P.Y. v. Aviva General Insurance, 2020 CanLII 57378

Citation: P.Y. vs. Aviva General Insurance, 2020 ONLAT 17-003692/AABS

Released Date: 07/14/2020

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.Y.

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Rajwant Singh Bamel, Counsel

For the Respondent: Ken Yip, Counsel

HEARD: By way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, P.Y. (“applicant”), was involved in a motor vehicle accident on January 13, 2016 (“accident”) and sought benefits from the respondent Aviva General Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ At the time of the accident, she was 23 years of age. The applicant was denied benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The Tribunal decided, after a hearing held December 7, 8 and 20, 2017 (“original hearing”), that the applicant’s injuries were within the Minor Injury Guideline (“MIG”). As a result, the Tribunal did not determine if the treatment plans and assessments in dispute at the hearing were reasonable and necessary.

3Based on new evidence, the Tribunal’s July 29, 2019 Reconsideration reversed the MIG finding and ordered a rehearing to determine if the disputed treatment plans are reasonable and necessary. The rehearing is before me.

4The Tribunal’s November 4, 2019 case conference Order limited the evidence at the rehearing to documents filed by the parties at the original hearing and for the Reconsideration and the transcripts from the original hearing and ordered no additional or new evidence or affidavits may be submitted at the hearing beyond those documents. The Tribunal also ordered that the issues at the rehearing are the same as in the original hearing, except for the MIG determination, as set out in paragraph two of the Tribunal’s decision dated August 23, 2018.

ISSUES

5The issues to be decided in this hearing are:

a. Is the applicant entitled to receive payment of a medical benefit for the following treatment plans for physiotherapy, recommended by Prime Health Care Inc.: i. $3,327.60 submitted to the respondent on January 29, 2016; ii. $2,308.50 submitted to the respondent on April 14, 2016; and iii. $1,886.80 submitted to the respondent on January 5, 2017.

b. Is the applicant entitled to payment for cost of examinations for the following assessments recommended by Prime Health Care Inc.: i. $2,000.00 for a psychological assessment submitted to the respondent on March 28, 2016; ii. $1,230.92 for an assessment of attendant care needs submitted to the respondent on February 10, 2016; iii. $2,000.00 for a temporomandibular joint assessment submitted to the respondent on February 29, 2016.

c. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

RESULT

6The applicant is entitled to all three disputed treatment plans and the cost of the psychological assessment with interest. The applicant is not entitled to the costs of the attendant care benefit and TMJ assessments. The applicant is not entitled to a special award.

LAW

7Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.²

ANALYSIS

8I note that the evidence before me about whether or not the applicant’s injuries are in the MIG is no longer directly relevant given the Tribunal’s Reconsideration finding that the applicant’s injuries are not in the MIG and will only be taken into consideration with respect to the issues before me. Generally, to the extent that the respondent suggests I should come to the same conclusions about the evidence as in the Tribunal’s original decision, I disagree. I am not constrained by any findings made or legal conclusions reached in the original decision. This is a rehearing which is in effect a new hearing, requiring an assessment of the evidence and submissions relevant to the issues in this hearing.

Are the Disputed Treatment Plans Reasonable and Necessary?

9The applicant submits that all treatment plans for physiotherapy are reasonable and necessary based on her own testimony, the report and oral testimony of Dr. M. West, applicant’s orthopaedic surgeon, the pre-screen report of Dr. Shaul, applicant’s psychologist, the OCF-3 Disability Certificates and the OCF-18 Treatment Plans.

10The respondent submits that even with the new evidence, the psychological report and addendum of respondent’s assessor Dr. Moshiri, the applicant’s evidence does not establish that the treatment plans in dispute are reasonable and necessary. Further, the respondent relies on the April 5, 2016 report and the oral testimony of Dr. Nesterenko, respondent’s family medicine (GP) assessor, the report and oral testimony of Dr. C. West, respondent’s psychologist, the records of Dr. Choy, applicant’s family doctor, the records of Prime Health Care and the oral testimony of Ms. Kirsten Krepps and Ms. Domonique Purpura, respondent’s adjusters.

Physiotherapy Treatment Plans for $3,327.60, $2,308.50 and $1,886.80

11I find that the applicant is entitled to payment for these three treatment plans which include various physical therapies, massage therapy, functional exercise, acupuncture and goods such as back support, cervical pillow and analgesic cream as I find that the applicant’s reports of her injuries from the accident are consistent and ongoing and therefore treatment is reasonable and necessary. On January 29, 2016, some two weeks after the accident, the applicant’s family doctor, Dr. Choy, recorded her injuries from the accident including headache, jaw locks, chin, shoulder, wrist, thumb, upper and lower back pain and pain in both the knees and right ankle and “multifocal pain” and arranged for x-rays and tests. A substantially similar description is found in the January 18, 2016 and September 15, 2017 Disability Certificates, OCF-3s by Dr. Hefford, applicant’s chiropractor. In his July 20, 2017 report, Dr. M. West, applicant’s orthopaedic surgeon, diagnoses substantially the same injuries and opines that all three proposed treatment plans are reasonable and necessary. I note that in his report, Dr. M. West confirms he has reviewed the IE reports of Dr. Nesterenko dated April 5, 2016 and Dr. C. West dated June 28, 2016 before reaching his conclusions. Taken together, the weight of this medical evidence is sufficient to establish that these treatment plans are reasonable and necessary.

12I find unpersuasive the respondent’s submission that I should prefer the evidence of Dr. Nesterenko that the applicant has not demonstrated any ongoing objective musculoskeletal impairment attributable to the accident. I prefer the evidence of need for treatment in the records of the applicant’s complaints to Dr. Choy and the assessment of Dr. M. West over the opinion of Dr. Nesterenko and give little weight to the report of Dr. Nesterenko. As an orthopaedic surgeon, Dr. M. West is in a better position than family physician Dr. Nesterenko to assess the applicant’s physical injuries from the accident, to recommend treatment and to opine on the reasonableness and necessity of the treatment.

13On review of the treatment plans, I find that goals listed including pain reduction, increase in strength, increased range of motion are all appropriate, reasonable and necessary goals for the applicant’s treatment.

14I find that the applicant has experienced enough improvement as a result of this treatment that it is reasonable and necessary to allow her treatment to be continued. The treatment plan submitted on April 14, 2016 indicates that the applicant has demonstrated increased range of motion, decreased pain, increased endurance and a general decrease in frequency and severity of painful episodes with overall improvement estimated at 25%. The treatment plan submitted January 5, 2017 also indicates some improvement in mobility.

15I find that the overall cost of achieving these goals is also reasonable. The costs of the plans appear to be in line with the Schedule and the respondent did not argue otherwise.

Medical Benefit: Psychological Assessment submitted March 28, 2016

16The applicant submits that the psychological assessment is reasonable and necessary based on the reports of the applicant’s psychologist, Dr. Shaul, Dr. M. West and the report of the respondent’s psychologist Dr. Moshiri. The applicant also argues that the respondent’s April 7, 2016 denial does not provide clear medical reasons as required by s. 38 (8) of the Schedule by T.F. v. Peel Mutual Insurance Company³ and M.B. v. Aviva Insurance Canada⁴.

17The respondent submits that its IE report from psychologist Dr. C. West dated July 18, 2016 should be given greater weight on this issue than its IE reports from psychologist Dr. Moshiri. The respondent argues that Dr. C. West’s report should be preferred because it was completed three months after this treatment plan was submitted, specifically addresses this issue, is more detailed and was completed at a time when the applicant had returned to her pre-accident employment but before September, 2016 when she started her post-graduate studies and difficult placement so Dr. C. West did not have to account for adjustments as a result of these unrelated factors. The respondent also argues that Dr. Moshiri’s finding of vehicular anxiety/specific phobia is not consistent with the applicant’s oral testimony that post-accident she still drives.

18I find that the applicant is entitled to the payment of the psychological assessment because she has established, on a balance of probabilities and with sufficient medical evidence, that it is reasonable and necessary. The most compelling medical evidence that this assessment is reasonable and necessary is that of respondent’s Dr. Moshiri, who diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood as well as specific phobia as a result of the accident and confirms that opinion in an addendum report dated January 23, 2018. After these reports, the respondent determined the applicant’s injuries no longer fell within the MIG. This is a matter of record as set out in the Tribunal’s July 29, 2019 Reconsideration. Based on Dr. Moshiri’s reports which support Dr. Shaul and Dr. M. West’s reports, I find that the weight of the medical evidence establishes that the applicant has psychological injuries resulting from the accident substantial enough to warrant further assessment. The cost of the assessment appears to be in line with the Schedule and the respondent did not argue otherwise.

19The respondent’s argument that I should prefer the findings of its assessor Dr. C. West over the findings of its assessor Dr. Moshiri is unpersuasive. Dr. C. West assessed the applicant to determine whether her injuries are within the MIG and concluded that her injuries did fall within the MIG. After Dr. C. West gave this opinion, the respondent conceded and the Tribunal found, that the applicant’s injuries are not in the MIG which substantially undermines the opinion of Dr. C. West. Dr. C. West’s opinion is also qualified in the report by the statement that “As noted above, I do not believe there is any clinically significant mental health impairment that is etiologically related to the index collision at the present time.” Therefore, I prefer the evidence of Dr. Moshiri over that of Dr. C. West. Also, contrary to the suggestion of the respondent, Dr. C. West documented the applicant’s pre-accident employment and future post-graduate studies in the report and so was aware of these factors. Further, there is insufficient medical evidence to support the respondent’s argument that Dr. Moshiri’s finding of vehicular anxiety/specific phobia is not consistent with the applicant’s oral testimony that post-accident she still drives.

20The applicant’s argument that the respondent April 7, 2016 denial does not comply with s. 38 (8) of the Schedule because it does not provide clear medical reasons as required by case law is unpersuasive. I find the respondent’s April 7, 2016 medical reason for denial to be clear and unequivocal. At that time the respondent had determined that the applicant’s injuries were in the MIG and the medical reason given is that “we have not received any compelling medical documentation to support that you require treatment or assessments beyond the minor injury limit. Further, we have not received any medical evidence to indicate that as a direct result of accident related injuries you now suffer from a psychological impairment”. The applicant’s case law is not relevant here as it concerns the sufficiency of notice when an insurer relies on s. 55 (1) 2.

Medical Benefit: Attendant Care Benefit Assessment submitted February 10, 2016

21The applicant submits that the attendant care benefit assessment is reasonable and necessary on the disability certificate by Dr. Hefford dated January 18, 2016 that was submitted before this treatment plan was submitted. Further, this assessment ought to be paid for by the respondent because it did not provide adequate medical reason for denial and continued to act in bad faith.

22I find that the applicant is not entitled to the payment of the attendant care benefit assessment because she has not established, on a balance of probabilities and with sufficient medical evidence, that it is reasonable and necessary. Although Dr. M. West recommends this assessment, there is a lack of reporting of functional limitations to Dr. Choy sufficient to warrant further assessment. Further, this treatment plan states that the goal is to “determine the future needs for attendant care required by the applicant as a result of the automobile accident.” The applicant’s claim for attendant care benefit assessment is denied.

23The applicant’s argument that the respondent did not provide adequate medical reason for denial and continued to act in bad faith is unpersuasive. I find the respondent’s medical reason for denial to be clear and unequivocal. Also, the conduct of the respondent, in bad faith or otherwise, does not relieve the applicant of establishing through sufficient medical evidence that this requested assessment is reasonable and necessary.

Medical Benefit: TMJ Assessment submitted February 29, 2016

24The applicant submits that the TMJ assessment is reasonable and necessary because TMJ pain is documented in Dr. Hefford’s disability certificates dated January 18, 2016 and September 15, 2017, Dr. M. West’s orthopaedic report of July 20, 2017, Dr. Shiewitz recommends physical therapy and psychological assessment and the applicant continuously complained about this pain to her family doctor as documented in her clinical records. The applicant also argues that she requires this treatment plan in order to manage symptoms and move towards recovery.

25I find that the applicant is not entitled to the payment of the TMJ assessment because, she has not established on a balance of probabilities, and with sufficient medical evidence, that it is reasonable and necessary. Although Dr. M. West diagnoses “Left temporomandibular joint pain”, he adds “Further comment on this diagnosis is beyond the scope of my specialty and would best be addressed by an assessment with an oral surgeon”. This evidence does not establish on a balance of probability that a TMJ assessment is reasonable and necessary as a result of the accident. Dr. M. West concedes that detailed explanation in support of his diagnosis beyond the scope of his speciality. Without further detailed support, Dr. M. West’s diagnosis is unpersuasive.

26Dr. Shiewitz, a dentist, who co-signed the disputed treatment plan with Dr. Hefford, does not sufficiently explain how TMJ injury resulted from the accident. Although Dr. Hefford’s two disability certificates list TMJ as an injury resulting from the accident, he is a chiropractor and is not qualified to diagnose a TMJ injury, yet, the stated goal is to “evaluate the extent of the patient’s TMJ injury and to provide a prognosis and recommendations for recovery.” This is not a reasonable and necessary goal given that there is insufficient medical evidence to indicate that the applicant is likely to have suffered a TMJ injury as a result of the accident. Also, Dr. Choy, who noted TMJ shortly after the accident, did not refer the applicant to any specialist for TMJ. The applicant’s claim for TMJ assessment is denied.

Is the Applicant Entitled to an Award under Ontario Regulation 664?

27Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that the respondent did not unreasonably withhold or delay payments.

28The applicant argues that the respondent based its denials on “faulty reasoning” because it did not consider all the medical evidence in its possession in its denials, failed to give any weight to substantial medical evidence supporting approval of the treatment plans and continued to maintain its meritless denials without regard for the treatment and modalities described therein. When the applicant was removed from the MIG, no further reasons or particulars were provided. The applicant argues that all of this conduct is a basis for an award.

29I disagree. The respondent was entitled to deny the plans for the reasons it expressed. Before this hearing, the respondent conceded that the applicant’s injuries were out of the MIG. The Tribunal so found in its Reconsideration on July 29, 2019. However, the respondent was still legally entitled to require the applicant to establish that the disputed treatment plans were reasonable and necessary and in accordance with the Schedule. This is not an unreasonable position for the respondent to take given the reports the respondent had from its assessors. For all these reasons, there is no award.

Interest

30Interest is payable in accordance with s. 51 of the Schedule on the treatment plans found to be reasonable and necessary.

Applicant’s Request for Costs of this Hearing

31The applicant argues at this hearing that she is entitled to a costs from the respondent pursuant to s. 17.1 of the Statutory Powers Procedure Act (“SPPA”) and Rule 19 of the Tribunal’s Rules for its unreasonable, vexatious and bad faith conduct in respect of this matter because it has been “disrespectful of the Tribunal’s process by continuing to deny the Treatment Plan year after year” contrary to the spirit of The Fighting Fraud and Reducing Automobile Insurance Rates Act, Ontario Bill 15 which created a substantial workload for applicant’s counsel. The applicant argues that failing to award costs against the respondent would set a precedent not in line with the rules of natural justice. The applicant also argues that the respondent failed to introduce the new evidence dated December 18, 2017 that takes the applicant out of the MIG prior to the conclusion of the original hearing even though it had this evidence in its possession. This required the applicant to request Reconsideration thereby exhausting the applicant’s resources, causing unnecessary work and time and showing blatant disrespect for the Tribunal not in line with the principles of fairness and natural justice and amounting to abuse of process. The applicant seeks deterrence of this conduct by costs of $1,000.00.

32I decline to add this as an issue or to determine it. The applicant’s request is not an issue before me. On November 8, 2019, the Tribunal ordered that the issues at this hearing are the same as in the original hearing, except for the MIG determination, and the issues are set out in paragraph two of the original decision. There is no claim for costs in paragraph two. The applicant could have sought an Order prior to this hearing to add this issue but did not do so.

33Even if the applicant’s request for costs had been an issue before me, I would not have granted costs. The respondent is legally entitled to require the applicant to establish that the treatment plans are reasonable and necessary. I am not satisfied that the respondent’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017 or s. 17.1 of the SPPA. In addition, much of the conduct the applicant complains of concerns the Reconsideration and what led up to it. The applicant requested costs of $1,000.00 on the Reconsideration. This request was not successful. As a result, this conduct has already been the subject matter of an unsuccessful cost request to the Tribunal.

ORDER

34For the reasons outlined above, I find that the applicant is entitled to all three disputed treatment plans and the cost of the psychological assessment with interest. The applicant is not entitled to the costs of the attendant care benefit and TMJ assessments. The applicant is not entitled to a special award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
3. 3T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT).
4. 4M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ONLAT).