C.W. v. Aviva Insurance Company, 2020 CanLII 40342

C.W. v. Aviva Insurance Company

Citation: C.W. v. Aviva Insurance Company, 2020 ONLAT 19-002426/AABS Released Date: 06/03/2020

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:

[C.W] Applicant

and

Aviva Insurance Company Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Loreto Scarola Paralegal

For the Respondent: Amanda Fowler Counsel

HEARD: In Writing Heard by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [C.W] (“applicant”), was involved in an automobile accident on July 6, 2018(“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent Aviva Insurance Company (“respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”)² and, even if the MIG is found not applicable, the applicant is not entitled to the disputed treatment plans because they are not reasonable and necessary. The applicant has received benefits to the full limits of the MIG. The applicant has applied to the Tribunal for dispute resolution.

PRELIMINARY ISSUE – RESPONDENT’S MOTION

3On January 8, 2020, the respondent filed a Notice of Motion requesting that the Tribunal strike the applicant’s reply submissions dated January 7, 2020 for this written hearing, or alternatively place minimal or no weight on the reply.

4The respondent submits that the applicant raises issues in reply that should have been raised in his initial submissions, has reformulated his argument improperly and to the prejudice of the respondent’s right to procedural fairness. The applicant opposes the request. In short, the applicant submits that his reply submissions respond to arguments raised by the respondent in its submissions, the log notes were referred to in the applicant’s initial submissions and are crucial evidence that if struck would be more of a detriment to the respondent than to the applicant and denies any prejudice to the respondent. The applicant objects to service of the motion which is now moot.

5The Tribunal’s Order made January 29, 2020 adjourned the hearing of this motion to the hearing adjudicator.

6I decline to strike the applicant’s reply submissions and order that the respondent’s motion is denied for the following reasons. The applicant made an effort to respond to the respondent’s submissions and although some new points were raised, they do not materially prejudice the respondent. The respondent’s submission about restricting the weight to be given to the submissions is not persuasive. Any evidence contained in the applicant’s reply submissions will be given the appropriate weight.

ISSUES

7The issues to be decided in this hearing are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,847.26 for chiropractic treatment, recommended by Alpha Physio and Rehab Milton in a treatment plan dated October 30, 2018, and denied by the respondent on July 18, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $3,257.40 for chiropractic treatment, recommended by Alpha Physio and Rehab Milton in a treatment plan dated November 12, 2018, and denied by the respondent on March 1, 2019?

iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

8The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been expended. There is no special award. No interest is owed.

LAW

The Minor Injury Guideline

9The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule 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”. Under section 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

10To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

11The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

ANALYSIS

12Although the Tribunal’s case conference Order describes the $3,257.40 chiropractic treatment plan recommended by Alpha Physio and Rehab Milton (“Alpha”) as dated November 12, 2018, the plan is in fact dated December 11, 2018 and was denied by the respondent on February 4, 2019 and March 1, 2019.

13I find that the applicant’s physical injuries are minor injuries. There is no indication in the medical records filed before me of anything other than minor physical injuries.

14The hospital emergency records from the day of the accident show that the applicant underwent imaging and was discharged with pain medication. The Disability Certificate, OCF-3 by applicant’s physiotherapist, Neha Sinhasan, dated September 26, 2018 records the anticipated duration of the disability is 9-12 weeks. The disability certificate notes injuries including cervicalgia, injury of muscle and tendon at neck and thorax level, pain in thoracic spine, chest and acute low back pain, disorders of initiating and maintaining sleep (insomnias), tension-type headaches, acute pain and whiplash associated disorder. Alpha’s treatment plans, one by applicant’s physiotherapist, Jaimikkumar Mehta, dated October 30, 2018 and another by applicant’s chiropractor, Scott Coughlan, dated December 11, 2018, list the applicant’s injuries the same way but exclude cervicalgia. These are sprain and strain type injuries which fall within the definition of “minor injury”.

15The records of applicant’s family physician, Dr. Findlay, show that the applicant did not mention the accident until September 11, 2018 and when he did, the notes record that the applicant complains of “some discomfort where seat belt was across his chest, is getting physio and massage for his neck and upper back, seems to be improving”. There is no diagnosis of any injury from the accident or referral for further investigation. Records from subsequent visits show that the applicant saw Dr. Findlay in August and September, 2019 for non-accident medical matters and did not complain to Dr. Findlay of accident-related injuries after September 11, 2018. However, the applicant argues that other conditions remove him from the MIG.

Did the applicant have a pre-existing medical condition that would remove him from the MIG?

16I find there is no medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing condition or that any such conditions prevent maximal recovery within the MIG funding limits. Although pre-existing conditions of COPD, mild stroke, right sciatica, low back pain are mentioned in the disability certificate, these appear to be based on self-reporting by the applicant and there is no pre-accident medical documentation of any of these alleged pre-existing medical conditions. Dr. Findlay notes on September 11, 2018 that the applicant is diabetic.

Does the applicant have chronic pain as a result of the accident?

17I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG. Although there is some reference to chronic right side sciatica and low back pain in the records of Alpha, these treatment providers do not diagnose. There is no evidence of further investigation of chronic pain. There is no evidence that the applicant consulted Dr. Findlay about chronic pain. There is no diagnosis of chronic pain by any chronic pain specialist.

Did the Respondent Violate s. 38 of the Schedule?

18The applicant argues that because the respondent did not give notice required by s. 38(8) of the Schedule, the respondent is prohibited from taking the position that the MIG applies to the applicant and must pay for the treatment in the treatment plans starting on the 11th business day after the insurer received them as set out in s. 38(11) 1. and 2. of the Schedule. The applicant requests a special award for failure to give the proper notice on both treatment plans.

19The disputed treatment plan for $2,847.26 was received by the respondent on November 1, 2018 and responded to on November 15, 2018 by an explanation of benefits (EOB) dated November 15, 2018. The EOB makes it clear that the respondent is not willing to pay any amount for the proposed treatment plan and the reason given was that it is not reasonable and necessary. Although the applicant denies receipt of this notice, he responded to it by providing the completed OCF-5 permission to disclose health information dated December 4, 2018. I find that it is more likely than not that the applicant received this notice. There is no violation of s. 38(8) on this disputed treatment plan.

20The respondent received the disputed treatment plan for $3,257.40 on January 10, 2019 and responded to the applicant in writing February 4, 2019. In this correspondence the respondent makes it clear that it is not willing to pay any amount for this treatment plan. The reason given is that it is not reasonable and necessary. The applicant agrees in his submissions that he received this correspondence. The treatment plan was denied again on March 1, 2019.

21Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary. I find that the notice sent by the respondent to the applicant on February 4, 2019 complies with these requirements except that it was not sent within 10 business days of January 10, 2019, specifically by January 24, 2019. I find that the respondent failed to comply with s. 38(8) between January 25 and February 4, 2019.

22The consequences of not complying with s. 38(8) of the Schedule were explained by Conway, J. in Zheng, Cai v. Aviva Insurance Company of Canada⁴:

“The insurer is no longer able to take the position that the impairment falls within the MIG and must pay for costs under the Treatment Plan in question until a compliant notice is given....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 Respondents is covered by the MIG or is subject to the $3500 limit in s. 18(1).”

23Here, the applicant submits in his reply submissions that “…these treatment plans have been incurred…” The respondent submits that there is no incurred treatment from the 11th business day (January 25, 2019) to the date of notice and that the treatment plan was not reasonable and necessary.

24I find that the applicant has not established that he incurred any treatment cost between January 25 and February 4, 2019 or between January 25 and March 1, 2019. The records of Alpha show that the applicant was treated by Dr. Coughlan on January 8, 2019 and then did not have another scheduled appointment at Alpha until August 14, 2019. The accounting summary filed by the applicant is not helpful. It is from another treatment facility, Complete Rehab Centre, for a different person, with a different date of loss. As a result the respondent is not obligated to pay for costs under this treatment plan until the required notice was given because there were no such costs incurred by the applicant.

Medical Benefit: Are the treatment plans reasonable and necessary?

25I find that neither of the disputed treatment plans are reasonable and necessary. Both treatment plans propose chiropractic treatment at Alpha. Dr. Findlay did not diagnose any injury from the accident and the applicant did not complain to Dr. Findlay of any accident-related injuries after September 11, 2018. There is no underlying medical condition identified by Dr. Findlay that would warrant the treatment proposed in the two treatment plans. In the absence of any diagnosis or other significant medical evidence, the treatment plans are themselves are insufficient to establish that they are reasonable and necessary.

Special Award

26Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. The respondent disagreed with the applicant’s claim for the reasons it expressed. The non-compliance with s. 38(8) lasted for less than two weeks and no treatment costs were incurred in that period. Therefore, there is no award under Ontario Regulation 664.

Interest

27As no benefits are payable, no interest is payable.

ORDER

28For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. The two treatment plans are not reasonable and necessary. There is no special award. As no benefits are payable, no interest is payable.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 42018 ONSC 5707 at para 19 and 21. (Div. Ct.)