Release date: 05/18/2021
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:
Neva Porter
Applicant
And
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Hennick Lawson, Counsel
For the Respondent: Vicky Chan, Counsel
Court Reporter: Network Reporting and Mediation
HEARD by Teleconference: January 15, 2021 and written submissions
OVERVIEW
1Neva Porter, (the “applicant”) was involved in an automobile accident on December 9, 2018, and sought benefits from Aviva General Insurance (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a teleconference hearing on January 15, 2021, where the applicant was cross-examined on her affidavit. The parties then filed written submissions.
ISSUES
3I have been asked to decide the following issues:
i. Is the applicant entitled to OCF-18 in amount of $3,584.30 from Studio Athletica for chiropractic treatment dated September 24, 2019?
ii. Is the applicant entitled to OCF-18 in amount of $4,090.28 from Deena Rogozinsky for occupational therapy (“OT”) dated July 2, 2019?
iii. Is the applicant entitled to OCF-18 in amount of $3,133.06 from Complete Balance for chiropractic treatment dated March 10, 2020?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments?
v. Is the applicant entitled to payment of interest on overdue payment of benefits?
RESULT
4After reviewing both parties’ submissions and all of the evidence, I find:
a) The applicant is entitled to all three treatment plans in dispute.
b) The applicant is entitled to interest on overdue payments of benefits.
c) The respondent is not liable to pay an award.
BACKGROUND
5On December 9, 2018, the applicant was involved in an accident when her vehicle was rear-ended while stopped at a traffic light. The parties disagree on the velocity of the impact. However, the bumper of the applicant’s vehicle needed to be replaced. She did not seek immediate medical attention and went to a walk-in-clinic the next day following the sudden onset of neck and shoulder pain. She also went to the hospital for follow up investigations.
6Before the accident, the applicant was employed as a Personal Support Worker (“PSW”). Approximately nine months before the accident, she sustained a workplace injury to her lower back and was working modified duties. She was functionally restricted from heavy lifting, but was not limited in her ability to stand, walk and climb stairs. The applicant maintains that, pre-accident, she worked 40 hours per week. She has not returned to work following the accident and the respondent has been paying her an IRB.
7The applicant submits that she sustained the following accident-related injuries: concussion; memory difficulty; myofascial sprain/strain; headaches; anxiety disorder; dizziness; nausea; L5-S1 disc protrusion with compression of right S1 nerve root; arm and hand numbness; paraspinal atrophy; depression and chronic pain. The respondent contends that the applicant sustained soft-tissue injuries as a result of the accident.
8Since the accident, the applicant has attended four separate clinics for various treatment. The first clinic she attended was short lived as it was too far away from her residence. She then attended Bay and College between January 31, 2019 to August 26, 2019, then switched to Studio Athletica from August 29, 2019 to October 29, 2019 and, finally, Complete Balance Health Centre between March 2, 2020 and October 8, 2020.
ANALYSIS
Is the applicant entitled to the treatment plans for chiropractic and physical treatment recommended by Complete Balance or Studio Athletica?
9Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
10The case law supports that treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function. Other criteria which should be considered are whether the goals are reasonable, whether the goals of the treatment can be met to a reasonable degree and the overall costs (both financial and time investment) of achieving the goals of treatment should be reasonable.2 Since the treatment plans recommended by Studio Athletica and Complete Balance recommend similar type treatment, I will address them together.
11The applicant argues that both treatment plans are reasonable and necessary as, to date, her accident-related impairments have not healed, and her symptoms have worsened, resulting in significant functional impairments. Further, the treatment she has received has resulted in the temporary relief of her pain. Consequently, she requires further treatment. The applicant relies on the consult notes and reports of Dr. Menna, orthopaedic surgeon; Dr. Tator, neurosurgeon; Dr. Massicotte, spine specialist; and two s. 25 assessments completed by Dr. Majl, neurosurgeon. The applicant also argues that the fact that she has been incurring treatment at the clinics supports that the treatment plans are reasonable and necessary.
12The respondent maintains that neither treatment plan is reasonable and necessary because the applicant did not have any significant musculoskeletal or accident-related impairments requiring further treatment. It also argues that, to date, the applicant has had ample treatment and has reported that past treatment has resulted in no benefit.
13While both treatment plans were classified as chiropractic treatment in the Tribunal’s orders, both recommended chiropractic treatment and various different modalities including both passive and active physiotherapy. The goals of the treatment plan recommended by Studio Athletica dated September 24, 2019 identified pain reduction, increase strength and range of motion (“ROM”), improve sleep and mood, reduce post-trauma stress, increase physical activity capacity, and return the applicant to her pre-accident modified work activities. It recommended 30 sessions of treatment over 25 weeks at a total cost of $3,584.30. The goals of the treatment plan recommended by Complete Balance dated March 10, 2020 are similar and recommended 24 sessions of similar type treatment at a total cost of $3,133.06
14The applicant testified that her pre-existing low back impairment had subsided at the time of the accident. I agree with the respondent that her testimony was inconsistent with the family doctor’s clinical notes and records (“CNRS”) as they support that she was still complaining of low back pain one-month pre-accident. Despite this inconsistency, I find that the accident exacerbated this pre-existing impairment. The fact that the applicant’s back impairment worsened post-accident is supported by pre- and post-accident MRIs, which reveal that the applicant’s disc bulge had widened. In addition, I find the accident caused the impairments to the applicant’s neck, shoulders and arms. While the applicant suffered from pre-existing low back pain, she was still able to work modified duties as a PSW. The applicant’s ability to work post-accident has been limited as a result of her impairments. This is consistent with the consult notes of Dr. Tator, Dr. Menna and Dr. Massicotte. Overall, I find that the applicant was consistent in reporting her accident related impairments and resulting functional limitations to all of the assessors. Further, the case law is clear that in assessing causation the existence of a pre-existing condition does not negate an insurer’s liability and the accident does not have to be the sole cause of an individual’s impairments.3
15The applicant’s need for additional physical treatment is supported by two of the applicant’s treating practitioners as well as her s. 25 assessor. The applicant was referred to Dr. Tator by her family doctor as a result of her ongoing neck pain which radiated to her shoulders and arms. In April 2019, Dr. Tator recommended that the applicant receive physiotherapy to teach her isometric neck exercises and safe range of motion techniques. The applicant was then referred to Dr. Menna, orthopaedic surgeon. In September 2019, Dr. Menna recommended that the applicant undergo an aggressive course of physiotherapy to help strengthen her lumbar spine, core, glutes and hips. The date of the first treatment plan recommended by Studio Athletic coincides with Dr. Menna’s recommendation. The goals of the treatment plans are to increase the applicant’s strength, which was supported by Dr. Menna. I find Dr. Tator and Dr. Menna’s assessment of the applicant and recommendations neutral. Therefore, I find the treatment plans to be reasonable and necessary as a result of the applicant’s accident related impairments.
16This case is complicated by the fact that there is inconsistent evidence regarding how the applicant has responded to past physical treatment. For example, while Dr. Tator initially recommended that the applicant attend a clinic for physiotherapy, the doctor’s most recent correspondence indicates that the applicant did not find physiotherapy helpful and started chiropractic treatment. Another letter dated April 1, 2020 indicates that the applicant has not responded to conservative management such as physiotherapy. Further, the applicant also reported to IE assessor Dr. Gelman that she had received no benefit from past physiotherapy treatment. Despite these discrepancies, I find the treatment records of Bay and College and Complete Balance support that the applicant received temporary relief and some improvements to her neck pain as a result of the treatment received at these clinics. In addition, I accept that the applicant’s ability to receive consistent treatment at these clinics has been limited by the respondent’s denial of the treatment plans as well as the current COVID-19 pandemic.
17The treatment records of Bay and College between February to August 2019 reflect that the applicant was receiving some benefits from treatment. Throughout these records, the applicant reports that her neck pain was improving following treatment. However, the pain would return following treatment. The notes of Complete Balance also note that the applicant started to make improvements from treatment in September 2020. One of the goals of both treatment plans is for pain reduction. I find the notes support that the applicant was receiving temporary relief from pain and improvements in her neck as a result of treatment. The case law supports that medical treatment is reasonable and necessary if it results in the temporary relief of pain. I am satisfied that the treatment plans in dispute would achieve this objective. Neither party made submissions regarding the amounts of the treatment plans being excessive. Therefore, I accept that the cost of both treatment plans are reasonable.
18By contrast, the IE report of Dr. Gelman, physician, dated November 7, 2019 determined that neither treatment plan was reasonable and necessary. Dr. Gelman opined that the applicant has had ample treatment. Further, there was no finding of any significant objective signs of ongoing musculoskeletal or neurological accident-related impairment that would require further treatment. I find Dr. Gelman’s IE inconsistent with the other medical evidence before me. In addition, I do not find the report neutral. For example, Dr. Gelman disregarded the findings of the post-accident MRIs in determining that the applicant sustained a minor injury and was not entitled to an IRB. Further, there was no analysis in the report regarding the essential tasks of the applicant’s employment. Dr. Gelman opines that the applicant had the functional ability to do light sedentary work, yet the doctor still determined that she could still work as a PSW which involves constant physical labour. I find this opinion contradictory. I also find the doctor’s opinion regarding the applicant’s need for further physical treatment inconsistent. For example, Dr. Gelman highlights that the applicant reported receiving no benefit from past physiotherapy but then the doctor states that the applicant received temporary relief from treatment. In my view, these two statements contradict each other.
19For all of the above reasons, the applicant has met her onus on a balance of probabilities in proving that both treatment plans are reasonable and necessary.
Is the applicant entitled to the treatment plan for OT recommended by Deena Rogozinsky dated April 6, 2020?
20For the following reasons, I find the applicant is entitled to the treatment plan for OT in the amount of $4,090.28 recommended by Ms. Rogozinsky.
21The applicant argues that the treatment plan for OT recommended by Ms. Rogozinsky, occupational therapist, is reasonable and necessary because the applicant’s accident-related impairments have resulted in significant functional impairments. In particular, the applicant’s impairments have impacted her ability to work and have interfered with her activities of normal living. Further, the purpose of the treatment plan is to return her to her pre-accident activities of normal living and employment. The applicant relies on the OT report of Ms. Rogozinsky dated April 21, 2020.
22The respondent submits that the treatment plan for OT is not reasonable and necessary. It relies on the in-home assessment report of Nicholas Livadas, occupational therapist, dated August 20, 2020, which determined that the applicant does not have any functional limitations requiring OT services as a result of her accident-related impairments.
23Ms. Rogozinsky’s in-home assessment report recommended various OT interventions to address the applicant’s ongoing physical, functional, cognitive and emotional issues. Ms. Rogozinsky’s report notes that the applicant had decreased ROM and was functionally limited in her ability to sit and stand for long durations. In addition, her ROM in her cervical spine prevented her from doing some of her self-care tasks such as clipping her toenails. Ms. Rogozinsky determined that the applicant’s emotional symptoms also were affecting her motivation to complete certain tasks. The report concludes that the applicant’s ongoing pain, fatigue, decreased energy levels and cognitive changes have had an impact on various domains of the applicant’s life. Ms. Rogozinsky recommended six OT sessions over 20 weeks. I have summarized below some of the objectives of treatment identified by Ms. Rogozinsky:
a) Structure routines for greater participation in healthy routines and habits;
b) Teach methods for energy conservation and work simplification techniques;
c) Training moderation of tasks to decrease pain;
d) Relaxation strategies;
e) Device education;
f) To establish participation in meaningful activities; and
g) To develop goals and implement environmental modification;
24By contrast, Mr. Livadas determined that the applicant exaggerated her symptoms and gave submaximal effort during functional testing. Mr. Livadas’s report states that the applicant did not have any physical limitations and had the functional strength in all muscle groups, as well as normal ROM in her neck, shoulders, and lower extremities. Further, his report states that the applicant demonstrated no overt difficulties with executive functioning, memory, attention and concentration. Mr. Livadas’s report concludes that the applicant’s significant inconsistencies call into question her perceived functional abilities and tolerances, and he opines that the treatment plan for OT is not reasonable and necessary
25I prefer Ms. Rogozinsky’s report. As a starting point, I find the goals of the treatment plan to return the applicant to her pre-accident employment and activities of normal living to be reasonable. No submissions were made that the cost of the treatment plan was excessive, so I accept that the cost of the treatment plan is reasonable. I agree with the applicant that Ms. Rogozinsky’s assessment was more consistent with the medical evidence as a whole. For example, Dr. Tator, Dr. Menna and Dr. Majl all noted fairly serious functional impairments in their consult notes and assessments. None of these doctors mention that the applicant was exaggerating her symptoms or not giving full effort. Dr. Tator felt the applicant’s neck impairment was serious enough that he advised her not to make sudden neck movements and recommended physiotherapy to address safety. Further, the applicant’s physical functional limitations were also corroborated in the treatment records of Bay and College and Complete Balance, which note that the applicant had decreased ROM and reported pain with certain movement.
26I also find the medical documentation cited by Mr. Lividas in his report selective. For example, the only document highlighted in his report was the IE report of Dr. Gelman completed in November 2019. For the reasons already noted above, I determined that Dr. Gelman’s report was inconsistent and lacking in analysis, especially in relation to the applicant’s functional abilities to complete her pre-accident employment as a PSW. Further, Dr. Gelman’s addendum report accepts that the applicant’s accident-related impairments have resulted in a substantial inability for her to complete her pre-accident employment tasks. Therefore, I find the goals of the treatment plan to return the applicant to her pre-accident employment and activities of daily living to be reasonable and necessary as a result her accident-related impairments.
27The applicant has met her onus on a balance of probabilities in proving that the treatment plan for OT recommended by Ms. Rogozinsky is reasonable and necessary.
Is the applicant entitled to payment of interest on overdue payment of benefits?
28The applicant is entitled to payment of interest on the disputed treatment plans.
29Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that all three treatment plans are reasonable and necessary at the time, they were submitted interest is payable according to the Schedule.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
30I do not find that the applicant is entitled to an award as I do not find that the respondent unreasonably withheld or delayed payment of her IRBs.
31Regulation 664, R.R.O. 1990 (O. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
32It is trite law that when considering whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen to be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
33In this case, the respondent stopped paying the applicant an IRB on December 3, 2019 as a result of Dr. Gelman’s first IE in November 2019. The respondent, which was entitled to take that position, then reinstated the applicant’s entitlement to an IRB as a result of the addendum IE report of Dr. Gelman dated February 13, 2020. That about-face was obviously a good-faith adjustment of the applicant’s file.
34On February 24, 2020, the respondent notified the applicant that her IRB would be reinstated, but it did not issue any payments. On April 21, 2020, counsel for the applicant wrote to the respondent indicating that the applicant had not received payment of her IRB and requested an explanation for why payment had not been made. On April 30, 2020, the respondent sent the applicant a letter issuing back payment for past IRBs (to the denial date of December 3, 2019), including interest in the amount of $7,262.50. The respondent apologized to the applicant for the delay but did not provide any explanation for the oversight.
35The applicant argues that the respondent is liable to pay an award because it unreasonably withheld and delayed payment of her IRB for more than two months after the benefit was reinstated. The applicant maintains that she was significantly prejudiced by the respondent’s conduct because she was without any form of income for five months (from the original denial date of December 3, 2019). The applicant submits that five months is a long time for a vulnerable person who is unable to work as a result of her accident-related impairments to wait. Further, she relies on the IRB payments, and her vulnerable medical state and need to fund her own treatment as a result of the respondent’s denials on top of a global pandemic has caused her great prejudice and financial hardship.
36The respondent submits that no award should be granted. The respondent acknowledges that it was delayed in issuing payment of the applicant’s IRB. However, it contends that, upon discovery of the error, it promptly issued back payments of the benefit, including interest, and apologized for the delay. The respondent maintains that the applicant has not adduced any evidence to support that the respondent behaved in an unreasonable manner which has significantly prejudiced the applicant. I agree.
37I do not find that the respondent unreasonably withheld and delayed payment of the applicant’s IRB. While I agree that the respondent did not promptly issue payment, I do not find this conduct meets the threshold of being “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” Moreover, no evidence was submitted that the respondent purposely delayed issuing payment of the applicant’s IRB. Further, as soon as the respondent became aware of its error, it promptly made payment and apologized for the oversight. In addition, I find that the applicant could have mitigated any hardship or inconvenience by notifying the respondent of its mistake sooner.
38The applicant relied on the Divisional Court’s decision in Personal Insurance Company v. Hoang (“Hoang”)4 in support of her position that the respondent’s conduct is worthy of an award. The applicant submits that her case is similar to Hoang. I did not find the Hoang decision relevant to the facts in this case. The Hoang decision is a judicial review of the Director’s Delegate of the Financial Services Commission of Ontario’s appeal decision. The facts of that case involve the insurer’s unreasonable withholding of private tuition for a catastrophically impaired minor. In the present case, we are dealing with a two-month delay in payment of IRBs. In my view, I do not see how the applicant’s case compares to the facts in Hoang, nor do I find this decision supports her position that she is entitled to an award.
39The applicant has not met her onus on a balance of probabilities in proving on a balance of probabilities that the respondent’s unreasonably withheld and delayed payment of her IRB. Consequently, I do not find the respondent is liable to pay an award.
ORDER
40For all of the above reasons, I find:
a) The applicant is entitled to all three treatment plans in dispute.
b) The applicant is entitled to interest on overdue payments of benefits.
c) The respondent is not liable to pay the applicant an award as I do not find that it unreasonably delayed payment of the applicant’s IRB.
Released: May 18, 2021
Rebecca Hines
Adjudicator
Footnotes
- O. Reg. 34/10
- 17-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), at para 12.
- Sabadash v. State Farm et al. 2019 ONSC 1121.
- Personal Insurance Company v. Hoang, 2014 ONSC 81.