Citation: RRS vs. Aviva General Insurance, 2020 ONLAT 19-003045/AABS

Released Date: 04/21/2020

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:

R. R. S. Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Kate Logushova, Paralegal

For the Respondent: Annmarie White, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, R.R.S., was involved in an automobile accident on April 2, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This dispute focuses on the respondent’s, Aviva, denial of R.R.S.’s entitlement to medical benefits.

2R.R.S. submits that, as a result of injuries he sustained in the accident, the treatment he seeks is reasonable and necessary.

3Aviva argues that R.R.S. has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues I must determine are as follows:

i. Is the medical and rehabilitation benefit in the amount of $3,517.60 for physiotherapy services recommended by Scarborough Medical Centre in a treatment plan (OCF-18) submitted on July 6, 2016 and denied on October 6, 2016, reasonable and necessary?

ii. Is the medical and rehabilitation benefit in the amount of $2,889.60 for physiotherapy services recommended by Scarborough Medical Centre in an OCF-18 submitted on September 23, 2016 and denied on September 28, 2016, reasonable and necessary?

iii. Is the medical and rehabilitation benefit in the amount of $2,871.20 for physiotherapy services recommended by Scarborough Medical Centre in an OCF-18 submitted on February 16, 2017 and denied on February 22, 2017, reasonable and necessary?

iv. Is the medical and rehabilitation benefit in the amount of $2,582.08 for physiotherapy services recommended by Scarborough Medical Centre in an OCF-18 submitted on May 11, 2017 and denied on May 23, 2017, reasonable and necessary?

v. Is the medical and rehabilitation benefit in the amount of $2,888.96 for physiotherapy services recommended by Scarborough Medical Centre in an OCF-18 submitted on, January 5, 2017 and denied on January 10, 2017, reasonable and necessary?

vi. Is the cost of examination expense in the amount of $2,000.00 for a psychiatry assessment recommended by Gil Medicare, submitted on February 1, 2017, reasonable and necessary?

vii. Is R.R.S. entitled to interest on any overdue payment of benefits?

FINDING

5Based on a review of the evidence, I find that

i. R.R.S. is not entitled to the OCF-18s for physiotherapy treatment; and

ii. R.R.S. is entitled to the psychiatric assessment, including interest.

ANALYSIS

6Sections 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.¹

Are the physiotherapy treatment plans reasonable and necessary?

7I find that R.R.S. has failed prima facie to meet his burden of proof with respect to his physiotherapy treatment claims. Accordingly, I do not find it necessary to set out Aviva’s rebuttal evidence or arguments. I note that Aviva provided evidence that all of its denials were based on medical evidence and reports from its own assessor and from R.R.S.’s claims documents.

8As a result of the accident, R.R.S. complained of lower back, bilateral hip and right knee pain. R.R.S. relies on a Disability Certificate (“OCF-3”)² in support of his claim for further physiotherapy treatment. In the OCF-3, under Part 6, it indicates that R.R.S. did not suffer a substantial inability to complete his pre-accident employment as a result of the accident. The OCF-3 further indicates that R.R.S. suffered a complete inability to carry on a normal life and the anticipated duration of injury is 9-12 weeks. I find the OCF-3 to be contradictory in that R.R.S. is able to work but is not able to carry on a normal life, which would include the ability to work. Further, if R.R.S. did suffer a complete inability to carry on a normal life, the anticipated duration of 9-12 weeks, is not indicative of a complete inability.

9The OCF-3 notes that R.R.S suffered from pre-existing chronic back pain due to mild osteoarthritis and mild scoliosis. In his submissions, R.R.S. refers to a clinical note from Family Physician Dr. Boyrazian that indicates the right knee pain began approximately six months post-accident.

10My finding that R.R.S. has not met his onus to persuade me that the physiotherapy treatment is not reasonable and necessary is further supported by the family physician’s clinical notes and records. For example:

i. The first post-accident visit to the family physician was on May 31, 2016. There is no mention of any accident-related pain complaints;

ii. At a July 11, 2016 visit, R.R.S. does mention recollections of the accident, however, there are no physical pain complaints; and

iii. At the July 23, 2016 visit, Dr. Boyrazian notes that R.R.S. is overweight and discussed healthy diet and exercise with R.R.S. There is no mention of any accident-related pain complaints.

11In addition to the OCF-3, R.R.S. relies on an x-ray report dated April 12, 2016. The report indicates that R.R.S. suffers from “mild scoliosis with lower lumbar degenerative changes”. There is no evidence that either of these conditions were caused or exacerbated by the accident.

12I find that the medical evidence further supports that the physiotherapy treatment plans are not reasonable and necessary based on the following:

i. The chiropractic assessment reports³ indicate that R.R.S.’s post-accident pain has improved;

ii. On January 14, 2017, Dr. Boyrazian noted that R.R.S.’s pain symptoms had improved and R.R.S. displayed a full range of motion;

iii. On February 14, 2017, R.R.S. presented with a complaint of neck pain to Dr. Boyrazian, which was opined to be linked to degenerative disc disease. There is no indication that the neck pain is accident-related;

iv. The records indicate the next accident-related pain complaint is made on April 26, 2019, over three years post-accident. There is no evidence of accident-related pain complaints in 2018; and

v. The records indicate a back-pain complaint made to a new Family Physician, Dr. Parikh, on July 5, 2019. During this visit, R.R.S. attributed the pain to lifting furniture.

13I am not persuaded by the clinical notes and records or other medical evidence that the physiotherapy treatment is reasonable and necessary. R.R.S. does not appear to have an extensive history of treatment for his accident-related physical injuries. I find the medical evidence indicates that R.R.S.’s pain complaints are as a result of his pre-existing back pain, and not because of any ongoing accident-related injuries.

14For the reasons above, I find that R.R.S. has not persuaded me that the physiotherapy treatment plans are reasonable and necessary.

Is R.R.S. entitled to payment for the psychiatric assessment?

15For the reasons that follow, I find that the psychiatric assessment is payable.

16Sections 38 (8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under section 38 (8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per section 38 (11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice.

17Aviva submits that this treatment plan was denied via an Explanation of Benefits dated February 8, 2017. The reason for the denial was that the treatment plan was considered a duplication of services for a prior approved treatment plan for psychological counselling.

18R.R.S. submits that the psychiatry assessment is reasonable and necessary, and the assessment has been incurred. Further, R.R.S. contends that Aviva did not provide a denial of this specific incurred expense. I agree.

19I find that Aviva failed to comply with s. 38 (8) because it did not notify R.R.S. within 10 business days whether it would pay for the psychiatric assessment, specifically. Further, Aviva did not provide me with any evidence that psychological counselling and a psychiatric assessment are the same type of services to the extent that there is a duplication.

20R.R.S. has incurred the expense, Aviva failed to comply with s. 38 (8), therefore, pursuant to s. 38 (11), “the insurer shall pay”.

21For these reasons, I find that R.R.S. is entitled to the psychiatric assessment expense.

CONCLUSIONS

22R.R.S. is not entitled to payment for the physiotherapy OCF-18s;

23R.R.S. is entitled to the psychiatric assessment and any applicable interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635.
2. 2Disability Certificate completed by Chiropractor Dr. Aliya Salayeva dated May 5, 2016.
3. 3Chiropractic Assessment Reports dated September 23, 2016, January 4, 2017 and May 10, 2017