Citation: Barrett v. Aviva Gen. Ins., 2022 ONLAT 19-014199/AABS
Licence Appeal Tribunal File Number: 19-014199/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:
Brent Barrett
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Aviva General Insurance Amanda Faulkner, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant was injured in an automobile accident on February 1, 2014, 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 $2,212 for chiropractic treatment recommended by Downsview Health Care in a treatment plan (OCF-18) denied on January 9, 2018?
b. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to payment for incurred amounts of the treatment plan in dispute, plus applicable interest. However, 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
5The applicant submits that he suffered a fracture of the second metacarpal of his right hand as a result of the accident as well as serious and permanent injuries to his entire body, identified as concussion, headaches, back pain, neck pain, shoulder pain, sleep difficulties, depression, anxiety and driving phobia. He relies on Disability Certificates (OCF-3) dated February 25, 2017 and August 10, 2017 from his chiropractor, Dr. Pivtoran, to confirm these impairments. In addition, the applicant points to a December 2015 MRI of his right shoulder, the clinical notes of his family physician, Dr. Kwong, and a July 2017 report from Dr. Chivers. On this evidence, the applicant submits the OCF-18 is reasonable and necessary to treat his ongoing pain and provide functional restoration, as recommended by his treating physicians.
6In response, Aviva first submits that the applicant filed clinical notes from 2017 to 2020 beyond the timelines provided by the Case Conference Order and it did not have an opportunity to secure addendum reports or review same since the time the OCF-18 in dispute was submitted and denied.
7With regard to the treatment plan in dispute, Aviva submits that the applicant claimed a similar plan from Dr. Pivtoran that prompted a s. 44 report by Dr. Oshidari, who found the previous treatment proposed not reasonable and necessary because the applicant had received more than two years of treatment with no major change in symptoms and the fracture and shoulder issues were resolved. As the applicant provided no new medical information, it relied on Dr. Oshidari’s previous report to deny the treatment in dispute here. To this end, Aviva submits that the applicant did not provide compelling evidence to support that the treatment proposed in 2017 was reasonable and necessary where he continued to work as a welder and had received over two years of treatment for his impairments and has not provided evidence of any additional incurred amounts of treatment since.
8First, I agree with Aviva that where the applicant failed to provide updated medical information in between the submission of OCF-18s or at anytime before April 2021, it was not required to schedule additional s. 44 examinations in order to re-evaluate identical impairments. Indeed, the OCF forms in evidence seem to restate the same injuries that occurred in 2014 (including the since healed fracture, a concussion where there have been no contemporaneous complaints or diagnoses of same, as well as back issues and emotional symptoms that are not corroborated in the clinical notes as related to the accident) without updating for the applicant’s progress or removing impairments.
9However, while Aviva urged that the updated clinical notes not be considered by the Tribunal as they were filed late, I note that Aviva has maintained its position in submissions that the OCF-18 is not reasonable and necessary, as the clinical notes were received one month prior to its submissions. In this vein, it was open to Aviva to reconsider its position on the OCF-18 at anytime since April 2021 when the full records were within its control. I find the updated notes of Dr. Kwon, which are contemporaneous with the submission of the OCF-18 in dispute, indicate ongoing issues with shoulder range of motion and right hand pain and swelling in March, July and August 2017 prior to the submission of the OCF-18, a hand pain complaint in November 2018, shoulder pain and a recommendation for physiotherapy in July 2019 and a hand pain complaint again in September 2020. After a consultation on the applicant’s x-ray, Dr. Chivers, plastic surgeon, also recommended physiotherapy in July 2017 as he was of the opinion that surgery would not be beneficial. While I understand Aviva’s frustration, this type of ongoing, contemporaneous reporting is valuable evidence that the Tribunal cannot ignore.
10I agree with the applicant that pain relief has been accepted as a legitimate goal for treatment and that additional facility-based treatment like that proposed in the OCF-18 was recommended by both Dr. Kwong and Dr. Chivers and again by Dr. Pivtoran, even after a denial based on Dr. Oshidari’s report. It is clear on the evidence that the applicant continued to experience pain as a result of the fracture and shoulder impairment that he suffered in 2014, as the clinical notes reveal ongoing complaints into 2020, or over six years post-accident. On this evidence, and on a balance of probabilities, it is difficult to find (even if it was not provided to Aviva at the time) that the treatment plan in the relatively modest amount of $2,212 was not a reasonable expense to potentially alleviate years of ongoing pain, even if the applicant was able to continue working as a welder during this period. While I also accept that the applicant’s pain may be exacerbated by his work as a welder, I do not find that this renders the goals of the OCF-18 (decreasing pain, increasing range of motion, increasing function, etc.) unreasonable or unachievable.
11I note that the applicant received treatment to date from the same provider, a fact echoed in Dr. Oshidari’s report, and it does not appear that the treatment proposed in the OCF-18 was incurred, nor has the applicant undergone any treatment since, as Aviva submits that the balance at the clinic is zero. In this vein, I appreciate Dr. Oshidari’s opinion that further treatment of a similar nature from the same provider would not be reasonable. However, where the applicant continued to have pain over six years post-accident, in my view, it undermines Dr. Oshidari’s belief that his accident-related impairments had resolved. In turn, I assign Dr. Oshidari’s report less weight than the contemporaneous recommendations of Dr. Kwong and Dr. Chivers and find that the OCF-18 in dispute is reasonable and necessary up to the amount proposed and on receipt of evidence of incurred treatment. Interest applies on any overdue amounts incurred under s. 51.
12Finally, the applicant sought an award under s. 10 of O. Reg. 664, arguing that Aviva unreasonably withheld or delayed payments. For the reasons above, chiefly that the applicant failed to provide Aviva with the clinical notes and recommendations to support the scheduling of another s. 44 examination and did not provide same until April 2021, it cannot be said that Aviva unreasonably withheld or delayed the payment of a benefit justifying an award.
CONCLUSION
13The applicant is entitled to treatment identified in the OCF-18 upon proof of it being incurred, as it is reasonable and necessary. Interest applies on any overdue payments incurred. An award is not appropriate.
Released: February 7, 2022
Jesse A. Boyce Vice-Chair