L.D. v. Aviva Insurance Company, 2020 CanLII 57402

Citation: L.D. vs. Aviva Insurance Company, 2020 ONLAT 19-000065/AABS

Released Date: 07/7/2020

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:

L.D.

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

For the Applicant: Lisa Bishop. Counsel

For the Respondent: Annemarie N. White, Counsel

Heard: By way of written submissions.

OVERVIEW

1The applicant was injured in an automobile accident on September 20, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the driver of vehicle stopped in traffic when it was struck from behind by another. As a result, the applicant submits he sustained physical injuries to his neck and back, as well as developed anxiety.

3The applicant applied for medical benefits that the respondent denied on the basis that his injuries fell under the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under s. 3 of the Schedule, subject to treatment within the $3,500 limit?

If the answer to issue (i) is no, then:

ii. Is the applicant entitled to receive a medical benefit in the amount of $3,300.10 for physiotherapy treatment, recommended by Movement Physio in a treatment plan submitted October 2, 2017, and denied by the respondent on October 17, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,867.60 for physiotherapy treatment, recommended by Movement Physio in a treatment plan submitted April 9, 2018 and denied by the respondent on April 26, 2018?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $1,826.25 for an attendant care needs assessment, recommended by Movement Physio in a treatment plan submitted July 10, 2018, and denied by the respondent on July 23, 2018?

v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant’s injuries do not fall within the definition of the MIG and the applicant is entitled to treatment beyond the MIG’s monetary limit.

ii. The treatment plans and the cost of examination are all reasonable and necessary.

iii. The applicant is entitled to interest on the outstanding payment of benefits in accordance with the Schedule; but

iv. The applicant is not entitled to an award.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7The applicant bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

8The applicant submits his injuries are not minor injuries as defined under the Schedule because he has pain which requires physiotherapy and massage therapy on the recommendation of his family doctor. Furthermore, the applicant has numbness in his fingers, low back pain, pins and needles in his arms and legs, numbness in his toes and a loss of balance. He also points to injuries listed on the Disability Certificate (“OCF-3”) dated October 2, 2017 which included radiculopathy, localized swelling, mass and lump, lower limb, possible foot drop and sensory loss.

9The applicant submits that the OCF-3, lists radiculopathy as an injury he was suffering from as a result of the accident, which is also similar to the injuries listed in the treatment plan. The applicant relies upon the neurological IE assessor, Dr. Desai, who opined that he had concerns regarding functional impairment of the applicant’s neck, arms and hands with possible myeloradiculopathy, which Dr. Desai indicated needed to be investigated further. His report went on to opine that the applicant should be instructed to limit heavy lifting to a maximum of twenty-five pounds, that the applicant should avoid playing contact sports, and to report any significant or worsening of bowel or bladder function, motor weakness or new sensory deficits to his primary care physician without delay. He went onto state the following:

On the balance of probabilities this particular symptoms [sic] may be attributable to the subject MVA and I would recommend that he has a relatively urgent MRI of the cervical spine and EMG nerve conduction studies of the left upper extremity to exclude a C7 radiculopathy.³

10According to the applicant, the MIG definition specifically states that injuries which appear to be soft-tissue injuries would be “minor” provided that it does not exhibit objective, demonstrable, definable and clinically relevant neurological signs.⁴

11It is the applicant’s position that, as a result of the OCF-3, the OCF-18 noting radiculopathy as an impairment and the neurology IE assessor noting he may have myeloradiculopathy that warrants an urgent test, he should be removed from the MIG.

12The respondent’s position is that the applicant’s injuries are all soft-tissue injuries that have resolved. The respondent relies upon the fact that, in the 21-months between October 3, 2017 and July 6, 2019, there were only three entries for accident-related complaints in the clinical notes and records of the applicant’s physician. Furthermore, it relies upon its insurer examination (“IE”) assessment by Dr. Weisleder, Orthopaedic Surgeon, who opined that the applicant’s injuries were uncomplicated soft-tissue injuries and there was a lack of medical evidence to suggest that the applicant could not reach maximal medical recovery within the MIG.⁵

13In my view, the applicant’s OCF-3 and the OCF-18 that list radiculopathy impairments and the myeloradiculopathy impairment noted by the neurology IE assessor are not injuries that are defined within the MIG. The Minor Injury Guideline states that injuries which appear to be soft-tissue injuries would be “minor” provided that it does not exhibit objective, demonstrable, definable and clinically relevant neurological signs. As a result of radiculopathy impairments listed in the OCF-3 and the OCF-18 as well as the myeloradiculopathy impairment noted by the neurology IE assessor Dr. Desai, I find that on a balance of probabilities that the applicant has and injury that is not within the definition of the MIG and therefore he is entitled to treatment beyond the limits of the MIG.

Is the applicant entitled to receive a medical benefit in the amount of $3,300.10 for Physiotherapy treatment?

14I will now turn to discuss whether the treatment plans and the cost of examination are reasonable and necessary.

15For the following reasons, I find that the physiotherapy treatment plan is reasonable and necessary.

16The goals of the treatment plan are for pain reduction, increase range of motion and to assist the applicant with a return to his activities of normal daily living, The goals would be achieved through laser therapy, IFC (interferential current therapy) and a TENS (transcutaneous electrical nerve stimulation) machine, hyperthermy/hypothermy and massage.

17The applicant relies upon the treatment plan in support of his position that he is experiencing difficulties with prolonged sitting, standing, walking, activities such as lifting, bending, pulling, pushing, and other housekeeping chores and activities of daily living. Furthermore, the applicant says his quality of life has been affected because of slower activities of daily living.⁶

18The applicant further relies upon case law in support of his position that pain relief is a legitimate medical and rehabilitative goal and therefore this treatment plan is reasonable and necessary to help reduce his symptoms and limitations.⁷

19Furthermore, the applicant’s position is that the respondent denied the treatment plan on the basis that his injuries were “minor injuries” as defined under the MIG, and the respondent is precluded from taking the MIG position because it did not comply with s. 38(8) or the Schedule as it did not respond within 10 business days after receipt of the treatment plan.

Was the treatment plan responded to by the respondent within 10 business days as required by section 38(8)?

20The respondent submits that it was in compliance with s. 38(8) of the Schedule and provided its response in a timely manner because the 10th business day from October 2, 2017 is October 17, 2017 (the day the respondent responded) because October 9, 2017 was the Thanksgiving day statutory holiday and not a business day pursuant to s. 3 of the Schedule.

21As a result, I find that the respondent was compliant with s. 38(8) of the Schedule and provided a response within 10 business days as required because October 9, 2017 was not a business day.

22In addition to the treatment plan, the clinical notes and records of the applicant’s family doctor from October 3, 2017 notes that the applicant has had pain in his upper back for two weeks and was taking pain medication prescribed from the emergency room hospital that he attended. The clinical notes and records indicate that the applicant has neck pain from moving and his doctor’s objective analysis was that the applicant has musculoskeletal pain, reduced range of motion and the applicant was referred for physiotherapy and massage therapy.⁸

23I agree with the applicant that pain relief is a legitimate medical and rehabilitative goal, and I find that the applicant was suffering from pain as a result of the accident as evidenced by the clinical notes and records and the recommendation for physical treatment by the family doctor. I find that the goals of pain relief and to increase the applicant’s range of motion are reasonable and necessary and, as a result, the treatment plan is reasonable and necessary.

Is the applicant entitled to the treatment plan in the amount of $1,867.60 for physiotherapy treatment?

24The applicant submits the denial from the respondent indicated the respondent denied the treatment plan and did not provide any medical and any other reasons in accordance with s. 38(8) of the Schedule. Furthermore, the notice did not advise the applicant of any insurer examination (“IE”) and whether the MIG was the reason for the denial or if it was to determine whether the treatment plan was reasonable and necessary. The applicant also submits that s. 38(9) requires the respondent to advise whether it believes the MIG applies, which the respondent failed to do.

25For the following reasons, I find that the respondent did not comply with s. 38(8) and (9) of the Schedule and, in accordance with s. 38(11), the respondent shall pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the respondent received the treatment plan. According to the applicant, the treatment plan was incurred for the full amount of $1,867.60.⁹

26In essence, the applicant submits the respondent failed to:

a. Provide the applicant with medical reasons and all of the other reasons for the denial

b. Provide the applicant with medical or other reasons to warrant an IE and;

c. Provide the applicant with any notice that an IE would be scheduled to address this treatment plan.

27The Explanation of Benefits (“EOB”) with respect to this treatment plan erroneously dated January 23, 2018, states the reasons why the expenses are not payable are because the respondent was “Waiting for binding medical opinion.”¹⁰ No further explanation or reasons are provided.

28The applicant submits the respondent’s denial reasons of “Waiting for a binding medical opinion” is much too vague to constitute a true, valid or factual medical reasons to rely on for the basis of a denial and relies upon the Tribunal case of Applicant v. Certas Home and Auto Insurance Company,¹¹ in support of his position that the respondent’s denial does not constitute a medical reason.

29The applicant further submits that the notice of the IE did not indicate whether the medical/rehabilitation benefits or the applicability of the MIG would be addressed as part of the IEs. Combined with the inadequate reasons for the denial, the denial is not in accordance with s. 38(8) and, as such, the applicant invokes s. 38(11) with respect to this treatment plan. Section 38(11) states that the respondent is prohibited from taking a MIG position and is obligated to pay the amounts incurred with respect to this treatment plan between the 11th business day after it was submitted until the time a notice is eventually provided. The applicant submits, the full amount of the treatment plan has been incurred.¹²

30The applicant relies upon the Tribunal decision of M.B. v. Aviva Insurance Canada¹³ and the Financial Services Commission of Ontario (“FSCO”) case of Augustin v. Unifund,¹⁴ in support of his position that specific information is required in a notice and that information must also include reasons why the applicant is required to attend an IE.¹⁵

31The respondent’s position is that it did not agree to fund the goods and services under the treatment plan pending its receipt and review of a medical opinion and in the respondent’s view, this is a medical reason and the denial was proper and in accordance with the Schedule.

32I agree with the applicant, in my view, the respondent failed to provide adequate medical and any other reasons in its denial and the respondent also failed to notify the applicant that it believes the MIG applies to his injuries and it was therefore not in compliance with s. 38(8) and (9) of the Schedule.

33In the reconsideration decision of the Executive Chair, Linda Lamoureux in M.B. v. Aviva Insurance Canada, she stated as follows with respect to what “medical and any other reasons” requires:

In my view, an insurer satisfies its obligation to provide it’s “medical and any other reasons” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

34I agree with the Executive Chair and her reasoning in M.B. v. Aviva and adopt it for the purposes of this hearing. In my view, the respondent’s Explanation of Benefits denial language of “Waiting for a binding medical opinion” is not a medical reason. There is no specific information about the insured’s condition forming the basis for the respondent’s decision, nor is there any reference to the Schedule upon which it relies. Furthermore, the reason provided is not clear and sufficient enough that would allow an unsophisticated person to make an informed decision to accept or dispute the decision. As a result, I find that respondent has not satisfied its obligation under s. 38(8) and it must pay for the treatment plan as per s. 38(11) of the Schedule.

Is the applicant entitled to payments for the cost of examinations in the amount of $1,826.25 for an Attendant Care Needs Assessment

35For the following reasons I find that the attendant care needs assessment to be reasonable and necessary.

36The applicant submits this assessment is needed to make a determination of the applicant’s functional status and make recommendations with respect to his home or personal care needs.

37Furthermore, the applicant submits and relies upon the self-reports of pain and limitations as noted in the IE assessment of Amanda Garnett dated April 11, 2018.¹⁶ The IE assessment of neurologist Dr. Desai dated May 2, 2018¹⁷ as well as the clinical notes and records of the physiotherapy clinic he has been attending from September 23, 2017 to October 16, 2019 where the applicant has been complaining of pain and limitations in his back, knee and shoulder.¹⁸ The applicant also relies upon the family doctor notes that state he has ongoing pain and where he was prescribed medication for pain and was also given a recommendation for an x-ray and ultrasound as well as physiotherapy and massage therapy.¹⁹

38The respondent submits that the cost of examination for this assessment is not reasonable and necessary and relies upon the IE occupational in-home therapy assessment on April 11, 2018 by Ms. Garnett. In that report, she concludes that the applicant demonstrated sufficient mobility, range of motion and strength as well as cognitive psychosocial functioning to complete all his pre-accident tasks.²⁰

39The respondent further relies upon the applicant’s pre-accident medical evidence to suggest that the limitations he is suffering from were already existing, such as his family doctor recommending a right ankle brace to correct the deformity of his ankle.²¹ A recommendation for a bath stool on August 3, 2017,²² and the ambulance call report noted the applicant was ambulatory and utilizing a cane on the day of the accident.²³

40As a result, the respondent submits the applicant has failed to provide medical evidence that supports that the soft-tissue injuries he sustained from the accident requires an attendant care assessment or the need for further support.

41I disagree with the respondent. In order to demonstrate whether an assessment is required, the applicant does not need to show that he is in need of the treatment. All he is required to show is that there is a reasonable possibility that he has the condition the assessment will investigate. In this case, is there a reasonable possibility that the applicant suffers from limitations and restrictions that would warrant attendant care and, thus, an in-home attendant care assessment? In my view, the answer is yes.

42The medical evidence of the applicant clearly demonstrates the applicant suffers from pain and has limitations. The clinical notes and records of the applicant’s treating physiotherapist, the injuries and impairments listed in the treatment plans, the applicant’s doctor’s clinical notes and records as well as the IE assessments conducted on behalf of the respondent all note the applicant to have injuries and impairments that limit his function.

43Neurologist Dr. Desai noted he had concerns about the applicant’s functional impairments of his neck, arms and hands and noted that the applicant may have myeloradiculopathy which he noted required an immediate investigation.²⁴ The occupational therapy IE assessor opined that the applicant was able to complete his pre-accident self-care tasks and some light housekeeping and leisure activities and, therefore, in her opinion the applicant’s request for an in-home attendant care assessment was not reasonable and necessary.

44However, upon a review of her report and her observations of the applicant, she noted that he presented with the following limitations:²⁵

a. Reduced activity tolerance

b. Moderately restricted right knee flexion

c. Right foot swelling

d. Difficulty with low level movements and reduced balance.

45She further noted that the applicant reported high levels of pain and pain behaviours were demonstrated throughout the assessment, including facial grimacing, rubbing of the areas reported to be painful, groaning, and closing of the eyes.

46As a result of the above, I find that the evidence demonstrates that there is a reasonable possibility that the applicant suffers from limitations and restrictions that would warrant an in-home attendant care assessment and I find it to be reasonable and necessary.

Is the applicant entitled to an award as a result of unreasonably withheld or delayed payment of benefits?

47For the following reasons I find that the applicant has not persuaded me on a balance of probabilities that the respondent’s conduct was unreasonable that resulted in withheld or delayed payment of benefits.

48Under s. 10 of Regulation 664 under the Insurance Act,²⁶ if the Tribunal finds that the insurer unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to fifty percent of the amount to which the person was entitled at the time of the award together with interest on all amounts owing.

49In justifying the case for an award, the applicant submits and relies upon the following:

a. The respondent must adjust and pay benefits in accordance with the Schedule and must consider the totality of the evidence and information available to it.²⁷

b. The respondent has an obligation to adjust the file in a fair and even-handed manner and to critically examine the medical evidence/opinions and not simply pretend they do not exist.²⁸

c. There was more than sufficient evidence of the applicant’s need for treatment beyond the MIG and that the applicant’s injuries were not “minor”.

50The applicant further submits and relies upon the principles of the FSCO case of Liberty Mutual Insurance Company and Persofsky,²⁹ which states that the purpose of an award is to punish insurers that unreasonably fail to pay accident benefits promptly, as required by the Schedule, and to deter that company and others from acting similarly in the future. Furthermore, the applicant submits that an award is not contingent upon a finding of bad faith, or the commission of an actionable wrong by the insurer, but all that is required is an unreasonable withholding of payments that are due to the insured.³⁰

51The applicant submits that the respondent engaged in conduct which was malicious, arbitrary, high-handed and which departed to a marked degree from ordinary standards of behaviour expected of sophisticated insurance company and by its actions the respondent secured a financial advantage at the expense of harm to the applicant which goes directly against the consumer protection principles of the legislation. As a result, the applicant requests an award of 50% of the amounts claimed or in an amount the Tribunal deems appropriate.

52The respondent submits that entitlement to an award is a “stringent test” and only awarded in the circumstances where the delay or withholding of benefits is unreasonable.³¹

53The respondent further submits that an award is not punishment for payment which is simply delayed because of a differing view of the file.³²

54In my view, the onus is on the applicant to prove and, I have not been persuaded on a balance of probabilities, that the respondent acted in a manner that can be described as behaviour that was unreasonable in a way that could be described as excessive, imprudent, stubborn, unyielding or immoderate in withholding or delaying payments.³³

55The applicant submits the respondent engaged in conduct which was malicious, arbitrary, high-handed and departed to a marked degree from the ordinary standards of behaviour expected of a sophisticated insurance company, however the applicant has not directed me any evidence of such. Submissions are not evidence and, without any evidence of the respondent having acted unreasonably, I find that the applicant has not satisfied his onus and I am unable to grant his request for an award.

ORDER

56As a result of the above, I find that:

i. the applicant’s injuries do not fall within the definition of the MIG and the applicant is entitled to treatment beyond its monetary limits.

ii. The treatment plans and the cost of examination in dispute are all reasonable and necessary.

iii. The applicant is entitled to interest on the outstanding payment of benefits in accordance with the Schedule; and

iv. The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Book of Documents of the Applicant at Tab 17, at page 160-161.
4. 4Book of Authorities of the Applicant at Tab 1, page 5. Financial Services Commissions of Ontario, Minor Injury Guideline, dated February 2014.
5. 5Written Submissions of the Respondent at Tab 13, Orthopaedic IE Report of Dr. Weisleder dated March 18, 2019.
6. 6Book of Documents of the Applicant, OCF-18 dated October 2, 2017 at Tab 8, page 96.
7. 7Cubello v. Guidolin [2000] O.J. No. 1468 A.C.W.S (3d) 853; and Applicant v. Desjardins General Insurance Company, 2018 CanLII 110938 (ON LAT)
8. 8Book of Documents of the Applicant at Tab 6.
9. 9Ibid at Tab 19.
10. 10Book of Documents of the Applicant at Tab 14.
11. 112018 CanLII 95582 (ON LAT)
12. 12Book of Documents of the Applicant at Tab 19, pages 181-182.
13. 132017 CanLII 87160 at para. 26.
14. 14FSCO A12-000451.
15. 15Ibid at page 12.
16. 16Written Submissions of the Respondent at Tab. 19
17. 17Book of Documents of the Applicant at Tab 17.
18. 18Ibid at Tab 4.
19. 19Ibid at Tab 22.
20. 20Written Submissions of the Respondent at Tab 19.
21. 21Ibid at Tab 1, clinical notes and records date May 19, 2015.
22. 22Ibid.
23. 23Ibid at Tab 3.
24. 24Written Submissions of the Applicant at Tab 16.
25. 25Written Submissions of the Respondent at Tab 19, page 26.
26. 26Automobile Insurance, RRO. 1990, Reg 664.
27. 27Maas v. State Farm Auto Ins. Co., OIC A-015935, October 16, 1996 at para 124.
28. 28Cowans v. Motors Ins. Corporation, FSCO A09-003237 at pages 15 and 19.
29. 29FSCO P00-0041
30. 30Maria Da Ponte and Motor Vehicle Accident Claims Fund FSCO A01-00486 at page 15.
31. 31Applicant v. Certas Direct Insurance Company, 2018 CanLII 83532 (ON LAT) at para. 49.
32. 32J.G. V. Travelers Canada 2018 CanLII 76431 (ON LAT) at para. 10.
33. 33Ibid at para. 12.