Released Date: March 5, 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:
D. S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Anupama Bakshi, Counsel
For the Respondent:
David Koots, Counsel
HEARD: In Writing
May 21, 2019
OVERVIEW
1The applicant, D.S., was involved in an automobile accident on May 8, 2013 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). D.S. was denied certain benefits by the respondent, Aviva and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“the Tribunal”). Specifically, D.S. is seeking funding for chiropractic and massage therapy treatment.
2D.S. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.
3Aviva argues that D.S. has not established that the treatment plans are reasonable and necessary.
ISSUES
4The issues I must determine are as follows:
a. Is the medical benefit in the amount of $2,261.00 for chiropractic treatment recommended by Dr. Robert Glavan in a treatment plan (“OCF-18”) submitted on October 25, 2016 ("Glavan TP1"), and denied on October 28, 2016, reasonable and necessary?
b. Is the medical benefit in the amount of $2,657.00 for chiropractic treatment recommended by Dr. Robert Glavan in an OCF-18 submitted on July 14, 2017 ("Glavan TP2"), and denied on July 25, 2017, reasonable and necessary?
c. Is the medical benefit in the amount of $330.00 for chiropractic treatment recommended by Dr. Elizabeth Viglasky in and OCF-18 submitted on August 22, 2017 ("Viglasky TP1"), and denied on August 30, 2017, reasonable and necessary?
d. Is the medical benefit in the amount of $1,800.71 for chiropractic treatment recommended by Dr. Elizabeth Viglasky in an OCF-18 submitted on August 30, 2017 ("Viglasky TP2"), and denied on October 5, 2017, reasonable and necessary?
e. Is the medical benefit in the amount of $140.00 for massage therapy recommended by Ryan Hayes, submitted on February 27, 2018 ("Massage Treatment"), and denied on March 5, 2018, reasonable and necessary?
f. Is D.S. entitled to interest on any overdue payment of benefits?
RESULTS
5Based on a totality of the evidence before me, I find the following:
a. The Glavan TP1 and Viglasky TP1 are payable, with interest, in accordance with section 51 of the Schedule; and
b. D.S. is entitled to any incurred treatment from the Viglasky TP2 after August 30, 2017, with interest, in accordance with section 51 of the Schedule.
6I find that D.S. is not entitled to the following:
a. The massage OCF-6 expense, as such, no interest is payable.
Section 38 compliance
Glavan TP1
7For the reasons that follow, I find that Aviva did not comply with the requirements under section 38(8). As a result, Aviva is required to pay for any treatment starting on the 11th business day for the Glavan TP1 and the Viglasky TP1.
8On October 25, 2016, Dr. Glavan submitted the Glavan TP1, which Aviva denied on October 28, 2016. Aviva's reasons stated, "We're unable to determine whether the recommendations ... are reasonable and necessary." The "medical reason" for the denial stated, "the frequency of care does not generally diminish over time." D.S. contends that these reasons are inadequate, confusing and do not give reference to D.S.’s medical condition contrary to section 38(8). I agree.
9Aviva submits that the medical reason given in the October 28, 2016 letter is valid, as, at that time, D.S. had already received $11,515.00 in chiropractic treatment with no apparent reduction in the amount of treatment required. Therefore, Aviva argues, it was reasonable to deny the Glavan TP1 on this basis before determining whether additional treatment was reasonable and necessary. Aviva submits that while D.S. may disagree with this medical opinion, she still would have understood why the plan was not being approved.
10On January 10, 2017, Aviva sent a final denial, relying on its assessor’s report. In its letter, Aviva stated,
The assessors reviewed the above October 25, 2016 OCF-18 [the Glavan TP1]. They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.
The assessors have recommended:
a. you speak to your Family Physician about the potential benefits of coanalgesics therapy (Neurontin or topamax) for your symptoms, as well as whether referral for an MRI of her cervical spine would be appropriate.
b. It was stated there were no objective signs of musculoskeletal, orthopaedic or neurological impairment.
11I comment further on this below.
Viglasky TP2
12On August 30, 2017, Dr. Viglasky, chiropractor, submitted the Viglasky TP2. On October 5, 2017, Aviva denied the Viglasky TP2. Aviva's reasons for the denial were similar to the reasons given to deny the Glavan TP1, which I find to be contrary to section 38(8). In the October 5, 2017 denial letter, Aviva provided the following medical reason:
The frequency of care does not generally diminish over time.
13Aviva submits that the “medical reason”, which in the context of the claim, is a valid medical reason to seek an updated medical opinion, in particular as D.S. had switched treatment providers.
14I disagree with Aviva’s position. I find the “medical reason” provided is so unclear – i.e. “The frequency of care does not generally diminish over time” – that it is meaningless. It is no reason at all. The requirement is to provide a medical reason, not leave D.S. to guess what the reason is. The language is unclear to the point that it does not constitute any medical reason at all and thus violates the requirements of s. 38(8). In addition, no mention is made of the MIG.
15On December 11, 2017, Aviva provided additional reasons for the denial of the Viglasky TP1. The reasons were that Aviva’s assessor determined the treatment was not reasonable and necessary, stating:
Please review the enclosed insurer’s examination completed by Viewpoint under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Tepperman and dated November 13, 2017. The assessor reviewed the Treatment Plan (OCF-18) submitted by Healing Source Chiropractic for chiropractic treatment etc. He determined the treatment recommended is not reasonable and necessary for the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.
16D.S. relied on the decision of Executive Chair, Linda Lamoureux in B.H. and Aviva1, which the Divisional Court upheld. In her decision, Executive Chair Lamoureux provided an explanation of what the requirements of “medical and all other reasons” should include:
“an insurer's "medical and any other reasons" should, at the very least, include specific details about the insured's condition forming the basis for the insurer's decision or, alternatively, identify information about the insured's condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer's "medical and any other reasons" should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule's consumer protection goal”.
17Executive Chair Lamoureux goes on to explain that,
“an insurer's "medical reasons" for denying a plan should engage the specific details about the insured's condition forming the basis for the insurer's decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment. Nor should they have to incur the temporal, emotional, and financial costs associated with engaging the Tribunal in order to obtain the treatment they should have received long before. If s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured's medical condition as described in the file at hand”.
18I agree with the Executive Chair’s reasoning and, applying the rationale to the subject proceeding, I find that Aviva’s denials fall short of the mark.
19My finding of Aviva’s non-compliance under section 38(8) is based on the following:
(i) Aviva failed to comply with section 38(8) in that it did not provide adequate reasons for its denials of the Glavan TP1 (denial dated October 28, 2016 and the Viglasky TP1 (denial dated October 5, 2017). These reasons are inadequate because there is no reference to D.S.’s medical condition and the reasons lack rationale. The reasons did not explain in any meaningful way why Aviva was not able to determine whether the plans were reasonably required or why the frequency of care was of a concern.
(ii) With respect to the Viglasky TP, the denial dated October 5, 2017, was 35 days late. Aviva's subsequent denial dated December 11, 2017, gave insufficient reasons as noted in paragraph 9. As such, the mandatory consequences are triggered under s. 38(11)(2).
20As a result of my finding of Aviva’s non-compliance under section 38(8), I find that it has failed to properly interpret its duty under section 38(11) of the Schedule. Thus, in accordance with section 38(11)2, “the insurer shall pay” for any incurred treatment, starting on the 11th business day.
21Since a decision is now rendered on the Glavan TP1 and the Vigalsky TP, Aviva no longer has the opportunity to issue a proper notice of denial. The time to properly deny a benefit ends once a decision has been rendered regarding that benefit.
22I now turn to my analysis of the evidence of D.S.’s pre- and post-accident medical history and my reasons for finding that she suffers from chronic pain and whether she is entitled to the remaining treatment plans.
LAW
23Sections 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.2
ANALYSIS
Does D.S. suffer from chronic pain?
24For the reasons that follow, I find that M.D. has proven on a balance of probabilities that she suffers from chronic pain as a result of her accident-related injuries. Despite my finding that D.S. suffers from chronic pain, I must still determine whether the treatment plans are reasonable and necessary. I will first address my reasons regarding chronic pain.
25In determining whether D.S. suffers from chronic pain, I considered the following criteria:
a. ongoing pain alone is insufficient to take an insured person out of the MIG; rather, ongoing pain must be accompanied by some functional impairment;
b. chronic pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability; and
c. an insured person will not meet his or her burden of showing that chronic pain is more than mere sequelae without discussions as to the level of pain, its effects on the person’s function and whether the pain is bearable without treatment.
26I find that D.S. suffers from chronic pain. I have come to these findings based on the medical evidence before me, including:
i. Due to complaints of pain in her neck, back, headaches, right wrist, depression, anxiety, poor sleep and post-traumatic stress. Family Physician Dr. Murti, provided the diagnosis of chronic pain. Dr. Murti recommended chronic pain management, physical rehabilitation and psychological care "to manage her pain and anxiety."
ii. On December 23, 2014, Physiatrist, Dr. Prutis explained that D.S. suffered an exacerbation of chronic neck and low back pain and has features of De Quevain's tendonitis. Dr. Prutis recommended deep tissue manage to alleviate muscle spasm, hydrotherapy and acupuncture for pain control.
iii. D.S. was diagnosed with chronic pain disorder, depression and anxiety as a result of the MVA by Psychologist Dr. Valentin in December 2014. D.S. underwent psychological treatment.
iv. In his September 7, 2016 report, Family Physician Dr. Murti, gave the diagnosis of post-traumatic stress disorder with anxiety and depression and chronic pain. He recommended chronic pain management, counselling and periodic physiotherapy and massage therapy.
v. On November 1, 2016, due to her non-restorative sleep, multiple night time awakenings and frequent headaches, D.S. saw sleep doctor Dr. Sandhu. Dr. Sandhu reported that D.S.’s multiple night time awakenings were related to her chronic pain issues.
vi. On November 15, 2016, Neurologist Dr. Magder, assessed D.S. Dr. Magder provided the diagnosis of chronic migraines, exacerbated by the MVA. Dr. Magder provided migraine prescriptions.
27Although D.S.’s treatment providers are not all chronic pain specialists, I find the medical evidence, over one to three years post-accident, is indicative that D.S. is suffering from chronic pain. I am persuaded that D.S.: a) suffers from functional impairment, b) experiences suffering and distress accompanied by functional impairment, and c) experiences a significant level of pain that impacts her function, and is not bearable without treatment.
28Aviva does not dispute that D.S. may still be experiencing pain as a result of the accident. However, Aviva does not specifically comment on whether or not D.S. suffers from chronic pain. Aviva relied on the findings and opinions of its assessors that the proposed treatment was not reasonable and necessary. Aviva suggests that D.S. has not established that her post-accident pain is not sequelae of her injuries.
29I find that chronic pain, if established, by definition is pain that persists three to six months after the initial trigger or injury. Further, chronic pain is not captured by the term “clinically associated sequelae”. Although Aviva’s submissions and evidence are silent on whether D.S. suffers from chronic pain, I find that D.S. has met her burden to persuade me that she suffers from chronic pain.
30My finding that D.S. suffers from chronic pain as a result of the accident, is further supported by the following:
i. D.S. reported to Aviva’s insurer examination (“IE”) assessor, Dr. James Han Choi, General Practitioner, that her headaches, neck, upper back and low back have worsened since the accident. Although Dr. Choi ultimately concluded that D.S. sustained soft tissue injuries, his conclusion also notes an exacerbation of migraine headaches and an exacerbation of cervical strain, lumbar strain and thoracic strain.
ii. It should be noted that Dr Choi recommended that D.S. “follow-up with her Family Physician for any ongoing complaints, should they persist. Her Family Physician would be in the best position to recommend a future plan of management”. I find this to be an indication of Dr. Choi’s acceptance of any recommendations or referrals for treatment for D.S.’s pain complaints from her primary treatment provider, Dr. Murti.
iii. D.S. reported to Dr. Paul Tepperman, General Practitioner, that she had not improved since the accident. Dr. Tepperman diagnosed D.S. with myofascial strain of her cervical and lumbar paraspinal musculature, as well as post-traumatic headaches.
iv. Furthermore, D.S. reported to the medical assessors that her sleep is disturbed as a result of her pain. She told Dr. Choi that she has difficulty falling and staying asleep, primarily due to pain. She told Dr. Tepperman that her neck pain aggravates her sleep.
v. Another indication that D.S. experiences chronic pain is that since the accident, D.S. tried "psychotherapy, mindful stress reduction, physiotherapy, massage therapy, acupuncture, stretching" and yoga. D.S. submits that the “best treatment so far for pain relief is chiropractic care and massage” (as received from Dr. Glavan, Dr. Viglasky and Ryan Hayes, Massage Therapist). D.S. further submits that when the treatment was regular, she coped with her pain levels and anxiety, and she found it easier to work and do the activities that are important to her. Without treatment, she attended a hospital emergency room on multiple occasions because she could not cope with her pain levels, namely October 12, 2016, July 11, 2017, and December 29, 2017.
31D.S. states that chiropractic treatment provides her some pain relief for about two days and as long as a week. When she undergoes this treatment, her pain is reduced. She finds it easier to work and do the activities that are important to her.3
32I find that the records of D.S.’s pain complaints discussed above point to the fact that the accident caused D.S.’s chronic pain. Nevertheless, I must still determine whether she is entitled to the requested treatment plans.
Is D.S. entitled to the Glavan TP2 treatment plan?
33I find that this OCF-18 is reasonable and necessary for the following reasons:
a. D.S. has submitted medical documentation to establish that she has pain in various parts of her body as a result of the accident. I have found that she suffers from chronic pain as a result of the accident.
b. Dr. Murti provided the referrals to Dr. Glavan and Dr. Viglasky and supported the treatment plans in dispute. Dr. Murti's opinion is that D.S. continues to require chronic pain management, physical rehabilitation and psychological counselling to manage her pain and anxiety. I find that D.S.’s consistent reports of pain to her own treating physicians and the IE assessors is indicative that, due to D.S.’s chronic pain condition, she continues to suffer from pain as a result of the accident.
34D.S. submits that the goal of the OCF-18 is to reduce pain and to facilitate her return to her activities of normal living. The OCF-18 for chiropractic services recommends chiropractic treatment with the goals of pain reduction, increase in strength, increased range of motion and return to activities of normal living.
35I find that the OCF-18 is reasonable and necessary for the recommended goals and objectives.
36D.S. is therefore entitled to the payment for this OCF-18.
Is D.S. entitled to the Viglasky TP2?
37I find that D.S. is not entitled to treatment incurred before August 30, 2017, as a portion of the treatment was incurred prior to the date of the treatment plan.
38However, D.S. is entitled to any treatment incurred after August 30, 2017, plus applicable interest, in accordance with section 51 of the Schedule.
39Section 38(2) of the Schedule states that an insurer is not liable to pay an expense that was incurred before a treatment plan is submitted.
40Aviva contends that any treatment received before August 30, 2017 would not be recoverable by D.S. I agree.
41D.S. submits that a note from Dr. Viglasky indicates that the treatment was incurred after the treatment plan. Despite this, I am persuaded by the information in Part 12 of the OCF-18. D.S. relies on the OCF-18 to establish entitlement and, therefore, I rely on the same OCF-18 to determine that the treatment was incurred prior to the date of the treatment plan.
42The question in Part 12 is clear, “How many visits have you already provided?” I find there is no ambiguity in the question and, as a treatment provider, Dr. Viglasky would have extensive experience and knowledge on how to properly complete an OCF-18. There is no evidence of whether clarification was needed in order to complete the required information asked under Part 12. I find the question of how many visits, is clear and was answered accordingly.
43Based on Part 12 of the August 30, 2017 OCF-18, it appears that D.S. incurred 11 sessions of treatment prior to the treatment plan being submitted. I find that D.S. is not entitled to this period of incurred treatment, because the incurred treatment is not in compliance with section 38(2) of the Schedule.
44Between September 7, 2017 and October 2, 2017, D.S. attended for chiropractic treatment with Dr. Viglasky. D.S. submits that these treatments were incurred, and are therefore payable with applicable interest pursuant to section 51 of the Schedule.
45Based on the evidence, and my aforementioned findings regarding chronic pain, I find that D.S. is entitled to treatment incurred after August 30, 2017. I find that the treatment is reasonable and necessary to address D.S.’s pain complaints and chronic pain.
Is D.S. entitled to payment for the massage treatment?
46D.S. claims that she is entitled to the out of pocket expenses for massage therapy she received and submitted on an Expense Claim Form (“OCF-6”). I find that D.S. is not entitled to the expense listed in the OCF-6 for the following reasons.
47The OCF-6 dated February 27, 2018 lists the following expense: $140.00 for massage therapy provided by Ryan Hayes. In her submissions, D.S. argues entitlement to her expenses because she has incurred the massage treatment due to her claim that she suffers from chronic pain. D.S. further submits that she needed the massage therapy to help manage her pain, as she found massage therapy helpful, and Aviva was no longer funding her treatment.
48In response, Aviva submits that no treatment plan had been received from Ryan Hayes and, therefore, pursuant to section 38(2) of the Schedule, no amounts would be recoverable.
49I agree with Aviva’s reasons for denial. It is understood that an insurer is not liable to pay for any expense that is incurred before a treatment and assessment plan is submitted. D.S. offered no evidence that a treatment plan was submitted for the massage therapy treatment. As a result, I agree that this expense is not payable.
CONCLUSION
50I find that D.S. is entitled to the following:
i. Pursuant to section 38(11)(2) of the Schedule, The Glavan TP1 and Viglasky TP1 are payable, starting on the 11th business day, with interest, in accordance with section 51 of the Schedule;
ii. D.S. is entitled to any incurred treatment from the Viglasky TP2 after August 30, 2017, with interest, in accordance with section 51 of the Schedule.
51I find that D.S. is not entitled to the following:
i. The massage OCF-6 expense, as such, no interest is payable.
Released: March 5, 2020
__________________________
Derek Grant
Adjudicator
Footnotes
- 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT).
- Scarlett v. Belair, 2015 ONSC 3635.
- Affidavit of D.S., para 17, 21, p.16-17, dated April 8, 2019