L.D. vs. Aviva Insurance Canada
Tribunal File Number: 19-000674/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:
L.D.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Loreto Scarola
For the Respondent: Devin McIntyre
Written Hearing: January 6, 2020
OVERVIEW
1L.D. was injured in an automobile accident on March 11, 2015. L.D. sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). L.D. submitted a treatment plan for an orthopaedic assessment, the cost of which she incurred prior to Aviva scheduling an Insurer’s Examination (“IE”) to determine her entitlement. Aviva ultimately found that the orthopaedic assessment was not reasonable and necessary. L.D. disagreed and applied to the Tribunal for dispute resolution.
ISSUES
2The issues to be determined are as follows:2
i. Is the applicant entitled to the cost of an orthopaedic assessment, in the amount of $2,260.00, recommended by All Health Medical Center, in a treatment plan (OCF-18) denied on March 1, 2018?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3L.D. is entitled to the cost of the orthopaedic assessment in the amount of $2,260.00 and interest.
ANALYSIS
Is the orthopaedic assessment reasonable and necessary?
4I find on the evidence that L.D. is entitled to payment for the cost of the orthopaedic assessment as I find that her reports of pain are consistent, credible and ongoing since the accident, that she continues to have functional impairment and find that an assessment by a professional to determine how best to address her continuing impairments is reasonable and necessary.
5While L.D. was removed from the Minor Injury Guideline by Aviva on the basis of her psychological impairments, I find her physical impairments, including her pre-existing fractures and right knee injury, are well-documented throughout the file. I find L.D.’s complaints of pain, specifically in her knee, neck, upper back, shoulders, headaches and left leg are consistent and have continuously affected her day to day function, especially at work, since the accident. Her attendance at treatment and her complaints to her providers has been consistent and relatively unchanged despite Aviva’s position that her physical impairments were treatable within the Minor Injury Guideline. She has followed up with referrals and participated in testing, but her pain—which she rates at a 10/10 on the subjective pain scale—persists nearly five years following the accident.
6Aviva’s initial denial of the assessment was based on its belief that “the type of treatment does not appear consistent” with L.D.’s diagnosis and impairments and that “diagnostic studies appear to be ordered or repeated without objective clinical documentation for their necessity.” In spite of Aviva’s denial and prior to it scheduling an IE, L.D. attended the orthopaedic assessment with Dr. Benmoftah and incurred the cost. In submissions, L.D. submits that at this point in time, she was so desperate for some guidance on how to treat her impairments that she went ahead with the assessment knowing Aviva’s position.
7Aviva supported its denial with the IE of Dr. Yee, which found the assessment was not reasonable and necessary because L.D. was being treated by an orthopaedic surgeon and there was no need for an additional assessment, that her knee pain had gotten better and that she had not missed any work. Dr. Yee found no compelling medical evidence that an orthopaedic assessment was needed. In the report, Dr. Yee states that he would welcome the MRI of L.D.’s knee and the clinical notes from the orthopaedic surgeon, however, it does not appear that an addendum was ever requested. I find Dr. Yee’s report does not engage with L.D.’s reports of pain that rises to 10/10 or address why she has consistent pain over four-years post-accident.
8In its submissions, Aviva leans heavily on the fact that L.D. was being followed by Dr. Wood, orthopaedic surgeon, at the time she was assessed by Dr. Benmoftah. However, I agree with D.L. that on the evidence, it is clear that Dr. Wood was only assessing her ongoing knee issues and did not address her other injuries, primarily her recurring pain, through a whole-body examination or on a review of the medical documentation detailing her complaints of pain. Further, Aviva has not tendered any evidence to prove that the assessment in dispute is funded by OHIP, as it alleges.
9Accordingly, I find the orthopaedic assessment was reasonable and necessary at the time it was requested because L.D. continued to experience pain post-accident and treatment had plateaued. On this basis, I find it eminently reasonable that a professional assess (or re-assess) her condition in order to identify the source of her impairments and pain and potentially prevent her pain from becoming chronic, as it appears it now has. On review of the OCF-18, the goals of the assessment are simple and, in my view, achievable. I find the final report itself to be somewhat underwhelming and sparse but given Dr. Benmoftah’s ultimate diagnosis of chronic pain syndrome, I consider the assessment reasonable and necessary because it validates many of L.D.’s recurring complaints post-accident and provides a road map for L.D.’s pain treatment and potential recovery. Finally, I find the costs outlined in the OCF-18 are proportional to the Superintendent’s Guidelines.
10For these reasons, I find the orthopaedic assessment in the amount of $2,260.00 to be reasonable and necessary and payable.
Interest
11Having determined that L.D. is entitled to the assessment, interest is also payable on the amount overdue, pursuant to s. 51 of the Schedule.
CONCLUSION
12L.D. is entitled to payment and applicable interest for the orthopaedic assessment in the amount of $2,260.00, as it is reasonable and necessary.
Released: January 10, 2020
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- The Case Conference Order dated July 4, 2019 included as an issue in dispute L.D.’s entitlement to an award under Ontario Regulation 664 on the basis that Aviva unreasonably withheld or delayed the payment of benefits. However, L.D. did not make submissions on the s. 10 award under O. Reg. 664 and later withdrew the issue in her reply. As a result, it follows that L.D.’s entitlement to an award is no longer at issue and no award is payable.