Release date: 05/07/2021
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:
A.M.
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Sahereh Baghbani, Paralegal
For the Respondent:
Emily M. Hill, Counsel
HEARD:
By way of written submissions
OVERVIEW
1A.M., (“the applicant”), was injured in an automobile accident on May 8, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 funding limit as set out in s. 18 of the Schedule?
Is the applicant entitled to a medical benefit in the amount of $2,528.10 for chiropractic services provided by HealthMax Physiotherapy Thornhill, as set out in a treatment and assessment plan (OCF-18) dated June 12, 2018?
Is the applicant entitled to payment in the amount of $200.00 for the completion of an OCF-18 in the amount of $2,834.06 dated November 2, 2017?
Is the applicant entitled to payment in the amount of $200.00 for the completion of an OCF-18 in the amount of $2,102.56 dated April 9, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4Prior to the hearing, the respondent removed the applicant from the MIG because it found that he sustained psychological injuries as a result of the subject accident. Thus, issue 1 is not in dispute.
5The applicant withdrew his claims listed as issues 3 and 4.
6I find on the evidence that the treatment plan dated June 12, 2018 is not reasonable and necessary for the applicant’s accident-related injuries.
7The applicant is not entitled to any interest or an award.
BACKGROUND
8The applicant was the driver of a vehicle which was struck from behind while stopped at an intersection. He sought no medical care at the scene of the accident and was able to drive home in the vehicle. He initiated his accident benefits claim about 6 months following the accident.
9The respondent initially determined that the applicant sustained a minor injury as defined by the Schedule. Thus, the applicant was subject to the treatment modalities prescribed by the MIG and the $3,500.00 funding limit on treatment. The applicant exhausted the funding available to him but sought further treatment in a treatment plan dated June 12, 2018 (“the disputed treatment plan”). The respondent determined that the disputed treatment plan was not reasonable and necessary for the applicant’s accident-related injuries and denied funding for the plan. The applicant disputes this decision, which is listed above as issue number 2.
10Later, the respondent removed the applicant from the MIG and the $3,500.00 funding limit. This occurred in late 2020, following receipt of a psychological assessment report by L. Wagner, psychological associate, dated November 19, 2020. The report concluded that the applicant suffered from accident-related Major Depressive Disorder and Somatic Symptom Disorder with Predominant pain. Despite reversing its MIG determination, the respondent maintains its position that disputed treatment plan is not reasonable and necessary for the applicant’s accident-related injuries.
ENTITLEMENT TO THE DISPUTED TREATMENT PLAN
11The disputed treatment plan proposes 24 chiropractic treatment sessions to help the applicant increase strength and range of motion, reduce pain, and return the applicant to activities of normal living and modified work activities. It lists the applicant’s injuries as “other chronic pain”, cervicalgia, sprain and strain of lumbar spine, pain in thoracic spine, and chronic post-traumatic headache.
12The applicant submits that the disputed treatment plan is reasonable and necessary for his accident-related injuries because the treatment relieves his pain, enabling him to work. He further submits that there is no insurer’s examination report opining that the disputed treatment plan is not reasonable and necessary and that the disputed treatment plan concurs with the recommendations by Dr. R. Haji, the applicant’s family physician.
13The respondent submits that the applicant has failed to meet his burden to prove that the disputed treatment plan is reasonable and necessary for his accident-related injuries. It submits that he failed to provide compelling evidence of the efficacy of the treatment and failed to provide evidence to support the need for further chiropractic treatment.
14I agree with the respondent and find no compelling contemporaneous evidence in favour of the disputed treatment plan.
15There is no contemporaneous evidence in support of further chiropractic treatment. The applicant’s first accident-related visit to Dr. Haji occurred on June 25, 2019. It was the applicant’s first visit with Dr. Haji and an initial assessment was conducted. During that visit, the applicant reported no concerns but noted a medical history which included accident-related chronic neck and back pain, and depression. Dr. Haji’s assessment of the applicant was unremarkable but for noted cervical pain with extension. Bloodwork, an abdominal ultrasound, and neck x-rays were ordered, and the applicant was told to return for a reassessment in two weeks. There is no record of the reassessment before me, but clinical notes and records indicate that the applicant met with Dr. Haji again on October 17 and November 28, 2019. The applicant reported lingering back pain with no radiating pain during the October visit and was diagnosed with sprain/strain injuries to the lumbar and cervical spine. During the November visit, the applicant advised that he had right side leg pain for a month and that the pain was attributed to an incident while walking.
16I find the records and reports of Dr. Haji to be uncompelling evidence in support of the disputed treatment plan. As noted above, Dr. Haji has not had the opportunity to develop an ongoing relationship with the applicant which typically gives greater weight to the recommendations of family physicians. Above what was addressed earlier, Dr. Haji’s clinical notes and records include two assessment reports, dated July 30 and November 20, 2020. The reports involve no record of an objective physical examination and they appear to be based entirely on the applicant’s subjective complaints. The June 30 report opines that the applicant suffers from chronic pain and states that the applicant will be referred to a chronic pain facility. Yet, there is no mention of said referral in the November 20 report or in the balance of Dr. Haji’s clinical notes and records. The November 20 report states that x-rays from January 2020 serve as compelling evidence of pre-existing medical conditions that have prevented the applicant from achieving maximal recovery. I find this odd considering that the imaging report concluded that the applicant had only minimal or mild degenerative issues, which were not documented prior to the subject accident.
17I prefer the findings in the insurer’s examination report of Dr. E. S. Silver over the records from Dr. Haji. Dr. Silver examined the applicant and issued a report dated June 19, 2019. In that report, Dr. Silver noted the applicant’s complaints of neck and low back pain and conducted a physical examination. On examination, Dr. Silver recorded that the applicant exhibited mostly full range of motion with some limitations due to pain in the low back and neck and diagnosed the applicant with soft tissue injuries. This is consistent with the records from HealthMax, which record that the applicant’s pain was only intermittent by January 2019. Dr. Silver’s report found that no further facility-based treatment was required as the applicant reached maximum medical recovery. Dr. Silver’s August 14, 2020 report noted that the applicant has new complaints of referral pain from the neck and low back to the upper and lower extremities. However, Dr. Silver concludes that the referral pain is not attributable to the subject accident due to a lack of similar symptoms or objective findings in the June 2019 report. This is consistent with Dr. Haji’s records, which note that the applicant’s radiating pain occurred following an incident while walking in the fall of 2019.
AWARD
18The applicant claims entitlement to an award in the amount of 50% of the disputed treatment plan, pursuant to section 10 of O. Reg. 664. He submits that that the respondent failed to remove him from the MIG in a timely manner and never sought an opinion as to whether the disputed treatment plan was reasonable and necessary. The respondent submits that the denial of the disputed treatment plan fails to raise to the level required to find an award is payable.
19Pursuant to section 10 of O. Reg. 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.
20While I agree there was some delay in addressing the applicant’s psychological injuries and his related removal from the MIG, the delay fails to meet the level which warrants an award. The applicant sent the respondent a note from Dr. R. Rudky, psychiatrist, dated February 4, 2020, stating that the applicant suffered from a major depressive disorder and recommended cognitive behavioural therapy. The note was given to the respondent about 20 months following the submission of the disputed treatment plan. Further, the note required no immediate action. While it recommended cognitive behavioural therapy, it is not a treatment and assessment plan and fails to trigger an obligatory response from the respondent pursuant to the Schedule. The first psychological treatment and assessment plan in the record is dated August 10, 2020 and the applicant was removed from the MIG about 3 months later in November 2020.
21In addition, although it is not required of the respondent, I find that it had an opinion on the disputed treatment plan from Dr. Silver. Dr. Silver recommended no further facility-based treatment, which the disputed treatment plan proposes. Thus, one can reasonable conclude that the disputed treatment plan is not reasonable and necessary.
COSTS
22The applicant requested a cost award because, according to him, the respondent denied his entitlement to benefits without reliable evidence, causing him to apply to the Tribunal. The respondent made no response to this submission because the applicant made it during reply submissions, after the respondent presented its case. I considered the request and found no need to seek submissions on it from the respondent.
23I find no basis to award costs. Costs are only payable in the event a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. In this matter, the allegations relate to behaviour prior to the proceeding and, thus, no award is payable on those grounds. Further, as noted above, I find that the respondent’s actions, during the adjusting of the applicant’s claim, failed to rise to the level which would warrant an award.
CONCLUSION
24I find that the disputed treatment plan is not reasonable and necessary for the applicant’s accident-related injuries because there is no contemporaneous evidence to support it. As a result, no interest is payable.
25The applicant is not entitled to an award because no benefits were unreasonably withheld or delayed.
26Neither party is entitled to costs.
Date of Issue: May 7, 2021
Brian Norris, Adjudicator