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:
Virginia Cuardo
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Virginia Cuardo, Applicant
Michael Yermus, Counsel
For the Respondent:
Aviva Insurance Canada, Representative
Kelvin Brown, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, Virginia Cuardo, was involved in an automobile accident on October 15, 2014, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Virginia Cuardo applied for certain benefits and Aviva determined that the benefits were not reasonable and necessary and refused to pay for certain benefits. Virginia Cuardo applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues I am asked to decide are as follows:
a. Is the cost of examination expense in the amount of $2,486.00 for a chronic pain assessment, recommended by Allevio Pain Management in a treatment plan (OCF-18) dated April 15, 2019, reasonable and necessary?
b. Is the medical benefit in the amount of $11,589.44 for a chronic pain treatment program, recommended by Levitin Vladimir in an OCF-18 dated May 3, 2018, reasonable and necessary?
c. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Virginia Cuardo?
d. Is Virginia Cuardo entitled to interest on any overdue payment of benefits?
FINDING
3Virginia Cuardo is not entitled to the disputed claims.
ANALYSIS
OCF-18 in the amount of $2,486.00 for a chronic pain assessment
4Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. Virginia Cuardo bears the onus to prove that the specific benefits she claims are reasonable and necessary for her accident-related impairments. I find Virginia Cuardo has not met her burden on a balance of probabilities.
5Virginia Cuardo submits that the chronic pain assessment is reasonable and necessary to address her accident-related injuries, which are described, by her family physician, as soft tissue injuries, specifically, pain in right thigh and buttocks.
6Pursuant to s. 38(2), Aviva submits it is not liable to pay for the goods and services proposed in the OCF-18. Virginia Cuardo was provided an opportunity to make reply submissions but declined to do so.
7Aviva submits that where the evidence shows that a disputed medical benefit has been incurred prior to the submission of the treatment plan, the insurer is not liable to pay the disputed benefit. Aviva’s position is that the OCF-18, dated April 9, 2019 was submitted to Aviva on April 15, 2019. Aviva argues that the assessment was completed by Dr. Sohanpal on April 12, 2019, confirming that the benefit was incurred prior to the OCF-18 being submitted. I agree.
8Virginia Cuardo did not dispute that the OCF-18 was incurred prior to submitting it to Aviva. The provision in s. 38(2) clearly sets out that an insurer is not liable to pay for a service that was incurred before an insured submits a treatment and assessment plan for it.
9Section 38(2) provides four exceptions, paraphrased as follows;
a. the insurer gives the insured notice that it agrees to pay for the goods and services without a treatment and assessment plan;
b. the expense is for an ambulance or other emergency services not more than 5 business days following the accident;
c. the expense is reasonable and necessary for drugs prescribed by a regulated health professional; and
d. the expense is reasonable and necessary as a result of the impairment sustained by the insured person for goods under $250.00.
10Upon review of the evidence, I find Virginia Cuardo has not met any of the four exceptions listed in s. 38(2). There is no evidence that Aviva agreed to pay for the OCF-18 prior to its submission. The OCF-18 was incurred more than five days following the accident and is not considered emergency services. Lastly, the OCF-18 was not for prescription drugs and was not for goods valued at less than $250.00.
11For the above reasons, I find Virginia Cuardo is not entitled to this OCF-18.
OCF-18 in the amount of $11,589.44 for a chronic pain treatment program
12I find that Virginia Cuardo is not entitled to the OCF-18 as she has not met her onus that the treatment is reasonable and necessary.
13Virginia Cuardo submits that the recommended treatment is reasonable and necessary due to the evidence of ongoing chronic back pain including restricted range of motion. Virginia Cuardo argues that she suffers multiple functional impairments which affect her activities of daily living and work-related duties. The goals of the treatment plan are noted to be pain reduction; increased range of motion; increase in strength and a return to activities of normal living. Her position is that the reasonableness and necessity of the treatment is supported by the medical evidence considering the nature and severity of her accident-related injuries.
14Virginia Cuardo relies on the following clinical notes and records (“CNRs”) and diagnoses in support of her claim:
a. A consultation with chronic pain specialist Dr. Zahavi. As a result of his assessment, Dr. Zahavi diagnosed Virginia Cuardo with chronic pain syndrome; possible lumbar zygapophyseal joint pain, hyperalgesia and hyperpathia of the right gluteal and thigh areas as well as decreased hip joint mobility.
b. Chiropractor Dr. Brandes, who diagnosed Virginia Cuardo with muscle strain in the pelvic region and thigh; internal derangement of knee and segmental and somatic dysfunction in the lumbar region; and
c. Chiropractor Dr. Vladimir, who diagnosed Virginia Cuardo with chronic mechanical lumbar spine pain, chronic right sacroiliac joint dysfunction, radiculopathy to right lower extremity and chronic pain.
15Aviva contends that, a) Virginia Cuardo does not suffer from a chronic pain condition as a result of the accident and b) the OCF-18 is not reasonable and necessary because there is no evidence that Virginia Cuardo suffers from chronic pain. Aviva submits:
a. The insurer’s examination by Dr. Gelman found no evidence of chronic pain. The results of Dr. Gelman’s assessment are set out in his report of August 7, 2018. In the report, Virginia Cuardo complained of intermittent pain in her right lower back radiating to the right knee. She denied any other symptoms or concerns as a result of the accident. Dr. Gelman observed that Virginia Cuardo demonstrated full range of motion and normal strength, specifically in the noted areas of injury—lumbar spine, hips and right knee. Virginia Cuardo also reported to Dr. Gelman she missed one week of work as a result of the accident. Dr. Gelman concluded that Virginia Cuardo’s intermittent pain and lack of objective findings of accident-related impairment were indicative that she had reached maximum medical improvement.
b. Dr. Gelman maintained his opinion in an addendum report dated September 1, 2020 after reviewing the reports of Dr. Sohanpal and Dr. Zahavi.
c. Virginia Cuardo provides no expert opinion to contradict Dr. Gelman’s findings.
d. Virginia Cuardo is carrying on a normal life, which is inconsistent with a chronic pain condition. This is evidence by the following:
i. She completed training as an Early Childhood Educator, starting her new career in January 2017 and has worked full time since commencing the new career.
ii. Virginia Cuardo reported to s. 44 assessor Dr. Ratti, psychologist, in an August 7, 2017 report, that she was still able to participate in her activities of daily living, including housekeeping, independence with self-care, maintaining full time work post-accident, including the above-noted re-education and career change.
16I conclude that Virginia Cuardo has not met the onus on her to show that she suffers from chronic pain as a result of the accident. I reached this conclusion for the following reasons:
a. Virginia Cuardo’s medical evidence provides no persuasive proof of a chronic pain condition. Dr. Zahavi last saw Virginia Cuardo in September 2016. For his February 2020 report, Dr. Zahavi reviewed his notes and report from September 2016, there was no secondary in-person assessment or review of any more recent medical records.
b. Dr. Gelman and Dr. Ratti conducted in-person assessments of Virginia Cuardo and reviewed updated medical documentation at the time of their respective initial reports and in preparation of their addendum reports.
c. Aviva’s rebuttal evidence persuades me that Virginia Cuardo, on a balance of probabilities, does not have an accident-related chronic pain condition.
d. None of the assertions in Aviva’s submissions or s. 44 reports were contested by Virginia Cuardo
e. There is no evidence that Virginia Cuardo has relied excessively on any treating practitioner or family member as a result of any functional limitations.
f. There is no evidence of any increased reliance on pharmacological treatment.
17Virginia Cuardo has failed to persuade me that she suffers from chronic pain as a result of the accident. In addition, I do not find that Virginia Cuardo suffers from any significant functional impairment from injuries sustained as a result of the accident
18Accordingly, I find Virginia Cuardo has not demonstrated why the specific treatments outlined in the OCF-18 is reasonable and necessary to treat the injuries she sustained as a result of the October 2014 accident. Therefore, I find the disputed OCF-18 is not reasonable and necessary.
19As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
AWARD
20Virginia Cuardo also seeks an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
21As discussed above, Virginia Cuardo did not provide sufficient medical evidence to satisfy her onus to establish that the OCF-18s are reasonable and necessary. Further, I find no evidence that Aviva unreasonably withheld or delayed payment of benefits. Consequently, there are no grounds to order an award under s. 10.
CONCLUSION
22For the reasons set out above, I find Virginia Cuardo is not entitled to payment for any of the OCF-18s in dispute as they are not reasonable and necessary. As no benefits are overdue, no interest is payable.
Date of Issue: March 16, 2021
Derek Grant, Adjudicator