Licence Appeal Tribunal File Number: 20-007007/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:
Rebecca Marrazzo
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Michael Yermus, Counsel Sherzod Karimov, Counsel
For the Respondent: Andy Smith, Counsel
HEARD: In Writing
OVERVIEW
1Rebecca Marrazzo, the applicant, was involved in an automobile accident on September 22, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a treatment plan (“OCF-18”) proposed by HealthMax Physiotherapy Clinics for chiropractic services in the amount of $3,570.10 dated November 3, 2020?
ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to the $3,570.10 for chiropractic services proposed by HealthMax Physiotherapy Clinics in the OCF-18 dated November 3, 2020.
ii. The applicant is not entitled to an award.
iii. The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Chiropractic Services
4I am persuaded that the applicant is entitled to the OCF-18 for chiropractic services in the amount of $3,570.10 as it is reasonable and necessary pursuant to the Schedule.
5To 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.
6The applicant submits that the OCF-18 is both reasonable and necessary. The applicant relies on the extensive clinical notes and records (CNRs) of family physicians, Dr. Ivan Petrov and Dr. Warren Albert, Dr. Christian Veillette, orthopaedic surgeon and medical records from Toronto Western Hospital, Mackenzie Medical Rehabilitation Centre Inc, HealthMax Physiotherapy and Lakeridge Health.
7I accept the evidence in the CNRs that the applicant had a pre-existing medical condition, including bilateral shoulder pain with symptoms of frozen shoulder, pain in the lower back and sciatica.
8Following the accident, the CNRs of Dr. Petrov reveal an x-ray was ordered revealing mild degenerative changes in her cervical spine and mild to moderate changes in bilateral STT (scaphotrapeziotraezoidal) and first CMC (carpometacarpal) joints. Dr. Petrov referred the applicant to Mackenzie Medical Rehabilitation Centre for physiotherapy.
9I am also persuaded by the November 5, 2020 CNRs of Dr. Albert, who diagnosed the applicant with shoulder bursitis and prescribed Depo-Medrol (methylprednisolone) to cope with left shoulder pain. As a result of her ongoing left shoulder pain the applicant was referred to Dr. Veillette.
10On April 11, 2021, the applicant underwent an MRI at Toronto Western Hospital which revealed high grade partial thickness articular sided tearing. Dr. Veillette diagnosed the applicant with left shoulder full-thickness supraspinatus and infraspinatus rotator cuff tear and recommended an arthroscopic rotator cuff surgery. The applicant underwent surgery on her left shoulder which included arthroscopic rotator cuff repair, subacromial bursectomy and glenohumeral joint debridement, and partial synovectomy.
11It is the applicant’s position that the chiropractic services helped her reduce the debilitating effects arising from the accident-related impairments and aided in her reintegration to the labour market and her return to activities of daily living.
12The respondent relies on the August 13, 2020 orthopaedic assessment of Dr. Manoj Bhargava. Dr. Bhargava’s physical examination concluded that the applicant had full range of motion in her shoulders, neck and back, diagnosing the applicant with soft tissue injuries. Dr. Bhargava opined that the applicant did not require any further facility-based treatments because she could work, she could travel, and the consensus diagnosis was that she sustained soft tissue injuries as a result of the accident.
13The respondent also raises causation issues. While it concedes that the applicant had a shoulder impairment at the time the OCF-18 was submitted, it submits it was related to her pre-accident frozen shoulder injury. It is the respondent’s position that the applicant did not meet her burden to show that her shoulder impairment was a result of the accident. I disagree and find that the CNRs of Dr. Veillette reference the applicant’s shoulder impairment and the accident prior to surgery.
14While I accept that the applicant had a pre-existing medical condition, I am not persuaded by the respondent’s causation argument and find that the applicant’s shoulder injury was exacerbated by the accident. The medical evidence demonstrates that since the accident the applicant has taken appropriate steps to mitigate her exacerbated pain including attending her family physician, seeing specialists, undergoing an MRI and x-ray, and taking medication, pain injections and ultimately undergoing surgery.
15I find that the respondent relied on the evidence provided by Dr. Bhargava which was inconsistent with the bulk of medical evidence provided. I find the applicant’s evidence more persuasive because it provided opinions from multiple practitioners on multiple occasions that support the applicant’s need for treatment to manage her ongoing pain, thus supporting the goals sought in the OCF-18.
16I thereby find the OCF-18 to be both reasonable and necessary.
Award
17Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments. If the respondent has unreasonably withheld or delayed payments than an award is payable up to 50% of the amounts outstanding plus interest on all amounts outstanding at the rate of 2% per month compounded monthly. For the purposes of an award, the Tribunal has consistently interpreted unreasonableness to mean conduct that is excessive, inflexible, immoderate, imprudent, unyielding, or stubborn.
18The applicant submits that the respondent unreasonably delayed payment of the necessary treatment and has deliberately ignored the overwhelming medical evidence supporting this OCF-18. It is the applicant’s position that the respondent had ample time to reassess the applicant’s OCF-18 weighing all the medical evidence and new information as it became available.
19The respondent submits that section 10 of Regulation 664 does not prevent an insurer from taking a position that a benefit is not payable, and a removal from the MIG does not automatically entitle the applicant to all previously denied OCF-18s. I agree.
20The respondent removed the applicant from the MIG after the case conference and approved many of the OCF-18s which were submitted for funding in 2018 and 2019. However, the respondent denied this OCF-18 as it determined that the plan was not reasonable and necessary. While I have found the OCF-18 to be reasonable and necessary, an award is not applicable simply because an insurer got a determination wrong, nor am I persuaded that by the applicant that the respondent acted unreasonably to warrant an award.
21Although the respondent refused to pay for the proposed OCF-18, its conduct was not excessive or inflexible as it had concerns and arguments over whether the OCF-18 was necessary and reasonable. I am persuaded by the respondent’s actions to continue to fund other treatment plans as evidence that it was not acting in bad faith or to unreasonably withhold or deny a benefit in order to warrant an award.
22Consequently, I do not find the respondent unreasonably withheld or delayed payments, and accordingly, there is no grounds for an award.
Interest
23Section 51 of the Schedule states that interest is due on the payment of overdue benefits.
24As I have found benefits are payable, it follows that interest applies on any overdue payments of benefits.
ORDER
25I make the following order:
i. The applicant is entitled to the $3,570.10 for chiropractic services proposed by HealthMax Physiotherapy Clinics in OCF-18 dated November 3, 2020.
ii. The applicant is not entitled to an award.
iii. The applicant is entitled to interest on any overdue payment of benefits.
Released: April 17, 2023
Monica Ciriello
Vice-Chair