Tribunal File Number: 18-011102/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[W. E.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Patricia Conway
APPEARANCES:
For the Applicant
Olga Pznyakava, Counsel
For the Respondent:
Laura Meschino, Counsel
HEARD: In Writing
September 27, 2019
OVERVIEW
1The applicant was in an automobile accident on January 17, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule.(“SABS”) The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal – Automobile Accident Benefits Service (“Tribunal”)
2The applicant was the driver of a motor vehicle and wearing his seatbelt when the accident occurred. He was stopped at a traffic light and was rear-ended. The airbags of his vehicle did not deploy. He was able to drive his vehicle away from the scene.
3The accident occurred on a Sunday. On the following Tuesday, he attended at his family physician’s office complaining of neck and lower back pain. He was diagnosed with a sprain.
4He was self employed as a contractor at the time of the accident, working part-time doing repair jobs. He would find workers to carry out the majority of the work to be done and would himself do clean up and some painting. He has not worked since the accident.
5He went to physiotherapy treatments from January 2016 to November 1, 2016. At that point the amount available to him under the Minor Injury Guidelines (MIG) was almost exhausted. At the request of the insurer he was assessed by a physiatrist and a psychologist whose reports concluded, among other things, that his condition did not entitle him to Income Replacement Benefits (IRBs). The insurer stopped his IRBs as a result.
6He submitted this claim to the Tribunal.
7At or immediately following the case conference, the applicant withdrew his claim for IRBs and the respondent insurer requested that the Tribunal determine an additional issue, whether the applicant’s injuries from the accident fall within the MIG.
ISSUES
8The issues to be decided in this application are:
a. Does the injury sustained by the applicant in the accident fall within the MIG under the SABS?
b. Is the applicant entitled to a medical/rehabilitative benefit of $5,185.00 for chiropractic and other services submitted by LV Rehabilitation in a treatment plan (OCF 18) dated November 11, 2016 and denied by the respondent insurer on November 24, 2016?
c. Is the applicant entitled to repayment of a $75.00 expense to pay the outstanding invoice for clinical notes and records from L.V. Rehabilitation?
d. Is the appellant entitled to interest on any of the money he is claiming?
e. Is the applicant entitled to an award under O/Reg 664 (a “Special Award”)
RESULT
9Pursuant to s38 (11)(1) of the SABS, the respondent’s failure to comply with s. 38(8) in its notice to the applicant denying the benefit set out in Issue b., above, precludes it from asserting that the applicant’s injuries fall within the MIG, for purposes of that benefit.
10The applicant is not entitled to the medical/rehabilitative benefit submitted by LV Rehabilitation for $5,185.00, because the treatment is not reasonable and necessary. However, pursuant to s 38(11)(2), the respondent must pay to the applicant all amounts he has expended for the goods and services described in the treatment plan because of its failure to comply with s.38(8.
11The respondent has agreed to pay the $75.00 claimed for the cost of procuring notes and records from LV Rehabilitation, notwithstanding these were not produced. I order that the respondent do so.
12The applicant is entitled to interest on all amounts he has expended for the goods and services in the treatment plan from LV Rehabilitation. I do not order interest to be paid on the $75.00, because the notes and records were not produced, from which I gather that the invoice was not paid by the applicant.
13The applicant is not entitled to an award under Ontario Regulation 664, because the insurer did not unreasonably delay or withhold any payment.
LAW
14A minor injury means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury. (SABS, s.3(1)
15An insured who sustains an impairment that is predominantly a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses, including assessments. (SABS, s. 18(1)).
16If the insured’s health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented before the accident and that will prevent him from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit, that limit does not apply.(SABS, s.18(2))
17The applicant has the burden of proving, on a balance of probabilities, that the injuries he sustained in the motor vehicle accident fall outside the MIG.
18The applicant must offer credible medical evidence of an objective impairment resulting from the motor vehicle accident to prove he falls outside the MIG.
19The statements made in a proposed plan of treatment (OCF 18) are not, without corroborating medical evidence, proof of the truth of the statements made regarding the applicant’s medical condition, nor proof of the applicant’s need for the treatment he seeks. See T.T. v Certas Direct Insurance Company, 17-003571/AABS.
20The SABS, s 38(8) and 38(8.1) require the insurer who receives a treatment/assessment plan from an applicant to respond setting out what it will pay for and what it will not pay for, giving the medical and other reasons why it has decided that the goods and services are not reasonable and necessary
21S. 38(9) requires the insurer to advise an applicant in its response if it believes that an applicant’s injury fall within the MIG.
22S. 38(11) says that if the insurer fails to give a notice in accordance with subsection 38(8) ,two things happen:
a. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, for purposes of that treatment plan, and
b. The insurer is obliged to pay for anything in that plan that is actually expended by the insured, until it gives a notice that does comply with s. 38(8)
23The obligation of the insurer to pay for the goods and services proposed in a treatment/plan arises if the goods and services are reasonable and necessary. The applicant has the onus of proving to the Tribunal on a balance of probabilities that the proposed treatment is reasonable and necessary.
EVIDENCE AND ANALYSIS
Issue a: Did the motor vehicle accident cause injuries that fall outside the Minor Injury Guideline (MIG)?
24The submissions of the applicant indicate that in answering this question, I must determine:
I. the nature of the accident injuries,
II. If the applicant’s caregivers have identified any pre-existing conditions that will prevent his recovery from the accident injuries if he is limited to the MIG amount for treatment;
III. If the accident injuries have caused the applicant to suffer a psychological impairment that take him out of the MIG?
IV. If the respondent’s November 24, 2016 notice under s38(8) of the SABS precludes the respondent from arguing that the applicant’s injuries fall within the MIG?
25Because of my answer to this last question, I will consider it first.
(IV) Did the insurer’s notice refusing to pay for the goods and services requested in the November 2016 OCF 18 recommended by LV Rehabilitation comply with s. 38(8) and (9) of the SABS?
26The insurer wrote to the applicant denying payment in the OCF18 completed by Dr. Chang, a chiropractor with LV Rehabilitation. In doing so, the insurer cited as the reason for its denial the IE report of Dr. Zabieliauksas. The letter paraphrased Dr Zabieliauskas’ conclusion that the applicant had suffered soft tissue injuries from which he had recovered; that he had received more than enough treatment, that he required no more treatment and that he was able to return to all of his pre-accident activities, including his pre-accident employment, without restrictions.
27The applicant argues that the insurer cannot rely on Dr. Zabieliauskas’ report because the doctor was retained to provide an opinion on the applicant’s continuing entitlement to IRBs, not on whether Ms. Chang’s treatment plan was reasonable and necessary.
28I find this argument disingenuous. Dr. Zabieliauskas assessed the applicant and stated, among other things, that he had received more than enough treatment. This statement answers the question “is any plan of treatment reasonable and necessary?” . I reject the applicant’s implication that the plan had to be assessed by an expert specially retained to opine on its reasonableness. The insurer is not obliged to do this by the SABS; it simply has to provide a medical reason for denying the benefit sought. I find that the letter from the insurer does so.
29The applicant is correct, however, in his assertion that the insurer’s notice does not state that the applicant’s injuries fall within the MIG. This omission makes the insurer’s notice non-compliant with s. 38(8). As a consequence, s. 38(11) states that the insurer cannot assert that the applicant’s injuries fall within the MIG for purposes of its determination whether or not to approve that treatment plan. The insurer must therefore assess the treatment plan and determine if it is reasonable and necessary, without regard to a $3,500 limit.
30Given this determination, I need not consider questions (i) – (iii).
Issue b: Is the applicant entitled to the benefit of the treatment plan set out in the November 16, 2016 OCF18 from LV Rehabilitation?
31Because the insurer cannot assert non-entitlement to this benefit on the basis of the MIG, the question is if the treatment plan is “reasonable and necessary”. The meaning of these criteria are well understood. In brief, the cost must be reasonable given the benefit expected, and there must be an expectation that the treatment proposed will ameliorate the applicant’s condition resulting from the accident-related injury.
32The treatment proposed in the plan is chiropractic, i.e. spine and joint manipulation to the cervical, thoracic and lumbar spine, with the aim of relieving the pain the applicant was complaining of and assisting him to increase his mobility and flexibility. On its face, this has merit. The clinical notes from the treatments the applicant had already received indicate that he feels better after them. Indeed, only six weeks after the accident he is said to have remarked that his back pain had improved 70% and his neck pain had improved by 50%.
33He attended Back to Play Chiropractic for treatment at intervals between January 28, 2016 and November 1, 2016. The clinical records concerning his treatment indicate that from September 2016 his complaints were primarily of “stiffness” in his back or neck, rather than pain. These records also indicate that he had missed treatments and was not doing his exercises at home. This suggests that his issues had resolved, or at least did not bother him enough to cause him to try to alleviate them through regular exercise and treatment.
34At this point, in September 2016, the insurer requested that he attend two s 44 assessments to determine if his present condition warranted continuation of the income replacement benefits he had been receiving since the accident. The assessors were Dr. Kapieliauskas, an orthopaedic surgeon, and Dr. West, a psychologist. Dr. Kapieliauskas reported that the applicant had sustained a cervical strain WAD I to II and a mild thoracolumbar strain from the accident. He detected no residual impairment from the accident. He reported that the applicant did complain of pain, but that this was benign and should be treated with a home- based program of exercise. He stated specifically that the applicant had received “more than enough” facility- based treatment.
35I am troubled that Dr. Kapieliauskas commented in his report that the applicant had “no pre-existing conditions” because we know from the evidence that the applicant had degenerative disc disease that was identified in his cervical spine in an X-ray report a year earlier, in November 2015. We know that an MRI in November 2016 showed degenerative disc disease progressing throughout his spine. However, I am reassured by the fact that Dr. Kapieliauskas was given this additional information after he had submitted his report.. He prepared an addendum to his assessment after viewing and considering the MIR and reaffirmed his opinion, stating that the applicant’s accident-related injuries had resolved and were not causally related to the degenerative disc disease.
36Dr. West interviewed the applicant and carried out a number of tests that are designed to detect if a subject is, consciously or not, magnifying his complaints. He concluded that the applicant was certainly doing so. He concluded that the applicant exaggerated his injuries and his pain. I find Dr. West’s assessment persuasive. The tests themselves are evidence-based, and Dr. West makes his assertions with confidence and without any hint of personal judgment of the applicant.
37The cumulative effect of these two assessments is compelling. I am led to the conclusion that when the treatment plan was proposed by LV Rehabilitation, the applicant had recovered from the accident-related injuries and was exaggerating the pain he felt, which was related not to the accident but to his pre-existing condition.
38In coming to this conclusion, I do not intend to impugn Dr. Chang’s assessment of the applicant. She found the applicant had restrictions in his spinal range of motion, and the applicant appears to have told her that he was in considerable pain and suffered from headaches and difficulty sleeping, and no doubt his statements coloured her conclusions. I am persuaded, however, that the s 44 assessors offer a more accurate and dependable assessment. The assessors are paid by the insurer for their report, whatever they say. Dr. Chang, however, had an interest, conscious or not, in recommending treatment that she and her colleagues would perform. More importantly, as a chiropractor she did not have the expertise to critically assess the applicant’s subjective assertions regarding his condition. I prefer the opinions of Drs. West and Zabieliauskas, and on that basis I conclude that the treatment plan proposed is not reasonable and necessary.
Issue d: Is the applicant entitled to interest on any amount owing
39The insurer has agreed to pay for the LV Rehabilitation notes and records without admitting any obligation to do so. The evidence for this claim is an invoice for $75 from LV Rehabilitation for reproducing their notes and records. In its submissions, the applicant states that the amount is still outstanding. The evidence is that the respondent did not receive a copy of the notes and records from LV Rehabilitation. The respondent in its submissions has agreed to pay that amount, and on the basis of this offer, I order that the $75.00 should be paid. However, as the invoice has not been paid by the applicant, no interest is payable.
40However, interest is payable pursuant to s. 51 of the SABS on any amount the applicant has already expended for the goods and services listed in the LV Rehabilitation treatment plan, as stipulated by s 38(11)(2) of the SABS.
Issue (e): Is the applicant entitled to an award under Ontario Regulation 664 because the respondent has acted unreasonably and unduly delayed payment to the applicant?
41It is well established that the test for granting an award is a stringent one, requiring cogent evidence of reprehensible conduct by the insurer in the adjusting of the claim. As my reasons indicate, I do not find any such conduct. The respondent’s failure to comply with s. 38(8) carries its own penalty in s. 38(11), so I decline to make an award on the basis of that non-compliance with the SABS. There is nothing else in the evidence that would warrant an award.
ORDER
42I order that the insurer pay to the applicant the $75 it has offered to pay in its submissions. Because I have found that the insurer cannot assert that the applicant’s accident-related injuries fall within the MIG, I also order that the insurer pay any amount that the applicant has paid for services pursuant to the LV Rehabilitation OCF 18, together with interest on that amount in accordance with s. 51 of the SABS.
Released April 13, 2020
Patricia Conway
Adjudicator