J. B. W. v. Aviva General Insurance, 2022 CanLII 111291

J. B. W. v. Aviva General Insurance

Citation: J. B. W. v. Aviva General Insurance, 2022 ONLAT 18-008128/AABS

Released Date: November 17, 2022

Licence Appeal Tribunal File Number: 18-008128/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:

J. B. W.

Applicant

And

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Anita Goela

APPEARANCES

Counsel for the applicant: Tal Eshel

Counsel for the respondent: Andrea Bandow

Written Hearing: October 14, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in a motor vehicle accident on August 14, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“Schedule”).

2The respondent denied the applicant two chiropractic treatment plans and a chronic pain assessment on the basis that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and fall within the Minor Injury Guideline (“MIG”)². The applicant’s position is that his impairments fall outside the MIG. Additionally, the applicant submits that the respondent’s denial of the disputed treatment plans did not meet the notice requirements as set out in the Schedule.

3If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary. If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule. The applicant has applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of their dispute of the applicability of the MIG and his entitlement to several medical benefits.

ISSUES IN DISPUTE

4The specific legal issues in this appeal are as follows:

i. Did the respondent comply with the notice requirements as defined under the Schedule?

ii. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

5If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to a medical benefit for chiropractic services recommended by Life Harmony Rehab Clinic in a treatment plan in the amount of $4,042.00 submitted on December 14, 2016 and denied on December 23, 2016?

ii. Is the applicant entitled to the cost of an examination for a chronic pain assessment recommended by Prime Health Care Centre in a treatment plan in the amount of $2,689.40 submitted on October 17, 2018 and denied on November 5, 2018?

iii. Is the applicant entitled to a medical benefit for chiropractic services recommended by Life Harmony Rehab Clinic in a treatment plan in the amount of $2,472.44 submitted on October 19, 2018 and denied on November 5, 2018?

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

RESULT

6I find the following:

i. The respondent notified the applicant of his denials for the benefits listed in paragraph [5]ii. and [5]iii. after the 10^th business day. For those treatment plans, the respondent cannot deny the claims because of the application of the MIG. However, an analysis of the reasonableness and necessity of the treatment plans is still required³.

ii. The applicant is subject to the MIG for the treatment plan listed at paragraph [5]i.

iii. The two treatment plans above listed at paragraph [5]ii. and [5]iii, which the respondent is prohibited from denying because of the applicability of the MIG, are not reasonable and necessary.

iv. The applicant is not entitled to the chiropractic services treatment plans and chronic pain assessment.

v. The applicant is not entitled to interest.

7Accordingly, the application is dismissed.

ANALYSIS

Proper notice of denial – within 10 business days

8Section 38(8) of the Schedule provides than an insurer shall notify an insured of the medical and other reasons why a claim is denied within 10 business days. Section 38(11) provides consequences if the notice is found to be deficient, including that the insurer is prohibited from taking the position that the MIG applies and that the insurer is liable to pay for benefits incurred starting on the 11^th business day and ending when the insurer provides the denial.

9The respondent notified the applicant on the 13^th business day that the chronic pain assessment dated October 17, 2018 (at paragraph [5]ii.) was denied. The respondent notified the applicant on the 11^th business day that the chiropractic services treatment plan dated October 19, 2019 (at paragraph [5]iii.) was denied.

10The respondent indicates that the information on the Health Claims for Auto Insurance (HCAI) portal submission dates were later than the dates on the treatment plans. I was not able to locate evidence of these later dates as directed in the respondent’s submissions.

11The chronic pain assessment is dated October 20, 2018, and was incurred during the 10-day waiting period. The applicant’s submissions do not point me to evidence that any of treatment was incurred from the non-compliant chiropractic services treatment plan on the 11^th business day.

12On these facts, the respondent is not liable to pay for the two disputed benefits because the respondent cured its non-compliance with the notice requirement during the “shall pay” period and before the expenses were incurred.

Minor Injury Guideline

13The parties dispute the applicability of the MIG. The applicant submits that he should be removed for the MIG because of a pre-existing medical condition (gout), psychological symptoms, and chronic pain. The respondent’s position is the opposite. The respondent submits that the applicant’s pre-existing medical condition does not affect his maximal recovery under the MIG and that he has not met his evidentiary burden with respect to psychological symptoms and chronic pain.

14I agree with the respondent’s assessment of the applicant’s medical evidence. While largely illegible, the clinical notes and records (“CNRs”) from the applicant’s family doctor, [Dr. W], suggest that the applicant’s injuries are a sprain, strain and soft tissue injury. Specifically, I found the letter dated July 7, 2018, by [Dr. W] to be helpful. In that letter, almost 2 years after the accident, [Dr. W] refers to tenderness in various locations of the applicant’s body, opines that the impairments are likely to be temporary and that there is no record of disability from the accident-related impairments. I did not find that the applicant provided sufficient evidence to establish that psychological symptoms were also accident-related.

15I have considered the findings and impressions by Dr. Getahun and Dr. Qadeer in their respective reports. I find that these specialists agree that the applicant has residual back pain from the accident. The applicant’s MRI on March 9, 2021 suggests that the applicant has degenerative causes for his back pain.

16I agree with the respondent that the applicant’s evidence how his chronic pain has impacted his functionality is limited. It is difficult to engage in an analysis of the applicant’s chronic pain in the absence of this evidence.

17On balance, I do not find that the applicant has discharged his burden that his injuries are not minor in nature.

Reasonable and necessary

18As the respondent is prohibited from taking the position that the MIG applies for the treatment plans listed in paragraph [5]ii and [5]iii, an analysis of whether they are reasonable and necessary is required.

19Sections 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 the accident. The applicant bears the onus of proving that the treatment plans are reasonable and necessary.

20For the reasons set out above, I find that the applicant’s CNR’s from [Dr. W] and the findings of both his own and the respondent’s assessors suggest that the applicant’s accident-related injuries are minor and not chronic in nature. I do not find that the applicant has demonstrated it was reasonable or necessary to investigate whether the applicant’s accident-related back pain was chronic.

21The disputed chiropractic services treatment plan dated October 19, 2018 was not included in the applicant’s materials. However, the respondent did include it in its materials.

22The treatment plan indicates that the goals are pain reduction, increase in strength and increased range of motion. It goes on to state that the applicant has improved by 5% with his range of motion and pain level. Given that the applicant continues to report ongoing pain and that the applicant has improved with treatment, I do find that this treatment plan is reasonable.

23However, I am not persuaded that it is necessary. I do not find that the applicant has provided sufficient evidence that his recovery from his accident-related injuries requires chiropractic services. It appears from the CNR’s of [Dr. W] that his physical symptoms are managed by medication (Vimovo, Advil). On balance, I do not find that the applicant has met his onus that the treatment plan is necessary.

CONCLUSION

24The applicant is subject to the MIG.

25The applicant is not entitled to the medical benefits in dispute. As such, no interest is owing.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
3. 3Aviva General Insurance Company v. Catic, 2022 ONSC 6000