Pirzada v. Aviva Insurance Company of Canada, 2022 CanLII 35810

Citation: Pirzada v. Aviva Insurance Company of Canada, 2022 ONLAT 19-013891/AABS

Licence Appeal Tribunal File Number: 19-013891/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:

Nasim Pirzada

Applicant

And

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Nancy Aquilina

APPEARANCES:

For the Applicant: Syed M. Raza, Counsel

For the Respondent: Kelvin Brown, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on December 16, 2017 and sought medical benefits from the respondent, Aviva General Insurance (“Aviva”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

2In an Order by Adjudicator Neilson dated March 31, 2021, the parties agreed to deadlines for written submissions including a deadline for applicant’s reply submissions of July 26, 2021. In addition to these submissions, the parties each wrote to the Tribunal on July 29, 2021, requesting that the Tribunal consider a letter of clarification and a rebuttal to this letter for the purposes of this written hearing.

3The letters that were submitted to the Tribunal following the applicant’s reply submission deadline of July 29, 2021 will not be considered as the parties did not seek the Tribunal’s consent for additional submissions by way of a motion beyond the deadlines established in the Orders. Therefore, they will not form part of this written hearing.

4Further to this, in their letter dated July 29, 2021, the applicant requested that costs be added as an issue in dispute. In a Motion Order by Vice-Chair Maedel dated March 1, 2021, the applicant’s motion for costs was dismissed as he found that costs are a discretional remedy awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19² and that this test had not been met in this case. Given all the facts noted above and that the respondent is prejudiced by not having the right to reply to the request for costs at this stage, I, too, find that the request for costs is dismissed.

ISSUES IN DISPUTE

5The following issues are in dispute:

1. Is the applicant entitled to a cost of examination in the amount of $1,990.00 for a neurological assessment, proposed by Dr. Shawn Roy of Alliance Diagnostics and Treatment Inc. in a treatment plan (OCF-18), submitted on September 5, 2019?
2. Is the applicant entitled to a medical benefit in the amount of $1,727.00 for physiotherapy treatment and massage therapy, proposed by Gurpreet Kaur Kandhole of New Hope Physiotherapy in a treatment plan (OCF-18) dated September 7, 2019?
3. Is the applicant entitled to a medical benefit in the amount of $3,463.58 for assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated May 14, 2020?
4. Is the applicant entitled to a medical benefit in the amount of $3,471.85 for chiropractic treatment, massage therapy, and assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated July 21, 2020?
5. Is the applicant entitled to a medical benefit in the outstanding amount of $1,122.05 ($3,491.40 submitted less $2,369.35 approved) for psychological treatment, proposed by Mohammad Reza Sadeghi in a treatment plan (OCF-18) dated September 17, 2020?
6. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an orthopaedic assessment, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan (OCF-18) dated March 19, 2021?
7. Is the applicant entitled to interest on any overdue payment of benefits?

6In the Order of Adjudicator Chakravarti dated July 7, 2020, the parties agreed to withdraw issue number 1 as listed on the LAT application. In a Motion Order dated June 3, 2021, Vice-Chair Hunter added issue number 6, as listed above. By way of a Motion Order dated, March 1, 2021 by Vice-Chair Maedel, issues number 3, 4, and 5, as noted above, were added to this hearing.

7In the applicant’s submissions dated June 25, 2021, the applicant withdrew the neurological assessment, issue number 1 as noted above, as per correspondence between the applicant and Aviva following the case conference. Therefore, it will not be addressed as part of this hearing.

RESULT

8Based on the totality of the evidence and submissions before me, I find that:

1. The applicant is entitled to a medical benefit in the amount of $1,727.00 plus interest in accordance with s. 51 of the Schedule for physiotherapy treatment and massage therapy, proposed by Gurpreet Kaur Kandhole of New Hope Physiotherapy in a treatment plan (OCF-18) dated September 7, 2019.
2. The applicant is not entitled to a medical benefit in the amount of $3,463.58 for assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated May 14, 2020. Interest is not payable with respect to this benefit.
3. The applicant is entitled to a medical benefit in the amount of $3,471.85 plus interest in accordance with s. 51 of the Schedule for chiropractic treatment, massage therapy, and assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated July 21, 2020.
4. The applicant is not entitled to a medical benefit in the outstanding amount of $1,122.05 ($3,491.40 approved less $2,369.35 approved) for psychological treatment, proposed by Mohammad Reza Sadeghi in a treatment plan (OCF-18) dated September 17, 2020. Interest is not payable with respect to this benefit.
5. The applicant is not entitled to a cost of examination in the amount of $2,200.00 for an orthopaedic assessment, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan (OCF-18) dated March 19, 2021. Interest is not payable with respect to this benefit.

ANALYSIS

9Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. In order to receive payment for a treatment and assessment plan, the applicant bears the onus of proving on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

10The applicant submits that he continues to experience right shoulder, lower back, bilateral knee, bilateral leg, lower back pain, and headaches that prevent him from returning to his pre-accident level of functioning. These impairments, he argues, are supported by various treating practitioners including his family physician, Dr. Bahauddin Danial. Lastly, he contends that he suffers from chronic pain as diagnosed by Dr. Gregory Karmy, chronic pain physician, and psychological impairments including symptoms of depression, anxiety, and somatic symptom disorder (chronic pain) as noted by Dr. Oren Gozlan, in a psychologist assessment.

11In response, Aviva relies on the IE reports of Dr. Alan Kruger, general physician, Dr. Michael Hanna, physician, and Dr. Rakesh Ratti, psychologist, that conclude that the treatment plans should not be paid. Aviva directs the Tribunal to the Financial Services Commission of Ontario (“FSCO”) decision General Accident Assurance Company of Canada v. Violi and contends that the following considerations ought to be weighed when determining whether treatment is reasonable and necessary.³ They include the following: if the treatment goals, as identified, are reasonable, if these goals are being (or will be met) to a reasonable degree, and if the overall cost of achieving these goals is reasonable, considering both the degree of success and the availability of other treatment alternatives. In considering these factors, Aviva contends that applicant has not established on a balance of probabilities that the treatment plans are reasonable and necessary.

Is the applicant entitled to $1,727.00 for physiotherapy and massage therapy treatment?

12For the following reasons, I find that the applicant is entitled to the treatment plan.

13In his submissions, the applicant states that Aviva’s denial was not medically supported, does not provide medical reasons for its denial, and that it is in contravention of s. 38(8) of the Schedule. Further to this, the applicant contends that Dr. Karmy’s chronic pain report of June 18, 2019 supports ongoing active and passive rehabilitation which forms the basis of this treatment plan.

14Aviva contends that two weeks prior to the submission of this treatment plan, a treatment plan recommending a chronic pain program was approved that included physical treatment. Considering this, Aviva submits that the Tribunal should not allow additional physical treatment as outlined in this treatment plan when it approved physical treatment in the context of the chronic pain program two weeks prior to the submission of this treatment plan.

15Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10-business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan.

16The requirement for medical reasons in s.38(8) of the Schedule was set out in the reconsideration decision of T.F. v. Peel Mutual Insurance Company⁴ in which the Executive Chair stated:

An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

17Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s.38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s.38(8) of the Schedule. As such, the insurer is given an opportunity to “cure” a defective notice.

18In their denial dated September 19, 2019, Aviva states, “the patient does not appear to show objective signs of improvement despite continuing treatment. The patient’s subjective physical complaints appear to remain unchanged despite continuing treatment”. I find that Aviva’s denial on the basis that there are no objective and subjective physical complaints of improvement falls short of Aviva’s obligation to provide clear and specific medical and other reasons under s.38(8) of the Schedule. This denial does not set out specific details of the applicant’s condition that forms the basis for Aviva’s denial.

19Lastly, although Aviva contends that consideration should be given for the approval of the chronic pain program that includes the modalities as set out in this treatment plan, this is not cited as a reason for the denial of the treatment plan in Aviva’s letter dated September 19, 2019. In addition to this, the details of the chronic pain program are not provided by way of submissions or evidence to the Tribunal for this hearing. Therefore, I do not agree that physiotherapy and massage therapy treatment approved in the chronic pain program absolves Aviva’s obligation to assess the reasonableness and necessity of the treatment plan in dispute.

20Therefore, for these reasons, I find that Aviva’s denial of the treatment plan did not comply with s. 38(8) and therefore it is payable for those expenses from the 11th business day onwards pursuant to s. 38(11).

Is the applicant entitled to physical treatment and assistive devices in the amount of $3,463.58 and $3,471.85?

21For the following reasons, I do not find that the applicant is entitled to the treatment plan in the amount of $3,463.58 dated May 14, 2020 but is entitled to the treatment plan in the amount of $3,471.85 dated July 21, 2020.

22I agree with Aviva and adopt the criteria as set out in Violi⁵ in weighing whether treatment plans are reasonable and necessary in this case before me. With the criteria in mind, I will now turn to the application of it to the evidence.

23The applicant submits that pain relief is the objective of the treatment and that a diagnosis of chronic pain and the requirement to continue with physical treatment for pain relief is supported by Dr. Karmy, Dr. Danial, the applicant’s family physician and Dr. Gozlan. Upon review of the clinical notes and records that Aviva acknowledges to have received well before this hearing, I note several notations of the recommendation for physical treatment in response to the applicant’s pain complaints by the family physician. As stated in the applicant’s submissions and upon my review of Dr. Danial’s notes, there are consistent pain complaints throughout the records with recommendations for either ongoing treatment and/or pain medication and/or further diagnostic imaging as identified on December 30, 2017, March 10, 2018, May 12, 2018, June 11, 2018, October 25, 2018, January 12, 2019, and November 7, 2019. This is not an exhaustive list of the entries.

24The applicant submits that Dr. Larysa Mikhailava’s, chiropractor, recommendations in the treatment plans are in line with those of the family physician when it comes to further physical treatment and the need for specific assistive devices including a back support. The applicant identifies these treatment goals in their submissions as they are set out by Dr. Larysa Mikhailava in the treatment plans to be pain reduction, increased range of motion and increase in strength and the functional goal to return to both daily and pre-accident work activities.⁶ Lastly, the applicant requests that the Tribunal approve the treatment plan in the amount of $3,471.85 dated July 21, 2020 on the grounds that the medical reasons for its denial are improper and in contravention of section 38(8) and section 38(11) of the Schedule.

25In support of its denial of the treatment plans, Aviva relies on an IE report of Dr. Kruger dated September 18, 2020. Aviva submits that Dr. Kruger found no notable deficits in strength, reflex, or range of motion testing and concluded that the applicant has reached maximum medical improvement. Further to this, Aviva submits that Dr. Kruger is of the view that ongoing treatment will not accelerate the resolution of the applicant’s residual symptomatology.⁷ Lastly, Aviva states that the treatment plans are not payable as they have not been incurred and relies on Qaderi v. Aviva and D.B v. Wawanesa⁸ in support of its claim that the plans must be incurred for the Tribunal to award them.

26The notion that a treatment plan must be incurred for its consideration has been recently address by the Divisional Court in Aviva Insurance Company of Canada v. Danay Suarez.⁹ In this decision, Aviva argued that Adjudicator Grant had erred in law when he ordered Aviva to pay for the treatment plans when there was no evidence before the LAT that the treatment had been incurred in advance of the hearing. In response to this position, the Divisional Court held the following:

Aviva’s position is untenable on any interpretative approach to the legislation. Not only does its proposed interpretation offend the remedial, consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of s. 280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s.55(1) of the Schedule which is silent on a claimant’s failure to “incur” expenses as a restriction to initiating proceedings.

27I agree that an applicant should not be held to a standard that presupposes that treatment must be incurred for it to be disputed as this is contrary to the intent of the consumer protection principles of the Insurance Act and the Schedule. I do not agree with Aviva’s position that the treatment plans must be incurred for their consideration. I will now turn to discuss if they are reasonable and necessary.

28The applicant cites 17-007626 v Aviva where Adjudicator Boyce acknowledges that the devices “are minor allowances on Aviva’s part to potentially address the pain experienced by the applicant in her day-to-day work and home life”.¹⁰ I see parallels between this case and the details as outlined in Adjudicator Boyce’s case. As noted previously in this decision, the applicant’s pain limitations are cited by his treating practitioners and assessors who acknowledge the need for assistive devices.

29Aviva states that Dr. Kruger opines that the applicant has reached a plateau when it comes to medical recovery and acknowledges that ongoing treatment may not be beneficial given the treatment the applicant has already undergone and that this is corroborated by Dr. Hanna in his IE report. Further to this, Aviva states in their submission that lines 8 through 14 of the treatment plans recommend assistive devices that are either duplicates or ought to be considered duplicates.

30Upon review of the treatment plans, I agree with Aviva that there are significant overlaps with respect to assistive devices recommended in each treatment plan. These treatment plans are proposed within two months of one another and do call into question the need for more than one lumbar support back rest, as an example, within a 2-month time span.

31I do not find that the treatment plan in the amount of $3,463.58 reasonable and necessary as a substantial number of assistive devices, noted on this May 14, 2020 plan, are considered in the July 21, 2020 treatment plan with the exception of education and instructions on how to use the devices. I agree that these are a duplication of services.

32I agree with the applicant’s submission that Aviva’s notice denying the treatment plan in the amount of $3,471.85 dated July 21, 2020 is deficient and in contravention of section 38(8) and that pursuant to section 38(11) it should be paid.

33The applicant submits that Aviva’s denial letter sets out the following statements in support of their denial of the treatment plan, “The OCF-18 dated July 21, 2020 recommends multiple assistive devices, chiropractic and massage therapy. The medical records previously supplied do not support these recommendations of devices. I do not believe this treatment plan is reasonably necessary for your accident-related impairments”.

34I find that Aviva’s denials dated July 30, 2020 and September 18, 2020 fall short of its requirement to set out clear medical and other reasons why it is not considering the goods and services provided in the treatment plan of July 21, 2020. Specifically, when Aviva vaguely states that previous medical records do not support the recommendation of assistive devices it is not clear to me what medical records they are referencing. Again, this denial does not set out specific details of the applicant’s condition that forms the basis for Aviva’s denial.

35I find that the applicant is entitled to the treatment plan in the amount of $3,471.85 dated July 21, 2020 as Aviva’s denial of the treatment plan did not comply with s. 38(8) and therefore it is payable for those expenses from the 11th business day onwards pursuant to s. 38(11).

Is the applicant entitled to $1,122.05, the balance of a treatment plan for psychological treatment?

36For the following reasons, I find that the balance of the treatment and assessment plan/OCF-18 in the amount of $1,122.05 dated September 17, 2020 (“treatment plan”) is not reasonable and necessary.

37The applicant submits that the treatment plan should be approved in its entirety and that the denied portion of the treatment plan is based on the subjective opinion of Dr. Ratti. Further to this, the applicant states that Dr. Ratti’s recommendations for note taking, testing and preparation of progress reports are not founded on evidence that supports his rationale that the disputed hours are not reasonable.

38In Dr. Ratti’s IE report, Aviva states that the twelve one-hour sessions of psychological treatment are found to be reasonable. In addition to this, note taking/planning should be considered within the psychological sessions and that any consideration for note taking/planning outside of the sessions are not reasonable. Aviva states that 30 minutes for client feedback is reasonable and not the hour set out in the treatment plan. Lastly, Dr. Ratti, as confirmed by Aviva in their submissions, does not find the 6 hours for testing/scoring/formulation and progress review and report reasonable and offers 2 hours for a progress review and report instead.¹¹

39In this case, the applicant has not pointed me to evidence to establish that the additional time for client feedback, testing/scoring/formulation and note taking/planning is reasonable and necessary. The OCF-18 does not appear to provide rationale for length of these services. Therefore, the applicant is not entitled to the unapproved portion of the treatment plan dated September 17, 2020 in the amount of $1,122.05.

40In the absence of evidence from the applicant to the contrary, I find that the applicant is only entitled to payment for the treatment plan up to $2,369.35, as already approved by Aviva and not the denied portion of the treatment plan in the amount of $1,122.05.

Is the applicant entitled to an orthopaedic assessment in the amount of $2,200.00?

41The applicant does not provide submissions with respect to this treatment plan until his reply submissions. In his reply submissions, the applicant relies on an x-ray of the lumbar spine dated June 2018 to establish orthopaedic concerns that warrant further investigation through an orthopaedic assessment. In addition to this, the applicant references his stroke of March 2021 and states that given the extensive evidence of ongoing musculoskeletal and orthopaedic issues combined with his stroke the assessment is reasonable and necessary.

42Aviva contends that there is no evidence of any acute orthopaedic injury immediately following the accident to date and relies on Dr. Hanna’s opinion that from a musculoskeletal perspective, the applicant sustained soft tissue injuries as a direct result of the accident.

43I agree with Aviva and have not been pointed to evidence of any acute orthopaedic injury. In addition to this, I fail to see a correlation between the applicant’s stroke and the need for an orthopaedic assessment. Lastly, the applicant cites orthopaedic concerns as noted in an x-ray completed in June 2018 as a reason for the need for an orthopaedic assessment but given that it has been two and a half years since the x-ray was taken, I find it difficult to reconcile the reasonableness and necessity of the assessment at this time.

44Therefore, for the reasons provided above, I do not find that the orthopaedic assessment is reasonable and necessary.

CONCLUSION AND ORDER

45For the reasons outlined above, I find the following:

1. The applicant is entitled to a medical benefit in the amount of $1,727.00 plus interest in accordance with s. 51 of the Schedule for physiotherapy treatment and massage therapy, proposed by Gurpreet Kaur Kandhole of New Hope Physiotherapy in a treatment plan (OCF-18) dated September 7, 2019.
2. The applicant is not entitled to a medical benefit in the amount of $3,463.58 for assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated May 14, 2020. Interest is not payable with respect to this benefit.
3. The applicant is entitled to a medical benefit in the amount of $3,471.85 plus interest in accordance with s. 51 of the Schedule for chiropractic treatment, massage therapy, and assistive devices, proposed by Larysa Mikhailava in a treatment plan (OCF-18) dated July 21, 2020.
4. The applicant is not entitled to a medical benefit in the outstanding amount of $1,122.05 ($3,491.40 approved less $2,369.35 approved) for psychological treatment, proposed by Mohammad Reza Sadeghi in a treatment plan (OCF-18) dated September 17, 2020. Interest is not payable with respect to this benefit.
5. The applicant is not entitled to a cost of examination in the amount of $2,200.00 for an orthopaedic assessment, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan (OCF-18) dated March 19, 2021. Interest is not payable with respect to this benefit.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended
3. 3See, General Accident Assurance Co. of Canada v. Violi (FSCO Appeal P99-00047)
4. 42018 CanLII 39373 (ON LAT Reconsideration Decision) (“T.F. v. Peel”) at para. 19.
5. 5See, General Accident Assurance Co. of Canada v. Violi (FSCO Appeal P99-00047)
6. 6Applicant’s Written Submissions at Tab 9.1 and 9.2, Treatment Plans (OCF-18) of Dr. Larysa Mikhailava dated May 14, 2020 and July 21, 2020
7. 7Written Submissions of the Respondent at Tab K, Dr. Alan Kruger, Medical Physician Assessment dated September 18, 2020
8. 8Qaderi v. Aviva (FSCO A16-000247) and D.B v. Wawanesa, 2018 Canlii 133513 (ONLAT)
9. 9Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200
10. 1017-007626 v Aviva, 2018 CanLII 95584 (ON LAT) at para 8
11. 11Written Submissions of the Respondent at Tab Q, Psychological Assessment of Dr. Rakesh Ratti dated December 18, 2020