Anthonippillai v. Aviva General Insurance Company, 2022 CanLII 87736

Licence Appeal Tribunal

Citation: Anthonippillai v. Aviva General Insurance Company, 2022 ONLAT 20-004404/AABS Licence Appeal Tribunal File Number: 20-004404/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:

Joseph Anthonippillai Applicant

and

Aviva General Insurance Company Respondent

DECISION

VICE-CHAIR: E. Louise Logan

APPEARANCES:

For the Applicant: Jamie Min, Counsel For the Respondent: Nisaa Khan, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, Joseph Anthonippillai, was involved in an automobile accident on November 1, 2017, and sought benefits from Aviva General Insurance Company, the respondent pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹

2As a result of the accident the applicant sustained injuries for which he visited his Family Physician, Dr. Panchasheila Sivakumar, and sought treatment for his physical and psychological injuries. The applicant was removed from within the Minor Injury Guideline (“MIG”) on September 22, 2020.

3The applicant was denied certain medical and rehabilitation benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). A case conference took place where the number of issues in dispute were narrowed between the parties, and the matter proceeded to a written hearing.

ISSUES

4The following issues are in dispute:

1. Is the applicant entitled to a medical benefit in the amount of $2,950.25 for chiropractic services proposed by Fast Aid, in a treatment plan (“OCF-18”) dated November 27, 2017?
2. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find the applicant the applicant is not entitled to the medical benefit for chiropractic services. As the applicant has not demonstrated entitlement to the benefit, I find there is no basis for an award under s. 10. As there are no benefits owing, the applicant is not entitled to interest.

ANALYSIS

Medical Benefits

6To receive payment for a treatment plan under s. 15 of 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. 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 of achieving them are reasonable.

7Section 38(5) states that an insurer may refuse to accept a treatment plan if the plan describes goods or services to be received in respect of any period in which the insured person is entitled to receive goods and services under the MIG in respect of the impairment. Section 38(6) provides that an insurer’s refusal to accept a treatment plan under s. 38(5) is final and not subject to review.

Minor Injury Guideline

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. An applicant may receive payment for treatment beyond the MIG limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3500 limit, on a balance of probabilities.²

Chiropractic Services

10The OCF-18 in the amount of $2,950.25 for chiropractic services was the first plan submitted by the applicant after the accident. On May 8, 2018, the respondent denied the OCF-18, requested the applicant submit a Pre-Approved Treatment Confirmation Form (“OCF-23”) which is used for goods and services that are provided in accordance with the MIG, and scheduled a s. 44 insurer’s examination (“IE”) with Dr. Esmat Dessouki, Orthopaedic Surgeon. The applicant attended the exam, and Dr. Dessouki’s IE Report dated June 19, 2018 found the OCF-18 was not reasonable or necessary.³

11The applicant submits that under s. 18(1) of the Schedule, the respondent was required to approve treatment up to $3,500 in instances where the claimant sustained a predominantly minor injury, and accordingly, the respondent should have approved the treatment plan in dispute. The applicant submits that the grounds for denying the treatment plan for chiropractic services provided by the respondent were that it was not reasonable and necessary for the injuries sustained in the accident. The applicant submits that despite having found his injuries fell within the MIG, and having paid no benefits, the respondent continued to deny the OCF-18 in dispute. The applicant argues that the respondent paid for similar treatment submitted by way of an OCF-23, and in denying the OCF-18 while funds remained available under the MIG limits, the respondent was acting contrary to s. 18(1) of the Schedule.

12Further, the applicant argues that the respondent should have reconsidered the denial of the OCF-18 once he was removed from the MIG in September 2020. The applicant argues the respondent failed to continually adjust the claim as outlined in the Tribunal’s decision in M.J. v. Dufferin Mutual Insurance Inc.⁴ The applicant argues that once he was removed from the MIG, the respondent should have provided him an updated notice either approving the benefit or providing a medical reason in denying the benefit. The applicant further submits that the respondent should have revisited the OCF-18 when it received the clinical notes and records of Dr. Sivakumar and should have referred these notes to Dr. Dessouki for review, in keeping with its obligation to continually adjust the claim.

13The respondent submits it denied the OCF-18 pursuant to s. 38(5) of the Schedule, and this denial is final and not subject to review pursuant to s. 38(6). The respondent argues that the OCF-18 described treatment to be received during a period when the applicant was entitled to treatment under the MIG. The respondent notes the applicant had not yet submitted an OCF-23 and had incurred $0 in treatment at the time the OCF-18 was submitted in April 2019. The respondent submits that upon receipt of the OCF-18 in dispute, it informed the applicant he was entitled to treatment under the MIG up to $2,200, and upon submission of an OCF-23 he could begin treatment immediately.

14The respondent argues the OCF-18 was requesting treatment outside the MIG, as referenced in Part 4 of the treatment plan where it was noted that the applicant had a pre-existing condition that would remove him from the MIG. The respondent submits it is permitted to assess an OCF-18 to determine if it is reasonable and necessary despite funding being available in the MIG, as per the Tribunal’s decision in Noble v. Cooperators.⁵

15The respondent submits the applicant has not provided evidence that it failed to reconsider its denial after the applicant was removed from the MIG. The respondent states it did reconsider the OCF-18 and that it was not required to provide an updated notice after the applicant was removed from the MIG. The respondent states that the applicant has a continued onus to demonstrate the OCF-18 is reasonable and necessary, which he has not met. The respondent distinguishes the decision in M.J. v. Dufferin Mutual Insurance Inc. and argues it does not have a mandatory duty to schedule s. 44 assessments, citing the decision in E.S. v. Allstate⁶ in support of its position.

16The question to be decided is whether the OCF-18 should have been approved by the respondent either when it was initially submitted in April 2018, or in the alternative, after the applicant was removed from the MIG in September 2020.

17With respect to the initial submission of the OCF-18 in April 2018, I find that the OCF-18 fell within the ambit of s. 38(5). That is, I find the OCF-18 was submitted during a period in which the applicant was entitled to receive goods and services under the MIG. Therefore, pursuant to s. 38(5), the respondent was permitted to refuse to accept the OCF-18. I further find that pursuant to s. 38(6), the respondent’s decision is final and not subject to review.

18With respect to whether the respondent should have approved the OCF-18 after the applicant was removed from the MIG, I agree with applicant that the respondent has a continuing obligation to adjust the file. However, I agree with the respondent that the burden to demonstrate the OCF-18 is reasonable and necessary remains with the applicant. I also agree with the respondent that there is nothing in the Schedule requiring it to seek further s. 44 assessments.

19The November 27, 2017 OCF-18 is not before me as it was not included in the 21 tabs of documents submitted in the applicant’s Document Brief. In the reconsideration decision of J.R. v. Certas Home and Insurance Company,⁷ the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing. The Executive Chair stated:

Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute [my emphasis added].⁸

20I find that this is a case where I do not need the OCF-18 to be before me for a full and satisfactory understanding of the issues in dispute. In coming to this conclusion, I note the following.

21A treatment plan on its own is not compelling evidence in support of treatment and it is insufficient to meet the applicant’s burden. There must be compelling, contemporaneous evidence in support of the treatment plan. The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.⁹ In this case, the applicant has not directed me to any medical evidence in support of the need for chiropractic services.

22While the applicant cites the clinical notes and records of Dr. Sivakumar dated November 22, 2017,¹⁰ upon review of the notes I find that Dr. Sivakumar recommends neck exercise and massage, not chiropractic treatment. The applicant also refers to the Chronic Pain Assessment Report of March 27, 2021 conducted by Dr. Lenus Louis, Chronic Pain Specialist and Dr. Adib Ashraf, Chiropractor¹¹ which recommends soft tissue mobilization with utilization of laser and shockwave treatment, and trigger point injections. However, this Chronic Pain Assessment was done almost three years after the OCF-18 was submitted. As a result, I afford it less weight than the contemporaneous clinical notes and records of the applicant’s family physician which do not recommend chiropractic services, and the June 2018 IE report which concluded the treatment plan for chiropractic services was not reasonable or necessary.

23As a result, I find that the applicant has not met his burden to prove on a balance of probabilities that the OCF-18 for chiropractic services is reasonable and necessary.

Section 10 Award

24The applicant seeks an award under s. 10 of Regulation 664 on the basis the respondent unreasonably withheld benefits from the applicant. Section 10 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled plus interest. As the applicant has not demonstrated entitlement to benefits and no benefits are overdue, I find there is no basis upon which to consider an award in this matter.

Interest

25As there are no benefits payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26For the reasons outlined above, I find that the applicant is not entitled to:

(i) a medical benefit for chiropractic treatment; (ii) an award under s. 10 of Regulation 664; or (iii) interest pursuant to s. 51 of the Schedule.

27This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Insurer’s Examination Report by Dr. Esmet Dessouki, June 19, 2018, Tab 14 of the Applicant’s Document Brief.
4. 42020 CanLII 87976 at para.11.
5. 52021 CanLII 2009 at para 11.
6. 62017 CanLII 148122 at para. 44.
7. 72018 CanLII 13161 (ON LAT Reconsideration Decision).
8. 8Ibid. at para. 21.
9. 9See:17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
10. 10Clinical Notes and Records of Dr. Sivakumar 2017-2019, Tab 6 of the Applicant’s Book of Documents.
11. 11Chronic Pain Assessment Report of Dr. Lenus Louis and Dr. Adib Ashrazm, May 27, 2021, Tab 17 of the Applicant’s Document Brief.