Citation: Budhram vs. Aviva General Insurance, 2021 ONLAT 19-014428/AABS

Released Date: 01/19/2021

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:

Ramdeo Budhram

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Kristofer Angle, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

1The applicant, Ramdeo Budhram, was injured in an automobile accident on November 19, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance (“Aviva”), the respondent.

2Aviva denied Mr. Budhram’s claims for massage therapy and for a chronic pain assessment. As a result, Mr. Budhram submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on May 22, 2020 and the matter proceeded to a written hearing.

Issues in Dispute

4The following issues are to be decided:

(i) Is Mr. Budhram entitled to $698.28 ($2,252.00 less $1,553.72 approved) for massage therapy recommended by Promed Rehabilitation Centre in a treatment plan (“OCF-18”) dated December 28, 2019, and partially approved on June 4, 2020?

(ii) Is Mr. Budhram entitled to $2,252.15 for a chronic pain assessment recommended by Excel Medical Diagnostics in an OCF-18 dated April 21, 2020, and denied on May 11, 2020?

(iii) Is Mr. Budhram is entitled to interest on any overdue payment of benefits?

Result

5I find that Mr. Budhram:

(i) has proven on a balance of probabilities that the physical injuries he sustained as a result of the accident include injuries to his neck, back and shoulders and a right rib fracture. Alternatively, I find that Mr. Budhram has proven on a balance of probabilities that the accident worsened his pre-existing neck and back conditions;

(ii) has failed to prove on a balance of probabilities that the accident caused his current hip complaints;

(iii) is, upon submission of an invoice, entitled to $384.05 of the remaining $698.28 in dispute of the December 28, 2019 OCF-18 for massage therapy for the period of Aviva’s non-compliance with s. 38(8) plus interest in accordance with s. 51 of the Schedule; and

(iv) is not entitled to $314.23 of the remainder of the December 28, 2019 OCF-18 that is in dispute or to the April 21, 2020 OCF-18 for a chronic pain assessment.

Analysis

Causation

6In its submissions, Aviva raised the issue of causation of Mr. Budhram’s physical injuries and claimed that they were not caused by the accident. Aviva submitted that Mr. Budhram’s physical injuries were caused as a result of previous workplace accidents, a previous motor vehicle accident in July 2012 and/or as a result of previously diagnosed degenerative diseases. Mr. Budhram opposed Aviva’s position and maintained that his physical injuries were in fact caused by the subject accident.

7In order to determine entitlement to the treatment plans in dispute, Mr. Budhram is required to prove, on a balance of probabilities, that the accident caused his impairments. The applicable test in making this determination is the “but for” test: whether Mr. Budhram would have had the impairments but for the accident.² The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the accident need only to have been a “necessary cause.”³

8I find that Mr. Budhram has proven on a balance of probabilities that the physical injuries to his neck, back and shoulders and a right rib fracture were caused by the accident. Alternatively, I find that Mr. Budhram has proven on a balance of probabilities that the accident worsened his pre-accident neck and back conditions. Mr. Budhram, however, has failed to prove on a balance of probabilities that the accident caused his current hip complaints.

Neck and back

9On November 20, 2017, Mr. Budhram was diagnosed with whiplash associated disorder (WAD 2) and muscle strain in his lower back and neck by his family doctor, Dr. Elizabeth Tham. Dr. Tham also included WAD 2 and lower back muscle strain in the injuries and sequelae information portion of the December 22, 2017 Disability Certificate (“OCF-3”).

10Dr. Tham’s diagnoses were similar to the diagnoses made by Dr. Yuir Marchuk, physiatrist, in his December 7, 2018 Insurer’s Examination (“IE”) Physiatry Assessment report.⁴ Dr. Marchuk noted that Mr. Budhram was complaining of, among other things, neck and lower back pain. Dr. Marchuk’s accident-related diagnoses of Mr. Budhram included whiplash associated disorder (WAD 2) and lumbar musculoligamentous dysfunction.

11In the March 24, 2020 IE Orthopaedic Surgeon Assessment report by Dr. Manoj Bhargava, orthopaedic surgeon,⁵ Dr. Bhargava also reported that Mr. Budhram was complaining of pain in his neck and lower back. As a result of her assessment, Dr. Bhargava opined that Mr. Budhram sustained a WAD 1 injury and a lumbar spine sprain/strain with impairment as a result of the accident.

12In his May 29, 2020 IE Medical Physician Paper Review Assessment report,⁶ Dr. Mohamed Khaled, physician, also endorsed a WAD 1 injury and a lumbar spine sprain/strain diagnosis as a result of the accident.

13Aviva submitted that Mr. Budhram’s current neck and back complaints were not caused by the accident, but instead were caused by a previous motor vehicle accident on July 16, 2012 and/or arose as a result of Mr. Budhram’s pre-existing degenerative diseases.

14Prior to the accident, Mr. Budhram had a significant health history and had been diagnosed with several conditions in relation to his neck and back which included:

(i) Chronic back pain from a July 2012 motor vehicle accident (January 11, 2013);

(ii) Chronic neck and back pain (July 28, 2015);

(iii) Degenerative disc disease in the C4-C5 and C5-C6 levels (January 9, 2015);

(iv) Low back strain (May 1, 2015) and low back pain (September 25, 2015);

(v) Lower back muscle spasm of L R lumbar paraspinal muscles (August 6, 2015);

(vi) Stable scoliosis and degenerative changes in the lumbar spine (August 8, 2015);

(vii) L4 moderate degree anterior wedge compression fracture (May 8, 2017);

(viii) Degenerative disc disease of the lower thoracic and throughout the lumbar spine (May 8, 2017);

(ix) Neck strain (May 1, 2015 and June 12, 2015) and neck pain (February 22, 2017);

(x) Diffuse idiopathic skeletal hyperostosis (DISH) changes in the thoracic spine (October 12, 2017); and

(xi) Right inferior SI joint osteoarthritis (May 8, 2017 and May 13, 2017).

15There is no evidence before me that supports Aviva’s position that Mr. Budhram’s previously diagnosed chronic neck and back pain following his previous July 2012 motor vehicle accident impacted or resulted in his current neck and back complaints. In fact, the evidence suggests that these injuries were resolved prior to the subject accident as Dr. Tham noted that Mr. Budhram’s chronic back pain from his previous accident was “resolved” in the December 22, 2017 OCF-3.

16The IE assessors also do not support Aviva’s theory that Mr. Budhram’s neck and back complaints were caused by his July 2012 accident. In his December 7, 2018 IE report, Dr. Marchuk noted that he reviewed Dr. Tham’s December 22, 2017 OCF-3 and specifically referred to the portion of the OCF-3 regarding Mr. Budhram’s previous accident. Dr. Bhargava also noted in her March 24, 2020 report that she was made aware of the July 2012 accident as part of her assessment of Mr. Budhram. Despite these two assessors being aware of Mr. Budhram’s 2012 accident, at no time did Dr. Marchuk or Dr. Bhargava attribute any of their diagnoses to the 2012 accident. Additionally, while Dr. Khaled did not specifically refer to the 2012 accident in his May 29, 2020 report, he clearly reviewed both Dr. Marchuk’s and Dr. Bhargava’s reports and also did not attribute Mr. Budhram’s neck and back complaints to the 2012 accident.

17It is also clear that the IE assessors were aware of Mr. Budhram’s pre-existing degenerative diseases but, again, still attributed Mr. Budhram’s diagnoses of injuries to his neck and back to the subject accident. Dr. Khaled, Dr. Marchuck and Dr. Bhargava stated that their diagnoses regarding Mr. Budhram’s injuries to his neck and back were on the background of, or superimposed over, his pre-existing DISH and degenerative changes in his cervical and lumbar spine which demonstrated their awareness of Mr. Budhram’s degenerative diseases.

18The evidence also shows that Mr. Budhram’s pre-accident neck and back conditions were asymptomatic for at least six months prior to the accident. Mr. Budhram’s only reported complaint by of neck pain or back pain within one year prior to the accident was on February 22, 2017, when he complained to Dr. Tham of neck pain for which he was referred to physiotherapy. Mr. Budhram later reported to Dr. Tham on May 13, 2017 that he had no neck pain.

19Based on all of the evidence before me, I find that Mr. Budhram has proven on a balance of probabilities that the subject accident caused his current neck and back conditions. In the event that I am incorrect in this finding, I find in the alterative that Mr. Budhram has proven on a balance of probabilities that the subject accident worsened his pre-existing neck and back conditions given the IE assessors’ reports that Mr. Budhram’s neck and back diagnoses were on the background of, or superimposed over, his pre-existing neck and back conditions. Additionally, in an August 5, 2019 physiatry assessment report by Dr. Alice Sau Han Kam, physiatrist,⁷ Dr. Sau Han Kam diagnosed Mr. Budhram with aggravated chronic osteoarthritis in his cervical, thoracic and lumbar spine as a result of the accident. Dr. Sau Han Kam’s report also supports my alternative finding regarding causation of Mr. Budhram’s neck and back injuries following the accident.

Shoulders

20On November 20, 2017, Dr. Tham diagnosed Mr. Budhram with muscle strain in his shoulders. Dr. Tham also included the diagnosis of bilateral shoulder muscle strain in the December 22, 2017 OCF-3.

21In his December 7, 2018 report, Dr. Marchuk noted that Mr. Budhram was complaining of right shoulder pain and diagnosed Mr. Budhram with cervicothoracic bilateral shoulder myofascial dysfunction (right greater than left) (superimposed over degenerative disc disease of the thoracic spine and degenerative changes in the bilateral shoulders) as a result of the accident.

22In Dr. Bhargava’s March 24, 2020 IE report, Dr. Bhargava stated that Mr. Budhram complained of pain in his right shoulder. Dr. Bhargava queried whether or not Mr. Budhram sustained a right rotator cuff tear as a result of the accident and recommended further investigation. On June 2, 2020, Dr. Bhargava amended her diagnosis in a June 2, 2020 IE Orthopaedic Addendum Report⁸ to include a partial thickness tear of the right subscapularis based upon a March 28, 2020 ultrasound of Mr. Budhram’s right shoulder which showed a hypoechoic defect in the subscapularis which was consistent with a partial-thickness tear.

23Aviva submitted that Mr. Budhram has not proven that the accident caused his shoulder conditions. Rather, Aviva submitted that Mr. Budhram’s failure to follow workplace restrictions after a 2011 workplace injury is what caused a significant regression with respect to the injuries sustained in that accident of pain and limitation which have extended up into his left arm and shoulder.

24In December 2011, Mr. Budhram sustained a workplace injury that resulted in a laceration to his left arm extensor tendons which was surgically repaired in 2011 and required a second surgery in 2013 to address scar tissue. This injury has left Mr. Budhram with a permanent impairment to his left hand according to both Dr. Tham⁹ and Dr. Herb Von Schroeder, orthopaedic surgeon. Dr. Tham described Mr. Budhram’s physical restriction of his left hand in her May 29, 2015 clinical note and record (“CNR”) entry as Mr. Budhram not having full flexion and not being able to close his left hand into a fist. In her February 24, 2016 Neurology note, Dr. Layla Safinia, neurologist, confirmed that Mr. Budhram had limited extension and flexion in his left hand and described it as a “claw hand”.¹⁰

25In his submissions, Mr. Budhram conceded that he had pre-existing injuries to his left upper extremity, left-hand chronic pain and moderate left carpal tunnel syndrome. Mr. Budhram’s permanent impairment of his left hand, however, also led to several other difficulties which resulted in the following pre-accident diagnoses:

(i) Left ulnar neuropathy, likely at the elbow and mild demyelinating left median neuropathy at the wrist (June 24, 2015);

(ii) Left lateral epicondylitis (July 22, 2015 and February 23, 2016);

(iii) Left cubital tunnel syndrome (July 22, 2015);

(iv) Left hand numbness and tingling radiation to the left elbow (September 25, 2015);

(v) Chronic left-hand swelling pain and left elbow tendinitis (October 23, 2015);

(vi) Mild enthesopathy and osteoarthritis of the left elbow (February 20, 2016);

(vii) A likely mild injury to the distal portion of the ulnar sensory nerve in the left hand (February 24, 2016); and

(viii) Chronic numbness of the left arm (July 3, 2017).

26From at least 2014, Mr. Budhram was working on modified duties in a factory setting following a functional abilities evaluation¹¹ and then further permanent workplace restrictions were recommended in 2015 of limitations to repetitive gripping and pinching with his left upper extremity.¹² Nonetheless, Aviva has not directed me to any medical evidence to support its position that Mr. Budhram’s continuation of work in a factory setting after his 2011 workplace injury led to his current shoulder issues.

27Mr. Budhram’s 2011 workplace injury was also to his left hand and ongoing issues to his left upper extremity. Aviva failed to provide any evidence that the ongoing issues in Mr. Budhram’s left hand and upper extremity somehow caused Mr. Budhram’s complaints of difficulties in his right shoulder and those complaints being greater than his left shoulder post-accident. There is certainly no evidence to support Aviva’s submission that Mr. Budhram’s partial-thickness tear in his right shoulder was caused by his pre-existing left arm conditions.

28I also find that Mr. Budhram’s shoulder issues were asymptomatic for at least six months prior to the subject accident. The most recent complaint regarding Mr. Budhram’s shoulders prior to the accident was on May 13, 2017 in which Dr. Tham noted that Mr. Budhram complained of shoulder pain. At that time, Mr. Budhram was referred to physio and there were no other shoulder complaints recorded in Dr. Tham’s CNRs prior to the accident.

29For all of the reasons set out above, I find that Mr. Budhram has proven on a balance of probabilities that his shoulder complaints were caused as a result of the subject accident and did not arise as a result of his 2011 workplace injury.

Hip Pain

30Prior to the accident, Mr. Budhram was diagnosed in May 2017 with mild hip osteoarthritis (right greater than left) and right inferior SI joint osteoarthritis.

31In his December 7, 2018 report, Dr. Marchuk diagnosed Mr. Budhram with right leg myofascial dysfunction and right iliotibial band myofascial dysfunction that was superimposed over Mr. Budhram’s right greater than left mild hip osteoarthritis and right inferior SI joint osteoarthritis as a result of the accident.

32Similarly, Dr. Sau Han Kam diagnosed Mr. Budhram with aggravated chronic osteo-arthritis of bilateral hips as a result of the accident in her August 5, 2019 physiatry assessment report.

33The difficulty that I have in giving weight to Dr. Marchuk and Dr. Sau Han Kam’s diagnoses involving Ms. Budhram’s hips is that Mr. Budhram’s first complaint of hip pain post-accident was on September 19, 2018 to Dr. Tham, which was 10 months after the accident. Further, Dr. Tham noted in her September 19, 2018 CNR entry that Mr. Budhram described his hip pain as only being in existence for “2-3 days.” The newly reported hip pain to Dr. Tham is further supported by an October 24, 2018 Note from Dr. Varun Kapila, vascular surgeon. In this note, Dr. Kapila stated that Mr. Budhram reported changes in his regular exercises as a result of developing “new left side buttock and hip pain (my emphasis added).”¹³ Neither Dr. Marchuk or Dr. Sau Han Kam provide any discussion of how Mr. Budhram’s hip complaints 10 months post-accident were caused by the accident, or made worse by the accident, especially in light of Mr. Budhram’s hip pain being described by two treating practitioners as recent. For this reason, I find that Mr. Budhram has failed to prove on a balance of probabilities that the accident caused his current hip conditions or that it aggravated his pre-existing right greater than left mild hip osteoarthritis and right inferior SI joint osteoarthritis.

1996 Workplace injury

34In its causation submissions, Aviva also raised the issue of Mr. Budhram’s right hand fracture sustained in an August 1996 workplace accident.

35Although Aviva’s position on how this facture caused Mr. Budhram’s current complaints is not altogether clear, I find that there is no evidence before me that Mr. Budhram had any ongoing issues from this injury beyond 1996, some eleven years prior to the accident. As a result, and for completeness, I find that Mr. Budhram’s 1996 right hand fracture was not the cause of any of his post-accident conditions or injuries.

36Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

37Mr. Budhram bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.¹⁴

Massage therapy

38The remaining portion of the December 28, 2019 OCF-18 in dispute between the parties is $698.28 for 12 one-hour sessions of massage therapy. The OCF-18 was submitted by way of HCAI on January 23, 2020¹⁵ and the estimated duration of this plan was 12 weeks.

39Mr. Budhram submitted that Aviva failed to comply with its obligations under s. 38(8) of the Schedule regarding its denial notices for this disputed OCF-18 on that basis that Aviva failed to respond within 10 business days after receiving the treatment plan and also that Aviva failed to set out the medical and other reasons for its denial.¹⁶

40Sections 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.

41The requirement of medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,¹⁷ in which 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.¹⁸

42Pursuant 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.

43On February 11, 2020, Aviva provided correspondence to Mr. Budhram which referred to the disputed OCF-18 and gave the following statement under the heading of “Explanation of benefits:” “We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.”¹⁹ In the same letter, Mr. Budhram was also provided notice of his required attendance at an independent medical examination. Under the heading, “Here are the details for your independent medical examination,” the medical reasons provided for Mr. Budhram’s attendance at an orthopeadic surgeon assessment were as follows:

There appear to be pre-existing or concurrent medical conditions exist [sic] that might affect the patient’s care, treatment, and prognosis.

Your OCF 3 indicated a disability period of 9-12 weeks and we are long past that time. Your clinical notes and records indicate pre-existing degenerative disc disease and osteoarthritis. We require an assessment to determine whether the proposed treatment is reasonable and necessary as a result of the injuries sustained in your accident.²⁰

44Aviva concedes that its February 11, 2020 letter was sent three business days outside of the 10-business day period as required by s. 38(8).²¹ Aviva’s position is also that its February 11, 2020 denial otherwise complies with its obligations under s. 38(8) of the Schedule as it “contains the most important information needed to allow the Applicant to make an informed decision as to whether or not to dispute the Respondent’s position.”²² Aviva maintained that it exceeded the minimum requirements for a valid denial and relies upon the Financial Services Commission of Ontario (“FSCO”) decision of Augustin v. Unifund Assurance Co.²³

45Regardless of Aviva’s non-compliance with the 10-business day timeline for a response to an OCF-18 under s. 38(8) of Schedule, I find that Aviva’s February 11, 2020 denial of the treatment plan does not comply with its obligations under s. 38(8). Aviva’s statement that its “unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained” provides no specific details about Mr. Budhram’s condition that formed the basis of Aviva’s decision and did not, in the alternative, identify information about Mr. Budhram’s condition that the insurer does not have but required. Simply referring to “injuries” does not make Aviva’s statement a “medical reason” and I find that this information was not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Further, while I am also not bound by FSCO decisions, Aviva provided no submissions or any discussion on how the decision in Augustin v. Unifund Assurance Co. should be applied in the current matter.

46Moreover, even though Aviva provided additional statements in its February 11, 2020 correspondence regarding Mr. Budhram’s pre-existing conditions, these remarks were under a separate heading in the letter as the medical reasons provided for the IE. In my opinion, these reasons are required separately under section s. 44(5) of the Schedule and do not mitigate the requirement of Aviva to provide medical reasons for its denial of the OCF-18 under s. 38(8).

47Aviva sent further correspondence to Mr. Budhram regarding this treatment plan on March 25, 2020. In this letter, Aviva noted that the amount claimed by the OCF-18 was $2,252.00 and that nothing was payable. Aviva also enclosed an IE orthopaedic surgeon assessment by Dr. Manoj Bhargava dated March 24, 2020. Aviva noted that Dr. Bhargava deferred an opinion on whether the disputed OCF-18 was reasonable or necessary pending further investigations. Aviva then stated:

[Dr. Bhargava] determined that proper diagnostic work-up of the right shoulder needs to be completed (x-ray and ultrasound). Depending on the findings, certain exercises might be beneficial or referral to orthopaedic surgeon for trial of injections. Please see your family doctor to proceed with these recommendations. On receipt of further investigative imaging (x-rays, ultrasounds of your right shoulder), we will forward them for further review by Dr. Bhargava to determine if this treatment plan is reasonable and necessary.²⁴

48I find that Aviva’s March 25, 2020 correspondence complied with s. 38(8) of the Schedule and cured its previous defective February 11, 2020 notice. Aviva outlined what information about Mr. Budhram’s condition it did not have but that it required (i.e. further diagnostic testing of Mr. Budhram’s right shoulder) which is an acceptable response pursuant to the principles set out in T.F. v. Peel. Aviva was also clear in this notice that it was not paying any of the proposed treatment plan and, therefore, I find that the March 25, 2020 notice was sufficiently clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

49Mr. Budhram maintains that, because Aviva failed to provide a compliant denial notice within the required 10 business days as set out in s. 38(8), the entire treatment plan is payable. In support of his position, Mr. Budhram relies upon DS v Aviva Insurance Canada,²⁵ which was upheld upon reconsideration.²⁶ Mr. Budhram submits that, in DS v Aviva, Adjudicator Grant found that the applicant was entitled to two treatment plans due to Aviva’s improper denial and lateness in its response in accordance with s. 38(8) of the Schedule.

50In response, Aviva noted that the reconsideration decision of DS v Aviva is being appealed to the Divisional Court and stated that it does not agree with Mr. Budhram’s position that the entire treatment plan is payable. To support its position, Aviva relied upon 17-007543 v Belairdirect Insurance Company.²⁷ In 17-007543, Adjudicator Norris applied s. 38(11) and held that the applicant was entitled to costs incurred after the 11th business day following receipt of a treatment plan to which the respondent had not replied, and that this entitlement to incurred costs ends when the respondent provides a proper denial. Aviva also relied upon other Tribunal decisions that require the proposed goods and services to be incurred for any amounts to be payable by an insurer under s. 38(11)2.²⁸ Aviva also made further submissions regarding the applicability of s. 3(7) and s. 3(8) of the Schedule regarding expenses being “incurred.”

51I disagree with both Mr. Budhram’s and Aviva’s position regarding the consequences of s. 38(11)2. Section 38(11)2 of the Schedule states:

The Insurer shall pay for all goods, services, assessment and examinations described in the treatment and assessment that relate to the period starting on the 11th business day after the day that the insurer received the application and ending on the day the insurer gives a notice described in subsection (8) (my emphasis added).

52In M.F.Z. v. Aviva,²⁹ the Executive Chair of the Tribunal wrote the following in interpreting sections of the Schedule:

The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [citation omitted]. This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.³⁰

53On a plain reading of s. 38(11)2, there is no requirement for any services to be “incurred” as the section only states “that relate to the period.” In fact, “incurred” is found nowhere in s. 38(11) yet it appears in countless other sections of the Schedule. Therefore, when s. 38(11)2 is read harmoniously with the Schedule as a whole, it is readily apparent that the legislature purposefully used the wording “that relate to” in lieu of “incurred” in s. 38(11)2. Therefore, I disagree with Aviva that good and services sought in the OCF-18 must be incurred after the 11th business day of the receipt of the OCF-18 until Aviva remedied its defective notice on March 25, 2020 in order for the consequences in s. 38(11)2. to apply.

54Similarly, I find that Aviva’s arguments regarding s. 3(7) and s. 3(8) of the Schedule are not applicable as those sections speak to incurring a benefit, which is not the language used in s. 38(11)2.

55I also disagree with Aviva’s position that the Divisional Court’s decision in Aviva General Insurance v. Khan³¹ is applicable to this matter as s. 38(11) of the Schedule was not at issue in that decision. Further, the consequences in s. 38(11)2 do not require a finding that an insurer unreasonably withheld or delayed payment of a benefit.³²

56However, I also disagree with Mr. Budhram’s position that failing to provide a compliant denial notice within 10 business days of the receipt of the OCF-18 renders an entire OCF-18 payable. Again, based on a plain reading of s. 38(11)2, Aviva is liable for payment of the proposed treatment described in the disputed OCF-18 that relate to the period starting on the 11th business day after the day that the insurer received the OCF-18 and ending on the day the insurer gives a notice described in s. 38(8).

57Therefore, I find that Mr. Budhram is entitled to the goods and services set out in the OCF-18 for the period from the 11th business day after Aviva received the OCF-18 until March 25, 2020 even if services were not incurred during this period as, in my opinion, this is not what is required by s. 38(11)2. The estimated length of the treatment plan was stated as 12 weeks. Mr. Budhram is therefore entitled to payment up to the amount of $384.05 for the proposed massage therapy treatment described in the OCF-18 that relates to the period of Aviva’s non-compliance with s. 38(8), which was six weeks and three business days ($698.28 divided by 12 weeks divided by five business days per week times 33 total business days), upon submission of an invoice for services rendered. This interpretation is also consistent with s. 38(15) of the Schedule which only obliges an insurer to pay for goods and services it is required to pay for under s. 38 upon receiving an invoice for them.

58As I have found that Aviva complied with its obligations under s. 38(8) of the Schedule as of March 25, 2020, I now need to determine if the remainder of the proposed massage therapy is reasonable and necessary.

59The December 28, 2019 treatment plan was completed by Shilpi Arora, physiotherapist, which listed the following goals: pain reduction; increased range of motion; increase in strength; return to activities of normal living; and a return to pre-accident work activities. Ms. Arora also noted on the OCF-18 that Mr. Budhram “overall feels better” but that he was complaining of intermittent remissions as Mr. Budhram had increased pain in his lumbar area this week. The objective of the treatment plan was “slow and gradual improvement, able to tolerate low level of exercises.” The injury and sequelae information listed the following: whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs; sprain and strain of the thoracic and lumbar spine; other specified injuries of shoulder and upper arm; and a rib fracture. There were no attachments to the treatment plan.

60I find that Mr. Budhram has failed to prove on a balance of probabilities that the remaining balance of the proposed treatment plan for massage therapy is reasonable and necessary.

61The only submissions made by Mr. Budhram regarding the reasonableness and necessity of the proposed treatment plan is that “the treatment received provided him temporary relief and helped him manage his work duties, and activities of daily living.”³³ While it is noted in both Dr. Marchuk’s and Dr. Bhargava’s IE reports that Mr. Budhram reported temporary relief following treatment, it is unclear if the relief was being specifically gained from massage therapy or from the various other forms of therapies also noted as being received by Mr. Budhram in Dr. Marchuk’s and Dr. Bhargava’s reports.

62I also agree with Aviva that none of Mr. Budhram’s treating practitioners or assessors recommended massage therapy. While Dr. Tham made recommendations for physiotherapy, there was no recommendation made for massage therapy in her CNRs. In her August 5, 2019 report, Dr. Sau Han Kam only recommended a multidisciplinary chronic pain treatment that did not list massage therapy as a modality or hydrotherapy.

63Therefore, I find that Mr. Budhram is not entitled to the remainder of the proposed treatment plan in the amount of $314.23 for massage therapy as it is not reasonable and necessary.

Chronic Pain Assessment

64The April 21, 2020 OCF-18 was completed by Dr. Stephen Brown, physician, and sought funding in the total amount of $2,522.15 for a chronic pain assessment. The goals of the treatment plan included pain reduction, increase in strength, increased range of motion, a return to activities of normal living and for further treatment recommendations. The injury and sequelae information section listed the following: whiplash associated disorder (WAD 2) with complaint of neck pain; low back pain; disorders of muscle in diseases classified elsewhere (right flank pain); and other disorders of muscle (bilateral shoulder).

65In the additional comments portion, Dr. Brown stated that Mr. Budhram continued to complain of pain and discomfort in his neck, bilateral shoulders, upper back and lower back pain as well as bilateral hip pain. Dr. Brown stated that it appeared that Mr. Budhram’s unresolved injuries consist of chronic pains associated with originally sustained injuries as a result of the accident and that “a chronic pain assessment is considered as reasonable and necessary to address Mr. Budhram’s current complaints for further treatment recommendations.”

66I find that Mr. Budhram has failed to prove on a balance of probabilities that the proposed chronic pain assessment is reasonable and necessary.

67As stated by Aviva, Dr. Sau Han Kam noted in her August 5, 2019 Independent Physiatry Assessment report the chronic nature of Mr. Budhram’s neck and back injuries and residual chronic pain in his rib cage following a fracture of his right rib sustained in the accident. Dr. Sau Han Kam made several recommendations for treatment for Mr. Budhram including administering Tylenol and Advil, multidisciplinary chronic pain treatment, hydrotherapy, and a trial of Nortriptyline for his sleep disturbances. Dr. Sau Han Kam also deferred any recommendations for Mr. Budhram’s psychological complaints to the appropriate medical practitioners.

68While I agree with Mr. Budhram that he has not undergone a chronic pain assessment to date, it is unclear to me what additional recommendations for treatment Dr. Brown could provide in addition to Dr. Sau Han Kam’s recommendations or even if Mr. Budhram undertook the treatments recommended by Dr. Sau Han Kam. Simply because Dr. Sau Han Kim’s assessment was not titled a “chronic pain assessment” does not automatically result in a finding that a chronic pain assessment is not a duplication of services as it is clear that Dr. Sau Han Kam recognized the chronicity of Mr. Budhram’s complaints and made treatment recommendations. Even in his additional comments on the OCF-18, Dr. Brown did not indicate how his proposed chronic pain assessment would be different from, or was even warranted given, Dr. Sau Han Kam’s physiatry assessment and treatment recommendations.

69Finally, while I agree with Mr. Budhram that there were issues in Dr. Mohamed Khaled’s IE Medical Physician Paper Review Assessment regarding his opinion that the proposed OCF-18 was not reasonable and necessary given that he stated that an in-person assessment was required to determine Mr. Budhram’s level of function, the burden never shifts to Aviva to disprove Mr. Budhram’s entitlement to the disputed OCF-18.

70For all of these reasons, I find that Mr. Budhram is not entitled to the OCF-18 for a chronic pain assessment.

Interest

71Mr. Budhram is entitled to interest in accordance with s. 51 of the Schedule on the amount of $384.05 which is the payable portion of the December 28, 2019 OCF-18 for massage therapy.

Conclusion

72For the reasons outlined above, I find that Mr. Budhram is:

(i) entitled to $384.05 of the remaining $698.28 from the December 28, 2019 OCF-18 for massage therapy for the period of Aviva’s non-compliance with s. 38(8) upon submission of an invoice for services rendered plus interest in accordance with s. 51 of the Schedule; and

(ii) not entitled to the remainder of this treatment plan or to the April 21, 2020 OCF-18 for a chronic pain assessment.

Released: January 19, 2021