Citation: Viran v. Aviva General Insurance Company, 2021 ONLAT 19-008488/AABS

Release date: 2021/03/16

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:

Vena Viran

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Vena Viran, Applicant

Rajiv Kapoor, Paralegal

For the Respondent:

Aviva General Insurance Company, Representative

Sarah Fasih, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant, Vena Viran, was involved in an automobile accident on March 18, 2017, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). Vena Viran submitted treatment plans that were denied by Aviva on the basis that the treatment and assessment plans were not reasonable and necessary. Vena Viran disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute that I am asked to decide are as follows:

a. Is the medical benefit in the amount of $3,563.25 for physiotherapy recommended by Healthmax-Etobicoke in a treatment plan (“OCF-18”) submitted on August 16, 2017 and denied on September 14, 2017, reasonable and necessary?

b. Is the cost of an examination in the amount of $2,200.00 for an orthopaedic assessment recommended by HAL Disability Management Inc. in an OCF-18 submitted on August 28, 2017 and denied on September 29, 2017, reasonable and necessary?

c. Is the cost of an examination in the amount of $2,200.00 for a chronic pain assessment recommended by HAL Disability Management Inc. in an OCF-18 submitted on March 21, 2018 and denied on April 5, 2018, reasonable and necessary?

d. Is the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Injury Management & Medical Assessments in an OCF-18 submitted on July 7, 2017 and denied on September 28, 2017, reasonable and necessary?

e. Is Vena Viran entitled to interest on any overdue payment of benefits?

f. Is Vena Viran entitled to receive an award for unreasonably withheld or delayed payments pursuant to section 10 of Reg. 664, R.R.O. 1990?

FINDING

3Based on the evidence, I find the following:

a. Vena Viran is entitled to the OCF-18 for physiotherapy, plus interest;

b. Vena Viran is entitled to the OCF-18 for a chronic pain assessment, plus interest;

c. Vena Viran is not entitled to the OCF-18 for an orthopaedic assessment or the balance of the psychological assessment. As no payments are outstanding, no interest is payable on these treatment plans; and

d. Vena Viran is entitled to an award.

BACKGROUND

4Vena Viran has pre-existing medical conditions identified as Type 2 diabetes and Degenerative Disc Disease in the lumbar spine, cervical spine and thoracic spine regions.

5There are several visits to family physician, Dr. Wang, between March 23, 2017 and August 12, 2019, where Vena Viran discussed her accident-related injuries and the impact of her pre-existing condition on her recovery. As a result of the ongoing pain complaints, Dr. Wang referred Vena Viran for various diagnostic imaging investigations and consultations,² prescribed medication and recommended physiotherapy (which Vena Viran noted to be helpful for pain relief).

6Vena Viran also argues that Aviva failed to comply with the requirements set out in s. 38 of the Schedule, therefore the treatment plans are payable in full. In addition, Vena Viran submits that Aviva failed to determine the proper hourly rate for Ms. Wagner regarding the OCF-18 for a psychological assessment.

ANALYSIS

Section 38 non-compliance

7Vena Viran argues that Aviva is in non-compliance with s. 38, therefore the OCF-18 is payable. I disagree.

8Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice.

9Vena Viran submits that the OCF-18 for physiotherapy was submitted on August 16, 2017, therefore the deadline for a response pursuant to s. 38 was August 30, 2017. Vena Viran submits that the denial is non-compliant for the following reasons:

a. The denial fails to mention the correct amount being claimed on the OCF-18;

b. Aviva fails to give Vena Viran notice that identifies the goods, services, assessments and examinations described in the OCF-18 that it does not agree to pay; and

c. The response to the OCF-18 was dated August 31, 2017, which was one day past the due date for a response.

10Vena Viran submits that Aviva’s actions violated the requirements set out in s. 38(8), and the OCF-18 should be approved in its entirety.

11In its initial Explanation of Benefits (“EOB”) dated August 31, 2017, the amount of the OCF-18 is the same amount indicated in the Tribunal application. The EOB also notes the goods and services requested in the OCF-18, the date of the OCF-18, the treatment provider and the amount payable ($0.00). The EOB clearly sets out the medical reason for the denial, noting that the health practitioner “has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”[sic] The EOB advises Vena Viran that a paper review will be conducted, that her attendance is not required, which s. 44 assessor will conduct the paper review and the date of the paper review. Lastly, the EOB sets out further details of the next steps for Vena Viran.

12I find that the August 31, 2017 EOB did not comply with the 10-day response requirement set out in s. 38(8). However, Vena Viran did not provide proof that any of the treatment was incurred between the 10th and 11th business day, therefore Aviva cured its defective notice by the 11th business day, being August 31, 2017, and is not required to pay any portion of the OCF-18 as a result of its non-compliance. I will now discuss the reasonableness and necessity of the OCF-18.

OCF-18 in the amount of $3,563.25 for physiotherapy

13Section 14 of the Schedule sets out that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. Vena Viran bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. I find that Vena Viran has satisfied her burden on a balance of probabilities.

14Vena Viran relies on the records of Dr. Wang in support of her claim for physiotherapy treatment. On February 12, 2020, Dr. Wang diagnosed Vena Viran with cervical strain; trapezius tendonitis; chronic dorsalgia; chronic mechanical lower back pain; lower sciatica and sleep disorder. Dr. Wang opined that Vena Viran’s diagnosis is guarded and that her condition is chronic. Dr. Wang recommended a consultation with a pain specialist to medically-manage her condition, physiotherapy for a period of five months and maintaining the narcotic type of medication for pain in addition to anxiety medication.

15Aviva argues that Vena Viran has failed to establish that the treatment is reasonable and necessary. Its position is that there is no compelling medical evidence to substantiate that Vena Viran’s pain complaints were caused by the accident. Aviva points to diagnostic imaging reports that indicate mild to moderate degenerative changes in the cervical spine, and the medical evidence does not support that Vena Viran’s pre-existing medical condition(s) were exacerbated by the accident.

16Aviva submits that Dr. Wang’s records do not support a finding of chronic pain as a result of the accident. Aviva notes infrequent pain complaints during the post-accident period of visits to Dr. Wang. It further submits that despite a pending referral to a pain management clinic from Dr. Wang, there had not been a mention of a pain referral in any of the medical records. Aviva also argues that a medical questionnaire completed by Dr. Wang is not relevant to the disputed treatment plans as the questionnaire was completed over two years after the OCF-18s were submitted. Aviva asserts that the medical documentation does not support the need for further physiotherapy treatment.

17Aviva also relies on the reports of its s. 44 insurer examination assessor, general physician Dr. Chaudhry. The initial report is dated August 31, 2017, and a paper review assessment report is dated September 13, 2017. In his initial report, Dr. Chaudhry opined that there was no objective evidence to indicate that Vena Viran suffered injuries that were not minor in nature. In the September 13, 2017 paper review, Dr. Chaudhry noted that Vena Viran’s “range of motion and strength testing presented normal findings and there was no evidence of neurological or radicular pathology related to the accident.” Dr. Chaudhry concluded that further treatment was not reasonable and necessary.

18I disagree with Aviva for several reasons:

a. Despite Aviva’s claim that Vena Viran failed to establish that her medical condition would not exist but for the accident, I note that Vena Viran’s last visit to Dr. Wang was on August 21, 2015. Vena Viran did not seek medical attention from Dr. Wang until near the time of the accident. Further, Aviva submits that Vena Viran first complained of post-accident back pain almost two weeks post-accident. On March 23, 2017, Dr. Wang diagnosed Vena Viran with knee pain and lumbago with sciatica. This is less than two weeks post-accident, and lumbago with sciatica is indicative of lower back pain;

b. Aviva stated that from March 2017 to March 2018, Vena Viran made six visits to Dr. Wang presenting with accident-related pain complaints. The medical evidence shows that Vena Viran made a total of 14 visits to Dr. Wang, specifically for accident-related pain complaints between March 2017 and March 2018;

c. In response to Aviva’s claim that the medical questionnaire is not relevant, Vena Viran submits that the questionnaire provides insight into Vena Viran’s ongoing physical and psychological impairments as a result of the accident and points to limitations and recommendations relevant to the disputed OCF-18. I agree;

d. Despite Aviva’s position “that there is no compelling medical evidence to substantiate that Vena Viran’s current pain complaints were caused by the accident”, Dr. Wang’s pre-accident records from 2016 show no visits, to frequent visits beginning in March 2017, post-accident; and

e. Lastly, Aviva relies on the opinion of its expert from 2017, when as recent as February 2020, Dr. Wang provided an update on Vena Viran’s current medical well-being, noting that she will suffer from impairments for the foreseeable future, suggesting ongoing medication, physiotherapy and a referral to a pain specialist.

19It is well-established in the case law that pain relief, even as the lone goal of treatment, is a legitimate and sometimes reasonable and necessary goal. Upon review, I find the evidence of Dr. Wang compelling, and that Vena Viran’s pre- and post-accident visit history to Dr. Wang to be indicative of significant and ongoing accident-related pain complaints. I am also persuaded by Vena Viran’s self-reporting that physiotherapy provided her with relief from her accident-related injuries. For these reasons, I find that Vena Viran has met her onus on a balance of probabilities that the OCF-18 for physiotherapy treatment is reasonable and necessary.

OCF-18 in the amount of $2,200.00 for an orthopaedic assessment

20I find that Vena Viran has failed to meet her onus to prove that the orthopaedic assessment is reasonable and necessary.

21On the evidence, I find that there is no compelling medical evidence that supports Vena Viran’s claim of entitlement to an orthopaedic assessment. Her submissions are largely silent on what injuries from an orthopaedic perspective warrant further investigation by way of an assessment. On reply, the submissions are silent regarding any medical evidence or argument that supports that the orthopaedic assessment is reasonable and necessary.

22For these reasons, I find the orthopaedic assessment is not reasonable and necessary.

OCF-18 in the amount of $2,200.00 for a chronic pain assessment

23Vena Viran argues that Aviva failed to comply with the requirements set out in s. 38(8) of the Schedule and is therefore obligated to pay for all the goods and services described in the OCF-18. Similar to my reasons set out in paragraph 12 above, Vena Viran has failed to provide evidence that the cost of the OCF-18 was incurred during the period of non-compliance. However, I find Aviva has also failed to provide an EOB for the treatment plan in this proceeding. Although the OCF-18 was not incurred, I find that Aviva is obligated to pay for the chronic pain assessment due to the excessive delay in responding to the disputed OCF-18.

24I find that such an unreasonable delay in responding is grounds to levy the conditions set out in s. 38(11) against Aviva, that the insurer “shall pay”. There is no provision under s. 38 that the onus or expectation is on an insured to incur significant expenses with the hope that the insurer will, in turn, decide that the incurred treatment or assessment is reasonable and necessary. My interpretation of the legislation is that the cost of the assessment need not be incurred for it to be payable in this circumstance.

25Vena Viran is under no obligation to incur the full cost of the OCF-18 for an assessment however, Aviva is under an obligation to respond to the OCF-18 within a regulated time period of 10 days. It failed to do so, and at the time of this hearing, continued in its failure to respond. Therefore, as a decision has now been made on the issue, the door is closed to the option of curing its defective notice.

26I find that the OCF-18 for the chronic pain assessment is payable due to Aviva’s ongoing non-compliance under s. 38(8) of the Schedule.

OCF-18 in the amount of $2,200.00 for a psychological assessment

27Aviva partially approved the OCF-18 in the amount of $1,175.61. In the EOB dated September 28, 2017, I note that the amount of the OCF-18 is improperly indicated as $2,000. I understand this to be a typo, and contrary to Vena Viran’s claim that this error amounts to a violation of the requirements under s. 38, I disagree, and do not accept her argument that the balance of the OCF-18 is payable on such a ground.

28Aviva submits that the partial approval was adjusted to reflect the Financial Services Commission of Ontario Superintendent Guidelines’ (“FSCO Guideline”) prescribed rates for psychotherapists. The hourly rate is $58.19, which is the rate for unregulated treatment providers under the FSCO Guideline. Aviva’s position is that the psychological assessment was performed by Ibrahim Ismayilov, registered psychotherapist, who works under the supervision of psychologist Dr. Leanna Wagner. Aviva argues that Vena Viran did not provide any information with respect to Dr. Wagner’s involvement in the assessment, which justifies payment of the treatment plan at the psychological associate rate in accordance with the FSCO Guideline. Essentially, Aviva takes the position that there is no evidence that shows that Vena Viran was assessed by Dr. Wagner or that Ms. Wagner “actively supervised Mr. Ismayilov’s work to warrant the increased rate.” I agree.

29Vena Viran submits that the balance of the OCF-18 is payable for the following reasons:

a. Section 44 assessor, psychologist Dr. Syed, indicated the fees charged by Ms. Wagner are reasonable and in compliance with the FSCO Guideline recommendation;

b. A psychotherapist or a psychometrist can not complete the assessment independently from the psychologist;

c. Aviva did not provide any reasoning as to how it concluded that the psychotherapist or psychometrist was the one that completed the assessment; and

d. Aviva failed to request information from the treatment provider to establish the extent of Ms. Wagner’s involvement.

30I disagree with Vena Viran that the OCF-18 is payable for the following reasons:

a. In an EOB dated August 31, 2017, Aviva addresses the OCF-18, indicated the proper amount of the OCF-18 and all of the information regarding the medical reasons for the denial, that Vena Viran would be referred to a paper review assessment (at which her attendance was not required), and her right to dispute Aviva’s determination;

b. In the EOB dated September 28, 2017, Aviva provided Vena Viran with a copy of the report from Dr. Syed, advised Vena Viran of the medical and other reasons for the partial approval/denial, and again advised of her right to dispute Aviva’s determination. Further, Aviva provided an explanation for the determination of the rate for the partial approval;

c. Aviva submits that Vena Viran failed to provide any information with respect to the extent of Dr. Wagner’s involvement which would assist in determining the hourly rate of pay. I agree that the onus is not on Aviva to gather this information, and that it is on Vena Viran to ensure that reasonable requests made by Aviva for information are adhered to. It is not incumbent upon Aviva to verify a treatment providers’ involvement. The onus remains on an insured to demonstrate that the appropriate hourly rate is paid for services rendered; and

d. I disagree with Vena Viran that Aviva’s denials of the OCF-18 were improper under s. 38. Aviva has made no claim that Vena Viran remains in the MIG, nor has it argued that any of the disputed OCF-18s are not payable because Vena Viran’s injuries are predominantly minor. Aviva has maintained the same position that it believes that Vena Viran has not established that the OCF-18s are reasonable and necessary. I find that the denials complied with the provisions set out in s. 38(8), and the balance of the OCF-18 is not payable as a result of non-compliance.

31Vena Viran has failed to establish Dr. Wagner’s role in the assessment. Therefore, I find that Aviva was within its right to partially approve the OCF-18 at the unregulated professional hourly rate of $58.19, as this is in line with the FSCO Guideline. Further, I find that the partial approval is reasonable for the OCF-18 for the psychological assessment, and Vena Viran has not met her onus that the balance of the OCF-18 is reasonable and necessary.

AWARD

32Section 10 of O. Reg. 664 gives me the discretion to award a lump sum payment of up to 50 percent of the amount to which Vena Viran is entitled to at the time of the award.

33Vena Viran argues that Aviva failed in its duty to adjust the claim in good faith and failed to provide its assessors with the medical evidence and documentation it needed in order to make a proper determination of Vena Viran’s claim of entitlement to the disputed OCF-18s. Vena Viran submits that Aviva failed to recognize the diagnosis offered by Dr. Wang regarding Vena Viran’s condition and ongoing pain complaints. Vena Viran’s position is that Aviva relied on the 2017 opinion of its s. 44 assessor despite having received additional updated medical records from a recent as February 2020.

34Aviva submits that it maintained its denials on the basis that there was insufficient compelling medical evidence to support that the disputed OCF-18s were reasonable and necessary. It argues that if there is no evidence to suggest that the insurer was unreasonable, or unreasonably withheld or delayed payment of benefits, then there is no entitlement to an award.

35I agree with Vena Viran Upon review, updated medical documentation from 2020 was provided to Aviva from Dr. Wang. I find that Aviva failed to meet its obligation to continue to adjust its file as new medical evidence became available that clearly contradicted Dr. Chaudry’s findings. At the very least, Aviva could have had Dr. Chaudry conduct an additional paper review assessment based on the documentation from Dr. Wang, in order to reconsider its determination of Vena Viran’s entitlement to treatment and assessments.

36In addition to the failure to continue to adjust its file, Aviva is in non-compliance with s. 38(8) of the Schedule. I find that Aviva failed to meet its obligation, and this led to an unreasonable withholding of payment of the OCF-18 for a chronic pain assessment.

37The intention of an award is to discourage improper action on behalf of an insurer, action that must be clearly established to have caused undue hardship, shown to be in violation of the intent of the Schedule as consumer protection legislation, and put the insurer in an unfair position of advantage over an insured, more than would be considered fair in such a proceeding. Aviva’s failure to respond to the OCF-18 for physiotherapy within the regulated 10-day period, its ongoing failure to respond to the OCF-18 for the chronic pain assessment and failure to consider the additional medical documentation from Dr. Wang, are the types of actions an award is meant to discourage.

38I find that Aviva’s actions amounted to the payment of benefits being unreasonably delayed. Accordingly, I find that an award in the amount of $300.00 is appropriate. In my view, this is a nominal amount for the one-day delay in responding to the OCF-18 for physiotherapy, the lack of a denial of the OCF-18 for the chronic pain assessment and for Aviva’s failure to consider Dr. Wang’s additional medical documentation.

ORDER

39Vena Viran is entitled to payment of the OCF-18 for physiotherapy, payable with interest, pursuant to s. 51 of the Schedule.

40Vena Viran is entitled to payment of the OCF-18 for a chronic pain assessment, payable with interest, pursuant to s. 51 of the Schedule.

41Vena Viran is not entitled to payment of the OCF-18 for an orthopaedic assessment or the balance of the OCF-18 for a psychological assessment. As there are no outstanding payment of benefits, it follows that no interest is payable.

42Vena Viran is entitled to an award in the amount of $300.00 plus applicable interest.

Footnotes

1. 1O. Reg. 34/10
2. 2The referrals were noted to be: two MRI investigations, an EMG study, a neurological consultation, a rheumatology consultation and approximately six-seven x-ray investigations