Citation: B.J.W. v. Aviva Insurance Company of Canada, 2020 ONLAT 19-009416/AABS

Released Date: 09/22/2020

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:

B.J.W.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Sophia Chaudri, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Bing Ji Wang (“applicant”) was involved in an automobile accident on July 29, 2017 (“accident”). The applicant was 22 years old at the time of the accident. The applicant submits that he sustained serious physical and psychological injuries from the accident.

2The applicant sought benefits from Aviva Insurance Company of Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The respondent submits that the medical and rehabilitation benefits sought are not reasonable and necessary. The applicant applied to the Tribunal for dispute resolution.

ISSUES

4The issues to be decided in this hearing are²:

i. Is the applicant entitled to a medical benefit in the amount of $3,981.68 for psychological services, denied by the respondent May 22, 2019?

ii. Is the applicant entitled to a medical benefit in the amount of $2,710.08 for chiropractic services, denied by the respondent September 7, 2018? (collectively “disputed treatment plans”)

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

RESULT

5The applicant is not entitled to the disputed treatment plans. No interest is payable. The applicant’s application is dismissed.

LAW

6Sections 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 has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.³

ANALYSIS

Is the Applicant Entitled to the Treatment Plan for $3,981.68 for Psychological Services?

7The applicant submits that although he was taken out of the Minor Injury Guideline (“MIG”) due to psychological impairments, the respondent is refusing to pay for psychological treatment. The applicant submits that this May 2019 treatment plan made by Dr. McDowall, applicant’s psychologist at Somatic Assessments & Treatment Clinic Inc., is reasonable and necessary as a result of the injuries he suffered in the accident. The injuries are described by Dr. McDowall as severe depressive episode, mixed anxiety and depressive disorder, specific phobias, post-traumatic stress disorder, headache, dizziness and giddiness, whiplash associated disorder, sprain and strain of shoulder joint, other symptoms and signs involving cognitive functions and awareness, nonorganic sleep disorders, nightmares, other eating disorders.

8Other than the transportation costs, the respondent submits it does not disagree with payment for the treatment but disagrees with the rate of payment given that the applicant has yet to provide the necessary particulars as they pertain to the service provider.

9I find that the stated goals of this treatment plan are reasonable and necessary. The goals include reduction of negative thought by utilizing cognitive restructuring techniques to deal with the applicant’s anxiety, depressive feelings, and cognitions regarding the accident and the functional goals include return to activities of normal living and return to pre-accident work activities. Fourteen sessions of psychology treatment are proposed at a cost of $3,141.88, together with 14 transportation costs of $280.00, documentation and support activity at a cost of $360.00 and further documentation and support activity at a cost of $200.00.

10According to the September 23, 2019 report of Dr. Moshiri, respondent’s psychologist, progress had been achieved with treatment. Dr. Moshiri had previously assessed the applicant in July 2018. Dr. Moshiri noted that the applicant self-reported that he has received about 20 hours of psychological treatment and has achieved 80% of psychological improvement. Dr. Moshiri diagnosed accident-related adjustment disorder with mixed anxiety and depressed mood. Dr. Moshiri reported that the applicant purchased a new vehicle which he is driving and told Dr. Moshiri he did not need any treatment for driving. Dr. Moshiri found this treatment plan to be reasonable and necessary, except for the 14 counts of transportation to treatment ($280.00) not reasonable and necessary.

11I therefore find that the transportation costs are not reasonable and necessary because of lack of evidence from the applicant on why this is necessary and Dr. Moshiri’s opinion.

12I also find that the overall cost of the treatment plan and the basis for the cost is not reasonable and necessary because the reasonableness of the cost has not been established by the applicant. Although the treatment plan shows Dr. McDowall as the provider of “psychology treatment” at a rate of $149.61 per hour for 14 sessions of one-and-a-half hours each for a total of $3,141.88, the treatment plan does not specify who would be providing treatment other than Dr. McDowall. It is clear from Dr. McDowall’s reports dated November 23, 2017 and May 7, 2019, that she supervised psychotherapists Mandy Fong and Liyan Liu who were previously involved in the applicant’s treatment. This treatment plan is silent on this. It is not signed by Dr. McDowall.

13In the Explanation of Benefits (“EOB”) dated October 8, 2019 the respondent advised the applicant that it would pay a portion of the amount claimed subject to receiving further information about the treatment providers such as the names of all practitioners who completed the psychotherapy, their applicable college registrations and hourly rate of each practitioner allowed by the FSCO Guidelines, the dates and times of each treatment session and a description of how the treatment was provided such as in-person, telephone or video. This information was never provided to the respondent which is consistent with the applicant not providing other requested information. For example, by October 2019 the applicant’s request for benefits had been suspended for several months for failure to provide medical releases requested under s. 33 of the Schedule.

14I agree with the respondent’s submission that the information requested by the respondent could have and should have been provided well before the hearing. The applicant provided no reply submission regarding this.

15Therefore, based on the totality of the evidence, I find that the treatment plan is not reasonable and necessary.

16The applicant also submits that the respondent failed to provide the applicant with firm and clear medical and other reasons why the benefits were refused as required by s. 38(8) of the Schedule and as a result, the mandatory payment provisions under s. 38(11) (2) are triggered.

17Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary.

18Having reviewed the correspondence from the respondent in the explanations of benefits (“EOB”), I am satisfied that they meet the requirements of s. 38 (8). This treatment plan is dated May 21, 2019. By correspondence dated May 21, 2019, the respondent advised the applicant that he is in non-compliance with s. 33 of the Schedule which would apply to all benefits. By EOB dated May 22, 2019, the applicant was advised that this treatment plan is not payable pending a further independent examination (“IE”) and the medical reasons were set out. The applicant failed to attend the IE several times but did attend with Dr. Moshiri September 9, 2019.

19This EOB was sent within 10 business days after the respondent received the treatment plan. The EOB identified the services in the treatment plan that the respondent did not agree to pay for and gave the medical and other reasons why the respondent considers the treatment plan not to be reasonable and necessary.

20I find that there is no evidence that the respondent’s EOB of October 8, 2019 with respect to this treatment plan does not comply with the Schedule. The EOB advises that the respondent considers the treatment plan partially reasonable and sets out the reasons why. Further the EOB advises the applicant that $1,374.66 of the amount claim would be paid subject to receipt of further information and amounts not paid would include “client related supervision services” pending additional information and any planning would be to a maximum of $200.00. On the evidence before me, the applicant has not yet provided the information requested by the respondent.

21The applicant did not make any specific submissions as to how the notices were deficient or unclear or could not be understood but instead asserts generally that “…by denying the applicant’s benefits on multiple occasions,…the applicant failed to provide the applicant with firm and clear “medical and all of the other reasons” why they refused to pay for the benefit…as required by s. 38 (8)…”

22The applicant also submits that the respondent breached its duty of good faith and fair dealing to the applicant and relies on Arruda and Western Assurance Company⁴ in support of his argument that an insurer has an ongoing duty to assess and reassess a claim as new information is available.

23Arruda is not binding on me, but more importantly, is not helpful here because I find that there is no evidence that the insurer breached any duty to the applicant or treated him unfairly with respect to either of these treatment plans. The respondent’s requests for information were reasonable in the circumstances and the examinations by the respondent’s assessors were not uncalled for. The respondent continued to assess the applicant’s claim but the applicant failed to co-operate by providing relevant information.

Is the Applicant Entitled to the Treatment Plan for $2,710.08 for Chiropractic Services?

24The applicant submits that this August 27, 2018 treatment plan made by Dr. Palantzas, applicant’s chiropractor, is reasonable and necessary as a result of the injuries he suffered in the accident which Dr. Palantzas describes as chronic pain and various soft tissue injuries to neck, thorax, lumbar spine and pelvis, shoulder and upper arm, radiculopathy, rotator cuff, headache, dizziness and giddiness, nonorganic sleep disorders, phobic anxiety disorders, nervousness and other psychological issues.

25The stated goals in this treatment plan are pain reduction, increase in strength, increased range of motion and to minimize compensatory strain and the functional goals include return to activities of normal living, return to modified work activities, return to pre-accident work activities and to promote soft tissue healing. Twelve sessions of chiropractic treatment, 12 sessions of active therapy, an initial assessment and report and completion of the OCF-18 are proposed.

26I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary. Dr. Palantzas’s recommendation of physiotherapy is not supported by any medical opinion. The applicant put forward two records from Dr. Cheng, applicant’s family physician. Dr. Cheng does not recommend physiotherapy as requested in this treatment plan in either record. To the contrary, Dr. Cheng’s July 3, 2018 record shows that although the applicant complained of neck pain “for 1 year since MVA”, he noted “no relief with rehab” and his May 24, 2019 note makes no reference to any pain or to the accident. Dr. Cheng does not refer the applicant to any medical specialist for pain or other injuries from the accident and does not prescribe any pain medication.

27In his July 5, 2018 report, Dr. Urovitz, respondent’s orthopaedic surgeon, after examining the applicant, opined that despite the applicant’s ongoing subjective report of symptomatology, Dr. Urovitz found no objective signs of accident related orthopaedic impairment. Dr. Urovitz also records that the applicant told him that he has no physical complaints, his movements were not restricted and denies taking analgesics or anti-inflammatory medications, is fully independent with his self-care and the accident has not affected his activities of daily living. Because of his specialized medical expertise and the lack of any significant medical evidence to the contrary, I prefer the medical evidence of Dr. Urovitz over that of Dr. Palantzas and Dr. Tavares, applicant’s chiropractor who completed the September 9, 2017 OCF-3 disability certificate, neither of whom are physicians.

28Further, the applicant told Dr. Moshiri in September 2019 that he has recovered fully.

29Again, the applicant submits that the respondent failed to provide the applicant with firm and clear medical and other reasons why the benefits were refused as required by s. 38(8) of the Schedule and as a result, the mandatory payment provisions under s. 38(11) (2) are triggered.

30Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary.

31I find that there is no evidence that the notice sent by the respondent to the applicant on September 7, 2018 with respect to the August 27, 2018 treatment plan (“EOB”) does not comply with the Schedule. Again, the applicant did not make any specific submissions as to how the notice was deficient or unclear or could not be understood but instead asserts generally that “…by denying the applicant’s benefits on multiple occasions,…the applicant failed to provide the applicant with firm and clear “medical and all of the other reasons” why they refused to pay for the benefit…as required by s. 38 (8)…”

32Having reviewed the EOB, I am satisfied that it meets the requirements of s. 38 (8). The EOB appears to have been sent within 10 business days after the respondent received the treatment plan and the applicant did not argue otherwise. The EOB identified the services in the treatment plan that the respondent did not agree to pay for and gave the medical and other reasons why the respondent considers the treatment plan not to be reasonable and necessary.

33With respect to the applicant’s breach of duty and unfairness argument, I find that there is no evidence that the insurer breached any duty to the applicant or treated him unfairly with respect to this treatment plan. The respondent’s requests for information were reasonable in the circumstances and the examinations by the respondent’s assessors were not uncalled for. The applicant had insufficient medical evidence to establish that this treatment plan is reasonable and necessary and the respondent had evidence to the contrary including the self-reporting of the applicant to Dr. Moshiri and the report of Dr. Urovitz.

34After considering all of the evidence and submissions made, I find that applicant has not established with medical evidence that this treatment plan is reasonable and necessary. The weight of the medical evidence is that there is there are no accident-related ongoing physical injuries to treat.

Interest

35As no benefits are payable, no interest is payable.

ORDER

36For the reasons outlined above, the applicant is not entitled to the disputed treatment plans. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The Tribunal’s case conference Order made February 19, 2020 listed an additional issue, specifically a “medical benefit in the amount of $2,379.78 for psychological services, for a treatment plan of $3,701.88, submitted December 4, 2017 and the respondent only paid $1,322.10”. This issue was withdrawn by the applicant in his written submissions for the hearing, paragraph 3.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
4. 4Arruda and Western Assurance Company, FSCO A13-003926, 2015-07-27.