Citation: Ramlal vs. Aviva General Insurance, 2021 ONLAT 19-011325/AABS

Release Date: 01/15/2021

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:

Richard Ramlal

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Jessica Telfer, Counsel

HEARD:

By way of written submissions

1Richard Ramlal (the “applicant”) was involved in an automobile accident on May 17, 2015, and sought benefits from Aviva Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and 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 this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. If the answer to the first question is no, is the applicant entitled to the following benefits:

a. a medical benefit in the amount of $1,153.94 for physiotherapy treatment, recommended by East Sheppard Rehab in a treatment plan dated June 5, 2019, and denied by the respondent on June 19, 2019;

b. a medical benefit in the amount of $1,153.94 for physiotherapy treatment, recommended by East Sheppard Rehab in a treatment plan dated August 22, 2019, and denied by the respondent on September 23, 2019;

c. a medical benefit in the amount of $2,641.62 for aquatherapy, recommended by East Sheppard Rehab in a treatment plan dated August 21, 2019, and denied by the respondent on September 23, 2019;

d. a cost of examination in the amount of $2,000.00 for a orthopaedic assessment, recommended by Normed Assessments in a treatment plan dated June 17, 2019, and denied by the respondent on July 9, 2019?²

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4After reviewing the parties’ submissions and document briefs, and for the reasons that follow I find:

i. The applicant sustained a minor injury.

ii. The applicant is entitled to payment for the disputed treatment plans if they have been incurred prior to receiving proper notice from the respondent denying the benefits. I find the respondent was non-compliant with s. 38(8) of the Schedule as it failed to provide adequate medical and other reasons for denying the treatment plans.

iii. The applicant is not entitled to interest pursuant to s.51 of the Schedule.

BACKGROUND

5On May 17, 2015, the applicant was involved in an accident when his vehicle was rear-ended while stopped at a traffic light. The applicant did not seek immediate medical attention.

6A week following the accident the applicant commenced treatment pursuant to the MIG at Toronto Medical Centre (“Toronto Medical”) and he attended this clinic until June 2017. On June 5, 2019, he started attending East Sheppard Rehab (“East Sheppard”). The applicant seeks a finding that his injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

7The applicant argues that his impairments do not fit within the definition of the MIG because he suffers from chronic pain as a result of the accident. Further, he submits that his accident related impairments remain unresolved and he requires further treatment. He relies on the attendance sheets of Toronto Medical and the clinical notes and records (“CNRs”) of Dr. Husainy, family doctor, records from East Sheppard and an MRI dated June 24, 2019. Further, the applicant maintains that the insurer examinations (“IEs”) completed on behalf of the respondent support his position that he suffers from ongoing pain which has impacted his ability to function in his daily activities and that these impairments are not minor. Finally, he submits that the disputed treatment plans are payable as the respondent did not comply with its obligations to provide proper notice pursuant to s.38(8) of the Schedule.

8The respondent submits that the applicant’s impairments fit within the MIG. It asserts that the CNRs relied upon by the applicant do not support his position that he suffers from chronic pain or any ongoing impairment as a result of the accident. The respondent relies on the reports of its IE assessors in support of its position that the applicant sustained a minor injury. The respondent also argues that the accident did not cause the impairments which the applicant has put forth as the basis for the disputed treatment plans. Further, it contends that it provided clear and unequivocal notice of its denials.

Do the applicant’s impairments fit within the MIG?

9I find the evidence supports that the applicant’s impairments fall within the MIG.

10Section 3 of the Schedule provides the following definition of a minor injury:

a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

11Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap.

Did the applicant suffer from a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG?

12I do not find that the applicant had a pre-existing medical condition which would prevent him from achieving maximum medical recovery within the MIG.

13The applicant contends that he had a prior accident in 2010 in which he sustained a head injury, and as a result, he has ongoing problems with anger management. No pre-accident CNRs were submitted by the applicant as evidence for this written hearing. Nor did he submit any opinion from a medical practitioner supporting that this pre-existing condition would prevent him from achieving maximum medical recovery within the MIG. Therefore, I do not find the applicant is removed from the MIG as a result of a pre-existing condition.

Does the applicant suffer from chronic pain as a result of the accident that would remove him from the MIG?

14I do not find the applicant suffers from chronic pain as a result of the accident that would remove him from the MIG for the following reasons.

15I do not find that Dr. Husainy’s CNRs support that the applicant suffers from chronic pain or any ongoing physical impairment as a result of the accident. Other than an initial visit to a walk-in clinic three days post accident, the applicant did not visit a family doctor until July 12, 2017, which is over two years post-accident. The applicant relied on this CNR which refers to Dr. Saed being his previous family doctor and states “mva 2015 – off work 1.5 years, does physio and massage for 2 years twice a week. back @ work in May 2017. Has back pain now that he is back at work.” Dr. Husainy then states “chronic back pain, mechanical, likely from heavy lifting at work, post mva.”

16It is not clear from this CNR whether the information noted by Dr. Husainy came from any of Dr. Saed’s records or whether the information was self-reported by the applicant. The applicant did not submit any CNRs from pre-accident until July 2017 when he started seeing Dr. Husainy. I find the gap in these records troubling as the applicant did not seek medical attention from a family doctor in the two years following the accident. In my view, if the applicant suffered from chronic pain as a result of the accident, he would have sought medical treatment in the time period shortly following the accident. I find the CNRs noting the sudden onset of back pain two-years post-accident insufficient in establishing that the applicant suffers from chronic pain as a result of the accident. The remaining CNRs from 2017 support that the applicant visited Dr. Husainy’s office a handful of times regarding a fractured ankle he sustained in a slip and fall accident as well as cold and flu symptoms. The applicant does not complain about back or shoulder pain in the remaining CNRs in 2017 and the accident is not mentioned. A CNR dated October 1, 2018 notes back pain and states “mva 3 years ago”.

17The applicant maintains that his sudden onset of back pain coincides with when he returned to work in May 2017 and this pain was because of the accident. I find the facts pertaining to the applicant’s post-accident work history unclear. Dr. Jugnundan’s IE states the applicant took time off work in his position as an auto technician following the accident and that he was eventually laid off. He then studied to be a millwright for two and a half years and in November 2019 became an electrical apprentice. The applicant did not submit any evidence pertaining to his post-accident employment to support that he had any functional limitations in any of these positions as a result of the accident.

18I also do not find that the emergency record from Humber River Hospital supports the applicant’s position that he suffers from chronic pain as a result of the accident. A record dated June 3, 2019 notes that the applicant had a sudden onset of back pain while tying his shoe. The record states the doctor discussed ibuprofen, Tylenol and physiotherapy. The accident is not mentioned in this record. A CNR of Dr. Husainy a few days later refers to the hospital visit and notes the applicant “reports episodes of back pain following an mva in 2015.” The doctor referred the applicant for an MRI completed on June 24, 2019 which revealed minimal disc bulges from L2/L3 through L4/L5 and a small disc protrusion at L5/S1. I find the applicant failed to establish that the results of the MRI are related to the accident as it was completed four years post-accident.

19I also do not find that the CNRs of Toronto Medical support that the applicant suffers from chronic pain as the applicant went for treatment sporadically. There is also a significant gap between when the applicant last received treatment at Toronto Medical and the submission of the treatment plans in dispute. The attendance sheets of Toronto Medical confirm that he attended treatment seven times in 2015; once in 2016 and five times in 2017. The applicant did not provide any explanation for the infrequency in which he attended treatment, nor did he provide any rationale for the two-year gap from when he concluded treatment at Toronto Medical in June 2017 to when the disputed treatment plans were submitted by East Sheppard in 2019. In my view the gaps in these records challenge the applicant’s position that he suffers from chronic pain or any ongoing accident related physical impairment as a result of the accident.

20The applicant relied on the report of Dr. Bruni, chiropractor at East Sheppard dated June 5, 2019. This report diagnoses the applicant with chronic pain, headaches, depressive episode, malaise, fatigue, disordered sleep and nervousness as a result of the accident. I do not give this report much weight as the doctor did not review any pre- or post-accident CNRs in rendering the diagnosis or discuss the large gap in time in which the applicant last received treatment. In addition, I find it beyond the scope of a chiropractor to render a psychological diagnosis. I do not find this report persuasive evidence that the applicant suffers from chronic pain as a result of the accident.

21By contrast, the respondent relied on the IE reports of Dr. Mula, chronic pain specialist dated September 4, 2015; Dr. Yee, orthopaedic surgeon dated May 24, 2016 and Dr. Jungundan, general practitioner dated February 3, 2020. All of these assessors determined that the applicant sustained minor soft-tissue injuries as a result of the accident. I find the opinions rendered by the IE assessors more consistent with the evidence before me.

22For all of the above reasons, the applicant has not met his onus in proving on a balance of probabilities that he suffers from chronic pain as a result of the accident that would remove him from the MIG.

Does the applicant suffer from a psychological impairment as a result of the accident?

23I do not find that the applicant suffers from a psychological impairment as a result of the accident.

24The applicant maintains that he suffers from driving anxiety as a result of the accident, therefore, he should be removed from the MIG as a result of a psychological impairment.

25The respondent’s IE reports reflect that the applicant reported driving anxiety to assessor’s post-accident. However, the applicant did not submit a report of a psychological expert to support that he has been diagnosed with a psychological impairment as a result of the accident which would remove him from the MIG. Nor did the applicant report any psychological symptoms or driving anxiety to his family doctor. I do not find the fact that the applicant reported having driving anxiety to IE assessors’ persuasive evidence that he suffers from a psychological impairment that would remove him from the MIG.

26The applicant has not met his onus on a balance of probabilities in proving that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG.

Did the respondent’s denials of the disputed treatment plans comply with s.38(8) of the Schedule?

27I find the respondent did not comply with its obligation under s.38(8) of the Schedule as it did not provide adequate medical or other reasons in its denials of the disputed treatment plans.

28Section 38(8) of the Schedule provides that an insurer shall respond to a treatment plan within 10 days of receiving it identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.

29If an insurer fails to comply with s. 38(8) the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11) 2 provides that if an insurer fails to provide proper notice of the reasons for its denial it 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 insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8).

30The following is a chronology of when the treatment plans were submitted by East Sheppard as well as the reasons the respondent provided for denying same in its explanation of benefits (“EOBs”).

31The applicant submitted a treatment plan in the amount of $1,183.94 dated June 5, 2019 recommending physiotherapy, massage and acupuncture. The goal of the treatment plan was for pain reduction, increase in strength and range of motion in order to return the applicant to his activities of normal living and pre-accident work activities. All of the treatment plans submitted list the same physical impairments and have identical goals.

32In response, the respondent sent the applicant an EOB dated June 19, 2019 which denied the treatment plan for the following reason: “We have not approved this treatment plan as it has been over 5 years post accident and under normal course, injuries should have reached maximum medical recovery. No compelling medical evidence has been provided to justify therapy at this juncture.”

33On June 25, 2019 the applicant submitted to the respondent the CNRs of Dr. Husainy, his family doctor. Based upon the evidence before me, it does not appear that the respondent acknowledged receiving these records.

34The applicant then submitted three additional treatment plans: 1) a treatment plan dated June 17, 2019 in the amount of $2,000.00 recommending an orthopaedic assessment; 2) a treatment plan for aquatherapy in the amount of $2,641.62 dated August 21, 2019; and 3) a treatment plan for physiotherapy, acupuncture and massage in the amount of $1,153.94 dated August 22, 2019. Attached to the last two treatment plans were progress reports from the clinic indicating that additional treatment was required as the applicant’s symptoms had worsened. Further, that any discontinuation of treatment would exacerbate his symptoms and to date he had not reached his pre-accident status.

35In response to these treatment plans, the respondent sent the applicant EOBs dated July 9, 2019 and September 10 and 23, 2019. The reasons for the denial of the treatment plans were almost identical to the one of June 25, 2019 with the exception that the respondent referenced the correct number of years since the accident as four.³

36The applicant argues that the respondent’s notice of its denials in relation to the disputed treatment plans does not comply with s.38(8) of the Schedule as it did not provide medical reasons, refer to any CNRs it received and it did not specify that the MIG applied.

37The respondent submits that it complied with its obligations under s.38(8) of the Schedule in that it provided the applicant with clear and unequivocal denials of the disputed treatment plans.

38I find the respondent failed to articulate in its submissions exactly how its various notices specifically met its obligations to provide proper notice under s.38(8) of the Schedule. I agree with the applicant that the respondent’s denials of the treatment plans do not refer to the applicant’s medical condition. Further, the notices did not state that the applicant sustained a minor injury and that it believed the MIG applied which is mandatory under s.38(9). In addition, the respondent does not refer to any medical records that it had received or request additional medical records. Despite the fact that I agree with the respondent that Dr. Husainy’s records were of limited value, I agree with the applicant that the respondent’s denials were deficient. I find all of the respondent’s notices to be a boiler plate response. Further, the respondent did not submit any evidence to support that to date it has ever cured its defective notice relating to its denial of these treatment plans.

39After reviewing the parties’ submissions, I issued an order inviting the parties to make further written submissions regarding the applicability of the decision of the Financial Services Commission of Ontario (“FSCO”) in Ferawana v. State Farm⁴ (“Ferawana”) and the Divisional Court’s decision in Zheng, Cai v. Aviva⁵ (“Zheng”) as I find both decisions relevant to the interpretation of sections 38(8) and (11) of the Schedule. The respondent filed additional submissions, however, the applicant did not.

40In Ferawana, the arbitrator determined that if an insurer failed to meet its procedural obligations set out in s.38(8), the consequences set out in s.38(11) are mandatory and an insurer must pay for the treatment plan regardless of whether the insured proved causation or that the treatment plan was reasonable and necessary. In Zheng, the Divisional Court agreed with the arbitrator’s interpretation in Ferawana that the consequences set out in s.38(11) for non-compliance with s.38(8) are mandatory. The court highlighted that because the Schedule is consumer protection legislation s.38 (8) must be strictly interpreted and that the payment consequence of s. 38(11) (2) are mandatory.

41The respondent argues that even if it did not comply with its procedural obligations set out in s.38(8), the applicant must still prove that the treatment plans are reasonable and necessary which he has failed to do. It submits that ss. 14 and 15 of the Schedule supports that it is only liable to pay for treatment plans that are reasonable and necessary. The respondent relied on the Tribunal’s decision in E.M v. Coachman⁶ to support that even if it did not comply with s.38(8) the Tribunal must still assess whether the treatment plans are reasonable and necessary. In that decision, despite the adjudicator determining that the insurer failed to comply with its procedural obligations, she still assessed whether the treatment plans were reasonable and necessary. I do not find this decision helpful because there was no discussion of the principles highlighted by the Ferawana and Zheng decisions.

42I agree with the arbitrator’s interpretation in Ferawana that whether the treatment plans are reasonable and necessary is irrelevant to whether the mandatory payment consequence of s. 38(11) (2) applies as it would render the section meaningless. I also agree with the arbitrator that nothing in the Schedule relieves an insurer of its liability from the mandatory payment provision on the basis that a treatment plan is not reasonable and necessary.

43The respondent argued that since the Ferawana and Zheng decisions were rendered, the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov⁷ (“Vavilov”). It maintains that this decision revised the standard of review for decisions of administrative tribunals from a standard of reasonableness to a standard of correctness. The respondent submits that if Zheng were to be decided by the Divisional Court today, it likely would not have been upheld had the court applied the standard of correctness and, therefore, Zheng is not binding on this Tribunal. I did not find Vavilov helpful as the respondent has failed to convince me how an appellate court would have rendered an alternative decision applying the standard of correctness to its interpretation of s.38(11) in Zheng. I find the respondent is asking that I assume that an alternative decision would be made today or that the decision makers in Ferawana and Zheng got it wrong.

44The respondent also argues that the treatment plans are not payable as the applicant has not provided any proof that he has incurred the treatment plans. S.38(11)2 states that a treatment plan is payable starting on the 11th business day after the insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8). The applicant did not submit any evidence supporting that he has incurred the cost of the disputed treatment plans and did not address this issue in his reply submissions. In addition, there is no evidence before me that to date the respondent ever gave proper notices denying the disputed treatment plans. Therefore, the applicant is entitled to payment for any incurred treatment in the relation to these treatment plans until the respondent gives proper notice in compliance with s.38(8). Further, the respondent is prohibited from taking the position that the MIG applies to the disputed treatment plans.

Is the applicant entitled to payment of interest on overdue payment of benefits?

45The applicant is not entitled to payment of interest.

46Section 51(1) of the Schedule provides that that interest is payable if the insurer fails to pay a benefit within the time required under this regulation. Since the applicant has not submitted any proof that the treatment plans have been incurred, I do not find that interest is payable.

CONCLUSION

47For all of the above reasons, I find: