P.S. v. Aviva General Insurance Company, 2020 CanLII 35482

Citation: P.S. vs. Aviva General Insurance Company, 2020 ONLAT 19-000891/AABS

Released Date: 05/01/2020

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:

P.S.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melody Maleki-Yazdi

APPEARANCES:

For the Applicant:

Ramy Akladios, Counsel

For the Respondent:

Robert H. Rogers, Counsel Emily M. Hill, Counsel

HEARD:

In person on: February 18, 19, 20 and 21, 2020

OVERVIEW

1P.S. ("the applicant") was injured in an automobile accident ("the accident") on January 25, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") when his claims for benefits were denied by the respondent.

2The respondent denied the applicant's claims for medical benefits and costs of examinations because it was determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² ("the MIG").

3I heard evidence from the following individuals: the applicant, Dr. Bob Karabatsos (orthopaedic surgeon) and Dr. Grigory Karmy (general practitioner with additional training in chronic pain management).

ISSUES

4The following issues are in dispute for this hearing:

i. Are the applicant's injuries predominantly minor injuries as defined in the Schedule and therefore subject to treatment within the MIG?

ii. If the applicant's injuries are not within the MIG, then the Tribunal must determine the following issues:

(i) Is the applicant entitled to receive a medical benefit in the amount of $2,847.60 for chiropractic treatment recommended by Prime Health Care in a treatment plan submitted March 10, 2017 and denied on March 20, 2017?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $2,308.50 for chiropractic treatment recommended by Prime Health Care in a treatment plan submitted April 6, 2017 and denied on April 20, 2017?

(iii) Is the applicant entitled to payment for the cost of examinations in the amount of $1,230.92 for an attendant care assessment recommended by Prime Health Care in a treatment plan submitted March 9, 2017 and denied on December 17, 2018?

(iv) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment recommended by Downsview Healthcare in a treatment plan submitted June 7, 2019 and denied on June 21, 2019?

(v) Is the applicant entitled to receive a medical benefit in the amount of $12,293.41 for a chronic pain program recommended by Downsview Healthcare in a treatment plan submitted September 24, 2019, and denied on October 8, 2019?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

5The applicant's injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment.

6The respondent provided a notice that did not satisfy the requirements in s. 38(8). Until the respondent provides a notice as described in s. 38(8), I find that, pursuant to s. 38(11), the applicant is entitled to payment for the cost incurred, if any, for the chiropractic treatment in the amount of $2,308.50. He is entitled to payment in the amount of $2,000.00 for the incurred chronic pain assessment. He is entitled to interest on any overdue payment of benefits.

7The applicant is not entitled to the other disputed benefits, nor is he entitled to an award.

ANALYSIS

Did the respondent comply with s. 38 of the Schedule?

8The applicant submits that the respondent did not comply with s. 38 of the Schedule in regard to the treatment plan for chiropractic treatment in the amount of $2,308.50 and submitted on April 6, 2017.

9Section 38(8) of the Schedule requires the insurer to, within 10 business days after receipt of a treatment plan, give the insured person notice identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for.

10Section 38(11)1 sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies, s. 38(11)2 states the insurer must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

11The applicant submits that s. 38(11) prohibits the respondent from denying future treatment based on a MIG impairment. The applicant submitted M.F.Z. v Aviva Insurance Canada³ as the authority for this proposition.

12I find that a plain reading of paragraph 21 from Zheng v. Aviva Insurance Company of Canada⁴, which was submitted by the respondent, makes clear that the Divisional Court does not accept this interpretation of s. 38(11):

... the language used in s. 38 refers to the specific Treatment Plan in question. We therefore do not accept the submission, in these cases, that s. 38(11) imposes a permanent prohibition on Aviva with respect to whether the impairment of [the insured persons] is covered by the MIG or is subject to the $3500 limit in s. 18(1).

Chiropractic treatment in the amount of $2,308.50

13The applicant submits that the respondent failed to respond to his claim for chiropractic treatment in the amount of $2,308.50 and submitted on April 6, 2017. The applicant submits that since notice has never been provided, the respondent should be ordered to pay for all the issues in dispute, except the issue pertaining to the chiropractic treatment in the amount of $2,847.60 and submitted on March 10, 2017, because it was submitted before the inadequate notice arose.

14The respondent submits that it is true that it never responded to the treatment plan for the chiropractic treatment in the amount of $2,308.50 because, instead, the treatment plan was superseded by the treatment confirmation form (OCF-23) submitted on April 21, 2017 instead. The respondent submits that there is no evidence that this treatment has been incurred. The respondent refers to its letter dated March 20, 2017, where it explains that an insurer's examination is required in order to confirm whether the applicant's injuries are minor and that it does not wish for the applicant to be without treatment during this time and will immediately authorize his treatment program to begin initially under the MIG, up to the pre-approved amount of $2,200.00. The letter also indicates that in order for the treatment health facility to receive payment for treatment provided under this guideline, they must submit an OCF-23.

15This treatment plan for chiropractic treatment was provided by Dr. Chad Hefford (chiropractor). The OCF-23 was provided by Dr. Hefford as well and the additional comments section indicates the following: "this OCF-23 form is submitted, under protest, further to your request and does not represent the opinion of the medical professional. Please refer to the previously submitted OCF-18 for the true diagnosis and prognosis of the patient. Our previously stated position that treatment of the injuries properly falls outside of the MIG Guidelines remains unchanged."

16By letter dated May 1, 2017, the respondent agreed to fund the OCF-23 up to the pre-approved amount of $2,200.00. The letter also indicated that if additional treatment or assessments are required beyond the initial pre-approved amount, the treating practitioner will be required to submit an OCF-24 (Minor Injury Treatment Discharge Report) along with a treatment plan outlining their proposal for the remaining amount that is available under the MIG limit.

17An OCF-24 dated May 8, 2017 indicated that additional intervention outside of the MIG is required. The respondent submits that there was no treatment plan that accompanied the OCF-24. I agree that there does not appear to be an accompanying treatment plan.

18I find that, pursuant to s. 38(8) of the Schedule, the respondent did not notify the applicant of its decision of whether or not to pay the claimed benefits within 10 business days after it received the treatment plan. I do not accept that the OCF-23 superseded this treatment plan in the amount of $2,308.50. The letter the respondent refers to dated March 20, 2017, where it indicates it will immediately authorize the applicant's treatment program to begin up to the pre-approved amount of $2,200.00 once an OCF-23 has been submitted, is in relation to two other treatment plans and not in relation to the treatment plan for chiropractic treatment in the amount of $2,308.50. This treatment plan for chiropractic treatment was submitted on April 6, 2017, after the date of the respondent's letter.

19I find that the respondent has failed to comply with s. 38(8). The respondent is prohibited from taking the position that the MIG applies to this specific treatment plan for chiropractic treatment in the amount of $2,308.50 and it must pay for any incurred treatment expenses starting on the 11th business day after the day it received the treatment plan and ending on the day it gave a proper notice.

20To this date, there is no indication that a denial letter has been provided. I find that until the respondent provides a notice as described in s. 38(8), the applicant is entitled to the cost incurred, if any, for this treatment plan.

Chronic pain assessment in the amount of $2,000.00

21During the hearing, the respondent conceded that the cost of examination for a chronic pain assessment in the amount of $2,000.00 and submitted on June 7, 2019, is owed to the applicant. The respondent concedes that this treatment plan is payable because it did not notify the applicant of its decision of whether or not to pay the treatment plan within 10 business days after it received the treatment plan and the applicant incurred the expense before receiving the late denial letter.

22Therefore, the applicant is entitled to payment for the incurred chronic pain assessment in the amount of $2,000.00.

The Minor Injury Guideline

23Section 3(1) of the Schedule defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

24Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

25The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.⁵

Does the applicant suffer from chronic pain?

26The applicant submits that he has developed a chronic pain condition as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG.

27An insured can be removed from the MIG for chronic pain. I agree with the reasoning in T.S. v. Aviva General Insurance Canada⁶, which was submitted by the applicant, that a finding of chronic pain takes one out of the MIG.

28I find that the applicant does not suffer from chronic pain that would take him out of the MIG based on the following evidence:

i. The applicant's testimony and the evidence have convinced me that the pain he experiences is not chronic pain. The evidence indicates that he experiences a mild to severe intermittent pain in his lower back and upper right side of his back that is aggravated by his strenuous employment as a mechanic apprentice technician. The applicant testified that he only gets severe back pain one to two times per week. He testified he uses much of his body at his work and puts strain on his body by lifting up tires and looking at engines. He testified that when he feels pain, he will take a break, stretch and resume his work.

ii. The pain the applicant experiences does not affect his life in a significant way. He testified that he does not avoid any activities due to his pain and does not self-limit. Initially following the accident, he missed approximately three weeks of work and he changed jobs in September of 2017. Since then, the applicant works in a strenuous job that allows him to pursue his career goal of working as a mechanic technician. The applicant testified that on the weekends he completes side jobs on vehicles either on his driveway or at work. He is independent with regard to his personal care activities and completes household chores on the weekends, such as laundry and vacuuming.

iii. The applicant does not experience sleep disturbances as a result of his pain. He testified that when he wakes up in the morning, his back is stiff and so he stretches it out.

iv. Dr. Karabatsos (orthopaedic surgeon), an insurer's examination ("IE") assessor, completed an orthopaedic surgeon assessment on June 28, 2017 (approximately 5 months after the accident) and the report is dated July 12, 2017. Dr. Karabatsos testified that the applicant's pain is manageable, tolerable and does not create any disability.

v. Dr. Karmy (general practitioner with additional training in chronic pain management) completed a chronic pain assessment on June 24, 2019 (approximately one year and five months after the accident) and the report is dated July 15, 2019. Dr. Karmy testified that the applicant experiences mild pain and he would soften the diagnosis of myofascial pain syndrome as set out in the report. He stated that he could not say with certainty that the applicant experiences myofascial pain. Instead, he concluded that there is a possibility of myofascial pain because he could not find the applicant's trigger points during the physical examination. When the applicant was asked whether he needed the chronic pain program treatment recommended by Dr. Karmy, he testified that maybe at the time he saw Dr. Karmy as he was a lot worse, but now he is better.

29The applicant's injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment. Therefore, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.

Remaining MIG funding

30Although I have concluded that the applicant is subject to the MIG, there is still $900.00 left remaining under this funding limit (the $3,500.00 limit minus $2,600.00 in medical and rehabilitation benefits paid as of February 13, 2018).

31As noted above, the applicant incurred the treatment plan for the chronic pain assessment in the amount $2,000.00 and the respondent has agreed to pay this amount. Therefore, with the payment of the chronic pain assessment, the remaining MIG funding will be exhausted.

Is the applicant entitled to an award under Regulation 664?

32At the start of the hearing, the respondent submitted that the award should not proceed because although the applicant requested an award, he did not provide the respondent with the particulars by the deadline set out in the case conference order. The applicant submitted that the particulars were not provided, that it was not mandatory to provide them and that the award was still being claimed. After hearing the parties' submissions, I allowed the applicant to proceed with his claim for an award if he provided the respondent with the particulars in writing that day. The applicant satisfied that order.

33Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.

34I find that an award is not warranted.

35The applicant submits that an award is justified because the respondent was in possession of OCF-5 (Permission to Disclose Health Information) forms from various treatment providers, but chose not to request the applicant's clinical notes and records and provide them to the s. 44 assessors. Furthermore, the applicant submits that the respondent did not provide Dr. Farhan Siddiqui (general practitioner), an IE assessor, with Dr. Karmy's chronic pain assessment report. The applicant submits that the respondent prejudiced the applicant and the assessors by withholding these records.

36The respondent submits that the applicant did not lead evidence to show that the clinical notes and records being referred to were going to yield information of tremendous importance. Regarding Dr. Karmy's chronic pain assessment report, the respondent submits that Dr. Siddiqui was addressing whether the treatment plan for a chronic pain assessment was reasonable and necessary, and therefore, it would have been improper to give him Dr. Karmy's report while the plan was being considered.

37I find that there is no indication that the respondent unreasonably withheld or delayed payment, so I do not find that the applicant is entitled to an award. As mentioned above, the respondent conceded that the incurred chronic pain assessment is owed to the applicant.

CONCLUSION

38The applicant's injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment.

39As a result of the respondent's improper notice and until the respondent provides notice as described in s. 38(8), I find that, pursuant to s. 38(11), the applicant is entitled to payment for the cost incurred, if any, for the chiropractic treatment in the amount of $2,308.50. He is entitled to payment in the amount of $2,000.00 for the incurred chronic pain assessment. He is entitled to interest on any overdue payment of benefits.

40The applicant is not entitled to the other disputed benefits, nor is he entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT).
4. 4Zheng v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (Div. Ct.).
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635.
6. 6T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT).