Nadarajah v. Aviva General Insurance Company, 2022 CanLII 68318

Citation: Nadarajah v. Aviva General Insurance Company, 2022 ONLAT 20-009520/AABS

Licence Appeal Tribunal File Number: 20-009520/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:

Ganaeshathasan Nadarajah

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Kevan Wylie, Counsel

For the Respondent: Michael J.L. White, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The Applicant was involved in an automobile accident on October 15, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the Schedule). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The Applicant argues that they are entitled to two proposed treatment plans, an award under s.10 of O. Reg. 664, and interest because the Respondent unreasonably denied payment of the two plans.

3The Respondent’s position is that the Applicant has not established entitlement to the denied treatment plans.

ISSUES

4The issues to be decided in this hearing are:

1. Is the Applicant entitled to $4,115.24 for chiropractic treatment proposed by Zarrabian Rehab Centre in a treatment plan/OCF-18 (“plan”) denied on April 10, 2019?

2. Is the Applicant entitled to $2,200.00 for a chronic pain assessment proposed by Novo Medical in a treatment plan denied on May 3, 2019?

3. Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

4. Is the Applicant entitled to interest on any overdue payment of benefits?

5The Applicant previously sought entitlement to $14,700 ($26,279.50, less $11,499.50 approved) for assessments to determine catastrophic assessment proposed by Novo Medical in a treatment plan denied on May 3, 2019. This issue has been withdrawn.¹

RESULT

6The Applicant has not established on a balance of probabilities that they are entitled to the two proposed treatment plans.

7The Respondent is not liable to pay an award under s. 10 of O. Reg. 664.

8The Applicant is not entitled to interest.

ANALYSIS

Issue 1: Is the applicant entitled to $4,115.24 for chiropractic treatment?

9I find that the Applicant is not entitled to $4,115.24 for chiropractic treatment. The evidence does not establish, on a balance of probabilities, that the subject accident caused the medical condition that the chiropractic services are meant to treat.

10Entitlement to chiropractic services is set out in s. 15(1)(b) of the Schedule:

Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

11Under s.15(1)(b), insurers must pay for chiropractic services that are reasonable and necessary expenses incurred by the insured as a result of an accident.

12Dr. Zarrabian completed the OCF-18 for chiropractic treatment. The goals of the plan are pain reduction, to increase strength, and to increase range of motion.²

13The Applicant submits that his medical condition was caused by the subject accident and argues it is established by the fact that he has continuously reported pain to family physicians since the accident.³

14The Respondent disputes that the Applicant suffers from accident-related pain. It points to the results of the insurer’s examination (IE) which states that the Applicant suffered uncomplicated soft tissue injuries from the accident. The Applicant has achieved maximum medical recovery and his current discomfort is caused by other factors and is unrelated to the accident.⁴

15The test for causation is the “but for” test in the Supreme Court case of Clements.⁵ To satisfy this test, the Applicant must show that the medical condition for which they are seeking treatment would not exist but for the accident.

16The Applicant states that the correct test causation is in Sabadash.⁶ The Applicant does not say how the six elements in paragraph 31 of Sabadash are engaged in this case. The Applicant also does not state how a “but for” analysis under Clements would differ, in this particular case, from an analysis under Sabadash. Given this lack of detail, I will consider causation under Clements.

17The subject accident took place on October 15, 2015. The clinical notes of Dr. Mather and Dr. Arif show that the Applicant reported neck pain in October and November of 2015.⁷

18On October 18, 2016, the Applicant reports lower back pain to Dr. Mather.⁸

19The Applicant reports neck pain on September 11, 2017. Dr. Mather references a previous x-ray which shows that the Applicant has degenerative disc disease.⁹

20On October 6, 2019, Dr. Arif notes that Applicant reports neck pain “since this morning” which the doctor attributes to poor positioning.¹⁰

21On February 29, 2020, Dr. Arif states that the Applicant “had chronic neck pain,” and cites two contributing factors: “degenerative changes in neck” and “MVA 2015.”¹¹

22These clinical notes show that the Applicant reported neck pain over a four- and half-year period from October 2015 to February 2020. Degenerative disc disease, poor positioning, and the subject accident are identified as causing neck pain. However, these notes are sparse. No explanation is given with regard to how Dr. Mather and Dr. Arif concluded that the subject accident continues to impact the Applicant.

23The IE report is quite detailed. Dr. Maser fully explains how he assessed the Applicant and concluded that the Applicant’s neck, shoulder, and back pain is likely not related to the subject accident.

24Dr. Maser physically examined the Applicant. There were no obvious signs of injury. The Applicant’s range of motion was within the normal range. The Applicant did experience some discomfort at the “extremes of motion.”¹² Otherwise, he reportedly did not experience pain or discomfort during the examination.

25Dr. Maser also reviewed the numerous medical and other accident-related documents made available to him.¹³ That review and the physical examination led him to conclude that the Applicant’s current symptoms cannot be attributed to the subject accident.¹⁴

26The IE report states that the Applicant has degenerative osteoarthritic changes in the cervical spine and that this may be the cause of the pain the Applicant continues to experience. Dr. Maser opines that the Applicant has achieved maximum medical recovery from his accident-related injuries and that his ongoing symptoms are not directly related to the subject motor vehicle accident.¹⁵

27Unlike the medical notes of Dr. Mather and Dr. Arif, the IE report is detailed and the conclusions are fully explained. Consequently, I give more weight to the IE report.

28As such, I find that the evidence does not show, on a balance of probabilities, that the subject accident caused the medical condition the proposed treatment plan is meant to address. Consequently, I find that the Applicant is not entitled to $4,115.24 for chiropractic treatment.

29The Applicant also argues that the Respondent took in excess of 10 business days to issue a denial and that paragraph 38(11)(2) of the Schedule is engaged. As such, the Applicant relies on this paragraph to require the Respondent to pay for treatment due to the latter’s non-compliance.

30The Respondent submits that paragraph 38(11)(2) of the Schedule requires insurers to pay for treatment from the eleventh business day after the treatment plan is submitted until the plan is denied. No information has been provided to confirm that the Applicant received treatment during this time. Under these circumstances, the tribunal cannot quantify what, if any, payment should be ordered.

31Under subsection 38(8) of the Schedule, insurers must provide notice and reasons for not paying for a treatment plan within 10 business days after the insurer receives the treatment plan.

32Paragraph 38(11)(2) of the Schedule reads as follows:

If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

33This paragraph mandates insurers to pay for treatment plans that “relate” to a specific period of time, namely, from the 11th business day after the application is received until the date the insurer gives notice.

34The term “relate” establishes a temporal component between the 11th business day after the treatment plan is received and the date the insurer gives notice. This temporal component must be considered when applying paragraph 38(11)(2).

35The purpose of the Schedule is ensuring consumer protection. This must also be considered.

36The Applicant submitted the treatment plan to the Respondent on Wednesday, March 13, 2019. The Respondent gave notice of the denial to the Applicant 20 business days later, on Wednesday, April 10, 2019.¹⁶

37I find that the Respondent did not comply with the 10-business day period required by subsection 38(8). As such, paragraph 38(11)(2) of the Schedule applies to this matter.

38The Applicant seems to be saying that treatment plans must be paid in their entirety once paragraph 38(11)(2) is engaged.¹⁷ I disagree. As noted above, the temporal component must be considered. In particular, how the period of time between the 11th and 20th business day, when the Respondent finally gave notice, relates to the treatment plan.

39The Respondent argues that the Applicant had to incur the chiropractic treatment during the period of non-compliance. If it was not incurred, then this treatment is not payable.

40In my view, the Respondent’s interpretation is too restrictive. The term “relate” infers an association between the period of non-compliance and the goods and services of the proposed treatment plan. There are no other limitations or requirements to be fulfilled in paragraph 38(11)(2). As such, how the goods and services of proposed treatment plans relate to the period of non-compliance must be determined according to the particular facts of a given situation.

41In this case, the Applicant identifies a period of non-compliance but does not state how the chiropractic treatment relates to the temporal component of paragraph 38(11)(2). He merely states that he is entitled to the full treatment plan because the insurer gave late notice. Consequently, the temporal element of paragraph 38(11)(2) has not been established. For this reason, the Applicant is not entitled to the treatment plan on the ground of the Respondent’s late notice.

42The Applicant further argues that the Respondent’s denial lacked sufficient reasons for the denial of the treatment plan. In the Applicant’s view, the reasons are skeletal and cryptic, and therefore, deficient. Accordingly, the Applicant submits they are entitled to the treatment plan.

43I reviewed the Respondent’s notice. The denial letter of April 10, 2019 required the Applicant to attend an insurer’s examination (IE). The subsequent report of Dr. Maser is the basis for the denial of the treatment plan.¹⁸ The Applicant made fulsome submissions when the denial of benefits was appealed to the LAT. As such, the Applicant understood the reasons for denial and meaningfully addressed those reasons. Consequently, I find that the reasons for the denial are not deficient.

Is the Applicant entitled to $2,200.00 for a chronic pain assessment?

44I find that the Applicant is not entitled to $2,200.00 for a chronic pain assessment. The evidence does not establish, on a balance of probabilities, that the Applicant’s medical condition was caused by the subject accident.

45Dr. Wilderman completed the OCF-18 for a chronic pain assessment. The goals of the treatment plan are pain reduction and a return to the activities of daily living. The Applicant submits that Dr. Wilderman makes a “provisional diagnosis”¹⁹ of chronic pain related to the subject accident in the treatment plan, which makes the treatment plan reasonable and necessary.

46The Applicant further submits that the IE did not involve a physical examination of the Applicant. The IE is entirely based on a paper review of documents. As such, the Respondent unreasonably denied the treatment plan based on a paper review that is less reliable than the physical exam conducted by Dr. Wilderman.

47The Respondent submits that their paper-based IE established that the Applicant had already achieved maximum medical recovery. Their denial was appropriate.

48The Respondent further submits that Dr. Wilderman was required by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (CPSO) to complete a continuing education and remediation program. It is unknown if he completed this step at the time the OCF-18 was completed.

49This information does not show that Dr. Wilderman was not licenced at the time he completed the treatment plan. Similarly, the completion status of Dr. Wilderman’s remedial program is, as the Respondent states, unknown. Accordingly, I cannot conclude one way or another that Dr. Wilderman failed to complete the program. Consequently, the information provided by the Respondent is not sufficient enough to diminish the weight to be given to Dr. Wilderman’s medical opinions.

50Once again, the test for causation is the “but for” test in Clements.

51Dr. Wilderman attributes the Applicant’s medical condition to the subject accident:

Taking into account the fact that a considerable amount of time has passed since the date of the collision and MMI (Maximum Medical Improvement) has not been reached yet, it appears that the unresolved injuries consist of chronic pain associated with originally sustained injuries as the result of MVA. This examination will determine the nature of chronic pain as well as any barriers to patient’s recovery. In the course of this assessment recommendation/program for treatment of such injuries will be provided.²⁰

52Dr. Wilderman states that a lengthy period of time has passed and that the Applicant has not achieved maximum medical recovery. Based on these factors, it appears that the Applicant has chronic pain caused by the subject accident.

53The IE was a paper review conducted by Dr. Urovitz. He principally relies on the previous IE that he completed in 2016. This was an in-person examination that took place six months after the date of loss.²¹ He also reviewed Dr. Wilderman’s OCF-18, other medical reports, and other accident-related documents.²²

54At the 2016 in-person IE, the Applicant reported pain in the neck, shoulders, and spine. These impairments were judged to be minor. He also noted that the Applicant returned to work five days after the accident and was managing his pain with Tylenol.²³

55In regard to the proposed 2019 treatment plan for a chronic pain assessment, Dr. Urovitz determined that it is not reasonable or necessary because the 2016 IE found that there were no “objective signs of accident-related orthopedic impairment.”²⁴

56Moreover, the medical notes from the Applicant’s doctors identify degenerative disc disease and poor positioning as contributing factors for the Applicant’s neck pain. It is not known if Dr. Wilderman is aware of these other factors. If he is aware, it is not known how he considered these other factors.

57As such, I give less weight to the comments made by Dr. Wilderman in the treatment plan because no insight is provided into how he determined that the Applicant’s neck pain is caused by the subject accident.

58I give more weight to Dr. Urovitz’s two IE reports, where the findings are fully explained.

59I also give weight to the medical evidence of Dr. Mather and Dr. Arif which shows that neck pain is being caused by factors unrelated to the subject accident.

60When considered in its totality, the evidence does not establish on a balance of probabilities that the Applicant continues to experience neck pain caused by the subject accident. Consequently, I find that the Applicant is not entitled to $2,200.00 for a chronic pain assessment.

Award under s. 10 of O. Reg. 664. and Interest

61The Applicant is not entitled to the treatment plans they were seeking. Consequently, there is no basis to order an award or the payment of interest.

CONCLUSION

62For these reasons, I find that the Applicant is not entitled to $4,115.24 for chiropractic treatment.

63I find that the Applicant is not entitled to $2,200.00 for a chronic pain assessment.

64I find that the Respondent is not liable to pay an award under s. 10 of O. Reg. 664.

65I find that the Applicant is not entitled to interest.

Footnotes

1. 1Applicant’s submissions, July 12, 2021, para 2.
2. 2OCF-18 dated February 9, 2019 at Tab 8, Applicant’s brief.
3. 3Tabs 5, 6, and 7, Applicant’s brief.
4. 4p.6, Insurer’s Examination by Dr. Maser, Tab 11, Respondent’s brief.
5. 5Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. para 46
6. 6Sabadash v. State Farm et al., 2019, ONSC, 1121
7. 7Tabs 5 and 6, Applicant’s brief.
8. 8ibid.
9. 9Tab 6, Applicant’s brief.
10. 10Tab 5, Applicant’s brief.
11. 11ibid.
12. 12ibid.
13. 13ibid, p.8.
14. 14ibid, p.6
15. 15ibid.
16. 16Tab 9, Applicant’s submissions.
17. 17Applicant’s submissions, para 7.
18. 18Explanation of Benefits dated June 4, 2019, Respondent’s Submissions, Tab 10.
19. 19Applicant’s Submissions, p.8, paragraph 21.
20. 20OCF-18, Tab 10, Applicant’s Submissions, p.9.
21. 21Tab 15, Respondent’s Submissions, p.3.
22. 22ibid, p.6.
23. 23Tab 6, Respondent’s Submissions.
24. 24Tab 15, Respondent’s Submissions.