Campbell v. Aviva Insurance Company, 2021 CanLII 13194

Citation: Campbell vs. Aviva Insurance Company, 2021 ONLAT 19-012095/AABS

Released date: January 29, 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:

Bernard Campbell

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Kathleen Mertes, Counsel

HEARD

By way of written submissions

OVERVIEW

1The applicant, Bernard Campbell (“Mr. Campbell”), was injured in an automobile accident on October 20, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva Insurance Company (“Aviva”), the respondent.

2Aviva denied Mr. Campbell’s claims for chiropractic treatment and, as a result, Mr. Campbell submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on March 16, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Mr. Campbell entitled to chiropractic treatment recommended by Dr. Bradley Sugar, chiropractor, as follows:

(a) $1,529.81 in a treatment plan (“OCF-18”) dated October 27, 2017, and denied on November 2, 2017?

(b) $1,415.21 in an OCF-18 dated January 25, 2018, and denied on February 9, 2018?

(c) $1,300.61 in an OCF-18 dated April 5, 2018, and denied on April 26, 2018?

RESULT

5I find that Mr. Campbell is entitled to the following treatment plans, plus interest in accordance with s. 51 of the Schedule, as a result of Aviva’s failure to comply with s. 38(8):

(i) The October 27, 2017 OCF-18 in the amount of $1,529.81;

(ii) The January 25, 2018 OCF-18 in the amount of $1,415.21; and

(iii) The April 5, 2018 OCF-18 in the amount of $1,300.61.

ANALYSIS

6Mr. Campbell submitted that Aviva failed to comply with its obligations under s. 38(8) of the Schedule regarding its notices that denied the disputed treatment plans.

7Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan.

8The requirement for medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,² which was relied upon by Mr. Campbell in his submissions. In T.F. v. Peel, Executive Chair Lamoureux stated:

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. Only then will the explanation serve the Schedule’s consumer protection goal.³

9Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), 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 day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given an opportunity to “cure” a defective notice. Without such a cure, however, any goods, services, assessments and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.⁴

10Dr. Sugar completed the three disputed treatment plans dated October 27, 2017, January 25, 2018 and April 5, 2018. These three OCF-18s sought funding for completion of total body assessments/reassessments, sessions of “exercise, multiple body sites” to be provided by Dr. Sugar, sessions of “exercise, back NEC” to be provided by Dr. Sugar and $70.00 for the completion of each OCF-18.

11In the additional comments sections of the OCF-18s, Dr. Sugar provided substantially similar explanations for the proposed treatment in all three treatment plans. Dr. Sugar explained that Mr. Campbell was continuing to attend therapy and outlined which of Mr. Campbell’s injuries were ongoing and which injuries had resolved. Dr. Sugar explained that the funding sought in each of the OCF-18s included an exercise program that consisted of the following: AAROM; active range of motion and flexibility exercises; stretch, strengthening and endurance exercises; functional conditioning exercises consisting of core strengthening and stabilization exercises; core strength and stabilization; elbow flexibility and strength; knee stabilization, strength and mobility. Dr. Sugar also explained that the active chiropractic therapy included thermo/cryotherapy, IFC/Tens/ultrasound for pain control, as required, and joint mobilization and adjustments where necessary.

12Aviva denied the October 27, 2017 OCF-18 by way of correspondence dated November 2, 2017. The relevant portion of this correspondence is as follows:

Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: As indicated in our previous correspondences dated July 11, 13 and October 4, 2017, it was indicated in the section 44 independent examination by Dr. Kopansky-Giles, that no further facility-based treatment is required as a result fo [sic] the injuries sustained in the October 20, 2016 motor vehicle accident. Dr. Kopansky-Giles recommended you participate in an independent exercise program to improve your general level of conditioning.

Should Dr. Sugar feel that continue [sic] treatment is warranted in relation to your October 20, 2016; [sic] please have him provide his rational for such treatment, including compelling medical evidence to support his conclusions. ⁵

13Aviva denied the January 25, 2018 OCF-18 on February 9, 2018. The relevant portion of Aviva’s correspondence of the same date is as follows:

Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: As indicated in previous correspondences, it was indicated in the section 44 independent examination by Dr. Kopansky-Giles, that no further facility-based treatment is required as a result of the injuries sustained in the October 20, 2016 motor vehicle accident. Dr. Kopansky-Giles recommended you participate in an independent exercise program to improve your general level of conditioning.⁶

14Finally, Aviva denied the April 5, 2018 OCF-18 by way of correspondence dated April 26, 2018. The relevant portion of this correspondence is as follows:

Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: As indicated in our previous correspondence dated February 9, 2018, it was indicated in the section 44 independent examination by Dr. Kopansky-Giles, that no further facility-based treatment is required as a result of the injuries sustained in the October 20, 2016 motor vehicle accident. Dr. Kopansky-Giles recommended you participate in an independent exercise program to improve your general level of conditioning. Please note since the above noted section 44 examination Dr. Sugars [sic] has provided no compelling evidence to support the need for future passive facility[-]based treatment. Should you provide our office with this information we will be happy to reconsider and review the previously denied treatment plans.⁷

15To support its denial of the three disputed treatment plans, Aviva relied upon the opinion of Dr. Deborah Kopansky-Giles, chiropractor, in her July 10, 2017 Insurer’s Examination (“IE”) Chiropractic Assessment Report.⁸ In her report, Dr. Kopansky-Giles diagnosed Mr. Campbell with the following conditions as a result of the accident: objectively resolved WAD II of the neck with residual mild strain of the trapezius muscle; objectively resolved myofascial strain/sprain of the lumbosacral spine; mild patellofemoral syndrome in the left knee; pre-existing left elbow impairment which is likely at pre-accident status at this point in time; and an indication of generalized deconditioning. Dr. Kopansky-Giles further noted that there were only very minimal findings of musculoskeletal impairment at the time of her assessment on June 23, 2017.

16Dr. Kopansky-Giles’ report was critical of the treatment that Mr. Campbell had received to date with Dr. Sugar as her report stated:

[Mr. Campbell’s] description of the treatment he received there [with Dr. Sugar] indicated that it had been primarily passive in nature, with only minimal exercises performed on site and no real progression of these exercises over the 8-month period of treatment. He stated that he currently only performed 15 to 20 minutes of exercise at each attendance and these were very light in nature. According to his description this was not a comprehensive, progressive rehab program. He stated that he did not do any progressive strengthening or conditioning exercises as part of his treatment. This is an essential component of rehabilitation for accident-related soft tissue injuries. In addition, research has demonstrated that prolonged passive therapy and lengthy facility-based care for uncomplicated accident-related soft tissue injuries has a negative effect on outcome.⁹

17Dr. Kopansky-Giles opined that Mr. Campbell’s rehabilitation should be directed to participating in an independent exercise program to improve his general level of conditioning and to help resolve his remaining residual issues. Dr. Kopansky-Giles’ report stated that Mr. Campbell may benefit from being provided with 2 to 3 sessions of instruction in progressive exercise over the first 4 weeks and access to a fitness facility for a period of up to 3 months where he may perform the exercises 4 to 5 times per week. In the end, Dr. Kopansky-Giles opined that no further facility-based treatment was required.¹⁰

18On the evidence, I find that Aviva’s November 2, 2017, February 9, 2018 and April 26, 2018 denial notices do not comply with its obligations under s. 38(8) of the Schedule for the following reasons:

(i) Simply mentioning “injuries” in a denial notice does not automatically make it a “medical reason.” In all three of the denial notices, Aviva failed to provide specific details about Mr. Campbell’s injuries or conditions that formed the basis of Aviva’s decision despite Dr. Kopansky-Giles setting out the conditions that Mr. Campbell sustained as a result of the accident in her July 10, 2017 report. It also appears that Dr. Kopansky-Giles’ report was not enclosed in any of Aviva’s denial notices to Mr. Campbell despite it being referenced in each letter;

(ii) Although Aviva highlighted Dr. Kopansky-Giles’ opinion in each of its denial letters that no further facility-based treatment was recommended and, instead, Dr. Kopansky-Giles’s recommended that Mr. Campbell participate in an independent exercise program, Aviva failed to address the issue that the proposed treatment plans included, in part, an exercise program. Only in its written hearing submissions does Aviva provide a response to the proposed exercise programs by stating that the treatment proposed by Dr. Sugar in the three disputed OCF-18s did not mirror the independent exercise program recommended by Dr. Kopansky-Giles. This rationale regarding the reasonableness and necessity of the exercise portion of the proposed OCF-18s was not communicated to Mr. Campbell in any of Aviva’s correspondences; and

(iii) I also find that Aviva did not sufficiently identify information about the Mr. Campbell’s condition that it did not have but required in light of the information provided by Dr. Sugar in the additional comments portion of the OCF-18s which included range of motion testing and a list of resolved and unresolved injuries.

19As I have found that Aviva’s November 2, 2017, February 9, 2018 and April 26, 2018 denial notices fall short of its obligations under s. 38(8) of the Schedule, the consequences set out in s. 38(11) are triggered. Therefore, starting on the 11th business day after the day that Aviva received them, the following OCF-18s are payable as Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding these benefits:

(i) The October 27, 2017 OCF-18 in the amount of $1,529.81;

(ii) The January 25, 2018 OCF-18 in the amount of $1,415.21; and

(iii) The April 5, 2018 OCF-18 in the amount of $1,300.61.

Interest

20Mr. Campbell is entitled to interest in accordance with s. 51 of the Schedule for the October 27, 2017 OCF-18, the January 25, 2018 OCF-18 and the April 5, 2018 OCF-18.

CONCLUSION

21For all of the reasons outlined above, I find that Mr. Campbell is entitled to the following treatment plans as a result of Aviva’s failure to comply with s. 38(8) of the Schedule plus interest in accordance with s. 51:

(i) The October 27, 2017 OCF-18 in the amount of $1,529.81;

(ii) The January 25, 2018 OCF-18 in the amount of $1,415.21; and

(iii) The April 5, 2018 OCF-18 in the amount of $1,300.61.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 22018 CanLII 39373 (ON LAT) (reconsideration)(“T.F. v. Peel”).
3. 3Ibid. at para. 19.
4. 4See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)(reconsideration) at paras. 50-52, 59 and 64.
5. 5Applicant’s Written Submissions, tab 3.
6. 6Applicant’s Written Submissions, tab 6.
7. 7Applicant’s Written Submissions, tab 6.
8. 8Applicant’s Written Submissions, tab 2.
9. 9Ibid. at page 9.
10. 10Ibid. at page 10.