P.K. v. Aviva Insurance Company of Canada, 2020 CanLII 51289

Citation: P.K. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-005578/AABS

Released Date: 07/16/2020

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.K

Applicant

And

Aviva Insurance Company of Canada

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Victoria Gorbenko

Counsel for the Respondent: Amanda Fowler

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on March 3, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the driver of a vehicle which was struck by another vehicle, causing her vehicle to spin and her body being jolted from the impact. As a result of the accident, the applicant noticed a gradual onset of a headache and pain in her tail-bone, hip and right hand.

3The applicant applied for physical treatment that was denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

ii. Is the applicant entitled to a medical benefit in the amount of $2,921.42 for chiropractic services denied by the respondent on December 7, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $2,005.12 for chiropractic services denied by the respondent on December 7, 2017?

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

RESULT

5The chiropractic treatment plans are not reasonable and necessary and as there are no outstanding benefits, the applicant is not entitled to interest.

ANALYSIS

Is the applicant entitled to the chiropractic treatment plans in dispute in the amounts of $2,921.42 and $2,005.12?

6Based on the following, I find the medical benefits for chiropractic treatment are not reasonable and necessary.

7The applicant submits that as a result of the accident she suffers from a sprain and strain to her cervical, lumbar, thoracic area as well as a sprain and strain to her left hip.²

8The treatment plans for chiropractic treatment state the applicant complained of pain in her neck, back and left hip as well as pain and limitation with her cervical and lumbar ranges of motion.

9In support of the treatment plans, the applicant relies upon the self reports of her pain levels from the insurer examination (“IE”) conducted by orthopaedic surgeon, Dr. Dessouki on February 27, 2018 as well as a psychological IE assessment by Dr. Ornstein dated August 12, 2017. Dr. Ornstein noted that the applicant has physical issues and pain and recommended psychological treatment for relaxation techniques and pain management strategies.³

10The applicant’s own psychological assessment was conducted by Dr. Cook and dated January 11, 2018. In that report, the applicant self-reported that she continued to experience ongoing pain in her lower back, hip, down to her mid-thigh and right shoulder and arm.⁴ The applicant also relies upon the clinical notes and records from the treating facility, Joy Massage Therapy and Wellness Clinic, which state that she requires therapy on her shoulder, back, arms and hips.⁵

11The respondent submits the only truly objective evidence before the Tribunal is from the applicant’s family doctor, Dr. Wasan, and his clinical notes and records. According to the clinical notes and records of Dr. Wasan, the applicant visited him one month after the accident and did not report the accident or any accident-related injuries. Dr. Wasan does not make any recommendations for facility-based treatment. It is the respondent’s position that the treatment plans are not reasonable and necessary as the applicant returned to her pre-accident employment at full-time hours, three days after the accident and went on vacation six months after the accident and the respondent approved treatment during this time.

12The respondent also submits that the applicant underwent three chiropractic assessments at Mediwise Healthcare Clinic on April 24, 2017, August 12, 2017 and November 28, 2017 and in each of those assessments, the applicant’s range of motion in her cervical and lumbar spine were the same and had not improved. Furthermore the respondent submit that the chiropractic assessor did not assess the applicant’s range of motion in her shoulder despite the applicant’s self-reports of pain in that area.⁶

13The respondent also relies upon the IE assessment of Dr. Dessouki who noted that the applicant attended at the clinic for treatment four weeks after the accident and continues to attend 11 months later. Based on his clinical assessment, he opined that the applicant had reached maximal medical recovery and found no objective evidence of any residual musculoskeletal impairment and that the chiropractic treatment would not provide additional therapeutic benefit.⁷

14Lastly, the respondent submits that the psychological assessments⁸ the applicant relies upon in support of the chiropractic treatment plans have no relevance to the issues in dispute. Furthermore, an acknowledgment of pain in those reports does not translate into a recommendation for further chiropractic treatment. Those assessors did not render opinions on whether chiropractic treatment was reasonable and necessary.

15After a review of the evidence, I agree with the respondent. The applicant has not persuaded me a balance of probabilities that the chiropractic treatment is reasonable and necessary. The clinical notes and records of the treating facility are illegible and difficult to read and I do not find them to be of much assistance to the applicant as they mainly list the treatment the applicant received and on which date. As a result, I find them to be of very low evidentiary value. Other than the treatment plans, the clinical notes and records of the treating facility and the OCF-3, I am not directed to objective or contemporaneous evidence in support of further treatment from the applicant’s family doctor and nor have I been directed to evidence that the proposed treatment is improving the applicant’s function or whether it is even producing any benefit to her. I have not been directed to objective evidence that establishes that the applicant is progressing or that the treatment is effective in meeting it goals.

16The applicant has self-reported that she suffers from pain; however, there are no objective references to her limitations or any recommendations for treatment from her family doctor and the psychological reports she relies upon in support were with respect to her psychological impairments and not with respect to physical treatment. I find that the notations of pain from the psychological reports are not compelling evidence in support of further chiropractic treatment and in the absence of evidence of any functional improvement that would show the treatment plans goals are being met to a reasonable degree, I find that the applicant has not satisfied her onus on a balance of probabilities.

17As a result of the above, I find that the chiropractic treatment plans are not reasonable and necessary.

Respondent’s non-compliance with the timelines in s. 38 of the Schedule

18The applicant further submits that the respondent was not in compliance with s. 38(8) of the Schedule and did not provide reasons for its denial in a timely manner as the respondent denied the treatment plan on September 6, 2017.

19Section 38(8) requires the respondent, within 10 business days after receiving the treatment plan to give the applicant the medical and all of the other reasons why the insurer considers the goods or services or the cost of them, not to be reasonable and necessary. The applicant relies upon the Financial Services Commission of Ontario (“FSCO”) case of Ferawana v State Farm Mutual Automobile Insurance Co.,⁹ in support of her position that once the timeline in s. 38(8) was not complied with there was no need to consider whether the benefit was reasonable and necessary and it was automatically payable due to the procedural breach.

20The respondent’s position is that it complied with the Schedule and provided a notice on August 31, 2017 that it was unable to determine whether the recommendations are reasonable and necessary and it was unable to pay for the benefits and asked the applicant to attend in IE assessment with an orthopaedic surgeon on October 6, 2017.¹⁰ A further notice was sent on September 6, 2017 confirming and providing details of the IE assessment.¹¹

21The respondent further relies upon the Tribunal case of 17-006851/AABS v. RBC Insurance Company¹² in support of its position that it only has to pay for incurred treatment starting on the 11th business day and it relies upon 17-003724/AABS v. Aviva Insurance Canada,¹³ in support of its position that even if there was a finding of non-compliance with the Schedule, the treatment plans are not reasonable and necessary and therefore not payable.

22The onus is on the applicant to prove on a balance of probabilities and I have not been persuaded of such. In the Ferawana case, that case does not stand for the proposition that if the ten-business day requirement is not met then the treatment plan is automatically payable. That would be contrary to the Schedule. Section 38(11) states that if the insurer did not comply with subsection (8) then it is prohibited from taking the position that the Minor Injury Guideline applies and it must pay for all goods and services described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the treatment plan.

23In my view, the applicant has not provided submissions or evidence of non-compliance on the part of the respondent. I have not been provided with evidence in support of when the treatment plan was sent to the respondent, when the denial notice was received by the applicant or evidence of any incurred treatment starting on the 11th business day.

24As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that the treatment plans are reasonable and necessary or that the respondent was non-compliance with s.38(8) of the Schedule.

ORDER

25The chiropractic treatment plans are not reasonable and necessary and as there are no outstanding benefits the applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Applicant at Tab 5, Disability Certificate (“OCF-3”) dated May 2, 2017.
3. 3Ibid at Tab 11, IE Report of Dr. Dessouki dated March 2, 2018 and Tab 14, IE Report of Dr. Ornstein dated August 30, 2017.
4. 4Ibid at Tab 12, Psychological Progress Report dated January 11, 2018.
5. 5Ibid at Tab 9.
6. 6Written Submissions of the Applicant at Tab 8, pages 17, 24, 33.
7. 7Written Submissions of the Respondent at Tab 1.
8. 8Written Submissions of the Applicant at Tabs 12 and 14.
9. 9[2016] O.F.S.C.D No. 247
10. 10Written Submissions of the Respondent at Tab 4, Explanation of Benefits dated August 31, 2017.
11. 11Ibid at Tab 5, Explanation of Benefits dated September 6, 2017.
12. 122018 CanLII 83514 (ON LAT)
13. 132018 CanLII 61168 (ON LAT) at para. 16.```