Released Date: 12/02/2020
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:
Andrea Kozlovic
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
PANEL:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Louis DelSignore
Counsel
For the Respondent:
Mohamed R. Hashim
Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, (“A.K.”) sustained injuries in an automobile accident on October 24, 2017. As she attempted to turn left into a driveway from an undivided highway, a vehicle traveling in the wrong direction collided with the front driver’s side of her vehicle. The force of the collision caused her body to strike the driver’s side door and her head to strike the window.
2A.K. did not lose consciousness. She exited the vehicle independently. Soon after, her muscle stiffness increased and she decided to go to the hospital. She was transported to the emergency department by ambulance, was treated and was discharged.
3A.K. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).1 The respondent, (“Aviva”) denied certain of those benefits and A.K. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.
ISSUES IN DISPUTE
4I am to decide the following issues:
i. Is the applicant entitled to receive a medical benefit in the amount of $1,202.00 for chiropractic services, recommended by Whitney Chiro LTD in a treatment plan submitted March 21, 2019 and denied by the respondent on April 3, 2019?
ii. Is the applicant entitled to receive a medical benefit in the amount of $1,227.50 for physiotherapy services, recommended by Arbour Rehabilitation Centre Ltd. in a treatment plan submitted April 2, 2019 and denied by the respondent on April 3, 2019?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,457.69 for occupational therapy services, recommended by Rehability Occupational Therapy (DMA Rehability) in a treatment plan submitted April 24, 2018 and denied by the respondent on May 7, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5A.K. has failed to establish that the disputed Treatment and Assessment Plans (OCF-18s) are reasonable and necessary as a result of the accident. Aviva is not liable to pay the benefits in dispute. Since no benefits are payable, A.K. is not entitled to interest.
ANALYSIS
Background
6A.K. will be entitled to the disputed medical benefits if, in accordance with s. 15 of the Schedule, she can demonstrate that the Treatment and Assessment Plans (OCF-18s) represent reasonable and necessary expenses incurred as a result of the accident.
7Even if an applicant has been removed from the Minor Injury Guideline (“MIG”), she continues to bear the onus of establishing the reasonableness and necessity of any claimed medical benefits on a balance of probabilities.2
8As a result of the accident, A.K. sustained myofascial strain injuries to her neck, back and shoulder muscles. She also developed post-concussion syndrome.3 Dr. Rosemary Danielli, A.K.’s family physician, diagnosed these injuries during A.K.’s visits to her clinic on the date of the accident, October 26, 2017, and on November 2, 2017.
9Myofascial strain injuries fall within the definition of a “minor injury” under s. 3 of the Schedule. Post-concussion syndrome does not.
10On September 25, 2018, Aviva removed A.K. from the MIG. In an email to A.K.’s counsel, Aviva’s adjuster remarked, “I will await the OCF-18 to be submitted for a concussive management program.”4
The disputed In-Home Occupational Therapy Assessment
11On April 24, 2018, A.K. submitted a Treatment and Assessment Plan (OCF-18) proposing an In-Home Occupational Therapy Assessment to determine her symptoms and impairments and how they impacted her functioning.
12Aviva denied this benefit on May 7, 2018, stating it believed her injuries to be subject to treatment within the MIG. The $3,500.00 funding limit had been exhausted.5
13A.K. submits that Aviva ought to have paid for the In-Home Assessment once it determined that her injuries fell outside the MIG. She submits that Aviva should be barred from now claiming that the assessment is not reasonable and necessary.
14Section 38(8) of the Schedule requires insurers to provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”
15There is nothing in the Schedule requiring an insurer to approve a benefit it denied on MIG grounds when it later determines that the MIG does not apply. Aviva is not barred from reiterating its denial on the grounds that the disputed assessment is not reasonable and necessary as a result of the accident. A.K. still bears the onus of establishing that the disputed assessment is reasonable and necessary. She has not done so.
16A.K. returned to work as a bartender on October 31, 2017, less than one week after the accident.6 A.K. also works as a social media manager for the bar and runs her own business as an underwater photographer. Within months of the accident, A.K. resumed her regular activities digitally editing photographs and scuba diving at a local quarry.
17There is evidence that A.K.’s encountered difficulty at work due to pain and concussion-related symptoms. However, the record does not lead me to conclude that A.K.’s complaints substantially impaired her functioning. The evidence does not establish that A.K. was prevented from engaging in her normal daily activities as a result of her symptoms, even at the time the In-Home Assessment was proposed, six months after the accident.
18On a balance of probabilities, an In-Home Assessment aimed at evaluating A.K.’s functional impairment in the home is not reasonable and necessary.
The disputed chiropractic services
19On March 21, 2019, A.K. submitted a Treatment and Assessment Plan (OCF-18) for chiropractic and massage services. On April 1, 2019, Aviva denied the proposed treatment, noting that it appeared to focus on passive care without an active rehabilitation phase. On April 25, 2019, Aviva requested a Section 44 Insurer’s Examination (IE) with Dr. Pankaj Bansal, General Practitioner to assess the reasonableness and necessity of the plan.
20Dr. Bansal issued his IE report on May 31, 2019. In it, he noted that A.K. had attended massage therapy until December 2018, and that she continued to attend for concussion management treatments including balancing exercises, rotational and visual exercises, stretching and reading exercises. She engaged in stretching and self-directed exercises at home and at the gym. A.K. disclosed to Dr. Bansal that she had taken a five-week diving trip to Africa in December 2018, and that she scuba dives weekly at a local quarry during the winter months. She reported being independent in her activities of daily living, including self-care, housework, driving and mobility.7
21Although A.K. reported daily headaches triggered by noise and light and dull and constant neck and upper back pain, Dr. Bansal could find no indication of any ongoing physical impairment in relation to the accident.
22Based on the evidence before me, I cannot conclude that the chiropractic and massage treatment in the disputed plan are reasonable and necessary as a result of the accident. On the date of the accident, Dr. Danielli, A.K.’s family physician, assessed her soft tissue injuries. In her notes from that visit, Dr. Danielli documented her advice to A.K. that “early mobilization” and “[range of motion] exercises are important”.8 Dr. Danielli referred A.K. for chiropractic treatments, massage therapy and physiotherapy.
23Dr. Danielli’s clinical notes may establish that chiropractic, massage and physiotherapy treatments were indicated in October of 2017, but I am presented with no evidence that these treatments were still medically necessary in March 2019, nearly 17 months post-accident.
24Dr. Danielli’s advice to A.K. at the time of the accident underscored the importance of early mobilization and exercise in promoting recovery from myofascial strain injuries. It is not clear that the disputed passive therapy modalities constitute reasonable and necessary interventions for A.K.’s uncomplicated soft tissue injuries nearly one and a half years after the accident. A.K. has not met her onus in respect of this benefit.
The disputed physiotherapy services
25On April 2, 2019, A.K. submitted a Treatment and Assessment Plan (OCF-18) for physiotherapy services. The plan proposed to address A.K.’s pain and dizziness symptoms to increase her strength and range of motion and to promote her return to activities of normal living.
26Aviva denied this plan for the reason that it appeared to focus on passive care without an active rehabilitation phase.
27A.K. submits that this plan proposed treatment for oculomotor and vestibular functions in management of her post-concussive symptoms. She submits that Aviva acted in bad faith by inviting her to propose treatment for her post-concussion syndrome and then refusing this treatment plan.
28A.K. relies on the clinical notes and records of Dr. Danielli from November 2, 2017 as evidence that the disputed massage and physiotherapy treatments are reasonable and necessary as a result of the accident. On that date, Dr. Danielli diagnosed A.K. with post-concussion syndrome and recommended physiotherapy for management of her symptoms.9
29There are no medical records documenting an ongoing need for physiotherapy as treatment for A.K.’s post-concussive symptoms beyond November 2017. The evidentiary record shows November 17, 2017 as A.K.’s last accident-related visit to Dr. Danielli.
30Aviva submits that it has already funded $5,794.17 in benefits for A.K.’s accident-related injuries. A.K. submits that Aviva has funded no treatment for her post-concussive symptoms but has not presented evidence to suggest that the treatments she has received to date have yielded no benefits for those symptoms. In fact, the Treatment and Assessment Plan (OCF-18) for physiotherapy services notes improvements in A.K.’s headaches and dizziness since her last treatment.10
31In the absence of more current medical evidence supporting A.K.’s requests for treatment in April of 2019, I cannot conclude that the proposed physiotherapy and massage sessions are reasonable and necessary as a result of the accident.
ORDER
32A.K. is not entitled to the benefits in dispute. No interest is payable.
33The application is dismissed.
Released: December 2, 2020
Theresa McGee
Vice-Chair
Footnotes
- Ontario Regulation 34/10.
- Scarlett v Belair Insurance, 2015 ONSC 3635.
- Applicant’s Brief, Tabs 5 and 6: Clinical notes and records of Dr. Danielli dated October 26, 2017 and November 2, 2017.
- Applicant’s Brief, Tab 12: Email from Aviva dated September 25, 2018.
- Applicant’s Brief, Tab 11: Denial letter from Aviva dated May 7, 2018.
- Respondent’s Brief, Tab B: Disability Certificate (OCF-3) dated October 26 and addendum dated November 2, 2017.
- Respondent’s Brief, Tab K: Section 44 GP IE Report of Dr. P. Bansal.
- Applicant’s Brief, Tab 5: Clinical notes and records of Dr. Danielli dated October 26, 2017.
- Applicant’s Brief, Tab 6: Clinical notes and records of Dr. Danielli dated November 2, 2017.
- Respondent’s Brief, Tab I: Treatment and Assessment Plan (OCF-18) dated April 2, 2019.