Released: February 16, 2021
Tribunal File Number: 19-005856/AABS
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:
Germaine Espiritu
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Salome Lopes, Paralegal
For the Respondent:
Sjawal Bhuttam, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Germaine Espiritu (“applicant”) was involved in an automobile accident on July 28, 2015 (“accident”). The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). 1
2The applicant was denied benefits by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
PRE-HEARING MOTION AND MOTION DECISION
3On October 30, 2020, the respondent brought a motion to exclude the applicant’s reply submission for this written hearing. On December 7, 2020 the Tribunal made an Order on consent of both parties that the motion be referred to the hearing adjudicator and so the motion is before me for determination.
4The respondent seeks an Order excluding the applicant’s reply submissions because the reply contains new documentary evidence and arguments. The respondent submits that the applicant is “splitting a case” contrary to Alcock, Laight & Westwood Ltd. v. Patten2 in which the court held that when a party exhausts his evidence in the first instance, he may not adduce confirmatory evidence when the initial evidence is shaken by his adversary and that a defendant is entitled to know the case he has to meet when he presents his defence. The respondent cites several Tribunal decisions in which this principle has been upheld and the Tribunal has struck the applicant’s reply.
5The applicant submits that his reply should not be struck from the record because he is responding to the respondent’s allegations and the reply is not an attempt to introduce new evidence or raise new arguments. The applicant relies on a Tribunal decision for the proposition that new evidence can be put forward in reply to rebut some new evidence or defence which the applicant has had no opportunity to deal with and which could not have reasonably been anticipated.3
6The respondent’s motion is dismissed. The applicant’s reply submissions contain correspondence from the applicant’s legal representative to the respondent dated February 12, 2020 which responds to the respondent’s submission that the applicant failed to comply with the Tribunal’s January 15, 2020 Order. I accept the applicant’s submissions that he could not reasonably anticipate the respondent would raise this in its hearing submissions given that the applicant produced these documents some two days late.
7The applicant’s reply submissions also contain a clinical note of Dr. Hui, applicant’s neurologist dated November 22, 2017, one new case and additional submissions. In this particular case I accept the applicant’s submission that he felt it necessary to put this forward in his reply to respond to new issues raised by the respondent in its response.
8The applicant’s request for costs is dismissed as there is no evidence before me that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith in bringing this motion.
ISSUES
9The issues to be decided in this hearing are:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for other goods and services of a medical nature, recommended by Ontario Independent Assessment Centre, in a treatment plan (OCF-18) submitted on July 5, 2017, and denied on July 17, 2017 (“chronic pain assessment”)?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,000.00 for other goods and services, recommended by Ontario Independent Assessment Centre, in a treatment plan (OCF-18) submitted on July 6, 2017, and denied on July 31, 2017 (“neurological assessment”)?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10The applicant is not entitled to the cost of the chronic pain assessment or the neurological assessment. No interest is payable. The applicant’s application is dismissed.
LAW
11Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.4
ANALYSIS
Positions of the Parties
12The applicant submits that he has ongoing pain from injuries to his back, neck and right shoulder suffered in the accident and ongoing headaches, depression, anxiety and vertigo for which he has been prescribed medication. The applicant relies on his evidence submitted for the hearing including the report from respondent’s neurologist, Dr. Yufe, which he says recommends the applicant be assessed by a chronic pain specialist and the May 2, 2019 report from Dr. Hope, applicant’s neuropsychologist which notes neurological symptoms. The applicant also submits that the notices from the respondent do not comply with s. 38(8) of the Schedule.
13The respondent submits that the chronic pain assessment is not reasonable or necessary and relies on the opinion of Dr. Loritz, general practitioner. The respondent submits that the neurological assessment is not reasonable or necessary and relies on the opinion of it’s neurologist Dr. Yufe. The respondent also submits that it’s denial of both proposed assessments is valid.
Is the Applicant Entitled to the Chronic Pain Assessment?
14I find that the applicant is not entitled to the chronic pain assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident. The chronic pain assessment is recommended by Dr. Efala, physician with Ontario Independent Assessment Centre dated July 5, 2017 at a cost of $2,200.00. Injuries listed are sprain and strain of lumbar spine, sacroiliac joint and shoulder girdle and whiplash associated disorder (WAD I).
15The August 4, 2015 x-ray of the applicant’s cervical and thoracic spine was normal with minimal degenerative changes at L4-5 of the lumbar spine.
16The applicant did not point to any support from Dr. Makhlouf, applicant’s family physician, for the reasonableness and necessity of the chronic pain assessment or supporting it’s goals or how the goals would be met. There is no evidence establishing that the overall cost is reasonable and necessary. In the two years between the accident and this proposed chronic pain assessment, the weight of the evidence is that the applicant’s accident-related symptoms are managed with medication prescribed by Dr. Makhlouf. The applicant did not point to any evidence that Dr. Makhlouf referred the applicant to any medical specialist for chronic pain investigation or assessment resulting from the accident.
17There is little support for chronic pain in the records of Dr. Makhlouf, applicant’s family physician. Dr. Makhlouf described resolving neck and shoulder pain by the end of August 2015, and on September 18, 2015 described sitting as “almost normal with mild back discomfort”, standing as “shifting weight almost normal” and “pain in shoulder almost gone” as well as “patient states too much twisting, bending, lifting at work and would like to be on modified duties for another two weeks”. There are no significant reports of ongoing shoulder or back pain to Dr. Makhlouf in 2017.
18The applicant told Dr. Loritz in 2017 that he is independent with his self-care and household chores, goes to the gym regularly for bodybuilding exercises and drives a motor vehicle frequently. The applicant reported to Dr. Hope in 2019 that he has been able to continue his employment starting a few months post-accident and that he has been promoted to supervisor. There is an absence of significant functional limitation. The applicant’s ability to do these activities, even if limited in some respects, is not consistent with the severe, debilitating pain associated with chronic pain syndrome.
19This chronic pain assessment was completed by Dr. Efala, the applicant’s orthopaedic surgeon, on September 15, 2017, more than two years post-accident. Dr. Efala diagnoses chronic pain of the applicant’s neck and back as well as right shoulder myofascial pain but does not diagnose chronic pain syndrome. Dr. Efala recommends MRI of the lumbar spine and x-ray of the cervical spine but states that further management of the applicant’s condition will depend on the results of the recommended imaging. Dr. Efala’s report adds little to the medical information already on file as to the applicant’s medical condition as a result of the accident and I find it not to be reasonable and necessary.
20I prefer the October 19, 2017 opinion of Dr. Loritz that the chronic pain assessment is not reasonable and necessary. After a review of numerous medical records and a clinical examination of the applicant, Dr. Loritz diagnoses uncomplicated myofascial sprain/strain injuries of the cervical spine (whiplash WAD I), shoulder girdle and axial spine and persistent radicular symptoms involving his right legal likely partially attributable to the subject accident and partially attributable to his intense bodybuilding program. Dr. Loritz opines that the chronic pain assessment is not considered reasonable and necessary in relation to the impairment sustained in the motor vehicle accident. Further, Dr. Loritz opines that the diagnosis of the applicant’s injuries has been established, adequate diagnostic interventions have been completed and his residual symptoms are amenable to management with appropriately directed soft tissue interventions. The applicant told Dr. Loritz that “during the past year” he developed symptoms of vertigo which has not yet been diagnosed, that he has experienced ringing in his ears which developed approximately one and a half years ago, was off work for two and a half months and returned to work on modified duties for the first three weeks and is presently working his normal hours.
21Although in the October 3, 2017 report Dr. Yufe, states that an assessment by a chronic pain specialist with regard to his pain issues might be reasonable and he needs to be monitored with regard to the episodes of spinning of the room, nausea and vomiting, in the end Dr. Yufe concludes that the applicant’s issues seem to be under control with medication and so no further investigations are necessary. Contrary to the applicant’s submission, this is not an opinion that the chronic pain assessment is reasonable and necessary but, instead, that it might be reasonable, but is not necessary.
22I agree with the respondent’s submission that the applicant has simply presented the various complaints made by the applicant to health providers and assessors and argues that as a result the treatment plans are reasonable and necessary. The applicant has failed to make persuasive submissions as to why the chronic pain assessment is reasonable and necessary.
23The onus remains on the applicant to establish that the chronic pain assessment is reasonable and necessary. Entitlement to medical benefits is not automatic but must be established by appropriate evidence. I find that the applicant has not done so here.
24After considering all of the evidence, submissions and cases put forward by the applicant, I find that the applicant has not established that the neurological assessment is reasonable and necessary.
Is the Applicant Entitled to the Neurological Assessment?
25I find that the applicant is not entitled to the neurological assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident. The neurological assessment is recommended by Dr. Prigozhikh, applicant’s neurologist, dated July 6, 2017 at a cost of $2,000.00. Injuries listed are headache, other dorsalgia, low back pain and radiculopathy, cervical and lumbar regions.
26This neurological assessment was completed by Dr. Prigozhikh on October 23, 2017, more than two years post-accident. It is not clear from Dr. Prigozhikh’s report who referred the applicant to him for assessment. Dr. Prigozhikh diagnoses chronic pain, injuries to the cervical and lumbar spines, muscle, right upper limb, right thigh and calf, hip and knee pain, cervicogenic headache, insomnia, specific phobia and mood disturbance but does not find any neurological impairment. Dr. Prigozhikh’s report adds little to the medical information already on file as to the applicant’s medical condition as a result of the accident, and I find it not to be reasonable and necessary. Further, this neurological assessment is not reasonable and necessary as Dr. Makhlouf’s records show a referral to “neuro” on July 28, 2017. Dr. Hui, a neurologist, examined the applicant November 22, 2017 at the request of Dr. Makhlouf. This referral appears to have already been made before this neurological assessment was denied by the respondent. The applicant’s medical records do not establish an urgent need for neurological assessment before Dr. Hui could see the applicant.
27The July 29, 2015 hospital records show the applicant complained of headache, no loss of consciousness and that he “appears well”. The November 1, 2015 hospital emergency department record describes a visit for syncope, nausea and vomiting after a workout at a gym and notes “no neuro deficits”. This episode it appears from the records to be completely unrelated to the accident. A January 26, 2017 MRI of the applicant’s head was unremarkable.
28I prefer the October 3, 2017 opinion of Dr. Yufe over that of Dr. Prigozhikh. Dr. Yufe opines, after a review of numerous medical records and a clinical examination of the applicant, that the proposed neurological assessment is neither reasonable nor necessary because the applicant does not have a neurological disorder. Dr. Yufe opines that the applicant’s symptoms are more suggestive of vestibular disorder than a neurological disorder. Dr. Yufe opines that the vestibulopathy is unrelated to the accident.
29Dr. Yufe’s opinion is supported by the opinion of the applicant’s neurologist Dr. Hui. The applicant submitted Dr. Hui’s opinion in reply submissions. Dr. Hui found the applicant’s examination was normal and his brain MRI was normal. Dr. Hui opined that he doubts the applicant’s vertigo is related to the accident as it did not start until one-year post-accident, and it is much more likely that he has a peripheral vestibulopathy, possibly BPV.
30Although the May 2, 2019 report of Dr. Hope and some other medical records note neurological symptoms, Dr. Hope is a neuropsychologist and I prefer the more detailed medical neurological education and experience of Dr. Yufe. I give Dr. Hope’s report little weight.
31I agree with the respondent’s submission that the applicant has simply presented the various complaints made by the applicant to health providers and assessors and argues that as a result the treatment plans are reasonable and necessary. The applicant has failed to make persuasive submissions as to why the neurological assessment is reasonable and necessary.
32The onus remains on the applicant to establish that the neurological assessment is reasonable and necessary. Entitlement to medical benefits is not automatic but, must be established by appropriate evidence. I find that the applicant has not done so here.
33After considering all of the evidence, submissions and cases put forward by the applicant, I find that applicant has not established that the neurological assessment is reasonable and necessary.
The Notice Argument
34Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary.
35The applicant submits that the respondent’s notices dated August 10, 2017 and October 27, 2017 do not comply with s. 38(8) of the Schedule. The applicant did not argue the notices were untimely.5 The applicant submits that the respondent’s August 10, 2017 notice was deficient because it stated the “patient’s subjective physical complaints appear to remain unchanged despite continuing treatment” but provided no other reason for denial. The applicant submits that the respondent’s October 27, 2017 notice advises that the respondent has received the insurer’s examination (“IE”) reports dated October 12, 2017 by Dr. Prigozhikh and October 19, 2017 by Dr. Efala, neither of whom conducted insurer’s examinations for the respondent, and as a result the notice contains misleading and inadequate information. The applicant relies on a previous Tribunal decision.6
36I find that the respondent’s notices dated August 10, 2017 and October 27, 2017 with respect to both proposed assessments comply with the Schedule’s requirements. Having reviewed the notices, I am satisfied that they meet the requirements of s. 38 (8).
37The respondent’s August 10, 2017 notice identified the services in the two treatment plans, specifically the chronic pain assessment and the neurological assessment, that the respondent did not agree to pay for and gave as the medical reason “the patient’s subjective physical complaints appear to remain unchanged despite continuing treatment”. No other reason for denial was given. Section 38(8) of the Schedule does not require the respondent to give other reasons if there are none. The respondent submits that the notice was sufficient as it gave the medical reason. I agree.
38The respondent admits that it’s October 27, 2017 notice referenced in the body of the letter the reports obtained by the applicant in error. However, the respondent submits that its IE reports were enclosed with the denial. I agree with the respondent’s submission that the body of the October 27, 2017 contains an error. However, I do not find this correspondence to be misleading and inadequate information as argued by the applicant. Firstly, the reference to the applicant’s physicians names is an obvious error which would not likely mislead the applicant given that he would know the names of his own physicians. Secondly, the error was cured by the IE reports being provided to the applicant with this notice. Thirdly, this notice refers to the original July 5 and July 16, 2017 denials for further clarification. Fourthly, both proposed assessments had taken place before this correspondence was sent so the obvious error in this correspondence is moot.
Interest
39As no benefits are payable, no interest is payable.
ORDER
40For the reasons outlined above, the applicant is not entitled to the chronic pain assessment or to the neurological assessment. No interest is payable. The applicant’s application is dismissed.
Date of Issue: February 16, 2021
_______________________
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/10.
- Alcock, Laight & Westwood Ltd. v. Patten, 1966 CanLII 282 (ON CA), [1966] O.J. No. 1067 (ONCA); affirmed by the Supreme Court of Canada in R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 (SCC).
- L.H. v. Wawanesa Mutual Insurance Company, 2019 CanLII 22210 (ON LAT).
- Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
- The lack of objection to timeliness is consistent with the Tribunal’s case conference Order dated January 15, 2020 which reflects that the parties agreed that the denial of the chronic pain assessment was July 17, 2017 and the denial of the neurological assessment was July 31, 2017.
- 18-000467 v. Aviva Insurance, 2018 CanLII 112135 (ON LAT).```