A.T. v. Aviva Insurance Canada, 2020 CanLII 42664

Citation: A.T. v. Aviva Insurance Canada, 2020 CanLII 42664

Released Date: 06/08/2020

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:

[A.T] Applicant

and

Aviva Insurance Canada Respondent

DECISION [AND ORDER]

Adjudicator: Poeme Manigat

APPEARANCES:

For the Applicant: Kiro Soliman, Counsel For the Respondent: Mohamed R. Hashim, Counsel

Heard: By way of written submissions

OVERVIEW

1The applicant (“AT”) was injured in an automobile accident on November 27, 2015 (“accident”) and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) when his claims for benefits were denied by the respondent, Aviva Insurance Canada (“Aviva”).

2Aviva denied the applicant’s claims because it determined that the treatment plan sought was not reasonable and necessary.

3The applicant bears the onus of proving entitlement on the basis that the treatment plan is reasonable and necessary, pursuant to section 15 of the Schedule.

ISSUES

4The issues to be decided are as follows:

(i) Was the proposed treatment plan submitted by Healthmax Physio in the amount of $14,804.51 properly denied according to section 38 of the Schedule?

(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $14,804.51 for medical services recommended by Healthmax Physio – Thornhill, in a treatment plan (OCF-18) submitted on June 15, 2018, and denied on June 29, 2018?

(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?

(v) Is the applicant entitled to costs?

RESULT

5I find that the treatment plan submitted by Healthmax Physio in the amount of $14,804.51 was not properly denied as per section 38 of the Schedule.

6I find that the applicant is not entitled to payment for the medical and rehabilitation benefit of $14,804.51 recommended by Healthmax Physio.

7The applicant is entitled to interest pursuant to s. 51(2) of the Schedule.

ANALYSIS

Did the respondent comply with section 38 of the Schedule?

8Notwithstanding the fact that this issue was not included in the order dated May 1, 2019, the parties addressed it in their submissions. I will allow it to be part of this application as it is connected to the other substantive issues raised in this application.

9Section 38(8) of the Schedule imposes several procedural requirements on the insurer. It requires the insurer to respond to the insured party within 10 business days of receiving the treatment plan; notify the insured person of its decision to pay for the claimed benefits, or of its refusal to pay; and provide the medical and all other reasons why the insurer considers the treatment not reasonable or necessary.

10Section 38(11) of the Schedule is triggered if the insurer fails to comply with subsection (8). Section 38(11) prohibits the insurer from taking the position that the Minor Injury Guideline (“MIG”) applies; and 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 provides proper notice to the insured person. Although s. 38(11) gives the insurer a window to “cure” a defective notice, the absence of such a cure renders the treatment plan payable.

11Section 38(13) of the Schedule requires that, within 10 business days of receipt of a report conducted under section 44 for the purpose of assessing the treatment and assessment plan, the insurer shall provide the insured person and the regulated health professional who prepared the treatment and assessment plan with a copy of the said report.

12Section 64(18) of the Schedule sets out that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed.

13The applicant takes the position that the respondent failed to respond to his claim for benefits in the manner prescribed by section 38(8) of the Schedule.

14It is uncontested that the disputed treatment plan was received by the respondent on June 15, 2018. Accordingly, proper notice to the applicant was required by July 3, 2018.

15The applicant claims the following:

(i) He received the notice of denial on July 5, 2018. The notice of denial states, in part, “[w]e have received a Treatment and Assessment Plan (OCF-18) from Brampton Civic Care which was completed by Dr. Aliya Salayeva,” none of which relates to the applicant’s claim. The applicant submits that the respondent failed to identify the goods, services and assessments he claimed in the treatment plan.

(ii) The applicant received another denial notice on September 5, 2018 via fax. The 5-page fax stated that the insurer determined that the treatment plan was not reasonable or necessary and that the Insurance Examinations (IEs) conducted were attached for the applicant’s review. However, there were no IEs attached to the fax. AT submits that he did not receive the IEs within ten (10) days of the respondent receiving them. On October 12, 2018, the applicant received the IEs from the respondent via email.

16The respondent claims the following:

(i) By letter dated June 29, 2018, the respondent acknowledged receipt of the treatment plan (received June 15, 2018) and denied funding. The letter also stated that the reason the treatment plan is denied is because “[t]he patient does not appear to show objective signs of improvement despite continuing treatment.” In addition, in this letter, the respondent requested that the applicant attend IEs. In another letter dated July 5, 2018, the respondent reiterated the request for the applicant to attend IEs.

(ii) The respondent submits that, by letter dated September 5, 2018, it reaffirmed its denial of the treatment plan. The reports of the IE Assessors were cited in support of the denial. The respondent made no submission about the delivery of the IE reports.

17The notice of denial dated June 29, 2018 clearly referenced a doctor and a health facility that is not related to the applicant or the plan. This is problematic given the fact that the respondent is expected to properly review the applicant’s treatment plan, file and medical evidence when deciding on the treatment plan claimed. The denial letter made no specific reference to the supporting materials provided by the applicant. The denial letter states that the respondent reviewed the applicant’s complete file. However, no specific mention to the materials contained in this file was stated on the denial letter. Furthermore, a reference made to another doctor and health facility unrelated to this file appeared on the denial letter. Those facts create reasonable doubt about the assertion made by the respondent that the complete file was reviewed prior to denying the plan. This indicates that the respondent likely failed to adequately review the evidence provided by the applicant in support of the treatment plan claimed.

18From a procedural standpoint, the respondent’s denial of June 29, 2018 failed to comply with the requirements laid out in section 38(8) of the Schedule. The respondent did not dispute the applicant’s allegation that he received this notice on July 5, 2018 – beyond the prescribed ten (10) business days stated in s. 38(8). The reasons provided to deny the treatment plan failed to satisfy the minimum requirement articulated in s. 38(8). There is no medical reason provided for denying the treatment, simply that, “[t]he patient does not appear to show objective signs of improvement despite continuing treatment.” Furthermore, the notice states that this decision is based on a review of the applicant’s complete file. This generic statement does not provide any confirmation that the respondent reviewed the Multidisciplinary Chronic Pain Program submitted by the applicant before making its determination. The uncertainty of the denial notice is further amplified by the respondent referring to a doctor and health facility unrelated to the applicant’s case. Based on these errors found in the June 29, 2018 notice, it is reasonable to conclude that the respondent failed to adequately review the evidence submitted by the applicant. The result of this deficient notice is that it leaves the applicant with unclear reasons as to why the treatment plan was denied, and thus violates the requirements of s. 38(8) of the Schedule.

19The respondent submits that, if the Tribunal finds that the notice of June 29, 2018 does not comply with s. 38(8), then the subsequent notice dated September 5, 2018 cured this defect. I disagree.

20The denial letter dated September 5, 2018, which was sent via fax, stated that the IEs were attached for the applicant’s review. The applicant produced a copy of the 5-page fax message, which did not include the IE reports. The cover page of the fax stated that it had only five (5) pages. The respondent did not provide any evidence to refute the applicant’s submissions that the IE reports were not provided to the applicant until October 12, 2018, via email. Consequently, I find that the notice of denial dated September 5, 2018 did not include the IE reports. The IE reports are essential for the applicant to understand why the treatment plan was denied. The IE reports are the medical evidence the respondent relied upon to deny the treatment plan. The importance of providing the IE reports to the insured person and the health professional who prepared the treatment plan is articulated in s. 38(13) of the Schedule. Sections 38(8), 38(11) and 38(13) are mandatory provisions, as denoted by the legislator’s choice of the word ‘shall’. The respondent’s attempt on September 5, 2018 to cure the defective notice issued on June 29, 2018 failed because the IE reports were not provided to the applicant with the fax message. The defective notice of June 29, 2018 was cured on October 12, 2018, when the applicant received the IE reports. The IE reports received on October 12, 2018, together with the denial letter dated September 5, 2018, constitute proper notice as intended in s. 38(8) of the Schedule.

21Based on the evidence before me, I find that the notice of denial dated June 29, 2018 and September 5, 2018 are deficient as they fail to comply with s. 38(8) of the Schedule. Consequently, s. 38(11) is triggered from July 4, 2018 to October 12, 2018. As a result of this defective notice, the applicant is entitled to payment for any incurred treatment related to the treatment plan submitted to the respondent on June 15, 2018 (in the amount of $14,804.51), for the period of July 4, 2018 to October 12, 2018.

Physical

22The applicant was involved in a motor vehicle accident on November 27, 2015, due to which he suffered injuries to his back and neck. The applicant submits that, since the accident, his pain has worsened, and he now suffers from chronic pain. Consequently, the applicant submits that he suffers from various physical and psychological impairments that disrupt his activities related to daily living. The applicant submitted a treatment plan for a Multi-disciplinary Chronic Pain Program from Healthmax Physio to help manage his pain.

23The respondent takes the position that this plan is not reasonable and necessary. To that end, the respondent relies on the opinion of its physiatry assessor, who states that, from a physiatry perspective, the applicant does not have any musculoskeletal or neurological impairment as a direct result of the motor vehicle accident.²

24The applicant relies on the Chronic Pain Assessment Medical Report and his family doctor’s clinical notes and records to argue that the treatment plan is reasonable and necessary.

25Based on the evidence provided, I find that the applicant has not met the onus of proving that the plan is reasonable and necessary. My reasons follow.

26I accept that the objective of a treatment plan is not simply to achieve full recovery but that it may be approved if the evidence indicates that the treatment plan will assist the applicant in managing pain. However, when it is established that an applicant has achieved maximal medical recovery, a careful review of the evidence confirming that ongoing treatment will provide relief to the applicant, must be undertaken. The evidence must clearly support the proposition that ongoing treatment will provide relief to the applicant and be of benefit.

27The applicant was referred to a neurologist by his family doctor. The neurologist examined the applicant on January 12, 2017 where the applicant reported that he does not have any limitation of endurance; in other words, he stated that after walking for a long distance, he senses no back pain. The neurologist stated that the applicant’s condition is most consistent with mechanical lower back pain, which is likely secondary to muscular factors, as well as due to degenerative changes of his spine. The neurologist also added that, despite the MRI showing spinal stenosis, there is no clinical evidence indicating a lumbosacral radiculopathy or neurogenic claudication. The neurologist concluded that the neurological examination of the applicant was normal and recommended that he consult a physiatrist regarding pain management, if required.³

28Consistent with the recommendation of the neurologist, the respondent scheduled a physiatrist assessment for the applicant; this was conducted on August 17, 2018. I accept the Physiatrist IE Assessor’s conclusion that the applicant has reached a point of maximum medical recovery. The applicant reported to the Physiatrist IE Assessor that he has been struggling with low back pain for an extended period, which pre-dates the subject accident. Therefore, in order to approve the treatment plan, adequate evidence confirming that the ongoing treatment sought will provide relief and benefit to the applicant must exist. The applicant reported to the Physiatry IE Assessor that, on a scale of 10, his pre-accident lower back pain was a 7-8, and that post-accident, his pain was an 8. This suggests little to no change concerning his back pain. As well, the applicant successfully resumed his employment on a full-time basis, with no modification, one month after the motor vehicle accident. He also reported to the Physiatry IE Assessor that he continues to work in the same capacity at his workplace and that he is tolerating his work-related duties well. The applicant stated to the Physiatry IE Assessor that he completes self-care activities of daily living independently and has returned to completing his pre-accident housekeeping tasks with no difficulty. As previously mentioned, the Physiatry IE Assessor opined that the examination of the applicant did not reveal any ongoing musculoskeletal or neurological impairment that would necessitate the subject treatment plan.

29The applicant argued that the goals of the treatment plan are to increase the applicant’s strength, range of motion, assist with returning to activities of daily living and pain reduction. However, the chiropractor left these goals unchecked in part 9 of the OCF-18 dealing with the goals of the treatment.⁴ The IE Physiatry Assessor reported that the applicant sustained soft tissue injuries of his right shoulder and lumbar spine. The IE Physiatry Assessor further reports that the applicant’s range of motion at the cervical spine was within the normal limits and pain free. He also reports that active range of motion for shoulders, elbows and wrists was within normal limits and pain free. The IE Physiatry Assessor reports that the applicant was able to perform a full squat as well as walk on his heels and toes. The applicant’s strength was documented as 5/5 throughout the extremity myotomes. The applicant reported to the IE Physiatry Assessor that he takes one-to-two Advil tablets per month, on an as-needed basis since the subject accident. Based on the applicant’s ability to perform strenuous exercise, such as squats, his low frequency of taking pain relief medication, his test results with respect to range of motion and the fact that he resumed his full-time pre-accident employment and other daily activities, I do not find the disputed treatment plan reasonable or necessary.

30Additionally, the Chronic Pain Assessment Medical Report provided by the applicant includes several inconsistencies. For example, when completing the pain disability questionnaire, on a scale from 1 to 10 and 10 being unable to work at all, the applicant selected 9. However, the applicant was working full-time at the time of the assessment and prior to it as well. The applicant also stated that he only traveled to see doctors, and that due to his pain, he could not at all sit or stand, squat, and walk or run. The results of this questionnaire are inconsistent with the applicant’s daily activities as reported to his family physician, the neurologist he was referred to by the family physician, and to the Physiatry IE Assessor. I am unable to reconcile the fact that the applicant resumed his full-time employment as a metal factory worker with his claim that he cannot walk, squat, sit or stand due to his pain.

31I have not been persuaded of the treatment plan’s reasonableness, nor of its necessity. The Chronic Pain Assessor’s report⁵ does not provide adequate detail concerning the relief derived from ongoing treatment. When confirming the applicant’s diagnosis, the Chronic Pain Assessor characterized his prognosis as ‘guarded,’ which suggests that further investigation may be required to fully assess the extent of the applicant’s injuries. It is possible that further treatment may not be beneficial in relieving the applicant’s pain given the fact that he has been struggling with this lower back pain for an extended period. As well, the evidence confirmed that the applicant’s level of functional abilities is very good as he maintained his full-time employment, participate in social activities and has resumed his pre-accident household activities. A mere possibility of ongoing treatment being beneficial is insufficient to warrant the approval of a treatment plan.

32I accept that the applicant is suffering from a certain type of lower back pain. However, I do not have sufficient evidence to conclude that the treatment plan sought is reasonable and necessary. The fact that the applicant is experiencing some form of lower back pain is not enough to approve the treatment plan. The applicant is functioning at home and at work despite experiencing some pain, which to his credit, he has been able to manage.

Psychological

33The applicant’s injuries and complaints are predominantly physical in nature. Most of the applicant’s complaints to his family doctor and to other medical professionals who examined him are regarding his physical pain.

34The Chronic Pain Assessor diagnosed the applicant with chronic sleep and mood disturbances. The Chronic Pain Assessor reported the applicant suffers from anxiety and mood problems. The applicant consulted his family doctor on several occasions since the subject accident and made no complaints about sleep disturbances nor about anxiety. At no time did the family doctor refer the applicant to a psychologist or psychiatrist.

35The Psychological IE Assessor⁶ who examined the applicant concluded that, from a psychological perspective, virtually no symptoms of depression or anxiety present themselves in the applicant. In addition, the Psychological IE Assessor stated that the test results show mild or no elevated scores regarding symptoms of depression, anxiety and somatization. The Psychological IE Assessor reported that the applicant, “[a]ppears to have made a positive psychological adaptation in the aftermath of the accident,” and that, based on the assessment, psychological treatment due to the subject accident is not needed. The Psychological IE Assessor reported that the applicant denied feeling depressed; denied a loss of interest in previous activities; and denied having difficulty controlling his emotions or behavior. He also confirmed that he sleeps well. Furthermore, the Psychological IE Assessor stated that the applicant did not express a subjective sense of distress and did not feel that he needed, or wanted, psychological treatment.

36The applicant visited his family doctor on multiple occasions after the motor vehicle accident. Most of his complaints to his family doctor pertain to physical pain, specifically lower back pain. At no point did the applicant’s family doctor feel it was necessary for the applicant to seek psychological treatment. The family doctor did not refer the applicant to a psychologist or psychiatrist despite examining the applicant on several occasions following the subject accident.

37I find that the applicant’s injuries were mostly physical, and that it is not reasonable or necessary to approve psychological treatment for the applicant.

38As mentioned earlier, the Chronic Pain Assessment Specialist diagnosed the applicant with chronic sleep and mood disturbances. The evidence before me does not support these diagnoses. In my valuation of the evidence, I attribute minimal weight to these diagnoses because of the inconsistencies identified in the Chronic Pain Assessment Medical Report, and because of the lack of corroborating evidence supporting any psychological impairment. Therefore, I do not find these diagnoses persuasive.

Interest

39The applicant requested that 2% interest be applied to the payable benefits.

40The respondent argued that the treatment plan is not reasonable or necessary, therefore not payable, and that consequently, no interest is owed.

41After reviewing the submissions of both parties, I find that the applicant is entitled to benefits for treatment incurred during the following period: July 4, 2018 to October 12, 2018. I also find that the applicant is entitled to interest at the applicable rate pursuant to the Schedule on the benefits payable for treatment incurred during the same period.

Award

42As per Ontario Regulation 664⁷, an award may be granted where the Tribunal finds that an insurer unreasonably withheld or delayed the payment of benefits. There is insufficient evidence before me to grant an award to the applicant. As stated above, I find that the treatment plan in dispute is not reasonable or necessary, therefore no award can be granted where the disputed benefits are not payable.

43With respect to the benefits payable that the applicant may have incurred for the period of July 4, 2018 to October 12, 2018, I do not have sufficient evidence to make an award determination. The applicant has not provided any proof of treatment incurred during the said period.

Costs

44I find that the applicant is not entitled to costs.

45Rule 19.1 of the Safety Licencing Appeals & Standards Tribunals Ontario Common Rules of Practice and Procedure, October 2, 2017 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. Rule 19.6 sets a limit of $1000.00 on costs.

46The applicant requested $5000.00 for costs and argued that the applicant acted in a vexatious and unreasonable manner, and with bad faith, citing s. 17.1(1) of The Statutory Powers Procedure Act and Rule 19.1 of the Tribunal Rules. The applicant stated the following to support his costs claim:

(i) The insurer failed to respond to the applicant’s correspondence numerous times causing the applicant delays. Wasted resources and having to file a LAT application in order to receive a complete copy of his accident benefits file, were also mentioned;

(ii) the insurer failed to issue periodical statements of benefits contrary to the SABS;

(iii) the insurer failed to advise the applicant whether or not it believed the MIG applied to his injuries;

(iv) the insurer failed to advise the applicant of the monetary limit available to him to access treatment and rehabilitation benefits;

(v) the insurer failed to approve or deny the applicant’s submission(s) for benefits in accordance to the SABS;

(vi) the insurer subjected the applicant to unreasonable and unnecessary Insurer Examinations; and

(vii) the insurer failed to forward the results of the examinations to the applicant in accordance with the SABS.

47The applicant also submitted that the insurer’s actions in refusing to adhere to the Schedule are systemic in order to discourage applicants from pursuing their rights to a claim under the statute.

48The costs provisions of Rule 19 are not intended to compensate parties for suffering an inconvenience or for the costs of their involvement in filing an application with the Tribunal. Costs are awarded to ensure civility, respect and order during Tribunal proceedings, and to deter conduct that threatens the orderly and civil resolution of an application.

49The applicant failed to produce evidence concerning the respondent’s refusal to respond to the applicant’s multiple requests for his accident benefits file. There is no evidence – such as email correspondence – confirming that the applicant made multiple attempts to obtain this information from the respondent. In addition, there is no evidence of the respondent withholding the accident benefits file when requested by the applicant.

50The applicant failed to provide specific details about the respondent’s failure to provide statements of benefits periodically. Section 50(4)(2) of the Schedule states that the insurer must deliver benefit statements to the applicant at least once every two months, commencing not later than two months after the application for the benefit was first made. However, section 50(5) notes that the insurer is not required to deliver a benefit statement if all the amounts referred to in the statement are unchanged from the previous time a benefit statement was sent to the applicant. Without the particulars of the allegation surrounding the respondent’s failure to send benefit statements periodically, I am not able to ascertain if the respondent failed to comply with the requirements set out in the Schedule.

51The applicant failed to provide evidence indicating that the IEs conducted by the respondent were unreasonable and unnecessary. The respondent has a right to request that the applicant undergo an IE to assess his condition and evaluate the validity of the treatment plan. The applicant may disagree with the type of IE requested by the respondent, but this does not render it unreasonable and unnecessary. The parties are engaged in a litigation involving medical information, which can be viewed and interpreted in different ways.

52The remainder of the arguments put forth by the applicant supporting his claim for costs are essentially consequences of a lack of organization and diligence on the part of the insurer, as opposed to a deliberate intent to act in a manner that is vexatious, unreasonable and in bad faith. After considering the evidence before me, I am not persuaded that the respondent’s behaviour amounts to being unreasonable, frivolous, vexatious or to acting in bad faith.

CONCLUSION

53For the reasons outlined above, I find that:

(i) The applicant is entitled to payment for any incurred treatment related to the treatment plan submitted to the respondent on June 15, 2018 (in the amount of $14,804.51), for the period of July 4, 2018 to October 12, 2018.

(ii) The applicant is entitled to interest at the applicable rate pursuant to the Schedule on the benefits payable for treatment incurred during the period of July 4, 2018 to October 12, 2018.

(iii) The applicant is not entitled to a medical and rehabilitation benefit in the amount of $14,804.51 for medical services recommended by Healthmax Physio.

(iv) The applicant is not entitled to an award as per Ontario Regulation 664.

(v) The applicant is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10.
2. 2Physiatry IE Assessment Report dated August 28, 2018 by Dr. Ismail
3. 3Neurology Examination dated January 12, 2017 by Dr. Hui
4. 4OCF-18 dated January 16, 2018
5. 5Chronic Pain Assessment Medical Report dated February 21, 2018 by Dr. Rod
6. 6Psychological Assessment Report dated August 3, 2018 by Dr. Schwartz
7. 7Ontario Regulation 664, R.R.O. 1990