Released Date: 11/27/2020
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:
Sarabjit Mann
Applicant
and
Aviva Insurance Company
Respondent
DECISION
PANEL:
Melody Maleki-Yazdi, Adjudicator
APPEARANCES:
For the Applicant:
Loreto Scarola, Paralegal
For the Respondent:
Michael Silver, Counsel
Court Reporter:
[L.P.]
HEARD:
By teleconference and in writing: June 29, 2020
OVERVIEW
1S.M. (“the applicant”) was involved in an automobile accident on May 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”). The respondent denied payments for costs of examinations and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2A case conference was held, and the parties were unable to resolve their dispute. The parties proceeded to a combination hearing comprised of a portion in writing and a portion by teleconference.
3During the teleconference portion of the hearing, I heard evidence from Mr. Ajay Shukla (a senior litigation specialist for the respondent).
ISSUES
4The following issues are in dispute for this hearing:
Is the applicant entitled to payments for cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Tony Toneatto, psychologist, in a treatment plan dated November 16, 2017, denied by the respondent on February 13, 2019?
Is the applicant entitled to payments for cost of examinations in the amount of $2,410.00 for a chronic pain assessment, recommended by Dr. Inese Robertus, physician, in a treatment plan dated February 12, 2019, denied by the respondent on February 13, 2019?
Is the applicant entitled to an award under s. 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not entitled to payment for the psychological assessment in the amount of $2,200.00.
6The applicant is entitled to payment for the chronic pain assessment in the amount of $2,410.00. The applicant is entitled to interest on any overdue payment of the benefit.
7The applicant is not entitled to an award.
ANALYSIS
Compliance with s. 38 of the Schedule
8The parties’ submissions refer to a disagreement over whether the issue regarding the psychological assessment was withdrawn with prejudice by the applicant at a previous case conference in another Tribunal matter involving the same applicant. The applicant disputes the respondent’s claim that this issue was withdrawn with prejudice. Vice Chair Hunter addressed this issue prior to the hearing in his Motion Order dated April 17, 2020, and I agree with his finding. The applicant may proceed with disputing this issue because I do not find that the psychological assessment was withdrawn with prejudice by the applicant.
9The applicant submits that the respondent did not comply with s. 38(8) of the Schedule in regard to the treatment plan for a psychological assessment in the amount of $2,200.00 and dated November 16, 2017. The applicant submits that the respondent did not give the applicant notice within the requisite 10 business days after receipt of the treatment plan.
10Section 38(8) of the Schedule requires the insurer to, within 10 business days after receipt of a treatment plan, give the insured person notice identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for, and to provide the medical and all of the other reasons for any denials.
11Failure to comply with s. 38(8) gives rise to two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline2 (“the MIG”) applies. In this case, the respondent removed the applicant from the MIG, and therefore, s. 38(11)1 is of no consequence. Secondly, under s.38(11)2, an insurer who fails to provide the insured with proper notice of the reasons for denial must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8).
12The applicant submits that the treatment plan was submitted to the respondent on November 16, 2017, and that the assessment was completed on December 1, 2017, which is the 11th business day after the submission of the treatment plan.
13The respondent submits that the applicant’s accident benefits file was with the respondent (Aviva General Insurance, located in Mississauga) and although it has now merged with Aviva Insurance Company of Canada (located in Markham), at the time of the submission of this treatment plan on November 27, 2017, these were two separate legal entities and the Health Claims for Auto Insurance (“HCAI”) were separate as well. Therefore, the respondent submits that the treatment plan was submitted to Aviva Insurance Company of Canada, a separate legal entity, on November 27, 2017 and not the respondent. The respondent submits it cannot reasonably be held that it received this treatment plan in accordance with s. 38(8) and, accordingly, its obligation to respond was not triggered at the time because it did not receive this treatment plan.
14Furthermore, the respondent submits that applicant did not comply with s. 38(2) of the Schedule because the applicant incurred the cost of the treatment plan on December 1, 2017, less than 10 days after the submission of the treatment plan.
15Section 38(2) of the Schedule sets out that an insurer is not liable to pay a medical or rehabilitation benefit, or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s. 38(3). There are four exceptions noted within s. 38(2).
16I find that the evidence demonstrates that the cost of the treatment plan was incurred prior to the submission to the respondent. The applicant did not make any submissions regarding whether the exceptions listed in s. 38(2) apply, and I do not find any of those exceptions are applicable in this case. While I am sympathetic that the expenses were incurred by the applicant, I find that the requirements as set out within s. 38(2) are the law and I do not have the discretion to waive them.
17The respondent relies on s. 64(12) of the Schedule. Section 64(12) sets out the following, “the central processing agency shall, as soon as practicable, make the contents of the document available to the insurer to whom the document is addressed.” The respondent submits that the document was addressed to Aviva Insurance Company of Canada and the respondent was not able nor did it receive or have access to the treatment plan given that Aviva Insurance Company of Canada was a separate legal entity at the time.
18Mr. Ajay Shukla, a senior litigation specialist for the respondent, testified at the hearing. He also provided an affidavit where he submits that the treatment plan was dated November 16, 2017, and was submitted on November 27, 2017 to Aviva Insurance Company of Canada, at the time a different legal entity and not the respondent.
19Mr. Shukla’s affidavit evidence indicates that in late 2017, the respondent and Aviva Insurance Company of Canada were separate and distinct legal entities and were administered completely separately. Therefore, the documents submitted to one entity did not come to the attention of the other entity. He testified that through much of 2017 and 2018, the systems of these distinct insurers were being merged.
20Mr. Shukla testified that Aviva Insurance Company of Canada is located in Markham, while the respondent, Aviva General Insurance, is located in Mississauga. He testified that the administrative staff at each entity cannot see the policies of the other entity. Mr. Shukla testified that the legal entity and the address were wrong on the treatment plan. Therefore, because this treatment plan had the policy number of the respondent yet was sent to Aviva Insurance Company of Canada with the Markham address, it could not have made its way to the respondent located in Mississauga.
21The applicant submits that she resubmitted that treatment plan to the respondent once the error was identified. The respondent then scheduled an insurer’s examination (“IE”) and the IE assessment was completed. Mr. Shukla testified that the treatment plan was not received by the respondent until February 13, 2019. The applicant argues that this date is likely an error on the part of the respondent as the respondent has no evidence to corroborate this information, such as adjuster’s log notes or HCAI logs. Specifically, the applicant submits that the respondent did not produce adjuster’s log notes between October 31, 2017 to October 22, 2018. The respondent has an explanation for why there are no adjuster’s log notes for this period of time. Mr. Shukla testified that during the period when the systems of the two legal entities were being merged, the system was frozen, and no one could enter into the system to enter log notes. He stated that during this time, no notes were recorded on the file, but the file was being adjusted.
22I find that the respondent did not receive the treatment plan for the psychological assessment on November 16, 2017, the date that the applicant submits as the date for submission. I find that the documentation clearly indicates that the applicant’s service provider submitted the treatment plan to Aviva Insurance Company of Canada, a separate legal entity at the time, on November 27, 2017. I find “Exhibit J” of the respondent’s submissions to be crucial to my finding. This exhibit includes a document entitled the “OCF-18 Response Summary” and this document sets out that the treatment plan was sent to Aviva Insurance Company of Canada located in Mississauga and that it was submitted on November 27, 2017. The document also includes information that on November 28, 2017, the status was that the treatment plan was “not approved” and the “adjuster response” section indicates that it was because “supporting information insufficient, incomplete or incorrect.”
23Mr. Shukla testified that this was not actually the adjuster’s response but was rather from the administrative person whose role is to match the correct document to the correct file at the correct legal entity. He submits that due to the limited options in the drop-down menu in HCAI, this was the best response.
24Once the adjuster’s response was provided, neither the applicant nor the respondent knows with certainty whether anyone contacted the service provider or whether the service provider called the file handler to rectify the problem. In any event, the problem was not rectified.
25As noted above, the applicant incurred the cost of the treatment plan on December 1, 2017; however, the respondent was not in receipt of the treatment plan until February 13, 2019. Therefore, I find that the applicant incurred the cost of the treatment plan for the psychological assessment prior to the respondent’s receipt of the treatment plan. I find that as a result of the applicant not complying with the requirements set out within s. 38(2) of the Schedule, the treatment plan in the amount of $2,200.00 is not payable. I have made no finding on whether this expense is reasonable and necessary since I have found this treatment plan not to be payable.
Is the treatment plan for the chronic pain assessment reasonable and necessary?
26The treatment plan for the chronic pain assessment in the amount of $2,410.00 was recommended by Dr. Inese Robertus (general practitioner with a focused practice in interventional pain management). I find that the chronic pain assessment is reasonable and necessary.
27I find that there is evidence before me that, as a result of the accident, the applicant experiences an exacerbation of the constant and/or severe pain that she experienced prior to the accident.
28I agree with the applicant’s submissions that her physical issues were under control and resolving in the several months before the accident.
29I have been provided with the clinical notes and records from the applicant’s family physician from as early as January of 2012. The records indicate that the applicant is an individual who frequently visits her family physician’s office. The record dated January 26, 2012, mentions the applicant’s pain and the family physician assesses that the applicant experiences headache/insomnia, as well as neck/shoulder sprain. After that date, the records from later visits include mention of headache/insomnia symptoms. By March 8, 2014, the family physician assesses that the applicant has Chronic Pain Syndrome. He makes further assessments of Chronic Pain Syndrome on the following dates: April 2, 2014; May 1, 2014; June 10, 2014; October 20, 2014; December 15, 2014; January 12, 2015; July 3, 2015; August 6, 2015; September 2, 2015; October 7, 2015; January 6, 2016; and April 4, 2016.
30Furthermore, the family physician assesses that the applicant has chronic neck/back sprain on the following dates: March 30, 2015; June 22, 2016; August 10, 2016; September 28, 2016; and December 9, 2016. The applicant continued to frequently visit with her family physician after December 9, 2016; however, the family physician did not continue to assess her for either Chronic Pain Syndrome or chronic neck/back sprain from the period of December 9, 2016, until the time of the accident. Therefore, considering how frequently the applicant visits with her family physician, the fact that there are no further assessments of either Chronic Pain Syndrome or chronic neck/back sprain during this period demonstrates that she was not experiencing constant and/or severe pain from about five months prior to the accident.
31Following the accident, the applicant’s family physician made an assessment of Chronic Pain Syndrome on October 30, 2017. On November 17, 2017 (approximately six months following the accident), she was assessed as having Chronic Pain Syndrome. Further assessments of Chronic Pain Syndrome were made on the following dates: December 15, 2017; January 15, 2018; and February 26, 2018.
32There is evidence that the applicant experiences some functional limitations as a result of physical pain caused by the accident. The applicant was assessed by Dr. Hashmat Khan (general practitioner), an IE assessor, on November 9, 2017 (approximately 5.5 months after the accident). In a report dated November 17, 2017, the applicant reported to Dr. Khan that her pre-accident housekeeping and home maintenance chores included cooking, cleaning, laundry, and groceries; however, at the time of the assessment she reported not being able to do any household chores due to her pain. She reported that she independently completes her personal care tasks, but with pain.
33Dr. Tony Toneatto (psychologist) supervised and Mr. Arshad Mahmood (registered psychotherapist) assessed the applicant on December 1, 2017 (approximately six months following the accident). In a report dated December 27, 2017, Dr. Toneatto noted that the applicant reported living with both of her parents and her in-laws. She reported that prior to the accident, she would take care of all of the cooking for her family on a daily basis. She reported that she would regularly attend temple with her family. Following the accident, she reported no longer being able to perform her housekeeping and home maintenance tasks independently due to her pain and physical limitations. She reported requiring assistance with cooking, cleaning and mopping. Following the accident, she reported that she occasionally attends temple for shorter durations because during service she was required to sit on the floor cross-legged for an extended period of time.
34Dr. Todd Walters (general practitioner) completed an IE assessment on May 30, 2019 (approximately two years following the accident). In the report dated July 3, 2019, Dr. Walters opined that the applicant appeared to suffer from Major Depressive Disorder recurrent in the pre-accident time period along with chronic pain and inflammatory bowel disease. He concluded that a chronic pain evaluation in the context of the strain injury sustained at the time of the accident was neither reasonable nor necessary. He opined that there was no indication of any underlying pathology or indication for a chronic pain evaluation. Dr. Walters acknowledged that the applicant appeared to suffer from chronic pain in the pre-accident time period; however, he concluded that a chronic pain evaluation was neither reasonable nor necessary. I disagree with Dr. Walters’ conclusion. As noted above, I find that the applicant experiences an exacerbation of the constant and/or severe pain that she experienced prior to the accident and that she is entitled to a chronic pain evaluation.
35The applicant was assessed by Dr. Shari Schwartz (psychologist) on June 18, 2019 (approximately two years following the accident). In a report dated July 3, 2019, Dr. Schwartz diagnosed the applicant with Major Depressive Disorder and a Somatic Symptom Disorder with Predominant Pain. Dr. Schwartz noted that the applicant reported that her activity level has changed since the accident and that she is not fully independent with regard to self-care and personal hygiene activities, and sometimes she needs help from her husband in this regard. Prior to the accident, she reported doing the laundry, cooking, cleaning and gardening. She stated that her husband now does the laundry, her mother-in-law does the cooking, her husband and mother-in-law do the cleaning, and her husband does some gardening. She reported that she does some light household chores such as a little dusting, wiping the countertops and arranging the pots and pans on the counters, while her husband puts them in the dishwasher.
36The applicant also told a number of assessors that she struggles with her sleep as a result of pain. The report of Dr. Jagtaran Singh Dhaliwal (the applicant’s psychiatrist) dated June 8, 2017, noted that he had given the applicant medication for sleep because of the accident. She told Dr. Toneatto that she wakes up often during the night due to pain and discomfort. She told Dr. Schwartz that her sleep is disturbed, and she wakes up every 30 to 60 minutes because of pain. She reported that since the accident, she takes sleep medication on prescription from her psychiatrist, which helps her sleep from two to three hours.
37Therefore, there is compelling evidence that the applicant requires an assessment for chronic pain to provide a diagnosis and recommendations for recovery.
Is the applicant entitled to an award under Regulation 664?
38Pursuant to s. 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.
39I find that an award is not warranted.
40The applicant submits three reasons in support of her claim for an award. First, the respondent failed to recognize the extreme deficiencies in the IE report of Dr. Schwartz and should have identified that Dr. Schwartz was completely unaware that the report of Dr. Toneatto was to be the focus of her assessment and not a request for a second psychological assessment.
41Secondly, the applicant submits that it is highly suspect that the adjuster’s log notes are missing an entire year of entries and that the respondent’s unsupported explanation for this omission is questionable. The applicant submits that the log notes end on October 27, 2017 and begin once again October 23, 2018. The applicant submits that she was unaware of Aviva’s multiple legal entitles and that someone at Aviva should have advised the applicant and the service provider accordingly. The applicant submits that this shows a lack of fiduciary responsibility by the respondent and bad faith towards the policy holder.
42Thirdly, the respondent should have identified the copious mentions of Chronic Pain Syndrome in the family physician’s clinical notes and records and should have granted the request for a chronic pain assessment. The applicant submits that the IE assessor, Dr. Walters, has no stated experience in the area of chronic pain and that the applicant gave the respondent an opportunity to provide her with Dr. Walters’ curriculum vitae (“CV”) and it did not do so.
43I find that there is no evidence that the respondent unreasonably withheld or delayed the payments of benefits. I have already found that the applicant is not entitled to the cost of the psychological assessment due to her non-compliance with s. 38(2) of the Schedule, and consequently, the respondent is not liable to fund the plan. As I noted above, I do not have the discretion to waive the requirements as set out within s. 38(2).
44Although I have found that the applicant is entitled to the chronic pain assessment, the parties’ disagreement over the entitlement does not automatically rise to the level of bad faith contemplated by s. 10. It was appropriate for the respondent to issue and maintain its denial of the treatment plan based on the medical evidence and reports available. Regarding the applicant’s submissions that she was not provided with Dr. Walters’ CV, the respondent submits that Dr. Walters’ IE report includes a detailed discussion of his experience and that the CV would not provide any additional information. I agree with the respondent’s further submissions that if the applicant felt the need to obtain the CV, then the applicant could have brought a motion for an order regarding its production.
45Therefore, the applicant is not entitled to an award.
CONCLUSION
46The applicant is not entitled to payment for the psychological assessment in the amount of $2,200.00.
47The applicant is entitled to payment for the chronic pain assessment in the amount of $2,410.00. The applicant is entitled to interest on any overdue payment of the benefit.
48The applicant is not entitled to an award.
Released: November 27, 2020
____________________
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.