Citation: Reid v. Aviva Insurance Company, 2022 ONLAT 20-005777/AABS

Licence Appeal Tribunal File Number: 20-005777/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:

Errol Reid

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Asad Ali Moten

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

Catherine Zingg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (the “Applicant”) was involved in a motor vehicle accident on August 12, 2017. [HE] seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2At issue between the parties are the Applicant’s claims for various medical benefits. The Applicant’s claims to the insurer were denied, and now he appeals to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of these claims.

3Applicant argues entitled to proposed treatment plans – reasonable and necessary.

4Respondent says, for various reasons, Applicant has not met onus

ISSUES

5The issues to be decided are:

a. Is the applicant entitled to $3,948.91 for chiropractic services, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) submitted December 13, 2017?

b. Is the applicant entitled to $3,191.25 for chiropractic services, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) submitted August 22, 2018?

c. Is the applicant entitled to $2,702.11 for chiropractic services, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) submitted September 10, 2018?

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

e. Is the respondent entitled to costs because the applicant has acted unreasonably, frivolously, vexatiously or in bad faith?

RESULT

6I find that, for the reasons below, the Applicant has met his onus to prove that the proposed treatment plans are reasonable and necessary.

BACKGROUND

7On August 12, 2017, the Applicant was in a car accident. He was the driver of his car, and was traveling straight through an intersection, when another car, turning left, collided with his. Police and ambulance were called to the scene. His immediate symptoms included pain in his neck, upper back and across his shoulders. He later developed lower back pain.

8The next day, the Applicant went to his family doctor. He complained of ongoing pain in the aforementioned areas. His doctor recommended physiotherapy and medication to mitigate the pain.

9The Applicant began rehabilitation a few days later under the care of a chiropractor, who diagnosed the Applicant with sprains and strains in his spine, shoulder joint, and sacroiliac joint. The chiropractor also noted nervousness, symptoms of PTSD, and tension headaches.

10The Applicant later underwent a psychological assessment where he was diagnosed as meeting the criteria for DSM-5 specific phobia, situational; and, adjustment disorder with mixed anxiety and depressed mood.

11According to the Applicant, the physical therapy he has received has helped him alleviate the pain from his injuries by 20 percent.

12Two months after the accident, the Applicant returned to work as a general labourer at an iron and metal company.

13The Applicant also underwent two section 44 examinations in January and March 2018. The findings of these section 44 examinations appear to be consistent with the Applicant’s other assessments, both in respect of how the Applicant self-reported his injuries and the physicians’ observations.

14To date, the Respondent has paid medical/rehabilitation benefits in the amount of $8,359.43, and approved $1,920.53 for psychological assessment. The Applicant has, on his own, incurred $8,893.47 in physical rehabilitation.

15The Applicant’s health history before the accident indicates that he suffered from lumbar strains on several occasions, and on one occasion from a head injury that required emergency services.

ANALYSIS

16Section 15(1) of the Schedule creates a liability on the part of insurers to pay for “all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for…” among other things, medical, chiropractic, and psychological services, assistive devices, and other goods and services of a medical nature that are essential for the treatment of the insured person.

17The onus is on the Applicant to demonstrate, on a balance of probabilities, that all the treatments in dispute are reasonable and necessary.¹ This requires the Applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident. The causation test to be applied is the “but for” test.²

18Next, the Applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.³

19The Respondent relied upon a single section 44 examination (the “Dr. Khan Exam”) conducted March 27, 2018⁴ to deny all three of the Applicant’s proposed treatment plans. This exam indicates, among other things, that:

a. the Applicant had been receiving physical therapy treatment at least once a week since a few days after the accident;

b. the Applicant experienced lower back and left shoulder pain intermittently, which was alleviated by rest and therapy;

c. physical examination showed tenderness in the left shoulder;

d. diagnostic impressions indicate left shoulder sprain and lumbar spine strain, caused by the accident;

e. the Applicant suffered a predominantly minor injury; and,

f. the first of the proposed treatment plans is not reasonable and necessary because the Applicant’s injuries can be treated within the Minor Injury Guideline (“MIG”).

20I note that the Respondent removed the Applicant from the MIG in January 2018 (i.e. before the Dr. Khan Exam) on account of the Applicant’s psychological injuries. There is no indication, however, that this information was available to Dr. Khan in March 2018.

a. Is the Applicant entitled to $3,948.91 for chiropractic services, as submitted in a treatment plan dated December 13, 2017?

21The Applicant’s chiropractor submitted the OCF-18 proposing a treatment plan consisting of physical therapy, massage, stimulation of muscles, hypothermy, mobilization, manipulation, and acupuncture. The goal of the treatment plan is described as pain reduction, increase in strength, and, increase in range of motion. The proposed treatment plan notes the Applicant’s injuries as sprains and strains of the spine, shoulder, and sacroiliac joint, among others.

22The Respondent denied the proposed treatment plan on the basis of the findings of the Dr. Khan Exam, in particular Dr. Khan’s finding that the proposed treatment plan was not reasonable or necessary.

23Both Dr. Khan and the Applicant’s chiropractor note the same injuries. The Applicant had been, at the time of the proposed treatment plan and at the time of the Dr. Khan Exam, attending physical therapy for these same injuries. The Applicant reports, and it is noted in several places, that he experiences benefit from physical therapy in the form of pain reduction.

24At the time of the Dr. Khan Exam, the Applicant self-reported intermittent back and shoulder pain, and was found to have the same upon physical examination. It is well-settled that pain reduction is a legitimate goal for treatment.⁵

25The main thrust of the Respondent’s argument appears to be that because the Applicant’s injuries fall within the MIG, the proposed treatment plans are not reasonable and necessary. Were the applicability of the MIG still an issue, it may be open to the Tribunal to conclude that the Applicant’s injuries were sufficiently minor. That is not the case here, however. The Applicant has been removed from the MIG, and the question before the Tribunal is whether the proposed treatment plan is reasonable and necessary in treating the Applicant’s injuries as suffered in the accident.

26The Applicant sustained the injuries in the accident; the evidence supports that the impairment continues, even at the time of the Dr. Khan Exam; and the evidence also supports the conclusion that physical therapy assists in mitigating the impairment by alleviating the pain.

27Therefore, the Applicant has satisfied his onus and demonstrated, on a balance of probabilities that the proposed treatment plan is reasonable and necessary and he is entitled to the benefits claimed.

b. Is the Applicant entitled to $3,191.25 for chiropractic services, as submitted in a treatment plan dated June 14, 2018?

28Again, the Applicant’s chiropractor submitted the OCF-18 proposing a treatment plan for much the same treatment as the treatment plan proposed in December 2017.

29And again, the Respondent relied upon the March 2018 section 44 examination to deny the Applicant’s proposed treatment plan. The Respondent’s explanation of benefits stated, essentially, that nothing had changed, and no updated clinical records had been provided since the previous proposed treatment plan was denied.

30For the same reasons as above, the Applicant has satisfied his onus and demonstrated that the proposed treatment plan is reasonable and necessary, and that he is entitled to the benefits claimed.

c. Is the Applicant entitled to $2,702.11 for chiropractic services, as submitted in a treatment plan dated September 10, 2018?

31Once more, the Applicant’s chiropractor submitted the OCF-18 proposing much the same treatment plan for the same identified injuries as the proposed treatment plans above.

32And once more, the Respondent denied the proposed treatment plan on the basis that there has been no reported change, no updated clinical records, and therefore the proposed treatment plan was not reasonable and necessary.

33The difficulty is that the lack of further documentation cuts both ways. The Dr. Khan Exam is the last interaction the Applicant had with an assessor for the Respondent. The Dr. Khan Exam found shoulder and back strains. Fast-forward to this OCF-18, the same injuries are noted. There is nothing to suggest that they no longer persist. But the evidence from the Dr. Khan Exam indicates that therapy helps.

34For the same reasons as above, I find that the Applicant has satisfied his onus and demonstrated that the proposed treatment plan is reasonable and necessary. He is therefore entitled to the benefits claimed.

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

35As I find that the Applicant is entitled to the treatment plans claimed in this application, the Applicant is entitled to interest for the overdue payment of any benefits pursuant to section 51 of the Schedule.

e. Is the respondent entitled to costs because the applicant has acted unreasonably, frivolously, vexatiously or in bad faith?

36The extent of the Respondent’s submissions on this point is to allege that (a) the Applicant did not inform the Respondent when he returned to work, resulting in the Respondent obtaining an order for repayment of benefits; and (b) misreporting the number of hours the Applicant works to a physician conducting a section 44 examination.

37With respect to (a), the Respondent has already been awarded a repayment of benefits. In light of my findings above, I do not find there to be any grounds to award any further costs against the Applicant.

38With respect to (b), the Respondent claims that the Applicant’s paystubs show “overtime earnings in excess of 60 hours per pay period during October, November and December 2017 in addition to his regular pay period.” My reading of the Applicant’s paystubs differs. The Applicant did, in some pay periods during those three months, work overtime. On the other hand, there are also weeks, including those around the time of the Applicant’s section 44 examination, in which the Applicant worked less than 30 hours per week. Nowhere on the paystubs do I read that the Applicant had overtime earnings in excess of 60 hours per pay period. Therefore, I do not find that the Applicant was dishonest in his self-reporting. In any event, the Applicant’s self-reporting does not appear to have affected the examining physician’s conclusions about the Applicant’s ability to return to work.

39I find that the Respondent is not entitled to its costs on the application.

ORDER

40For the reasons above, I find that the Applicant has met his onus to demonstrate that the proposed treatment plans are reasonable and necessary for his rehabilitation from injuries suffered in the accident. He is entitled to payment of up to the amounts claimed, along with interest pursuant to section 51 of the Schedule.

Released: May 12, 2022

Asad Ali Moten

Adjudicator

Footnotes

1. 1Scarlett v Belair Insurance, 2015 ONSC 3635
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121.
3. 3See, for e.g., 17-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT).; 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.
4. 4Note: there are two reports by the same physician on the same day. One appears to comment on income replacement benefits, whereas the one described above comments on the treatment plan at issue.
5. 516-003921 v. Certas Home and Auto Insurance Co. 2018 CanLII 141005 (ON LAT), para. 18.