Tribunal File Number: 18-006666/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:
M.D. Applicant
and
Aviva General Insurance Respondent
DECISION
Adjudicator: Jesse A. Boyce
APPEARANCES:
For the Applicant: Andrew Franzke For the Respondent: Jennifer Cosentino
Heard by way of written submissions
OVERVIEW
1M.D. was injured in an accident on March 31, 2017 and sought medical benefits, the costs of examinations and an income replacement benefit (“IRB”) from the respondent, Aviva. Aviva approved the IRB but the parties disagree on the weekly benefit’s quantum. Aviva also denied several treatment plans and the costs of various examinations on the basis that they were not reasonable and necessary. M.D. disagreed and applied to the Tribunal for resolution of the dispute and clarification on the quantum of her IRB.
ISSUES TO BE DECIDED
2The following issues are in dispute:
i. What is the quantum of the approved income replacement benefit?
ii. Is the applicant entitled to a medical benefit for physiotherapy for $6,056.55 recommended by Spinetec Health Care Solutions submitted March 7, 2018 and denied March 23, 2018?
iii. Is the applicant entitled to a medical benefit for chiropractic services for $2,918.00 recommended by Spinetec Health Care Solutions submitted March 7, 2018 and denied March 23, 2018?
iv. Is the applicant entitled to the cost of an examination for $2,486 for an in- home assessment recommended by Meditecs Independent Medical Examination and claimed in an OCF 18 submitted October 5, 2017 and denied October 30, 2017?
v. Is the applicant entitled to the cost of an examination for $2,847.60 (partially approved) for an orthopaedic assessment recommended by Meditecs Independent Medical Examination and claimed in an OCF 18 submitted October 11, 2017 and denied October 30, 2017?
vi. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find M.D. is entitled to an IRB in the amount of $297.88 per week, the cost of the hydrotherapy treatment plan in the amount of $2,918.00 and the outstanding transportation costs of $395.50. Interest pursuant to s. 51 applies on overdue benefits.
4I find M.D. is not entitled to payment for the remaining benefits in dispute, as they are not reasonable and necessary. I find an award is not appropriate.
ANALYSIS
What is the quantum of the IRB?
5I find that M.D. is entitled to an IRB payment in the amount of $297.88 per week.
6The parties agree that, for the purposes of calculating the IRB, M.D. is “self-employed.” M.D. submits that she is entitled to the weekly benefit in the amount of $297.88 per week and, to that end, relies upon the accounting report authored by Durrani & Associates dated October 24, 2017. In response, Aviva relies on the report from BDO, dated November 22, 2017, that calculated M.D. was entitled to the weekly benefit of $275.00 per week.
7More specifically, M.D. submits that the crux of the discrepancy between her IRB calculation by Mr. Marino of Durrani & Associates and that of BDO is based on the latter’s contention that Mr. Marino’s past income calculation is based on 52.14 weeks as opposed to 52 weeks. M.D. argues that BDO’s designation of April 2, 2016 as the beginning of the 52-week period prior to the accident is incorrect. M.D. submits that if BDO’s assumption is that 52 weeks is equivalent to 364 days, then the starting point of the 52-week period should be April 1, 2016. She asserts that the calculation in BDO’s report is “either based on flawed methodology or it doesn’t even conform to its own methodology” and that the Tribunal should reject BDO’s calculation in favour of Mr. Marino’s report on that basis.
8In response, Aviva contends that the BDO report correctly assumes that the IRB calculation begins on April 8, 2017 in accordance with s. 6(2)(a) of the Schedule and that M.D.’s own report also used April 8, 2017 as the commencement date. Aviva submits that BDO’s designation of the commencement of the 52-week mark prior to March 31, 2017 is April 2, 2016 and that is correct. It argues that there is no flawed methodology applied because BDO applied a simple calendar verification by counting 52 seven-day weeks prior to March 31, 2017. On this basis, Aviva argues that the Durrani Report is incorrect to use March 31, 2016 as the commencement of the 52-week mark prior to March 31, 2017. Aviva states that BDO notes that by using March 31, 2016 as the commencement date, Durrani applied 0.14 weeks to the 52-week period and therefore, the Durrani Report used an incorrect methodology.
9Somehow, the parties agree that the IRB calculation begins on April 8, 2017, despite providing different calculations. In any event, it is uncontroverted that the date of the accident was March 31, 2017. The parties also agree that, pursuant to s. 4 of the Schedule, 52 weeks must be subtracted from this date in order to establish the commencement date. This brings us to April 1, 2016. To reverse the equation: April 1, 2016 plus 52 weeks brings us back to the date of loss, being March 31, 2017. From this date, we add the mandatory one week waiting period under s. 6(2)(a) and arrive at April 7, 2017. M.D.’s IRB then becomes payable the next day, on April 8, 2017, which the parties agree on.
10As we know, April 2, 2016 was the date on which BDO relied in its report and therefore the date is incorrect for calculating M.D.’s IRB quantum. Notably, April 1, 2016 does constitute only 364 days, a fact echoed in M.D.’s submissions, which I assume is what clouded the calculation. Section 4 of the Schedule does not measure time for the purposes of IRB calculation based on full years, or 365 days, but rather explicitly based on weeks. In this case, 52 weeks. The difference is a subtle one, but clearly an important one, as it means that M.D. is entitled to the additional $22.88 per week she claims. For completion, despite repeated attempts to calculate it, I could not determine how BDO arrived at the April 2, 2016 date it used in its report.
11Accordingly, I find the quantum of M.D.’s IRB entitlement is $297.88 per week for the period in dispute.
Are the rehabilitation benefits reasonable and necessary?
12Section 15 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. M.D. bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.
$6,056.55 for physiotherapy
13I find that M.D. is not entitled to this medical benefit in the amount of $6,056.55 for physiotherapy as this treatment plan is not reasonable and necessary.
14M.D. submits that the OCF-18, submitted on March 7, 2018, in the amount of $6,056.55 is for 10 weeks of physiotherapy services including chiropractic treatment, exercise, acupuncture, physiotherapy, massage therapy, and laser therapy. She cites the plan’s goals as pain reduction, increasing her strength and range of motion, and facilitating her return to her activities of normal living. M.D. submits that the treatment is reasonable and necessary because she has demonstrated commitment to treatment in the past that has paid off in the form of reducing the pain she continues to experience in her left knee and lower back, as well as reducing the intensity and duration of pain she experienced in her upper back and cervical spine. She cites Dr. Paton’s note that ongoing treatment has improved muscle swelling, tightness, tenderness, and pain intensity.
15In response, Aviva submits that the treatment is not reasonable and necessary. It relies on the report of Dr. Josefchak, who determined that, in light of a year of continuous similar treatment with Dr. Paton that only resulted in temporary relief, M.D.’s pain-focused behavior during assessments and concerns over the origin of her alleged impairments, that M.D. had reached maximum medical improvement. Aviva refers to Dr. Josefchak’s opinion that M.D.’s reported pain was “not in keeping with the diagnoses provided, the severity of the mechanism described, and the treatments provided to date.” Aviva further relies on his opinion with respect to the aggravation of the pre-existing issues in the left shoulder, that the treatment did not address the pain that may be emanating from the aggravation.
16I agree with Aviva. While I take no issue with M.D.’s credibility, on review of the treatment plan, I agree that the costs proposed are not proportional to the benefit that M.D. is allegedly receiving, and that the treatment plan identified by Dr. Paton is not tailored to M.D.’s current complaints. To M.D.’s credit, she has consistently attended Spinetek for physiotherapy and chiropractic treatment up until at least June 2019, when the records cease. Given her regular and frequent attendance, it is concerning that she still has lingering pain. While pain reduction is a legitimate goal for treatment, I question why $6,000 of further treatment proposed by Dr. Paton would be reasonable and necessary when she has only derived temporary pain relief from the same treatment to date and why the program has not been altered over time.
17While I am not prepared to make a determination on causation on the information before the Tribunal, on the evidence I do prefer the opinion of Dr. Josefchak that it is likely that M.D. has achieved maximal medical improvement from facility-based treatment as there is no objective physical impairment identified that would prevent her recovery at over three years post-accident. Even if I accept that M.D. sustained a fracture to her left shoulder, which Aviva specifically disputes, the x-ray report in evidence confirms that it has healed, that the issues are largely degenerative, and the treatment plan prepared by Dr. Paton, in any event, does not specifically address how treatment will address this issue. Without the shoulder concerns, in the additional comments, the injuries listed remain as whiplash and sprain and strain type injuries. On this basis, and even with M.D.’s complaints of pain in mind and her psychological impairments, I struggle to reconcile the reasonableness of the cost of the proposed plan with the benefit of treatment for what amount to relatively minor physical injuries.
18In the absence of analysis as to why each respective modality (or really, any one of the chiropractic treatment, exercise, acupuncture, physiotherapy, massage therapy or laser therapy individually) is reasonable and necessary at this cost to specifically treat M.D.’s lingering impairments, it is difficult to find that all of them are reasonable and necessary, especially when there has been limited improvement over time. I find it would have been helpful to demonstrate why specific elements of this large and relatively generic plan were so needed to treat M.D.’s specific ailments. Accordingly, I find M.D. is not entitled to the cost of this treatment plan as it is not reasonable and necessary.
$2,918.00 for chiropractic (hydrotherapy) services
19I find that M.D. is entitled to the cost of this treatment plan as it is reasonable and necessary.
20M.D. submits that the OCF-18, submitted on March 7, 2018 by Dr. Paton in the amount of $2,918.00 for 12 sessions of hydrotherapy and associated services, is reasonable and necessary to address her pain, increase her range of motion and return her to her daily activities. The sessions are preceded by a file review to familiarize the service provider with M.D.’s impairments and develop patient-specific sessions. After the file review and the initial meeting between provider and patient, the hydrotherapy sessions are planned and prepared to maximize their benefit for the patient and to plan patient-specific goals. The sessions are adjusted and updated as M.D. progresses through the treatment plan and progress reports will be authored.
21In response, Aviva relies on the same arguments it presented for the physiotherapy treatment plan. Aviva argues that it is not reasonable and necessary in light of a year of continuous treatment with Dr. Paton that only resulted in temporary relief reported, M.D.’s pain-focused behavior during assessments, and Dr. Josefchak’s opinion that M.D. had reached maximum medical improvement.
22Here, I agree with M.D. and find that this treatment plan is reasonable and necessary. While I agree that it is likely that M.D. has achieved maximum medical improvement from the facility-based modalities like chiropractic treatment, physiotherapy and acupuncture above, I find that the proposal for hydrotherapy treatment at least provides a new, unexplored avenue for treatment that may help to actually address her alleged limited ability to reach, lift, carry, bend, twist, stoop, and kneel, as well as her alleged limited ability to sit, stand, or walk for long periods of time. In my view, the benefits of aqua therapy, at a reasonable cost and with a detailed plan specific to M.D., may provide the type of physical improvement and pain relief where previous treatment seemingly plateaued. If M.D. indeed continues to suffer from pain and range of motion issues three years post-accident, I agree that it is reasonable to fund a new form of treatment like hydrotherapy in order to determine whether greater improvement can be made. Even if M.D. is still unable to experience improvement and reduced pain through this new program featuring a tailored plan with multiple progress reports, then the cost for investigating same, in my view, was not unreasonable as proposed.
23Accordingly, I find M.D. is entitled to payment for the hydrotherapy treatment plan as it is reasonable and necessary.
$286.00 for the remainder of an in-home assessment
24This issue pertains to the remaining amount of a partially approved treatment plan for an in-home assessment in the amount of $2,486.00. Aviva approved payment in the amount of $2,260.00, comprising the cost of the examination in the amount of $2,000 and the tax on same in the amount of $260, pursuant to s. 25(5) of the Schedule.
25M.D.’s initial submissions were silent on this issue. After a motion to include submissions on reply, M.D. made arguments as to why the treatment plan as a whole was reasonable and necessary despite it being approved. Her submissions do not address the remaining amount in dispute. Accordingly, she has not met her onus to prove entitlement and therefore I find this benefit is not payable.
$395.50 for transportation costs from the $3,243.10 orthopaedic assessment
26This issue pertains to the remaining $395.50 in transportation fees from a partially approved treatment plan in the amount of $2,847 for an orthopaedic assessment. I find M.D is entitled to the $395.50 for transportation costs.
27Aviva’s partial approval is confirmed in an explanation of benefits dated October 30, 2017. In the letter, Aviva agreed to pay $2,847.60 of the treatment plan, but indicates that “it is not in a position to approve the transportation costs if it is under 50 km distance.” In submissions, Aviva explained that it made this determination because M.D. never disclosed the location of the assessment. Following receipt of this letter, Aviva submits that M.D. failed to disclose the location of the assessment and provide it with an opportunity to reassess its position. In submissions, M.D. alleges that the assessment took place at [the hospital] and that the round-trip distance between the Hospital and her home in [a city in Ontario] is 116 km. Aviva submits that this is the first time it has received information about the distance travelled for the assessment and, moreover, that the report of Dr. Abouali, who conducted the assessment, does not indicate the location of the assessment.
28Section 25(1) of the Schedule states that an insurer shall pay reasonable expenses incurred by or on behalf of an insured person for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination.
29I agree with M.D. While I am alive to Aviva’s concerns about proffering evidence in written submissions, I disagree that this “overhauls the procedural requirements of the Schedule” as alleged. On review of the explanation of benefits, Aviva did not ask M.D. to provide the address of the examination, only providing the information on how to appeal the denial, which M.D. did in submitting her application to the Tribunal. Having knowledge of M.D.’s address, I suspect this is a confusion that could easily have been rectified with a phone call or an email. M.D. just as easily could have provided the address to Aviva and received payment at any point in the last two years, as it is her burden. And yet, on review of Dr. Abouali’s report, [the hospital] is identified in the letterhead and Aviva has not indicated where else the assessment may have taken place. While I find the cost for transportation to be somewhat steep, M.D.’s travel exceeded 50 kms. I find the remaining transportation costs in the amount of $395.50 reasonable under s. 25(1)5(4)’s “shall pay” provision.
Interest
30M.D. is entitled to interest on any overdue benefits, pursuant to s. 51.
Award
31M.D. claims entitlement to an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding and delay of payments for benefits. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits owing if it finds that the insurer unreasonable withheld or delayed the payment of benefits.
32M.D. argues that Aviva acted unreasonably in rejecting the proposed treatment, in denying the transportation costs and in relying on the BDO report. Aviva submits that it adjusted the file in good faith and did not unreasonably withhold payments of benefits. I agree with Aviva and find an award is not appropriate. All of the issues present genuine disputes over entitlement and I find there is no behaviour or conduct sufficient to warrant an award.
CONCLUSION
33For these reasons, I find M.D. is entitled to IRB payment in the amount of $297.88 per week. She is entitled to the cost of the hydrotherapy treatment plan in the amount of $2,918.00 and the remaining transportation costs of $395.50. Interest pursuant to s. 51 applies on overdue benefits.
34I find M.D. is not entitled to payment for the remaining benefits in dispute, as they are not reasonable and necessary. I find an award is not appropriate.
Released: April 22, 2020
Jesse A. Boyce, Adjudicator