-Harris reported that J.G.T. continues to have ongoing pain with functional limitations. He diagnosed J.G.T. with chronic pain syndrome and recommended a multidisciplinary chronic pain management program. This proposed pain management program is not an issue in this hearing.
11J.G.T.’s submissions with respect to the orthopaedic assessment refer to the reason given in Dr. Ogilvie-Harris’ treatment plan5 of the goal; to “investigate the possibility of ongoing musculoskeletal injuries and recommend an appropriate course for treatment”. Dr. Ogilvie-Harris made no objective findings of musculoskeletal injuries. Dr. Ogilvie-Harris concluded in his report that J.G.T. has “gone on to develop the features of a chronic pain syndrome arising from his accident-related injuries”. Dr. Ogilvie-Harris did not make any recommendations from an orthopaedic perspective. I find Dr. Ogilvie-Harris’ report supported treatment from a chronic pain perspective, not from an orthopaedic aspect.
12Aviva submitted that an orthopaedic assessment was not warranted as there was no objective evidence of an orthopaedic injury. It relied on the section 44 reports6 of orthopaedic surgeon Dr. Dessouki, who concluded that there was no objective evidence of significant ongoing musculoskeletal accident-related impairments, similar to Dr. Ogilvie-Harris. In addition, despite MRIs7 being recommended by Dr. Ogilvie-Harris, no imaging had been submitted supporting accident-related injuries that would result in significant ongoing impairments. I agree with Aviva that the orthopaedic assessment was not reasonable and necessary because there was no medical evidence to support the request.
13For these reasons, I find the orthopaedic assessment is neither reasonable nor necessary. AWARD
14Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. J.G.T.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has “unreasonably” withheld or delayed payments.
15J.G.T. has not established that Aviva acted unreasonably within the meaning prescribed in the regulation. His request for an award is denied.
COSTS
16Rule 19.18 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
17Aviva seeks legal costs but makes no argument that J.G.T has met the test of Rule 19.1 in its conduct in this proceeding.
18Aviva’s cost request is denied.
CONCLUSIONS
19J.G.T.’s claim for an orthopaedic assessment is denied, and any entitlement to interest on any overdue payment.
20J.G.T.’s request for an award is dismissed.
21Aviva’s request for costs is dismissed.
Released: April 9, 2019
___________________
Derek Grant
Adjudicator
Footnotes
- O.Reg. 34/10
- s.10, Regulation 664, R.R.O. 1990, Insurance Act
- Scarlett v. Belair, 2015 ONSC 3635
- OCF-18 Treatment and Assessment Plan Referral dated August 29, 2017 from Lofranco Corriero to All Health Medical Centre
- OCF-18 dated August 29, 2017 for an orthopaedic assessment
- Dr. Dessouki – Orthopaedic Assessment dated June 20, 2017 and addendum report dated October 10, 2017
- MRI – magnetic resonance imaging
- All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)