Tersigni v. Aviva Insurance Canada, 2023 CanLII 60270

Tersigni v. Aviva Insurance Canada

Citation: Tersigni v. Aviva Insurance Canada, 2023 ONLAT 21-006282/AABS

Licence Appeal Tribunal File Number: 21-006282/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:

Nicholas J. Tersigni Applicant

and

Aviva Insurance Canada Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Sam C. Pitaro, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Nicholas J. Tersigni (the “applicant”) was involved in a motor vehicle accident on June 1, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Canada (the “respondent”) denied a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The following preliminary issues are in dispute:

1. Is the applicant prohibited from proceeding with the issue of a chiropractic and physiotherapy treatment plan dated February 6, 2020 due to the treatment that it recommends being incurred prior to the plan being submitted, in contravention of s. 38(2) of the Schedule?

2. Is the applicant prohibited from proceeding with the issues of chiropractic and physiotherapy treatment plans dated March 26, 2021 and June 29, 2021 due to the applicant’s non-attendance at s. 44 insurer examinations (“IEs”), pursuant to s. 55(1)2. of the Schedule?

PRELIMINARY ISSUES RESULT

3I find that:

i. The applicant is allowed to proceed with the issue relating to the treatment plan dated February 6, 2020, as he is not in contravention of s. 38(2) of the Schedule.

ii. The applicant is prohibited from proceeding with the issues relating to the treatment plans dated March 26, 2021 and June 29, 2021, as he did not attend s. 44 IEs pursuant to s. 55(1)2. of the Schedule.

Is the applicant prohibited from proceeding with the treatment plan dated February 6, 2020?

4I find that the applicant can proceed with the issue relating to the treatment plan dated February 6, 2020, as it has not been demonstrated that he submitted this plan in contravention of s. 38(2) of the Schedule.

5In written submissions, the respondent takes the position that the chiropractic and physiotherapy treatment recommended in the plan for services dated February 6, 2020 was incurred before this plan was submitted to the insurer on February 11, 2020. It submits that the account statement from SWAT Health notes that the applicant received treatment from the author of this treatment plan, Dr. Tony Diab, chiropractor, and Jesse Topley, physiotherapist, on multiple occasions between January 30, 2020 and February 10, 2020. As this treatment was therefore incurred before the treatment plan was submitted to Aviva on February 11, 2020, the respondent claims that the applicant has contravened s. 38(2) of the Schedule, which holds that “[a]n insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan.”

6In reply submissions, the applicant explains that this treatment was unrelated to the February 6, 2020 treatment plan and had actually previously been approved by Aviva as part of a Treatment Confirmation Form/OCF-23 dated August 21, 2019 and a treatment plan dated November 26, 2019. He notes specifically that the November 26, 2019 plan recommended an approved 12 sessions of treatment with Dr. Diab and 22 sessions with Mr. Topley, of which eight of the former and all of the latter were incurred between the date of the submission of that approved plan and February 6, 2020. As a result, the applicant argues that there is no preliminary issue to be resolved, since all of the treatment incurred related to a prior, approved treatment plan and not the one in dispute here.

7I agree with the applicant, who has submitted a fulsome explanation detailing the nature of his treatment at SWAT Health in relation to the various treatment plans both approved and denied by the respondent. The respondent has not submitted any information to prove its assertion aside from the SWAT Health account statement, which does not specify which treatment is connected to which treatment plan. In the absence of this information, all the respondent really has to rely on is the timing of the treatment in question. In my view, such limited evidence is insufficient to prove that this incurred treatment was recommended in the February 6, 2020 plan and not one of the other two approved plans that seem to have recommended nearly identical treatment.

8Accordingly, I find that the applicant is not prohibited from proceeding with the issue of the treatment plan dated March 6, 2020. This issue remains on the list of substantive issues before me.

Is the applicant prohibited from proceeding with the treatment plans dated March 26, 2021 and June 29, 2021?

9I find that the applicant’s refusal to attend an s. 44 IE in relation to the treatment plans dated March 26, 2021 and June 29, 2021 prohibits him from proceeding with these issues, pursuant to s. 55(1)2. of the Schedule.

10Aviva submits that the applicant refused to attend scheduled s. 44 IEs with Dr. Seung-Jun Lee, family physician. It notes that the applicant was advised in an Explanation of Benefits (“EOB”) letter dated October 7, 2021 that an examination was being scheduled with Dr. Lee to assess entitlement to the two treatment plans in question. The respondent explains that this IE was to have been the second such assessment by Dr. Lee, to update his prior examination of the applicant on August 24, 2020 (resulting in a report dated September 8, 2020) in light of the submission of these two new treatment plans. Further attempts to schedule an IE with Dr. Lee were made on December 8, 2021, February 24, 2022, and June 7, 2022. These were also refused by the applicant through his legal counsel.

11In reply submissions, the applicant does not deny that he refused to attend the second round of IEs with Dr. Lee, but that he objected on the basis that he had already attended an examination with this physician that resulted in the denial of the February 6, 2020 treatment plan. He further alleges that this denial did not include adequate medical reasons in accordance with the Schedule (namely s. 38(8), although the applicant does not cite this specific section in submissions), and that Dr. Lee did not need to re-examine the applicant as he concluded in his examination on August 24, 2020 that the applicant sustained soft-tissue injuries as a result of the accident that had been resolved. The applicant also refers to a denial letter dated October 7, 2021 as a further reason for his refusal to attend these IEs. Correspondingly, the applicant argues there was no “rational basis” for a further assessment by Dr. Lee.

12I do not accept that the applicant has supplied suitable reasons for refusing to attend these s. 44 IEs with Dr. Lee. Essentially, the applicant seems to have declined to participate in a second examination with Dr. Lee because the physician diagnosed him with soft-tissue injuries in his first examination and denied the February 6, 2020 treatment plan as a result. I fail to see how the earlier assessment and that denied plan are relevant to this dispute over two other treatment plans, each of which are dated over a year later.

13I find that Aviva has met the “medical reasons and any other reasons” prescribed in s. 38(8) of the Schedule in all of its specific notices regarding the denial of these plans and accompanying requests that the applicant attend the required IE assessment. Each of Aviva’s EOB letters referenced the clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. F. Michael Cianfrone, and the earlier IE report of Dr. Lee. Accordingly, I do not agree with the applicant’s characterization of this reasoning as “boilerplate,” nor do I agree with his contention that the rationale deployed in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (Reconsideration Decision) is applicable here.

14Further, I concur with the respondent’s contention that it was entitled to request the new IE to re-assess the applicant with regard to these two new treatment plans, and that it has been prejudiced by the applicant’s refusal to attend this examination. Even though this chiropractic and physical therapy treatment was similar if not identical to that already recommended in earlier treatment plans, over a year had passed since Dr. Lee’s first IE of the applicant, a time during which the applicant had been undergoing regular treatment. In my view, Aviva had the right to examine the applicant again as part of its ongoing adjusting of this claim, especially given that new treatment plans had been submitted that would extend treatment.

15For the above reasons, the applicant is prohibited from proceeding with the treatment plans at issue dated March 26, 2021 and June 29, 2021 in accordance with s. 55(1)2. of the Schedule. I have removed them from the list of substantive issues before me.

SUBSTANTIVE ISSUES

16The following substantive issues remain in dispute:

1. Is the applicant entitled to $2,633.90 for chiropractic and physiotherapy treatment, recommended by SWAT Health Inc. in a treatment plan/OCF-18 dated February 6, 2020?

2. Is the applicant entitled to $2,633.90 for chiropractic and physiotherapy treatment, recommended by SWAT Health Inc. in a treatment plan/OCF-18 dated February 26, 2020?

3. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

17In written submissions, the applicant withdrew issues #1-5 (all of the treatment plans regarding iScope) listed in the Case Conference Report and Order (“CCRO”) dated December 30, 2021 that set this matter down for a hearing.

SUBSTANTIVE ISSUES RESULT

18I find that:

i. The applicant is entitled to the treatment plan dated February 6, 2020, as he has demonstrated it to be reasonable and necessary. He is also entitled to interest on any incurred amounts, pursuant to s. 51 of the Schedule.

ii. The applicant is not entitled to the treatment plan dated February 26, 2020, as he has not demonstrated it to be reasonable and necessary. It follows that he is also not entitled to interest.

iii. The respondent is not liable to pay an award.

ANALYSIS

The Treatment Plans

19To be entitled to a treatment plan 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

Is the applicant entitled to the treatment plans for chiropractic and physiotherapy treatment dated February 6, 2020 and February 26, 2020?

20I find that the applicant is entitled to the treatment plan dated February 6, 2020 as he has demonstrated it to be reasonable and necessary. It follows that he is also entitled to interest on any incurred amount of this plan in accordance with s. 51 of the Schedule. However, I find that he is not entitled to the treatment plan dated February 26, 2020, or interest, as it is a duplicate of the treatment recommended in the February 6, 2020 plan.

21In dispute are two identical treatment plans for chiropractic treatment and physiotherapy. Each plan was completed by Dr. Diab and valued at $2,633.90. Treatment recommended in each plan involved 12 sessions of chiropractic manipulation and 22 sessions of physiotherapy. Increased range of motion and strength, decreased muscle tenderness, and the resolution of unspecified symptoms are listed as the treatment goals, to address sprain and strain of the cervical spine and concussion suffered as a direct result of the accident.

22The applicant argues that these plans have been demonstrated to be reasonable and necessary. He relies primarily on a personal affidavit; the CNRs of Dr. Cianfrone; treatment records from SWAT Health including letters from Dr. Diab and Caroline Zammit, registered physiotherapist, each dated April 22, 2022; Humber River Hospital CNRs; a report completed by Dr. Manu Mehdiratta, neurologist, dated August 23, 2019; and the treatment plans in dispute.

23While Aviva notes in submissions that it is not disputing any neurological treatment for the applicant due to his concussion symptoms, it disputes physical rehabilitation on the basis of Dr. Lee’s conclusion in his September 8, 2020 IE report that the applicant sustained soft-tissue injuries in the accident that had since been resolved. The respondent argues that the applicant had an active lifestyle with no functional impairments when these treatment plans were submitted, and that a snowboarding injury sustained around February 1, 2020 was the actual reason for the chiropractic and physiotherapy care recommended in these plans. Further, Aviva claims that the two plans are duplicates submitted at essentially the same time, and as a result both cannot be reasonable and necessary.

24I agree with the applicant and find that he has demonstrated the February 6, 2020 treatment plan to be reasonable and necessary. Although the respondent attempts to separate this physical treatment from the applicant’s accepted concussion and post-concussion symptoms, I am not convinced that such a separation is reasonable and defer to a preponderance of the medical evidence before me that supports chiropractic and physical therapy as viable ways to treat such head trauma.

25Virtually all of the medical evidence submitted by the applicant tacitly supports chiropractic treatment and physical therapy for his accident-related injuries. On March 5, 2020, Dr. Cianfrone noted the applicant’s ongoing struggles with vertigo, chronic headaches, neck and back pain, muscle stiffness, and post-concussion syndrome, and recommended that he “continue rehab,” which I infer to mean the treatment recommended in these contemporaneous plans. Dr. Mehdiratta wrote that the applicant was currently receiving physiotherapy and massage therapy in the same report that also diagnosed him with a traumatic brain injury. I infer that Dr. Mehdiratta took no issue with this treatment as being appropriate for such an injury, given that she did not criticize this approach in her report or recommend a different course of action. Also, Dr. Diab and Ms. Zammit both endorse this treatment in their letters, with the latter describing how manual therapy was improving the applicant’s symptoms of post-concussion syndrome. Taken together, along with the affidavit of the applicant, this forms a compelling evidentiary picture that leads me to conclude that the treatment recommended in one of these plans is reasonable and necessary.

26I assign minimal weight to the IE report of Dr. Lee dated September 8, 2020. While I take no issue with Dr. Lee’s conclusion that the applicant’s soft-tissue injuries sustained in the accident had resolved from a musculoskeletal perspective by the time of this examination, the family physician deferred the applicant’s complaints of headache to a neurologist. And while Dr. Lee was correct to defer his opinion to such a specialist, this means that his assessment was somewhat limited—especially by comparison with the report of Dr. Mehdiratta, the only neurologist to have assessed the applicant. Accordingly, I view the Dr. Lee report as only being partially relevant, in that it did not address the concussion that was apparently the most serious accident-related injury sustained by the applicant.

27I am not convinced by the respondent’s argument that a snowboarding accident necessitated these treatment plans, or that the applicant’s active lifestyle demonstrated that he was not impaired and therefore such treatment was not reasonable and necessary. Outside of a brief mention of the snowboarding fall in the SWAT records dated February 5, 2020, there is no indication that the applicant sought treatment for injuries related to that accident. Allegations of the applicant living an active lifestyle incongruent with a need for physical therapy have not been substantiated. In my view, the SWAT records referenced by the respondent indicate just that the applicant was returning to his pre-accident fitness level—not that he was weight training, as implied by the respondent. Much of the respondent’s active lifestyle argument focused on the summer of 2020, as well, past when the treatment plans still in dispute were completed. And I fail to see how the applicant’s physical fitness/mental health podcast is proof of any sort of untoward relationship between the applicant and SWAT Health, as was also alluded to by the respondent in submissions.

28However, I agree with the respondent that the plans are duplicative. And as they were completed just a few weeks apart (not, I should note, on the same day, as alleged by the respondent in submissions), they cannot both be deemed to be reasonable and necessary.

29As a result, I find only the first submitted plan dated February 6, 2020 to be reasonable and necessary. The applicant is entitled to the amount of this plan, including interest on any incurred amount, pursuant to s. 51 of the Schedule. The applicant is not entitled to the treatment plan dated February 26, 2020 or interest.

AWARD

30I find that the respondent is not liable to pay an award.

31Section 10 of O. Reg. 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld benefits.

32The applicant requests an award of at or near the maximum allowable of all disputed amounts of the treatment plans. He argues that Aviva unreasonably denied treatment and withheld payment, and further that the insurer did not provide adequate medical and other reasons for its denials.

33The respondent submits that all of its responses to treatment plans were proper and that all of its EOB letters quoted medical reasons for denials. It further notes that the applicant repeatedly refused to attend an s. 44 IE, which restricted its ability to fully respond to this claim and make a decision on at least two of the treatment plans in dispute.

34I agree with the respondent. Ordering an award requires a level of insurer misconduct that I cannot find here. Also, the respondent makes a valid point regarding the refusal to attend an IE, which impeded its ability to fully assess the applicant’s claimed impairments.

35Correspondingly, the respondent is not liable to pay an award.

ORDER

36I find that:

i. The applicant is entitled to the treatment plan dated February 6, 2020, as he has demonstrated it to be reasonable and necessary. He is also entitled to interest on any incurred amounts, pursuant to s. 51 of the Schedule.

ii. The applicant is not entitled to the treatment plan dated February 26, 2020, as he has not demonstrated it to be reasonable and necessary. It follows that he also not entitled to interest.

iii. The respondent is not liable to pay an award.