Tribunal File Number: 18-010618/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
[B.D.]
Applicant
and
Aviva General Insurance
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant: Aminder Hayher, Counsel
For the Respondent: Robert J. Jones, Counsel
HEARD In Writing: November 12, 2019
OVERVIEW
1The applicant, [B.D.] (“applicant”) was involved in an automobile accident on January 17, 2017 (“accident”) and applied for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”). The respondent, Aviva General Insurance (“respondent”) denied those benefits. The applicant then filed an Application for Dispute Resolution to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”) for various benefits, including treatment plans and cost of examinations.
ISSUES TO BE DECIDED
2The following issues are now before me by a hearing in writing:
i. Is the applicant entitled to medical benefit treatment recommended by Complete Rehab Centre as follows:
a) $2,531.00 for chiropractic service, in treatment plan submitted on May 11, 2017, and denied by the respondent on May 19, 2017?
b) $1,882.49 for chiropractic services and massage therapy, in a treatment plan submitted on July 20, 2017, and denied by the respondent on August 3, 2017?
c) $1,656.87 for chiropractic services and massage therapy, in a treatment plan submitted on June 4, 2018, and denied by the respondent on June 6, 2018?
ii. Is the applicant entitled to payment for the cost of an examination in the amount of $2,248.90 for an in-home and attendant care assessment, recommended by Complete Rehab Centre in a treatment plan submitted on May 5, 2017, and denied by the respondent on May 19, 2017?
iii. Is the applicant entitled to the cost of an orthopaedic assessment in the amount of $2,680.00 provided by Complete Rehab Centre, submitted on January 27, 2018 and denied February 5, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s appeal is successful, in part. The applicant has met her onus to prove that the treatment plans she seeks are reasonable and necessary. The applicant’s claim for cost of examination for attendant care assessment in the amount of $2,248.90 is dismissed. The applicant’s claim for cost of orthopaedic assessment in the amount of $2,680.00 is dismissed. The applicant’s claim for an award is dismissed. Interest is payable in accordance with s. 51 of the Schedule.
LAW AND ANALYSIS
4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the 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
5I find that the applicant has met her onus to prove that the treatment plans she seeks are reasonable and necessary.
The Treatment Plans for Chiropractic Services
6I find that the three treatment plans (“OCF-18”) in dispute are reasonable and necessary. The applicant claims entitlement to three treatment plans for chiropractic services and massage therapy recommended by Complete Rehab Centre submitted in May and July 2017 and June 2018. The respondent has removed the applicant from the MIG.
7In all three OCF-18’s, Dr. Jessa stated the goals of pain reduction, increase range of motion, improve endurance and muscle control. The applicant reported that the therapy has been helpful. The applicant also provided a report from Dr. Nguyen, an orthopaedic surgeon, who in April 2018 diagnosed injuries from the accident and recommended supervised physiotherapy/chiropractic therapy as one of the therapies. Taken together, I find that the treatment plans and the report of Dr. Nguyen prove on a balance of probabilities that the treatment plans are reasonable and necessary.
8The respondent submits that there is insufficient medical evidence to demonstrate that the treatment plans are reasonable and necessary and notes that there are limited records from Dr. Malhota, applicant’s family physician, and no evidence that she informed him of the accident. However, the records filed by the applicant show that she followed up with Dr. Malhota on January 31 and March 2, 2017 and April 29, 2017 for neck and pain.
9Although the respondent is correct that the applicant has filed little medical documentation from Dr. Malhota and no evidence that he recommended physical therapy, the applicant did file the opinion of Dr. Nguyen which corroborates Dr. Jessa’s recommendation of chiropractic treatment. There is also self-reporting from the applicant that the therapy has been helpful. The treatment plans are also reasonably proximate in time to the accident, having been recommended within the first year and one-half of the accident. I prefer the evidence of Dr. Nguyen to the report from applicant’s psychiatrist Dr. Dhaliwal in May 2017. That report does not link her complaints to the accident but rather to when she was working and does not recommend chiropractic treatment. A recommendation as to whether or not chiropractic treatment is required is more appropriately made by an orthopaedic surgeon than a psychiatrist.
10The respondent had the applicant assessed by Dr. Safir, an orthopaedic surgeon, Dr. Nesterenko, a family physician, Dr. West, a psychologist and Mr. Jag Khirayain, an occupational therapist. I find that these reports are not sufficient to outweigh the treatment plan from Dr. Jessa and the report Dr. Nguyen, both of which specifically address the need for chiropractic treatment. Much of Dr. Nesterenko’s assessment was for the purpose of addressing whether the applicant qualified for non-earner benefits by opining whether the applicant had a complete inability to carry on a normal life. Much of Dr. Safir’s assessment was for the purpose of determining whether the applicant’s injuries could be treated within the minor injury guideline, a matter which is now moot given that the respondent has agreed to remove the applicant from the MIG. As an experienced orthopaedic surgeon, Dr. Nguyen is in a better position to give an opinion as to the need for chiropractic treatment than either Dr. West, a psychologist and Mr. Khirayain, an occupational therapist.
11The respondent also submits that an adverse inference should be drawn from the applicant’s failure to produce records of Dr. Pinto, Dr. Dhaliwal and Dr. Benmoftah. The applicant submits that efforts were made to obtain these records when requested by the respondent. Based on the applicant’s submissions, it appears that the applicant made best efforts to obtain these records when requested. The respondent did not seek to delay this hearing until the requested records were obtained. More importantly, it is up to the applicant to present her case, bearing in mind that she has the onus of proving that the treatment plans are reasonable and necessary. I have found that the applicant met her burden of proof based on the fact that Nguyen corroborated the recommendation of Dr. Jessa for the recommended chiropractic treatment. I decline to draw an adverse inference against the applicant.
12The respondent argues that the applicant’s current complaints are indicative of her longstanding musculoskeletal and psychological issues, rather than any injuries sustained in the accident. However, I find that the report of Dr. Nguyen establishes that a causal connection between the injuries he diagnosed and the accident, for the purposes of considering the reasonableness and necessity for the treatment plans in dispute here. The respondent’s assessor Dr. Nesterenko also noted a causal connection by confirming that the applicant “…initially sustained injuries as a result of the …accident” although she disagreed that the applicant demonstrated any ongoing musculoskeletal injuries attributable to the accident by April 2017.
Cost of In-Home and Attendant Care Assessment
13I find that the cost of examination for attendant care assessment in the amount of $2,248.90 is not reasonable and necessary.
14While the purpose of an assessment is to determine if a condition exists, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary by bringing forward evidence that there are grounds to suspect that the applicant has the condition for which she seeks the assessment. The applicant has failed to satisfy this onus.
15The applicant submits that she suffers from limitations in walking, lifting, carrying, pushing, pulling, bending, stooping, prolonged sitting and standing and loss of enjoyment of social/recreational activities. However, there is insufficient objective evidence put forward by the applicant to establish why an in-home attendant care assessment is reasonable and necessary. The respondent’s surveillance in June 2017, some six months after the accident, shows the applicant able to walk, stand conversing with neighbours, get in and out of a vehicle, bend down, clean her front porch with a mop, use a garden hose, move a lawn chair and a rug, all without assistance from others or any assistive device. Given her demonstrated ability to move in this fashion, there is insufficient evidence to suspect that she has an inability to be independent in her self-care.
16Therefore, I find that the cost of examination for the attendant care assessment is not reasonable and necessary.
Cost of Orthopaedic Assessment
17I find that the cost of orthopaedic assessment in the amount of $2,680.00 is not reasonable and necessary.
18The proposal for orthopaedic assessment states that the applicant reports her knee, neck, shoulder and back pain, headaches, severe anxiety/frustration/irritability/depressed mood and poor sleep quality are reported to have had a substantial impact on her ability to participate in the “majority of work tasks, in home tasks and activities of daily living at this time”.
19The proposal is based on erroneous information. The applicant’s records before me are clear that the applicant did not work outside the home at the time of the accident and had not for many years. The surveillance obtained by the respondent shows that the applicant has the capability to carry out many in home tasks and activities of daily living. Given her demonstrated ability to move as shown in surveillance, there is insufficient evidence to suspect that she has been impacted as substantially as suggested in the proposal for the orthopaedic assessment. The factual foundation for the proposed assessment is flawed.
20Therefore, I find that the cost of examination for the orthopaedic assessment is not reasonable and necessary.
Special Award
21Although this issue was not referred to me, both parties addressed it in their submissions. The applicant claims a special award on the basis that the respondent unreasonably withheld payment of benefits and withheld information from medical assessors.
22Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
23I find that there is no evidence of an unreasonable withholding or delay of payment by the respondent. The respondent denied the benefits for the reasons it expressed. This does not amount to unreasonable withholding or delay of payment by the respondent. I am not satisfied that the respondent withheld information and even if it had, withholding of information from medical assessors is not a ground for special award.
24The applicant argues that the respondent improperly denied and was late in denying the treatment plans. I find that there is no basis for this argument. The dates of submission and denial of the treatment plans and examinations which are the subject matter of this hearing were agreed upon and set out in Orders from the Tribunal prior to the hearing.
25The claim for an award is without merit and is dismissed.
Interest
26Having found that the treatment plans are reasonable and necessary, interest is payable in accordance with section 51 of the Schedule.
CONCLUSION
27For the reasons above, I find the following treatment plans are reasonable and necessary and are payable with interest, if incurred:
i. $2,531.00 submitted on May 11, 2017
ii. $1,882.49 submitted on July 20, 2017
iii. $1,656.87 submitted on June 4, 2018
iv. Interest is payable in accordance with s. 51 of the Schedule.
v. The applicant’s claim for cost of examination for attendant care assessment in the amount of $2,248.90 is dismissed
vi. The applicant’s claim for cost of orthopaedic assessment in the amount of $2,680.00 is dismissed.
vii. The applicant’s claim for an award is dismissed.
Released: April 7, 2020
Avril A. Farlam, Vice Chair
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635.