Citation: Pauvif v. Aviva General Insurance Company, 2024 ONLAT 21-009413/AABS

Licence Appeal Tribunal File Number: 21-009413/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:

Sandra Pauvif

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Nicole Corriero, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Sandra Pauvif (the “applicant”) was involved in an automobile accident on January 18, 2018, 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 Company (the “respondent”) 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 $9,125.50 ($10,325.50 less $1,200.00 approved) for a chronic pain program, proposed by All Health Medical Centre, in an OCF-18 dated March 5, 2022, and denied on June 6, 2022?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant is entitled to a portion of the outstanding balance of the OCF-18, dated March 5, 2022, in the amount of $5,785.50 for a chronic pain program plus interest in accordance with s. 51 of the Schedule; and

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

ANALYSIS

The chronic pain program is partially reasonable and necessary

4I find that the applicant has established that the physical rehabilitation sessions proposed in the OCF-18 are reasonable and necessary. However, the applicant has failed to establish that the remaining services are reasonable and necessary.

5The applicant submitted an OCF-18, dated March 5, 2022, seeking $10,325.50 for a chronic pain program. The OCF-18 states that the proposed services are based on the recommendations of the s. 25 assessor, Dr. Inese Robertus, family physician. The proposed services include 29 physical rehabilitation sessions, five educational procedures, ten hourly sessions for therapy, four visits with Dr. Robertus, the cost of the completion of the OCF-18, and transportation costs.

6On March 9, 2023, the respondent partially approved the disputed OCF-18 for $1,200.00, which included: $1,000.00 for the therapy sessions and $200.00 for the cost of the completion of the OCF-18. Therefore, the remaining services in dispute are the: physical rehabilitation sessions, educational procedures, therapy sessions, visits with Dr. Robertus, and transportation costs.

7To 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. 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.

8The applicant submits that she has an established history of chronic pain and psychological issues, which restrict her ability to perform her pre-accident activities. The applicant further submits that the program proposed by the OCF-18 would tailor individualized treatments and ensure psychological care is concurrent with other treatment. To support this position, the applicant relies on the s. 25 reports completed by Dr. D.J. Ogilvie-Harris, orthopaedic surgeon, and Dr. Robertus, dated November 3, 2020, and March 17, 2022.

9The respondent submits that the applicant has not met her onus to establish that the proposed OCF-18 is reasonable and necessary. Its position is that the OCF-18 was submitted over four years post-accident and the applicant has not provided contemporaneous medical records from her family physician to support the proposed services. To this end, it relies upon the s. 44 reports of Dr. Nicole Azizli, psychologist, and Dr. Deborah Rabinovitch, physiatrist, dated February 23, 2023, and Dr. Michael Ko, physiatrist, dated November 6, 2020.

10I find that the applicant has led sufficient evidence to establish that the physical rehabilitation services proposed in the OCF-18 are reasonable and necessary.

11First, the Tribunal has already accepted that the applicant suffers from chronic pain syndrome and central sensitization. I acknowledge the respondent’s position that the applicant is relying on her self-reporting to Dr. Ogilvie-Harris to prove that she has chronic pain. However, in its decision involving the same parties reported at 2020 CanLII 122614 (ON LAT) (the “previous decision”), at paragraph 23, the Tribunal determined that it accepted the conclusion of chronic pain syndrome and central sensitization as opined by Dr. Ogilvie-Harris. Therefore, the respondent is incorrect that the applicant has to prove that she has chronic pain, as this has already been determined by the Tribunal.

12I also note that both parties point to flaws in the reports completed by both Dr. Ogilvie-Harris and Dr. Ko, and that their respective reports should be preferred with respect to whether the applicant has chronic pain or not. Additionally, the respondent relies on Dr. Ko’s report to support its position that the applicant tends to exaggerate her own symptoms through pain amplification and self-limiting behavior. The respondent also raised issues with Dr. Harris’s report as it was done over the phone, meanwhile, Dr. Ko conducted an in-person consultation.

13However, the Tribunal already reviewed this evidence and highlighted why it was persuaded by the report of Dr. Ogilvie-Harris at paragraphs 11-16 and 26-31 of the previous decision. The respondent neither requested reconsideration nor appealed the previous decision, thus it is a final decision. As the Tribunal has already weighed this evidence and come to a determination, I do not need to reconsider this evidence to determine whether the applicant has chronic pain or not.

14Second, both Dr. Ogilvie-Harris and Dr. Robertus have recommended physical rehabilitation for the applicant to help restore function, improve her quality of life, and to strengthen her spine and extremities. I am alive to the respondent’s fposition that relying on Dr. Robertus’s opinion to justify the OCF-18 is equivalent to relying on the OCF-18 only, however I disagree. While it is well-established that an OCF-18 alone will not prove that the proposed treatment is reasonable and necessary, Dr. Robertus, met with the applicant, and relied on his physical examination, pertinent questionnaires, and the applicant’s self-reporting to provide a medical opinion of how to treat the applicant’s chronic pain, which included physical rehabilitation. There is no reason the same doctor who prepared the OCF-18 should be precluded from writing a report supporting that the proposed treatment is reasonable and necessary. Thus, I agree with the applicant that this constitutes as contemporaneous medical evidence that supports the proposed services are reasonable and necessary.

15Third, I prefer the report of Dr. Robertus over the report of Dr. Rabinovitch. Dr. Rabinovitch conducted no questionnaires in her assessment, despite the applicant self-reporting that her pain since the accident has remained unchanged or worsened. Moreover, the applicant advised Dr. Rabinovitch that she still required assistance with cleaning, laundry, grocery shopping and that she has not returned to the gym since the accident. Also, Dr. Rabinovitch concluded that the applicant had no significant musculoskeletal impairments and that she demonstrated full functional range of motion and strength, yet she diagnosed the applicant with mechanical neck pain with a left supraspinatus injury and possible impingement on the left side, and mechanical back pain with a soft tissue injury to the left abductors as a result of the accident. Moreover, the Empty Can Test for supraspinatus pathology was positive on the left side and the Neer’s test for shoulder impingement was positive on the left side.

16I do not accept the respondent’s position that the applicant has no significant musculoskeletal impairments, particularly when Dr. Rabinovitch herself diagnosed the applicant with impairments from this accident, and moreover objective testing revealed same. Dr. Rabinovitch also provided no explanation on why these diagnoses were not considered to be “significant musculoskeletal impairments.” Lastly, I further question the strength of Dr. Rabinovitch’s report who did not address Dr. Robertus’s report (even though she reviewed it), nor did she provide any reasons or objective opinion as to why she did not agree with the report, the diagnosis, or the recommended treatment, other than the vague rationale noted above.

17As the respondent has not raised issues with the proposed costs associated with the physical rehabilitation sessions. I have no reason to think that the costs associated with the treatment are unreasonable.

18To sum up, I find that the applicant has produced sufficient medical evidence to establish that the proposed physical rehabilitation services are reasonable and necessary to treat her chronic pain condition.

19Now turning to the remaining outstanding services proposed in the OCF-18, I find that the applicant has not established they are reasonable and necessary. With respect to the educational procedures and four visits with Dr. Robertus, the applicant provided no submissions on why these services are reasonable and necessary. They are not recommended in Dr. Robertus’s report and the applicant has not identified any other evidence demonstrating that they are reasonable and necessary. The OCF-18 is stated to be based on Dr. Robertus’s treatment recommendations. However, an OCF-18 is insufficient in itself to prove that services it proposes are reasonable and necessary.

20With respect to the outstanding balance for therapy sessions, the applicant has provided no submissions on why the remaining balance of $300.00 is reasonable and necessary. On March 9, 2023, the respondent sent an EOB to the applicant which advised that it was approving 10 sessions of psychotherapy to be provided by a social worker, at the hourly rate of $100.00, for a total of $1,000.00. The applicant provided no submissions on why the hourly rate of $130.00 for a social worker, as proposed in the OCF-18 is reasonable, nor did she point me to evidence. It is trite to say that the Tribunal does not have a duty to sift through evidence in order to make the case for the applicant, since doing so would risk the Tribunal inappropriately acting as an advocate for a party instead of as a neutral arbiter in a dispute. Thus, the applicant has not met her burden to establish the remaining balance of $300.00 is reasonable and necessary.

21The applicant has not met her burden to establish the proposed transportation costs are payable. The respondent in its submission argued that the distance between the applicant’s residence and the clinic is 24.7 kilometres each way, which the applicant did not dispute in her reply submissions. In fact, neither of the applicant’s initial or reply submissions address the transportation costs in any capacity.

22Section 3(1)(a) provides that “authorized expenses” are calculated by applying the rates set out in the Transportation Expenses Guidelines published by FSCO in The Ontario Gazette. Section 3(1)(b) further provides that unless the insured is catastrophically impaired, transportation expenses are only payable after the first 50 kilometres of a trip.

23As the applicant has provided no evidence that the proposed transportation costs are in relation to expenses over 50 kilometres, she has not met her burden to establish they are payable.

24In conclusion, I find that the applicant has established that the OCF-18 is partially reasonable and necessary for the physical rehabilitation sessions only.

The applicant is entitled to interest

25Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the physical rehabilitation sessions only.

The respondent is not liable to pay an Award

26The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable and interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

27The applicant submits that the respondent has acted unreasonably towards the management of her claim, by consistently delaying the payment of and adjudication of reasonably necessary treatments, which resulted in delays to her ability to access treatment. As a result of this delay, the five years of available medical coverage has expired. Moreover, the applicant submits that the respondent did not consider all of the available information, and ignored the Tribunal’s previous decision, the treatment records, and medical records.

28In response, the respondent submits that the applicant submitted the OCF-18 for a chronic pain program on May 19, 2022, and she knew that the five-year limitation would expire on January 18, 2023. Therefore, it’s position is that the applicant is responsible for her own delay in treatment by not submitting the treatment plan sooner. Moreover, the respondent submits that it was not attempting to “run out the clock” for the five-year limitation period, as it arranged insurer’s examinations and approved psychological treatment after the five-year period had expired.

29I find that the applicant has not established that the respondent unreasonably withheld or delayed the payment of the chronic pain program. Although I have found that the applicant was partially entitled to the treatment plan in dispute, I note that insurers are not held to a standard of perfection. It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. The insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Here, the respondent relied upon its assessors reports, which it is entitled to do so. The applicant does not point me to evidence to establish that the respondent purposely withheld/delayed the payment of this OCF-18 in order for the five-year period to expire. Indeed, the respondent retained medical professionals to complete an assessment and partially approved the treatment in dispute, even after the five-year period had expired.

30Moreover, the applicant, did not provide particulars or advise which treatment records or medical reports, she claims that the respondent ignored. I also note that both Dr. Azizli, and Dr. Rabinovitch, reviewed an extensive amount of medical evidence, including the records of Essential Physio Rehabilitation, the s. 25 reports of Dr. Robertus and Dr. Harris, and the records of Dr. Nessim. As such, the applicant has not provided sufficient evidence, to demonstrate that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed OCF-18.

31Lastly, I note that the applicant made submissions with respect to treatment plans that are not in dispute, or which were resolved by the previous decision by the Tribunal. However, I agree with the respondent that these issues were already resolved and that the fact that the previous decision found treatment plans in favour of the applicant does not have bearing on the reasonableness and necessity of the treatment plan in dispute.

32Thus, I find that the applicant has not established that the respondent’s conduct rises to the threshold to warrant an award, and as such, no award is payable.

ORDER

33For the reasons outlined above, I find that:

i. The applicant is entitled to a portion of the outstanding balance of the OCF-18, dated March 5, 2022, in the amount of $5,785.50 for a chronic pain program plus interest in accordance with s. 51 of the Schedule; and

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