P.M. v. Aviva General Insurance, 2020 CanLII 80284

Citation: P.M. vs. Aviva General Insurance, 2020 ONLAT 19-002717/AABS

Date: September 18, 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.M.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

P.M.

Jono Schneider, Counsel

For the Respondent:

Julie-Ann MacDonald, Adjuster

Matthew Owen, Counsel

Court Reporter:

Kerry Kopas

HEARD:

In writing and by way of teleconference on May 29, 2020

OVERVIEW

1The applicant, P.M., was injured in an automobile accident on November 23, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from Aviva General Insurance (“Aviva”), the respondent.

2Aviva was of the opinion that all of P.M.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² Aviva also denied P.M.’s request for certain medical benefits including physiotherapy, massage therapy, a physiatry assessment and a psychological assessment. As a result, P.M. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference and the matter was scheduled for a written hearing on November 25, 2019.

4Although not provided for in the Tribunal’s September 14, 2019 Case Conference Report and accompanying Order, P.M. included a sworn affidavit in her written hearing submissions. As a result, Aviva filed a Notice of Motion seeking permission to cross-examine P.M. on her affidavit.

5On October 21, 2019, Aviva’s motion was granted and cross-examination of P.M. on her affidavit was scheduled for February 11, 2020 via teleconference. The written submissions timetable was also amended at that time to account for the cross-examination.

6P.M. filed a request for reconsideration of the Tribunal’s decision to allow cross-examination on her affidavit. P.M.’s reconsideration request was denied on October 28, 2019 as the Tribunal’s motion decision did not dispose of the matter.³

7P.M. subsequently requested an adjournment of the cross-examination on her affidavit, which was granted, and the teleconference portion of the hearing was rescheduled for March 23, 2020.

8On March 23, 2020, the parties attended the teleconference portion of the hearing along with a court reporter; however, no adjudicator was in attendance.

9Following a Notice of Motion filed by P.M. on March 25, 2020, a further case conference was scheduled for case management purposes on April 17, 2020 and the cross-examination of P.M. on her affidavit was rescheduled to March 29, 2020. The written submission deadlines were also amended to reflect the rescheduled teleconference portion of the hearing.

10Cross-examination of P.M. on her affidavit took place on May 29, 2020 which was followed by written submissions from the parties. The hearing in this matter concluded on July 13, 2020.

ISSUES IN DISPUTE

11The following are the issues to be decided:

(i) Are P.M.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?

(ii) Is P.M. entitled to $1,361.50 for physiotherapy and massage therapy recommended by Core Health Care in a treatment plan (“OCF-18”) submitted on February 28, 2018, and denied on March 8, 2018?

(iii) Is P.M. entitled to the following assessments recommended by Allied Med Trauma Evaluation:

(a) $2,486.00 for a psychological assessment, submitted in an OCF-18 on September 7, 2018, and denied on September 12, 2018?⁴

(b) $2,486.00 for a physiatry assessment, submitted in an OCF-18 dated August 29, 2018, and denied on September 6, 2018?⁵

(iv) Is P.M. entitled to $139.90 for completion of a Disability Certificate (“OCF-3”) by Dr. Chu dated January 15, 2018, and denied on March 2, 2018?

(v) Is Aviva liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to P.M.?

(vi) Is P.M. entitled to interest on any overdue payment of benefits?

RESULT

12I find that:

(i) P.M.’s injuries as a result of the accident are outside of the MIG as she suffers from chronic pain;

(ii) The treatment plan in the amount of $1,361.50 for physiotherapy and massage therapy and $2,486.00 of the OCF-18 for a psychological assessment are payable plus interest in accordance with s. 51 of the Schedule;

(iii) P.M. is not entitled to the phsyiatry assessment;

(iv) P.M. is not entitled to payment for the completion of the OCF-3 by Dr. Chu; and

(v) P.M. is not entitled to an award.

ANALYSIS

Did P.M. sustain a predominately minor injury?

The Minor Injury Guideline (“MIG”)

13The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, 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 defined in the Schedule.

14I find that P.M. has proven on a balance of probabilities that her injuries are outside of the MIG as she suffers from chronic pain as a result of the accident.

Chronic Pain/Chronic Pain Syndrome

15P.M. submits that she should be removed from the MIG because she has been diagnosed with chronic pain syndrome and/or that she suffers from chronic pain as a result of the accident.

16In analyzing the issue of chronic pain and the MIG, P.M. submits that I should rely upon the following three criteria:⁶

1. Does the applicant suffer significant and constant pain – more than simple ongoing or recurrent, intermittent pain?

2. Has the applicant’s pain persisted well beyond the normal healing times (three to six months after the initial trigger or injury) for the injuries sustained?

3. Does the applicant’s pain cause functional impairment and disability?

17In contrast, Aviva maintains that the Tribunal has not been consistent in its application of the criteria used to assess an applicant’s claim of chronic pain. Aviva noted that the Tribunal has also considered the six criteria described in the American Medical Association (“AMA”) Guides⁷ in assessing a claim of chronic pain in which at least three of the following criteria must be met for a diagnosis:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

18I find that all of the criteria advanced by P.M. and Aviva can be read harmoniously in determining whether or not P.M. should be removed from the MIG as a result of chronic pain. The three criteria of chronic pain advanced by P.M. encompass functional impairment and disability and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individual’s functional capacity.

19To support her position, P.M. primarily relies upon an October 15, 2018 Physiatry Consultation Report by Dr. S.W. Joseph Wong⁸ in which Dr. Wong diagnoses P.M. with, among other conditions, chronic pain and chronic pain syndrome.⁹ However, I place little weight on Dr. Wong’s opinions and diagnoses in this report for several reasons.

20First, Dr. Wong provides no details of his credentials to diagnose chronic pain or chronic pain syndrome. In the credential portion of his report, Dr. Wong provides no specific training or education to substantiate his expertise in this area. P.M.’s response to Aviva’s submissions noting the lack of Dr. Wong’s specializations in diagnosing or treating chronic pain of, “those letters beside the doctor’s name mean something. Feel free to look up what the following initials FAB (PM&R), FAB(IM) and FAADEP mean in the context of his qualifications,” and suggesting that Aviva “do a quick search to see how many times Dr. Wong has been qualified as an expert on the specialization of diagnosing and treating chronic pain,” do not assist P.M. in discharging her burden of proving that she suffers from chronic pain. Aviva is correct that the evidence of Dr. Wong’s qualifications regarding chronic pain were not put before me by P.M. in this matter.

21Second, Dr. Wong defines chronic pain as, “injury not healing despite the normal time for healing,” noting that the usual recovery time for soft tissue injuries is between three and six months.¹⁰ Dr. Wong then opines that P.M. suffers from chronic pain and from chronic pain syndrome because, “this patient continues to complain of pain despite the normal passage of healing times.”¹¹ Although Dr. Wong discusses P.M.’s functional limitations in his report, at no time does he discuss how these limitations impact or lead to his diagnoses of chronic pain or chronic pain syndrome as it appears the only factor taken into consideration by Dr. Wong in making these diagnoses is the passage of time.

22Third, Dr. Wong’s report lacked details and specific information about P.M.’s assessment. For example, there is no information on the length of Dr. Wong’s assessment of P.M., no details were provided about P.M.’s use of pain medication aside from a note that she was currently consuming such medication and Dr. Wong stated that psychological conditions were present for P.M. which was solely based on P.M.’s self-reporting and there was no objective testing or comparison with her family doctors clinical notes and records (“CNRs”) which show only one entry of stress that was unrelated to the accident. Dr. Wong also advises that P.M. should be “limited” in her activities at work with no specific limitations provided (i.e. the amount of weight that P.M. should be restricted to for lifting, pushing, etc.) and Dr. Wong used the wrong person’s name in his report on one occasion.¹²

23That said, I also place little weight on the Insurer’s Examination (“IE”) Medical Physician Assessment Report by Dr. Ijaz Chaudhry, physician, dated May 6, 2019.¹³ Although part of the purpose of this report was the applicability of the MIG and Dr. Chaudhry opines that, “strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue injuries, as a direct result of the MVA, that would be considered ‘minor injures’ as defined by [the] SABS,” Dr. Chaudhry provides no opinion and there is no discussion in his report about chronic pain or chronic pain syndrome. I agree with P.M.’s criticism of Dr. Chaudhry’s report in that there is no explanation provided as to why Dr. Chaudhry, who reviewed Dr. Wong’s report in preparation of his assessment of P.M.,¹⁴ and stated in the professional qualifications portion of his report that he has “extensive experience in diagnosing and managing both acute and chronic pain syndromes,”¹⁵ fails to address P.M.’s claim that she suffers from chronic pain and chronic pain syndrome.

24The evidence that I do find persuasive and of weight are the CNRs of Dr. Man-Hon Chu, P.M.’s family doctor. I find that Dr. Chu’s CNRs support a finding that P.M.’s pain was ongoing, persistent and lasted longer than anticipated as a result of P.M.’s injuries from the accident. P.M. complained of low back pain to Dr. Chu the day after the accident on November 24, 2017 and, as a result, Dr. Chu diagnosed P.M. with a back strain and a left knee contusion. These pain complaints continued into January 2018 and a further CNR entry dated April 10, 2018 noted occasional lower back pain. On May 15, 2018, after a trip to Jamaica, P.M. returned to Dr. Chu complaining of low back pain after “a lot of walking [in] Jamaica” and was once again diagnosed with a back strain in which Dr. Chu recommended heat, massage, rest, stretching exercises and physiotherapy. On July 6, 2018, P.M. again complained of back pain, was diagnosed with back strain and was prescribed Tylenol with codeine, massage, heat, rest and was advised by Dr. Chu to wear a back brace on exertion. P.M.’s back pain complaints continued in August, September and November 2018 with a CNR entry following a physical of P.M. that her back aches have improved, which indicated to me that they had not yet resolved. Based on Dr. Chu’s CNRs, I find that P.M.’s back pain continued well beyond the three to six month anticipated healing time.

25I also find that P.M.’s back pain was significant and constant, such that it caused her functional impairments regarding her pre-accident employment. I accept P.M.’s testimony and her affidavit that at the time of the accident, she was working two jobs – one in a full-time capacity at the [Government] as a Records Supervisor and the second in a part-time position as a night porter/cleaner with an [employment agency]. I also accept P.M.’s evidence that she returned to her full-time position with the [Government] quite soon after the accident but with accommodations that remained in place as of the date of her cross-examination on her affidavit. I do not agree with Aviva’s submission that there is no evidence to corroborate that P.M. is on modified duties with the [Government]. P.M. testified that she received accommodations from her full-time employer under oath and I do not agree that her testimony should be given less weight because she failed to corroborate her oral evidence through a letter or documentation supplied by her employer. If Aviva had concerns over the veracity of this evidence, it was open to Aviva to summons someone from P.M.’s employer to test P.M.’s evidence which it failed to do.

26For completeness, I also accept P.M.’s testimony that she did not receive accommodations to complete her job tasks prior to the accident and that she has not been able to return to her part-time employment post-accident due to the physical demands of the position.

27Additionally, when considering the six criteria in the AMA Guides, I find that P.M. meets three of the possible six criteria. P.M. was prescribed pain medication in July 2018, approximately 8 months after the accident, which is also beyond the expected duration of injuries even though there was no evidence of abuse or dependence. P.M. has also failed to restore her pre-injury functioning in terms of her employment as she has been unable to return to her part-time pre-accident employment and is only able to complete her full-time employment tasks with accommodations. In addition to withdrawing from her pre-accident part-time employment, I also accept P.M.’s evidence that she has withdrawn from other pre-accident recreational activities such as swimming, which she testified that she used to enjoy on a weekly basis pre-accident, and that she struggles to walk for long periods of time which she also enjoyed pre-accident.

28Based on all of the evidence before me, I find that P.M. has proven on a balance of probabilities that she suffers from chronic pain, specifically chronic back pain, based on the criteria set out in 18-005777 and also based on the criteria outlined in the AMA Guides. Therefore, P.M.’s injuries as a result of the accident are not “minor injuries” and, as such, she is removed from the MIG.¹⁶

29The treatment plan for physiotherapy and massage therapy in the amount of $1,361.50 as well as $2,486.00 of the treatment plan for a psychological assessment are payable as a result of Aviva’s failure to comply with s. 38 of the Schedule. P.M. is not entitled to the OCF-18 for a physiatry assessment.

Physiotherapy and Massage Therapy

30P.M. submitted that Aviva did not provide a proper denial as required by s. 38(8) and s. 38(9) of the Schedule to the OCF-18 that sought funding in the amount of $1,361.50 for physiotherapy and massage therapy. P.M. submitted that Aviva failed to advise her in its response that Aviva believed that the MIG applied to P.M.’s impairments. Therefore, P.M. submitted that Aviva is not only required to pay for the disputed treatment plan, but that Aviva is also prohibited from taking the position that the MIG applies to all of P.M.’s future claims for entitlement to medical benefits pursuant to s. 38(11)1.

31On March 5, 2018, Aviva partially approved the OCF-18 for physiotherapy and massage therapy in the amount of “$1,160.10 or $1,100.00” and stated:

Please note, the policy limit for treatment on your policy is $3,500.00. Currently, Aviva has approved $2,200.00 for your initial treatment plan and reserved $200.00 or $139.90 for completion of your Disability Certificate (OCF-3). Therefore, the treatment proposed will exceed your policy limits. Any approved amounts over the $3,500.00 limit will be your responsibility.¹⁷

32Aviva also included s. 18 of the Schedule as an attachment to its March 5, 2018 correspondence. Aviva maintained that it met its obligations under s. 38(9) of the Schedule when the totality of its correspondence is considered. I disagree.

33Sections 38(8), 38(9) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. If an insurer believes that the MIG applies to the insured person’s impairments, the notice required under s. 38(8) must advise the insured person that it is taking this position pursuant to s. 38(9).

34Aviva’s reference in its correspondence to the $3,500.00 funding limit of the MIG but not stating that Aviva believes that the MIG applies to P.M.’s impairments falls short of its obligations under s. 38(9) of the Schedule. Moreover, simply enclosing portions of the Schedule concerning the MIG is also not sufficient to discharge the requirements of s. 38(9).¹⁸ Aviva was required to advise P.M. that it believed that the MIG applies to P.M.’s accident-related impairments and it failed to do so. As a result, its March 5, 2018 partial denial notice was deficient.

35As a result of Aviva’s non-compliance with s. 38(8) and s. 38(9) of the Schedule, the following consequences contained in s. 38(11) are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

36Therefore, s. 38(11)2 provides an insurer a window to “cure” a defective notice but without such a cure, any goods, services, assessment and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.¹⁹ No other notices regarding this disputed OCF-18 were put before me as evidence. As such, I find that Aviva did not cure its defective March 5, 2018 notice and, as a result, the OCF-18 for the physiotherapy and massage therapy in the the total amount of $1,361.50 is payable starting on the 11th business day after the day that Aviva received the OCF-18.

37P.M. has submitted her payment receipts from Core Health Care but it is unclear if the incurred charges related to the treatment plan in dispute. In the event that this treatment plan was not incurred, Aviva’s position is that it is only liable for any goods or services that were incurred under this OCF-18 as a result of s. 38(11) of the Schedule. To support its position, Aviva relied upon the Tribunal’s decision in P.K. vs. Aviva Insurance Canada²⁰ where the Tribunal held that pursuant to s. 38(11)2, the respondent was liable to pay for the goods and services listed in the disputed treatment plan which were incurred between the 11th business day and when a compliant refusal was provided.²¹ With respect, I disagree with this position.

38Section 38(11)2 of the Schedule states:

The Insurer shall pay for all goods, services, assessment and examinations described in the treatment and assessment that relate to the period starting on the 11th business day after the day that the insurer received the applicant and ending on the day the insurer gives a notice described in subsection (8) (my emphasis added).

39In M.F.Z. v. Aviva,²² the Executive Chair of the Tribunal wrote the following in interpreting sections of the Schedule:

The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [citation omitted]. This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.²³

40On a plain reading of s. 38(11)2, there is no requirement for any services to be “incurred” as the section only states “that relate to.” Furthermore, “incurred” is found nowhere in this section yet it appears in countless other sections of the Schedule. Therefore, when s. 38(11)2 is read harmoniously with the Schedule as a whole, it is readily apparent that the legislature purposefully used the wording “that relate to” in lieu of “incurred” in s. 38(11)2. Moreover, when examining the intention of the Schedule, it would be contrary to its consumer protection purpose to require an injured person to incur an expense prior to a finding by the Tribunal on issues raised over compliance with s.38(8) and s. 38(9) of the Schedule because there would be little, if any incentive, for an insurer to comply with its obligations under s. 38 otherwise. Simply put, if an insured person is impecunious and unable to afford treatment, requiring such a person to incur an expense prior to adjudication on the issue of notice compliance with s. 38 does not achieve the consumer protection nature of the Schedule and would provide no deterrence for insurers to comply with their obligations under s. 38.

41For all of these reasons, I disagree with Aviva regarding its position that the OCF-18 must be incurred in order for the consequences in s. 38(11) to apply. Therefore, the disputed OCF-18 is payable as Aviva’s March 5, 2018 partial denial notice was non-complaint with s. 38 of the Schedule and Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

42Aviva is also not precluded from taking the position after March 5, 2018 that P.M. has an impairment to which the MIG applies pursuant to s. 38(11) of the Schedule for any future treatment plans as argued by P.M. The decisions relied upon to support P.M.’s position are not the current state of the law on this issue. The Divisional Court has held that the language used in s. 38 of the Schedule refers to the specific treatment plan in question and, as a result, s. 38(11) does not impose a permanent prohibition on an insurer with respect to whether an insured person’s impairments is covered by the MIG or is subject to the $3,500.00 limit in s. 18(1).²⁴ Therefore, I find that Aviva is not prohibited from taking the position that MIG applies to P.M.’s future claims for medical benefits after March 5, 2018.

Psychological Assessment

43P.M. also submitted that Aviva did not provide a proper denial as required by s. 38(8) and s. 38(9) of the Schedule to the OCF-18 that sought funding for a psychological assessment. Like the previous March 5, 2018 notice, P.M. submitted that Aviva failed to advise her in its response that Aviva believed that the MIG applied to P.M.’s impairments.

44In response, Aviva submitted that in its September 12, 2018 correspondence, it “chose to make a section 33 request”²⁵ in response to the disputed OCF-18. Aviva argued that this s. 33 request remains outstanding and, as a result, it is not liable to pay for the psychological assessment.²⁶

45The relevant portion of Aviva’s September 12, 2018 correspondence is as follows:

We acknowledge receipt of a Treatment and Assessment Plan (OCF-18) dated September 7, 2018 submitted by Romeo Vitelli of 2337783 Ontario Inc. o/a Allied-Med Trauma for a Psychological Assessment…

In order to review the above noted Treatment and Assessment Plan we require the following medical documentation:

1. Clinical notes and records from your family doctor from December 2017 to present

2. Clinical notes and records from 2337783 Ontario Inc. o/a Allied-Med Trauma

Please obtain these documents or provide Aviva with the appropriate release to obtain this information. This information is requested in accordance with section 33 of the Statutory Accident Benefits Schedule…

We will re-evaluate the Treatment and Assessment Plan (OCF-18) when we are in receipt of all requested information and we will also advise if we require you to undergo an insurer examination.²⁷

46Sections 38(8) to 38(10) of the Schedule provides the only options available to an insurer for its notice to the insured person upon receiving an OCF-18 which does not include a s. 33 request. I find that Aviva’s September 12, 2018 notice to P.M. fails to adhere to the requirements of s. 38(8) and s. 38(9) of the Schedule because the notice:

(i) does not advise P.M. that Aviva takes the position that the MIG applies as required by s. 38(9) of the Schedule; and

(ii) does not identify the goods, services, assessments and examination contained in the OCF-18 that Aviva agrees or does not agree to pay for; and is devoid of any medical reasons or any other reasons.

47As a result of Aviva’s deficient notice regarding the psychological assessment, the consequences in s. 38(11) as discussed above in paragraphs [35] to [41] are triggered. Similar to the previous disputed treatment plan, no other notices from Aviva regarding this OCF-18 were put before me as evidence. As such, I find that Aviva did not cure its defective September 12, 2018 notice and Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

48I also disagree with Aviva’s position that s. 33 absolves it from the consequences set out in s. 38(11) of the Schedule. Aviva has failed to provide any decisions that support its position and on a plain reading of s. 38(11), non-compliance with a s. 33 request does not exempt an insurer from the consequences of providing a deficient notice to an insured person. For all of these reasons, I find that the OCF-18 for the psychological assessment is payable starting on the 11th business day after the day that Aviva received the OCF-18.

Physiatry Assessment

49P.M. did not raise any issues concerning Aviva’s compliance with s. 38 of the Schedule and the OCF-18 that sought funding for a physiatry assessment. Therefore, P.M. bears the onus of proving her entitlement to the claimed physiatry assessment by proving it is reasonable and necessary on a balance of probabilities.²⁸

50The disputed OCF-18 was completed by Dr. Wong. The goals of the OCF-18 were only listed as “physiatry assessment” and there were no attachments to the OCF-18.

51On September 6, 2018, Aviva denied the OCF-18 that sought funding for a physiatry assessment. Despite this denial, P.M. proceeded with the proposed assessment and incurred the total amount of the treatment plan of $3,559.00.

52In evaluating P.M.’s entitlement to this proposed OCF-18, P.M. submits that I should rely upon the following three-part test for determining the reasonableness and necessity as set out in the Financial Services Commission of Ontario (“FSCO”) decision of Jennifer Esterreicher and Non-Marine Underwriters, Mbrs. of Lloyds:²⁹

1. The treatment goals, as identified, are reasonable;

2. The goals are being met to a reasonable degree; and

3. The overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment.

53While this decision is not binding on me, it has been followed by the Tribunal previously and has been considered helpful in evaluating entitlement to treatment plans.

54In evaluating the proposed physiatry assessment against the test set out in Esterreicher, I find that the treatment plan fails on the first prong of the test. I find that the identified treatment goals of “physiatry assessment” is simply stating what the proposed OCF-18 is seeking. P.M.’s submissions on the treatment goals that, “it had been almost a year by the time of the OCF-18 and report, and [P.M.] needed the opinion of a specialist to assist in identifying a diagnosis and making recommendations. Dr. Wong did ultimately do that and made recommendations which she is trying to implement,”³⁰ are not reflected at all in the treatment plan. The only stated goals in the OCF-18 were “physiatry assessment.” Therefore, I find that the only stated goal is not reasonable.

55For the reasons set out above, I find that P.M. has failed to prove on a balance of probabilities that the proposed physiatry assessment was reasonable and necessary and, as a result, she is not entitled to payment for this assessment.

Costs for the Completion of a Disability Certificate (OCF-3)

56Payment for the completion of an OCF-3 in the amount of $139.90 was denied by Aviva on March 2, 2018.

57P.M. first submitted that Aviva is estopped from taking the position it is required to pay for the OCF-3 of Dr. Chu. Section 280(4) of the [Insurance Act]³¹ provides that accident benefits disputes “shall be resolved in accordance with the Statutory Accident Benefits Schedule.” An administrative tribunal does not have the ability to craft remedies that are the exclusive purview of the common law courts. The [Statutory Powers Procedure Act]³² gives tribunals some latitude to control their process and procedure and the law allows tribunals to inquire into issues of procedural fairness or natural justice and, in limited circumstances, constitutional issues, but there is no jurisdiction to provide equitable remedies including estoppel.³³

58I find that P.M. has failed to prove on a balance of probabilities the reasonableness and necessity for the payment for the completion of the OCF-3 by Dr. Chu. P.M. has failed to submit as evidence for the hearing the initial letter from Aviva requesting the completion of an OCF-3. Therefore, the wording of this letter is unknown and I am unable to make any determinations regarding P.M.’s reference to the completion of the OCF-3 by her “treating practitioner.” Further, while I appreciate that P.M.’s evidence is that if she had been advised by Aviva that it would only pay for one OCF-3, that P.M. would not have obtained two completed OCF-3s, there is no evidence before me to demonstrate that P.M. followed up with Aviva for clarification of its original request if P.M. was confused by it. There is also no evidence before me that Aviva ever requested the completion of more than one OCF-3 pursuant to s. 37 of the Schedule or otherwise. In fact, P.M. testified on cross-examination that no one from Aviva, via letter or otherwise, told her to submit more than one OCF-3. Therefore, I find that Aviva is not liable to pay $139.90 for the completion of the second OCF-3 by Dr. Chu pursuant to s. 21(3) of the Schedule and P.M. is not entitled to payment for this amount.

Award

59Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. In this matter, P.M. seeks an award in the amount of $5,000.00 based on Aviva’s failure to provide proper notice under s. 38 of the Schedule, keeping P.M. in the MIG after receiving Dr. Chaudhry’s report and based on Aviva’s denial of the physiatry assessment.

60P.M. is not entitled to an award regarding the physiatry assessment as I have found that P.M. is not entitled to this medical benefit and, therefore, no payment of this benefit has been withheld or delayed.

61It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

62My findings that Aviva failed to comply with its obligations under s. 38(8) and 38(9) of the Schedule does not in and of itself amount to an unreasonable withholding or delay of payment of benefits. In this matter, there is no evidence before me that any of Aviva’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate but rather that this was a situation where Aviva misapplied the Schedule and “got it wrong.”

63Therefore, I find that P.M. is not entitled to an award under O. Reg. 664.

Interest

64P.M. is entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 in the amount of $1,361.50 for the physiotherapy and massage therapy and to $2,486.00 of the treatment plan for a psychological assessment.

CONCLUSION

65For the reasons outlined above, I find that:

(i) P.M.’s injuries as a result of the accident are outside of the MIG as she suffers from chronic pain;

(ii) The treatment plan in the amount of $1,361.50 for physiotherapy and massage therapy and $2,486.00 of the treatment plan for a psychological assessment are payable plus interest in accordance with s. 51 of the Schedule;

(iii) P.M. is not entitled to the physiatry assessment;

(iv) P.M. is not entitled to payment for the completion of the OCF-3 by Dr. Chu; and

(v) P.M. is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3See Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”).
4. 4The total amount of this OCF-18 is $3,220.50 but P.M. limited her claim to the maximum amount payable under the Schedule for any one assessment of $2,486.00 pursuant to s. 25(5).
5. 5The total amount of this OCF-18 is $3,550.50 but P.M. also limited her claim to the maximum amount payable under the Schedule.
6. 618-00577 v Northbridge Personal Insurance Corporation, 2019 CanLII 58161 (ON LAT)(“18-005777”) at para. 18 (“18-005777”).
7. 7American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24. Aviva also referred to A.H. vs. TD General Insurance Company, 2020 CanLII 12773 (ON LAT) at para. 14 where the Tribunal also considered a fourth factor in assessing chronic pain, which was that the pain was not a clinically associated sequela to minor injuries. The adjudicator in this matter referred to these criteria as none were provided by the applicant. In my opinion, this fourth criteria is moot given the Tribunal’s Reconsideration decision in 17-00835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) in which the Executive held that the term “clinically associated sequelae” does not include chronic pain (para. 16). While I am not bound by this decision, I agree with the Tribunal’s interpretation of s. 3 of the Schedule and this decision has been followed on numerous occasions.
8. 8Submissions of the Applicant, page 188.
9. 9Ibid. at pages 7-8 of the report.
10. 10Ibid. at page 8.
11. 11Ibid.
12. 12Ibid. at page 14.
13. 13Submissions of the Respondent, tab 6.
14. 14Ibid. at page 10, Appendix A “Document List.”
15. 15Ibid. at page 2.
16. 16Given my finding regarding chronic pain and P.M.’s removal from the MIG, there is no need to consider whether or not P.M.’s pre-existing medical conditions would also allow her access to treatment outside of the MIG limits.
17. 17Submissions of the Respondent, tab 19.
18. 18See 16-000663 v Aviva Insurance Company of Canada, 2017 CanLII 148394 (ON LAT) at para. 34.
19. 19See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at paras. 50-52, 59 and 64.
20. 202020 CanLII 14478 (ON LAT).
21. 21Ibid. at para. 17.
22. 222017 CanLII 63632 (ON LAT).
23. 23Ibid. at para. 39.
24. 24Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 at para. 21.
25. 25Submissions of the Respondent, para. 94.
26. 26Schedule, s. 33(6).
27. 27Submissions of the Applicant, page 183.
28. 28Schedule, s. 14 and s. 15 and Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
29. 29FSCO A04-001750, December 18, 2018 (“Esterreicher”).
30. 30Submissions of the Applicant, para. 65.
31. 31R.S.O. 1990, c. I.8.
32. 32R.S.O. 1990, c. S.22.
33. 33J.T. and Aviva Canada Inc., 2018 CanLII 8097 (ON LAT) at paras. 39-41.