Thomas v. Aviva Insurance Company, 2021 CanLII 35571

Citation: Thomas v. Aviva Insurance Company, 2021 ONLAT 20-000688/AABS

Release date: 04/30/2021

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:

Noel Thomas

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Ryan Caesar, Counsel

For the Respondent:

Sam Davies, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an accident on May 18, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Aviva denied the benefits on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The Case Conference Order lists the issues in dispute as follows:

a. Is the applicant entitled to $1,749.28 for chiropractic services recommended by Prime Healthcare Inc. in a treatment plan (OCF-18) dated February 20, 2018?

b. Is the applicant entitled to $1,258.30 for chiropractic services recommended by Prime Healthcare Inc. in a treatment plan (OCF-18) dated February 20, 2018?

c. Is the applicant entitled to $2,000.00 for a Chronic Pain Assessment, recommended by Prime Healthcare Inc. in an OCF-18 dated March 2, 2018?

d. Is the applicant entitled to interest on any overdue payment of benefits?

3However, in its submissions, Aviva advises that on the day following the case conference, being June 23, 2020, it agreed to provide payment for issues (a) and (b). It provided several letters urging the applicant to notify the Tribunal of same, which evidently the applicant failed to do. Aviva asserts that the only issues remaining in dispute are the chronic pain assessment and interest. While the applicant’s initial submissions focused on all of the issues, he declined to file reply submissions and did not refute Aviva’s position that these issues are no longer in dispute. I accept that the only live issues for this hearing are (c) and (d), above.

RESULT

4The applicant has not demonstrated entitlement to the chronic pain assessment or interest.

ANALYSIS

Is the chronic pain assessment reasonable and necessary?

5In order to receive payment for an assessment plan under the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the OCF-18 is reasonable and necessary. Here, the applicant submits that the chronic pain assessment is reasonable and necessary because of his psychological and physical injuries—being a tear in his right shoulder and a diagnosis of adjustment disorder—and the recommendations of his treating physicians. Further, he asserts that Aviva’s denial notice was improper under s. 38 and that it failed to schedule Insurer’s Examinations in response to his claim.

6In response, Aviva submits that the 2017 was minor and that the chronic pain assessment is not reasonable and necessary or payable. Aviva asserts that the applicant was involved in a second accident on May 27, 2018 that was more severe than the accident at issue here. It argues that the applicant has not provided objective medical evidence to show that there are grounds to suspect he has a chronic pain condition and he did not provide any analysis on the six criteria set out in the AMA Guides² that the Tribunal has adopted for assessing chronic pain claims. Further, Aviva submits that the applicant already underwent chronic pain assessment with Dr. Karmy in relation to the 2018 accident, and that its March 14, 2018 denial complied with the Schedule because it identified information that it did not have but required, and informed the applicant that a second opinion was needed to asses his claim.

7I agree with Aviva and find that the applicant has not demonstrated that the chronic pain assessment is reasonable and necessary.

8First, I agree that the applicant has not established that his alleged pain is as a result of the 2017 accident and not the 2018 that was more severe. Indeed, as Aviva points out, Dr. Karmy’s report from August 1, 2019 in relation to the 2018 accident states that the applicant reported recovering completely from right shoulder pain, that his lower back was gradually improving prior to the 2018 accident and, according to the applicant, his pre-existing pain was well controlled and did not interfere with his functionality. Where functionality is a prime consideration in chronic pain claims, I find the applicant’s self-reporting that his pain was not interfering with his function to be difficult to overcome. I note also that the applicant was provided the opportunity to provide affidavit evidence to speak to his condition but elected not to.

9Second, in that same report, Dr. Karmy states that as a result of the 2018 accident, the applicant developed his chronic headaches and chronic pain in his neck, left shoulder, right upper limb, mid back, bilateral knees and left heel and that his pre-existing lower back pain was significantly aggravated by the 2018 accident. Putting this aside, it appears that Dr. Karmy’s chronic pain diagnosis came in July 2019—or over two years post-accident where a second accident occurred in between—and was based only on an interview with the applicant, the emergency room records, a consultation report from Dr. Spring and an OCF-3. In my view, where there is limited contemporaneous evidence to link the applicant’s pain to the 2017 accident, this further undermines the applicant’s claim that his pain is related to the 2017 accident and requires a separate assessment.

10Third, while the applicant may have lingering pain, he did not provide any submissions to speak to any of the six criteria outlined in the AMA Guides that would support his chronic pain claim as it relates to the 2017 accident. For example, there is no evidence that he is (i) dependent on prescription drugs or (ii) health care providers, spouse or family; there is no evidence of (iii) secondary physical deconditioning due to fear or avoidance as a result of his pain; and there is no indication he has (iv) withdrawn from his social, work or recreational interests. In contrast, he self-reported to Dr. Karmy and Dr. Shaul that his (v) pre-accident function was largely restored prior to the 2018 accident. While it appears that he has (vi) developed psychosocial sequelae based on the diagnosis of adjustment disorder, the AMA Guides require an applicant to meet three of the six criteria. The applicant has not done so and therefore has not met his burden.

11Accordingly, in determining whether an assessment is reasonable and necessary, the applicant must point to objective evidence that there are grounds to suspect that they have the condition for which they seek the assessment. Where there are causation issues, where the applicant did not engage with the AMA Guides criteria and where the applicant did not incur the cost of the OCF-18, I cannot find that it is reasonable and necessary or payable. As no benefits are overdue, it follows that no interest is payable under s. 51.

Aviva’s Denial; s. 10 award

12As noted, the applicant submitted that Aviva’s denial notice did not comply with the requirements of s. 38(8), as it did not provide a medical reason. As a result, the applicant submits that Aviva should pay for the assessment pursuant to s. 38(11). In response, Aviva states that the medical reason of the need for a second opinion to determine the applicant’s correct diagnosis is a legitimate reason to deny a chronic pain assessment. The language is clear, succinct and reasonably understandable by an unsophisticated person and it identifies information that the insurer did not have but required.

13I find the March 14, 2018 denial complied with s. 38(8), as it was sent within 10 business days and provided the applicant with notice that Aviva did not have enough information to assess the claim and required a s. 44 examination, stating: “We require a second opinion on the diagnosis of this person’s symptomatology as specifically related to impairments that might have been sustained from the accident.” I disagree that this notice is vague and confusing. In any case, the applicant did not provide evidence that the assessment was incurred in the period between the denial and his attendance at the s. 44 examination that addressed that 2018 accident. Accordingly, the assessment is not payable under s.38(11).

14Finally, in submissions, the applicant claimed entitlement to a s. 10 award on the basis that Aviva “unreasonably withheld benefits” and that he “provided it with information/documentation that was reasonably necessary to determine his benefit.” Under s. 10 of O. Reg. 664, the Tribunal may order an award up to 50% of the total benefits claimed if it determines that an insurer unreasonably withheld or delayed the payment of benefits.

15An award is not appropriate. The applicant’s s. 10 claim was not identified in the Case Conference Order and he did not provide the particulars necessary to attract an award. In any event, I find no evidence that Aviva unreasonably withheld or delayed the chronic pain assessment and, as no benefits are owing, it follows that the Tribunal cannot order an award.

ORDER

16The applicant has not demonstrated that the chronic pain assessment is reasonable and necessary, incurred or payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.