Rhinelander v. Aviva Insurance Company of Canada, 2021 CanLII 13190

Citation: Rhinelander vs. Aviva Insurance Company of Canada, 2021 ONLAT 19-008427/AABS

Released Date: 01/22/2021

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:

Emile Rhinelander

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Emile Rhinelander, Applicant

David Carranza, Paralegal

For the Respondent:

Aviva Insurance Company of Canada, Representative

Brittanny K Tinslay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1E.R. was involved in an automobile accident on September 2, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ He submitted multiple treatment and assessment plans, which Aviva denied on the basis that they were not reasonable and necessary.

2E.R. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute. In addition, E.R. alleges that Aviva did not comply with the requirements under s. 38 of the Schedule in its denial of a number of the treatment plans.

ISSUES

3In accordance with the Tribunal Order of Adjudicator Kaur, the issues I have been asked to decide are as follows:

a. Is the medical benefit in the amount of $2,555.91 for physiotherapy treatment, recommended by Health Bound Health Networks in a treatment plan (“OCF-18”) submitted April 15, 2019, and denied on May 8, 2019, reasonable and necessary?

b. Is the medical benefit in the amount of $3,566.29 for psychological treatment, recommended by Dr. Fahimeh Aghamohseni in an OCF-18 submitted June 10, 2019, and denied on July 9, 2019, reasonable and necessary?

c. Is the payment in the amount of $51.67 for clinical notes and records from Dr. Amy Wai in a treatment plan (OCF-6) submitted October 7, 2016, reasonable and necessary?

d. Is the payment for the cost of examination expense in the amount of $2,516.50 for a Chronic Pain Assessment, recommended by Dr. Stephen Brown in an OCF-18 submitted July 31, 2019, and denied on August 8, 2019, reasonable and necessary?

e. Is E.R. entitled to interest on any overdue payment of benefits?

RESULT

4E.R. is not entitled to the OCF-18 listed in issue 3a and the OCF-6 in issue 3c. Accordingly, no interest is payable.

5E.R. is entitled to the OCF-18s listed in issues 3b and 3d. Interest is payable in accordance with s. 51 of the Schedule.

ANALYSIS

Are the treatment plans in dispute reasonable and necessary?

6As a result of the accident, E.R.’s physical impairments are identified consistently in the various OCF-18s as strain and sprain of his cervical, lumbar spine and shoulder joint. The Disability Certificate dated September 26, 2016 confirms same. To date, E.R. continues to report pain in his left shoulder, back and knees, as well as psychological issues.

7Under sections 14-17 of the Schedule, an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits incurred by an applicant as a result of an accident. The onus to prove entitlement on a balance of probabilities falls to the applicant. In submissions, E.R. states that his ongoing physical injuries and psychological impairments make the proposed treatment reasonable and necessary.

Issue 3a: $2,555.91 for physiotherapy treatment and s. 38 non-compliance

8E.R. submits that he is entitled to the disputed OCF-18 for two reasons. First, due to Aviva’s failure to comply with the statutory provisions under s. 38 of the Schedule. Second, as noted above, is due to the proposed treatment being reasonable and necessary to treat his accident-related injuries.

9Section 38(8) requires an insurer to, within 10 business days after receipt of a treatment plan, provide the applicant with notice of the goods and services it agrees to pay for and those which it will not. It must also give medical and all other reasons for its decision. If an insurer fails to fulfill this obligation, section 38(11)2 entitles the insured to the goods and services related to the period starting on the 11th business day after receipt of the treatment and assessment plan, and ending on the day the insurer provides a compliant notice.

10In M.B. v. Aviva Insurance Canada², Executive Chair Lamoreaux discussed the requirements of “medical and any other reasons”. I am persuaded by her reasoning at paragraph 26, wherein she states:

Nevertheless, an insurer’s “medical and any other reasons” should at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

11E.R.’s position is that Aviva’s initial explanation of benefits (“EOB”) does not meet the requirements of s. 38 as there was no comment on the proposed goods and services, nor were medical reasons or any other reasons provided as reasons for denying the OCF-18.

12The disputed OCF-18 for physiotherapy was denied on May 8, 2019. In the EOB, Aviva advised E.R. that they were unable to determine if the OCF-18 was reasonable and necessary for the injuries sustained, and an insurer examination was required. The medical reason provided was “The frequency of care does not generally diminish over time”.

13Aviva’s position is that despite E.R.’s s. 38 non-compliance claims, it paid for incurred treatments between May 9, 2019 and June 25, 2019, as it put it, “to rectify any issues” related to s. 38 non-compliance. No further payments were made towards treatment that was not incurred, as Aviva relied on the reports of its assessor, Michael Drinkwater, physiotherapist, who concluded that E.R. no longer had any impairment, had reached maximum medical recovery and the OCF-18 was not reasonable and necessary, as detailed in Aviva’s June 25, 2019 denial.

14Despite E.R.’s claim, I find Aviva’s subsequent denial on June 25, 2019 was in accordance with s. 38 and cured its earlier defective notice. Aviva paid for treatment between the dates of its initial May 2019 denial and the subsequent denial of June 25, 2019. Therefore, the obligation to pay for treatment under s. 38(11) as a result of its failure to comply with s. 38 ended on June 25, 2019, the date Aviva provided E.R. with compliant notice.

15Having found that Aviva’s subsequent denial cured its initial defect, bringing it into compliance with s. 38, I must now consider whether the OCF-18 was reasonable and necessary. For the reasons to follow, I find the OCF-18 is not reasonable and necessary.

16E.R. relies on the OCF-18 in support of his claim of entitlement to further physiotherapy treatment. The noted goals of the OCF-18 were pain reduction, increase in strength, prevention of chronic stage, return to activities of normal living, return to modified work activities, and education in hurt vs. harm. I note that at the time of the OCF-18, E.R. had already returned to work on modified duties, in a supervisory role.

17Aviva relied on an addendum physiatry report from Michael Drinkwater which noted that the family doctor record indicates full range of motion in the shoulder but indicates some left shoulder pain with range of motion, improved, but limited range of motion of the neck. On an October 22, 2019 visit to his family physician, the notes indicate intermittent left shoulder pain and “not much has changed”. Mr. Drinkwater concluded that the medical documentation supports that E.R. had plateaued from a medical standpoint. I agree.

18E.R. has received physiotherapy treatment for almost three years, and reports that “not much has changed”. This is counter to the goal of treatment being met to a reasonable degree. Further, E.R. has returned to modified work, and is independent with his activities of normal living. Based on the evidence, I do not find that continued physiotherapy treatment would justify more of the same treatment at the cost of $2,555.91.

Issue 3b: $3,566.29 for psychological treatment and s. 38 non-compliance

19Similar to the OCF-18 for physiotherapy treatment, E.R. relies on the same two-pronged argument of s. 38 non-compliance and his accident-related injuries justifying his claim of entitlement. For the reasons set out below, I find Aviva did comply with the requirements set out in s. 38 in its October 28, 2019 denial, and I find the OCF-18 to be reasonable and necessary.

20Aviva’s initial EOB, dated July 9, 2019, provided the same medical reason previously relied on, being “the frequency of care does not generally diminish over time.” I rely on EC Lamoreaux’s reasoning set out in paragraph 10, above. Aviva issued a second EOB dated July 17, 2019, informing E.R. that an insurer examination was required to determine if the OCF-18 was reasonable and necessary, which is the same medical reason given as in the July 9, 2019 EOB. On the evidence, it appears that Aviva concedes that its initial EOB’s were non-compliant with s. 38, as it again made a partial payment of $200 on April 1, 2020, the amount incurred by E.R. up to October 28, 2019.

21I agree with E.R. that such a “medical reason” fails to satisfy the requirements set out in s. 38. However, on October 28, 2019, Aviva provided E.R. with an EOB denying the OCF-18, which set out the medical and other reasons for its denial of the OCF-18. E.R. does not dispute that the October 28, 2019 EOB is a compliant denial, and I agree that it is.

22I am not directed to any evidence that any additional psychological treatment was incurred between the July 9, 2019 EOB and the subsequent October 28, 2019 EOB. As such, I must consider whether the OCF-18 is reasonable and necessary.

23E.R. relies on a psychological report from Dr. Aghamohseni, which notes E.R. experience left shoulder, back, and bilateral knee pain. Psychologically, E.R. complained of non-restorative sleep problems, a decline in memory and concentration, depression, anxiety, fear and nervousness. Dr. Aghamohseni diagnosed E.R. with Major Depressive Disorder, Single Episode, in the severe range with anxious distress, Somatic Symptom Disorder with predominant pain, in the persistent range at sever levels, and Specific Phobia, situational type, vehicular.

24On June 10, 2019, Dr. Aghamohseni completed a Psychological Progress Report noting an increase in E.R.’s ability to problem solve for his social difficulties, as well as a decrease in depression symptoms and improvement in self-confidence. Dr. Aghamohseni noted that E.R. continued to experience periods of sadness and irritability related to his depressive symptoms. Dr. Aghamohseni recommended a further twelve sessions of psychotherapy. An additional independent psychological evaluation was performed by psychologist Dr. Saghatoleslami in October 2018, who diagnosed E.R. with Adjustment Disorder with Mixed Anxiety and Depressed Mood.

25In support of its denial, Aviva relied on the October 28, 2019 psychological report of Dr. Talebizadeh. Based on testing, Dr. Talebizadeh determined that the testing results and profile were valid and that E.R. scored below average on the anxiety and somatization scales. Dr. Talebizadeh concludes that despite valid testing and results consistent with self-reporting, E.R. “doesn’t currently meet diagnostic criteria for any psychological disorders as per the DSM-V.”

26E.R. submits that Dr. Talebizadeh made no comment on whether his psychological condition improved after the 12 sessions of treatment, nor was the OCF-18 addressed in her report.

27I note that there was no psychological testing done for the purpose of Dr. Aghamohseni’s progress report. Further, the family physician’s records do not contain any additional psychological complaints subsequent to the 12 sessions of treatment already received. In addition, a previous psychological assessment report dated October 15, 2018, did conclude that E.R. suffered from an adjustment disorder and recommended 10-12 sessions of psychotherapy. Aviva submits that after receiving the 12 sessions of treatment, E.R. no longer meets the criteria for a psychological disorder requiring treatment.

28I prefer the reports of Dr. Aghamohseni and Dr. Saghatoleslami. Both reports come to a similar diagnosis of E.R.’s psychological impairments, and Dr. Talebizadeh also notes similar psychological complaints, and yet concludes that no clinical psychological diagnosis is warranted. I agree with E.R. that Dr. Talebizadeh’s report is lacking the key considerations of whether the recommended treatment plan was reasonable and necessary and fails to consider the state of his psychological well-being after receiving an initial round of treatment. A key aspect of a report or assessment is the consideration of the benefits or effectiveness of the treatment being sought. While an evaluation of an insured is the paramount goal of the report, at the very least, a consideration of the presenting pain complaints, the benefits of any treatment received to date, and a comparison of whether the treatment sought would meet the test of reasonable and necessary should form part of the overall evaluation. I find this was missing from the report of Dr. Talebizadeh and afforded it less weight.

29On the evidence, I find that E.R. has met his onus that the psychological treatment is reasonable and necessary.

Issue 3c: $51.67 for clinical notes and records

30Under s. 33(1)1 of the Schedule, an insured person must provide, on request, any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

31E.R. submits that a partial payment was made for obtaining medical records on or around November 29, 2018. Aviva submits that a prior agreement on February 19, 2019 was reached between the parties where the cost of medical records was paid, including the disputed cost claim. On reply, E.R. does not refute Aviva’s claim of the agreement, only to submit that the family physician records were for the ongoing handling of the claim.

32I am not directed to any evidence that Aviva failed to fulfill its obligations from the February 19, 2019 agreement. More importantly, there is no requirement under s. 33 that an insurer has an obligation to pay for any information reasonably required. On the evidence, I find that E.R. has failed to show that Aviva is required to pay for the clinical notes and records.

Issue 3d: $2,156.50 for a chronic pain assessment

33The purpose of an assessment can be to determine if a condition exists or to assess the extent of a condition or level of functionality. As such, assessments are also for the purpose of then making recommendations for treatment based on the findings. Notwithstanding, E.R. bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, E.R. must point to objective evidence that there are grounds to suspect he has the condition(s) for which he seeks the assessment. I find that E.R. has met his onus.

34E.R. submits that the OCF-18 is reasonable and necessary in order to determine the best course of treatment to deal with his post-accident pain complaints and psychological symptoms.

35The author of the OCF-18, physician Dr. Brown, opined that the ongoing pain complaints, along with headaches, anxiety, poor sleep, fatigue and tiredness, appears to be consistent with chronic pain associated with the initial accident-related injuries. On this basis, Dr. Brown felt a chronic pain assessment was reasonable and necessary.

36Aviva relies on the September 27, 2019 physiatry report of its assessor, Dr. Williams, in support of its denial of the OCF-18. Dr. Williams diagnosed E.R. with post-traumatic headache, cervical spine sprain and strain, WAD II, left shoulder sprain and strain. Dr. Williams also noted low back and right knee pain, not temporally related to the accident. In his July 13, 2020 addendum report, Dr. Williams reviewed updated clinical notes and records from the family physician, as well as the psychological report from Dr. Talebizadeh. Dr. Williams’ opinion remained unchanged that the disputed OCF-18 was not reasonable and necessary.

37In both his initial and addendum reports, Dr. Williams stated that E.R. “continues to be symptomatic and given the timeframe from the date of loss he most certainly has chronic pain.” Despite this, Dr. Williams goes on to state that given the intermittent nature of the complaints and limited dysfunction, “this is not favoured to be chronic pain syndrome.” Dr. Williams concluded the OCF-18 was not reasonable and necessary on this basis.

38I prefer the report of Dr. Brown over those of Dr. Williams for several reasons. First, as a chronic pain specialist, Dr. Brown would be better qualified to identify potential chronic pain issues. Second, I find the diagnosis of chronic pain from Dr. Williams, supports that the OCF-18 is reasonable and necessary to determine what course of treatment would provide relief from chronic pain. Third, in a report dated June 16, 2020, family physician Dr. Wai, diagnosed E.R. with chronic and recurrent left shoulder pain, which is in line with both Dr. Brown and Dr. Williams findings that E.R. suffers from chronic pain as a result of the accident.

39E.R. has consistently reported to his treating practitioners and IE assessors about his pain complaints, psychological symptoms, and limitations due to his accident-related injuries over the course of several years, post-accident. On a balance of probabilities, I find the OCF-18 for a chronic pain assessment to be reasonable and necessary.

CONCLUSION

40E.R. is entitled to the OCF-18s for psychological treatment and a chronic pain assessment, including interest in accordance with s. 51 of the Schedule.

41E.R. is not entitled to the OCF-18 for physiotherapy treatment or payment for the medical records, therefore no interest is payable.

Footnotes

1. 1O. Reg. 34/10
2. 2M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)```