Clive Williams v. Aviva General Insurance, 2020 CanLII 103693

Licence Appeal Tribunal

Citation: Williams vs. Aviva General Insurance, 2020 ONLAT 19-008480

Released Date: 12/08/2020

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:

Clive Williams

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Kathryn McRae Hill

For the Respondent:

Fraser Chorley

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on February 9, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva denied the benefits on the basis of its determination that his accident-related impairments were predominantly minor injuries, subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?

(ii) Is the applicant entitled to a medical benefit in the amount of $1,220.66 for physiotherapy (chiropractic/massage) services recommended by Scarborough Medical Clinic in a treatment plan (OCF-18) submitted on April 20, 2018, and denied on April 30, 2018?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. Accordingly, he is not entitled to payment of the benefit in dispute as it is not reasonable and necessary. As no benefits are overdue, it follows that no interest is payable.

ANALYSIS

The MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with s. 3(1). An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The burden of proof lies with the applicant to demonstrate that their accident-related impairments justify removal from the MIG on a balance of probabilities. I find the applicant has not satisfied his burden to demonstrate that his accident-related impairments warrant removal from the MIG.

5As I understand, the applicant submits that he is entitled to the treatment plan in dispute and therefore removal from the MIG on both procedural and substantive grounds. First, he seems to argue that his pre-existing conditions justify removal from the MIG and further submits that Aviva’s denial notice did not comply with s. 38(8) of the Schedule and it therefore cannot rely on the MIG. Second, he submits that the treatment plan is reasonable and necessary and therefore payable.

6In response, Aviva asserts that the applicant only raised the s. 38 issue for the first time in his written submissions and submits that its denial was proper, and, in any event, the applicant’s submissions do not articulate what was improper about the denial in order to trigger the consequences of s. 38(11). Next, Aviva submits that the applicant has provided no evidence of any relevant pre-accident injury which may prevent maximal medical recovery if the applicant were to be subjected to the MIG in order to satisfy s. 18(2) nor has he identified what accident-related injuries are not considered minor under the Schedule.

7I agree with Aviva. Problematically, the applicant’s submissions do not directly address any of the requirements for removal from the MIG. His submissions do not identify what impairments he believes are not “minor” as defined by the Schedule and the OCF-3 in evidence lists sprain and strain-type impairments that clearly fall within the MIG. In a similar vein, his submissions do not advance or discuss any direct evidence of a pre-existing condition that a medical professional believes would prevent maximal medical recovery if he is kept in the MIG, as required by s. 18(2). From the limited medical documentation in evidence, I am able to glean that he has pain in his back, some age-related degenerative disc disease, a previous shoulder injury and sciatica, headaches and diabetes, however, it is unclear from his submissions which of these impairments the applicant believes warrants treatment beyond the MIG, let alone whether a medical professional believes the same. In either case, I find the applicant has fallen well short of meeting his substantive burden of proof as significantly more analysis is required.

8Indeed, it appears that the sole basis for his argument for removal from the MIG is based on a misguided understanding of what constitutes proper notice under s. 38(8). The sole submission on pre-existing impairments is buried in the “issues” section of his submissions, where the applicant asserts the following with regards to Aviva’s explanation of benefits (“EOB”) concerning the treatment plan in dispute: “No medical information was indicated on the denial, despite the fact that the applicant had provided clinical notes and records which indicated the applicant had pre-existing injuries that may have prevented him from reaching maximal medical recovery..”. In his remaining submissions, the applicant does not go on to identify what pre-existing injuries he is referring to or which clinical notes and records contain the opinion that his pre-existing injuries would prevent maximal medical recovery in order to justify removal from the MIG under s. 18(2).

9Further, I agree with Aviva that the applicant has not indicated why he believes Aviva’s notice is deficient under s. 38(8) where the fax transmission page provided indicates the EOB was sent within ten days of submission and where the notice indicates Aviva would not pay for the treatment plan on the basis that the applicant’s impairments were within the MIG. In my view, and without particulars from the applicant, the notice easily satisfies the requirements of s. 38(8) and would not invite the consequences of s. 38(11) that would prevent Aviva from relying on the MIG. The Tribunal would have benefitted from a more cogent theory of the case and a more thorough discussion from the applicant.

10For these reasons, I find the applicant has not met his onus to demonstrate that his accident-related impairments warrant removal from the MIG.

Is the treatment plan reasonable and necessary?

11Having determined that the applicant has not demonstrated that removal from the MIG is warranted, it is my understanding from Aviva’s submissions that approximately $210.66 remains of the MIG limit after Aviva partially approved the treatment plan in dispute. Under s. 15, the applicant must demonstrate that the treatment he seeks is reasonable and necessary to treat his specific impairments.

12I find the applicant has failed to demonstrate that the treatment plan is reasonable and necessary. Again, I find no evidence that Aviva’s notice was deficient under s. 38(8) in order to make the plan payable under s. 38(11) or, even if there were a deficiency, evidence from the applicant that the services were incurred in order to trigger payment under s. 38(11)(2). The applicant’s submissions properly identify the test for reasonable and necessary under s. 15, but do not actually apply any of the facts or evidence of his case to demonstrate that the OCF-18 in dispute is reasonable and necessary, instead stating that “the treatment recommended is reasonable and necessary considering all the medical treatment by his doctor and other medical providers as set out herein.” Indeed, the applicant does not discuss any of the goals of the plan, how the goals are being met, why the cost of the plan is reasonable, how it is tailored to his impairments, etc. With respect, it is not sufficient to simply rely on the OCF-18 itself. Accordingly, I cannot find the treatment plan reasonable and necessary.

Costs and Interest

13In submissions, the applicant sought interest and costs. However, as the applicant was unsuccessful in his benefit claim, and no submissions were provided on costs under Rule 19, it follows that neither is payable.

CONCLUSION

14The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. Accordingly, he is not entitled to payment of the benefit in dispute as it is not reasonable and necessary. As no benefits are overdue, it follows that no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.