[A.S.] v. Aviva Insurance Canada, 2020 CanLII 14464

[A.S.] vs. Aviva Insurance Canada, 2020 ONLAT 18-010483/AABS

Citation: [A.S.] vs. Aviva Insurance Canada, 2020 ONLAT 18-010483/AABS

Tribunal File Number: 18-010483/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:

[A.S.]

Applicant

and

Aviva Insurance Canada

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Self-Represented

Counsel for the Respondent: Kathleen E. Mertes

Heard in writing on: July 22, 2019

OVERVIEW

1The applicant was injured in an automobile accident on December 3, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the driver of a vehicle that T-boned another vehicle attempting to make a left turn from the opposite direction. As a result of the accident, the applicant experienced immediate pain in his left knee, neck and back.

3The applicant applied for medical benefits that the respondent denied on the basis that the benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4As part of its written submissions, the respondent raises a preliminary issue on the applicant’s late production of evidence, contrary to the Tribunal’s Order dated April 8, 2019. The matter is addressed below.

ISSUES TO BE DECIDED

5The following are the issues to be decided as set out in the case conference order dated April 8, 2019:

i. Is the applicant entitled to a medical benefit in the amount of $2,080.00 for physiotherapy, massage and chiropractic treatment recommended by Physiomed Thornhill in a treatment plan (OCF-18) submitted on November 16, 2016 and denied by the respondent on March 31, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $903.99 for a mattress topper recommended by Medex Assessments Inc. in a treatment plan (OCF-18) submitted on October 25, 2016 and denied on March 31, 2016?²

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

RESULT

6Based on the totality of the evidence before me, I find the applicant is:

a. Not entitled to a medical benefit in the amount of $2,080.00 for physiotherapy, massage and chiropractic treatment;

b. Not entitled to a medical benefit in the amount of $903.99 for a mattress topper; and

c. Therefore, is not entitled to interest as there are no overdue payment of benefits.

ANALYSIS

Preliminary issue – Late production of evidence

7It is my finding that the applicant is entitled to rely upon the late production of evidence for the following reasons.

8The respondent submits that, in the applicant’s written submissions, which were served on June 21, 2019, there were several new productions included as part of the applicant’s evidence for this written hearing that were not previously served on the respondent. The Tribunal Order dated April 8, 2019 set a production deadline for the applicant of May 24, 2019. The respondent takes issue with this late service.

9More specifically, the respondent asks me to exclude this late evidence for the purposes of this written hearing on the basis that accepting it would be a breach of procedural fairness. To that end, the respondent relies upon the Tribunal’s decision in 18-001128 v Aviva Insurance Canada.³

10The evidence at issue is the following: (1) the clinical notes and records of the applicant’s treatment provider, Physiomed Thornhill, (2) a referral note of Dr. Marinosyan, and (3) a prescription note of Dr. Maggisano.

11The applicant submits that the notes from Dr. Marinosyan and Dr. Maggisano were from appointments he attended with each doctor on May 6, 2019 and May 16, 2019 respectively. The applicant’s submission is that he was unable to obtain the records any earlier than he did.

12The applicant further relies on Rule 9.2,⁴ which states that a party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party, disclose the existence of every document as evidence at the hearing. He submits that he could only undertake to submit what was in his possession by May 24, 2019 and that, despite his best efforts, he could not obtain these additional third-party documents until June 21, 2019.

13After reviewing the parties’ submissions, I do not agree with the respondent. I preface my analysis by stating that the breach of Tribunal orders is not something to be taken lightly. However, the Tribunal is not a court. The rules of evidence are much more relaxed,⁵ and strict adherence to the Tribunal’s Rules does not necessarily apply.⁶ In some cases, like this one, there may be circumstances requiring a deeper review, one with a lens focused on relevance, the rules of procedural fairness, and how to remedy any prejudice that may have been suffered by the other party.

14First, are the records relevant? I find that they are. They are clinical notes and records from the applicant’s medical practitioners that discuss the applicant’s impairments and, thus, help determine whether the benefits in dispute are reasonable and necessary. In this sense, they would ensure that the Tribunal has all the necessary and relevant evidence before it for a full and satisfactory understanding of the issues in dispute.

15Second, were the rules of procedural fairness breached so that the respondent was prejudiced by being denied the opportunity to be heard and prepare a case to defend itself as part of this hearing? In my opinion, the answer is no. The respondent has not provided any submissions or evidence on what prejudice it would suffer, if any, as a result of this late disclosure being admitted. The applicant provided the new evidence on June 21, 2019. The respondent’s written submissions were not due until July 5, 2019 and the written hearing was not scheduled to be heard until July 22, 2019. In other words, the respondent had 14 days to review the evidence provided by the applicant before it was required to respond. I do not view this as a breach of procedural fairness. Even if the respondent may have been prejudiced with only 14 days to review the evidence before responding, it could have filed a motion with the Tribunal under Rule 15 to remedy any potential prejudice by making a request for an extension of time to file its responding submissions. It did not do so.

16With respect to the case that the respondent cited, 18-001128 v Aviva Insurance Canada, I am obviously not bound by another Tribunal member’s decision. In any event, that case did not discuss any prejudice that was suffered by the respondent as a result of the late filing of the evidence or whether the respondent was provided a sufficient opportunity to respond to remedy any potential prejudice. I do not agree with the respondent that by having 14 days notice to respond to additional clinical notes and records amounts to a breach of procedural fairness or is something that can be considered a hearing “by ambush”.⁷

17I will now turn to the discuss the treatment plans that are in dispute for this hearing.

Is the applicant entitled to a medical benefit in the amount of $2,080.00 for physiotherapy, massage and chiropractic treatment?

18It is my finding that this treatment plan is not reasonable and necessary for the following reasons.

19As a result of the accident, the applicant went to see his family physician, who made referrals for the applicant to visit other doctors with respect to a knee injury and for an MRI.⁸ The MRI revealed no fracture, dislocation or bone abnormality.⁹

20An ultrasound of the applicant’s left knee found the quadriceps and patellar tendons in-tact, collateral ligamentous structures normal, medial and lateral menisci in-tact, and no joint effusions. An MRI revealed that there were “No acute findings.”¹⁰

21On May 31, 2016, a routine unenhanced knee MRI protocol was done by Dr. Marshall, who found that the applicant had minimal chondromalacia of the lateral patellar facet, no meniscus tear, and a prior MCL sprain. Dr. Marshall further notes that the “minimal increased signal of the ACL may relate to a prior, very low-grade sprain injury, as the fibres are grossly intact.”¹¹

22An MRI from July 19, 2016 with Dr. Marshall notes little change from his previous MRI in 2013, only noting some signal changes in the medial meniscus and the ACL, though the injury was not definitive of a tear and was not sufficiently symptomatic to warrant surgery.¹²

23The applicant submits that the accident caused him to suffer another thrombosis in his left leg. However, the assessment conducted by Dr. Matz suggests otherwise. The applicant’s self-assessment and reporting to Dr. Matz is that the blood clot was related to the accident; however, Dr. Matz’s does not make an assessment of whether the thrombosis is accident-related and merely concludes that the applicant should come back for a follow up every 3-4 months and to wear a compression stocking.¹³

24The applicant also relies on the clinical notes and records of Physiomed Thornhill in support of his request for the treatment plan. However, after a review of the notes, I do not find them to be of assistance. The clinical notes and records are basically a summary of the treatment the applicant obtained on each visit. The notes range in date from January 2016 through to August 2017 and consistently state the same information, namely that the applicant’s subjective reports of pain on a scale of 0 (no pain) to 10 (unbearable pain) are a 7, that the applicant’s condition has not changed from previous visits and that the applicant was able to tolerate the treatment with mild or no pain.¹⁴

25Other than the applicant’s submissions that the treatments were helpful and led to a significant reduction in the swelling of his left leg, I was not directed to any evidence to substantiate that submission, nor was I directed to evidence of any medical practitioners recommending treatment for the applicant other than Physiomed Thornhill who completed the OCF-18 treatment plan. Physiomed Thornhill also stated that the applicant was not making any improvements as his condition has not changed, despite the treatment.

26The respondent’s insurer examination (“IE”) assessor, Dr. Caven, concluded that the applicant sustained a neck, rhomboid and lower back strain, as well as a contusion to his left knee as a result of the accident. However, Dr. Caven found that the treatment plan is not reasonable and necessary because the applicant has had physiotherapy and massage therapy for the past 1.5 years and, therefore, Dr. Caven’s opinion is that he does not feel that further facility-based treatment would be beneficial considering the accident was 1.5 years ago and the applicant sustained uncomplicated soft tissue injuries. Dr. Caven further recommends a home-based exercise program for strengthening.¹⁵

27I am not persuaded on a balance of probabilities that the treatment is reasonable and necessary based on the fact that, other than the applicant’s subjective reports to Physiomed Thornhill of pain, I am not directed to any evidence from the applicant’s family doctor or any of the specialists he has visited who recommend further treatment.

28To summarize, on a balance of probabilities, I find that the requested treatment is unlikely to be of any benefit and not reasonable and necessary because of the following:

a. the applicant’s x-ray, MRI and ultrasound of his knee which did not find any fractures, tears or anything sufficiently symptomatic to warrant surgical intervention.

b. Clinical notes and records of the treatment provider, Physiomed Thornhill, that notes the applicant has not improved with treatment that was provided from January 2016 to August 2017.

c. Dr. Caven’s IE assessment that, after 1.5 years of treatment, further facility-based treatment would not be beneficial.

d. No recommendations for treatment from any other medical practitioner including his family doctor or any specialists he has seen.

Is the applicant entitled to a medical benefit in the amount of $903.99 for a mattress topper?

29I find that the treatment plan for a mattress topper is not reasonable and necessary for the following reasons.

30The onus is on the applicant to prove on a balance of probabilities whether the treatment plan is reasonable and necessary. I have not been pointed to any submissions or evidence by the applicant to meet this test.

31The applicant submits the treatment should be payable because the respondent’s IE assessor did not cite any studies, methodological research or other basis for concluding that a mattress would be unable to treat the symptoms that the applicant was experiencing, despite acknowledging that the applicant had suffered an impairment as a result of the accident. In essence, he suggests that it is the respondent’s obligation to disprove his own claim. That, of course, reverses his onus of proof.

32Moreover, a diagnosis of an impairment on its own does not render a treatment plan to be reasonable and necessary. Focusing on the alleged deficiencies in the respondent’s IE report as the applicant has done is not sufficient to prove that the treatment is reasonable and necessary. More is required. The applicant has not pointed me to any evidence in support of the applicant’s need for a mattress topper.

33As a result of the above, I find that the applicant has not proven on a balance of probabilities that the treatment plan in the amount of $903.99 is reasonable and necessary and therefore the respondent is not liable to pay for it.

INTEREST

34As there are no benefits owing, there is no interest that is owing by the respondent.

ORDER

35For the reasons outlined above, the applicant is:

a. Not entitled to a medical benefit in the amount of $2,080.00 for physiotherapy, massage and chiropractic treatment;

b. Not entitled to a medical benefit in the amount of $903.99 for a mattress topper; and

c. Therefore, is not entitled to interest as there are no overdue payment of benefits.

Released: January 13, 2020

___________________________

Sandeep Johal, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2According to the respondent’s Response by an Insurance Company form, the date of denial was May 30, 2017.
3. 32019 CanLII 58164 (ON LAT)
4. 4Common Rules of Practice and Procedure, October 2, 2017 (the “Rules”)
5. 5Section 15 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22
6. 6See rule 3.1 of the Tribunal Rules.
7. 7Supra Note 3 at paragraph 18.
8. 8Written submissions of the applicant Tab 3. January 6, 2016 referral note of Dr. Latman.
9. 9Written Submissions of the applicant Tab 1.
10. 10Ibid at Tab 2.
11. 11Ibid at Tab 3 Clinical Notes and Records of Dr. Marshall pages 2-3.
12. 12Ibid at Tab 3, Clinical Notes and Records of Dr. Marshall dated July 19, 2016.
13. 13Ibid at Tab 4, Letter dated January 29, 2016 to Dr. Latman.
14. 14Ibid at Tab 7.
15. 15Respondent Written submissions at Tab 13, Dr. Caven IE Report dated May 16, 2017 at page 6