J.C. v. Aviva Insurance Company of Canada, 2020 CanLII 45519

Citation: J. C. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-006335/AABS

Released Date: 06/26/2020

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.C.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

John A.M. Petrella, Counsel

For the Respondent:

Sjawal Bhutta, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Jason Caswell, (the “applicant”) was involved in an automobile accident on July 27, 2015 and sought benefits from Aviva Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference, however were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES

3I have been asked to decide the following issues:

(i) Is the applicant entitled to a medical benefit in the amount of $768.16 for physiotherapy treatment recommended by Glassier Physiotherapy in a treatment plan (OCF-18) submitted on September 12, 2018 and denied on September 21, 2018?

(ii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

4After reviewing the parties’ submissions, case law and all of the evidence I find:

(i) The applicant is not entitled to the treatment plan for physiotherapy as I do not find that it is reasonable or necessary.

(ii) Since I do find that any benefits are overdue interest is not payable.

PROCEDURAL ISSUES

Raised by the Respondent

5The respondent opposed the applicant’s submission of a two-paged affidavit because at the case conference the parties agreed that no affidavits would be filed for this written hearing. The respondent submitted the Tribunal’s case conference report and order which confirmed same. The respondent maintains that in order to ensure procedural fairness a party must be able to respond to a position taken against it. Further, it will be prejudiced if the affidavit is allowed as it was not given the opportunity to assess the veracity of the information contained in it through cross-examination.

6The applicant submits that when he agreed to no affidavits at the case conference it was his understanding that no affidavits would be filed by experts. He did not interpret that to mean that this rule applied to him as there would be no other way for him to provide evidence for this written hearing. In addition, his affidavit is only two pages in length and was not served on the respondent at the last minute; it was served on December 20, 2019, three months prior to the written hearing date. As a result, the respondent was not surprised by the document and had ample opportunity to respond or object to its submission. The applicant requested that I exercise my discretion as the hearing adjudicator to admit the document.

7While I agree with the respondent that the applicant did not comply with the Tribunal’s case conference report and order, I do not exclude the applicant’s affidavit as I did not find it particularly helpful in reaching a determination in this matter. Therefore, I do not find that the respondent is prejudiced as ultimately my decision is not in the applicant’s favour. I also agree with the applicant that the respondent had three months to consider the information contained in it and raise any objections in advance of the hearing. This was not done, so I do not find the respondent was prejudiced as it was not taken by surprise.

Raised by the Applicant

8In his reply submissions, the applicant requested that the respondent’s submissions be excluded as they were filed late with the Tribunal. Rule 6.2 and 6.5 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”) confirms that for documents served by email, service is achieved on that day if they are received by 5:00 p.m. The respondent’s submissions were due on March 27, 2020, by 5:00 p.m. and were not served until 11:52 p.m. which means the effective date of service was March 30, 2020. The applicant submits that he is prejudiced by the respondent’s late filing of its submissions as his reply submissions were due April 3, 2020 and he had reduced the time to prepare his reply submissions.

9I do not exclude the respondent’s submissions. It would be procedurally unfair as it would eliminate the respondent’s ability to participate in the Tribunal’s process and defend the case against it, contrary to Rule 3.1. In my view, any prejudice to the applicant could have been addressed by requesting an extension to file his reply submissions and he did not make such a request. For these reasons, I exercise my discretion and do not exclude the respondent’s submissions.

BACKGROUND:

10On July 27, 2015, the applicant was involved in an accident when a third-party vehicle ran a stop sign and t-boned the applicant’s vehicle. The applicant sustained injuries to his left shoulder, upper back and neck which resulted in headaches. Following the accident, the applicant returned to his employment as a heavy labourer out of financial necessity.

11The applicant has attended Glassier physiotherapy for treatment for the past five years. The applicant seeks funding for an additional treatment plan for physiotherapy.

ANALYSIS

Is the applicant entitled to a medical benefit in the amount of $768.16 for physiotherapy treatment recommended by Glassier Physiotherapy in a treatment plan (OCF-18) submitted on September 12, 2018 and denied on September 21, 2018?

12I find the applicant is not entitled to the treatment plan for physiotherapy in the amount of $768.16 as I do not find it to be reasonable and necessary.

13Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

14Both parties agreed that the following three-part test has been established by previous decision makers in determining whether a treatment plan is reasonable or necessary¹:

i) The treatment goals are reasonable;

ii) The goals are being met to a reasonable degree; and

iii) The overall costs [not just financial, but also time] of achieving these goals is reasonable considering the degree of success and the availability of other treatment.

15The applicant argues that the treatment plan for physiotherapy is reasonable and necessary as it has provided pain relief, increased his range of motion (“ROM”) and reduced his headaches. Further, physiotherapy has helped him function in his employment and daily activities. The applicant relied on his affidavit and two reports authored by William Glassier, his treating physiotherapist dated May 9, 2019 and December 18, 2019 in support of his position that the treatment plan is reasonable and necessary.

16The respondent submits that the treatment plan is not reasonable and necessary. It maintains that the applicant suffered soft tissue injuries and it has funded ample physiotherapy which has had very limited success in improving the applicant’s condition. It takes the position that the applicant has attained maximum medical recovery from his impairments and that additional facility-based treatment is not required. Moreover, the applicant did not meet his onus in demonstrating that the treatment plan is reasonable or necessary as he did not provide any independent medical records to support the need for ongoing treatment. The respondent relied on the insurer examination (“IE”) of Dr. Lai, orthopaedic surgeon, and the record of the applicant’s family doctor and decoded OHIP summary in support of its position that the treatment plan is not reasonable or necessary. For the reasons that follow, I agree with the respondent and do not find the treatment plan for physiotherapy reasonable and necessary.

17First, I did not find the applicant’s affidavit persuasive that additional physiotherapy is reasonable and necessary because, other than the reports of William Glassier, no other objective medical evidence was submitted to support that physiotherapy has assisted in improving the applicant’s medical condition. Essentially, I find the applicant’s affidavit was duplicative of what was contained in his written submissions and did not attach supporting evidence. While I believe the applicant that he still suffers from ongoing pain, I do not find his position that ongoing physiotherapy was helping him was supported by the evidence. For example, the respondent submitted a note from Dr. Hayward, the applicant’s family doctor, and OHIP record which support that the applicant has not seen his family doctor or any experts about his accident related impairments since the accident. In my view, considering the amount of time that has transpired and the fact that the applicant’s impairments have not significantly improved it does not make sense that he has not seen his family doctor to discuss alternative options or further investigation. Further, other than Mr. Glassier, no other medical professional has recommended that the applicant continue to receive physiotherapy.

18Second, the goal of the treatment plan is to decrease the applicant’s pain, increase his strength and ROM and return the applicant to his normal activities of daily living. Based on the evidence before me, I am not convinced that additional physiotherapy is going to fulfil the treatment plan’s objectives. The treatment plan itself does not note any improvements since the last treatment plan submitted. The applicant contends that physiotherapy has been helpful in temporarily reducing his pain which has improved his ability to function in his daily activities. It is well accepted law that ongoing treatment is considered reasonable and necessary if it alleviates a person’s pain and improves their function. The applicant maintains that physiotherapy has assisted in enabling him to function at work and everyday activities. I found the applicant’s statement regarding physiotherapy improving his function inconsistent as he reported to Dr. Lai, IE assessor, that he still has difficulty in completing his outdoor home maintenance tasks such as mowing the lawn and shoveling the driveway.

19Third, as agreed by both parties’ part of the test in determining whether a treatment plan is reasonable and necessary is to consider the cost (both financial and time). While I do not find the monetary value of the treatment plan excessive, the applicant has been receiving physiotherapy for five years. I find the evidence does not support that physiotherapy has attained the goal of improving the applicant’s ROM. For example, Dr. Lai’s IE report dated December 7, 2018 notes that the applicant’s ROM in his left shoulder is still 50% reduced. In my view, this does not support that physiotherapy has achieved its purported goal. Moreover, William Glassier’s report states that treatment has resulted in improvements to the applicant’s ROM. What I found lacking in the evidence was session notes from William Glassier or clinical notes and records from any treating practitioner noting improvements to the applicant’s ROM throughout time.

20Fourth, the applicant maintains that since Dr. Lai’s IE assessment, he started a new job which is less physically demanding which increases the likelihood that physiotherapy will provide symptom relief. This opinion is supported in William Glassier’s reports. Mr. Glassier states that since the applicant changed employment, he has seen an improvement in the applicant’s posture and his ROM in his left shoulder and upper back. I do not find this to be strong rationale that there may be a chance that physiotherapy may improve his symptoms five years post-accident.

21Finally, the respondent relied on the IE report of Dr. Lai that determined that the applicant sustained soft tissue injuries to his shoulder, neck and back. Dr. Lai opined that the applicant has received maximum benefit from past physiotherapy treatment and that he has reached maximum medical recovery from facility-based treatment. Dr. Lai recommended that the applicant try analgesics, anti-inflammatories for pain control, counselling in the concept of hurt versus harm and adapt pacing strategies in his activities of daily living. While I do not necessarily agree with Dr. Lai that the applicant has reached maximum medical recovery as he still suffers from pain and has not achieved full ROM in his left shoulder, I agree with Dr. Lai that the applicant should try alternative treatment options.

22The applicant has not met his onus in proving on a balance of probabilities that the treatment plan for physiotherapy is reasonable or necessary.

ORDER

23For all the above reasons, I order as follows:

i) The applicant is not entitled to the disputed treatment plan or interest.

ii) The application is dismissed.

Footnotes

1. 1Ronson v State Farm Automobile Insurance Company, 2014 CanLII 15433 (ON SCSM) at para 113; following General Accident Assurance Company of Canada and Violi (P99-00047, September 27, 2000) at paras 12-14.