Citation: Ratnasabapathy v Aviva General Insurance Company of Canada, 2021 ONLAT 19-012578/AABS

Licence Appeal Tribunal File Number: 19-012578/AABS

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:

Rishian Ratnasabapathy

Applicant

and

Aviva General Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Aurora Mancuso, Counsel

For the Respondent:

Mohamed Hashim, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Rishian Ratnasabapathy, was involved in an automobile accident on January 16, 2016, in which he was struck, as a pedestrian, by a vehicle in a gas station parking lot. The vehicle drove over the Mr. Ratnasabapathy’s left foot and X-Ray of his left foot revealed that he had sustained a fracture of his big toe. Mr. Ratnasabapathy sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Mr. Ratnasabapathy was denied certain benefits by the respondent, Aviva General Insurance Company of Canada (“Aviva”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2Aviva denied Mr. Ratnasabapathy’s claims because it took the position that the disputed treatment plans are not reasonable and necessary.

ISSUES

3The issues I am asked to determine are:

a. Is Mr. Ratnasabapathy entitled to $3,143.32 for psychological treatment, recommended by All Health Medical Centre, in a treatment plan (“OCF-18”) submitted on March 22, 2018, and denied by the respondent on April 5, 2018?

b. IsMr. Ratnasabapathy entitled to $700.00 for orthotics, recommended by All Health Medical Centre, in an OCF-18 submitted on December 7, 2018, and denied by the respondent on December 24, 2018?

c. Is Mr. Ratnasabapathy entitled to the assessments recommended by All Health Medical Centre as follows:

i. $2,260.00 for a chronic pain assessment, in an OCF-18 submitted on September 25, 2019, and denied by the respondent on October 7, 2019; and

ii. $2,520.00 for a physiatry assessment, in an OCF-18 submitted on November 21, 2018, and denied by the respondent on January 29, 2019?

d. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

e. Is Mr. Ratnasabapathy entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

Result

4Based on the evidence before me, I find that Mr. Ratnasabapathy is entitled to the following disputed treatment plans:

a. $700.00 for orthotics, recommended by All Health Medical Centre, in an OCF-18 submitted on December 7, 2018, and denied by the respondent on December 24, 2018; and

b. $2,520.00 for a physiatry assessment, in an OCF-18 submitted on November 21, 2018, and denied by the respondent on January 29, 2019?

5As a result, Mr. Ratnasabapathy is entitled to interest for the treatment plans that were found to be reasonable a necessary pursuant to s. 51 of the Schedule.

6Mr. Ratnasabapathy is not entitled to an award under s. 10 of O. Reg. 664.

LAW and ANALYSIS

Mr. Ratnasabapathy’s entitlement to $3,143.32 for psychological treatment

7I find on the evidence that Mr. Ratnasabapathy is not entitled to the treatment plan for psychological services, as it is not reasonable and necessary.

8In order for Mr. Ratnasabapathy to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 14-16. An OCF-18 was completed by psychologist, Dr. Ilya Gladshteyn on March 19, 2018 and submitted on March 22, 2018. The purpose of the treatment plan was for Mr. Ratnasabapathy to undergo 10 additional psychotherapy sessions following his initial 8 sessions. Dr. Gladshteyn noted that Mr. Ratnasabapathy was “still exhibiting severe symptoms of anxiety and depressed mood, we are recommending an additional ten sessions to address his in-vehicular anxiety and depressed mood via the implementation of principles of systematic desensitization, breathing techniques, grounding techniques, exposure exercises, and cognitive appraisal and re-appraisal”. Dr. Gladshteyn further noted that Mr. Ratnasabapathy was “still experiencing feelings of low mood related due to his physical pain, and experiencing fear while driving. But he is worried whether he can get back to his pre-accident level of functioning. His mood also is reasonably affected by his current physical problems and driving phobia”.

9Aviva advised Mr. Ratnasabapathy on April 5, 2018, that it was not approving funding and scheduled an Insurer Examination (IE) pursuant to s. 44 of the Schedule. Mr. Ratnasabapathy underwent an IE with Dr. Ralph Lubbers, and in his report dated June 18, 2018, he concluded that Mr. Ratnasabapathy’s previously diagnosed DSM-5 Adjustment Disorder with Anxiety had improved to at least a mild level. Mr. Ratnasabapathy reported that he participated in the recommended psychological treatment but that this had not been of significant benefit in improving his primary complaint, that is “the great left toe pain”. Mr. Ratnasabapathy denied interest in further psychological treatment. Dr. Lubbers concluded that given Mr. Ratnasabapathy’s increased activity involvement, and disinterest in further psychological intervention, sufficient psychological treatment had been provided to address his accident-related injuries.

10Dr. Lubbers opined that Mr. Ratnasabapathy had achieved maximal psychological improvement. As such, the current evaluation did not reveal a requirement for further psychological/mental health intervention to assist in recovery from accident related injury.

11Dr. Lubbers assessed Mr. Ratnasabapathy again to address whether a psychological assessment was reasonable and necessary. In his report dated September 18, 2020, Dr. Lubbers found that “psychometric testing overall would suggest an improvement in reported psychological complaints, such that at this time Mr. Ratnasabapathy’s diagnosed DSM-5 Adjustment Disorder with Anxiety appears to have further improved to extremely mild or a subsyndromal level.” Once again, Mr. Ratnasabapathy expressed disinterest in formal mental health intervention, and Dr. Lubbers concluded that he would not benefit from further psychological or other mental health intervention.

12Aviva submits that none of the four the disputed treatment plans in this application are reasonable and necessary. Aviva states that this OCF-18 is of no assistance, as Mr. Ratnasabapathy admitted that he was not interested in psychological treatment, and Dr. Lubbers soundly rejected further treatment.

13Mr. Ratnasabapathy submits that while he had expressed a disinterest in mental health intervention, Dr. Lubbers acknowledged that he continued to meet the DSM-5 criteria for an Adjustment Disorder with Anxiety, in his report, dated September 18, 2020. Therefore, it could be detrimental to Mr. Ratnasabapathy’s health to deny him access to further psychological treatment.

14Based on the evidence before me, I am not persuaded that this treatment plan is reasonable and necessary. Mr. Ratnasabapathy underwent 8 psychotherapy sessions, and he informed Dr. Lubbers on two separate occasions that he denied current interest in further psychological treatment to address his accident injuries. I am not persuaded by Mr. Ratnasabapathy‘s position that it could be detrimental to his health to deny him access to further psychological treatment. The denial of this treatment plan is based on Mr. Ratnasabapathy’s psychological functioning at one point in time, as well as his disinterest in further psychological treatment. There is nothing preventing Mr. Ratnasabapathy from seeking further psychological treatment if his accident related psychological condition deteriorates, and if he is interested in undergoing this type of treatment.

Mr. Ratnasabapathy’ entitlement to orthotics

15I find on the evidence that Mr. Ratnasabapathy is entitled to the treatment plan for orthotics as it is reasonable and necessary.

16An OCF-18 dated November 1, 2018, in the amount of $700.00 for the cost of orthotics was prepared by Dr. Ray Zatzman, a physician at All Health Medical Centre. The breakdown for the OCF-18 is, $200 for documentation support activity for claim form, and $500.00 for custom made orthotics-arch support.

17Aviva denied the OCF-18 on December 18, 2018, and requested that the Mr. Ratnasabapathy undergo an IE. Aviva advised Mr. Ratnasabapathy that “Multiple providers, specialists, consultations, or referrals occur without an apparent documented explanation in the clinical records of the medical necessity.”

18Mr. Ratnasabapathy submits that his previously provided orthotics had worn down with time, leading to the requirement of new orthotics. Mr. Ratnasabapathy further submits that it is not unreasonable to require new orthotics over years of usage.

19Aviva submits that Mr. Ratnasabapathy was previously provided with an approval for orthotics, nearly double the current value of the proposed new orthotics, and that Mr. Ratnasabapathy’s family physician, Dr. Jayarajah did not endorse orthotics in 2018. Aviva also stated that this plan is a near duplicate of a previously approved plan dated September 9, 2016, by Dr. Zatzman, requesting orthotics at a cost of $1,130.00.

20Mr. Ratnasabapathy submitted in his reply submissions that Dr. Jayarajah did endorse orthotics on September 6, 2017 and September 7, 2017, and that Dr. Kachooie, Physiatrist and Pain Specialist, did endorse custom-made insoles on December 11, 2018.

21Mr. Ratnasabapathy underwent the IE with physiatrist Dr. Andrzej Gwardjan. Aviva submits that the physiatry assessment report completed by Dr. Gwardjan on March 13, 2019, concluded that Mr. Ratnasabapathy had reached maximum medical improvement. Aviva states that Dr. Gwardjan also noted that Mr. Ratnasabapathy underwent multiple assessments and previously received prescription foot orthotics. Dr. Gwardjan opined that additional assessments, as well as further foot orthotics, were considered not reasonable and necessary.

22The medical evidence demonstrates that on August 18, 2016, internist and podologist, Dr. Leslie Goldenberg, diagnosed Mr. Ratnasabapathy as suffering from post-traumatic arthritis of his left big toe, and reflex sympathetic dystrophy/chronic regional pain syndrome in his left foot. He prescribed a cane and forefoot rockered footwear, with a soft insole linear, and a long arch support.

23On February 12, 2017, Mr. Ratnasabapathy underwent a CT scan of his left foot which revealed an irregularity of the healed fracture, soft tissue thickening and a small bone fragment, and the radiologist wondered whether this could be affecting his joint function. On March 9, 2016, Mr. Ratnasabapathy underwent an x-ray on his left foot, which revealed a bony fragment in the big toe. The radiologist noted the following in reference to the x-ray: “has a chronic appearance” and was suspected to be related to an “old fracture injury”.

24On September 15, 2017, orthopaedic surgeon Dr. David Santone, opined that Mr. Ratnasabapathy suffered from left first metatarsophalangeal arthritis and recommended that he undergo an injection into the affected toe. Mr. Ratnasabapathy received the recommended injection on October 26, 2017.

25The medical evidence also shows that Mr. Ratnasabapathy was seen by his family physician Dr. Jayarajah on August 18, 2016, and Dr. Jayarajah indicates “notes for shoes given”. On September 28, 2016, a prescription for custom made orthotics/orthotic shoes for posttraumatic arthritis of the left foot/ metatarsalgia was noted. On August 16, 2017, Mr. Ratnasabapathy saw Dr. Jayarajah again ant under the “plan” section it was noted the he “wear[s] orthotics”.

26An IE orthopaedic assessment addendum report dated March 20, 2018, completed by orthopaedic surgeon, Dr. Soon-Shiong, indicated that “With the provision of the high box toed shoes and the custom orthotics that were provided to him, no other medical devices, physical therapy or chiropractic treatments are warranted.”

27I was not directed to evidence that this treatment plan in dispute was a duplication of the plan requested on September 9, 2016. That said, it is not unreasonable that a patient requiring orthotics, may require new orthotics every couple of years, as the old ones are likely to wear down over time. Based on the medical evidence before me, I am persuaded by Mr. Ratnasabapathy’s evidence that on a balance of probability, the treatment plan for new orthotics is reasonable and necessary. Since the motor vehicle accident, Mr. Ratnasabapathy has been seen by multiple specialists for his foot injury and a variety of interventions were recommended. Mr. Ratnasabapathy’ family doctor prescribed custom orthotics in September 2016, and, in August 2017, his doctor recommended that he continue to wear his orthotics. No time frame was provided for how long he was required to wear the custom orthotics. Given that Mr. Ratnasabapathy’s diagnosis of posttraumatic arthritis of the left foot is unlikely to improve over time, it’s not unreasonable to assume that Mr. Ratnasabapathy may need custom orthotics indefinity or as long as he has symptoms. I am not persuaded by Aviva’s evidence that further orthotics are not reasonable and necessary.

Mr. Ratnasabapathy’s entitlement to a chronic pain assessment

28I find on the evidence that Mr. Ratnasabapathy is not entitled to the treatment plan for a chronic pain assessment, as it is not reasonable and necessary.

29An OCF-18 in the amount of $2,260.00 for a chronic pain assessment, recommended by Dr. Inese Robertus, a physician at All Health Medical Centre, was submitted on September 25, 2019, and denied by the respondent on October 7, 2019. The OCF-18 noted the following: “Due to the injuries patient reports difficulty with completing self care and housekeeping tasks. Any activity that requires bending, kneeling, pushing, pulling aggravates the injuries. Patient also reports difficulty sleeping due to ongoing pain”.

30Mr. Ratnasabapathy underwent an IE with physiatrist Dr. Gwardjan to determine whether this OCF-18 was reasonable and necessary. In his report dated February 10, 2020, he opined that, “From a physical perspective, my only suggestion to optimize Mr. Ratnasabapathy’s gait pattern is to consider shoe modifications in the form of a rocker sole. I do not have any other recommendations or comments”.

31Mr. Ratnasabapathy submits that in 17-007825 v. Aviva Insurance Canada, the Tribunal recognized that chronic pain should be assessed against six criteria, of which three must be met for a diagnosis. Mr. Ratnasabapathy submits that he has continuously complained to multiple medical practitioners of his continued physical pain and psychological sequelae for nearly five years. He had been diagnosed with chronic pain syndrome by multiple medical practitioners, including Dr. Francia Jayarajah and Dr. Leslie Goldenberg. Finally, Mr. Ratnasabapathy claims that he continues to report functional difficulties, especially regarding his ability to work. He continues to report sleep difficulties due to pain and anxiety, and being more cautious as a pedestrian.

32Aviva submits that this plan is a duplicate of a previously denied plan dated July 17, 2017, by Dr. Robertus, requesting a chronic pain assessment at the same cost.

33Aviva referenced M.N.M. v. Aviva Insurance Canada, where chronic pain is described as more than the mere repetition of pain complaints: “Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain.” To find chronic pain, the Tribunal applied the six criteria found in the 6th edition of the American Medical Association (AMA) Guidelines, which stipulates a minimum of three of the following six criteria must be present 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 contracts;

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

6. development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviours.

34Aviva submits that Mr. Ratnasabapathy has satisfied none of these criteria, as there was no evidence of abusive or dependant prescription drug-use, and no evidence of any dependency on health care providers. Aviva further submits that Mr. Ratnasabapathy has not provided any evidence of his withdrawal from society.

35Aviva also submits that this treatment plan is a duplicate of the previous OCF-18 dated July 17, 2017. Mr. Ratnasabapathy produced this OCF-18 in his reply submission. In comparing both treatment plans, both request the same proposed goods and services, however, the additional comments sections are different. The OCF-18 in dispute, however, only references clinical notes and records (CNR) from August 18, 2016 to September 26, 2017, and it did not include any updated medical information from 2018 and 2019.

36Mr. Ratnasabapathy has the onus of proving that this treatment plan was reasonable and necessary at the time it was requested. Mr. Ratnasabapathy has failed to persuade me that he meets three of the six criteria for a chronic pain diagnosis for the following reasons: 1) Mr. Ratnasabapathy has failed to specify which of the three criteria applies to his condition; 2) despite stating that Mr. Ratnasabapathy has continuously complained to multiple medical practitioners of his continued physical pain and psychological sequelae for nearly five years, he has failed to direct me to this evidence; 3) Mr. Ratnasabapathy states that he has been diagnosed with chronic pain syndrome by multiple medical practitioners, including Dr. Jayarajah and Dr. Goldenberg. I was not presented with any evidence that these practitioners diagnosed him with chronic pain syndrome set out by the AMA Guidelines; and 4) Mr. Ratnasabapathy claims that he continues to report functional difficulties in his life, yet I was not presented with this evidence. There is simply insufficient evidence to persuade me that Mr. Ratnasabapathy has met the threshold for a chronic pain diagnosis.

37Having found that this treatment plan is not reasonable and necessary, I will not conduct an in-depth analysis on whether this treatment plan is a duplicate of a previous treatment plan. It should be noted however, that there are differences in the additional comments sections of both treatment plans, therefore, it is unlikely that it is a complete duplication.

Mr. Ratnasabapathy’s entitlement to a physiatry assessment

38I find on the evidence that Mr. Ratnasabapathy is entitled to the treatment plan for a physiatry assessment, as it is reasonable and necessary.

39An OCF-18, in the amount $2,520.00 for a physiatry assessment recommended by Dr. Ali T. Ghouse, a physician at All Health Medical Centre, was submitted on November 21, 2018, and denied by the respondent on January 29, 2019. In Part 8 of the OCF-18 (Activity Limitations), the following was noted: “Patient reports difficulty with the following: prolonged sitting, standing, walking, squatting, kneeling, pushing, pulling, prolonged overhead activity. All of the above interferes with patient's ability to perform pre-MVA everyday activities”.

40Mr. Ratnasabapathy underwent an IE with physiatrist Dr. Gwardjan for this treatment plan, and the Physiatry Report was dated March 13, 2019.

41Mr. Ratnasabapathy submits that Dr. Gwardjan’s physiatry IE report should be given little weight, as he opined that the Mr. Ratnasabapathy’s back pain “was secondary to his altered gait pattern, which was caused by his left forefoot injury” and found that the OCF-18 was not reasonable or necessary as there was “no evidence of ongoing motor vehicle accident-related musculoskeletal impairment.”

42Dr. Gwardjan lists Mr. Ratnasabapathy’s complaints as follows: ongoing left great toe pain, which is constant, being aggravated by weightbearing, low back pain and right foot pain. Mr. Ratnasabapathy’s gait analysis revealed a shortened stance phase of the gait on the left side and no toe-off push on that side. Dr. Gwardjan concluded that, “despite reported persistent symptoms, there was no evidence of ongoing musculoskeletal motor vehicle accident-related impairment”.

43Dr. Gwardjan concluded that Mr. Ratnasabapathy’s accident-related diagnoses include a crush injury to his left forefoot with a fracture at the first MTP base and “mechanical” low back pain secondary to an altered gait pattern. Dr. Gwardjan opined that “from a musculoskeletal perspective revealed no evidence of ongoing motor vehicle accident-related physical impairments and as such the claimant has reached maximum medical recovery”. Dr. Gwardjan recommended that “[f]rom a physical perspective, my only suggestion to optimize Mr. Ratnasabapathy’s gait pattern is to consider shoe modifications in the form of a rocker sole.”

44In determining whether an assessment is reasonable and necessary, it is important to note that the assessments are generally exploratory by nature. The purpose of an assessment is to determine whether or not a condition exists. Despite assessments being exploratory by nature, the applicant still bears the onus of establishing on a balance of probabilities, that an assessment is reasonable and necessary. In order to discharge this onus, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment.

45I find that the Mr. Ratnasabapathy has satisfied that onus. Dr. Ghouse recommended a physiatry assessment because Mr. Ratnasabapathy’s complaints interfered with his ability to perform pre-accident everyday activities. Given that I have also found that Mr. Ratnasabapathy is entitled to new orthotics to help him with his accident-related injury, it is not unreasonable to infer that a person suffering from an altered gait like Mr. Ratnasabapathy, may require a further assessment such as a physiatry assessment to determine if there is a change in his condition, or if further treatment may be warranted. I am not persuaded by Aviva’s evidence. I find Dr. Gwardjan’s IE report to be contradictory. It is difficult to reconcile that he found no evidence of ongoing accident-related physical impairments, but also found that Mr. Ratnasabapathy’s low back pain was secondary to his altered gait pattern, which was caused by his left forefoot accident-related injury.

Mr. Ratnasabapathy’s entitlement to an Award.

46Section 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, Mr. Ratnasabapathy seeks an award in the amount of $4,311.66 based on Aviva’s failure to address the disputed OCF-18s, in a timely manner.

47It 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.

48I don’t find that Aviva acted unreasonably towards Mr. Ratnasabapathy, it relied upon IE assessors’ reports. I may not agree with the findings of some of those IE reports, in light of the evidence, but that does not mean that Aviva’s conduct warrants an award under s.10. Therefore Mr. Ratnasabapathy is not entitled to an award regarding the orthotics and physiatry assessment.

49Mr. Ratnasabapathy is not entitled to any other medical benefit in dispute and, therefore, no payment of these benefits was not withheld or delayed.

50Therefore, I find that Mr. Ratnasabapathy is not entitled to an award under O. Reg. 664.

51Mr. Ratnasabapathy is claiming that Aviva’s denials were deficient as they failed to comply with ss. 38(8) and 44(5) of the Schedule. It should be noted that this was not listed as an issue in dispute ,and would have been more suitably addressed as a preliminary issue. Mr. Ratnasabapathy should have raised this argument at the case conference so that Aviva could have had the opportunity to either respond or remedy the notices. Aviva responded Mr. Ratnasabapathy’s claims in its response submission and therefore, I will determine the issue based on the evidence provided by the parties.

52Mr. Ratnasabapathy states that Aviva has not complied with s. 38(8) for two reasons: (1) it did not respond to the OCF-18 dated November 1, 2018 within 10 business days as required, and (2) did not provide medical reasons for their denials of treatment, nor for the reasonableness of their proposed three IEs in their letters, dated April 12, 2018, December 19, 2018, January 29, 2019, October 1, 2019, and December 16, 2019.

53Mr. Ratnasabapathy relies on Ferawana v. State Farm Mutual Automobile Insurance Company, where it was held that because the insurer failed to meet its procedural obligations as set out in s.38(8) of the Schedule, there was no need for the insured to show that the request for treatment was reasonable and necessary. Mr. Ratnasabapathy submits that State Farm’s breach of the ten-day deadline for responding to the OCF-18 triggered the mandatory payment provisions under s. 38(11) and because Aviva has also breached the ten-day requirement, the mandatory consequences apply.

54It should be noted that Mr. Ratnasabapathy has failed to specify which treatment plan he is claiming was responded to late. There are two OCF-18s in dispute that are dated November 1, 2019, (orthotics and a physiatry assessment). According to the explanation of benefit (EOB) provided by Aviva on December 19, 2019, the OCF-18 for orthotics was received December 7, 2019, and the OCF-18 for the physiatry assessment was received November 21, 2019. Given that I have found both treatment plans to be reasonable and necessary, there is no need to go through the analysis on whether these plans were compliant with s.38(8) and (11).

55It should be further noted that Mr. Ratnasabapathy has also failed to specify Aviva’s responses to which treatment plans were deficient due to Aviva’s failure to give medical reasons for the denials. Upon review of all of the EOBs provided by the parties, it appears that Mr. Ratnasabapathy is claiming that all of the initial denials for the issues in dispute in this application are deficient. I will not address the EOBs for the physiatry assessment and orthotics as I have already found these treatment plans to be payable. The remaining treatment plans in dispute, issues a and c (i) will be addressed.

56Mr. Ratnasabapathy submits that Aviva’s reason that, “The frequency of care does not generally diminish over time” does not provide any specific details about Mr. Ratnasabapathy’s medical condition forming the basis of their denial. Mr. Ratnasabapathy states also that the following reasons: “Multiple providers, specialists, consultations, or referrals occur without an apparent documented explanation in the clinical records of the medical necessity” was the same generic phrase used to deny treatment and require IEs for three separate treatment plans. Finally, Mr. Ratnasabapathy relies on the Reconsideration Decision M.B. v. Aviva Insurance Canada, that held that with respect to both s. 44(5) and s. 38(8), an insurer’s “medical and any other reasons” should, at the very least, include specific reasons about the insured’s condition forming the basis of their decision.

57Aviva submits that the language used in the initial denial letters of April 5, 12, December 4, 18, 19, 2018, and January 29, October 1, 15, and December 16, 2019, was compliant. Aviva further submits that it is clear that it denied the treatment plans due to a lack of supporting medical evidence and the denials are sound.

58Aviva submits that should the Tribunal deem the initial denials as noncompliant, such a finding does not create an automatic entitlement to the benefits claimed. On the contrary, a finding of non-compliance opens a technical window of exposure, wherein Mr. Ratnasabapathy can incur the treatment claimed, and the insurer would have to pay until a subsequent denial letter cured a deficiency.

59Aviva submits that should this Tribunal find its initial denial letters noncompliant, it is most assuredly cured by the subsequent denial letters dated July 4, 2018, March 22, 2019, and February 11, 2020, as the reasons are properly supported by IE reports, and the denials are maintained as not reasonable and necessary.

60Lastly, Aviva submits that Mr. Ratnasabapathy has not furnished any invoices or proof of incurred services. Therefore, in the event that the Tribunal identifies a brief window of technical exposure between Aviva's initial and subsequent denials, Aviva submits that no “award” can be made, or in other words, no benefits are payable, as there is no proof the Mr. Ratnasabapathy ever incurred the treatment claimed in that period.

61The EOB dated April 5, 2018 and April 12, 2018 for psychological treatment (issue a) provided the following medical reason for the denial “Frequency of care does not generally diminish over time”. The subsequent EOB dated July 4, 2018 included the IE report completed by Dr. Lubbers where he determined that the treatment recommended was not reasonable and necessary for the injuries sustained in the motor vehicle accident.

62The EOB dated October 1, 2019 for a chronic pain assessment (issue c (i)) provided the following medical reasons “Multiple providers, specialists, consultations, or referrals occur without an apparent documented explanation in the clinical records of the medical necessity.” The subsequent EOB February 11, 2020 concluded that it was not reasonable and necessary, based on the IE report of Dr. Gwardjan dated February 10, 2020.

63I find that both EOBs dated April 12, 2018 and October 1, 2019, fail to include specific reasons about Mr. Ratnasabapathy’s condition forming the basis of Aviva’s decision. Neither EOB make reference to Mr. Ratnasabapathy’s medical condition, and are in violation of s. 38(8,) and are therefore deficient denials. I also find that subsequent EOBs dated July 4, 2018 and February 11, 2020 (respectively), cured the deficiency by including the IE reports which opined that the treatment plans recommended were not reasonable and necessary from the injuries sustained in the motor vehicle accident. I disagree with Aviva’s position that no benefits are payable, as there is no proof that Mr. Ratnasabapathy ever incurred the treatment claimed in that period. I find that the benefits are payable if Mr. Ratnasabapathy provides the invoices related to the services described in the OCF-18s in dispute during the period when the denials were deficient. Therefore, Aviva shall pay for any psychological treatment received Mr. Ratnasabapathy between April 6, 2018 (the 11th business day after it was submitted) and July 4, 2018 (the day medical reason for the denial was provided). Aviva shall also pay for any services related to the chronic pain assessment received by Mr. Ratnasabapathy between October 10, 2019 (the 11th business day after it was submitted) and February 11, 2020 (the day medical reason for the denial was provided). Within 30 days of the Tribunal’s decision being released, Mr. Ratnasabapathy shall provide Aviva with invoices of these services being received during this timeframe.

CONCLUSION

64For the reasons outlined above, I find that Mr. Ratnasabapathy has demonstrated that he is entitled to the following disputed treatment plans:

a. $700.00 for orthotics, recommended by All Health Medical Centre, in an OCF-18 submitted on December 7, 2018, and denied by the respondent on December 24, 2018; and

b. $2,520.00 for a physiatry assessment, in an OCF-18 submitted on November 21, 2018, and denied by the respondent on January 29, 2019?

65Interest is payable for the treatment plans that were found to be reasonable and necessary pursuant to s. 51 of the Schedule.

66Upon receipt of Mr. Ratnasabapathy’s relevant invoices, Aviva shall pay for any psychological treatment received by Mr. Ratnasabapathy between April 6, 2018 and July 4, 2018 and for any services related to the chronic pain assessment received between October 10, 2019 and February 11, 2020.

Footnotes

1. 1O. Reg. 34/10, as amended.