M.R. v. Aviva General Insurance Company, 2020 CanLII 63589

Licence Appeal Tribunal

Tribunal File Number: 18-006946/AABS Date: August 13, 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:

M.R. Applicant

And

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Sheryl Patel, Counsel For the Respondent: Danielle N. Wilkinson, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 24, 2014 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and, in response, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Is the applicant entitled to medical benefits for treatment recommended by Whitby Physiotherapy & Rehabilitation ("Whitby") as follows: a. $4,093.28 for chiropractic treatment proposed in a treatment plan dated April 28, 2016; b. $3,562.37 for a chiropractic treatment plan dated August 2, 2016; and c. $3,929.62 for a chiropractic treatment plan dated April 17, 2017?

2. Is the applicant entitled to a medical benefit in the amount of $9,816.16 for a chronic pain program recommended by Dr. J. Wong, chiropractor, in a treatment plan dated March 14, 2018?

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

4. Is the applicant entitled to an award under section 10 of Ontario Regulation 664?

RESULT

3The applicant is statute-barred from disputing entitlement to the treatment plan dated May 28, 2016.

4The applicant is entitled to the unpaid balance of the incurred goods and services listed in the treatment plan dated August 2, 2016, plus interest, because the respondent failed to comply with section 38(8) of the Schedule.

5The applicant is not entitled to the April 17, 2017 treatment plan.

6The applicant is partially entitled to the March 14, 2018 treatment plan. She is entitled to the incurred goods and services starting on April 9, 2018 and ending on May 31, 2018, because the respondent failed to comply with section 38(8) of the Schedule. The balance of the treatment plan is not reasonable and necessary.

7No award is payable.

BACKGROUND

8The applicant was the driver of a vehicle which was struck from behind while slowing down in heavy traffic on a major highway. She did not seek any medical assistance at the time of the accident but visited her family physician, Dr. C. McAllister, about two weeks later and was examined. Dr. McAllister diagnosed the applicant with soft issue injuries, provided pain medication, and advised her to follow up if her injuries were not improving.

9The applicant commenced treatment pursuant to the Minor Injury Guideline (the "MIG") at [the Health Centre]. Eventually, the applicant exhausted the $3,500.00 funding limit on treatment provided by section 18 of the Schedule. She sought a chronic pain assessment and additional treatment beyond the funding limit however, the requests were denied by the respondent. The denied treatment and assessment plans ("the disputed treatment plans") are now the subject of this hearing. The onus is on the applicant to prove entitlement to the disputed treatment plans.

STATUTORY OBLIGATIONS

10The applicant submits the respondent has failed to fulfill its statutory obligations outlined in section 38 of the Schedule and, as a result, she claims entitlement to the disputed treatment plans. The respondent submits it has fulfilled its section 38 obligations and submits, if it hasn't, the applicant is only entitled to the goods and services consumed between the 11th business day following receipt of each of the disputed treatment plans and ending on the day the respondent fulfilled its section 38 obligations.

11Section 38(8) requires the respondent to provide the medical and all other reasons why it will not fund a proposed treatment plan.

12Section 38(8) also requires the respondent to reply to a proposed treatment plan within 10 business days. Failing which, the respondent is liable to pay for the incurred goods and services starting on the 11th business day and ending on the day the respondent provides a compliant denial.

13The case law regarding this provision provides the denial of benefits must be clear and unequivocal, include a medical and any other reason for the denial, and must refer to the applicant's right to dispute. Notably, the standard governing insurers' communication of denials is not one of perfection.

The treatment plan dated April 28, 2016 in the amount of $4,093.28

14The applicant claims entitlement to this treatment plan because, according to her, the respondent failed to provide sufficient medical and other reasons to deny it. She submits the denial includes no medical reasons and is confusing because the respondent referred to "assessors" and "they" in it, when the applicant was examined by only one assessor.

15The respondent first submits that the applicant is statute-barred from filing an application to dispute this treatment plan, pursuant to section 56 of the Schedule. It submits that the application was filed more than two years following the July 10, 2016 denial. It also submits that the applicant should not be allowed an extension of the limitation period pursuant to section 7 of the Licence Appeal Tribunal Act ("the LAT Act") because: 1) she has shown no intent to dispute the denial within the appeal period; 2) the delay is more than three weeks and is "not insignificant"; 3) the respondent is prejudiced due to the delay and because the application was made nearly 4 years following the accident; and, 4) it has been deprived of its right to fully assess the merit of the applicant's claim because her medical documents were only delivered until after the application and the respondent had no knowledge of their existence. The applicant's reply submissions were devoid of any response to these submissions.

16The respondent further submits it provided reasons for the denial, is not held to a standard of perfection, and provided the applicant with the information required to decide whether to challenge the denial.

17I find the July 10, 2016 denial meets the necessary requirements outlined in section 38(8). It identifies the April 28, 2016 treatment plan and advises that the insurer does not agree to pay for it. It provides a medical reason in stating the recommended treatment is not reasonable and necessary for the injuries sustained in the accident. It also enclosed the Insurer's Examination ("IE") report dated June 28, 2016 which formed the basis for the opinion. Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution.

18This application was filed on August 2, 2018. Considering this, I find the applicant has failed to dispute the denial within the 2-year limitation period and, pursuant to section 56 of the Schedule, is barred from adjudicating entitlement to it.

19I choose not to exercise section 7 of the LAT Act and extend the deadline for filing. This is because the submissions on the four Manuel¹ factors - a bona fide intention to appeal within the appeal period, the length of delay, the prejudice to the other party, and the merit of the appeal - all weigh in favour of the respondent. Additionally, the applicant, despite receiving submissions from the respondent regarding the LAT Act and the factors to consider, chose not to address the factors in reply. As a result, the applicant has failed to provide any reason why the deadline to file should be extended pursuant to section 7 of the LAT Act.

20Considering the above, I find the applicant is barred from disputing her entitlement to the April 28, 2016 treatment plan.

The treatment plan dated August 2, 2016 in the amount of $3,562.37

21The applicant submits the respondent failed to explain or refer to any medical reasons for the August 17, 2016 denial of this treatment plan. The respondent submits it had virtually no medical evidence at the time of the denial and relied on the little evidence it had.

22I find the August 17, 2016 denial fails to meet the requirements outlined in section 38 because it fails to provide adequate medical reasons to deny funding for it. Paraphrasing the August 17, 2016 denial letter, it advises that a nearly identical plan was sent for an IE and resulted in the June 28, 2016 report. The identical plan was found not reasonable and necessary and therefore the current plan is not approved. Unlike the July 10, 2016 denial, the August 17, 2016 denial fails to connect the denial to any medical reason; it simply states it will not fund the treatment plan because the previous and "nearly identical plan" was found not reasonable and necessary. This is unlike the July 10, 2016 denial, which enclosed and referred to the June 28, 2016 IE as part of the medical reasons for the denial. The August 17, 2016 denial did not refer to or enclose an IE report.

23The respondent failed to fulfill its obligations set out in section 38(8) of the Schedule and has yet to remedy the issue through a compliant denial. Pursuant to section 38(11)2, the respondent must pay for all goods and services incurred starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a compliant denial.

24The applicant has incurred the services described in this treatment plan and the respondent is liable to pay for it. The accounting summaries from Whitby show the treatment plan was incurred. The respondent does not dispute the services were incurred. As a result, the unpaid balance of the disputed treatment plan is payable, together with interest pursuant to section 51 of the Schedule.

The treatment plan dated April 17, 2017 in the amount of $3,929.62

25The applicant submits the respondent failed to advise why it subjected her to the MIG and the $3,500.00 funding limit on treatment when it denied this treatment plan. The respondent did not specifically address the argument in response submissions.

26Contrary to the applicant's submissions that it was submitted for approval on the date it was created, the treatment plan dated April 17, 2017 was submitted about seven months later, on November 15, 2017. The respondent denied the applicant entitlement to the treatment plan on November 29, 2017.

27The November 29, 2017 denial advises the applicant that the respondent is unable to provide consideration for the full amount of the plan because it exceeds the policy maximum for treatment and rehabilitation. The letter reiterates section 18(1) of the Schedule, which describes the $3,500.00 funding limit for treatment pursuant to the MIG and then advises the applicant to have her doctor submit compelling evidence to substantiate that further treatment is required beyond the limits of a MIG claim.

28I find the respondent failed to advise the applicant that it believes the MIG applies to her impairment, pursuant to section 38(9) of the Schedule. The denial does not clearly advise the applicant that the respondent believes the MIG applies to her impairment. Referring to and subjecting the applicant to the MIG funding limit are not the same as advising the applicant that it believes the MIG applies.

29Pursuant to section 38(11)1, as a result of the respondent's failure to comply with section 38(9), the respondent is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

30Despite the respondent's failure to comply with section 38 of the Schedule by not advising the applicant it believes she is subject to the MIG, I find that this treatment and assessment plan is not reasonable and necessary as a result of the applicant's accident-related impairments.

31The treatment plan proposed 19 chiropractic and massage therapy treatments over a period of eight weeks. The applicant submits that all the disputed treatment plans are reasonable and necessary because the treatment provides her with pain relief and is recommended by her treating doctors.

32The respondent submits the treatment plan is not reasonable and necessary because there is no recommendation for the applicant to engage in the modalities proposed, nor the frequency.

33The applicant's evidence fails to prove the treatment plan is reasonable and necessary. On February 22, 2017, Dr. McAllister wrote a letter to "Whom it May Concern" and recommended the applicant continue with, not increase, her allied health treatment involving physiotherapy, massage therapy, and chiropractic treatment. A physical examination conducted by Dr. McAllister on the same day found normal results and only tender trapezius muscles on the right side. The records from Whitby show the applicant received treatment at the frequency of about twice per month. The treatment plan proposes a substantially different frequency, at twice per week. Additionally, the recommendations from Dr. McAllister and the treatment providers, made in April 2017, hold little weight when evaluating a treatment plan submitted about seven months later. At the time the treatment plan was created, the applicant was a month away from the birth of her third child and there is no explanation how a treatment plan prepared for the applicant at that time would prevail seven months later, when it was submitted. Likewise, the chronic pain assessment report by Dr. S. W. J. Wong, physiatrist, dated June 19, 2017 makes no recommendation for a remarkable increase in treatment, as proposed in the April 17, 2017 plan.

The treatment plan dated March 14, 2018 in the amount of $9,816.16

34This treatment plan proposes a chronic pain program which includes psychological treatment and physical rehabilitation and therapy.

35From a statutory perspective, the applicant submits this treatment plan was denied without medical reasons and outside of the obligatory 10 business day window. She also submits the treatment plan was referred to an IE, but the IE never occurred. The respondent did not address these arguments, but a physiatry IE report dated August 13, 2018 indicates the IE did occur.

36I find the respondent failed to reply to the treatment plan within the requisite 10 business days pursuant to section 38(8). The treatment plan was submitted on March 21, 2018 and replied to on May 31, 2018.

37I find the respondent's May 31, 2018 request for an IE satisfied its section 38(8) obligations. The reply letter clearly denies funding for the treatment plan and requests an IE. It provides a medical reason by stating the type of treatment does not appear consistent with the patient's diagnosis.

38Pursuant to section 38(11)2, the respondent is liable to pay for all incurred goods and services listed in the treatment plan starting on the 11th business day and ending on the date it gives proper notice. As a result, the applicant is entitled to incurred services starting on April 9, 2018 and ending on May 31, 2018.

39Despite the above, I find the goods and services listed in the treatment plan are not reasonable and necessary for the applicant's accident-related injuries.

40The applicant does not require psychological treatment. The applicant's medical record, with the exception of one note in Dr. Wong's June 19, 2017 chronic pain assessment report, is entirely devoid of any evidence of psychological symptoms – there are no reported symptom complaints, there are no suspected psychological injuries, and no other doctor identified any psychological injuries or recommended psychological treatment. Dr. Wong's conclusion that the applicant suffers from "psychological problems" is unpersuasive considering that psychology is not a specialty of Dr. Wong and no psychological testing or formal evaluation occurred. Furthermore, Dr. Wong's diagnosis is contrary to the findings in the August 13, 2018 psychology IE report of Dr. D. Direnfeld, psychologist. Dr. Direnfeld assessed the applicant in a clinical interview and with psychometric testing and found she did not present with any clinically significant psychological symptoms, nor did she meet the criteria for any psychological disorders.

41According to the August 13, 2018 IE report by Dr. I Finklestein, physician, there is no medical rationale for a chronic pain rehabilitation program. Dr. Finklestein assessed the applicant and found she suffered from probable migraine headaches, cervical strain, and bilateral shoulder strain but found no valid indicators of orthopaedic or neurological accident related impairment. The applicant was found to have undergone suitable rehabilitation with no reported improvement and was unlikely to make any further gains with respect to her current symptoms. Dr. Finklestein concluded that the applicant reached maximal medical recovery and would not benefit from further treatment.

42The applicant exhibits functionality that is inconsistent with typical chronic pain cases, making the chronic pain treatment plan not reasonable and necessary. Dr. Finklestein's examination revealed normal results and no accident-related impairment. Dr. Wong's physical assessment revealed mostly normal results, with the exception of some stiffness and tenderness and limited lumbar flexion. The applicant reports independence with activities of daily living and provides care for her children. She returned to work one day following the subject accident, returned to work following a maternity leave, and there is no evidence of any accommodation at the workplace.

43Considering the submissions and evidence before me, I find the chronic pain treatment plan is not reasonable and necessary for the applicant's accident-related injuries. However, the applicant is entitled to incurred goods and services relating to this treatment plan starting on April 9, 2018 and ending on May 31, 2018 due to the respondent's failure to comply with section 38(8) of the Schedule.

AWARD

44The applicant claims entitlement to an award pursuant to section 10 of Ontario Regulation 664. She submits the respondent unreasonably withheld benefits by deliberately ignoring medical evidence supporting the treatment plans, which according to her, has been detrimental to her recovery. The respondent submits no award should be payable as there was merit to its denials and because the applicant only provided updated medical records, including Dr. McAllister's February 22, 2017 letter, after she filed an application. I agree with the respondent.

45Pursuant to section 10 of Ontario Regulation 664, the applicant may be entitled to an award of up to 50% of the amounts withheld if the respondent unreasonably withheld or delayed payment of a benefit.

46I see no evidence the respondent unreasonably withheld or delayed payment of a benefit. The applicant first produced relevant medical information more than two years following the accident and the medical records included little information related to the applicant's accident-related injuries. I find the respondent's decision to conduct IEs and deny the disputed treatment plans is reasonable considering the lack of information provided by the applicant at that time.

CONCLUSION AND ORDER

47I have reviewed the submissions and evidence and find the applicant is statute-barred from disputing entitlement to the treatment plan dated April 28, 2016 because it has been more than two years since the respondent's denial.

48The applicant is entitled to the unpaid balance of the treatment plan dated August 2, 2016, plus interest, because the respondent failed to provide a valid denial pursuant to section 38(8) of the Schedule.

49The applicant is not entitled to the treatment plan dated April 17, 2017 because it is not reasonable and necessary for her accident-related injuries.

50The treatment plan dated March 14, 2018 is not reasonable and necessary for her accident-related injuries. However, the applicant is entitled to incurred goods and services starting on April 7, 2018 and ending on May 31, 2018 because the respondent failed to comply with section 38(8) of the Schedule when it initially denied the treatment plan.

51No interest or award is payable.

Footnotes

1. 1Manuel v. Registrar, 2012 ONSC 1492.