Licence Appeal Tribunal File Number: 21-012697/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:
Michele Pellegrini
Applicant
and
Aviva General Insurance
Respondent
AMENDED DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Piera A. Segreto, Counsel
For the Respondent: Alicia Edwards, Paralegal
HEARD: By Way of Written Submissions
OVERVIEW
1Michele Pellegrini (“the applicant”) was involved in an automobile accident on May 29, 2021, 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 Aviva General Insurance (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The parties indicated in their submissions that the issues to be determined are not as set out in the case conference order, but are as follows:
Is the applicant entitled to a medical benefit in the amount of $2,188.53 for chiropractic treatment and massage therapy recommended by Active Mobility Rehabilitation in a treatment plan dated June 2, 2022?
Is the applicant entitled to a medical benefit in the amount of $1,549.68 for chiropractic treatment recommended by Active Mobility Rehabilitation in a treatment plan dated August 16, 2022?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The plan for $2,188.63 is partially reasonable and necessary in the amount of $1,500.00 plus interest.
4The applicant is not entitled to the plan in the amount of $1,549.68.
5The applicant is entitled to an award in the amount of $150.00 plus interest.
ANALYSIS
6To receive payment for a treatment and assessment 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.
7The applicant’s physical injuries sustained in the accident included a fractured left small finger (which required a splint for 8 weeks), shoulder strain, neck strain, and lumbar strain. The applicant has reported that his shoulder was dislocated and put back into place at the hospital; however, that is not supported by the medical records.
8The treatment plan dated June 2, 2022, completed by Dr. Mackensie Jordan (chiropractor), proposed 8 sessions each of chiropractic and massage therapy. The treatment plan dated August 16, 2022 from Dr. Jordan proposed 8 sessions of chiropractic treatment.
9The respondent denied the treatment plans, noting that over $19,000 had been incurred in chiropractic and massage therapy, over 140 sessions, with little objective improvement.
10An IE was arranged, and initially scheduled for July 20, 2022. The applicant requested that it be rescheduled, as he was not available on that date that was unilaterally scheduled by the respondent. He requested it be moved to August 2022. It was scheduled for August 3, 2022. The applicant attended the clinic for the assessment on August 3, and was advised that the assessment was cancelled. No explanation has been provided as to why it was cancelled. The assessment was then further rescheduled to September 19, 2022.
11Transportation was arranged for the applicant to attend the IE in September. By letter dated September 22, 2022 the applicant’s representative advised that the applicant had contacted the driver of the transportation company on September 19, 2022 and was advised by the driver that he had left his home, and the assessment would be rescheduled. According to the respondent, the transportation company reportedly attended the applicant’s address, there was no answer, and after waiting 30 minutes, the driver left. The respondent indicates that they attempted to contact the applicant’s representative to inquire as to what had occurred. However, despite being notified that the applicant’s representative had changed firms and no longer had access to her messages with her former firm, the respondent continued to send its inquiries to the former address, and therefore received no response.
12The assessment was rescheduled to November 28, 2022, and the applicant underwent an orthopaedic evaluation with Dr. Erin Boynton. The applicant reported that he had occasional pain in his left finger, but it was more of an annoyance. He had no complaints regarding his left shoulder. He reported ongoing constant pain at the back of his neck, alleviated by a hot shower or massage. He denied any other pain complaints. Upon examination, the applicant demonstrated full mobility, no evidence of inflammation, and normal stability of the joints in his hand, left shoulder and neck. Dr. Boynton opined that the applicant had reached maximum medical recovery, and that his minor residual neck discomfort would resolve with a home exercise program and postural improvement. There was no rationale for further facility-based treatment.
13The applicant doesn’t dispute Dr. Boynton’s conclusion, but submits that the assessment was completed after he benefitted from the treatment of the denied plans, almost six months after he received the treatment, and therefore the report should be given less weight.
14Correspondence from the Active Mobility Rehabilitation clinic indicates that, in respect of the treatment plan for $2,188.53, the applicant incurred five chiropractic sessions and five massage therapy sessions, for a total of $1,500.00. There is no evidence the August 16, 2022 plan was incurred.
15I see no reason to interfere with the uncontradicted findings of Dr. Boynton. Further, the applicant has not sought treatment for his accident-related complaints with the family doctor since January 2022. However, I also accept that the applicant may have experienced improvement with the treatment received in the interim between the submission of the treatment plans and the date of the orthopedic assessment.
16Therefore, I find that the treatment plan in the amount of $2,188.53 partially reasonable and necessary, for the incurred sessions up to $1,500.00, plus interest. The balance of that plan and August 16, 2022 treatment plan are not reasonable and necessary given the undisputed findings of Dr. Boynton.
Award
17The 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.
18The applicant submits that the respondent’s unreasonable withholding and delay caused the applicant to bear the costs of the treatment. The applicant submits that the six-month delay to the insurer’s examination was unreasonable, as was the insurer’s failure to provide the records from Active Mobility and Dr. Bodentstein (a psychologist) to Dr. Boynton before he completed his IE.
19It appears to me that both parties were somewhat responsible for contributing to the delay in proceeding with the assessment, as it was rescheduled multiple times for various reasons noted above. However, the applicant attended at the assessment on August 3, 2022, after having taken the day off work, and no explanation has been provided by the respondent as to why the assessment was cancelled, or at whose behest.
20The respondent acknowledges that the records from Dr. Bodenstein were not provided to Dr. Boynton but submits that they would not offer any explanation as to why ongoing physical treatment is required to address his physical injuries, since Dr. Bodenstein is a psychologist. The respondent provides no explanation why the Active Mobility records were not provided to Dr. Boynton for review. The records were submitted to the respondent in June 2022 and Dr. Boynton’s assessment took place in November 2022.
21I find than the applicant’s claim for the chiropractic treatment was unreasonably withheld because the respondent failed to properly adjust the claim, including providing all relevant information to its assessors, particularly the physical treatment records which would have been contemporaneous to the treatment plans in question. This led to an unreasonable delay in the applicant receiving funding for the treatment that I have found to be reasonable and necessary.
22Case law has established the criteria for the consideration of granting an award. The award should be proportionate to: a) the level of blame to be placed on the insurer’s conduct; b) the vulnerability of the insured; c) the potential or actual harm to the insured; d) the necessity of deterring future such conduct from the insurer; d) the advantage gained through the insurer’s misconduct; and e) a consideration of any other action that has been or will be taken against the insurer due to its conduct. Through subsequent case law, an additional consideration has been the overall length of the delay. These are the factors that the Tribunal has considered assistive when determining a s. 10 award.
23Bearing those factors in mind, I do not find the respondent’s actions warrant the maximum in these circumstances. The respondent relied on its assessors reports, which it was entitled to do. However, I find the respondent did not take appropriate steps in its ongoing duty to adjust the applicant’s claim, which led to the benefits being unreasonably withheld. I find an award of 10% is appropriate in this case, for a total of $150.00 plus interest.
ORDER
24The plan for $2,188.63 is partially reasonable and necessary in the amount of $1,500.00 plus interest.
25The applicant is not entitled to the plan in the amount of $1,549.68.
26The applicant is entitled to an award in the amount of $150.00 plus interest.
Released: January 4, 2024
Kate Grieves
Adjudicator