Licence Appeal Tribunal File Number: 22-011415/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:
Ben Chen
Applicant
and
Aviva Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Aylina Dhanji, Paralegal Counsel
For the Respondent:
Bhavpreet Saini, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Ben Chen, the applicant, was involved in an automobile accident on July 28, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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.
3I note that the applicant was removed from the MIG due to his psychological impairments.
ISSUES
4The issues in dispute are as follows:
i. Is the applicant entitled to $1,823.52 for chiropractic services, proposed by Easy Health Centre in a treatment plan submitted on June 4, 2021, and denied on June 18, 2021?
ii. Is the applicant entitled to $2,379.40 for chiropractic services, proposed by Easy Health Centre in a treatment plan, submitted on September 5, 2021, and denied on October 15, 2021?
iii. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Somatic Assessments & Treatment Centre submitted on July 13, 2021, and denied on July 26, 2021?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
5The parties submitted that the following issue from the case conference report and order (“CCRO”) has been resolved and therefore is no longer a dispute before me:
i. Is the applicant entitled to $130.94 for chiropractic services by Easy Health Centre in a treatment plan submitted on April 9, 2021, and denied on April 9, 2021?
RESULT
6The applicant is not entitled to the treatment plans submitted on June 4, 2021, September 5, 2021 and July 13, 2021. As the applicant is not entitled to the treatment plans, no interest or award under s.10 of Reg. 664 is payable.
PRELIMINARY ISSUE
Section 38(8) of the Schedule
7Under s. 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 that 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 and necessary. This notice must be provided within 10 business days after the insurer receives a treatment plan. Failing to do so may invite the consequences in s.38(11).
8The applicant submits that improper denials were provided by the respondent with respect to the treatment plans in dispute. He submits that both the treatment plan submitted on June 4, 2021, in the amount of $1,823.52 and the treatment plan submitted on August 27, 2021, in the amount of $2,379.40, were not responded to by the respondent until October 15, 2021.
9The respondent submits that it responded to the treatment plans in dispute within 10 business days prescribed by s. 38 of the Schedule. The treatment plan dated June 4, 2021, was responded to on June 18, 2021 and the treatment plan submitted on September 5, 2021 (not August 27, 2021 as suggested by the applicant) was responded to on September 15, 2021.
10Upon review of the denial letter provided by the respondent to the applicant, it is clear that the respondent responded to the treatment plan submitted on June 4, 2021, by letter dated June 18, 2021. I find that the notice was provided in accordance with s.38(8) of the Schedule.
11As for the other treatment plan which the applicant submits was sent to the respondent on August 27, 2021 (and the respondent argues was submitted on September 5, 2021), the evidence before me leads me to conclude that the respondent is correct. At the top of the treatment plan is the HCAI document number indicating a submission date of September 5, 2021. Consistent with this is the respondent’s Explanation of Benefits letter, dated September 15, 2021.
12Accordingly, I find that the respondent complied with s. 38(8) of the Schedule for each of these treatment plans.
ANALYSIS
Causation
13I find that the applicant has not met his burden with regard to causation.
14An applicant is entitled to medical and rehabilitation benefits recommended by a treatment plan only in the event that the accident caused the impairments to which the plan is directed. The onus is on the applicant to prove causation.
15The applicant submits that the subject accident caused a deterioration in his physical and mental functioning due to the accident. He submits that he suffered no reinjury after the accident.
16The respondent submits that the applicant has impairments but has failed to establish causation because the applicant had an intervening event between September 8, 2020 and June 22, 2021. The respondent submits that this intervening act was a second motor vehicle accident in June 2021. The respondent submits that while there is imaging post-accident that shows an impairment or injury, these injuries are either degenerative in nature and would not be a result of the accident, or they occurred sometime after the accident on July 28, 2020.
17The respondent relies upon the decision in Grewal v. Aviva General Insurance, 2023 ONLAT 20-013368/AABS, to argue that in the event that it is found that the accident may have exacerbated the applicant’s pre-existing conditions, there is no evidence that the accident is the probable cause of the findings in the imaging post-accident.
18I find that with respect to the second accident in June 2021, the applicant did not mention involvement in this second accident anywhere in his initial submissions. In his reply submissions, he notes that there is no reference to a second accident or reinjury in the records of the family physician, Dr. Matthew Got. He further states that, “even if there was a subsequent minor accident, the July 28, 2020 accident is directly responsible for the Applicant’s injuries. If there was a secondary accident, it must have been minor/insignificant and not the cause of the Applicant’s injuries.”
19I find that the applicant did mention his involvement in a second accident in June 2021 to Dr. Michael Hanna which is set out in his Medical Physician Assessment Report dated October 1, 2021. He also mentioned the June 2021 accident to Dr. Alan Kruger, which is set out in his Medical Physician Assessment Report, dated July 7, 2023 and where the applicant stated that he “apparently aggravated his pain symptomology”. I find that there is no mention of the second accident in the applicant’s initial submissions nor in the medical records of his family doctor, Dr. Got.
20I further agree with the respondent’s position that while the imaging on June 22, 2021 shows an impairment or injury, there is no evidence to support that the accident on July 28, 2020 caused the impairment or injury.
21Upon review of the medical documentation provided, I find that the applicant has not proven causation between the accident on July 28, 2020, and his reported complaints for the following reasons.
22The applicant provided a summary of the clinical notes and records of his family doctor, Dr. Got, following the accident, from his first post-accident visit on August 6, 2020 until September 10, 2020. His main complaint on September 10, 2020, was stiffness, predominantly in his shoulder and insomnia. There are no further complaints about any accident-related physical issues made to Dr. Got until he is seen on June 22, 2021. The clinical note from June 22, 2021, states that he has no reinjury since the 2020 accident, which is inconsistent with the reports of a second motor vehicle accident in June 2021. He complained of right shoulder, low back and bilateral finger numbness. He continued to see Dr. Got with physical complaints until September 16, 2021, after which time there are no further records referencing any accident-related complaints.
23On June 22, 2021, the applicant underwent x-rays of his cervical spine and lumbar spine and an ultrasound of his right shoulder. The timing of these further investigations would support the notion that the applicant was involved in a second accident in June 2021 and therefore any ongoing pain at that time would be related to the accident in June 2021 or an exacerbation of his injuries as a result of this second accident. My conclusion is further supported by the timing and results of earlier investigations, below.
24On September 8, 2020, the x-ray of the lumbar spine found moderate facet OA and mild degenerative arthritis. Specifically, no fracture was noted. On June 22, 2021, the x-ray of the lumbar spine found mild anterior wedge compression fractures of the T12 and L1. This finding was not found in the previous x-ray.
25On September 8, 2020, the x-ray of the right shoulder found degenerative arthritis and rotator cuff tendinopathy. Specifically, no fracture, tear, or abnormal fluid was noted. On June 22, 2021, the ultrasound of the right shoulder found mild rotator cuff tendinosis.
26The clinical note from the family doctor, Dr. Got, dated July 13, 2021, notes that the applicant has cervical spine degenerative disc disease which may explain his numbness. He further noted that the applicant has lumbar spine degenerative disc disease and right shoulder tendinosis. No comments were made about any accident causing the impairments. He was seen again by Dr. Got on September 16, 2021, where he was assessed with “C spine DD w/NF stenosis”. There are no further physical complaints made to Dr. Got in the records provided up to August 5, 2023.
27Dr. Marshall Zaitlen, neurologist, in his reports dated July 15, 2021 and April 7, 2022, does not connect the accident with the applicant’s ongoing presentation. The July 28, 2020, accident is mentioned as part of the history portion of his report. There is no mention of the June 2021 accident.
28Despite attending treatment following the accident at Easy Health Centre, the clinical notes and records have not been provided referencing the treatment he received, the dates of the treatment or any progress made by the applicant from treatment.
29Dr. Kruger in his Medical Physician’s Assessment, dated July 7, 2023, concluded that “Additionally, Mr. Chen was involved in another motor vehicle accident in June 2021, which apparently exacerbated his pain symptoms from the subject accident. However, given the accident occurred one year after the July 28, 2020 MVA, his injuries from the subject accident would have resolved prior to the subsequent accident in June 2021 and any ongoing pain at this time would be related to the accident in June 2021”.
30I find that the applicant has failed to meet his burden with regard to causation. The medical documentation supports that the applicant was involved in a second accident in June 2021. The applicant has failed to provide any medical documentation to support that the complaints and findings in the imaging on June 22, 2021 are as a result of the accident on July 28, 2020. There are no clinical notes and records from either Dr. Got or Easy Health Centre where he attended for therapy documenting any complaints from September 10, 2020 up until June 22, 2021. In addition, the medical report by Dr. Kruger finds that his injuries from the July 28, 2020 MVA would have resolved prior to the second accident in June, 2021.
Medical and Rehabilitation Benefits
31To receive payment for medical and rehabilitation benefits under s.15 and 16 of the Schedule, the applicant has the onus of proving on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.
32As set out in 17-001007/AABS v. Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), at para. 11, relied on by the respondent, the reasonableness and necessity of the treatment must be held to an established standard which requires:
i. The treatment goals as identified are reasonable;
ii. The treatment goals are being met to a reasonable degree; and
iii. The overall costs of achieving goals are reasonable.
a) The applicant is not entitled to the treatment plans submitted June 4, 2021 and September 5, 2021 for chiropractic treatment
33In addition to my finding on causation, I also find that the applicant has failed to demonstrate that the treatment plans submitted on June 4, 2021 and September 5, 2021 are reasonable and necessary and therefore the applicant is not entitled to payment.
34In dispute is the treatment plan, submitted on June 4, 2021 by Easy Health Centre, proposing $1,823.52 in chiropractic services. In addition, in dispute is the treatment plan, submitted on September 5, 2021 by Easy Health Centre, proposing $2,379.40 for chiropractic services.
35The applicant submits that the chiropractic treatment plans are reasonable and necessary in their entirety based on the clinical notes and records from the hospital, clinics and assessors which confirm that the applicant continues to suffer from pain in his neck, shoulders, back and hands. He further submits that he suffers from chronic and ongoing pain as a result of the accident.
36The respondent submits that the applicant has failed to establish that the treatment plans in dispute are reasonable and necessary. It relies on the Medical Physician Assessment Report completed by Dr. Hanna, dated October 1, 2021, where it was concluded that the treatment plans were not reasonable and necessary as the applicant had obtained sufficient facility-based rehabilitation. It further relies on the Medical Physician Assessment Report completed by Dr. Kruger, dated July 7, 2023, where it was concluded that the applicant did not have any ongoing impairment from the subject accident and had reached maximal medical recovery.
37I find that the applicant has failed to provide medical evidence to support that the treatment plans are reasonable and necessary for the following reasons:
i. The applicant did not provide the clinical notes and records from Easy Health Centre where the applicant received treatment. Therefore, I have no record of what treatment the applicant received, the dates of treatment or the progress made. There are no records documenting the applicant’s level of recovery in order to assess the reasonableness and necessity of the treatment plans;
ii. The reports of Dr. Zaitlen, neurologist, deal with the applicant’s numb hands and pain. However, he does not connect the applicant’s impairments to the accident;
iii. The reports of Dr. Hanna and Dr. Kruger provide an independent and thorough review of the applicant’s presentation and the medical evidence provided. Dr. Hanna concluded that the treatment plans were not reasonable and necessary as the applicant had obtained sufficient facility-based rehabilitation. Dr. Kruger concluded that the applicant did not have any ongoing impairment from the subject accident and had reached maximal medical recovery. He also concluded that the treatment plans were not reasonable and necessary.
38I find that the applicant has not established that the treatment goals, as identified in the treatment plans are reasonable, were being met to a reasonable degree and the overall costs of achieving these goals were reasonable. I therefore find that the applicant has not proven that the treatment plans are reasonable and necessary and therefore the applicant is not entitled to payment of these treatment plans.
b) The applicant is not entitled to $2,200.00 for an occupational therapy assessment by Somatic Assessments and Treatment Centre submitted on July 13, 2021, denied July 26, 2021
39In addition to my finding on causation, I find that the treatment plan, dated July 13, 2021 recommending an attendant care assessment and Form 1, is not reasonable and necessary and therefore the applicant is not entitled to payment of this treatment plan.
40In dispute is the treatment plan, submitted on July 13, 2021, by Somatic Assessments and Treatment Centre, proposing $2,200.00 for an attendant care assessment and Form 1.
41The applicant has provided me with a copy of the treatment plan, dated July 13, 2021 and notes that the applicant suffers from sprain and strain of the thoracic spine, shoulder and lumbar spine pain. He provides a summary of the Psychological Report, prepared by psychologist Sharleen McDowall, at Somatic Assessments dated November 2, 2021. He notes that Dr. McDowall stated that the applicant has been unable to physically function for work and can only work reduced hours. He has difficulty completing chores, maintenance tasks and social life since the accident. Dr. McDowall notes in her progress report, dated February 25, 2022, that the applicant’s condition remains unstable as the ongoing pain and sleep problems impair his daily activity. She recommended further psychological treatment to address these impairments.
42The respondent relies on the Medical Physician Assessment Report completed by Dr. Hanna, dated October 1, 2021. Dr. Hanna concluded that the applicant sustained temporary soft-tissue injuries. Further, given that the applicant remained independent with his personal care, mobility tasks, grocery shopping, meal preparation, cooking, all indoor housekeeping chores, as well as gardening and grass cutting, the treatment plan for an attendant care assessment was not reasonable or necessary.
43I find that the applicant has not proven that the treatment plan recommending an attendant care assessment and Form 1 is reasonable and necessary for the following reasons:
i. Upon review of the treatment plan prepared by Somatic Assessments, the functional goal listed is to return to activities of normal living. Under goals in regard to the applicant’s impairment, “other” is marked off. No further specifics are provided within the plan. In addition, there are no notes or records provided by Somatic Assessments that would indicate the rationale for completion of this treatment plan to assist the Tribunal in determining if the treatment plan is reasonable and necessary;
ii. Upon review of Dr. McDowall’s psychological report, dated November 2, 2021, her only recommendation is a course of cognitive-behavioural therapy. There is no recommendation for attendant care or an occupational therapy assessment;
iii. Upon review of the clinical notes and records of Dr. Got, there is no indication that the applicant requires assistance with personal care, housekeeping or activities of daily living;
iv. Dr. Hanna’s report dated October 1, 2021, concluded that given the applicant remained independent with his personal care, mobility tasks, grocery shopping, meal preparation, cooking, all indoor housekeeping chores, as well as gardening and grass cutting, the treatment plan for an attendant care assessment and Form 1 was not reasonable or necessary.
44I find that the applicant has not established that the treatment goals, as identified in the treatment plan are reasonable, were being met to a reasonable degree and the overall costs of achieving these goals were reasonable. I therefore find that the applicant has not established that the treatment plan is reasonable and necessary and therefore the applicant is not entitled to payment of this treatment plan.
Interest
45Interest 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 plans, no interest is payable by the respondent.
Award
46The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant is not entitled to an award under s. 10 of Reg. 664, because there is no evidence that the respondent unreasonably withheld or delayed payment of benefits.
ORDER
47For the reasons outlined above, I find:
i. The applicant is not entitled to the treatment plans submitted June 4, 2021, September 5, 2021 or July 13, 2021;
ii. The applicant is not entitled to interest;
iii. The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
Released: October 15, 2024
Melanie Malach
Adjudicator