Citation: Lippa v. Aviva Insurance Company, 2023 ONLAT 21-001551/AABS
Licence Appeal Tribunal File Number: 21-001551/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:
Antonella Lippa
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Mary Shemon, Counsel
For the Respondent: Savneet Multani, Counsel
HEARD: By Way Of Written Submissions
OVERVIEW
1Antonella Lippa, the applicant, was involved in an automobile accident on March 22, 2019, 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 the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
i. Is the applicant entitled to $1,895.31 for an activities of daily living assessment/Form 1 completion recommended by Eglinton West Physiotherapy in a treatment plan submitted May 14, 2019?
ii. Is the applicant entitled to $1,838.50 for physiotherapy services recommended by Eglinton West Physiotherapy in a treatment plan submitted October 29, 2019?
iii. Is the applicant entitled to $1,999.00 for a neurological assessment recommended by Unison Medical Assessments in a treatment plan submitted May 2, 2019?
iv. Is the applicant entitled to $1,421.39 for psychological services recommended by Unison Medical Assessments in a treatment plan submitted October 28, 2019?
v. Is the applicant entitled to $3,533.28 for physiotherapy services recommended by Eglinton West Physiotherapy in a treatment plan submitted April 3, 2019?
vi. Is the applicant entitled to interest on any overdue payment of the benefits?
RESULT
3I find that the applicant is entitled to the five treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule.
ANALYSIS
Causation
4The respondent raises a causation issue with respect to the applicant’s right ankle impairment. It submits that the applicant had an accident on January 29, 2020, subsequent to the subject motor vehicle accident, when she fell down at home. The respondent contends that it was this subsequent trip and fall, which caused the applicant’s current right ankle impairment. It further notes that the June 2020 bone scan which showed a fracture in the right ankle, was done after the applicant’s fall at home and as such, is not persuasive evidence that the subject accident caused the fracture. Finally, the respondent raises credibility concerns, due to the fact that the applicant did not report this subsequent trip and fall to her various assessors and doctors.
5The applicant disputes the respondent’s characterization of the subsequent fall at home. She asserts that in the description of the fall, it is clear that she only complained of a sprain to her left ankle to her physiotherapist. The applicant contends that she briefly received treatment for this left ankle sprain and afterwards had no subsequent complaints of left ankle pain. She argues that this minor left ankle sprain has no bearing on her accident-related right ankle impairment.
6I find that the applicant has provided sufficient evidence to establish that the subject accident was the cause of her right ankle fracture and pain.
7The medical record clearly establishes that the applicant consistently reported right ankle impairments after the subject accident and prior to the subsequent trip and fall. The applicant was assessed with right ankle pain at the emergency room and in the week post accident, the applicant’s family physician Dr. Diane Leith, noted that in addition to pain, the applicant’s right ankle was slightly swollen. The clinical notes and records (CNRs) of Dr. Leith note that the applicant continued to report right ankle pain throughout 2019 and that the applicant’s right ankle was still slightly swollen on September 5, 2019, almost six months after the subject accident and well before the January 2020 trip and fall. The applicant similarly consistently reported right ankle pain throughout 2019 to her physiotherapy treatment providers.
8The applicant also reported right ankle pain to the respondent’s s. 44 assessors, prior to any trip and fall. The s. 44 assessment of Dr. Alan Kruger dated August 24, 2019, noted that the applicant had an “apparent limp” when walking due to right ankle pain. The applicant reported to the respondent’s occupational therapy assessor, Ms. Lyndy Goldlust, on July 4, 2019, that she had constant right ankle pain and reported occasional numbness. I further do not agree with the respondent’s submissions that the applicant’s credibility is called into question, as she did not report this trip and fall to her assessors. The applicant did report the fall to her physiotherapy providers who treated her left ankle sprain for a short period of time. I agree with the applicant that it is evident that the fall at home led to a sprain of the left ankle but that this does not call into question the cause of the right ankle impairment.
9Moreover, the respondent places significant weight on the fact that immediately after the subject accident, in March 2019, an x-ray of the right ankle did not show any fracture, but that after the trip and fall, a June 2020 bone scan showed such a fracture. However, I find the report of the applicant’s orthopedic surgeon, Dr. Tajedin Getahun, to be persuasive on this issue. In a report dated March 13, 2021, Dr. Getahun opined that the right ankle fracture was a direct result of the subject accident. With respect to the fact that the 2019 x-ray did not show a right ankle fracture, while the 2020 bone scan did indicate such an injury, Dr. Getahun stated that the bone scans are more sensitive for identifying fractures than x-rays. I find that Dr. Getahun’s opinion is supported by the fact that a July 31, 2020 x-ray of the right ankle, which was relatively contemporaneous with the bone scan, also did not show a fracture.
10As such, I do not find the respondent’s arguments on causation to be persuasive and find that the applicant has met her onus to prove that her right ankle fracture was caused by the subject accident.
11To receive payment for a treatment and assessment plan (“OCF-18”) under s. 15 and 16 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.
OCF-18 in the amount of $1,895.51 for an activities of daily living assessment is reasonable and necessary
12The applicant submitted an OCF-18 dated April 3, 2019 for an activities of daily living assessment/Form 1 completion. She contends that the assessment is reasonable and necessary, as the contemporaneous medical evidence clearly indicated that at the time she was struggling with completing her daily activities. In the alternative, the applicant submits that the OCF-18 is payable pursuant to s. 38(11)2, due the respondent’s failure to provide a notice within 10 business days after receiving the OCF-18.
13In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.
14The applicant has provided sufficient evidence that at the time the OCF-18 was submitted, she was suffering from impairments in her ability to carry out her activities of daily living (“ADLs”).
15This was noted by the applicant’s family physician Dr. Leith, who reported on April 2, 2019 that the applicant struggled with daily activities due to pain and neurological complaints. The applicant continued to report such restrictions to her physiotherapy clinic, the s. 25 and s. 44 assessors. Although the respondent submits that its occupational therapy assessor Ms. Goldlust found that the applicant was able to demonstrate the functional ability to complete a number of ADLs, I note that some of these activities were completed with pacing or with assistance from family members. The respondent further relied on the s. 44 assessment of Dr. Kruger to deny the assessment. However, I agree with the applicant’s submissions that Dr. Kruger did not appear to review the CNRs of the applicant’s family physician or treating clinic and as such, was lacking the complete medical file which would have provided a fulsome picture of the applicant’s impairments.
16The applicant has further established that at the time the OCF-18 was submitted, she was suffering from physical and neurological impairments. The CNRs of Dr. Leith indicate that in the months post-accident, the applicant suffered from ongoing right ankle, back and neck pain, headaches and dizziness.
17Given the evidence I am satisfied at the time the OCF-18 was submitted, there was sufficient objective grounds to warrant an assessment of the extent of the applicant’s impairments in this area.
OCF-18s for physiotherapy services are reasonable and necessary
18The applicant submitted two OCF-18s for physiotherapy services. The first OCF-18 was submitted on April 3, 2019 in the amount of $3,533.28 and the second OCF-18 was submitted on October 29, 2019 in the amount of $1,838.50. Both treatment plans had similar listed injuries and the stated goals of pain reduction, increase in strength, increased range of motion and return to activities of normal living. The respondent denied both treatment plans based on s. 44 assessments conducted by Dr. Alan Kruger, physician, Dr. Earl Magder, dentist and Dr. Garry Moddel, neurologist.
19I find that the applicant has adduced sufficient evidence that the proposed physiotherapy is reasonable and necessary.
20The CNRs of the applicant’s family physician indicate that at the time the OCF-18s were submitted, the applicant was experiencing consistent pain in her neck, back and right ankle. In an entry dated September 5, 2019, Dr. Leith noted that the applicant’s neck and back were very stiff, and she was unable to bend. With respect to the right ankle, it was still slightly swollen, and her flexion and extension had decreased. Dr. Leith stated that the applicant “needs physiotherapy”. As the applicant’s primary care physician, I place significant weight on Dr. Leith’s recommendation for further physiotherapy. Further, the records of the applicant’s physiotherapy clinic indicate her progression and treatment which aligned with the OCF-18s stated goals of pain reduction, increase in strength, increased range of motion and return to activities of normal living.
21The respondent denied the OCF-18 dated October 29, 2019 on the basis of three s. 44 assessments. However, I agree with the applicant that the assessors did not appear to review the applicant’s complete medical file, including CNRs of Dr. Leith, which would have provided a fulsome picture of her injuries. In addition, I agree with the applicant that the assessments conducted by a dentist and neurologist would not be applicable to an OCF-18 for physiotherapy treatment.
22Further, Dr. Kruger’s finding that further physiotherapy was not warranted, was based on his conclusion that the applicant had sustained only soft tissue injuries and had achieved maximum medical improvement. However, the applicant was subsequently found to have suffered from a right ankle fracture, which I found was accident related. As such, it is inaccurate to state that she only sustained soft-tissue injuries or that she had achieved maximum medical improvement, given her ongoing pain in the untreated right ankle.
23As such, I find that the applicant has led sufficient evidence to establish that the OCF-18s for physiotherapy treatment are reasonable and necessary.
OCF-18 in the amount of $1,999.00 for a neurological assessment is reasonable and necessary
24The applicant submitted an OCF-18 on May 2, 2019 for a neurological assessment. Some of the symptoms noted in the OCF-18 included: headaches, dizziness, malaise and fatigue, and issues with concentration and memory. The respondent denied the assessment on the basis of a s. 44 assessment of Dr. Moddel, neurologist, who found that there was no evidence of an accident-related neurological impairment.
25I find that the applicant has met her onus to prove that the proposed neurological assessment is reasonable and necessary.
26The medical record establishes that at the time the OCF-18 was submitted, the applicant was experiencing accident-related neurological symptoms. The applicant was diagnosed with a concussion at the hospital a day after the subject accident. The CNRs of Dr. Leith indicate that soon after the accident, on April 2, 2019, the applicant reported severe headaches, inability to focus, confusion and inability to conduct her daily activities. In May and June 2019 Dr. Leith continued to report that the applicant had headaches and problems with concentration, movement, memory, fogginess and that “she has had a bad concussion”. In the same time period, the applicant also reported severe headaches, dizziness and difficulties in balance to her physiotherapy providers.
27Although the respondent’s neurological assessor found that the applicant did not sustain a neurological impairment, I agree with the applicant that he did not appear to review the complete CNRs of her family physician or her treating physiotherapy clinic. As such, he did not have a fulsome picture of the variety of the applicant’s reported neurological symptoms. The s. 44 report does not mention the applicant’s severe headaches, other than to state that the headaches are “tension type in nature”. There is no reference to the additional symptoms detailed in Dr. Leith’s CNRs.
28As such, I find that the applicant has adduced sufficient evidence that at the time the OCF-18 in dispute was submitted, further investigation into her neurological symptoms was reasonable and necessary.
OCF-18 in the outstanding amount of $1,421.39 for psychological services
29I find that the applicant has established entitlement to the outstanding balance of the OCF-18 for psychological services, due to the respondent’s failure to comply with s. 38(8) of the Schedule.
30The applicant submitted an OCF-18 for psychological services in the amount of $3,615.69 for 12 sessions of psychological treatment. The respondent partially approved the OCF-18 by way of an Explanation of Benefits (“EOB”) dated October 31, 2019, in the amount of $2,194.30. However, in its submissions, it disputes that the remaining amounts for items such as documentation support activity, planning and assessment, are reasonable and necessary. It asserts that the proposed administrative fees are outside the amounts stipulated in the FSCO Professional Services Guideline, and that an additional assessment is not required. The applicant contends that the respondent did not provide these reasons for the partial denial in its EOB dated October 31, 2019, nor did it provide a proper denial of the OCF-18. As such, she argues that the remaining balance of the OCF-18 is payable pursuant to s. 38(11)2.
31I agree with the applicant that the respondent failed to comply with the requirements of s. 38(8) of the Schedule.
32Although in its submissions the respondent raises arguments with respect to excessive administrative fees and duplicative assessments, these reasons for the partial denial were not provided in the EOB dated October 31, 2019. This EOB simply states that the denied amounts are not reasonable and necessary. It further states that the approval is subject to the limits contained in s. 18 of the Schedule. However, at this point, it appears that the applicant had already been removed from the Minor Injury Guideline and it does not appear that there was any issue with non-CAT limits being reached. As such, I find the respondent’s EOB to be confusing and agree with the applicant that this correspondence fails to discharge the respondent’s obligation to provide a “medical and any other reason”.
33As the respondent did not provide proper notice to the applicant, pursuant to s. 38(11)2, it must pay for any treatment expenses that relate to the period starting on the 11th business day after it received the treatment plan and ending on the day it gave proper notice. As no other correspondence from the respondent was submitted with respect to this OCF-18, the respondent no longer has the opportunity to issue a proper denial notice, as a decision has been rendered regarding this benefit (see Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200) (“Suarez”).
34Both the applicant and respondent submitted conflicting Tribunal decisions on the issue of whether a treatment plan must be incurred in order to be payable in cases involving s. 38(8) noncompliance. However, I note that the Divisional Court Decision of Suarez is applicable on this issue. In Suarez, the Divisional Court found that in cases where an insurer did not provide a compliant denial in accordance with section 38(8) of the Schedule, or subsequently rectify its deficient notice, insurers are required to pay for treatment that was not properly denied, despite not being incurred.
35This can be distinguished from the Divisional Court decision of Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000, where the court held that treatment must be incurred, in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. In the matter at hand, as the insurer did not rectify its deficient notice, I find that the Divisional Court’s reasoning in Suarez is applicable.
36As such, I find the outstanding balance of the OCF-18 for psychological services to be payable, once incurred and properly invoiced by the applicant.
ORDER
37For the reasons outlined above, I find that the applicant is entitled to payment for the treatment plans in dispute, plus interest in accordance with s.51 of the Schedule.
Released: May 15, 2023
Ulana Pahuta
Adjudicator