J.C. v. Aviva General Insurance Company, 2020 CanLII 80298

Citation: J.C. v. Aviva General Insurance Company, 2020 ONLAT 19-004734/AABS

Released Date: 09/14/2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J.C.

Applicant

and

Aviva General Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

Eli Jakubovic

For the Respondent:

Melanie A. Sousa

HEARD:

By way of written submissions.

OVERVIEW

1The applicant was injured in an automobile accident on October 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for medical benefits that were denied by the respondent. The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3At the case conference, the respondent raised a preliminary issue that the applicant is barred from proceeding with the Tribunal application for the medical benefit in the amount of $4,144.61 for medical cannabis and the medical benefit in the amount of $1,379.92 for chiropractic treatment by virtue of s. 55(1) 2. of the Schedule because the applicant failed to attend at the respondent’s s. 44 insurer examination (“IE”) requests.

ISSUES IN DISPUTE

Preliminary Issues

4The following preliminary issues will be addressed as part of this hearing:

(i) Pursuant to s. 55(1) of the Schedule, is the applicant precluded from proceeding with his application to the Tribunal to determine his entitlement a medical benefit in the amount of $4,144.61 for pharmacotherapy (medical cannabis) recommended by Apollo Applied Research in a treatment plan submitted on December 13, 2018, and denied by the respondent on April 5, 2019, due to his failure to attend an assessment requested by the respondent under s. 44 of the Schedule?

(ii) Pursuant to s. 55(1) of the Schedule, is the applicant precluded from proceeding with his application to the Tribunal to determine his entitlement to a medical benefit in the amount of $1,379.92 for chiropractic treatment recommended by Battlefield Chiropractic in a treatment plan submitted on July 16, 2019, and denied by the respondent on September 16, 2019, due to his failure to attend an assessment requested by the respondent under s. 44 of the Schedule?

Substantive Issues

5The following substantive issues will be addressed as part of this hearing:

(i) Is the applicant entitled to a medical benefit in the amount of $2,508.80, representing the unapproved portion of the initial clam for $15,000.00, for a comprehensive pain program recommended by Michael G. DeGroote Pain Clinic in a treatment plan, which was denied by the respondent on February 19, 2019?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,058.25 for chiropractic treatment recommended by Lakeshore Clinic in a treatment plan that was submitted on February 26, 2019, and denied by the respondent on April 5, 2019?

(iii) Is the applicant entitled to a medical benefit in the amount of $1,379.92 for chiropractic treatment recommended by Battlefield Chiropractic in a treatment plan submitted on July 16, 2019, and denied by the respondent on September 16, 2019?

(iv) Is the applicant entitled to a medical benefit in the amount of $4,144.61 for pharmacotherapy (medical cannabis) recommended by Apollo Applied Research in a treatment plan submitted on December 13, 2018, and denied by the respondent on April 5, 2019?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

(vi) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

6For the reasons outlined below, I find that the applicant is barred by virtue of s. 55(1) 2. from disputing the medical cannabis treatment plan in the amount of $4,144.61 and the chiropractic treatment plan in the amount of $1,379.92 for non-compliance with a s. 44 IE request. Therefore the issues listed in paragraph 5 (iii) and (iv) will not be addressed.

7Issue 5 (i) is withdrawn.

8The chiropractic treatment plan in the amount of $2,058.25 is not reasonable and necessary.

9As there are no benefits that are payable, no interest or an award are payable.

ANALYSIS

Preliminary Issues

Requirement to participate in IE’s

10The applicant is required to participate in IE assessments that are reasonably necessary and must provide a reasonable explanation for non-attendance.

11I find that the respondent’s request for the IE assessments for the IRB are reasonably necessary and the applicant did not provide a reasonable explanation for non-attendance.

12Section 44(1) of the Schedule governs the IE process for the purpose of assisting the insurer to determine if the applicant is or continues to be entitled to a benefit under the Schedule for which an application is made but not more often than is reasonably necessary. The respondent may require an insured person to be examined under this section by one or more persons chosen by the respondent who are regulated health professionals or who have expertise in vocational rehabilitation.

13Section 44(4) of the Schedule states an examination under this section may be limited by the respondent to an examination of material…without requiring the attendance of the applicant.

14Section 44(5)(a) of the Schedule states that if the respondent requires an IE, it shall give the applicant a notice setting out the medical and any other reasons for the examination. In addition, the name of the person conducting the examination, any regulated health profession they belong to, their title and designations, including specialization, as well as the day, time and location of the examination must be set out in the notice.

Medical benefit in the amount of $4,144.61 for pharmacotherapy (medical cannabis)

15The onus on this preliminary issue of a s. 44 non-attendance is on the respondent on a balance of probabilities and I find that the respondent has satisfied its onus for the following reasons.

16The respondent submits its IE notice sent on January 21, 2019 was compliant with s. 44(5) of the Schedule as it outlined all the required information.

17According to the respondent, the notice set out (1) the medical reason for the assessment (the treatment provider uses unusual, novel, alternative, experimental, or otherwise questionable treatment techniques that may not have scientifically proven therapeutic or diagnostic value), (2) the name of the assessor (Dr. Ballon), (3) the profession of the assessor (psychiatry), and (4) the date, time and location of the assessment that the applicant was required to attend.

18The respondent further submits that it can require an insured person to be examined but “not more often than is reasonably necessary”.² It is the respondent’s position that this was its first in-person IE request and a first time request for an in-person IE cannot be subject to the qualified wording in s. 44(1) that is it is more than reasonably necessary. The respondent’s position is that s. 44(1) and the phrase “not more often than is reasonably necessary” is an attempt to prevent an insurer from requesting repeated IE’s of a similar nature and in close proximity to each other.

19The respondent relies upon the Tribunal cases of D.N. and Aviva Insurance Company,³ Z.M. and Aviva Insurance Company,⁴ and W.P. and Aviva Insurance Company,⁵ in support of its position that once a proper notice under s. 44 is given with respect to a requested benefit under the Schedule, the applicant’s attendance is mandatory and a failure to attend is a bar to proceeding to a hearing on the substantive merits of that particular benefit.

20Furthermore, the respondent submits there was a reasonable nexus between the examination requested and the applicant’s injuries.⁶ According to the respondent, the examination of material or a paper review IE was requested with a general practitioner to address the treatment plan as it pertained to treating the applicant’s chronic pain. Given that a chronic pain program had already been approved by the respondent, an in-person IE was scheduled with a psychiatrist to address the concerns regarding the treatment plan as it pertained to the applicant’s psychological symptoms with an assessor who specializes in those injuries and treatment.

21The applicant’s position is that the respondent’s request for a psychiatric assessment was not reasonable and it is a significant invasion of privacy that is not proportional to the treatment plan as submitted.

22The applicant further submits that the psychiatric assessment request was not aligned with the medical reason for the denial and as a result, the applicant did not attend the assessment. According to the applicant, a physiatrist with a specialization in medical cannabis would be more appropriate to address the medical reason for the denial and a psychiatrist would not be able to opine on the medical reason for the denial.

23In scheduling an IE under s. 44, there is no requirement for any input or consent from the applicant. The right to an IE is exclusively at the discretion of the respondent as long as; (a) the IE is reasonably necessary, (b) the requirements of the notice are in accordance with s. 44 as discussed above, and (c) that the IE is in accordance with s. 44(9) to make reasonable efforts to schedule the examination for a day, time and location that is convenient for the applicant.

24I find that the respondent’s notice complied with s. 44(5) as it set out (1) the medical reason for the assessment (the treatment provider uses unusual, novel, alternative, experimental, or otherwise questionable treatment techniques that may not have scientifically proven therapeutic or diagnostic value), (2) the name of the assessor (Dr. Ballon), (3) the profession of the assessor (psychiatry), and (4) the date, time and location of the assessment that the applicant was required to attend.

25The applicant does not take issue with the notice or submit that it was defective in any way. The applicant submits there is no reasonable nexus between a psychiatric assessment and the treatment plan and that an IE is a significant invasion of privacy as his reasons for not attending.

26I do not agree with either of the applicant’s submissions. The treatment plan was proposed to treat the applicant’s chronic pain, anxiety symptoms and sleep difficulties.⁷ According to the American Psychiatric Association “anxiety disorders are the most common type of mental disorders.”⁸ As a result, I find that there is reasonable nexus between the psychological examination requested and the applicant’s injuries.

27Furthermore, there is no doubt there is some form of invasiveness in attending a medical examination, however s. 44(9) 2. iii. of the Schedule has a specific provision that the applicant shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations.

28The applicant is required to attend all reasonably necessary IE examinations and as a result of the above, I find that the respondent has provided a proper notice in accordance with s. 44. As a result of the applicant failing to attend, the applicant is precluded from disputing the treatment plan in the amount of $4,144.61 until such time as he attends the properly scheduled IE.

Chiropractic treatment in the amount of $1,379.92

29For the following reasons, I find that the applicant did not attend a reasonably necessary IE request from the respondent and is therefore precluded from disputing the treatment plan at the Tribunal.

30The respondent submits its notice was compliant with s. 44(5) of the Schedule and the applicant does not take issue with or submit that the notice was defective. Further, the respondent submits that this was its first request for an in-person IE to address the applicant’s physical injuries and the examination of material or a paper review was done by Dr. Seiden and it was to address the treatment plan for medical cannabis and not the need for chiropractic or massage therapy.

31The respondent further takes the position that the chiropractic treatment plan listed an injury to the applicant’s shoulder area whereas the previous treatment plans did not list any kind of shoulder injury. As a result, it was reasonable for the respondent to request an in-person IE as the applicant raised a new impairment that required evaluation.

32The respondent’s position is that s. 38 of the Schedule requires it to respond to a treatment plan within 10 days of receiving it and provide medical reasons for the denial, which it did, based on the examination of material IE conducted by Dr. Seiden. The respondent’s denial letter dated August 6, 2019 also specified that the in-person IE was required to review the new treatment plan and that the final determination would be provided following receipt of the in-person IE report.

33The applicant submits the IE assessment was not reasonable, is an invasion of privacy and was already denied. The applicant further submits that the respondent’s proposed IE assessor, Dr. Kopyto, has no speciality in cyotonia congenita or neurology.

34In my view, the Schedule is clear, as long as the respondent provides a proper notice for an IE in accordance with s. 44(5) and the IE is reasonably necessary, the applicant is required to attend, subject to the insurer making reasonable efforts to schedule the examination for a day, time and location that is convenient for the applicant.⁹

35There is no requirement in s. 44 of the Schedule for the applicant’s consent to the format of the assessment, nor is there a requirement for the applicant’s consent on the choice of doctor who will be conducting the assessment. It is entirely at the respondent’s discretion.

36I find that the respondent provided a proper s. 44 notice and the IE was reasonably necessary as a new impairment was identified in the treatment plan (shoulder injury). The applicant failed to attend.

37As a result of finding that the applicant did not attend a reasonably necessary request for an IE, I find that in accordance with s. 55(1) 2. of the Schedule, the applicant is precluded from disputing the chiropractic treatment plan in the amount of $1,379.92 until such time as the applicant attends the IE.

38I will now turn to discuss the substantive treatment plans remaining in dispute.

Is the applicant entitled to a medical benefit for a comprehensive pain program in the amount of $2,508.80?

39This treatment plan was submitted in the amount of $15,000 and was partially approved leaving a balance of $2,508.80 for transportation expenses.

40The applicant submits that when the treatment plan was submitted the applicant resided in Grimsby, Ontario and $2,508.80 was budgeted for travel to Hamilton for the treatment. The applicant now resides in Hamilton, Ontario and therefore, according to the applicant, the transportation issue is now moot and no further submissions were provided.

41I would take that to mean that the partially approved treatment plan is conceded and as a result, the remaining balance of $2,508.80 will not be addressed as part of this hearing.

Is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $2,058.25?

42For the following reasons I find that the applicant has not satisfied his onus on a balance of probabilities that the treatment plan is reasonable and necessary.

43The applicant submits the purpose of the treatment plan was to address the applicant’s whiplash associated disorder with neck pain and musculoskeletal signs, injury of the ulnar nerve at the forearm, chronic post-traumatic headaches and myalgia at multiple sites.

44The applicant further submits that the treatment plan noted that he suffers from Tomsen Disease which would affect his response to treatment and that his family doctor recently diagnosed him with impingement syndrome of the right shoulder as a result of the accident. However, the applicant does not direct me to any evidence in support of this submission. Upon a review of the medical evidence of the applicant, there is a report from Dr. Andrus dated April 29, 2018, which predates this treatment plan by approximately 10 months but that report was in support of the applicant’s injuries not being within the Minor Injury Guideline and it did not support the applicant’s request for chiropractic treatment.

45There are clinical notes and records that predate the treatment plan that the applicant has headaches and neck pain,¹⁰ however there was no recommendation for chiropractic treatment or whether it would be beneficial.

46The applicant’s submissions then go on to point out the deficiencies of the respondent’s denial letter and its reasons for the denial based on the examination of material IE of Dr. Seiden.

47The respondent submits Dr. Seiden conducted a review of the applicant’s family doctor’s records and noted in his report dated March 25, 2019,¹¹ that the applicant’s family doctor, Dr. Andrus documented that the applicant has exhausted treatment options and his recovery trajectory has plateaued.¹² Dr. Giammarco, Neurologist, noted that for the applicant’s headaches, he has tried chiropractic and massage but the applicant felt it made it worse.¹³ The applicant self-reported that massages have not been helpful and that some of the physical treatment made his pain worse.¹⁴

48In my view, the applicant must adduce compelling evidence in support of treatment and the treatment plan alone is not evidence in support of it. The applicant has not provided any submissions or pointed me to any evidence in support of this chiropractic treatment plan other than to suggest that an examination of material IE assessment by the respondent to deny this kind of treatment is inappropriate, unreasonable and malicious claims handling. This may be relevant with respect to a claim for an award, however, pointing out deficiencies in the respondent’s IE or its denial letter is not sufficient or compelling evidence on its own that the treatment plan is reasonable and necessary.

49As a result of the above, I find the applicant has not satisfied his onus on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary.

50As a result of there being no benefits in dispute that are payable there is no interest or an award that is payable.

ORDER

51For the reasons outlined above, I find that the applicant is barred by virtue of s. 55(1) 2. from disputing the medical cannabis treatment plan in the amount of $4,144.61 and the chiropractic treatment plan in the amount of $1,379.92 for non-compliance with a s. 44 IE request. Therefore the issues listed in paragraph 5 (iii) and (iv) will not be addressed.

52Issue 5 (i) is withdrawn.

53The chiropractic treatment plan in the amount of 2,058.25 is not reasonable and necessary.

54As there are no benefits that are payable, no interest or an award are payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 44(1) of the Schedule.
3. 32018 CanLII 13166 (ON LAT) at paras 28-34.
4. 42018 CanLII 13184 (ON LAT) at paras 6-21.
5. 52017 CanLII 19192 (ON LAT) at para 28.
6. 6Applicant and Travelers Canada, 2018 CanLII 13172 (ON LAT) at para. 19.
7. 7Written Submissions of the Respondent at Tab 2, pg. 22.
8. 8Ranna Parekh, M.D., M.P.H. “What are Anxiety Disorders” (January 2017) American Psychiatric Association.
9. 9Section 44(9) 2.i. of the Schedule.
10. 10Written Submissions of the Applicant at Tabs 4 and 5.
11. 11Written Submissions of the Respondent at Tab 7.
12. 12Ibid at Tab 9. Clinical Notes and Records dated March 4, 2018 to June 11, 2018.
13. 13Ibid at Tab 10, Clinical Notes and Records dated September 12, 2018.
14. 14Ibid at Tab 11. Interdisciplinary Initial Assessment of DeGroote Pain Clinic dated October 31, 2018.