Licence Appeal Tribunal File Number: 22-001580/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:
Gary Stewart
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Gary Stewart, Applicant
Marina Korshunova, Paralegal
For the Respondent:
Aviva Insurance Canada,
Pamela Quesnel, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Gary Stewart, the applicant, was involved in an automobile accident on May 6, 2020, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties resolved five issues in dispute, as noted in a Tribunal case conference report and order dated July 19, 2022, and an exchange of emails between the parties occurring in September 2022.
3Both parties submit that for the purpose of the hearing, the only remaining issues in dispute are the applicant’s entitlement to the treatment plan recommending chiropractic services in the amount of $2,927.44 submitted on November 27, 2020, and any interest owing based on potential entitlement to the treatment plan, and the issue of whether an award under Regulation 664 is owing if respondent payments were unreasonably withheld or delayed.
PRELIMINARY ISSUES
4The applicant submits that the denials by the respondent insurer fail to comply with the strict notice requirements under section 38(8) of the Schedule. Under section 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan, the insurer will approve or refuse to pay for. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable or necessary. This notice must be provided within ten business days after it receives a treatment plan.
5Under section 38(11) of the Schedule, if the insurer fails to give a notice in accordance with section 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the OCF-18 and ending on the day the insurer gives the notice required by section 38(8).
6The applicant submits pursuant to section 38 of the Schedule that the insurer is required to provide clear and sufficient notice of the grounds for denial. The applicant submits that a notice of denial by the respondent falls short of the section 38(8) requirement without referencing which denial fails to provide adequate notice and what the deficiency is in the letter of denial. The respondent states that the applicant alleges that the insurer’s letter dated December 1, 2020, does not comply with section 38 of the Schedule. The respondent letter dated December 1, 2020, represents a section 33(1) request for the clinical notes and records of the applicant’s family doctor, information from the treatment provider Activa Clinics Hamilton, as well as other disclosure required to determine the treatment plan. The respondent argues that this letter is proper and there is no issue with section 38 (8) of the Schedule. The respondent’s letter dated on March 17, 2021, requests the applicant attend an insurance examination, for the purpose of assessing the reasonableness and necessity of the treatment plan for chiropractic treatment.
7The applicant’s submissions fail to explain how the respondent’s denials are not compliant with section 38(8) of the Schedule. I do not agree with the applicant’s submissions respecting any violation of the notice requirements under section 38(8). The respondent has provided clear and sufficient notice of the grounds for denial of the treatment plan dated November 27, 2020. The applicant has failed to meet his burden to demonstrate that the insurer did not give notice in accordance with section 38(8).
ISSUES
8The issues in dispute are:
i. Is the applicant entitled to the following chiropractic services, recommended by Activa Clinics Hamilton:
(a) $2,927.44 in a treatment plan/OCF-18 submitted on November 27, 2020, and denied on December 1, 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
9The applicant is not entitled to the disputed OCF-18 for chiropractic services.
10The respondent is not liable to pay an award under Regulation 664.
11The applicant is not entitled to interest on any overdue payment of benefits respecting the Treatment Plans/ OCF-18 described.
LEGAL ANALYSIS & MEDICAL EVIDENCE
12Section 15 of the Schedule provides that the respondent will pay for all reasonable and necessary medical benefits to or on behalf of the applicant so long as the applicant sustains an impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of an accident.
13The onus is on the applicant to prove on a balance of probabilities that each claimed medical benefit is reasonable and necessary
14The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. The respondent submits that the injuries proposed to be addressed in the disputed treatment plan were not caused by the accident. I agree with the respondent’s submission. The applicant has not met the onus of establishing that the impairments addressed by the disputed treatment plan were necessarily caused by the subject accident.
15The applicant has experienced a number of historic injuries and pre-existing medical conditions. He was stabbed twice in the year 2018, in the extensor origin of the right elbow and in the trapezius of the right posterior shoulder. Following the stabbing injury, the applicant noticed intensity of Tinel’s sign (i.e., tingling) in a right finger as described in a report dictated by Dr. Jouseph Barkho dated April 29, 2019. In an insurer’s psychological report by Dr. Rakesh Ratti dated July 29, 2021, the applicant described to Dr. Ratti that during the 1990s, he was attacked and he received blunt force trauma to his head and afterwards that he was left for dead. The applicant stated to Dr. Ratti that in the year 2000, his right hand was badly cut by a pane of glass, which later required a number of surgeries to address the injuries to his hand. The applicant described that he suffered ulcerative colitis, which later triggered Pyoderma Gangrenosum or inflammatory ulceration of the skin. The applicant also described to Dr. Ratti a history of drug and alcohol addiction and a history of incarceration.
16A clinical note and record (CNR) dated June 9, 2020, from the Hamilton General Hospital by Dr. Sarah Elizabeth Appleton, stated that an MRI of the applicant’s spine taken in February 2020 revealed a narrowing of the cervical spine particularly on the applicant’s right side, which was symptomatic. In addition, Dr. Appleton stated that there is a moderate to severe narrowing of the applicant’s discs at C4 and C5, in addition to overall, multilevel degenerative spinal changes. The applicant described weakness and pain in his forearm and an inability to use the right hand from a global point of view. There is no mention by the applicant of the subject accident as a cause of pain or weakness, rather Dr. Appleton attributed such to the previous stab wounds in the applicant’s forearm. Based on the causation findings of Dr. Appleton where she opines that the cause of the applicant’s impairments are based his previous stabbing injuries and physical trauma unrelated to the accident, I find that the disputed treatment plan is addressing injuries which are not caused by the subject accident as submitted by the respondent.
17The applicant met with his physician Dr. Arash Zohoor on June 25, 2020, respecting the February 2020 MRI results, and Dr. Zohoor recommended a spinal assessment with no mention by the applicant of the subject accident. The applicant does not mention the accident until July 10, 2020, when he describes experiencing constant band-like pain across his neck and shoulders which he attributes to the accident. Dr. Zohoor describes in the clinical notes and records that there are no neurological red flags respecting injuries caused by the accident as reported by the applicant.
18In a denial letter dated December 1, 2020, the respondent denies the disputed treatment plan for chiropractic treatment by reason of a lack of medical evidence substantiating that the impairments listed on the OCF-18 and the treatment proposed are to address injuries caused by the accident or which were necessarily caused by the accident. The respondent states that objective and compelling medical documentation has not been received to substantiate that the impairments listed in the proposed OCF-18 are accident-related injuries. The respondent describes in the same correspondence ongoing section 33 requests for clinical notes and records (CNR’s). Following the receipt of CNR’s, Aviva scheduled an insurance examination with Dr. Jennifer Gordon, Physiatrist.
19The CNR’s of Dr. Zohoor describe the applicant’s past medical history of substance abuse, issues related to gastro-intestinal disorders, ulcerative colitis, carpal tunnel, and stab wounds earlier discussed. There is no mention of the applicant experiencing any accident-related injuries until the applicant specifically requests a referral for physiotherapy and cites the accident as causing neck pain and headaches over one year following the accident on June 18, 2021. As described the applicant has not met his burden showing that the accident is the cause of the impairments proposed to be addressed in the disputed treatment plan.
Treatment Plan in the Amount of proposed by Tahani Al-Rifai, Chiropractor, of
Activa Clinics Hamilton, dated November 27, 2020.
20In the disputed treatment plan, twelve weeks of physical rehabilitation sessions, manual therapy, acupressure, TENS, additional cold and active therapy are proposed, together with the preparation of the OCF-18. The goals of the treatment plan are pain reduction, increasing the applicant’s strength and range of motion in addition to a return to the activities of normal living and pre-accident work activities.
21The applicant submits that there is compelling medical evidence provided showing that the treatment plan is reasonable and necessary. The applicant submits that Dr. Zohoor provided a referral for physiotherapy to the applicant on June 18, 2021; however, I note that the CNRs describe the applicant starting physiotherapy as opposed to a referral. In addition, the applicant reported to Dr. Zohoor accident-related symptoms worsening on June 18, 2021; however, Dr. Zohoor stated in his CNRs that the applicant’s symptoms are not worse over the last several months as opposed to the last year, showing the applicant mentioned the symptoms he describes as accident-related on June 18, 2021, only within the last several months as opposed to from the time of the accident, over a year earlier. As stated, the mention in the CNRs of the applicant starting physiotherapy appears a year following the accident. In addition, there is no indication in the CNRs if the physiotherapy is to address an ongoing pre-accident medical condition or by reason of accident-related impairments.
22The record of attendance at Activa Clinics Hamilton demonstrates that the applicant attended treatment on four occasions in July 2020; on two occasions in August 2020; on six occasions in each of September 2020 and in October 2020, and on eight occasions in November 2020. Prior to the disputed treatment plan, the respondent approved $2,200.00 in treatment and requested the applicant arrange that his treatment provider submit an OCF-23. An OCF-23 dated July 17, 2020, was submitted and approved by Aviva on July 29, 2020. On October 30, 2020, the respondent partially approved a treatment plan for chiropractic treatment prepared by Activa Clinics Hamilton and later approved the remainder of the treatment plan at the case conference requesting the treatment provider, Activa Clinics Hamilton, submit an OCF-21 when the applicant was removed from the Minor Injury Guideline based on a section 44 psychological assessment.
23An x-ray of the applicant’s lumbar spine taken on July 23, 2020, showed no fractures or acute traumatic injury visible and the applicant’s disc spaces as well-maintained. The outcome of the x-ray, soon after the accident, showing the applicant’s lumbar spine with no fractures or acute traumatic injury visible, further supports the respondent’s submission that the treatment plan in dispute is addressing impairments which are not causally related to the accident.
24In a letter from the respondent dated March 17, 2021, the applicant is referred for a section 44 Physiatry Assessment by Dr. Jennifer Gordon. The insurer’s examination occurred on April 8, 2021, and the report of Dr. Gordon was published on April 23, 2021. As part of her assessment and analysis, Dr. Gordon considered a number of diagnostic tests completed prior to the accident relating to the applicant’s right shoulder, elbow and neck, along with a CT scan of his head and thoracic and cervical spine completed between the years 2018 to 2019. Based on her examination and interview with the applicant and her medical documentary review, Dr. Gordon opined that the applicant has a grade two whiplash associated disorder, myofascial neck and shoulder pain, lumbar spine strain/strain. Dr. Gordon could not rule out lumbar radiculopathy, which she was unable to assess by reason of left foot bandaging of the applicant at the time of her examination.
25Dr. Gordon opined that from a musculoskeletal perspective, the applicant had not reached maximum medical improvement (MMI) as he demonstrated an impairment in the cervical and lumbar spine range of motion. However, she concluded that from a musculoskeletal perspective, the treatment plan is not reasonable and necessary as the applicant had already derived what she considered to be the full benefit from facility-based treatment and further treatment was not expected to provide any additional benefit. Dr. Gordon recommended in-home exercise and for the applicant to continue to follow-up with his family physician.
26I find that the applicant has failed to meet his burden of showing sufficient compelling medical evidence that, although the applicant’s accident-related injuries had not reached maximum medical improvement at the time of Dr. Gordon’s examination, that the treatment plan for chiropractic treatment is in fact not reasonable and necessary. As part of her assessment Dr. Gordon performed a thorough review of medical documentation. I agree with Dr. Gordon’s finding, that the applicant would benefit from home exercise following what has been a sufficient course of facility-based treatment. In addition, I find that the applicant has not met his burden showing that the treatment plan is addressing injuries caused by the accident, especially given the course of facility-based treatment already provided by the respondent to address accident-related injuries. I agree with Dr. Gordon that the applicant’s impairments caused by the accident had received sufficient facility-based treatment by the time of her examination and that further facility-based treatment is neither reasonable nor necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to the treatment plan, no interest is payable by the respondent.
Award
28The 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. As there are no payments for benefits unreasonably delayed or withheld, the applicant is not entitled to an award under s. 10 of Reg. 664. Similarly, because no benefits are overdue, the applicant is not entitled to interest.
ORDER
29The applicant is not entitled to the disputed treatment plan for chiropractic services.
30The applicant is not entitled to an award under s. 10 of Reg. 664.
31The applicant is not entitled to interest under s. 51 of the Schedule.
32The application is dismissed.
Released: October 16, 2023
Janet Rowsell
Adjudicator