19-010503/AABS

Released Date: 12/02/2020

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:

Pareshe Bheda

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Glen Bushi, Counsel

For the Respondent:

Rozlien Brikha, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, P.B., was involved in an automobile accident on February 22, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The respondent, (“Aviva”), denied P.B. certain benefits and he applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

PROCEDURAL ISSUES

3On March 26, 2020, the Tribunal held a case conference in this matter. The parties agreed on the issues in dispute. On April 23, 2020, Adjudicator A. Msosa issued a Case Conference Report and Order listing the issues that would proceed to a written hearing.

4In his submissions, the applicant raises an issue not reflected in the Case Conference Order. The issue pertains to a treatment plan dated June 16, 2017 and denied by the respondent on June 30, 2017. The respondent submits that this issue is not properly in dispute. Moreover, it submits that the issue is time-barred, as the applicant filed his application with the Tribunal on September 9, 2019, more than two years after it denied the benefit. The applicant made no submissions on the issue of the limitation period and did not exercise his right of reply.

5The Tribunal’s Case Conference Report of April 23, 2020 indicates that P.B. withdrew the issue of the June 30, 2017 treatment plan at the case conference. P.B. has made no submissions as to why I should exercise my discretion to vary the Tribunal’s order to permit this issue to be heard. However, Aviva has not persuaded me that it would suffer prejudice if the Tribunal decided this issue. By re-introducing the issue he had previously withdrawn in his submissions, P.B. did not prevent Aviva from raising a limitation defence; in fact, Aviva’s arguments as to why the issue should not be included in the dispute centre on the limitation period rather than any potential prejudice. In the interest of a just, most expeditious disposition of the dispute on its merits, I will decide the issue.

ISSUES IN DISPUTE

6I am to decide the following issues:

i. Is the applicant entitled to receive medical benefits for chiropractic/physiotherapy/massage treatment, recommended by PhysioCare and Rehab as follows:

a. $2,436.37 in a treatment plan dated April 30, 2018; received by the respondent on April 30, 2018; and denied on May 14, 2018?

b. $2,336.62 in a treatment plan dated August 10, 2018; received by the respondent on October 10, 2018; and denied on October 24, 2018?

c. $2,336.62 in a treatment plan dated October 24, 2018; received by the respondent on November 26, 2018; and denied on December 7, 2018?

d. $2,409.89 in a treatment plan dated January 25, 2019; received by the respondent on May 14, 2019; and denied on May 24, 2019?

e. $1,215.50 ($2,315.50 less $1,100.00 approved by the respondent) submitted on June 16, 2017 and denied on June 30, 2017?

ii. Is the applicant entitled to $545.00 for a psychological and massage treatment, submitted on a claim form (OCF-6) dated May 17, 2018? And denied June 18, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7P.B. is statute-barred from proceeding with his claim for $1,215.50 for chiropractic and physical therapy as set out in issue i. (e) above because he failed to apply to the Tribunal within two years of the denial of the benefit as required under s. 56 of the Schedule.

8P.B. has not established, on a balance of probabilities, that he is entitled to the remaining benefits in dispute. He has not demonstrated that the proposed treatment is reasonable and necessary as a result of the accident. The respondent is not liable for the additional expenses claimed. Since no payment is owing for the benefits claimed, no interest is payable.

ANALYSIS

P.B.’s claim is partially barred under s. 56 of the Schedule

9Section 56 of the Schedule requires that an applicant commence a proceeding before the Tribunal within two years after the insurer’s refusal to pay an amount claimed.

10Aviva submits that P.B.’s claim for $1215.50 for chiropractic and physical therapy is barred from proceeding pursuant to s. 56. P.B. made no submissions on the limitations issue in his initial submissions and did not exercise his right of reply.

11I find that Aviva properly denied P.B.’s claim for $1,215.50 for chiropractic and physical therapy on June 30, 2017. The plan in dispute was for a total of $2,315.50; Aviva partially approved $1,100.00 of the treatment it proposed. The denial was clear and unequivocal and was communicated in clear and straightforward language capable of being understood by an unsophisticated person. It was accompanied by reasons sufficient to inform P.B.’s decision of whether to dispute Aviva’s refusal. The denial gave notice of the process for disputing the determination, including the two-year time limit for commencing a proceeding. For these reasons, the denial complied with the notice requirements in s. 38(8) of the Schedule and triggered the commencement of the limitation period: see Smith v. Co-Operators.² P.B. applied to this Tribunal on September 9, 2019, more than two years later.

12For these reasons, I find that P.B. is barred under s. 56 of the Schedule from proceeding with his claim for $1215.50 for chiropractic and physical therapy as set out in the June 16, 2017 treatment plan. I need not consider whether P.B. was otherwise entitled to the treatment proposed in this plan.

P.B. is not entitled to the treatment and assessment plans remaining in dispute

13To be eligible for the remaining medical and rehabilitation benefits claimed in his application, P.B. must demonstrate, on a balance of probabilities, that the treatment he is seeking is reasonable and necessary as a result of the accident pursuant to s. 15(1) of the Schedule. He must also establish that the additional expenses claimed are payable under s. 38 of the Schedule.

14It is well-established that the applicant bears the onus of establishing entitlement to a claimed benefit.³

15The parties disagree on P.B.’s entitlement to four Treatment and Assessment Plans (OCF-18s) – as set out in issues i. (a) to (d) above. The services proposed in the plans are substantially the same: they all recommend a total body assessment, several sessions of manipulation; several sessions of exercise of the spinal vertebrae; several sessions of therapy; and several sessions of acupuncture. The treatment plans all identify the same treatment goals: pain reduction, increased range of motion, increased strength, and a return to activities of normal living. P.B.’s chiropractors, Drs. Laila Merchant and Harpreet Ghurman, submitted the plans 14 months, 17 months, 20 months, and 23 months after the accident.⁴

16The applicant has made no submissions directly addressing the reasonableness and necessity of the treatment plans. His submissions are essentially a recitation of the medical evidence he has presented and are of little persuasive value.

17The medical evidence P.B. has presented in support of his claims relates predominantly to his psychological complaints, which commenced after a March 9, 2016 automobile accident (not the accident that is the subject of this application). P.B. has made no submissions as to how the physical therapy he seeks in this application would have any therapeutic benefit for his psychological condition.

18Some of P.B.’s medical evidence pertains to his pre-existing and degenerative medical conditions. However, P.B. has not demonstrated whether and how his pre-existing and degenerative conditions may affect his entitlement to the disputed benefits.

19The evidence relating to P.B.’s physical injuries and his need for ongoing, facility-based physical therapy is limited. As a result of the March 2016 accident, P.B. sustained soft tissue injuries resulting in low back pain. P.B. submits that the February 22, 2017 accident (“the subject accident”) aggravated his pain complaints.

20There are sporadic indications in the medical evidence before me recommending physical therapy after the subject accident. On the day of the accident, P.B. was treated in hospital and was discharged. The next day, he followed up with Dr. S. Amjad, his family physician, who recommended rehabilitation and prescribed pain medication.⁵ Six days after the accident, P.B. visited Dr. Amjad complaining of “lower chest pain after MVA”.⁶

21Dr. Amjad’s recommendation for rehabilitation made one day after the accident does little to establish P.B.’s entitlement to physical therapy one-to-two years after the accident.

22At a January 2019 visit, Dr. Amjad noted P.B.’s musculoskeletal symptoms in his back, and recommended pain medication and rehabilitation.⁷ I assign limited weight to this recommendation for rehabilitation due to the time that had elapsed since the accident and the fact that, during the intervening time, in March of 2018, P.B. slipped and fell in the bathtub, further injuring his lower back.⁸

23On December 7, 2019, P.B. attended a consult with Dr. Anna Labuda, Physiatrist.⁹ Dr. Labuda’s report notes that the 2017 accident aggravated P.B.’s back and neck symptoms and led to new hand and elbow complaints. She noted that P.B. experienced improvement with physiotherapy.

24Dr. Labuda’s notation about physiotherapy offering P.B. some improvement was made nearing the end of 2019, approximately two years and nine months after the subject accident and does little to establish P.B.’s entitlement to the disputed treatment.

25On December 20, 2019, P.B. underwent a Pain Medicine Independent Examination with Dr. Mark Friedlander. Dr. Friedlander found that P.B. met the criteria for chronic pain syndrome, which he identified as duration (chronicity); verbal and non-verbal behavioural changes; and need for medication.¹⁰

26I give little weight to the diagnosis of chronic pain syndrome made by Dr. Friedlander, which was made based on the application of non-standard diagnostic criteria. It is unclear what “verbal and non-verbal behavioural changes” means. This criterion is so broad that it offers little assistance in describing the nature or extent of P.B.’s condition. There is no prescription history in evidence to show that P.B. was reliant on medication, prescription or otherwise, to manage his pain. Does the “need for medication” capture occasional use of over-the-counter analgesics? Short-term prescription drug use? The lack of detail provided by Dr. Friedlander undermines the weight of his conclusions. Finally, the jurisprudence of this Tribunal is clear that mere chronicity of pain complaints is insufficient for a diagnosis of chronic pain syndrome. Considering the intervening time and the slip and fall injury in March of 2018, the chronicity of P.B.’s pain complaints alone does little to establish entitlement to the disputed treatment.

The disputed Expense Claim Form

27P.B. claims he is entitled to reimbursement for the expenses claimed in an Expense Claim Form (OCF-6) he submitted for psychological treatment and massage therapy.

28The respondent denied the expenses claimed on the Expense Claim Form (OCF-6) because they were not contained in an approved Treatment and Assessment Plan (OCF-18). Under s. 38(2) of the Schedule, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submitted a treatment and assessment plan approved by a health practitioner.

29P.B. made no submissions and presented no evidence to prove that the respondent is liable under the Schedule to cover the expenses he claimed for psychological and massage therapy services in the OCF-6. Absent submissions or evidence to provide context for the manner of this claim, I cannot conclude on a balance of probabilities that P.B. is entitled to the amounts claimed.

CONCLUSION

30Viewing the evidence as a whole, I am unable to conclude on a balance of probabilities that any of the four remaining disputed treatment plans are reasonable and necessary as a result of the accident. I am also unable to conclude that the respondent is liable under the Schedule to pay the additional expenses he claims for psychological and massage therapy services. P.B. has failed to discharge his onus of proof. He is not entitled to any of the benefits claimed in this application.

ORDER

31No benefits are payable, and no interest is owing. The application is dismissed.

Footnotes

1. 1Ontario Regulation 34/10.
2. 22002 SCC 30.
3. 3Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
4. 4Respondent’s Brief: Tabs 8, 15, 17, and 19: OCF-18s dated April 30, 2018, August 10, 2018, October 24, 2018, and January 25, 2019.
5. 5Applicant’s Brief, Tab 11: Clinical notes and records of Dr. S. Amjad dated February 23, 2017.
6. 6Applicant’s Brief, Tab 12: Clinical notes and records of Dr. S. Amjad dated February 28, 2017.
7. 7Applicant’s Brief, Tab 23: Clinical notes and records of Dr. S. Amjad dated January 21, 2019.
8. 8Applicant’s Brief, Tab 25: Chronic Pain Report of December 20, 2019.
9. 9Applicant’s Brief, Tab 24: Clinical notes and records from Trafalgar Memorial Hospital dated December 7, 2019.
10. 10Applicant’s Brief, Tab 25: Chronic Pain Report of December 20, 2019.```