D.O. v. Aviva Insurance Canada, 2020 CanLII 12742

Licence Appeal Tribunal

Citation: D.O. vs. Aviva Insurance Canada, 2020 ONLAT 18-007687/AABS

Tribunal File Number: 18-007687/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:

D.O.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kal I. Stoykov, Counsel

For the Respondent: Michael J. P. McChesney, Counsel

HEARD In writing on: May 27, 2019

OVERVIEW

1The applicant was injured in an automobile accident on September 16, 2014 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are as follows:

1. Is the applicant entitled to medical benefits for chiropractic treatment plans submitted by Dr. S. Lanoue of Chiropractic Care Centre and dated March 5, 2018, in the following amounts;

i. $855.00, covering treatment provided during the period spanning from September 13, 2017 to December 6, 2017;

ii. $1,087.76, covering treatment provided during the period spanning from June 26, 2017 to August 23, 2017;

iii. $2,223.00, covering treatment provided during the period spanning from March 1, 2017 to May 29, 2017;

iv. $2,616.05, covering treatment provided during the period spanning from December 5, 2016 to February 23, 2017;

v. $1,764.62, covering treatment provided during the period spanning from September 6, 2016 to November 30, 2016;

vi. $913.19, covering treatment provided during the period spanning from May 17, 2016 to July 31, 2016;

vii. $625.81, covering treatment provided during the period spanning from December 9, 2015 to February 15, 2016; and

viii. $1,022.43, covering treatment provided during the period spanning from September 14, 2015 to December 5, 2015?

2. Is the applicant entitled to receive payment for the costs of examination in the amount of $1,796.00 for a functional cognitive assessment proposed by Auxiliuum Wellness Centre in a treatment plan dated May 23, 2017?

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

RESULT

3The applicant is not entitled to the disputed claims.

BACKGROUND

4The applicant was the driver of a car which was struck on the driver’s side in a perpendicular fashion on September 16, 2014. It was the second time in fewer than 5 months where the applicant was involved in an accident of this nature.

5The applicant sustained injuries as a result of the subject accident and claims entitlement to the March 5, 2018 treatment plans, listed as issues 1(i) to 1(viii) and a functional cognitive assessment, listed as issue 2. The applicant also claims interest on any overdue payment of benefits.

THE CHIROPRACTIC TREATMENT PLANS

6The applicant submits the chiropractic treatment plans are reasonable and necessary to provide pain relief, increase range of motion, and facilitate the applicant’s return to activities of work and daily living. The applicant submits this treatment has been fully incurred.

7The respondent submits the chiropractic treatment plans dated March 5, 2018 were incurred before they were submitted to the respondent for approval, contrary to section 38(2) of the Schedule. As a result, and pursuant to section 38(2), the respondent claims it is not liable to pay for the goods and services proposed in the treatment plans. The applicant was provided an opportunity to make reply submissions but chose not to do so.

8For the following reasons, I agree with the respondent and find the applicant is not entitled to the disputed chiropractic treatment plans.

9The applicant was being treated by Dr. Lanoue, chiropractor, prior to the accident as far back as December 2013. The applicant visited Dr. Lanoue the day before the accident in September 2014. However, the applicant did not return to Dr. Lanoue’s office until May 4, 2015, nearly 8 months after the subject accident. Dr. Lanoue’s clinical notes and records (“CNRs”) show regular visits from May 2015 until the last recorded visit on July 27, 2015. However, the treatment and assessment plans submitted by Chiropractic Care Centre on behalf of Dr. Lanoue, all dated March 5, 2018, are retroactive for services provided from September 14, 2015 to December 6, 2017. The applicant did not address this discrepancy.

10It is undisputed that the chiropractic treatment plans were incurred prior to their submission to the respondent. The provision in section 38(2) is clear in that it states an insurer is not liable to pay for a service that was incurred before an insured submits a treatment and assessment plan for it.

11Section 38(2) provides 4 exceptions, paraphrased as follows;

1. the insurer gives the insured notice that it agrees to pay for the goods and services without a treatment and assessment plan;

2. the expense is for an ambulance or other emergency services not more than 5 business days following the accident;

3. the expense is reasonable and necessary for drugs prescribed by a regulated health professional; and

4. the expense is reasonable and necessary as a result of the impairment sustained by the insured person for goods under $250.00.

12Upon review of the evidence, I find the applicant has not met any of the 4 criteria listed in section 38(2) as an exception to the condition that an insurer is not liable to pay for a service that was incurred before an insured person submits a treatment and assessment plan for it. There is no evidence the respondent agreed to pay for the disputed chiropractic treatment plans prior to their submission. The disputed chiropractic treatment plans were incurred more than 5 days following the accident and are not considered emergency services. The disputed chiropractic treatment plans were not for prescription drugs and were not for goods valued at less than $250.00 per item.

13The applicant is not entitled to the disputed chiropractic treatment plans listed in issues 1(i) to 1(viii) as these expenses were incurred before the applicant submitted the relevant treatment plans to the respondent and none of the exceptions listed in section 38(2) of the Schedule apply.

IS THE APPLICANT ENTITLED TO THE FUNCTIONAL COGNITIVE ASSESSMENT?

14The applicant claims entitlement to the functional cognitive assessment proposed by Auxilium Wellness Centre, dated May 23, 2017. The applicant did not specifically address why the assessment is reasonable and necessary but noted he complained of concentration problems in a biopsychosocial assessment by Dr. N. Isgandarova, registered psychotherapist, dated May 22, 2017.

15The respondent submits the assessment is not reasonable and necessary because the assessment goals are unnecessary. The respondent also submits there is no need to assess the applicant’s cognitive function in areas of personal care, housekeeping and homemaking, and vocational and avocational activities as the plan proposes because, according to the respondent, the applicant reports no difficulties with these tasks and has returned to full-time work.

16Based on the information before me, I find the applicant is not entitled to the functional cognitive assessment. My reasons are as follows.

17The evidence submitted by the applicant is untimely with respect to this assessment. The CNRs by Dr. Lanoue are not relevant to the proposed assessment as they end with a visit on July 27, 2015, more than a year and a half before the treatment plan was submitted. Likewise, the records of Dr. R. Y. Y. Chen, family physician, are not relevant as there are no visits recorded beyond May 17, 2015.

18The chronic pain assessment report by Dr. K. Efala, pain specialist, dated April 13, 2016 is from a year prior to the submission of the disputed assessment. Despite the untimeliness, the report addresses the applicant’s cognitive state and recommends a referral to a neurologist or neuropsychiatrist, not an occupational therapist. The applicant was seen by a neurologist about a year earlier, on April 29, 2015, who found the applicant’s mental status and cranial nerves normal, and nerve conduction studies were unremarkable. The neurologist advised the applicant needed to continue with physiotherapy.

19The chronic pain management report by Dr. S. Al-Samak, dated June 3, 2016, found the applicant had chronic back pain keeping with neuropathic pain and mechanical low back pain. Several recommendations were made including a psychological assessment and intervention and a cognitive behaviour therapy plan, but not a functional cognitive assessment. Although this report may imply the need for a functional cognitive assessment in 2016, the report and assessment were done about a year prior to the assessment proposed in May 2017 and there is no explanation why these recommendations were not acted on during this period and whether these impairments continued to impact the applicant one year later.

20The applicant’s only timely medical evidence is the biopsychosocial assessment by Dr. N. Isgandarova, registered psychotherapist, dated May 22, 2017 – the day before the disputed assessment was proposed. Relevant to the issue, Dr. Isgandarova observed the applicant exhibited confusion at times and complained of not being able to recall the details of the accident. Despite these symptoms, Dr. Isgandarova concluded the applicant did not show significant signs of poor cognitive ability. Dr. Isgandarova only recommended counselling with a registered social worker, but no further examination of the applicant’s cognitive state. Considering Dr. Isgandarova’s findings, and the absence of a recommendation for any further investigations, I find the report generally unsupportive of the disputed assessment.

21The applicant participated in an insurer’s examination with occupational therapist, V. Tandon, on December 22, 2017, who produced a report dated January 11, 2018. Occupational therapist Tandon reported the applicant denied any significant cognitive symptoms and reported independence with self-care, housekeeping and home maintenance, and driving. It is also noted in this report that the applicant’s current employer is unaware of the applicant’s accident history or of any accident related injuries. Occupational therapist Tandon conducted an assessment and found the applicant had some physical restrictions in neck and back area, but ultimately is alert and oriented and able to follow simple and multistep commands. The report concludes, based on the assessment and documents reviewed, the disputed assessment is not reasonable and necessary.

22In addition to the Tandon report, the respondent also submits the reports of Dr. M. I. Alvi, orthopaedic surgeon, dated November 25, 2014 and another occupational therapy report, dated April 29, 2015 by A. Kucharshi, occupational therapist. In both of these reports, the applicant reports no difficulties with activities of daily living. Further, in the occupational therapy report, the applicant was observed to demonstrate no cognitive difficulties.

23While the applicant has submitted a significant amount of medical evidence, for the most part it shows the applicant has ongoing pain and range of motion limitations in the neck, back and shoulders as a result of the subject accident and the accident which occurred about 5 months prior. What the applicant’s evidence fails to show is signs of cognitive impairment significant enough to impair the applicant’s independence with personal care and ability to complete activities of work and normal living, as suggested in the disputed treatment and assessment plan.

24The applicant is not entitled to the functional cognitive assessment listed as issue 2 because the assessment is not reasonable and necessary.

INTEREST

25Pursuant to section 51 of the Schedule, interest is only payable on overdue benefits. The applicant is not entitled to payment for any of the disputed benefits and, consequently, is not entitled to any interest.

CONCLUSION

26The applicant incurred the disputed chiropractic treatment plans prior to their submission and without prior approval of the respondent or meeting any of the other exceptions under section 38(2) of the Schedule. As a result, the applicant is not entitled to payment for them.

27The applicant is not entitled to the disputed functional cognitive assessment as it is not reasonable and necessary because no further investigation into the applicant’s cognitive state is required.

28The applicant is not entitled to interest as there are no overdue payments owing.

Released: January 9, 2020

___________________________

Brian Norris

Adjudicator