Licence Appeal Tribunal File Number: 20-004328/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:
Daniel Ratiu
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Andrew Franzke, Counsel
For the Respondent:
Leanne Zabudsky, Counsel
HEARD: In Writing
BACKGROUND
1The applicant was injured in an accident on April 10, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Is the applicant entitled to $2,367.03 for physiotherapy and massage therapy services from CBI Health Centre proposed by Vanessa Kaminska, physiotherapist, in a treatment plan (OCF-18) dated November 25, 2020, submitted November 27, 2020, denied by the respondent on December 11, 2020?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the applicant entitled to an award under s. 10 of O. Reg. 664?
RESULT
3The applicant is entitled to payment for the treatment plan once incurred as it is reasonable and necessary. Interest applies on any overdue benefits under s. 51. An award is not appropriate.
ANALYSIS
Is the treatment plan reasonable and necessary?
4To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.1
5At issue is a treatment plan for 18 weeks of physiotherapy in the amount of $2,367.03, recommended by CBI Health Centre, for the purposes of pain reduction, increased range of motion and strength and with a view to facilitating a return activities of normal life and pre-accident work activities. The applicant submits that the plan is reasonable and necessary where his family physician, treatment providers and orthopaedic surgeon have continued to endorse physiotherapy and massage treatment as a result of his consistent reporting of pain, injections for his right shoulder and potential surgery. He submits that the goals are reasonable, and Aviva has funded similar treatment post-accident. In addition, the applicant submits that Aviva did not deny the treatment plan in accordance with the requirements of s. 38 of the Schedule.
6In response, Aviva submits that the OCF-18 is not payable because it was not incurred, that the applicant has not demonstrated that his shoulder injury was caused by the accident, that ongoing facility-based treatment is not reasonable where there has been limited improvement and that it complied with s. 38.
7To begin, on review of the correspondence dated December 11, 2020, I find that Aviva properly denied the treatment plan in dispute within the ten days required under s. 38 of the Schedule. Its notice indicates that a s. 44 IE was required, which is confirmed in the correspondence dated December 23, 2020. I see no issues with s. 38 compliance that would make the OCF-18 automatically payable.
8However, on the evidence, I find the treatment plan is reasonable and necessary. In evidence are contemporaneous and ongoing recommendations from Dr. Gill for massage and physiotherapy treatment; a treatment letter from the applicant’s physiotherapist indicating improvement but lingering shoulder pain that is limiting his function as a mechanic; diagnostic imaging revealing articular sided tearing at the supraspinatus tendon; the opinion letters from Dr. Geddes indicating impact to the applicant’s daily living, leading to a plan for either arthroscopic surgery or injections; and medical records providing that injections were given because the applicant did not want to miss time from working. I prefer the applicant’s medical records over the s. 44 opinion of Dr. Auguste, which I found was not in line with the bulk of the medical documentation and the applicant’s self-reporting, which I found to be rather consistent. In a similar vein, I see no issues with causation, as the applicant’s shoulder complaints are tied to the accident by all of Dr. Gill, the diagnostic imaging report and the treatment letters from CBI.
9While I am alive to Aviva’s submissions that there is limited evidence of improvement from similar treatment with the recommending clinic, it is well-settled that pain relief is a legitimate goal for treatment and I find, on a balance of probabilities, that it would be reasonable to fund a final slate of treatment in order to determine whether ongoing facility-based intervention will lead to measurable functional impact for the applicant or if he has indeed simply reached maximal medical recovery from his shoulder impairment. Given the nature of the applicant’s work, I also accept that it is probable that he is experiencing pain in his opposite shoulder because of overcompensation. I am persuaded by the applicant’s consistent reporting of pain and attendance at treatment and the rather humble goals of the OCF-18. The cost of the treatment plan for 18 sessions is also not outside of the cost of treatment already approved by Aviva and the provision of an interim report would be beneficial for the parties to determine the ongoing benefits of this treatment. Accordingly, I find the applicant is entitled to payment of the OCF-18 once incurred as it is reasonable and necessary. Interest under s. 51 applies on the payment of any overdue benefits.
10Aviva incorrectly submitted that treatment must be incurred to be payable. In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, the Divisional Court held that the Tribunal’s practice of approving treatment and permitting claimants to incur and submit treatment expenses is the only effective remedy to a denied OCF-18. That is to say, it determined that Aviva’s position in that case was untenable because an applicant is not required to incur treatment before disputing a denial. In the Court’s view, this is consistent with s. 280(1) of the Insurance Act, which contemplates entitlement and quantum as two distinct issues, as well as the remedial purpose of the Schedule. Moreover, the Court noted, applicants with limited or no access to funds would otherwise be at the mercy of their insurers, the very power imbalance that the Schedule was intended to level. Accordingly, Aviva’s position on incurred is not tenable.
11Finally, the applicant sought an award under s. 10 of O. Reg. 664, submitting that Aviva unreasonably withheld and delayed the payment of the benefit. I find an award is not appropriate. Aviva properly denied the OCF-18 under s. 38 on the basis of a s. 44 IE. The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. While I have found the OCF-18 to be reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a s. 10 award.
ORDER
12The applicant is entitled to payment of the OCF-18 once incurred. Interest applies on any overdue benefits under s. 51. An award is not appropriate.
Released: February 16, 2022
Jesse A. Boyce
Vice-Chair