A.P. v. Aviva Insurance Canada, 2020 CanLII 30381

Citation: A.P. vs. Aviva Insurance Canada, 2020 ONLAT 18-007997/AABS

Date: March 13, 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:

[A.P.] Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Victoria Tchilikova, Paralegal Olga Poznyakova, Paralegal

For the Respondent: Sarah Fasih, Counsel

HEARD: Written submissions followed by in-person hearing on August 20, 2019

OVERVIEW

1The applicant was involved in an accident on July 30, 2016 while riding a motorcycle. He claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”). The applicant qualified for and received an income replacement benefit. After returning to work, the applicant claimed entitlement to a non-earner benefit. The applicant filed an application with the Licence Appeal Tribunal (“Tribunal”) to dispute the denial of the non-earner benefit and some treatment plans.

ISSUES

2The parties agreed that the issues to be determined by the Tribunal are:

i. Is the applicant entitled to receive a weekly non-earner benefit in the amount of $185.00 per week from October 15, 2016 to July 30, 2018?

ii. Is the applicant entitled to medical benefits as follows:

a. $4,271.80 for physiotherapy services recommended by Essential Physio Rehab Clinic in a treatment plan dated November 15, 2017 and denied on December 4, 2017?

b. $3,212.36 for physiotherapy services recommended by Essential Physio Rehab Clinic in a treatment plan dated August 15, 2018 and denied on August 21, 2018?

c. $759.00 for a stationary bike recommended by the family physician in a treatment plan dated August 1, 2018 and denied on August 15, 2018?

iii. Is the applicant entitled to the cost of examination expense in the amount of $1,995.00 for an orthopaedic assessment recommended by Unison Medical Assessment in a treatment plan dated June 27, 2018 and denied on July 18, 2018?

iv. Is the applicant entitled to an award under Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to weekly non-earner benefits from October 15, 2016 to July 30, 2018.

4The applicant is entitled to the medical benefits in dispute, with interest pursuant to s. 51 of the Schedule.

5The applicant is entitled to the cost of examination, with interest pursuant to s. 51 of the Schedule.

6On the evidence before the Tribunal, I find that an award is not warranted.

ANALYSIS

i. Non-Earner Benefits

7Following the accident, the respondent paid income replacement benefits to the applicant until he returned to work on October 15, 2016. The applicant is not precluded from now advancing a claim for non-earner benefits because he did not file an OCF 10 (election of benefits form). However, I find that the applicant is not entitled to non-earner benefits because he has not sustained a complete inability to carry on a normal life.

8Section 3(7)(a) defines a “complete inability to carry on a normal life” as follows:

A person suffers a complete inability to carry on a normal if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

9The applicant relies on disability certificates that check off boxes that he has a complete inability to carry on a normal life, as well as treatment plans that indicate that his impairments affect his ability to carry out his activities of normal life. However, these documents do not identify any pre- or post-accident activities that the applicant used to perform which he is no longer able to complete. Checking off a box on a form is not enough. In fact, the disability certificate contains comments that the applicant can perform all his activities of daily living, but he must make modifications and it takes him longer.¹ In my view, this does not demonstrate that the applicant has sustained a complete inability to carry on a normal life.

10The evidence does not support that the applicant has been continuously prevented from engaging in substantially all the activities in which he ordinarily engaged before the accident. In fact, the evidence shows that the applicant has resumed virtually all his activities. The applicant moved out of his father’s house after the accident and now lives alone. He is now responsible for more cooking and housekeeping tasks than he was prior to the accident. The applicant returned to work full time in October 2016 albeit on modified duties. He testified that he works 60 hours per week as a produce clerk and stocking shelves. He is independent with all personal care. The applicant resumed Tae Kwon Do (although he no longer performs all the manoeuvres) and obtained a black stripe belt.² He does not compete in tournaments anymore. According to his affidavit, it appears that the only activities that the applicant no longer performs is running or lifting weights. He is not continuously prevented from engaging in substantially all his pre-accident activities. The applicant has not met the burden of proof to establish his entitlement to a non-earner benefit.

ii. Medical Benefits

11The onus is on the applicant to prove that the medical benefits are reasonable and necessary pursuant to ss. 14-16 of the Schedule. I find the disputed treatment plans are reasonable and necessary as a result of the injuries sustained in the accident.

12The disputed treatment plan dated November 13, 2017, recommended 16 sessions each of physiotherapy, acupuncture, physiotherapy, exercise and acupuncture totaling $4,271.80. The goals of the treatment plan were to reduce pain, increase strength and range of motion, and return to activities of normal life, pre-accident work, and competing in Tae Kwon Do.

13X-rays of the applicant’s lumbar spine, right shoulder, left hand, and left knee were taken shortly after the accident which were negative for fractures but revealed minimal joint space narrowing in the knee.³ However, the applicant continued to see his family physician regularly in 2016 and 2017 with ongoing accident related complaints of pain in his back, neck and knee. In May 2017, the applicant again reported experiencing pain in his knee when he tried to do a kick in martial arts. He was referred for further x-rays, which again revealed minimal joint space narrowing.⁴ An ultrasound of the knee in June 2017 revealed small to moderate effusion with fluid.⁵ Further investigations were undertaken, and the applicant had an MRI of his left knee in October 2017 which revealed a large complex tear of the medial meniscus.⁶ The applicant was referred to an orthopedic surgeon, and had an arthroscopy and meniscectomy in July 2018.

14The applicant also continued to experience ongoing shoulder pain post-accident. The family physician referred the applicant for an ultrasound of the right shoulder in November 2017, which revealed a significant tear of the supraspinatus tendon and a biceps tear with tenosynovitis.⁷ The family physician recommended further physiotherapy in a note dated November 8, 2017.⁸

15In denying the treatment plan dated November 13, 2017, the respondent relied on the s. 44 Insurer Examination report of Dr. Loritz (general practitioner), dated January 11, 2018.⁹ Dr. Loritz determined that the applicant sustained soft tissue injuries to his neck back and extremities, as well as a tear of the right shoulder supraspinatus tendon, left thumb ligament sprain, lumbar spine sprain, and contusion of the left knee. The doctor did not have the benefit at the time of reviewing the MRI report which revealed a meniscal tear in the left knee. He noted that the applicant reported experiencing knee pain after the accident, which was improving and then flared up after he resumed martial arts training. Limitations of the neck, right shoulder and left knee were observed during the examination, consistent with the findings revealed in the imaging reports. Dr. Loritz noted that the applicant continued to experience some ongoing symptoms aggravated by his activities of daily living. However, the doctor concluded that further facility-based rehabilitation was unlikely to provide any long-term therapeutic benefit, and that the applicant had reached maximum medical improvement with respect to the injuries sustained in the accident.

16I do not agree with Dr. Loritz’s conclusion that the applicant had reached maximum medical improvement, or that he was unlikely to experience further improvement with treatment. At the time of the assessment, the applicant’s injuries had not stabilized. He subsequently had knee surgery, and further physiotherapy was recommended by both the applicant’s treating orthopedic surgeon and his family doctor.

17The respondent submits that the shoulder tear and left knee tear are as a result of other injuries that the applicant sustained post-accident. In support of its position, the respondent points to the imaging taken in August 2016 which did not reveal any tears, and submits that it was only after the applicant suffered a fall at work and resumed martial arts that he injured his shoulder and knee. However, the respondent incorrectly stated that the imaging taken in August 2016 were MRIs. In fact, the imaging taken in August 2016 was x-rays, and would not have revealed any tears. The applicant was only sent for further investigations, including ultrasounds and MRIs, after he continued to see his family physician for complaints of pain in his shoulder and knee. I am not convinced that intervening events caused the applicant’s shoulder and knee tears given the consistent complaints evidenced by the physiotherapy records and the family physician’s records. In fact, even Dr. Loritz opined that the shoulder and knee injuries were “probably the direct result of the accident” even though Dr. Loritz was aware of the applicant’s fall at work and that knee pain was reported after martial arts.

18I find that the applicant had not reached maximum medical recovery, and further treatment was warranted. The extent of the applicant’s injuries was not clear until the fall of 2017 when the shoulder and knee tears were revealed. The applicant had surgery on his knee in July 2018. The evidence indicates that the applicant is a motivated individual who was working hard to mitigate his damages, but continued to experience ongoing pain and limitations. The treatment plan dated November 13, 2017 was reasonable and necessary to help him continue to perform his activities of daily living and recover from his injuries.

19Likewise, for the reasons noted above, the treatment plan in the amount of $3,212.36 dated August 13, 2018 and the plan for the stationary bike for $759.00 were reasonable and necessary. I find that the treatment plans were reasonable and necessary to address the applicant’s ongoing accident-related injuries. The applicant had not recovered at the time the treatment plans were submitted. In fact, he had just undergone surgery to his knee in July 2018. It is reasonable to expect that the applicant would require further physiotherapy following the surgery. The applicant’s treating orthopedic surgeon recommended that the applicant use a stationary bike to speed the healing process in a note dated July 31, 2018.¹⁰ Accordingly, the treatment plan in the amount of $759.00 for a stationary bike was submitted.¹¹ I find the recommendation for a stationary bike was reasonable and necessary. The applicant was still in the acute phase of recovery following his knee surgery, which he required as a result of his accident-related injuries. The family physician also provided a note dated August 10, 2018 indicating that the applicant would benefit from further physiotherapy to improve his range of motion and reduce his pain following his knee surgery.¹²

20Considering the foregoing, I find that the three treatment plans in dispute were reasonable and necessary.

iii. Cost of Examination

21An OCF 18 dated June 27, 2018 was submitted on behalf of the applicant proposing an orthopedic assessment in the amount of $1,995.00 given the right shoulder and left knee injuries, to determine the applicant’s current status and prognosis. The respondent denied the treatment plan in a letter dated July 18, 2018, indicating “You are scheduled for surgery on your left knee. Therefore, the proposed assessment is considered non-essential and has been denied”.¹³ The respondent submits that the treatment plan is not reasonable because the applicant’s shoulder and knee injury were not a result of the accident.

22I find that the proposed assessment was reasonable. As noted above, I am satisfied that the applicant’s knee and shoulder injuries were caused by the accident. This is consistent with Dr. Loritz’s conclusion. Although the applicant was already scheduled to see an OHIP funded orthopedic surgeon for his knee injury, he also sustained a significant tear of the supraspinatus tendon and a bicep tear with tenosynovitis. It is reasonable in my view, for the applicant to participate in an assessment with an orthopedic surgeon to address his other injuries, determine his prognosis, and consider treatment options.

INTEREST

23Having determined that the applicant is entitled to the disputed treatment and costs of examinations, interest is also payable on the amount overdue pursuant to s. 51 of the Schedule.

AWARD

24Under s. 10 of O. Reg. 664, the Tribunal may issue an award of up to 50 per cent of the amount to which the applicant is entitled if the Tribunal finds that the respondent has unreasonably withheld or delayed payments as a result of its conduct.

25The applicant submits that the respondent unreasonably withheld or delayed payments because it failed to give notice to the applicant within 10 business days in accordance with s. 38(8). The applicant argues that the denials for the treatment plans dated November 13, 2017 and August 1, 2018 were made on the 14th and 15th business days, respectively, from the date of the submission of the treatment plans. The respondent submits that the denials were made on the 14th and the 11th business days, respectively.

26On the evidence before me, I find an award is not appropriate. There is already a remedy for failure to provide notice within 10 business days, as set out in s. 38(11)(2). The insurer is required to pay for the amounts incurred from the 11th business day to the date the notice is provided. The point is moot in any event, given that I have determined that the applicant is entitled to the full treatment plans.

27Other than the foregoing, there was no evidence provided by the applicant to prove that the respondent acted in any way that was unreasonable or neglected its duty to adjust the file in good faith. Accordingly, I decline to order an award.

ORDER

28The applicant is not entitled to weekly non-earner benefits from October 15, 2016 to July 30, 2018.

29The applicant is entitled to the medical benefits and the cost of examination in dispute, with interest pursuant to s. 51 of the Schedule.

30The applicant is not entitled to an award pursuant to Regulation 664.

Footnotes

1. 1Tab 12 – applicant’s submissions.
2. 2Tab 6 – respondent’s submissions.
3. 3Tab 7 - respondent’s submissions: x-ray report dated August 10, 2016.
4. 4Tab 7 – respondent’s submissions: x-ray report dated May 10, 2017.
5. 5Tab 7 - respondent’s submissions: ultrasound report dated June 30, 2017.
6. 6Tab 2 – applicant’s submissions: MRI report dated October 21, 2017.
7. 7Tab 6 – applicant’s submissions: ultrasound report dated November 15, 2017.
8. 8Tab 2 – applicant’s submissions.
9. 9Tab 6 – respondent’s submissions.
10. 10Tab 18 – applicant’s submissions.
11. 11Tab 11 – applicant’s submissions – OCF 18 for a stationary bike dated August 1, 2019.
12. 12Tab 9 – applicant’s submissions.
13. 13Tab 22 – applicant’s submissions.