Alexandre-Theodore v. Aviva General Insurance Company, 2022 CanLII 73098

Citation: Alexandre-Theodore v. Aviva General Insurance Company, 2022 ONLAT 20-013212/AABS

Licence Appeal Tribunal File Number: 20-013212/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:

Paulette Alexandre-Theodore

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Loreto Scarola, Paralegal

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, Paulette Alexandre-Theodore, was involved in an automobile accident on November 2, 2019, and sought various benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)("Schedule")¹ from Aviva General Insurance Company, the respondent.

2The applicant applied for medical benefits by submitting five different treatment plans for chiropractic services. The respondent denied payment of the benefits on the basis that further treatment was not reasonable and necessary.

3The respondent also denied entitlement to a psychological assessment, however later approved funding for one. The applicant is seeking an award pursuant to Regulation 664² with respect to what she argues is the delayed payment of this assessment report.

4The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). A case conference was held on April 28, 2021 and the matter proceeded to a written hearing.

ISSUES

5The following issues are to be decided:

(i) Is the applicant entitled to a medical benefit in the amount of $3,696.50 for chiropractic services recommended in a treatment plan ("OCF-18") dated November 11, 2019 provided by MacKenzie Medical Rehabilitation Centre?

(ii) Is the applicant entitled to a medical benefit in the amount of $200 ($1,300 less $1,100 approved) for chiropractic services recommended in an OCF-18 dated January 31, 2020 provided by MacKenzie Medical Rehabilitation Centre?

(iii) Is the applicant entitled to a medical benefit in the amount of $1,977.05 for chiropractic services recommended in an OCF-18 dated July 6, 2020 provided by MacKenzie Medical Rehabilitation Centre?

(iv) Is the applicant entitled to a medical benefit in the amount of $1,384.70 for chiropractic services recommended in an OCF-18 dated August 18, 2020 provided by MacKenzie Medical Rehabilitation Centre?

(v) Is the applicant entitled to a medical benefit in the amount of $2,635.40 for chiropractic services recommended in an OCF-18 dated November 28, 2020 provided by MacKenzie Medical Rehabilitation Centre?

(vi) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(vii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6For the reasons outlined below, I find that the applicant has not met her onus to prove the treatment plans in dispute are reasonable and necessary pursuant to the Schedule. She is not entitled to receive the medical benefits claimed.

7The applicant is not entitled to any interest as there are no overdue payments.

8The respondent is not liable to pay an award pursuant to Regulation 664.

ANALYSIS

9Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

Are the chiropractic OCF-18s reasonable and necessary?

10The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating the benefits are reasonable and necessary on a balance of probabilities.³ To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs to achieve them are reasonable.

11The five OCF-18s submitted by MacKenzie Medical Rehabilitation Centre recommended various numbers of sessions of physical, chiropractic and active rehabilitation, as well as massage.

12All five OCF-18s list pain reduction, increase in strength and increase in range of motion in their stated goals. In addition, the January 31 treatment plan listed "improve sleep" as an additional goal.

13In the OCF-18s, the applicant's injuries are noted as sprain and strain of the cervical, thoracic and lumbar spine, strain and sprain of the sacroiliac joint, ribs and sternum, and hip and sleep disorders.

14In the applicant's submissions about the August 18, 2020 treatment plan, it is noted by the applicant that the frequency of treatment being recommended decreased over time (i.e. from 9 sessions to 6), further establishing that treatment was beneficial. However, this submission falls short, as in the next treatment plan dated November 28, 2020 the frequency of treatment being recommended increased to 12 sessions. Despite the higher number of recommended sessions, the applicant submits that it was obvious that by November 28, 2020 her symptoms had decreased to the point that the applicant was having more good days than bad, as outlined in the treatment plan notes.

15The applicant's submissions do not address how additional chiropractic and massage treatment would meet the goals in the treatment plans and the submissions do not address the cost. It is unclear how further treatment would address symptoms that have been consistently reported as sprain and strain injuries.

16The applicant attended at the emergency department on November 3, 2019 and the records from that visit indicate that she complained of pain in the back and right leg. X-rays of the applicant's back were taken on November 3, 2019. No abnormalities were found.

17The family doctor records of Dr. Yeou Lin indicate that the applicant complained of pain in the lower back, lower ribs and sternum on November 4, 2019. He made an assessment of strain and physiotherapy was recommended. Dr. Lin provided the applicant with a note to take some time off work. On December 9, 2019, Dr. Lin's records indicate the applicant complained of pain in her ribs and upper as well as lower back pain, shoulder stiffness and headache twice per week and ringing in the ears. Dr. Lin noted she was attending physio and chiro and was still off work. Dr. Lin noted the applicant was feeling depressed, had difficulty sleeping and was having flashbacks of the accident. She was referred to a psychologist for anxiety and panic attacks.

18On January 10, 2020, the applicant saw Dr. Lin and advised she had pain in her back, sternum, and ribs. A humidifier and blood tests were recommended, and it was noted she would be returning to work for financial reasons. The applicant saw Dr. Lin again on February 11, 2020 and complained of right shoulder pain, two days of headache and nausea that morning. That entry also indicates there were no light duties available and the applicant started working regular duties on January 2, 2020, about a week prior to the previous visit.

19On the next doctor's visit on June 10, 2020, the applicant complained of lower back pain. Dr. Lin referred her to physiotherapy for thoracolumbar strain. During the next visit on July 22, 2020, the applicant complained of increased left shoulder, upper back and lower back pain, as well as headaches. An x-ray and ultrasound of the left shoulder was done on July 27, 2020. The findings were minimal osteoarthritis, rotator cuff tendinosis and a small partial thickness subscapularis tendon tear at its insertion. An x-ray was conducted on December 17, 2019 on the applicant's ribs and chest. No fractures or abnormalities were detected.

20The respondent's position is that the applicant has not adduced any evidence to demonstrate how the treatment listed in the OCF-18s will address the injuries. Further, the respondent submits that the applicant has failed to discharge her onus to prove that the treatment plans are reasonable and necessary.

21The respondent advised the applicant on September 15, 2020, that the MIG limits had been reached and that a section 44 Insurer Examination would be scheduled. Dr. Seung-Jun Lee, general practitioner, reviewed the three disputed treatment plans in the amounts of $1,300, $1,977.05 and $1,384.70.

22Dr. Lee conducted an Insurer's Examination. His report dated November 10, 2020, indicated that the applicant started rehab therapy a few days after the accident and attended until September 2020 for one to two times per week. She received massage, manipulation, treatment with TENS (transcutaneous electrical nerve stimulation) machine and participated in an active stretching exercise therapy. The applicant reported that she had achieved a 75-80% improvement since the accident and that she had reached a plateau. She reported that lower back pain is intermittent, rated 6 out of 10 in intensity and does not radiate.

23The applicant reported to Dr. Lee that she is independent with self-care activities, and she is able to do household chores. She was working 40 hours as a Personal Support Worker and dietary aid prior to the accident and she had returned to work in March of 2020 with modified hours of 30-35 hours weekly.

24Upon assessment of the applicant's cervical spine, upper extremities, thoracic and lumbar spine, she expressed no pain. Neurological examination of the upper and lower extremities revealed normal motor strength and sensory findings.

25Upon a review of the file documentation and a physical assessment of the applicant, Dr. Lee concluded that the applicant sustained soft tissue injuries, including a lumbar myofascial sprain/strain, which he classified as predominantly "minor injuries" as defined in the Schedule. There were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment.

26Dr. Lee provided his opinion that the three OCF-18s in dispute were considered neither reasonable nor necessary as he did not identify accident-related impairments that would necessitate any of the outlined chiropractor or massage therapy treatments, or any further physical assessments.

27The respondent submits that contemporaneous records of the applicant's family doctor do not support the need for treatment proposed in the treatment plans in dispute. I agree. Although I note that Dr. Lin's records indicate a small partial thickness subscapularis tendon tear, there is no recommendation for chiropractor treatment or massage therapy for this injury.

28I find Dr. Lee's report to be persuasive as it is based on the applicant's physical condition, for which the recommended treatments listed in the OCF-18s do not appear to be justified. Further, as indicated, there is no independent support from Dr. Lin for chiropractic or massage therapy.

29I agree with the reasoning of Adjudicator Grant in J.D. v. Certas Home and Auto Insurance Company, 2019 CanLII 40254 (ON LAT), a decision that was cited by the respondent. In that case, the treatment plan was found to be neither reasonable nor necessary as the applicant had minor injuries and relied only on the treatment plan, with no recommendation from his own treating physician for massage or chiropractic therapy.

30In the applicant's case, the clinical notes and records do not demonstrate that her pain impairs her functionality and she is able to work and continue with her activities of daily living. According to her family doctor records, the applicant advised she returned to work on January 2, 2020. She advised Dr. Lin she returned to work in March of 2020.

31In light of all of the above, I find that the applicant has failed to meet her onus to prove that the treatment plans in dispute were reasonable and necessary.

Did the respondent unreasonably withhold or delay payments to the applicant?

32Section 10 Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing if it finds that an insurer has unreasonably withheld or delayed payments.

33In finding that the applicant is not entitled to the benefits claimed in the treatment plans, there is no basis for an award with respect to those benefits.

34The applicant is also seeking an award pursuant to Regulation 664 on the basis that the respondent delayed payment of the psychological assessment in the amount of $2,200.

35The applicant submits that the respondent did not review the medical evidence in good faith before finally approving the psychological assessment. The applicant submits that the respondent should have considered the psychological assessment of Dr. Shaul dated January 13, 2020.

36The respondent submits that only one entry in the records of the applicant's family doctor makes reference to psychological issues. Further, the respondent points out that the applicant did not submit an OCF-18 for a psychological assessment until April of 2021, after which time the respondent scheduled an Insurer's Examination, which found the assessment to be reasonable and necessary. The respondent promptly approved the assessment and there was no delay.

37A review of email correspondence filed by the respondent reveals that after the OCF-18 with respect to the psychological assessment was received by the respondent on November 17, 2020, the respondent sent a letter dated November 25, 2020 to the applicant with a scheduled medical examination for January 21, 2021. In response, counsel for the applicant wrote to the respondent on December 21, 2020 to advise that a request had been made to withdraw the OCF-18. On January 4, 2021, the applicant's counsel wrote again to confirm that the OCF-18 had been withdrawn "and a new one to possibly be submitted based on a current evaluation/pre-screen."⁴

38The new OCF-18 was received by the respondent on April 6, 2021. An Insurer's Examination was scheduled for June 9, 2021. After the examination, in a letter dated June 21, 2021, the respondent advised the applicant's counsel that the OCF-18 was approved.

39Given that the original OCF-18 was withdrawn by the applicant and a subsequent one was submitted, I find that the respondent's response to the new assessment was reasonable. I find in the circumstances that the respondent did not "unreasonably" withhold or delay payments. As such, no award pursuant to Regulation 664 is payable.

CONCLUSION

40Taking all of the above circumstances into consideration, I find that the applicant has not met her onus to prove, on a balance of probabilities, the reasonableness or necessity of the treatment plans in dispute.

41No treatment plans are payable and owing, therefore the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

42The respondent is not liable to pay an award pursuant to Regulation 664 as I find that it did not unreasonably withhold or delay payments to the applicant.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. ("Schedule")
2. 2R.R.O. 1990.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Emphasis in original.