Campbell v. Aviva Insurance Company of Canada, 2022 CanLII 109490

CAMPBELL v. Aviva Insurance Company of Canada, 2022 ONLAT 20-008096/AABS

Citation: CAMPBELL v. Aviva Insurance Company of Canada, 2022 ONLAT 20-008096/AABS

Licence Appeal Tribunal File Number: 20-008096/AABS

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:

William Campbell

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Justin Mariani, Counsel

For the Respondent: Dennis Molnar, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, W.C., was involved in an automobile accident on December 4, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva denied W.C.’s claim for benefits because it determined that the benefits were not reasonable and necessary. W.C. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

a. Is the medical benefit in the amount of $2,596.52 for chiropractic services, recommended by Medwise Health in a treatment plan (OCF-18) dated February 13, 2020, denied February 25, 2020, reasonable and necessary?

b. Is the cost of examination expense in the amount of $2,401.25 for a chronic pain assessment, recommended by Q Medical in an OCF-18 dated September 19, 2018, denied September 25, 2018, reasonable and necessary?

c. Is W.C. entitled to interest on any overdue payment of benefits?

FINDING

3W.C. has established on a balance of probabilities that the OCF-18s are reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

BACKGROUND

4W.C. was 62 years old at the time of the accident. He has been involved in two prior accidents. In one accident, he suffered a right shoulder separation and another, he suffered a right tibia fracture and right femur fracture, requiring surgery.

5His pre-accident medical history is noted as: i) a January 12, 2010 right shoulder MRI; ii) May 10, 2015 clinical note and record “(CNR”) from Dr. Levine noting a prescription for manual therapy and therapeutic exercise; iii) a January 12, 2016 CNR from Dr. Evans indicating a sore right shoulder, previous problems with the right shoulder, pain with abduction; iv) a January 12, 2016 Georgian Radiology CNR indicating right shoulder pain and a pre-existing right shoulder condition; and v) a November 24, 2016 CNR from Dr. Levine noting right shoulder issues and a report that physiotherapy has provided little help.

ANALYSIS

Is the OCF-18 for chiropractic services reasonable and necessary?

6In order to receive payment for treatment recommendations in an OCF-18 under the Schedule, the applicant bears the onus of proving on a balance of probabilities that the items in the OCF-18 are reasonable and necessary as a result of the accident. In order to meet this onus, an applicant should identify the goals of the OCF-18, how the goals are being met to a reasonable degree and whether the time and cost of achieving the goals is proportional to the recommended treatment.

7Where an insurer has not properly denied an OCF-18 in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will and will not pay for and provide the medical and all other reasons for its decision.

8W.C. submits that the OCF-18 is reasonable and necessary, as he has incurred the treatment, which he posits speaks to the ongoing nature of his symptoms and the need for ongoing treatment to address his symptoms. He further submits that the denial was not in compliance with the requirements under s. 38(8) of the Schedule. His position is that the denial contains a “boilerplate” notice without reference to W.C.’s medical condition or any of the other required rationale, resulting in a deficient notice.

9In response, Aviva submits that the February 25, 2020 explanation of benefits is in compliance, which it claims contains the required information to bring its notice in compliance with s. 38(8).

10I disagree with Aviva.

11In its February 25, 2020 letter, Aviva advises W.C. that he has been scheduled for an independent medical examination. Under the heading ‘Explanation of benefits’, it states,

We are unable to determine whether the recommendations on your OCF-18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.

The medical reason offered is that as per the insurer examination (“IE”) on file claimant has reached the MMR. Despite Aviva’s submission that the notice refers to “the existing IE reports from Dr. Mula and Dr. Ikejiani”, I find no such specific reference, only “the IE on file”.

12I find that the February 25, 2020 notice does not comply with the requirements under s. 38(8) as it failed to provide adequate medical reasons to deny the disputed OCF-18.

13The reasons provided in the notice do not discharge Aviva’s notice obligations under 38(8). The notice fails to provide the diagnosis, prognosis, the details of the treatment plan or clear and sufficient reason for its denial sufficiently well defined that would allow W.C. to make an informed decision as to whether or not to dispute Aviva’s denial.

14The notice does not meet the requirement of clearly outlining the goods and services for which Aviva does not agree to pay for, and it is unclear if the IE was provided to W.C. to review. Further, W.C. has incurred the cost of the OCF-18, thereby making the OCF-18 payable for all treatment incurred after the 11th business day after Aviva received the OCF-18 in accordance with s. 38(11) of the Schedule.

15I have found that Aviva’s February 25, 2020 notice is not in compliance with s. 38(8) of the Schedule, and Aviva has not pointed me to any correspondence that cures the deficient notice. Accordingly, I find that the February 25, 2020 letter is not a proper denial of the claimed treatment, and therefore does not satisfy Aviva’s obligations under s. 38(8) of the Schedule. Consequently, the provisions set out in s. 38(11) are triggered. The February 13, 2020 OCF-18 is payable as Aviva no longer has the opportunity to issue a proper denial notice as the medical benefit has been incurred in full.

Is the OCF-18 for a chronic pain assessment reasonable and necessary?

16I find that W.C. has established on a balance of probabilities that he is entitled to payment of the OCF-18 for a chronic pain assessment.

17W.C. submits that his pre-existing and ongoing accident-related pain justify that a chronic pain assessment is reasonable and necessary. He points to the pre-accident medical history of the right leg injuries, and the left shoulder pain as a result of the accident, as reasonable grounds for a chronic pain investigation.

18Aviva relies on the reports of its s. 44 orthopaedic assessor, Dr. Ikejiani, who concluded in a November 10, 2017 report that W.C. suffered soft tissue injuries related to the accident. A March 22, 2019 general physician IE report from Dr. Mula noted that W.C. was able to perform indoor tasks, but not outdoor tasks, due to shoulder pain. W.C. reported persistent sharp left shoulder pain and dull neck pain. Dr. Mula diagnoses W.C. with myofascial strain of his c-spine and bilateral shoulders. Both Drs. Ikejiani and Mula concluded that W.C. had reached maximum medical recovery, that further facility-based treatment was not reasonable and necessary as it would not likely lead to further significant, long-lasting improvement. It was recommended that W.C. follow up with his treating physician for further medical management.

19In a May 30, 2019 addendum report, Dr. Mula address a February 11, 2018 MRI and an August 24, 2018 Orthopaedic Consultation Report by Dr. Vennettilli (who noted a partial thickness distal left supraspinatus tear). Dr. Mula’s opinion remained unchanged from his initial report. Aviva maintained its determination that the OCF-18 was not reasonable and necessary.

20On the evidence, I find that there is sufficient evidence that supports that a chronic pain assessment is reasonable and necessary. First, while Aviva emphasizes that W.C. was removed from the Minor Injury Guideline as a result of psychological impairments, I find that this is not determinative that any physical pain symptomatology does not require further investigation. Second, W.C. has an extensive medical history of shoulder pain complaints, supported by diagnostic imaging revealing tears.

21While the pre-existing injuries were some time prior to the subject accident, W.C. still presented with ongoing right shoulder pain complaints, that was noted to have been exacerbated by the accident. Given the seriousness of the right shoulder injuries, and the possibility that the subject accident may have exacerbated the pre-existing injury, it is reasonable to investigate if the injury has now become chronic as a direct result of the accident. In addition, given the confirmation of various thickness tears, and despite the objective findings of good range of motion, there are still pain complaints noted and impingement signs (Dr. Vennettilli).

22In order to determine whether an assessment is reasonable and necessary, one must bear in mind that assessments are speculative in nature. The purpose of an assessment is to determine if a condition exists. In order to determine whether an assessment is reasonable and necessary, W.C. is required to point to objective evidence that there are sufficient grounds to suspect that the condition for which he seeks an assessment exists.

23I find the consistency of W.C. pain complaints in the approximately three years post-accident, support that an investigation of whether he has chronic pain as a result of the accident.

AWARD

24The issue of an award was not included in the Tribunal application. There was no formal request to add this issue. The argument was raised in W.C.’s submissions.

25Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled to at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has unreasonably withheld or delayed payments.

26W.C. seeks the maximum 50% award based on Aviva’s alleged failure to continue to adjust the claim in good faith. W.C. submits that Aviva continued to unreasonably rely on the conclusions of Dr. Mula, who failed to properly consider evidence contradictory to his conclusions.

27On the evidence, I find that an award is not appropriate. While W.C. alleges that Dr. Mulas conclusions are flawed, Aviva exercised its right to rely on the opinions of its medical assessors. It made its determination in accordance with the opinions of its medical assessors, and whether W.C. disagrees with those opinions, is not a ground for an award. Had Aviva gone against the opinions of its assessors that found in favour of W.C., that might be considered “unreasonable”.

28Such is not the case in the subject proceeding. I note that Aviva removed W.C. from the Minor Injury Guideline, previously settled/resolved earlier issues in dispute, and continued to seek opinions from its assessors as new medical evidence was provided. These are not indications of unreasonably withholding or denying payments. As such, I find an award is not appropriate.

ORDER

29W.C. is entitled to payment for the OCF-18 for chiropractic treatment in accordance with s. 38(11), as Aviva failed to comply with its requirements under s. 38(8) of the Schedule.

30W.C. is entitled to payment for the OCF-18 for a chronic pain assessment as he has established it is reasonable and necessary.

31Interest is payable on all outstanding payments of benefits in accordance with s. 51 of the Schedule.

32W.C. is not entitled to an award.