Licence Appeal Tribunal File Number: 21-013593/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:
Yolanda Nwaogwugwu
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Kevin Lundy
APPEARANCES:
For the Applicant: Yolanda Nwaogwugwu, Applicant Maria Makarova, Paralegal
For the Respondent: Aimee Draper, Counsel
HEARD: By Written Submissions
OVERVIEW
1Yolanda Nwaogwugwu (‘the applicant’) was involved in an automobile accident on January 28, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). The applicant was denied benefits by Aviva Insurance Canada (‘the respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
2On January 28, 2017, the applicant was a pedestrian crossing the road when she was struck on her left side by a third party vehicle that was making a right turn. She struck the ground but did not lose consciousness. Emergency personnel including police and paramedics arrived on the scene. She was taken by ambulance to Humber River Hospital.
3At the case conference, the respondent raised a preliminary issue regarding the applicant’s claim for two treatment plans. It submits that pursuant to section 56 of the Schedule, the applicant is statute barred from proceeding with her claim for these benefits because she failed to file her application within the limitation period of two years after the respondent’s refusal to pay them. A third treatment plan filed within the limitation period is not affected. As the preliminary issue is not dispositive of the whole application, the preliminary issues were heard with the substantive issues in dispute.
PRELIMINARY ISSUES
4The preliminary issues to be decided at the hearing are:
a. Is the applicant is barred from proceeding with her claim for the following medical benefit and cost of examination for having failed to commence her application within two years after the respondent’s refusal to pay the amounts claimed:
i. $1,549.68 for physiotherapy services proposed by Dr. Stea in a treatment plan (OCF-18) dated October 29, 2019; and
ii. $2,516.00 for an orthopaedic assessment proposed by Dr. Stea, chiropractor, in a treatment plan dated August 12, 2019?
SUBSTANTIVE ISSUES
5The substantive issues to be decided in the hearing are:
Is the applicant entitled to $1,549.68 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea, chiropractor, in a treatment plan dated October 29, 2019?
Is the applicant entitled to $2,168.62 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea in a treatment plan dated December 9, 2019?
Is the applicant entitled to $2,516.00 for an orthopaedic assessment at Active Mobility Rehab proposed by Dr. Stea, in a treatment plan dated August 12, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is not statute barred from proceeding with her claim for the issues listed at paragraph 4 above on the basis that she failed to commence her application within two years after the respondent’s refusal to pay the amounts claimed.
7The applicant is entitled to:
a. $1,549.68 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea, chiropractor, in a treatment plan (OCF-18) dated October 29, 2019;
b. $2,168.62 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea in a treatment plan dated December 9, 2019;
c. $2,516.00 for an orthopaedic assessment at Active Mobility Rehab proposed by Dr. Stea, in a treatment plan dated August 12, 2019, submitted on August 23, 2019, denied by the respondent on September 4, 2019; and
d. Interest on all overdue payments of benefits.
ANALYSIS
Is the applicant statute barred for pursuing her claim for two treatment plans?
8Section 56 of the Schedule states that an application under subsection 280(2) of the Insurance Act, RSO 1990, c I.8 (the ‘Act’) in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
9The applicant claims entitlement to a treatment plan dated August 12, 2019 in the amount of $2,516.00 for an orthopaedic assessment. This plan was denied on September 4, 2019. The applicant also claims entitlement to a treatment plan dated October 29, 2019 in the amount of $1,549.68 for chiropractic treatment. This plan was denied on November 1, 2019.
10The applicant filed an application with the Tribunal on or about November 5, 2021 in which she claims entitlement to two treatment plans for physiotherapy services, the cost of the orthopaedic assessment and interest. The respondent served and filed an insurer response denying entitlement.
11In order to trigger this two year limitation period, the respondent must give notice that is clear and unequivocal. I agreed with the applicant that the limitation periods for both treatment plans were not triggered by the respondent’s letters dated September 4, 2019 and November 1, 2019 as those letters do not constitute clear and unequivocal notices. The applicant relies on Nadine Robinson v. Aviva Insurance Company of Canada, 2023 CanLII 40082 (ON LAT) (‘Robinson’), in which at paragraph 7 of the decision, Adjudicator Kaur set out the necessary threshold for a valid denial notice:
In order for the provision under section 56 to be triggered, I must determine whether the respondent’s notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
12In paragraph 9 of her decision, the adjudicator states: “Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. This means the notice at the very least should explain what the insured person’s medical conditions are…”
13As a result, the notice must provide a valid medical and any other reason for the denial. Robinson also references the analysis in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (‘T.F.’) in which Executive Chair Lamoureux stated, at paragraph 19:
[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
14In Robinson, the adjudicator also noted that the Divisional Court in Hedley v. Aviva Insurance Company of Canada (‘Hedley’), 2019 ONSC 5318 found that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute no reasons at all. Reasons must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.
15In the present case, on November 1, 2019, the respondent offered only the following boilerplate “medical reason” for its denial of the appellant’s claim for $1,549.68 for physiotherapy services:
As per the Insurers examination report dated Aug 17, 2017 completed by Dr. Naiman it was indicated that “the claimant does not currently have an impairment as a result of the motor vehicle accident.” As no compelling evidence has been submitted to suggest further physical treatment is required, we are requesting an insurers examination.
16The purported medical reason for denial with respect to the other disputed claim for $2,516.00 for an orthopaedic assessment was even more minimalist and generic:
The type(s) of treatment does not appear consistent with the patient's diagnosis.
17The respondent’s boilerplate denial letters were also ambiguous with respect to the date when the two year limitation starts. Similarly, the denial letters do not comply with the requirements in Smith, as they also fail to state the reasons, medical or otherwise, for the denial. The respondent therefore failed to comply with the requirements under subsection 38(8) of the Schedule by failing to provide adequate medical reasons to deny the disputed OCF-18s. Pursuant to the analysis in Robinson, these letters do not represent valid denial notices and therefore did not trigger limitation period in section 56 of the Schedule.
18The respondent did not provide the necessary information with respect to its denials until it issued its Explanation of Benefits (‘EOB’) on December 12, 2019. As I find that the two year limitation period only began to run from this date, the applicant’s claims fell within the two year period. As a result, I find that the applicant is not barred by section 56 of the Schedule from proceeding with her claim with respect to these two treatment plans.
Is the applicant entitled to physiotherapy services?
19I find that the applicant is entitled to both plans as they are reasonable and necessary.
20In the OCF-18 for $1,549.69, Dr. Mike Stea, chiropractor, recommended eight sessions of exercise and eight sessions of chiropractic therapy for a proposed cost of $1,549.60, including documentation.
21Subsection 15(1) of the Schedule requires the insurer to pay medical benefits “for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.”
22Prior to the accident, the applicant was active and had an unremarkable medical history, free from major medical issues other than having fractured her right foot two years prior to this accident.
23Upon arriving at the Humber River Hospital shortly after the accident, the applicant was assessed for foot, groin and hip pain. She presented with tenderness in her right foot and left hip which prompted a prescription for Tylenol. The hospital ordered a pelvic X-ray and an x-ray of her right foot. No fractures were identified and she was discharged on medication.
24The applicant attended an appointment with Dr. Mayer Yacowar, general practitioner, on February 24, 2017. Dr. Yacowar noted that the applicant’s ankle was caved in on the right side, precipitating pain in her right ankle, right foot, left hip and left knee. Upon objective examination, Dr. Yacowar found pain in her knee, linked to an edema located on its surface. He documented pain and tenderness in the right foot, ankle and hip with some tenderness with abduction of the hip.
25On March 27, 2017, the applicant visited Dr. Yacowar for a follow-up appointment and reported continuing knee pain, accompanied by a clicking sound in her knee. She was also experiencing shortness of breath with exercise and palpitations as well as long-lasting, pounding headaches in the occipital region with photophobia and phonophobia. In response to her discomfort, Dr. Yacowar prescribed Propranolol and Naproxen, administered Adacel to her left deltoid region and recommended Ventolin to curb her shortness of breath.
26On June 12, 2017, Dr. Yacowar noted tendinopathy with decreased flexion in the applicant’s right wrist and observed some pain and tenderness in her right foot; as a result, he ordered an x-ray of her right foot to rule out possible fracture. Dr. Yacowar also found that her left knee was swollen and that she had an edema on the lateral aspect. He prescribed Pennsaid, Naprosyn and asked to follow-up. On June 21, 2017, Dr. Yacowar examined the applicant once more in response to her complaints of ongoing left knee pain with decreased range of motion and tenderness over the left lateral aspect and lateral collateral ligament. Dr. Yacowar observed meniscal pain deep in the tissue. He opined that she may need arthroscopic surgery. However, the x-ray and ultrasound of her left knee dated June 14, 2017 were normal.
27On July 19, 2017, Dr. Mike Stea, chiropractor, assessed the applicant at Active Mobility Rehab. He stated in the OCF-3 disability certificate dated the same day that she presented with “chronic right foot/shoulder/lumbar, migraine, anxiety and adjustment disorder” as well as chronic right foot pain. While the applicant refers to these findings as diagnoses, the psychological aspects of these determinations are outside Dr. Stea’s expertise as a chiropractor.
28To that end, the respondent sent the applicant for a psychological assessment on September 12, 2017 administered by psychologist, Dr. Amena Syed. The applicant complained of headaches, bouts of dizziness and nausea from the headaches and persistent right foot and left knee pain. Dr. Syed opined that the applicant’s diminished level of functioning appeared to be causally related to the injury. The applicant reported pain in her wrist and palm, right foot, left knee and left side lower back to Dr. Syed and stated that she was taking “pain killers and some oil for her pain.” She also reported difficulty with walking, thinking straight, focusing, driving on highways and lack of desire to be around people.
29On November 5, 2019, the applicant was assessed by Dr. L. Steiner, psychologist. She reported suffering from migraines, pain throughout the left side of her body and stiffness and experiencing pain on the left side of her back, arm, shoulder and knee. She estimated her pain to be an 8/10 on an average day. The applicant advised she is unable to sit, stand, walk or crouch for longer than ten minutes. Dr. Steiner also noted that the applicant “has attended massage and chiropractic services twice a week from February 2017 to April 2017. She found the services, especially massage, helped with the reduction of pain and stiffness.” She utilized heating pads, cold compression and stretching to assist with pain when at home but noted that these methods provide her with temporary relief. Regarding her functionality, the applicant reported she was planning to pursue a career as a professional athlete, competed in track and field, soccer and volleyball. She advised that she can neither participate in physical activities nor assist her family with household duties without significant pain and limited mobility.
30Dr. Gilbert Yee, orthopaedic surgeon, assessed the applicant on November 22, 2019. Dr. Yee determined that “strictly from an orthopaedic perspective, based on the available documentation and my clinical findings Ms. Nwaogwugwu has residual symptomatology related to myofascial strains/contusive injuries to her left knee.” Dr. Yee’s clinical findings on the date of examination demonstrated tenderness to palpation in the regions of complaint but a functional range of motion. The applicant reported independence with personal care tasks but difficulty with her heavier housekeeping chores and her family assist her. She does not normally drive.
31However, Dr. Yee determined that objectively, the applicant has reached maximum medical recovery. With respect to the OCF-18 dated October 29, 2019, Dr. Yee stated in his report dated December 6, 2019 that, from an orthopaedic perspective, he did not consider the plan reasonable or necessary.
32Although Dr. Yee included the caveat that he would welcome the opportunity to review the MRI of the applicant’s knee if was provided to him and reserved the right to amend his opinion based on additional information, there was no indication that this document or any other new information was provided to him.
33The respondent did not directly address the second treatment plan for $2,168.62, dated December 12, 2019 in its submissions beyond a broad assertion that “the applicant has failed to establish that her appeal has merit” with no details offered to support this blanket dismissal or any evidence that this particular plan is not reasonable or necessary. There is also no indication that Dr. Yee considered this plan for his report. However, the December 12, 2019 plan involves recommendations for exercise and therapy, very similar to the earlier plan dated October 29, 2019 but not the point of duplication.
34Both treatment plans relate to the goal of pain reduction and promote a return to activities of normal living. The applicant relies on 17-001146 v. Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT), in which the adjudicator wrote at paragraph 16:
I must consider the necessity of the Treatment Plan’s cost by looking at all of the circumstances… The applicant knows his body, and he knows what reduces his pain. He has chosen to receive facility based physiotherapy treatment. I appreciate that the effect of physiotherapy can have diminishing returns: the applicant’s pain reduction may not be as marked as in the past. I am satisfied that pain reduction, even on a lesser scale, is a necessary goal.
35The applicant also relies on Pereira v. Certas Direct Insurance Company, 2021 CanLII 93246 (ON LAT) (‘Pereira’), in which the Tribunal observed that “the goals of all treatment plans are pain reduction, increase in strength, increased range of motion with the functional goals of return to activities of normal living.” The applicant reported to Dr. Steiner that the physical treatment that she received was beneficial for her. As even Dr. Yee agreed that the applicant’s symptoms remain ongoing, I find that both treatment plans are reasonable and necessary in light of their objectives of pain reduction and a return to full functionality.
Is the applicant entitled to $2,516.00 for an orthopaedic assessment?
36Between the detailed submissions and evidence submitted by the applicant and the vague dismissal of the merits of the plan as offered by the respondent, I prefer the former and find that the applicant has demonstrated on the balance of probabilities that the disputed assessment is both reasonable and necessary.
37As with the plans for physiotherapy treatment, the goals of the assessment were pain reduction, increase in strength, prevention of chronicity, return to activities of normal living. In the OCF-18, Dr. Sagar Desai, physician, states that the applicant suffers from severe and persistent arm pain and left knee pain and reported difficulty performing activities of daily living that require prolonged sitting, standing, walking, bending, lifting, carrying and reaching. Dr. Desai explained in the additional comments at the end of the OCF-18 that the purpose of the proposed assessment is “to examine the client’s acute, traumatic and overuse injuries and other disorders of the musculoskeletal system.”
38In Pereira, the Tribunal recognized the goal of pain reduction as reasonable and necessary. The applicant also relies on 16-002818 v. Unifund, 2017 CanLII 69449 (ON LAT), in which the adjudicator stated, “it is reasonable and necessary that the applicant be given an opportunity to explore whether she suffers from chronic pain.” Although the applicant saw Dr. Tansey, orthopaedic surgeon under OHIP, there was no consultation report issued and no recommendation given. The applicant takes the position that since her family physician recommended her to see an orthopaedic surgeon, the orthopedic assessment is reasonable and necessary as she should be given an opportunity to explore orthopaedic injuries.
39By contrast, Dr. Yee determined that there was no objective evidence of accident related orthopaedic, musculoskeletal or neurological impairment and that an orthopaedic assessment was therefore not reasonable and necessary. However, as he acknowledged that the applicant nonetheless still experiences pain, I agree with the applicant that an orthopaedic assessment to determine the possible cause of this symptomology represents a valid objective. As with the physiotherapy treatments, the respondent raised no issues with respect to costs or modalities. Consequently, I find on the balance of probabilities that the plan is reasonable and necessary.
Interest
40Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. I find that the applicant is entitled to interest with respect to overdue benefits for all three treatment plans.
ORDER
41The applicant is not statute barred from proceeding with her claim for the issues listed at paragraph 4(a) above on the basis that she failed to commence her application within two years after the respondent’s refusal to pay the amounts claimed.
42The applicant is entitled to:
a. $1,549.68 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea, chiropractor, in a treatment plan (OCF-18) dated October 29, 2019;
b. $2,168.62 for physiotherapy services from Active Mobility Rehab proposed by Dr. Stea in a treatment plan dated December 9, 2019;
c. $2,516.00 for an orthopaedic assessment at Active Mobility Rehab proposed by Dr. Stea, in a treatment plan dated August 12, 2019, submitted on August 23, 2019, denied by the respondent on September 4, 2019; and
d. Interest on all overdue payments of benefits.
Released: November 29, 2023
Kevin Lundy
Adjudicator