R.S. v. Aviva Insurance Canada, 2020 CanLII 12729

Released Date: January 17, 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:

R.S.

Applicant

and

Aviva Insurance Canada

Respondent

Derek Grant

For the Applicant:

Victoria Gorbenko, Paralegal

For the Respondent:

Maia K. Abbas, Counsel

HEARD: In Writing

November 26, 2018

OVERVIEW

1The applicant (“R.S.”) was involved in an automobile accident on January 14, 2016 (“the accident”) and sought medical benefits from the respondent (“Aviva”).

2Aviva denied R.S.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fell within the Minor Injury Guideline¹ (“the MIG”). R.S. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. R.S. argues that his injuries take him out of the limits set out by the MIG. Based on treatment that R.S. has received to date, the MIG limit has been exhausted.

4In addition, R.S. argues the MIG limit does not apply to the March 22 and May 31, 2016 treatment plans for a psychological assessment and treatment, respectively, because of a failure on the part of Aviva to comply with its obligations under the Schedule. R.S.’s position is that Aviva failed to state that the MIG applies. He submits that, as a result, Aviva is prevented from taking the position that the MIG applies to the March 22, 2016 and May 31, 2016 treatment plans.

5Aviva’s position is that, even if it failed to comply with procedural steps, R.S. must still show that the treatment must be reasonable and necessary, even if it is determined that the MIG does not apply.

ISSUES

6The issues to be determined at the hearing are:

a. Did R.S. sustain predominantly minor injuries as defined under the Schedule?

b. Is the medical benefit in the amount of $3,355.20 for chiropractic treatment recommended by Alexander Yu in a treatment plan (OCF-18) submitted on February 8, 2016, and denied on February 23, 2016, reasonable and necessary?

c. Is the medical benefit in the amount of $3,086.94 for chiropractic treatment recommended by Alexander Yu in an OCF-18 submitted on April 15, 2016, and denied on May 5, 2016, reasonable and necessary?

d. Is the medical benefit in the amount of $4,463.96 for psychological treatment recommended by Svetlana Gabidulina in an OCF-18 dated May 31, 2016, submitted on June 1, 2016, and denied on June 13, 2016, reasonable and necessary?

e. Is the medical benefit in the amount of $2,921.42 for chiropractic treatment recommended by Alexander Yu in an OCF-18 submitted on June 30, 2016, and denied on July 15, 2016, reasonable and necessary?

f. Is the medical benefit in the amount of $2,696.78 for chiropractic treatment recommended by Alexander Yu in an OCF-18 submitted on October 19, 2016, and denied on November 2, 2016, reasonable and necessary?

g. Is the cost of an attendant care assessment in the amount of $612.79 recommended by Dennis Bishev in an OCF-18 submitted on March 17, 2016, and denied on March 30, 2016, reasonable and necessary?

h. Is the cost of a psychological assessment in the amount of $1,720.53 recommended by Harsha Raghuraman in an OCF-18 submitted on March 22, 2016, and denied on March 30, 2016, reasonable and necessary?

i. Is R.S. entitled to interest on any overdue payment of benefits?

RESULT

7I have considered the evidence submitted by each party and, for the reasons that follow, I have determined that:

(i) R.S.’s injuries fall within the MIG regarding the chiropractic treatment plans and the attendant care assessment. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest regarding same;

(ii) I must still determine whether the psychological treatment plan and psychological assessment are payable;

(iii) Aviva’s denial letters in response to the psychological-based treatment plans did not meet the requirements of section 38(9) of the Schedule, as it did not provide the required notice to R.S. that the Minor Injury Guideline applies to his impairments;

(iv) Thus, Aviva is prohibited from taking the position that R.S.’s injuries are predominantly minor injuries to which the MIG applies regarding the March and May 2016 treatment plans; and

(v) Aviva is therefore required under section 38(11) of the Schedule to pay the disputed medical benefits for a psychological assessment and treatment, respectively, in the March 22 and May 31, 2016 treatment plans because it failed to notify R.S. that the MIG applies to his psychological impairment in accordance with section 38(9) of the Schedule.

ANALYSIS AND REASONS

The Notices of Denial regarding Psychological Assessment and Treatment

8Section 38(9) of the Schedule sets out notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Section 38(9) adds a procedural obligation, and requires that, if the insurer takes the position that the MIG applies, it must include this information in the actual notice as well. This is a matter that is exclusively within the control of the insurer.

9Pursuant to section 38(11), if an insurer fails to comply with the ss. (9) requirements, it is prohibited from taking the position that the MIG applies and “shall pay” for any incurred treatment and expenses until such time that it gives notice that complies with section 38(9) of the Schedule.

10The parties’ dispute concerns two OCF-18s, which I will examine to determine compliance with the requirements for notice of denial.

11On March 22, 2016, R.S. prepared an OCF-18 in the amount of $1,720.53 for a psychological assessment. By letter dated March 30, 2016, Aviva denied this treatment plan and explained as follows:

Upon review of the Treatment and Assessment Plan, we are unable to determine whether the recommendations are reasonably required for the injuries you received in this motor vehicle accident.

We enclose a copy of the fax back page confirming that we are not approving funding at this time and are scheduling an Insurer Examination(s) described in Section 44 of the Statutory Accident Benefit Schedule to review these recommendations.

We are scheduling an Insurer Examination described in section 44 of the Statutory Accident Benefits Schedule' to review the recommended treatment and/or assessments. You will receive a Notice of Examination shortly providing you with the necessary information regarding the examination(s) and your attendance requirements.

12Aviva’s second denial was with respect to the OCF-18 in the amount of $4,493.56 for psychological treatment, submitted on June 1, 2016. In denying the OCF-18, Aviva provided the following Explanation of Benefits form on June 13, 2016:

Upon review of the Treatment and Assessment Plan, we are unable to determine whether the recommendations are reasonably required for the injuries you received in this motor vehicle accident.

13Aviva’s denial letters of March 30, 2016 and June 13, 2016 both fail to indicate its position that the MIG applies as required by section 38(9).

14A second letter on July 18, 2016 regarding the June 13, 2016 OCF-18 contained the following denial reasons:

Please review the enclosed insurer's examination completed by HVE Healthcare Assessments under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Marc Mandel, Psychologist and dated July 5, 2016. The assessor reviewed the Treatment Plan (OCF-18) submitted by Svetlana Gabidulina with Mediwise Healthcare Clinic dated May 31, 2016 for psychological treatments. They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.

15I find that Aviva’s denial notices do not comply with section 38(9) of the Schedule because a denial is insufficient if it does not give notice the insurer’s position is that the MIG applies.

16I find that Aviva is liable to pay R.S.’s claims on the basis of inadequate or insufficient notice. Its denials of the March 22 and May 31, 2016 OCF-18s for a psychological assessment and treatment, respectively, did not comply with section 38(9) of the Schedule.

17As a result of my finding of Aviva’s non-compliance under section 38(9), I find that it has failed to properly interpret its resulting duty under section 38(11) of the Schedule. Thus, in accordance with section 38(11)2, “the insurer shall pay”.

18Since a decision is now rendered on the March 22, 2016 psychological assessment and May 31, 2016 psychological treatment OCF-18s, Aviva no longer has the opportunity to issue a proper notice of denial. The time to properly deny a benefit ends once a decision has been rendered regarding that benefit.

19I now turn to my analysis of the evidence of R.S.’s pre- and post-accident medical history and my reasons for the applicability of the MIG.

Medical History – Pre-accident

20R.S. has a medical history including, but not limited to: type II diabetes, a 1998 motor vehicle accident that caused a whiplash-associated disorder, left ankle surgery in 2009, right rotator cuff arthroscopic surgery in 2008, degenerative disc disease in the cervical lumbar and sacral spine, diagnosed in 2008, left shoulder tendinopathy diagnosed in 2009, partial thickness tear (shoulder) diagnosed in 2015, a work related back injury and chronic lower back pain diagnosed in 2013, January 15, 2014 and February 17, 2015. Prior to the subject accident, R.S. was not attending physiotherapy, chiropractic or massage therapy treatment. R.S. was diagnosed with depression following his 1998 motor vehicle accident, as well, he was diagnosed with major depression disorder on July 10, 2014 as a result of being without work for approximately one year. He also has a pre-existing condition of insomnia.

Medical History – Post-accident

Physical

21R.S. visited Family Physician Dr. Wylie on January 30, 2016, approximately two weeks post-accident. He complained of insomnia. R.S. did not return to Dr. Wylie's office until February 11, 2016, when he complained of low back pain. Dr. Wylie recommended “physio and massage, no chiro”.

Psychological

22From a psychological perspective, I have already determined that R.S. is entitled to payment of the two psychological treatment plans in dispute due to Aviva’s non-compliance under section 38(9) of the Schedule. Therefore, it is unnecessary for me to make a determination regarding entitlement to the psychological assessment and psychological treatment plan.

R.S. suffered physical injuries that do not take him outside of the MIG

23R.S. did not provide me any medical evidence that he sustained physical injuries in the accident which would remove him from the MIG. The Disability Certificate² indicates R.S. was diagnosed with numerous injuries³ after the accident. These fall within the definition of predominantly ‘minor’ injuries as set out in s. 3(1) of the Schedule. Further, some of the listed injuries are not accident-related, for example, “stressful work schedule” and “lack of physical exercise”.

Diagnostic Imaging

24There are several diagnostic imaging reports relied upon by R.S. in his submissions. I find that the diagnostic imaging reports do not provide any objective medical evidence that establishes R.S.’s injuries are not predominantly ‘minor’. For example:

a. An x-ray of his lumbar spine dated June 7, 2016 identified minor degenerative disc disorder.

b. An x-ray of his cervical spine dated October 11, 2016 noted moderate degenerative disc disease.

c. An MRI of his thoracic spine dated February 2, 2017 noted mild degenerative disease of the thoracic spine.

d. An MRI of his lumbar spine dated February 3, 2017 identified mild multilevel degenerative disease in the lumbar spine.

e. An MRI of his cervical spine dated June 20, 2017 noted multilevel disc degeneration; and

f. An x-ray of left shoulder and bilateral AC joints x-ray dated October 5, 2017 noted minor degenerative changes of AC joints.

25There is no medical evidence or opinion which provides a causal link between the diagnostic imaging findings and the accident. I find the diagnostic imaging does not assist R.S. in meeting his burden in proving on a balance of probabilities that he sustained injuries as a result of the accident that are not predominantly ‘minor’ to warrant his removal from the application of the MIG.

Dr. Clements and Dr. Basile reports

26I find the reports of the Orthopaedic Surgeon and Neurologist, who assessed R.S., to be persuasive. These reports conclude that R.S. did not suffer any accident-related injuries that are not ‘minor’.

27On October 13, 2017, R.S. was assessed by Dr. N. Clements, Orthopaedic Surgeon, with respect to a work-related injury on July 28, 2017. Dr. Clements noted that R.S. was in his "usual state of health until July 28, 2017" when he was standing on a ladder sanding a ceiling and injured his back. He was unable to return to work. He engaged in physiotherapy from August 11, 2017 until October 6, 2017 and reported an overall improvement of 50-60% in his symptoms. Dr. Clements expected improvement with an additional 8 weeks of exercise-based therapy.⁴

28On December 22, 2017, R.S. was assessed by Dr. Vincenzo Basile, Neurologist, who concluded that R.S.’s lower back pain started in July 2017 after he injured his lower back while sanding a ceiling.⁵ This evidence does not support that R.S. should be removed from the MIG on the basis of injuries incurred as a result of the subject motor vehicle accident.

29I am persuaded by the reports of Drs. Clement and Basile, which support that R.S.’s accident-related physical injuries do not remove him from the MIG. My finding is based on the following:

(i) Dr. Clement’s report indicates that R.S.’s past medical history includes a reference to the 2013 work-related back injury; Dr. Basile’s report makes no mention of any prior back injury accident-related or otherwise;

(ii) Dr. Clement’s report notes “several motor vehicle collisions over the course of many years, the worst being in 1998….” There is no mention of the subject accident, nor any diagnoses relating to the accident regarding R.S.’s back pain complaints;

(iii) Dr. Basile’s report states R.S.’s “current symptomatology of lower back pain started approximately in July 2017 after he has injured his lower back while sanding a ceiling. He twisted his lower back and he developed lower back pain with radicular symptoms down both legs”;

(iv) There is no self-reported history of the subject accident by R.S. to either Dr. Clement or Dr. Basile; and

(v) Both Dr. Clement and Dr. Basile’s opinions and diagnosis are based strictly on the July 2017 work-related injury as the cause of the current back pain complaints.

(vi) Neither Drs. Clement or Basile opined that the pre-existing injuries would prevent R.S. from reaching maximum medical recovery under the MIG limit.

30To conclude, I find that R.S. has submitted medical evidence which establishes that his accident-related physical injuries are predominantly “minor”.

SUMMARY

31An objective medical basis for treatment, which supports the subjective evidence, that, in turn, supports the recommended treatment, is helpful. Where that objective medical evidence is lacking or not provided, more is required than numerous treatment plans which list near identical barriers to recovery and goals of the recommended treatment, in the post-accident period.

32R.S. has received mainly physiotherapy treatment, which he has reported to be of some benefit. This is key, given the fact the physical treatment plans in dispute are for chiropractic treatment that the medical evidence has shown has not been recommended (Dr. Clement and Dr. Basile reports), or is expressly recommended against (Dr. Wylie CNRs).

33For the reasons above, I find the evidence has established that R.S.’s accident-related physical injuries are predominantly minor. As such, it is unnecessary for me to determine entitlement to the chiropractic treatment plans.

34Regarding the attendant care assessment, an attendant care assessment is not available, if the applicant falls within the MIG.⁶ I therefore find that R.S. is not entitled to an attendant care assessment as I have found that his physical injuries are subject to treatment under the MIG.

CONCLUSION

35For the reasons outlined above, I find that:

i R.S. suffered predominantly minor physical injuries and is therefore not entitled to the chiropractic treatment plans claimed in this application;

ii Regarding the psychological treatment plans, Aviva did not comply with the provisions of section 38(9) of the Schedule, and is thus prohibited from taking the position that the MIG applies to the March 22, 2016 cost of examination expense and the May 31, 2016 treatment plan;

iii As a result of the non-compliance, Aviva shall pay for the March 22, 2016 cost of examination expense, the May 31, 2016 treatment plan and any applicable interest in accordance with s. 51 of the Schedule; and

iv R.S. is not entitled to an attendant care assessment.

Released: January 17, 2019

___________________________

Derek Grant

Adjudicator

Footnotes

Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
Disability Certificate (OCF-3) dated February 9, 2016 by Chiropractor Alexander Yu
Injuries including, but not limited to: headache, injury of muscle and tendon at neck level, pain in thoracic spine, injury of muscle and tendon at thorax level, carpal tunnel syndrome, sprain and strain of shoulder joint, injury of muscle and tendon at shoulder and upper arm level, dorsalgia, low back pain, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, injury of muscle and tendon of abdomen, lower back and pelvis, pain in joint, myalgia, muscle strain, nervousness, restlessness and agitation, malaise and fatigue, other sleep disorders, stressful work schedule, lack of physical exercise.
Dr. N. Clements Musculoskeletal Assessment Final Narrative Report, dated October 20, 2017
Dr. Vincenzo Santo Basile neurology note dated December 22, 2017
Schedule sections 25(2), 14(2)