Citation: MZ vs. Aviva Insurance Canada, 2020 ONLAT 18-010369/AABS

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:

M.Z.

Applicant

and

Aviva Insurance Canada

Respondent

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Volha Vinahradava, Paralegal

For the Respondent:

Marcin Panasewicz, Counsel

HEARD: In Writing

June 24, 2019

1The applicant (“M.Z.”) was involved in an automobile accident on January 10, 2015, (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Specifically, M.Z. is seeking funding for medical benefits and cost of examination expenses.

2Aviva contends that M.Z. has not proven her entitlement to the claimed benefits. Aviva further submits that M.Z. is barred from submitting a Tribunal application regarding a treatment plan (“OCF-18”) dated March 25, 2015. In addition, there is a dispute over the reasonable cost of an approved psychological assessment performed by a psychometrist.

ISSUES IN DISPUTE

3The issues to be decided are as follows:

(i) Is the medical benefit in the amount of $1,800.00 for physiotherapy treatment recommended by Head to Toe Chiropractic in a treatment plan (OCF-18) denied on March 26, 2018, reasonable and necessary?

(ii) Is the medical benefit in the amount of $420.00 ($1,600.00, less $1,180.00 paid) for chiropractic treatment recommended by Dr. Chudolinski in a treatment plan (OCF-18) dated March 25, 2015, reasonable and necessary?

(iii) Is the cost of examination expense in the amount of $2,246.07 for a chronic pain assessment recommended by Canadian Health Assessments in a treatment plan (OCF-18) denied on March 26, 2018, reasonable and necessary?

(iv) Is the cost of examination expense in the amount of $2,259.78 for an orthopaedic assessment recommended by Canadian Health Assessments in a treatment plan (OCF-18) denied on March 26, 2018, reasonable and necessary?

(v) Is the cost of examination expense in the amount of $224.42 ($1,920.53, less $1,696.10 paid) for a psychological examination recommended by Canadian Health Assessments in a treatment plan (OCF-18) denied on April 12, 2018, reasonable and necessary?

(vi) Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(vii) Is M.Z. entitled to interest on any overdue payment of benefits?

4Additional issues were identified in the Case Conference Order. However, the parties were able to resolve these, and the issues listed above comprise the focus of this written hearing.

FINDINGS

5Based on a review of the evidence, I find that:

a. M.Z. is not entitled to the balance of the chiropractic treatment plan in the amount of $420.00, plus interest;

b. M.Z. is not entitled to the remaining treatment plans, therefore no interest is payable; and

c. M.Z. is not entitled to an award.

SECTION 38 COMPLIANCE

6M.Z. submits that the following treatment plan should be approved because Aviva failed to comply with s. 38(8) of the Schedule:

i. Is the medical benefit in the amount of $420.00 ($1,600.00, less $1,180.00 paid) for chiropractic treatment recommended by Dr. Chudolinski in a treatment plan (OCF-18) dated March 25, 2015, and denied on December 20, 2017, reasonable and necessary?

7Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per s. 38(11), if an insurer fails to comply with these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice.

8For the reasons that follow, I find that Aviva complied with s. 38(8), and the remaining balance of the treatment plan is not payable.

9M.Z. submits that the balance of the March 25, 2015 OCF-18 is payable in full in accordance with s. 38(11) of the Schedule. According to M.Z., she did not receive a response with regard to this treatment plan. M.Z. further submits that Dr. Chudolinski, Chiropractor, received partial approval of the treatment plan on December 20, 2017.

10Aviva submits that it partially approved the treatment plan up to the MIG limit, and also provided M.Z. with information regarding her Rights to Dispute. The treatment plan was partially approved on November 5, 2015, and a corresponding Explanation of Benefits was also provided on November 5, 2015.

11Aviva contends that M.Z.’s appeal on this issue was filed approximately three years after it denied the remainder of the treatment plan. Aviva submits that in accordance with s. 56 of the Schedule, M.Z. is barred from proceeding with this issue.

12In the Tribunal application, the issue identifies the denial date of the treatment plan as December 20, 2017.

13M.Z. has provided no evidence that Aviva did not comply with s. 38(8) in its partial approval of the treatment plan. I am persuaded that Aviva complied with s. 38(8).

14I find that Aviva’s November 5, 2015 denial letter was mailed to M.Z. on November 5, 2015. This method of delivery is permitted by s. 64(2) of the Schedule. Section 64(18) states that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. In this case, the date that the mailed copy of the letter was deemed received by M.Z. was November 12, 2015.

15My finding is based on the fact there is no evidence that confirms that this correspondence was not provided to M.Z. in accordance with s. 38(8) and s. 64(18).

16I give no weight to M.Z.’s submissions that neither she nor her legal representative received the November 5, 2015 correspondence until December 20, 2017. There is no sworn affidavit before me from either M.Z. or her legal representative confirming that the November 5, 2015 denial letter was never received by either person. This information was only contained in M.Z.’s submissions, which are not evidence.

17I therefore find that the two-year limitation period began to run on November 12, 2015, as this was the latest of the two possible dates that M.Z. received the November 5, 2015 denial letter from Aviva. Therefore, considering both possible service dates of Aviva’s November 5, 2015 denial letter, M.Z.’s second application (regarding the balance of the March 25, 2015 OCF-18) to the Tribunal would also be considered filed after the expiry of the two-year limitation period.

18For the reasons mentioned above, s. 38(11) does not apply in this proceeding. Aviva is not required to pay for the balance of the treatment plan.

LAW AND ANALYSIS

Is M.Z. entitled to the treatment plan for physiotherapy?

19Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.¹

20M.Z. has not satisfied her onus nor persuaded me that the proposed physiotherapy treatment plan is reasonable and necessary to address her impairments resulting from the accident.

21I find the treatment plan not reasonable and necessary for the following reasons:

a. Chiropractor Dr. Chudolinski completed the treatment plan, which lists injuries² that are predominantly minor;

b. Dr. Finkelstein, Family Physician, makes no recommendation for physiotherapy. Dr. Finkelstein does recommend chiropractic treatment on several occasions; and

c. M.Z.’s self-reporting to Dr. Finkelstein is that chiropractic treatment has been helpful.

d. I cannot establish further physiotherapy treatment is reasonable and necessary when the recommendations from M.Z.’s main treating health practitioner does not support physiotherapy treatment.

22The presence of objective supporting evidence to justify further physiotherapy treatment is key in determining whether the medical benefit in dispute is reasonable and necessary.

23I find that there is no other evidence in the record to suggest that, on balance, M.Z. is entitled to further physiotherapy treatment.

24As a result, I cannot decide in favour of M.Z. that she is entitled to the medical benefit in dispute. I find M.Z. has not met her onus in explaining how this OCF-18 meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan reasonable and necessary.

Is M.Z. entitled to a chronic pain and orthopaedic assessment?

25I find that M.Z. has not met her onus or persuaded me that the assessments are reasonable and necessary.

26A chronic pain assessment would, in my view, be for the purposes of diagnosing chronic pain syndrome and, in determining the reasonableness and necessity of a treatment plan for same, I must consider whether or not it is reasonably possible that M.Z. may have chronic pain syndrome. From a physical perspective, based on the lack of pain complaints to the family physician between December 2016 and March 2018, I cannot conclude that M.Z. suffers from a chronic pain condition.

27Aviva submits, and I agree, that the orthopaedic referral for the right knee pain is an orthopaedic issue, and that the right knee pain complaints are not an accident-related chronic pain syndrome issue.

28The March 12, 2018 OCF-18 was completed by Dr. Dima Rozan and sought funding for a chronic pain assessment. The goals of this treatment plan were to “evaluate the extent of the patient’s injuries” and facilitate a return to activities of normal living. The OCF-18 also noted a goal to “get guidance on multidisciplinary care”. The injury and sequelae information section included: tension-type headache, whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sleep disorder, unspecified and post-traumatic stress disorder. The additional comments to the OCF-18 state that the barriers to recovery are the severity of injuries, chronic pain syndrome manifestations, mood/behavioural disturbances and sleep disturbances.

29Aviva denied this treatment plan on March 26, 2018 on the basis that “three years after the accident, any soft tissue injuries and associated sequelae that had resulted from the accident had resolved”. Aviva contends that the basis for M.Z.’s pain complaints is a degenerative knee condition that was not caused by the accident. Aviva submits that the purpose of a chronic pain assessment is to investigate the nature of pain symptoms in the absence of an organic source and make relevant treatment recommendations. Aviva further submits that the organic source of M.Z.’s pain complaints is the degeneration of her right knee and a Baker’s cyst.

30I am persuaded by Aviva’s argument and the medical evidence that the chronic pain assessment is not reasonable and necessary for the following reasons:

a. Firstly, the knee injury or impairment was not caused by or exacerbated by the accident. There is no medical evidence that establishes there was any causal link between the accident and the right knee pain;

b. Second, the medical evidence shows that the soft tissue injuries had mostly resolved, and the pain complaints are mainly centred around the right knee impairments; and

c. Lastly, M.Z.’s psychological complaints appear to be family focused, due to tension with her and her adult children and the resulting stress regarding same. This is not accident-related. Although there is a psychological component to a chronic pain assessment, I find that M.Z. has not established that from a physical injury or psychological impairment standpoint, that a chronic pain assessment is either reasonable or necessary.

31Regarding the orthopaedic assessment, my finding that it is not reasonable and necessary is supported by M.Z.’s medical evidence. For example:

a. A consult report was done on behalf of M.Z. by Orthopaedic Surgeon Dr. McGonigal in 2017. Aviva submits the orthopaedic report was reviewed by Dr. Finkelstein on November 15, 2017. However, M.Z. failed to produce the report, or the Dr. Finkelstein clinical notes and records (“CNR’s”) in relation to the review of the report.

b. A second orthopaedic assessment would be a duplication as M.Z. has already obtained an OHIP-funded orthopaedic report from Dr. McGonigal.

c. A 2016 report by Dr. Chudolinski notes that M.Z. has been treating at the clinic for “lumbar and thoracic sprain strain” as a result of the accident. There is no mention of any treatment for a knee injury caused by the accident.

d. CNRs of Dr. Chudolinski note her neck and back pain is the “same”, between January and June 2018. Although the date(s) are unknown, there is a subsequent visit in which M.Z. claims her back is much better. Again, there is no mention of any accident-related knee (or any lower body) injury.

e. The insurer examination report³ of Physiatrist Dr. Ko found “no pathology [of the right knee] could be attributed to the motor vehicle accident”. Dr. Ko could not find any history of direct knee injury at the time of the accident. As such, Dr. Ko opined that it was unlikely that the accident caused the knee pain. I agree.

32M.Z.’s main pain complaints, three years post-accident are mostly regarding her right knee. There is no medical evidence that connects the right knee impairments to the accident. The medical evidence does not show an extensive history of worsening accident-related neck and back complaints after December 2016. For the aforementioned reasons, the assessments are not reasonable and necessary.

Is M.Z. entitled to the balance of the psychological assessment?

33M.Z. has not established entitlement to the balance of the psychological assessment.

34M.Z. relies on a psychological assessment report⁴ done on her behalf in support of her claim to the outstanding balance of the treatment plan. In the report, on page 2, it notes that part of the assessment was assigned to Psychometrist Lital Crombie. There are no specifics provided as to what portions of the assessment were performed by Ms. Crombie. The report indicated that the assessment included a “clinical interview as well as the administration of psychometric tests”. It is assumed that the interview and psychometric testing is what a psychometrist would conduct for the purposes of a psychological assessment.

35The Guideline⁵ sets a rate of $149.61 per hour for a psychologist. The Guideline rate for a psychometrist is $58.19 per hour. Aviva submits that, according to the OCF-18, 2.5 hours were recommended for testing at a psychologist’s rate, for a total of $374.03. Under the rate for a psychometrist, the 2.5 hours would total $145.48.

36In its adjusting to reflect the 2.5 hours at the psychometrist rate, Aviva calculated the treatment plan total at $1,691.98. Aviva partially approved the treatment plan in the amount of $1,696.10.

37Aviva contends that M.Z. has not clearly set out what portion of the assessment was conducted by a psychometrist, and therefore not established entitlement to the balance. As such, Aviva submits the claim for the balance should be dismissed. I agree.

38In addition to her claim of the balance, M.Z. submits that Aviva did not comply with s. 38(8) of the Schedule, in that Aviva did not provide notice within the required 10 business days. I find that Aviva did provide a response in accordance with s. 38(8) of the Schedule.

39Aviva submits that the treatment plan is dated March 12, 2018, it was denied on March 26, 2018, 10 business days later. An amended Explanation of Benefits (“EOB”) was sent on April 12, 2018. It should be noted that the psychological assessment took place on June 18, 2018. M.Z. has not provided any evidence that any portion of the assessment was incurred prior to June 18, 2018.

40M.Z. has not directed me to any evidence to refute Aviva’s claim that its notice was in compliance with s. 38(8). As such, I find Aviva complied with s. 38(8). M.Z.’s claim for the balance is denied.

AWARD

41Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. M.Z.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has “unreasonably” withheld or delayed payments.

42M.Z. contends that Aviva unreasonably withheld the balance of the March 25, 2015 treatment plan. I have already found that M.Z. is not entitled to the balance of the treatment plan, therefore Aviva cannot be found to have unreasonably withheld payment. As such. M.Z. is not entitled to an award.

CONCLUSION

43M.Z. has not met the onus on her to establish entitlement to the treatment plans in dispute, therefore no interest is owing. M.Z. is not entitled to an award. M.Z.’s application is dismissed.

Released: January 17, 2020