Released Date: 10/18/2021
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:
Maryam Keshavarz
Applicant
And
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Manreet Pabla, Counsel
For the Respondent:
Alexander Dos Reis, Counsel
Court Reporter:
Professional Court Reporters Inc.
HEARD: by Videoconference:
April 8, 2021, followed by written submissions
OVERVIEW
1M.K. (the “applicant”) was involved in an automobile accident on August 19, 2018, and sought benefits from Aviva Insurance Canada (the “respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The respondent denied the applicant’s entitlement to accident benefits and she submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a half-day videoconference hearing on April 8, 2021, where the applicant cross-examined Johnny Fragnelli, adjuster, and Lesley McPherson, senior claims representative. The parties then filed written submissions.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
i. Is the applicant entitled to a medical benefit in the amount of $3,099.74 for physiotherapy, chiropractic treatment and massage therapy (physical therapy) recommended by MedEx Health Services (MedEx) in a treatment plan (OCF-18) submitted on July 10, 2019?
ii. Is the applicant entitled to interest on overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 as a result of the respondent’s unreasonable denial of the disputed benefit, as well as its delay in approving an OCF-18 for a psychological assessment in the amount of $2,200.00 recommended by MedEx?
RESULT
4After reviewing the parties’ submissions and all of the evidence I find:
i. The OCF-18 for physical therapy recommended by MedEx to be partially reasonable and necessary in the amount of $1,746.02.
ii. The applicant is entitled to interest on the above amount.
iii. The applicant is not entitled to an award on the OCF-18 for physical therapy. She is entitled to an award for the psychological assessment recommended by MedEx. The parties are requested to file additional submissions addressing the quantum of the award.
PROCEDURAL ISSUE
Failure to Provide Particulars on Award -OCF-18 for Physical Therapy
5The respondent argues that the applicant’s submissions and evidence regarding her award claim should be struck from the record because she did not provide full particulars pursuant to the Tribunal’s order dated July 16, 2020. The respondent submits that the applicant’s particulars alleged general claims about her injuries and boilerplate statements about the insurer’s duty of good faith. Further, the particulars did not provide any specific allegations that orthopaedic surgeon Dr. Saplys’ insurer examination (IE) report was flawed. The respondent submits that it had a right to know the case against it before the hearing. The respondent contends that the applicant waited until the hearing when its representatives were cross-examined to raise issues with Dr. Saplys’ IE which was not previously disclosed in her particulars. The respondent claims that this is trial by ambush and to allow these facts to form the basis for an award would deny the respondent’s right to procedural fairness and render this Tribunal’s orders meaningless.
6The applicant argues that she did provide full particulars of her award claim as she alleged that the respondent unreasonably denied and withheld the disputed OCF-18 and did not act in good faith while adjusting her claim. The applicant submits that the respondent’s denial of the disputed OCF-18 for physical therapy was based on the opinion of the IE of Dr. Saplys. Therefore, it should not have come as a surprise to the respondent when its representative was cross-examined about the reason for the denial. In light of my decision on this issue, I decline the respondent’s request to strike the applicant’s submissions and evidence on this issue.
Failure to Provide Particulars on Award -OCF-18 - Psychological Assessment
7The respondent also asserts that the applicant failed to provide particulars regarding her claim for an award in relation to its delay in approving a psychological assessment. Specifically, the applicant never alleged that the respondent failed to provide medical reasons for the denial of this assessment in her particulars. It requests that the applicant’s submissions and evidence also be struck from the record for the same reasons argued above.
8The applicant maintains that the particulars on the award regarding the psychological assessment were clearly articulated in advance of the hearing. The applicant submits that her particulars alleged that the respondent unreasonably denied the OCF-18 for the psychological assessment and that there was a lengthy delay in paying for the OCF-18.
9I decline the respondent’s request to strike the applicant’s submissions and evidence relating to the psychological assessment. I find that the particulars provided to the respondent provided enough clarity regarding the applicant’s position on the award on this issue. I agree with the applicant that the fact the adjuster was questioned about the reasons for its denial of the OCF-18 should not have come as a surprise. In my view, the respondent had the opportunity at the hearing to clarify the adjuster’s testimony in relation to same in its reply examination. In addition, I find the respondent had ample time to address the applicant’s arguments in its responding submissions. Therefore, I do not agree with the respondent that it was denied procedural fairness as it had enough notice and opportunity to defend the case against it.
ANALYSIS
Is the applicant entitled to the OCF-18 in the amount of $3,099.74 for physical therapy recommended by MedEx Health Services?
10I find the OCF-18 is partially reasonable and necessary in the amount of $1,746.02 ($3,099.74 less $1,353.72 for chiropractic treatment).
11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that the benefits are reasonable and necessary.
12The applicant argues that the OCF-18 for physical therapy is reasonable and necessary as she sustained a clavicle fracture as a result of the accident. She submits that she still suffers from ongoing pain in her back and shoulder which has impacted her ability to function. Further, her family doctor and treating clinic has recommended that she receive additional physical therapy. In addition, she maintains that the respondent’s denial of the OCF-18 was based on the flawed IE of Dr. Saplys. She alleges that the doctor erroneously concluded that her back pain was unrelated to the accident. In support of her position that the OCF-18 is reasonable and necessary the applicant relied on disability certificates noting her impairments, assessor’s medical reports, the clinical notes, and records (CNRs) of her family doctor, treating clinic and hospital records.
13The respondent submits that the OCF-18 is not reasonable and necessary as the applicant’s clavicle fracture has healed and she has obtained maximum medical recovery from facility-based treatment. It also asserts that the goals of the OCF-18 will not be achieved because as of the date it was submitted the applicant had achieved full range of motion (“ROM”) and strength in her right shoulder. In addition, it contends that the applicant’s back pain is unrelated to the accident. The respondent relies on the IE reports of Dr. Saplys dated May 24, 2019, August 15, 2019 (paper review) and December 17, 2019 (addendum report). It also relied on surveillance evidence which it submits supports that the applicant was fully functioning when the OCF-18 was submitted. For the following reasons, I agree with the applicant and find the OCF-18 for physical treatment partially reasonable and necessary.
14The OCF-18 dated July 10, 2019 authored by Dr. Duong, chiropractor listed the following accident-related impairments: fracture of the shaft of clavicle, whiplash associated disorder (WAD 2) with complaints of neck pain with musculoskeletal signs, sprain and strain of the thoracic spine, headache, sprain, and strain of other parts of the shoulder girdle, and sprain and strain of the lumbar spine. Dr. Duong recommended the following services: $160.00 for a total body assessment, 12 sessions of chiropractic treatment at a cost of $1,353.72, 9 sessions of physiotherapy at a cost of $897.75 and 12 sessions of massage therapy at a cost of $696.28 for a total cost of $3,099.75, over a duration of 12 weeks. Under activity limitations the OCF-18 states that the patient is struggling with prolonged use of her right arm. The goal of the OCF-18 was pain reduction, increase ROM and increase strength to return the applicant to her activities of normal living and employment tasks. Dr. Duong acknowledged that the applicant had full ROM of her shoulder with pain at end range.
15The case law supports that medical treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function. The medical evidence before me supports that as of the date the OCF-18 submitted the applicant still reported back pain and ongoing problems with her right shoulder. In addition, she reported to assessors that she felt past physiotherapy and massage treatment to be helpful in reducing her pain and enabling her to function. I find the OCF-18 to be reasonable and necessary as the evidence supports that the goals of pain reduction will be achieved.
16I find the applicant’s need for ongoing physical therapy was supported by Dr. Kakavand, her family doctor, as well as by Dr. Garbedian, her treating orthopaedic surgeon. Before and after the OCF-18 was submitted Dr. Kakavand recommended that the applicant receive additional physiotherapy for her right shoulder injury.
17On January 23, 2019, Dr. Duong wrote a letter to the applicant’s family doctor indicating that the applicant had been attending regularly for physiotherapy, chiropractic treatment, massage and acupuncture which had resulted in improvements. Dr. Duong indicated that they had focussed treatment primarily on the applicant’s back and were waiting for further direction from the treating orthopaedic surgeon regarding focussing on heavy lifting to increase strength. On February 21, 2019, Dr. Garbedian indicated in a consultation note that the applicant’s shoulder was finally stable, that her ROM was almost normal, and the doctor recommended that the applicant be more aggressive with physiotherapy. Therefore, I find the goal of strengthening the applicant’s shoulder to be a reasonable objective of treatment.
18The respondent denied the OCF-18 relying on the IE of Dr. Saplys dated May 24, 2019. The purpose of this IE was to assess whether the applicant required attendant care and her entitlement to a non-earner benefit (“NEB”). Dr. Saplys concluded that there was no evidence of a functional impairment as it relates to the applicant’s fractured clavicle and there are no ongoing restrictions or limitations. Further, Dr. Saplys opined that the applicant’s back pain was unrelated to the accident. Dr. Saplys authored a paper review (three months later) and an addendum report (seven months later), in which the doctor concluded that the OCF-18 was not reasonable and necessary because the applicant’s clavicle fracture had reached maximum medical recovery from physical treatment. Dr. Saplys also maintained the opinion that the applicant’s back pain was unrelated to the accident.
19I agree with the applicant that Dr. Saplys’ opinion that her back pain was unrelated to the accident is inconsistent with the medical evidence. The applicant referred to numerous medical documents from the inception of her claim up until the OCF-18 was submitted which supports that she has consistently complained about back pain since the date of the accident. For example, disability certificates dated August 20, 2018 and September 7, 2018 list strain and sprain of the cervical and lumbar spine as an accident related impairment. Further, the applicant reported having moderate to severe back pain to an occupational therapist in an attendant care assessment report dated August 27, 2018. Dr. Saplys conducted an extensive file review which would have included these records. The respondent argues that it was the applicant who reported to Dr. Saplys that her back pain did not start until November 2018. The applicant disputes this fact. Further, no pre-accident CNRs were submitted to support that the applicant had made any prior complaints about her back prior to the accident. I find the applicant’s version of events more consistent with the evidence before me.
20In addition, the purpose of Dr. Saplys’ initial IE was to address whether the applicant required attendant care and was entitled to a NEB, not whether she requires additional physical therapy. The test for entitlement to these benefits are different. No analysis was done regarding how much treatment the applicant had received to date. In this case, the applicant sustained a clavicle fracture of her right shoulder, which is an objective impairment. Further, she consistently complained of ongoing shoulder and back pain. Therefore, I assign very little evidentiary value to Dr. Saplys’ initial IE as it does not address whether the applicant needs additional physical therapy. I also do not find Dr. Saplys’ paper review or addendum reports helpful as these reports were brief and did not provide any context for the past medical treatment the applicant had received or explain how she had achieved maximum medical recovery.
21I also find Dr. Saplys’ IE inconsistent with the IE report of S. Kugathasan, occupational therapist dated May 24, 2019. For example, Dr. Saplys concludes that the applicant’s shoulder fracture did not result in any orthopaedic functional impairment. However, Ms. Kugathasan’s IE noted that physical testing revealed mild and moderate restrictions to the ROM of the applicant’s neck, shoulders and back. Ms. Kugathasan states that the applicant could not demonstrate the functional ROM to maintain hygiene throughout the day as she could not change her bed sheets. However, Ms. Kugathasan then relies on Dr. Saplys’ opinion that the applicant is not functionally limited. Further, both Dr. Saplys and Ms. Kugathasan acknowledge that the applicant had not returned to cycling and swimming. I find the conclusions of the IE assessors about the applicant’s functional abilities to be contradictory. For all of the above reasons, I assign little weight to Dr. Saplys’ opinion.
22The respondent relied on two sets of surveillance conducted one month prior to the submission of the treatment plan and approximately one year later. The surveillance taken one month before shows the applicant working at McDonalds and attending her high school prom. The respondent argues that the surveillance supports that the applicant was fully functioning at the time the OCF-18 was submitted as the applicant is seen filling McDonalds orders and holding onto her prom dates arm with the impaired arm. Therefore, she does not require additional medical treatment. I do not find the surveillance relevant to whether the applicant requires additional physical therapy. While I can understand the relevance to the NEB and attendant care, I do not find that it proves that the applicant does not have ongoing impairments that cause her pain which requires additional treatment. Further, I do not find the surveillance taken a year later relevant to the time-period the disputed OCF-18 was submitted. For these reasons, I have assigned the surveillance little weight.
23The respondent argues that the applicant has not met her onus in proving that she requires chiropractic treatment. I agree with the respondent on this point as her family doctor and orthopaedic surgeon do not recommend it. Further, the applicant reports to assessors that past massage and physiotherapy have been helpful in alleviating her pain, but she does not mention chiropractic treatment at all. As a result, I find the OCF-18 to be partially reasonable and necessary in the amount of $1,746.02 ($3,099.74 less $1,353.72 for chiropractic treatment).
Is the applicant entitled to payment of interest on overdue payment of benefits?
24The applicant is entitled to payment of interest on the portion of the OCF-18 ($1,746.02) which I determined to be partially reasonable and necessary.
25Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the treatment plan is partially reasonable and necessary at the time it was submitted the applicant is entitled to payment of interest payable according to the Schedule.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
26Regulation 664, R.R.O. 1990 (0. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
27It is well established law that when considering whether an insurer's conduct in withholding or denying a benefit warrants an award, an insurer's behaviour must be seen to be "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."
OCF-18 for Physical Therapy
28The applicant argues that the respondent is liable to pay an award because it unreasonably withheld the OCF-18 for physical therapy based on the flawed IE of Dr. Saplys, which conflicted with the other medical documentation in its possession. She submits the respondent’s actions demonstrate that it failed to adjust the applicant’s claim in good faith in denying this benefit.
29The respondent submits that an award is not warranted in this case as it simply relied on the opinion of an IE assessor in denying the OCF-18 for physical therapy which is a position it is entitled to take. Further, it should not be penalized for simply getting it wrong. For the following reasons, I agree with the respondent and do find an award payable in relation to this issue.
30The applicant cross-examined Ms. McPherson, the claims representative responsible for handling the applicant’s claim when the OCF-18 for physical therapy was denied. Ms. McPherson acknowledged that the respondent’s denial of the OCF-18 for physical therapy was based on Dr. Saplys’ IE who determined that the applicant’s clavicle fracture had healed and that the applicant’s back pain was not related to the accident. Ms. McPherson also confirmed that she would have reviewed all of the medical records when handling the applicant’s claim and would not blindly rely on the opinion of an assessor if it was contradicted by medical evidence.
31Ms. McPherson agreed during her testimony that there were medical records which noted back pain following the accident. I agree with the applicant that the respondent has an obligation to review all medical documentation when denying a benefit. However, as already noted the doctor also concluded that the applicant’s clavicle fracture had healed and she did not have any functional orthopaedic impairment. The very purpose of the OCF-18 was to strengthen the applicant’s shoulder not to treat her back pain.
32Although I have determined that Dr. Saplys’ IE was problematic I do not fault the adjuster for relying on the doctor’s opinion in relation to the applicant’s shoulder. In my view, this does not meet the definition of conduct that is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate." Further, I agree with the case law submitted by the respondent which supports that an insurer should not be penalized for getting it wrong or making an incorrect decision.2 Therefore, I do not find an award payable on this issue.
OCF-18 for Psychological Assessment
33The applicant maintains that the respondent’s denial of the OCF-18 for the psychological assessment was unreasonable as it denied the benefit based on no rationale. She submits the psychological assessment was necessary in order to determine whether she required psychological treatment. Moreover, the respondent had multiple opportunities to reconsider its position and approve the psychological assessment. For example, the applicant incurred the psychological assessment and provided a copy of the report to the respondent. Yet, it failed to reconsider its position until August 14, 2020, almost two years after the OCF-18 was submitted. Further, no explanation was provided for why it finally approved the assessment. The applicant submits that two years was an unreasonable delay in approving and paying for the psychological assessment which should have been approved in the first place.
34The respondent argues that an award is not justified for its handling of the psychological assessment as it approved the OCF-18 in good faith. In addition, the applicant has not suffered any prejudice as a result of the delay as the respondent approved an OCF-18 for psychological treatment. Finally, it contends that this Tribunal has determined that a lack of medical reasons in denying a benefit is not grounds for an award.
35I find the respondent is liable to pay an award for its unreasonable denial and delay in paying for the psychological assessment.
36The applicant submitted the OCF-18 in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Fiati, psychologist on September 28, 2018. The goal of the treatment plan was “to identify the psychological impairments resulting from the MVA and tailor a treatment plan to her needs.” Included with the OCF-18 was a psychological pre-screen report.
37The respondent issued an explanation of benefits (EOB) on October 18, 2018, wherein it stated “the treating clinic has enough information to provide the applicant with psychological treatment.” Of significance, no where in the EOB does the respondent expressly state that the OCF-18 for the psychological assessment was being denied. However, under the amount approved on the EOB it stated zero and it provided instructions regarding how to dispute the denial.
38Mr. Fragnelli, the adjuster responsible for handling the OCF-18 was cross-examined and he was asked to clarify why the psychological assessment was not funded. He acknowledged that this was the first request for a psychological assessment received on the applicant’s claim. He also confirmed that he is aware that it is common practice for funding for a psychological assessment to be requested first in order to determine whether psychological treatment is required.
39I did not find Mr. Fragnelli’s testimony helpful in providing a justifiable reason for why the psychological assessment was denied as he simply reiterated the reasons provided on the EOB in explaining why the OCF-18 was denied. I agree with the applicant that there was no reasonable explanation for why the psychological assessment was denied. In my view, denying a benefit based on no rationale is imprudent and meets the definition of unreasonable conduct. Accident victims have a right to understand why important benefits are denied. I find the adjuster breached his duty of good faith to the applicant by arbitrarily denying the psychological assessment which I find unacceptable. In my view, this type of behaviour needs to be deterred.
40I also agree with the applicant that respondent’s two-year delay in approving and paying for the psychological assessment was an unreasonable delay. The respondent had many opportunities to reverse its decision. Instead, I find it maintained a stubborn and inflexible position in denying the benefit and by waiting for two years to finally approve and pay for it.
Quantum of Award
41Neither party made submissions on the appropriate quantum for the award or address the factors I should take into consideration in determining the quantum. Therefore, both parties are requested to file written submissions addressing the quantum of the award according to the following timetable:
Applicant’s submissions due: November 5, 2021
Respondent’s submissions due: November 19, 2021
42The page limits for submissions will be a maximum of 5 pages each, double spaced, 12-point font.
CONCLUSION
43For all of the above reasons, I find:
i. The applicant is entitled to the OCF-18 in the amount of $1,746.02 plus interest on this amount.
ii. The applicant is not entitled to an award for the respondent’s denial of the OCF-18 for physical treatment.
iii. The applicant is entitled to an award for the respondent’s denial of the OCF-18 for the psychological assessment. The quantum of the award is yet to be determined.
Released: October 18, 2021
Rebecca Hines
Adjudicator
Footnotes
- O.Reg. 34/10.
- D.Y. v. Aviva General Insurance, 2020 CanLII 94780, para 33.