E.D. v. Aviva General Insurance Company, 2019 CanLII 43907

Tribunal File Number: 18-002597/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:

E. D.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

PANEL:

Lindsay Lake, Adjudicator

APPEARANCES:

For the Applicant:

Charles Flaherty, Counsel

For the Respondent:

Pamela Quesnel, Counsel

HEARD:

In Writing on: October 22, 2018

OVERVIEW

1E.D., the applicant, was injured in an automobile accident on November 28, 2014 (“the accident”) and sought payment for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Aviva General Insurance Company (“Aviva”). Aviva denied E.D.’s claim and, as a result, E.D. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on March 27, 2018.

2The parties were unable to resolve their dispute at a case conference held on July 26, 2018, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is E.D. entitled to receive a medical benefit in the amount of $3,604.64, representing an unpaid balance remaining of the initial claim for $9,229.64, for exercise, manipulation and therapy of multiple body sites and gym equipment recommended by Razortech Human Performance Health and Rehabilitation in a treatment plan dated November 29, 2017, and denied by Aviva on February 28, 2018?

(ii) Is E.D. entitled to interest on any overdue payment of benefits?

(iii) Is E.D. entitled to an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?

RESULT

4Based on the evidence before me, I find that:

(i) E.D. is entitled to the unapproved portion of the November 29, 2017 treatment plan for the proposed gym equipment as she has proven on a balance of probabilities that it is both reasonable and necessary. E.D. is also entitled to any interest owed on any overdue payment of benefits in accordance with section 51 of the Schedule; and

(ii) Aviva’s conduct does not warrant an award because it did not act unreasonably in withholding or delaying payment to E.D. for the proposed gym equipment.

PROCEDURAL ISSUES

Addition of a new issue in dispute – Award

5In her submissions, E.D. makes a claim for an award under Ontario Regulation 664 despite this issue not being listed as an issue in dispute in the August 21, 2018 Order following the case conference in this matter. E.D. has not filed a formal Notice of Motion requesting this relief.

6As I have both parties’ positions on the merit of E.D.’s claim for an Award, I am allowing the issue to be added as part of this hearing. Aviva has not claimed any prejudice by the addition of the issue and was able to provide submissions in response to it. Further, adding the Award issue to the issues in dispute, even at the hearing, promotes efficiency and is consistent with previous decisions of the Tribunal.¹

Exclusion of Evidence

7E.D. objected to Aviva’s use of Dr. Mohamed Khaled’s Clarification Report dated June 4, 2018 and Aviva raised concerns over E.D.’s use of Mr. Ray Ravazzolo’s Explanation Note, dated August 20, 2018 as evidence in the hearing of this matter.

8I find that both documents were exchanged in accordance with the August 21, 2018 Order issued following the case conference in this matter.

9I am not persuaded to exclude either document as evidence for the hearing for the following reasons:

(i) the parties provided no evidence that any prejudice was experienced as a result of these documents being included as evidence in the hearing;

(ii) the documents are both relevant to the issues in dispute as Mr. Ravazzolo’s explanation note provides a rationale for his recommendation of gym equipment and Dr. Khaled’s Clarification Report further elaborates on his earlier report dated February 23, 2018; and

(iii) the Tribunal is concerned about fairness and allowing each party to present their case fully and completely.² The best evidence reasonably available should, as in all matters, inform the Tribunal’s decision in arriving at its decision.

ANALYSIS

10Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

11I find that E.D. has met her onus³ of proving on a balance of probabilities that the proposed gym equipment is both reasonable and necessary.

12The treatment plan in dispute was completed by Dr. Tim Prince, physician, dated November 29, 2017 (the “treatment plan”). The goals of the treatment plan are pain reduction, increase in strength and range of motion. The treatment plan sought to return E.D. to activities of normal living and to pre-accident work activities. The treatment plan notes that E.D. is pregnant but treatment is still able to occur on a modified basis. There were no attachments to the treatment plan.

13The treatment plan consisted of two parts. The first portion of the treatment plan sought funding for admin, exercise, manipulation and therapy of multiple body sites and release (muscles of hip and thigh) for a total of $5,625.00. This portion of the treatment plan was approved and does not form part of this hearing. The second portion of the treatment plan sought funding for gym equipment, including a BodyCraft GX Gym with shoulders, arms, a leg press, a PowerBlock Sport EXP set and a BOSU Balance trainer with pump for a total of $3,604.65 including taxes.

14On February 28, 2018, Aviva denied funding for the second portion of the treatment plan for gym equipment. E.D. disputes this denial and argues that her claim for gym equipment is reasonable and necessary to allow her to participate in an active home based rehabilitation program. E.D. argues that the new equipment was to supplement her existing exercise program to increase her functioning, strength and range of motion resulting in reduced pain, which were all goals identified in the treatment plan.

15Aviva maintains its denial of the second portion of the treatment plan and argues that E.D. has not met her burden of proving that the proposed gym equipment is reasonable and necessary. Aviva relies upon Dr. Mohamed Khaled’s Medical Physician Assessment report dated February 23, 2018 (“Dr. Khaled’s report”) where Dr. Khalid, “determined the equipment as recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident.”⁴ To support its position, Aviva also relies upon Dr. Khaled’s “clarification report” dated June 4, 2018, and the April 6, 2016 Orthopaedic Surgeon Assessment report by Dr. Paul Robert, Orthopaedic surgeon.

16I am satisfied that E.D. has proven on a balance of probabilities that the gym equipment is reasonable and necessary for the following reasons:

(i) I agree with E.D. that pain reduction, increase in strength and range of motion are all legitimate goals of a treatment plan. These are medical reasons supporting the request for the equipment and I disagree with Aviva that the treatment plan failed to include same;

(ii) I agree with E.D. that the partial approval of the treatment plan for the kinesiology sessions is an acknowledgement by Aviva that E.D. continued to have accident-related impairments that required treatment;

(iii) Mr. Ravazzolo, E.D.’s kinesiologist, describes the reasonableness and necessity of the gym equipment in his explanation note dated August 20, 2018, by describing the functionality of the proposed equipment and its benefits when compared to E.D.’s existing gym equipment that was funded by Aviva in 2008 following a previous motor vehicle accident in 2007.⁵ If there is overlap in function between the proposed equipment and E.D’s existing equipment, I find that it is reasonable to request funding for new equipment as E.D.’s equipment from the 2007 accident is over a decade old;

(iv) I do not agree with Aviva that the main purpose of the proposed gym equipment is E.D.’s convenience. In his explanation note, Mr. Ravazzolo speaks to the necessity of E.D. having home equipment as opposed to being a member of a gym, as it would allow E.D. to use the equipment at any time. The necessity of the home gym equipment is made out as E.D. is a mother of four children and requiring her to attend a gym would give rise to childcare considerations whereas this obstacle is not present if she is able to exercise at home;

(v) I do not agree with Aviva that Mr. Ravazzolo’s explanation note should be discredited because he does not specify a less expensive alternative, explain why the previous equipment funded by Aviva is no longer sufficient or fails to provide details about E.D. missing appointments at the gym. Such details are not required to convince me on a balance of probabilities of the reasonableness and necessity of the proposed gym equipment;

(vi) Aviva’s denial of the gym equipment in its February 28, 2018 correspondence to E.D. was not supported by any evidence. Dr. Khaled did not determine in his February 23, 2018 report that the proposed gym equipment was not reasonable and necessary, as stated by Aviva. Rather, Dr. Khaled refers to facility-based soft tissue rehabilitation therapy not being reasonable and necessary and does not speak to the proposed gym equipment despite acknowledging twice in his report that the disputed portion of the treatment plan was the gym equipment;⁶

(vii) Dr. Khalid’s report acknowledges that E.D. has range of motion reduction due to pain and concludes, “further symptomatic relief can be achieved with independent, self-directed, home or community-based active rehabilitation.”⁷ I agree with E.D. that Dr. Khaled’s report supports a home based exercise program; and

(viii) Aviva obtained a June 4, 2018 clarification report from Dr. Khaled in which he acknowledges that E.D. is experiencing “residual pain,” but concludes that the gym equipment is not reasonable and necessary because he failed to identify any ongoing accident-related symptoms. I find these statements of Dr. Khaled to be extremely contradictory. If E.D. is experiencing “residual” pain, meaning pain still remaining, it is illogical to me that Dr. Khaled opines that there is no ongoing accident-related symptoms. I place little, if any, weight on Dr. Khaled’s clarification report because it is clear that Dr. Khaled was aware that the disputed portion of the treatment plan was the proposed gym equipment when he prepared his original report and he could have addressed it at the time but, for whatever reason, he did not.

Interest

17E.D. is entitled to interest for the unapproved portion of the November 29, 2017 treatment plan for gym equipment. Interest is payable in accordance with section 51 of the Schedule.

Award

18Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

19E.D.’s claim for an award is based on events that occurred after December 7, 2017, when Aviva notified E.D. that it required her to attend an IE to determine her entitlement to the proposed gym equipment and that notice of this examination would be forthcoming.

20The following is a timeline of events that occurred after December 7, 2017:

(i) On December 20, 2017, Aviva provided written notice to E.D. that she was required to attend an IE to determine if the gym equipment was reasonable and necessary.⁸ The medical reason listed for the IE, which was scheduled with Dr. Mohamed Khaled, a chronic pain specialist, for January 15, 2018, is, “the frequency of care does not generally diminish over time;”

(ii) On December 21, 2017, E.D. wrote to Aviva seeking clarification on the medical reasons for the IE;

(iii) On January 15, 2018, before E.D. received a response to her request for clarification from Aviva, transportation arrived at her residence to transport her to the IE location. As a result, E.D. attended the IE with Dr. Khaled on this date. In its submissions, Aviva acknowledges “some confusion” surrounding the IE, but argued that it was open to E.D. to advise the transportation company that the IE had been cancelled. Aviva denies any responsibility for the confusion over the transportation to the IE, as its position is that the transportation, “was arranged by the assessment facility;”

(iv) On January 17, 2018, Aviva notified E.D. that the medical reasons for the IE were now, “exercise equipment is recommended without adequate clinical documentation for its necessity over and above the treatment already provided.” A second IE was scheduled by Aviva for February 15, 2018 with Dr. Michael Boucher, a chronic pain specialist;

(v) On January 24, 2018, E.D’s representative advised Aviva that E.D. attended the IE on January 15, 2018 with Dr. Khaled, after transportation arrived at her residence, and questioned why a second IE was scheduled;

(vi) On February 21, 2018, Aviva advised that according to the assessment facility, the January 15, 2018 assessment had not taken place;

(vii) On February 22, 2018, Aviva changed its position and advised that the assessment facility now confirmed that the IE had taken place on January 15, 2018;

(viii) On February 28, 2018, Aviva served E.D. with Dr. Khaled’s February 23, 2018 report along with notice that funding for the gym equipment was denied, as it was found to not be reasonable and necessary by Dr. Khaled. E.D. argues that Aviva did not state in its denial at this time that any further information was required to assist it in making its determination;

(ix) On March 27, 2018, E.D. commenced her application to the Tribunal for the issues in dispute in this matter; and

(x) On June 4, 2018, Dr. Khaled prepared a “clarification report” to his February 23, 2018 report, which was not provided to E.D. until August 10, 2018.

21While I agree with E.D that the entire IE assessment process is under the control of an insurer, including transportation of an insured person to an IE, and I also find it unreasonable for Aviva to not accept any responsibility for the transportation issue and confusion over E.D.’s attendance at the IE, the delay from the date of the treatment plan in dispute until E.D. receiving Dr. Khaled’s IE report was minimal. Further, it was not unreasonable for Aviva to wait for Dr. Khaled’s IE report prior to notifying E.D. of its denial of the gym equipment. Therefore, I find that Aviva’s conduct does not warrant an award because it did not act unreasonably in this matter in withholding or delaying payment of benefits to E.D.

CONCLUSION

22For the reasons outlined above, I find:

(i) E.D. is entitled to the unapproved portion of the November 29, 2017 treatment plan for proposed gym equipment and any interest owed on any overdue payment of benefits in accordance with section 51 of the Schedule; and

(ii) E.D. is not entitled to an award under Ontario Regulation 664.

Footnotes

1. 1See 16-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at paras. 14-15 and 17-001681 v Motor Vehicle Accident Claims Fund (MVACF), 2017 CanLII 87161 (ON LAT) at paras. 9-15.
2. 2See Rule 3.1 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”).
3. 3Scarlett v. Belair Ins. Co., supra note 10, paras. 20-24.
4. 4Correspondence to E.D. from Aviva dated February 28, 2018, Arbitration Submissions of Injured Person, tab 13.
5. 5OCF-18 dated April 28, 2008, completed by Dr. Odette Tunks, chiropractor, and Raymond Ravazzolo, kinesiologist, Arbitration Submissions of Injured Person, tab 6.
6. 6Insurer’s Examination Medical Physician Assessment, completed by Dr. Mohamed Khaled, physician, Arbitration Submissions of Injured Person, tab 12 at page 10.
7. 7Ibid. at page 11.
8. 8Correspondence to E.D. from Aviva dated December 20, 2017, Arbitration Submissions of Injured Person, tab 10.