Citation: Ozor v. Aviva Insurance Company, 2023 ONLAT 20-011733/AABS

Licence Appeal Tribunal File Number: 20-011733/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:

Chukwudumebi Ozor

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jacqueline Ozor, Counsel

For the Respondent:

Kimberley Tye, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, C.O., was involved in an automobile accident on August 26, 2018, and sought benefits, including a Non-Earner Benefit (“NEB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The NEB issue was added at the case conference, which gave rise to a preliminary issue. Aviva raised the preliminary issue on the basis that C.O. did not qualify for a NEB.

2A preliminary issue decision has already been released to the parties. This decision addresses the substantive issues in dispute.

ISSUES IN DISPUTE

3The substantive issues in dispute are as follows:

a. Is the applicant entitled to $2,754.37 for chiropractic services from Doctor Med Rehab Centre proposed by Dr. Panahloo, chiropractor, in a treatment plan (OCF-18) dated February 4, 2019?

b. Is the applicant entitled to $2,612.47 for chiropractic services from Doctor Med Rehab Centre proposed by Dr. Panahloo, in an OCF-18 dated June 19, 2019?

c. Is the applicant entitled to $2,013.44 for a social work assessment from Doctor Med Rehab Centre proposed by Dr. Panahloo in an OCF-18 dated November 25, 2019, denied on December 30, 2019?

d. Is the applicant entitled to $2,865.53 for chiropractic services from Promed Rehab Clinic proposed by Harry Grigoropoulos, chiropractor, in an OCF-18 dated May 29, 2020, denied on June 16, 2020?

e. Is the applicant entitled to $3.069.24 for chiropractic services from Islington Chiro proposed by Dr. Agyemang in an OCF-18 dated October 21, 2020?

f. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

g. Is the applicant entitled to interest on any overdue payment of benefits?

FINDING

4C.O. has demonstrated that the disputed OCF-18s for chiropractic services are reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

5C.O. is not entitled to payment of the OCF-18 for a social work assessment as it is not reasonable and necessary. No interest is payable.

6C.O. is entitled to an award.

ANALYSIS

OCF-18 dated February 4, 2019 in the amount of $2,754.37 for chiropractic services

OCF-18 dated June 19, 2019 in the amount of $2,612.47 for chiropractic services

OCF-18 dated May 29, 2020 in the amount of $2,865.53 for chiropractic services

OCF-18 dated October 21, 2020 in the amount of $3.069.24 for chiropractic services

7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, C.O. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. To succeed, C.O. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

8For the reasons to follow, I find that C.O. has demonstrated a balance of probabilities that the disputed OCF-18s are reasonable and necessary.

9In support of her claim, C.O. relies on the following evidence:

a. Clinical notes and records (“CNRs”) of family physician, Dr. Mazzuca;

b. Diagnostic imaging, including x-rays and an ultrasound;

c. A November 16, 2020 chronic pain report from Dr. Grigoropoulos; and

d. A May 27, 2021 orthopaedic report from Dr. Kwok.

10In response, Aviva relies on an August 22, 2019 report, a November 30, 2020 addendum report and a further July 7, 2021 addendum report from Dr. Fung, general physician. It also relies on an August 9, 2021 report from Dr. Loritz, general physician. Both Drs. Fung and Loritz diagnosed C.O. with myofascial pain symptoms as a result of soft tissue injuries. They opined that it was unlikely that further facility-based treatment would be of any significant long-term therapeutic benefit. They concluded that she has reached maximum medical improvement with respect to facility-based treatment for her injuries.

11I find C.O.’s evidence persuasive. First, between October 12, 2018 and January 25, 2020, she reported post-accident neck and back pain to Dr. Mazzuca on a regular basis. The records show that she did not suffer from any pre-existing condition, and these documented pain complaints were noted to be as a direct result of the accident. At nearly every visit, Dr. Mazzuca recommended physiotherapy and massage treatment to deal with the neck and back pain complaints. Second, at a January 25, 2020 visit, Dr. Mazzuca noted that the pain was chronic and recurrent. Dr. Mazzuca referred C.O. to a pain care clinic in order to have a specialist determine the extent and severity of her pain complaints. Third, Dr. Grigoropoulos’ objective testing revealed that C.O. suffers from chronic pain syndrome secondary to unresolved residual pain as a direct result of the accident. Lastly, Dr. Kwok completed objective testing that supports that C.O.’s neck and back pain requires further treatment as she has reported a 40% improvement in her pain.

12In considering C.O.’s assessor’s reports against those of Drs. Fung and Loritz, I place more weight on the reports of Drs. Grigoropoulos and Kwok. First, Drs. Fung and Loritz are general physicians, while Drs. Grigoropoulos and Kwok are specialists, specifically, a pain specialist and orthopaedic surgeon, respectively. As specialists, I find that they have a enhanced perspective by way of the objective testing that was conducted, and their interpretation of the results based on their specialized education, experience and training. Second, each conducted objective testing that I find persuasive to the extent that the details of the testing were provided in their reports. Lastly, their conclusions, that C.O. is still suffering ongoing neck and back pain, corroborates Dr. Mazzuca’s CNRs.

13In addition, pain relief/reduction, which the OCF-18s indicate as a goal, is reasonable. C.O. has no history of pre-existing injuries, and according to the medical records, was physically healthy pre-accident. Post-accident, there is a two-year ongoing medical history of neck and back pain complaints, which were noted to be most severely impacted as a direct result of the accident. Having reported a 40% improvement is not indicative of a return to her pre-accident 100% physical health, therefore, I find treatment that has a goal of pain relief/reduction and a return to pre-accident health, is reasonable and necessary.

OCF-18 dated November 25, 2019 $2,013.44 for a social work assessment

14C.O. has not demonstrated that the OCF-18 is reasonable and necessary.

15C.O. did not direct me to any submissions or evidence in support of the claim for funding for the November 25, 2019 OCF-18.

16In contrast, Aviva relies on the January 13, 2020 psychological report of Dr. El-Hage, who determined that the OCF-18 was not reasonable and necessary.

17Having failed to address the issue, C.O. has not met her burden to demonstrate that the OCF-18 is reasonable and necessary. Accordingly, it is not necessary for me to conduct an analysis to determine same.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that C.O. is entitled to the OCF-18s for chiropractic services, interest is payable on the outstanding benefits.

Award

19The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

20C.O. submits that Aviva failed to approve the OCF-18s in a timely manner to enable her to be able to obtain further post-accident treatment. Her position is had the OCF-18s been approved sooner, that would have helped with a timelier recovery. In this regard, she points to the following timeline:

a. Minor injury treatment – September 2018 to January 2019;

b. An August 28, 2020 OCF-18 was approved on March 24, 2021;

c. The last approved OCF-18 prior to August 2020 was September 24, 2018;

d. A November 11, 2020 OCF-18 for a chronic pain assessment was approved in March 2021; and

e. An OCF-18 for psychological treatment was partially approved on October 24, 2019, with the balance approved on March 22, 2021. This is after the s. 44 assessor diagnosed C.O. with psychological impairments in a September 3, 2019 report. A s. 44 multidisciplinary report dated August 9, 2021 also diagnosed C.O. with psychological impairments as a result of the accident.

21C.O. submits that the above examples of Aviva’s handling of her file support that it unreasonably withheld or delayed payments of benefits.

22I agree with C.O.

23Aviva argues that it was not clearly established that C.O. experienced new difficulties and impairments that she would not have otherwise experienced, contrary to her argument. While I agree that C.O. has not established her condition worsened as a result of delayed payment of benefits, the evidence clearly shows that Aviva delayed payment of benefits; the threshold for granting an award. Further, in the August 9, 2021 s. 44 report, psychologist Dr. Lubbers opined that C.O.’s “current diagnosed condition suggests outstanding accident-related psychological treatment needs.” This opinion came after Dr. Lubbers diagnosed C.O. with adjustment disorder with mixed anxiety and depressed mood.

24On the whole, I find that Aviva’s approvals were not made in a timely manner, despite having received various records and reports from Dr. Mazzuca, Dr. Kwok, Dr. Grigoropoulos, and other treating practitioners. I find the corroborative evidence, which Aviva does not argue was not provided in a timely manner, failed to be adjusted in a manner that did not result in an unreasonable withholding and delay of payment of benefits.

25Accordingly, I find an appropriate amount of an award is 5% of the total amount of payable outstanding benefits. Interest is payable in accordance with the Schedule. I leave it to the parties to determine the exact numerical calculation of 5% applied to the total payable of the outstanding benefits, and interest thereof.

ORDER

26C.O. has demonstrated that the OCF-18s for chiropractic treatment is reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

27C.O. is not entitled to funding for the OCF-18 for a social work assessment as she has not demonstrated that it was reasonable and necessary. No interest is payable.

28C.O. is entitled to an award of 5% of the total payable of the OCF-18s for chiropractic treatment. Interest is payable in accordance with the Schedule.