Gomda v. Aviva Insurance Company, 2023 CanLII 2704

Citation: Gomda v. Aviva Insurance Company, 2023 ONLAT 20-011615/AABS

Licence Appeal Tribunal File Number: 20-011615/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:

Ruby Gomda

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Tanjoyt Deol, Counsel Ramendeep Minhas, Counsel

For the Respondent: Rozlien Brikha, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Ruby Gomda, the applicant, was involved in an automobile accident on December 11, 2017, and sought benefits from Aviva Insurance Company, the respondent, pursuant to the Statutory Accident Benefits Schedule, - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in the hearing are:

a. Is the applicant entitled to a medical benefit in the amount of $1,886.80 for chiropractic, massage and acupuncture services proposed by Toronto Healthcare Clinic Inc., in an OCF-18 dated May 29, 2018?

b. Is the applicant entitled to a medical benefit in the amount of $1,800.00 for shockwave therapy proposed by Toronto Healthcare Clinic Inc. in an OCF-18 dated September 12, 2018?

c. Is the applicant entitled to a medical benefit in the amount of $1,465.10 for chiropractic, massage and acupuncture services proposed by Toronto Healthcare Clinic Inc. in an OCF-18 dated October 17, 2018?

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

RESULT

3I find the applicant has not met her onus to establish that the OCF-18s in dispute are reasonable and necessary.

4However, as a result of the respondent’s non-compliance with s.38(8) of the Schedule, with respect to all three OCF-18s, the applicant is entitled, pursuant to s.38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18s and ending on the date when compliant notice was provided.

5The applicant is entitled to interest for any amounts of the OCF-18s in dispute that were incurred during the period of non-compliance, in accordance with s.51 of the Schedule.

ANALYSIS

Law

6Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident. The applicant bears the burden of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

Are the disputed treatment plans reasonable and necessary?

7The applicant argues that the proposed treatment plans are reasonable and necessary because they help to alleviate her ongoing pain symptoms. All three OCF-18s were prepared by Domenic Minnella, chiropractor, and have similar stated goals, including: pain reduction, increased range of motion and return to activities of normal living. Two of the treatment plans propose a combination of chiropractic, massage and acupuncture treatment while the treatment plan dated September 12, 2018, proposes shockwave therapy.

8The applicant submits that as a result of the accident, she suffers from ongoing pain in her back, bilateral shoulders, neck, headaches, interrupted sleep, chest pain, chronic widespread pain, and fibromyalgia. The applicant relies on the clinical notes and records (“CNRs”) of her family physician Dr. Rajendra Beharry, which document her ongoing pain reports since the accident.² The applicant further submits that she consistently reported to Dr. Beharry at these visits that physical treatment has been beneficial and that Dr. Beharry has continued to recommend treatment since the accident.

9The respondent argues that the disputed treatment plans are not reasonable and necessary. The respondent relies on the s.44 insurer’s examination (“IE”) reports of Dr. Pravesh Jugnundan, family and occupational health physician, dated October 29, 2018³ and November 15, 2018⁴ which determined that the applicant sustained soft-tissue strain/sprain type injuries of her bilateral shoulders, upper and lower back and wrist and that further facility-based treatment would not be of any more benefit. Further, the respondent submits that the applicant’s family physician has not at any point recommended the treatment modalities proposed in the OCF-18s in dispute.

10Based on the totality of medical evidence, I find that the applicant has not proven on a balance of probabilities that the proposed treatment plans are reasonable and necessary.

11The applicant relies in large part on the CNRs of Dr. Beharry to establish her chronic pain complaints. I acknowledge that the CNRs of her family physician indicate that since the accident the applicant has consistently reported pain in her chest, neck, shoulder, headaches and psychological symptoms, that she has been prescribed pain medication by Dr. Beharry and that she has reported to Dr. Beharry that she was on modified work duties and stopped working as of January 12, 2021. The CNRs of Dr. Beharry also indicate that the applicant has self-reported at many doctor’s visits that she finds “some help” from medication and therapy.

12However, from my review of the CNRs, Dr. Beharry never recommended any of the treatment modalities proposed in the OCF-18s in dispute, despite the applicant’s documented reports of pain, prescriptions for pain medication and her self-reports that she finds therapy helpful. Dr. Beharry primarily recommended pain medication, home exercises and heat to the affected areas. This is particularly true during the period that the OCF-18s in dispute were submitted, from May to October 2018. There are no recommendations for chiropractic, massage therapy, acupuncture, or shockwave therapy in Dr. Beharry’s CNRs.

13Dr. Beharry’s CNRs continued to recommend only medication, home exercises and heat, throughout the rest of 2018 and 2019. On June 12, 2020, Dr. Beharry specifically recommended “exercise therapy” and throughout 2020, Dr. Beharry continued to recommend “therapy”. It appears that Dr. Beharry recommends physiotherapy for the first time in February 2021, almost three years after the OCF-18s in dispute were submitted.

14The therapies proposed in the OCF-18s in dispute are for passive facility-based treatment, namely, chiropractic treatment, massage, acupuncture and shockwave treatment. The applicant does not point me to any CNR reference where such modalities were recommended by Dr. Beharry, particularly during the period that the OCF-18s were submitted, in 2018.

15The s.44 IE assessments of Dr Jugnundan found that further facility-based treatment would not be of significant benefit, but that the applicant should continue with a self-directed home exercise program. This appears to be what the applicant’s family physician was recommending as well, given the contemporaneous CNRs of Dr. Beharry.

16It is unclear from the evidence that the applicant benefits from the treatment proposed in the OCF-18s. The applicant submits that the proposed treatment is needed to alleviate her ongoing pain and address the other stated goals, namely, increased range of motion, increase in strength, restoring pre-injury function and education. She argues that she has had clear progress with these treatments, as reflected in her numerous reports over the years to Dr. Beharry that therapy was of “some help”. However, although the CNR’s of Dr. Beharry do indicate that the applicant reported over the years that that she received “some help” from therapy, there is no detail or description provided as to what type of therapeutic treatment this was.

17The applicant has not provided any information from her treating clinic, by way of progress reports or clinic records. Although the applicant states that she has been attending treatment for years, no details are provided as to the specific treatment modalities she has been receiving (whether it’s the same treatment that is being proposed in the OCF-18s in dispute), what progress she has made and how the stated goals are being met. Without such information I am unable to assess how the stated goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

18As such, based on the totality of evidence, I find that the applicant has not met her onus to establish that the proposed treatment plans are reasonable and necessary.

SUFFICIENCY OF THE DENIALS OF OCF-18s

Were the Respondent’s denials in compliance with the Schedule?

19Although I have found that the treatment plans in dispute are not reasonable and necessary, I must still examine whether the respondent was compliant with the Schedule when it denied funding for the OCF-18s. The applicant submitted that the respondent’s denials of the disputed treatment plans failed to comply with s. 38(8) of the Schedule. As a result, the applicant’s position is that she is entitled to the disputed treatment plans on the basis that the respondent failed to set out medical and other reasons for its denial.

20Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

21The applicant relies on the Tribunal’s reconsideration decision of T.F. v. Peel Mutual Insurance Company⁵ (“T.F. v. Peel”). In this decision, the Tribunal held:

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.⁶

22If an insurer fails to comply with its obligations under s.38(8), s.38(11) states that the insurer must pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives notice that complies with s.38(8) of the Schedule. As such, an insurer is given an opportunity to “cure” a defective notice.

23The respondent submits that its Explanation of Benefits (“EOBs) for each of the treatment plans in dispute complied with s.38(8) of the Schedule.

Sufficiency of Respondent’s Denial for OCF-18 dated May 29, 2018

24With respect to the respondent’s denials for the OCF-18 dated May 29, 2018, I find that the respondent’s EOBs of June 6, 2018 and September 27, 2018 are non-compliant with s.38(8) of the Schedule. However, I find that the third EOB dated October 30, 2018 is compliant with s.38(8).

25I agree with the applicant’s submissions that the EOBs dated June 6, 2018 and September 27, 2018 do not provide any medical reasons for the denial. The June 6, 2018 EOB references the OCF-18 in dispute and states that “[I]t has been found that the Minor Injury Guideline applies to your impairment”. The subsequent EOB dated September 27, 2018 states that the applicant’s injuries “appear to be treatable within the Minor Injury Guideline” and that the respondent is unable to determine is the OCF-18 is reasonable and necessary “for the injuries you sustained”. The respondent goes on to request the applicant’s attendance at a s.44 examination.

26I find that both of these EOBs are non-compliant with s.38(8) of the Schedule. The denials are vague and do not provide the applicant with any medical reasons for the denial. They simply reference the applicant’s “impairment” or “injuries”, without any specific details about the applicant’s condition forming the basis of the respondent’s decision. I find that this correspondence is boilerplate and is not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

27On October 30, 2018, the respondent sent the applicant another EOB attaching the IE report of Dr. Jugnundan dated October 29, 2018. The EOB notes that Dr. Jugnundan found that the applicant had not sustained any impairments and that ongoing physical therapy would not be of any significant benefit. The EOB concludes that the proposed chiropractic, massage and acupuncture treatment is not reasonable and necessary and that the respondent would not fund the treatment plan.

28I find that the October 30, 2018 EOB is a clear and unequivocal denial of the treatment plan. This subsequent denial provides more information to the applicant and refers to and includes the report of Dr. Jugnundan. As such, I find that the respondent’s October 30, 2018 correspondence complies with s. 38(8) of the Schedule and cured the deficiency of the previous two EOBs.

29Thus, as per s.38(11)2, the respondent is obligated to pay for any incurred treatment in relation to the treatment plan dated May 29, 2018, starting on the 11th business day after the respondent received the OCF-18 and ending on October 30, 2018, the day the respondent gave proper notice in accordance with s.38(8).

Sufficiency of Respondent’s Denial for OCF-18 dated September 12, 2018

30With respect to the respondent’s denials for the OCF-18 dated September 12, 2018, I find that the respondent’s EOBs of September 19, 2018 and September 27, 2018 are non-compliant with s.38(8) of the Schedule. However, I find that the third EOB dated October 30, 2018 is compliant with s.38(8).

31The EOB dated September 19, 2018, uses virtually identical language to the EOB dated June 6, 2018 referenced in the section above, which I have already found to be deficient for not providing proper medical reasons. The same EOBs dated September 27, 2018 and October 30, 2018 were used for both the OCF-18 dated May 29, 2018 and the OCF-18 dated September 12, 2018.

32Therefore, the same reasoning applies to the September 12, 2018 OCF-18. Namely that the first two denials sent by the respondent were deficient pursuant to s.38(8) of the Schedule, but the third EOB dated October 30, 2018 cured the deficiency of the previous two EOBs.

33Thus, as per s.38(11)2, the respondent is obligated to pay for any incurred treatment in relation to the OCF-18 dated September 12, 2018 starting on the 11th business day after the respondent received the OCF-18 and ending on October 30, 2018, the day the respondent gave proper notice in accordance with s.38(8).

Sufficiency of Respondent’s Denial for OCF-18 dated October 17, 2018

34I find that the respondent’s initial denial of the OCF-18 dated October 17, 2018 does not comply with s.38(8) of the Schedule, but that the subsequent denial of November 30, 2018 (improperly dated October 30, 2018) cures this deficiency.

35The first EOB dated November 9, 2018 states that the applicant’s injuries “appear to be treatable within the Minor Injury Guideline” and that the respondent is unable to determine is the OCF-18 is reasonable and necessary “for the injuries you sustained”. The respondent goes on to request the applicant’s attendance at a s.44 examination.

36I find that this EOB is vague and does not provide the applicant with any medical reasons for the denial. It simply references the applicant’s “injuries” without any specific details about the applicant’s condition. The language used in the correspondence is boilerplate and would not allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

37However, I find that the subsequent EOB is clear and unequivocal in its denial. The applicant submits that the correspondence was improper in that it was dated October 30, 2018 but included Dr. Jugnundan’s November 15, 2018 report. However, I accept the respondent’s submissions that the EOB was improperly dated October 30, 2018, rather than November 30, 2018. As such I find that the November 30, 2018 denial cured the deficiency of the previous denial dated November 9, 2018.

38Therefore, as per s.38(11)2, the respondent is obliged to pay for any incurred treatment in relation to the OCF-18 dated October 17, 2018 starting on the 11th business day after the respondent received the OCF-18 and ending on November 30, 2018, the day the respondent gave proper notice in accordance with s.38(8).

CONCLUSION AND ORDER

39For the reasons outlined above, I find that:

(i) The applicant has not met her onus to establish that the OCF-18s in dispute are reasonable and necessary.

(ii) With respect to the OCF-18s dated May 29, 2018 and September 12, 2018, the respondent was initially non-compliant with s.38(8) of the Schedule, and as such the applicant is entitled, pursuant to s.38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18s and ending on October 30, 2018, when compliant notice was given.

(iii) With respect to the OCF-18 dated October 17, 2018, the respondent was initially non-compliant with s.38(8) of the Schedule, and as such the applicant is entitled, pursuant to s.38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18 and ending on November 30, 2018, when compliant notice was given.

(iv) The applicant is entitled to interest on any overdue payment of benefits, in accordance with s.51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Applicant’s Submissions, Tab E – Clinical Notes and Records of Dr. Beharry
3. 3Respondent’s Brief, Tab 17 – IE Assessment Report of Dr. Jugnundan dated October 29, 2018
4. 4Respondent’s Brief, Tab 19 – IE Assessment Report of Dr. Jugnundan dated November 9, 2018
5. 52018 CanLII 39373 (ON LAT Reconsideration Decision).
6. 6Ibid. at para. 19.