Released Date: 07/07/2020

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:

J. L.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Nisaa Khan, Counsel

HEARD:

By way of written submissions

¹ The applicant, J.L., was involved in an automobile accident on October 11, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). This dispute focuses on the respondent’s, Aviva, denial of J.L.’s entitlement to medical benefits.

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

³ Aviva argues that J.L. has not established that the treatment plans are reasonable and necessary.

ISSUES

⁴ The issues I am asked to determine are as follows:

a. Is the medical benefit in the amount of $1,361.96 for chiropractic services recommended by Prime Healthcare Inc. as set out in a treatment and assessment plan (“OCF-18”) dated September 18, 2018 and denied on October 26, 2018, reasonable and necessary?

b. Is the medical benefit in the amount of $1,537.19 for a gym membership and aqua fit classes recommended by Prime Healthcare Inc. as set out in an OCF-18 dated September 18, 2018 and denied on October 26, 2018, reasonable and necessary?

c. Is J.L. entitled to interest on any overdue payment of benefits?

d. Is J.L. entitled to an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?

PRELIMINARY ISSUE - Section 38 compliance

The Parties’ Positions

⁵ J.L. submits that the following treatment plans should be approved because Aviva failed to comply with s. 38(8) of the Schedule:

a. Are the medical benefits submitted on September 18, 2018 and denied on October 26, 2018 payable?

⁶ Sections 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 s. 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 s. 38(11), if an insurer fails to comply with these requirements, it is prohibited from taking the position that the MIG applies and must pay for any treatment expenses until such time that it gives proper notice.

⁷ J.L. submits that the above denials were beyond the 10-day limit imposed by s. 38. J.L. submits that the OCF-18s were received by Aviva on September 18, 2018 and denied approximately 18 days late.

⁸ Aviva disagrees with J.L. that the denials did not comply with s. 38(8). Aviva submits that J.L. mistakenly relies on a second letter sent to J.L. regarding the OCF-18s². Aviva directed me to a previous Explanation of Benefits (“EOB) letter dated September 27, 2018 that addresses the disputed OCF-18s.

⁹ In its September 27, 2018 EOB letter, the medical reason provided states, “There appear to be gaps in treatment without documented clinical explanation”. The EOB provides further reasons for the denial, stating, “We’re unable to determine whether the recommendations on your OCF-18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time”. The EOB references three OCF-18s, two of which are the disputed OCF-18s.

¹⁰ I find that the denials were within the 10-day limitation period prescribed by the Schedule. For these reasons, I find that Aviva complied with s. 38(8), and the OCF-18s are not payable in accordance with s. 38(11) of the Schedule.

FINDING

¹¹ Based on a review of the evidence, I find that:

a. J.L. is not entitled to the OCF-18s, therefore interest is not payable; and

b. J.L. is not entitled to an award.

LAW

¹² Sections 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.³

Issues 4 a. – OCF-18 for chiropractic treatment

¹³ For the reasons that follow, I find that J.L. has not met his onus on a balance of probabilities that the OCF-18 is reasonable and necessary.

¹⁴ J.L.’s claims that the treatment he seeks is reasonable and necessary; I find the medical evidence does not support his claim.

¹⁵ J.L. relies on a Disability Certificate (“OCF-3”) by Dr. Chad Hefford, chiropractor dated March 30, 2016. This OCF-3 is dated approximately 2.5 years prior to the date of the OCF-18. In addition, J.L. relies on the record of Dr. Sanjeev Gupta, family physician, dated February 27, 2016. This record is over 2.5 years prior to the date of the OCF-18. In addition, J.L. relies on a psychological assessment report from Dr. Andrew Shaul, dated November 22, 2016, two years prior to the date of the OCF-18.

¹⁶ J.L. also relies on records from Prime Healthcare dated February 16, 2016 to April 2017. This entire record is over 1.5 years prior to the date of the OCF-18. J.L. additionally relies on further records from Queen Square Medical for the period of September 4, 2018 to September 21, 2019. During this period, J.L made no accident-related complaints.

¹⁷ With the exception of the Queen Square Medical records, Aviva submits that the aforementioned evidence put forth by J.L. is not contemporaneous to the date of the OCF-18 in dispute. I agree.

¹⁸ J.L. has provided no up-to-date medical evidence of accident-related pain complaints that establish that the treatment is reasonable and necessary. Further, the more recent records that were provided from Queen Square Medical contained no record of any accident-related pain complaints. There is no psychological treatment being sought, therefore I place very little weight on the report of Dr. Shaul. This combination of evidence undermines J.L.’s claim for treatment.

¹⁹ J.L. relies on the Cubello v. Guidolin decision in support of his position “that pain relief in and of itself can be a legitimate medical and rehabilitative goal and therefore reasonable and necessary, even if it does not promote recovery”.⁴ Aviva submits that the Cubello decision is distinguishable from this proceeding, mainly in that the applicant in that case provided evidence that treatment provided pain relief and improved function as is required by the Tribunal. There is little by way of the facts of the Cubello decision that would assist J.L. In the Cubello decision, the applicant provided evidence that the treatment provided pain relief and improved function. J.L.’s evidence has failed on this requirement.

²⁰ As such, I am not persuaded that J.L. has met his onus that the chiropractic treatment plan is reasonable and necessary.

Issue 4 b. – OCF-18 for gym membership and aqua fit

²¹ For the reasons that follow, I agree with Aviva that the OCF-18 is not reasonable and necessary.

²² J.L. relies on the OCF-18 of Dr. Hefford, in support of the claim for the gym membership and aqua fit services. In the OCF-18, Dr. Hefford notes that J.L. has pain and difficulty with prolonged standing, sitting, walking, along with bending, turning, extended lifting, and use of upper extremities. The goals of the OCF-18 were to provide J.L. with the recommended and necessary assistive devices to facilitate the return to his activities of normal living.

²³ Aviva relied on its assessor’s report⁵ in support of its denial of the OCF-18. Dr. Khaled identified no residual or ongoing musculoskeletal, neurological or orthopaedic accident-related injury or impairment. Dr. Khaled found J.L. to have normal and full range of motion of the cervical spine, normal range of motion of the lumbosacral spine and normal range of motion of the arms. Based on his observations, Dr. Khaled opined that J.L. could resume all aspects of his pre-accident life without restrictions.

²⁴ Dr. Khaled concluded that J.L. had a good prognosis for recovery and is near maximum medical recovery. Dr. Khaled recommended that J.L. participate in independent, self-directed home exercise, and that further passive treatment was not recommended. Dr. Khaled approved an OCF-18 for assistive devices in order for J.L. to participate in at home, independent exercise.

²⁵ J.L. has not persuaded me with any evidence that the gym membership and aqua fit is reasonable and necessary. Although J.L. submits that Dr. Khaled “was essentially agreeing with Dr. Hefford” that J.L. has not reached maximum medical recovery, Dr. Khaled states that J.L. is at or near maximum medical recovery.

²⁶ With the conflicting reports of Dr. Khaled and Dr. Hefford, I turn to J.L.’s self-reporting which supports that the gym membership and aqua fit are not reasonable and necessary. For example:

a. J.L. reported to Dr. Khaled that he remains independent with personal activities of daily living;⁶

b. J.L. reported returning on normal duties to his full-time job as an assessment worker for a social assistance program for the City of Toronto;⁷

c. He reported returning to his two part-time jobs.⁸ He further reported he works variable and irregular hours and occasionally works the night shift;⁹ and

d. J.L. reported sharing snow shoveling and lawn mowing with his father in law.¹⁰

²⁷ Based on the evidence, J.L. has returned to essentially all of his pre-accident activities, has been found to have normal range of motion and the evidence shows that many of his pain complaints are not accident-related.

²⁸ J.L. has not established that the OCF-18 is reasonable and necessary. Consequently, I find that J.L. is not entitled to any further funding beyond what Aviva has already approved.

AWARD

²⁹ Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. J.L.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has “unreasonably” withheld or delayed payments.

³⁰ I have already found that J.L. is not entitled to any benefits, therefore Aviva cannot be found to have unreasonably withheld payment. As such, J.L. is not entitled to an award.

CONCLUSION

³¹ J.L. has not satisfied his onus to persuade me that the OCF-18s are reasonable and necessary. He is therefore not entitled to the benefits claimed and no interest is owing as there is no overdue payment of benefits.

³² J.L. is not entitled to an award.

³³ J.L.’s claim is dismissed.

Released: July 7, 2020