Fiona Sekulic v. Aviva General Insurance, 2021 CanLII 18942

Citation: Sekulic v. Aviva General Insurance, 2021 ONLAT 19-012226/AABS

Released Date: 02/26/2021

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:

Fiona Sekulic

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Peter Cimino, Counsel

For the Respondent:

Leanne W. Zabudsky, Counsel

HEARD:

Via Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on May 30, 2014, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Aviva denied the benefit in dispute on the basis that it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

i. Is the applicant entitled to the cost of physiotherapy treatment in the amount of $2,189.98 recommended by Keswick Physio in a treatment plan (OCF-18) submitted on March 5, 2018 and denied on March 19, 2018?

ii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3The applicant has not demonstrated that the treatment plan in dispute is reasonable and necessary or incurred. As no benefits are overdue, it follows that interest under s. 51 does not apply.

ANALYSIS

Is the treatment plan reasonable and necessary?

4In order to be entitled to a medical benefit under s. 15 of the Schedule, the onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary. The treatment goals should be reasonable, the goals of treatment should be met to a reasonable degree and the overall costs of achieving the goals of treatment should be reasonable.

5The OCF-18 in dispute is dated March 5, 2018 and recommends 12 sessions of physiotherapy and 10 sessions of massage totalling $2,189.98, with $200 of the total allotted for documentation and assessment. The goals of the plan are identified as pain reduction, increased strength and range of motion in order to return the applicant to her activities of normal living.

6The applicant submits the plan is reasonable and necessary because it reflects ongoing injuries to the shoulder, cervical spine, lumbar spine, and lower leg and that these injuries impacted her ability to complete work-related tasks and engage in her activities of normal life. To support the plan, the applicant points to her diagnosis of disc bulges at the L4-S1 levels of her spine, with displacement of the left S1 nerve root; Dr. Malempati’s April 24, 2018 recommendation that the applicant participate in physical treatment; the September 7, 2018 recommendation for physiotherapy by Dr. Behrouz; and her physician’s recommendation for physical treatment in a clinical note dated June 12, 2019. She submits that the Tribunal should deem the treatment incurred pursuant to s. 3(8) of the Schedule, as payment was unreasonably withheld.

7In response, Aviva submits that the applicant has not met her onus to demonstrate that the OCF-18 is reasonable and necessary for a variety of reasons. As a threshold matter, it points to a similar OCF-18 prepared by the same practitioner in April 2015 that the Tribunal determined was not reasonable and necessary or payable in 17-002313 v. Aviva Insurance Canada, 2017 CanLII 81573 (ON LAT). To this end, Aviva submits that the goals and treatment frequency of the OCF-18 in dispute here remain unchanged despite no progress or identified barriers to the applicant’s recovery since. Further, Aviva submits that the applicant has made no treatment requests for over two years since 2016; that two of the three specialists the applicant relies on did not attribute her pain to the 2014 accident despite basing their opinions on the applicant’s self-reporting; and, finally, the applicant has consistently reported that physiotherapy she has received previously has not been beneficial.

8In addition, Aviva submits that the applicant’s claim should be dismissed because she has not demonstrated that she incurred the treatment claimed under s. 3(7) (or that s. 3(8) should apply) and, even if the treatment was incurred, that Aviva and the Tribunal are unable to determine any amounts owing as a result of two collateral benefits coverage policies that the applicant declared in her application.

9I agree with Aviva.

10On the evidence, I find my reasoning mirrors much of the analysis provided by the Tribunal in 17-002313/AABS. Here, there was no evidence offered by the applicant that she incurred the treatment, promised to pay for treatment or is otherwise obligated to pay the expenses listed in the OCF-18. While she urges the Tribunal to invoke s. 3(8) in her reply submissions, her accusations of unreasonable withholding on the part of Aviva fall well-short of the specificity required for a s. 10 award that is necessary to trigger the deemed incurred provision of s. 3(8). In any event, I find no indication that Aviva unreasonably withheld or delayed the payment of this benefit. Further complicating this issue are the two collateral benefit policies the applicant referenced in her application. Without specifics on collateral coverage, the ability to assess whether payment for treatment is necessary is muddied.

11In any case, I find the applicant’s evidence on the reasonableness and necessity of the OCF-18 did not meet her burden of proof. For an accident that occurred in 2014 for which the applicant has received $7,593.48 in treatment to date, I find the goals and the scope of treatment in this OCF-18 to be rather vague and generic and certainly not tailored to the applicant’s specific needs at this stage in her recovery. I query how effective physiotherapy and massage can be at over seven years post-accident and where the applicant has not reported much benefit from previous courses of similar treatment. While pain relief is a legitimate goal for treatment, it does not follow that it is reasonable and necessary for Aviva to continue to fund treatment that does not advance the applicant’s condition and especially so where the applicant went two years without making a claim before submitting this OCF-18.

12While the applicant is not strictly required to show a significant and material change in her medical condition to demonstrate that the OCF-18 is reasonable and necessary, as Aviva asserts, I do agree with Aviva that the applicant has provided limited evidence to show that her condition is meaningfully different than her condition was at the time the previous OCF-18 was denied and where she has not requested or incurred more treatment in the time since.

13For example, in the s. 44 report of Dr. Yip dated May 15, 2015, and following a full year of physiotherapy, the applicant reported that her pain had not improved as a result of her participation in treatment. Dr. Yip determined that further facility-based treatment would not be beneficial. In a similar vein, in the May 29, 2015 report of Dr. Somerville, the applicant reported minimal improvement from physical therapy, estimating her recovery at 20-30%. The December 14, 2017 consult report from Dr. Kachooie, on which the applicant relies, states that the applicant had previous physiotherapy, massage and chiropractic treatment but “without any significant benefit.” Notably, Dr. Kachooie does not attribute her hip/thigh pain or secondary back pain to the accident nor does he recommend facility-based physiotherapy or massage. Dr. Behrouz also did not attribute the applicant’s pain to the 2014 accident.

14While Dr. Malempati and Dr. Behrouz both advised physiotherapy, I find that both of these recommendations were made after the submission of the OCF-18 in dispute. Further, they seem to rely solely on the applicant’s self-reporting that her pain is attributable to the accident despite the amount of time that had passed and neither physician seemed to consider (or perhaps was not aware) that the applicant had previously undergone a significant course of treatment with little reported improvement. If the applicant indeed continues to have pain that can be attributed solely to the 2014 accident, even after several courses of facility-based treatment and injections and after requesting no treatment for two years, then I sincerely question the efficacy and reasonableness of recommending more of the same.

15With respect, rather than just pointing to recommendations, the Tribunal would also have benefitted from the applicant demonstrating why this specific OCF-18—12 sessions of physiotherapy and 10 sessions of massage—is different from the others that were actually incurred by the applicant several years ago. The Tribunal would have benefitted from a discussion as to how this OCF-18 would achieve the familiar goals of pain relief and functional improvement that the other treatment plans did not achieve. Where the applicant reported no benefit from previous physiotherapy, and where the applicant provided no specific submissions to demonstrate why this plan would be different, I cannot find that it would be reasonable and necessary for Aviva to pay for more.

16Accordingly, on a balance of probabilities, I find the applicant has not met her burden to prove that the treatment plan is reasonable and necessary or incurred. As no benefits are overdue, it follows that no interest is payable under s. 51.

ORDER

17The applicant has not demonstrated that the treatment plan in dispute is reasonable and necessary or incurred.

Footnotes

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