Citation: Rattan vs. Aviva Insurance Company, 2020 ONLAT 19-006304/AABS

Released Date: 12/11/2020

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:

Vimaljeet Rattan

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

VR, Applicant

Arthur Semko, Paralegal

For the Respondent:

Aviva Insurance Company, Representative

Brittanny K. Tinslay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, V.R., was involved in an automobile accident on August 5, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ He sustained injuries to his left shoulder, leg and hip and impairments to his back and chest and suffers from headaches.

2Aviva removed him from the MIG based on a psychological diagnosis of Adjustment Disorder. Despite being out of the MIG, it remains V.R.’s onus to prove that additional treatment is reasonable and necessary. He submitted three treatment plans consisting of aquatic therapy, physiotherapy and chronic pain treatment, that were denied by Aviva on the basis that they were not reasonable and necessary. V.R. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

3The following issues are in dispute:

a. Is the medical benefit in the amount of $ 2,669.10 for aquatic therapy treatment, recommended by Hydroactive Aquatherapy & Rehabilitation Inc. in a treatment plan (“OCF-18”) submitted on March 11, 2019, and denied on April 30, 2019, reasonable and necessary?

b. Is the medical benefit in the amount of $ 2,702.11 for physiotherapy treatment recommended by Inline Rehab, in an OCF-18 submitted on November 15, 2018, and denied on November 27, 2018, reasonable and necessary?

c. Is the medical benefit in the amount of $ 5,708.15 for an assessment recommended by MediAssess Evaluations Inc. in an OCF-18 submitted on February 9, 2019, and denied on April17, 2019, reasonable and necessary?

d. Is V.R. entitled to interest on any overdue payment of benefits?

RES JUDICATA

4Aviva submits that issues 3b. and 3c. in dispute have been previously decided by this Tribunal in V. R. v. Aviva Insurance Company, 2019 LAT 18-002880/AABS (“1st Decision”) and asks that I apply the legal doctrine of res judicata to stay those issues. Put simply, the doctrine prevents a person from bringing multiple claims for the same relief by changing the grounds on which the claim is made. The doctrine requires a person to seek all of the relief in one action.

5The doctrine of res judicata prevents a party from re-litigating a dispute that has already been decided. It is based on the principles of finality in decisions, preventing duplicate litigation, inconsistent decisions, undue costs and inconclusive proceedings². It is generally accepted that there are four prerequisites to be established before a finding of res judicata may be made³:

(i) The two actions must involve the same parties or their privies;

(ii) The claim sought to be asserted must have been within the prior court’s or Tribunal’s jurisdiction;

(iii) Prior adjudication must have been on the merits; and

(iv) The prior decision must have been a final judgment.

6Put simply, the doctrine prevents a person from bringing multiple claims for the same relief by changing the grounds on the which the claim is made. The doctrine requires a person to seek all of the relief in one action.

7In 2018, V.R. applied to this Tribunal to determine whether he was entitled to treatment plans identified in his Notice of Application and in a later case conference order as three treatment plans for “chiropractic treatment” and a “chronic pain assessment”. Before me, the parties pointed out that all three treatment plans were actually for physiotherapy treatment. In the 1^st Decision VC Flude held as follows:

I find that the three treatment plans and the chronic pain assessment are not reasonable and necessary. The dispute between the parties with respect to the denied treatment plans turns on the question of whether further facility-based treatment, such as chiropractic, physiotherapy and massage, was necessary to assist in the applicant’s recovery. Contemporaneous medical records indicate that, once the applicant began an active exercise program at the gym, his symptoms improved dramatically. The applicant had substantially recovered from the impairments caused by the motor vehicle accident over the summer of 2017 and into January 2018.

8Aviva argues the VC Flude’s finding that V.R. had substantially recovered from his accident-related impairments through the summer of 2017 into January 2018 engages the doctrine of res judicata. It also establishes that he would not benefit from further facility-based treatment and is determinative that the current treatment plans are not reasonable and necessary. V.R. argues that the goals of the current proposed treatment are different, so res judicata does not apply.

9I find that the doctrine of res judicata applies to this LAT application because V.R.’s current claim for the November 15, 2018 OCF-18 and the February 9, 2019 OCF-18 have been previously adjudicated on the merits. The previous decision of Vice Chair Flude (“VC Flude”) was clear on the issue of whether the treatment plan for physiotherapy was reasonable and necessary. In addition, VC Flude adjudicated that a chronic pain assessment was not reasonable and necessary based on the medical evidence that V.R. did not have chronic pain syndrome.

The July 10, 2017 OCF-18 and November 15, 2018 OCF-18

10The physiotherapy treatment plan that was previously addressed by the Tribunal was dated July 10, 2017. The one currently before me is dated November 15, 2018. Both were completed by the same treatment provider.

11Aviva argues that V.R. is barred by the doctrine of res judicata, based on VC Flude’s decision related to previously disputed issues from the subject accident. In the first application, V.R. sought a determination that an OCF-18 in the amount of $2,702.11 from July 10, 2017 was reasonable and necessary. Aviva’s position is that the “only difference between the November 15, 2018 OCF-18 and the OCF-18 in the first application is the date. The remainder of the treatment plan is identical including the “Proposed Goods and Services” in Part 12”.

12Aviva’s position is that the same treatment being sought in the current treatment plan has already been previously decided on. I agree. Under the Part 12 of the proposed goods and services section of the initial July 2017 treatment plan, the author recommends multiple goods and services.⁴ Part 12 of the November 2018 OCF-18 is identical. I note that under Part 9 of the November 2018 OCF-18, a goal of “return to pre-accident work activities” is added.

13V.R. submits the similarity between the two OCF-18s is due to both recommending the same type of treatment, physiotherapy; that the proposed goods and services would be similar if not identical because the same treatment is being sought. However, the difference being attributed to new medical evidence produced at the time of the November 2018 OCF-18, resulting in the new goal under Part 9 being added.

14It is this type of tweaking of the claim that the doctrine of res judicata is designed to prevent. The finding against V.R. in the 1^st Decision is that he doesn’t need further facility-based treatment. More is required than just the checking of an additional box in the OCF-18 to rebut Aviva’s claim that res judicata applies to this proceeding. Further, there is no objective evidence that V.R.’s condition worsened to the extent that the disputed OCF-18 is reasonable and necessary. For these reasons, I find that the doctrine of res judicata applies, and these issues have been previously determined on the merits.

The September 22, 2017 OCF-18 and February 9, 2019 OCF-18

15In the 1^st Decision, VC Flude addressed the question of whether VR was entitled to an assessment to determine if he suffered from chronic pain syndrome. The test VC Flude applied was whether, on a balance of probabilities, there was evidence to indicate that VR may be suffering from chronic pain syndrome. He found there was no such evidence. At paragraph [37] of his decision he stated as follows:

[37] In determining whether an assessment is reasonable and necessary, it must be borne in mind that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment. I find that the applicant has failed to satisfy that onus. Dr. Levy’s report and evidence indicate that there are none of the markers to be expected in a case of chronic pain syndrome.

16Aviva submits that VC Flude considered whether V.R. suffered from chronic pain syndrome and whether an assessment for that determination was reasonable and necessary. Ultimately, VC Flude determined that V.R. does not suffer from chronic pain syndrome. Aviva’s position is that V.R. is seeking a finding that he suffers from a chronic pain syndrome which requires treatment by way of a chronic pain treatment program.

17Aviva further submits that the Tribunal has already made a determination that V.R. does not have chronic pain syndrome, and upon reconsideration, again decided that V.R. does not have a chronic pain syndrome. Aviva posits that to find in V.R.’s favour, the Tribunal would have to overturn its own previous determination that he does not have a chronic pain syndrome.

18V.R. submits that Aviva’s contention on the February 2019 OCF-18, that the previously adjudicated September 2018 OCF-18 for a chronic pain assessment is identical to the subject disputed OCF-18 for chronic pain treatment, is incorrect. V.R. further submits that VC Flude determined that on a balance of probabilities that the OCF-18 for an assessment was not reasonable and necessary. I disagree with V.R. VC Flude determined that V.R. was not entitled to an assessment for chronic pain syndrome based on a report from a chronic pain specialist that determined V.R. does not have chronic pain.

19V.R. did not persuade VC Flude in the 1^st Decision or on reconsideration that he suffered from chronic pain. I have no new objective evidence before me that suggests V.R. now has chronic pain as a result of the accident. Therefore, the issue surrounding chronic pain syndrome has already been previously decided.

20I recognize that the adjustment of an insurance claim file is an ongoing process and it is incumbent on Aviva to continue to adjust the file as new evidence becomes available. It is entirely possible that V.R.’s condition may have deteriorated. Equally, in considering the 1^st Decision and the applicability of the doctrine of res judicata, I must bear in mind that there may be new medical evidence of further deterioration in V.R.’s condition. I find that there is a lack of persuasive new evidence. The only allegedly new evidence asserted by V.R. is a report of Dr. Baath, a family physician, based solely on V.R.’s subjective reporting. His subjective reports are not supported in the medical records or by the objective testing carried out by Aviva’s medical assessors. Put more succinctly, nothing has changed since the 1^st Decision was issued.

21For the above reasons, I find that the current disputed OCF-18s have been previously determined, and therefore the doctrine of res judicata applies. In the event that I am incorrect in applying the doctrine of res judicata, for the reasons that follow, I find that the OCF-18s are not reasonable and necessary.

LAW

22Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident.

23The onus is on the applicant to establish, on a balance of probabilities, entitlement and quantum of IRB, and also that any proposed treatment plans he or she seeks is reasonable and necessary.⁵

BACKGROUND

24As detailed in the 1st Decision, the motor vehicle accident occurred when V.R. “t-boned” another vehicle making an on-coming left turn. V.R. did not go to hospital following the accident. Ambulance personnel checked him and found no serious injuries and gave him the option to go to the hospital, which he declined.

25It was not until 12 days after the accident that V.R. first sought help from a healthcare professional. On August 17, 2016, he attended the Inline Rehabilitation Centre (“Inline”), where he underwent an initial chiropractic and massage assessment together with physical rehabilitation. Thereafter, for approximately a year, V.R. attended Inline approximately once a week.

26The Schedule requires an insurer to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant for, among other things, medical, chiropractic, psychological and physiotherapy services. That obligation is subject to coverage limits depending on the severity of the impairments. The first level of coverage is payment up to a maximum of $3,500 for “minor injuries.” The next level is $50,000 for more serious but non-catastrophic impairments. Finally, there is $1 million available for medical benefits for a catastrophic impairment as that term is defined in the Schedule.

27Initially, Aviva took the position that V.R.’s injuries fell within the definition of “minor injury” in the Schedule. A minor injury is “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” V.R. exhausted the $3,500 of treatment available to him and, on or about July 7, 2017, was taken out of the minor injury guideline.

EVIDENCE AND ANALYSIS

Issue 3a and b – OCF-18s for aquatic therapy and physiotherapy

28Aviva had V.R. assessed by a physician with a practice focused on pain management, Dr. Levy. Dr. Levy suggested that V.R. might benefit from aquafit, a form of group exercise generally offered in community pools at a cost of $150 - $300 for 10-to-12 classes. V.R. wants aquatic therapy, a one-on-one therapy program. He seeks payment of $2,669.10 for these aquatic therapy sessions. He argues that there is no substantial difference between aquafit and aquatic therapy.

29Entitlement to treatment under the Schedule must be reasonable and necessary. On the facts, V.R. has argued that aquafit and aquatic therapy are essentially the same thing. It flows from this position that V.R. will benefit equally from a program costing $300 as he will from a program costing almost ten times more. In my view, this is the definition of unreasonable. I find that V.R. is entitled to the costs of an aquafit program as proposed by Aviva since it is the more reasonable option.

30Although V.R. submits that the two treatment modalities are identical, what V.R. has failed to consider is the cost of each modality in relation to the level of treatment he seeks. V.R.’s position that “the respondent does everything possible to not fund the recommended therapy by its own assessor”, is flawed in that V.R. has put forth no evidence that supports why the higher cost of aquatic therapy is reasonable and necessary.

31This is especially significant when V.R. does not suffer from chronic pain, which I will address later. It stands to reason that, although the OCF-18 author and the insurer assessor recommend aquatic treatment, the higher priced service must be shown to be reasonable and necessary, that the goals of the treatment are being met to a reasonable degree, and that the associated costs (both time and monetary) are also reasonable.

32The new medical evidence that V.R. relies on, namely clinical notes and records and a medical note from family physician Dr. Baath, are not enough to establish that aquatic therapy or further physiotherapy is reasonable and necessary.

33In his letter, Dr. Baath claims that V.R. has been seeing him on a regular basis after June 2017, complaining of back pain. According to V.R.’s report to Dr. Baath, the “intensity of pain and disability has fluctuated, and post-accident, he could not perform various activities (i.e. playing basketball, shovelling snow and cutting grass)”. Dr. Baath opines that V.R.’s condition will be prolonged and may become worse. I note that Dr. Baath’s report is based solely on V.R.’s subjective reports with no objective testing.

34It has previously been found in the 1^st Decision that there is a significant disconnect between V.R.’s subjective reports and the medical history that suggests that V.R. exaggerates when reporting symptoms. As VC Flude found in his review of the medical record:

My difficulty with the applicant’s subjective reports of back pain is that they are not supported in the medical record. It will be recalled that his first report of back pain to his family doctor was in March 2017 when the pain was attributed to bending down to tie a shoelace. It resolved within two weeks. He next complained of back pain in June 2017 that had started four days earlier. In March of 2018, his family doctor records “low back pain on and off.” This is far short of the severe and constant pain he reported to Dr. West.

35While the pain complaint record noted by VC Flude is from an earlier period than the Dr. Baath records, the subjective complaints to Dr. Baath are not such as to warrant approval of funding for disputed OCF-18s in the face of objective findings by Aviva’s assessors.

36Aviva relies on its paper review report of orthopaedic surgeon Dr. Boynton, who confirmed her opinion of an earlier in-person assessment report,

There is no evidence that he suffered a serious impairment as a direct result of the motor vehicle accident. V.R. may have suffered some muscular discomfort in his neck and back which has resolved. He has reached maximum medical improvement from his accident-related muscle pains.

37I prefer the evidence of Dr. Boynton versus that of Dr. Baath. As an orthopaedic surgeon, Dr. Boynton has more specialized knowledge of the impact of V.R.’s accident-related injuries. I see no objective evidence from Dr. Baath that supports the pain complaints have increased with such severity since the initial proceeding in 2019 and would require further facility-based treatment.

38For these reasons, I do not find that the OCF-18s are reasonable and necessary.

Issue 3c – OCF-18 for a chronic pain treatment

39Aviva partially approved the OCF-18 to provide V.R. with psychological counselling. V.R. submits the balance of the OCF-18 is payable because he suffers from chronic pain. Further, V.R.’s position is Aviva’s partial approval of the chronic pain treatment program, indicates an acceptance on Aviva’s part, that V.R. suffers from chronic pain or chronic pain syndrome to some extent. On the evidence, V.R. has failed to establish that the balance of the OCF-18 is reasonable and necessary.

40VC Flude addressed the issue of whether a chronic pain assessment was reasonable and necessary. Although V.R. is seeking funding for chronic pain treatment and not an assessment, the medical evidence from the previous proceeding is still relevant and applicable in the subject proceeding. Further, the parties rely on medical evidence previously relied on in the 1^st Decision.

41At the initial proceeding, VC Flude considered the evidence of chronic pain specialist, Dr. Levy. I accept VC Flude’s consideration of this evidence, wherein he states at paragraphs 34 to 36,

Dr. Levy’s definition of chronic pain syndrome, sometimes referred to as somatic symptom disorder with pain, differed somewhat from Dr. West’s. He identified the condition as one in which pain is the patient’s major focus. The pain must have persisted for more than six months and extends beyond the area of injury to become widespread. In testing for chronic pain syndrome, Dr. Levy noted that, if chronic pain syndrome is present, then pain inflicted on the periphery of the body becomes centralized in the central nervous system. He failed to find this type of response in the applicant and concluded that there are no indications of chronic pain syndrome.

The most that Dr. Levy noted with respect to the applicant was that, in some areas, the applicant’s range of motion was less than the normal range. He pointed out that the normal range is an average and some people may exceed it in certain areas and not reach it in others. In fact, the applicant exceeded the normal range in some areas. Dr. Levy did not consider these variations in ranges of motion to be material.

I prefer the evidence of Dr. Levy to that of Dr. West. Dr. Levy’s examination was based much more broadly on objective factors and was less reliant on the applicant’s self-reporting, which, as explained above, is contracted by the record. It identified essential features of chronic pain syndrome and pointed out how they were not present in the applicant.

42I find that VC Flude thoroughly considered the medical evidence regarding chronic pain syndrome and came to a right conclusion that there is no evidence to suggest that an assessment for chronic pain is necessary as a result of the accident. V.R. has not put forward any new evidence to refute Aviva’s claim that: a) he does not suffer from chronic pain or that b) treatment for same is not reasonable and necessary.

43V.R. does not direct me to any objective evidence that he suffers from chronic pain. V.R. submits Aviva’s partial approval suggests an admission that Aviva accepts V.R. suffers from chronic pain syndrome. I disagree. Aviva’s partial approval was for treatment for psychological impairment, which it did acknowledge V.R. suffered from as a result of the accident. This is far from an acknowledgment that V.R. suffers from chronic pain syndrome.

44Even though V.R. claims that he suffers from chronic pain, as noted in paragraph 37 by VC Flude, “the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition….”. On the evidence, V.R. has not established such grounds.

45For these reasons, I find that the balance of the chronic pain OCF-18 is not reasonable and necessary.

CONCLUSION

46V.R. is not entitled to the OCF-18s in dispute, therefore no interest is payable.

47V.R.’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paragraph 18.
3. 3The Civil Litigation Process: Cases and Materials, Janet Walker et al, (Toronto: Edmund Montgomery Publications Limited, 2005) p. 440.
4. 4July 10, 2017 – OCF-18 – Part 12 – Proposed goods and services – Physical rehabilitation, stimulation muscles of head and back, stimulation muscles of the back, hypothermy, multiple body sites, hyperthermy, multiple body sites, acupuncture, mobilization, multiple body sites, manipulation, multiple body sites, massage therapy, total body assessment, completion of the OCF-18.
5. 5Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).