Citation: B.M. vs. Aviva Insurance Company, 2020 ONLAT 18-009572/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:

B.M.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE CHAIR:

Eleanor White

APPEARANCES:

Counsel for the Applicant:

Mohamed Elbassiouni

Counsel for the Respondent:

Kathleen Mertes

HEARD: In Writing

December 23, 2019

OVERVIEW

1The applicant, [BM] was injured while driving in an automobile accident on April 12, 2016 and sought benefits from the respondent, Aviva Insurance Canada (Aviva), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). [BM] was accompanied by his niece, a front seat passenger. [BM] was stopped at a stop sign, waiting to exit a plaza, when a vehicle backed into him at the front driver side of the vehicle. He was transported to hospital due to reported chest pain and was subsequently released to the care of his family physician.

2The applicant applied for medical and rehabilitation benefits that were denied by Aviva on the grounds that the treatment and assessment plans were not reasonable and necessary. [BM] disagreed with Aviva’s decision and submitted an Application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (Tribunal) on October 10, 2018 for resolution of the dispute.

ISSUES TO BE DECIDED

3The following are the issues to be decided as per the case conference order of Adjudicator Anita John, dated July 24, 2019. Submissions were made in writing.

i. Is the applicant entitled to a medical benefit in the amount of $1,726.99 for a physiotherapy treatment, recommended by Activa Brampton, in a treatment plan submitted (and dated) March 1, 2017, and denied by the respondent on April 11, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $1,703.71 for chiropractic treatment, recommended by Activa Brampton, in a treatment plan submitted (and dated) on March 1, 2017 and denied by the respondent on April 11, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $1,128.10 for chiropractic treatment, recommended by Activa Brampton, in a treatment plan submitted April 21, 2017, and denied by the respondent on May 8, 2017?

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

4Although an award under O. Reg. 664 was listed in the Order of Adjudicator John, the applicant did not include it in his submissions, nor did he make submissions regarding that issue.

PRELIMINARY ISSUES

5In each of their written submissions, each of the applicant and the respondent raised a preliminary issue.

Applicant’s preliminary issue:

6The applicant raised the following preliminary issue:

i. Whether the respondent failed to comply with its obligations mandated under s. 38 (8) of the Schedule and thus s. 38 (11) would apply; more clearly, whether the respondent failed to provide an appropriate notice under s. 38.

Respondent’s preliminary issue:

7The respondent raised the following preliminary issue:

ii. Whether the applicant failed to comply with the Tribunal’s rules of disclosure when he introduced both an affidavit from the applicant and a written statement from the treating physiotherapist in his submissions without prior notice to the respondent.

RESULT

Preliminary issues:

8I find, based on the evidence submitted, that the preliminary issue raised by the applicant has merit for the disputed issue of a treatment plan (OCF-18) for physiotherapy, and for the treatment plan (OCF-18) for chiropractic treatment; both dated March 1, 2017. I find the respondent is not in compliance with s. 38 (8) of the Schedule in its notice of denial pending a s. 44 Insurer’s Examination (IE), in that its language is insufficient in its provision of ‘medical and other reasons’ for denial. Pursuant to s. 38 (11) of the Schedule, the treatment is thus payable for services proven to be incurred between the 11th business day after the submission of the OCF-18 and the date of the final notice of denial following the report from the s. 44 assessor.

9I also find, based on the evidence submitted, that the same preliminary issue raised by the applicant is not valid for the disputed issue of a treatment plan (OCF-18) for chiropractic treatment, submitted on April 21, 2017. In this instance the medical language of the denial was very clear and unequivocal in referencing the report of the s. 44 IE and the reasons contained within that report and the notice of denial. The report referred to was produced to the applicant just prior to the submission of this third treatment plan in dispute.

10I find the preliminary issue raised by the respondent did not cause me to strike either the affidavit of the applicant or the written report of the physiotherapist. The order of Adjudicator John was overly broad in that its only direction regarding disclosure deadlines, stated that no new evidence could be admitted after the date of the hearing, which was specified in the document as December 2, 2019. Obviously, the submission of the affidavit and the physiotherapy report did not contravene that order. Neither party raised the issue of the rather unusual production deadline. The applicant took full advantage of the deadline as written. Please refer to the reasons below for further consideration of the affidavit and the report in question.

Substantive Issues:

11I find the treatment plan in the amount of $1726.19 to be payable, only for the amounts invoiced for the specific period described under s. 38 (11) for any proven incurred treatments. The period begins with the 11th business day after the insurer’s receipt of the treatment plan up until the date of the Explanation of Benefits. The specific dates in this case being from March 16, 2017 to April 11, 2017. The explanation did indeed not provide adequate ‘medical and other reasons’. I do not find, except for the technical exclusion, the plan itself to be reasonable and necessary.

12I find the treatment plan in the amount of $1703.71 to be payable, only for the amounts invoiced for the specific period described under s. 38 (11) for any proven incurred treatments. The period begins with the 11th business day after the insurer’s receipt of the treatment plan up until the date of the Explanation of Benefits. The specific dates in this case being from March 16, 2017 to April 11, 2017. The explanation did indeed not provide adequate ‘medical and other reasons’. I do not find, except for the technical exclusion, the plan itself to be reasonable and necessary.

13I find the treatment plan in the amount of $1,128.10 to be not reasonable and necessary and thus not payable. I find the explanation of benefits is clear and unequivocal and the reasons for denial well founded based on the s. 44 IE report of Dr. Shaun Henderson, chiropractor.

14The application of interest is payable for the treatments incurred within the periods specified above at the rate as stated in s. 50 (4) of the Schedule.

15I find there are no grounds for an award under O. Reg. 664. Were the technical issue not raised, I would find that the denials of all 3 treatment plans in dispute were well-founded and supported by the s. 44 assessment and the totality of the evidence as submitted by both parties.

ANALYSIS

Applicant’s Preliminary Issue of s. 38 (8) of the Schedule (Medical and all other reasons for denials)

16The first treatment plan in dispute from Activa Clinics Brampton included clinical treatment recommendations for 12 sessions of physiotherapy services including interactive assessment, exercise for core stabilization and cardiovascular training, flexibility, passive modalities and a simple assistive device.

17The insurer’s initial notice of denial pending a scheduled s. 44 (IE), received in a timely manner; used the familiar wording “the insurer is unable to determine whether the recommendations in your OCF-18 are reasonable and necessary for the injuries you sustained, and we are not able to pay for your benefits at this time”. As to their medical reasons, the insurer uses the boilerplate language “the type of treatment does not appear consistent with the applicant’s diagnosis”. This is an inadequate response, signifying nothing. The insurer does not specify the ‘diagnosis’ to which it is referring, nor the components of the plan it finds unacceptable and why.

18[BM] has raised caselaw that supports his position, and I agree with the findings therein that the insurer’s ‘medical reason’ provides the applicant with little or no real explanation or understanding of the insurer’s denial. Put quite simply, whether the respondent agrees with the reasonableness or necessity of the recommendations or not, the provider has, in Part 9 of the OCF-18, described the goals of the treatment, the reason for adding a physiotherapist as a treatment provider. The provider has also made brief additional comments in Part 12 and finally in further additional comments at the end of the application has explained the reasons for the proposed treatment. I find that the medical reasons provided for denial are both inadequate and unfounded. The treatment incurred in the period described in s. 38 (11) of the Schedule shall be paid with any applicable interest.

19Under the same rationale, I find the applicant’s preliminary issue is valid for the second treatment plan for chiropractic services submitted again on March 1, 2017. Regardless of the consideration of reasonableness and necessity, the denial was initially made for ‘medical and other reasons’ that are inadequate and unfounded. Again, in this second OCF-18, the provider did comply with requirements of Part 9 and Part 12 of the form to offer similar rationale for the recommendations for treatment and were met with an insufficient reply. The treatment incurred in the period described in s. 38 (11) of the Schedule shall be paid with any applicable interest.

20The third treatment plan for further chiropractic care, was submitted on April 21, 2017 and the insurer referred to the report of the s. 44 IE assessor, Dr. Shaun Henderson, chiropractor. The report provided all ‘medical and other reasons’ to satisfy the requirement of s. 38 (8) of the Schedule and will be considered as a substantive issue in dispute only, with no payment due specifically based on [BM]’s preliminary issue.

Respondent’s Preliminary Issue Regarding Rules for Disclosure

21At the core of the preliminary issue raised by the respondent is the language of the adjudicator’s Order dated June 22, 2019. By all accounts [BM] did not raise his intent to submit an affidavit or a letter from a provider as part of his evidentiary documentation at the time of the case conference. Neither did the adjudicator either raise the issue or provide options for that possibility, after the fact, in her Order. The Order also included (whether mistakenly or not) an unusually broad time period for submission of documents for the hearing, specifying only that no new documents or evidence could be submitted after the hearing. The Notice of Written Hearing states the date of the hearing as December 2, 2019. Neither party queried the disclosure deadline or lack thereof until the issue of the affidavit and physiotherapist’s written statement arose.

22Both parties have submitted their understanding of the issue and the respondent was compelled to submit a reply to the applicant’s reply in correspondence dated December 2, 2019 to clarify the events after receiving the applicant’s reply submissions. I read all the submissions except the 2 disputed documents and noted my preliminary findings prior to reading the affidavit and the physiotherapist’s report. Neither document provided evidence that persuaded me from my initial findings that the treatment plans were essentially neither reasonable nor necessary. Only the applicant’s preliminary issue regarding insufficiency of language in the insurer’s initial notice of denial pending a s. 44 IE, allowed me to deem a specific period of the treatment for two of the three disputed treatment plans, to be payable, as above.

23The Tribunal has the power to strike a preliminary issue without a full hearing based on S. 2 of the Statutory Power Procedure Act¹ and s. 3(2) of the Licence Appeal Tribunal Act, 1993². With those powers and the consideration of the two questioned documents, within the context of all evidence, I did not call a resumption of the hearing for cross-examination of the affiant and/or the author of the physiotherapist’s report.

Are the Treatment Plans reasonable and necessary?

24The term ‘reasonable and necessary’ is not defined in the legislation, but instead evolves in the caselaw. [BM] has referenced Violi v. General Assurance³ adjudicated at FSCO, to exemplify his defense of the denied treatment plans, from which he summarizes the criteria as;

a. the treatment plan should have identifiable goals

b. the goals must show evidence of being met

c. costs (financial and otherwise) should be reasonable in light of the measure of success and availability of alternative treatments.

25In a case of continuing care, as with [BM], the term should logically include the following considerations;

a. is the treatment proving successful to any measurable degree, or in other words, does it merit continuation,

b. is the progress properly monitored,

c. has the treatment been modified to further improve the applicant’s remaining difficulties, or

d. has the applicant reached maximal medical recovery within this aspect of his care?

26[BM] submits that the treatment plans are all reasonable and necessary as he has demonstrable impairment as a result of the injuries sustained in the accident. He specifically emphasizes the issues of hip and knee pain as reasons for continuing treatment. He disagrees with the findings of the s. 44 IE assessor, Dr. Shawn Henderson, chiropractor who fails to find any demonstrable remaining impairment from the injuries sustained in the accident.

27At its core is the following picture; [BM] has an extensive pre-accident medical history including general conditions of diabetes mellitus, hypertension, elevated cholesterol, digestive difficulties, vertigo, headaches, diabetic polyneuropathies, with intermittent tingling or numbness in upper and lower limbs, suspected rheumatoid arthritis, confirmed osteoarthritis in both hips, possible trochanteric bursitis in the right hip, and sleep disturbance and depression. Just prior to the accident, he had been referred to an orthopaedic surgeon for the possible injection treatment for suspected trochanteric bursitis and the ensuing appointment was confirmed one day prior to the accident. The clinical notes of the family doctor Dr. A. Kathiravelu reflect these facts.

28Following the accident, the first visit with the family doctor on April 16, 2016 reveals a report of neck and back pain, whole left side pain, but no specific mention of hip pain.

29When [BM] attends Activa Brampton clinic, the initial report of injuries, recorded subsequently in the OCF-3, dated May 3, 2016, report the following injuries: diabetic neuropathy, sprain and strain of the cervical, thoracic and lumbar spine as well as of the ribs/sternum and sacro-iliac joint. The list also includes sleep disturbance, headache and dizziness. Of those complaints, the diabetic neuropathy, sleep disturbance, headache and dizziness have been well documented in pre-accident medical evidence. The injuries of a sprain and strain nature in the neck, back and left side, but not hip pain, were also recorded by the family doctor as results of the accident. Hip pain was not included in the OCF-3, except in Part 8 of the form, as a pre-accident condition, along with many others.

30The SOAP notes of the treating clinicians reflect in the first month of treatment that [BM] reported he had a sore neck, back and hip. Recall, his physician’s notes report pre-accident hip pain at that time. After June 10, 2016, all subjective reporting up to February 14, and 17, 2017 did not include comments regarding the hip, but only of the neck, mid and lower back and occasionally leg pain. On two occasions; February 14 and 17, 2017, [BM] reported left hip pain to his treatment facility. Later, he reported to the s. 44 IE assessor, that an awkward movement of his ankle while entering a hot tub during his recent holiday, resulted in a fall or movement that pain in the left knee and hip pain for about one week. All treatment notes from the date of the disputed treatment plans supported [BM] self-reporting of slight stiffness in the neck and mid-back after his swimming routing or general lower back pain and treatment consisting of soft tissue treatment to the low back and the use of a modality (IFC) to his upper back. No mention of the hip was specified after February 17, 2017.

31The totality of the reporting illustrates a man with historic bilateral hip problems, among many other problems, who was actively investigating hip pain just prior to the accident, who as a result of the accident sustained soft tissue injuries of his neck, left side, mid and lower back. He may have aggravated the right hip but the treatment of it was short-lived, whilst the treatment of his sprain and strain injuries to neck, mid and lower back persisted. In February, he slipped and irritated his left hip for a short period of a week or so, and subsequently and throughout the disputed treatment, the treatment appeared to be directed to soreness and stiffness after workouts in the pool.

32Dr. Shaun Henderson, in his report of April 10, 2017 acknowledges that at the time of the submission of the treatment plans on March 1, 2017, [BM] had undergone over 11 months of treatment from the Activa Brampton facility. The questions he answered dealt not with past treatment, but whether the treatment plans at this point were reasonable and necessary.

33Dr. Henderson conducted a thorough musculoskeletal examination, took a history, conducted neurological and orthopaedic tests and found that the twice weekly treatments included passive treatment such as heat and ice, use of electrotherapy modalities and since February, massage therapy. Recent physiotherapy had been directed at a left hip injury, dating back to a mishap whilst on holiday at the beginning of February. After all testing, Dr. Henderson concluded that apart from ‘limitations of hip movement’ and findings consistent with diabetic polyneuropathies in the lower extremities there was no evidence of residual impairment from the soft tissue injuries sustained in the accident. The applicant confirmed he had been able to maintain full occupational duties and hours.

34The respondent submits that the clinical notes of the family physicians supports the presence of right hip pain, initially after the accident, as well as other complaints of neck, mid-back, low back, rib and left side pain as well as active right sided hip pain prior to the accident. The timeline of treatment indicated improvement of the hip pain early in treatment and no further mention of it from June 2016 up to February 2017. The other injuries, predominantly soft tissue injuries were treated as [BM] returned to work and to working out in the gym and pool in his building. His endocrinologist noted a weight loss and general improvement due to his increased activity, on September 16, 2016.

35The respondent noted that treatment subsequent to February 14, 2017 was directed to joint mobility by the physiotherapist while the chiropractor and massage therapist treated the neck, mid and lower back due to lingering stiffness.

36The addition of two contested documents included the following information:

37I found the additional documents did not provide evidence that dissuaded me from my conclusions drawn previously to reading them.

38On consideration of all submissions, I find that by March 1, 2017, the soft tissue injuries had been treated to a level of maximal medical recovery that allowed the applicant to return to work, and to pursue physical exercise in the gym and pool of his residential building. The initial treatment of hip pain, never consistently described as right or left hip throughout the various documents in the submissions, was successful according to [BM] in his reporting to his family doctor and represented an aggravation of an active flareup of his historic bilateral hip complaints prior to the accident. The treatment and emphasis on treatment of the left hip is documented in various sources as arising from a slip or fall during a holiday in the Dominican Republic, that aggravated his left knee and hip, leading to hip pain lasting from one week to one month.

39I find that [BM] has multiple reasons for complaints that are ongoing, including diabetic polyneuropathy, arthritis in bilateral hips, patellar fracture and subsequent removal of hardware, eye discomfort from a previous retinal surgery, digestive problems, TMJ issues and long-reported history of headaches as well as sleep difficulties. The issue at hand is the 3 treatment plans for continuing treatments and whether these treatment are pertinent strictly to his accident related injuries.

40I am persuaded by the self-reporting of [BM] in the s. 44 IE report of Dr. Shawn Henderson, chiropractor and the objective findings which do not support the continuation of facility-based treatment to address the residual complaints of the injuries related to the accident. I understand that [BM] has met the test for ODSP support. His medical conditions pre-existing the accident would certainly be pertinent to that benefit. The submissions of the applicant do not include any of the document that describe the reasons for the awarding of an ODSP benefit, only the quantum.

41[BM]’s submissions include two contested documents, both provided in October 2019, two years after the submission of the treatment plans. The physiotherapist’s letter reflects her treatment records from the time of the disputed plan. The letter includes little information other than that gleaned from the OCF-18 dated March 1, 2016 including additional notes attached. These notes confirm the treatment was aimed at the introduction of a right hip pain, not related to the accident. This letter in no way changes my opinion regarding the reasonableness and necessity of the treatment plans in dispute.

42Similarly, the affidavit of the applicant is not significantly from all other documentation, except that it mentions that the hip pain immediately subsequent to the accident involved the left hip. Regardless of the specifics of the hip pain, the treatment was reported to be helpful and no record of hip related treatments were recorded for a period of almost 8 months. The subsequent hip pain was universally attributed to an intervening event of a slip/fall incident while on holiday. The affidavit has not dissuaded me from my findings based on the totality of the evidence presented by both parties.

43In conclusion, I find all three treatment plans from Activa Brampton to be not reasonable and necessary as [BM] has reached maximal medical recovery of his accident related injuries. I do not contest that [BM] may require treatment of his multiple underlying conditions, however do not find them directly related to the accident. Two of the treatment plans, however, due to the preliminary issue raised by [BM], were deemed partially payable pursuant to the respondent’s non-compliance with s. 38(8) of the Schedule and to the remedy mandated in s. 38(11).

Interest

44The respondent shall pay applicable interest on the payment for incurred treatments of both treatment plans dated March 1, 2016 from Activa Brampton for the period between March 16, 2017 and April 11, 2017 at a rate specified in s. 50(4) of the Schedule.

CONCLUSION

45For the reasons above, I find that:

1. The treatment plan dated and submitted March 1, 2017 in the amount of $1,726.99 for physiotherapy treatment is partially payable for any treatments incurred between the 11th business day following the date of submission, March 16, 2017 and the date of denial of the benefit, April 11, 2017 as the respondent was in non-compliance with s. 38(8) of the Schedule and pursuant to the remedy in s. 38(11) of same, with applicable interest.

2. The treatment plan dated and submitted March 1, 2017 in the amount of $1,703.71 for chiropractic services is partially payable for any treatments incurred between the 11th business day following the date of submission, March 16, 2017 and the date of denial of the benefit, April 11, 2017, as again, the respondent was in non-compliance with s. 38(8) of the Schedule and pursuant to the remedy in s. 38(11) of same, with applicable interest.

3. The treatment plan submitted on April 21, 2017 in the amount of $1,128.10 is deemed not reasonable and necessary and thus not payable.

4. Interest is payable for the two periods of payments listed above, in this paragraph [45] (1) and (2).

Footnotes

1. 1R.S.O. 1990, c. S.22
2. 2S.O. 1999, c. 12 Sch. G.
3. 3Violi v. General Accident, FSCOAD, 2000