Tribunal File Number: 16-001031/AABS
Case Name: 16-001031 v Aviva Insurance Canada
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:
J. J.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Jeanie Theoharis
Written Submissions by:
Counsel for the Applicant: Rajiv Kapoor
Counsel for the Respondent: Elka Dadmand
Heard in writing: November 29, 2016
REASONS FOR DECISION AND ORDER
- This is an Application by the applicant to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
FACTS
The applicant was involved in two motor vehicle accidents. The first accident was on February 7, 2014, and the second on March 21, 2014. On August 10, 2014, the applicant suffered a heart attack.
The treatment plan in question is dated December 4, 2015, and was completed by Dr. Justin Grey, chiropractor from Assess Medical Diagnostics Inc. The doctor recommends various goods and services to assist the applicant reduce his pain, and increase both his range of motion and strength. The items noted were a TENS unit, 2 aqua pillows, hot/cold gel pack and support activity instruction. On May 17, 2016, the respondent denied the treatment plan based on an insurer’s examination report from Dr. Mark Goldstein, general practitioner, dated May 11, 2016. The respondent asserts that the treatment plan is not reasonable and necessary and that the proposed treatment is to address the applicant’s injuries suffered from the heart attack, and not the motor vehicle accident.
PRELIMINARY ISSUE
The respondent submits that the applicant did not comply with Rule 9 of the Licence Appeal Tribunal Rules of Practice and Procedure because he failed to disclose documents that he relies upon at least 10 days before the hearing.
For the following reasons, I permitted the documents to be entered as evidence at the hearing.
Rule 9.2 of the Tribunal’s Rules mandates that at least 10 days prior to a hearing, a party shall provide disclosure to the other party of the documents the party intends to present as evidence at the hearing. The Tribunal may exclude evidence that does not comply with the disclosure rules from being relied upon at the hearing.
In the present case, the respondent asserts that they received documents on October 18, 2016, and October 20, 2016. The respondent asserts that the documents should have been made available to them 10 days prior to the applicant serving and filing his written submissions on October 18th and 20th.
The Rule requires the disclosure of documents to be exchanged at least 10 days prior to the hearing, not 10 days prior to the service and filing of written submissions. Pursuant to the Tribunal’s Amended Order dated September 22, 2016, and issued on October 12, 2016, the hearing of this application was scheduled for November 29, 2016. I find the respondent had ample time to respond to the applicant’s written submissions. The respondent’s response was due November 17, 2016. Therefore, I find the applicant’s disclosure of the documents by October 20, 2016, satisfies Rule 9. I find the documents were disclosed in accordance to the Rules of Practice and Procedure and I find the documents can be relied upon by the applicant.
ISSUES
- The benefit in dispute is:
(i) Is the applicant entitled to receive a medical benefit for chiropractic services /assistive devices recommended by Dr. Justin Guy, chiropractor, from Access Medical Diagnostics Inc. in the amount of $1,160.50, in a treatment plan dated December 4, 2015?
(ii) Is the applicant entitled to interest for the overdue payment regarding the claimed benefit?
APPLICATION OF LAW TO FACTS
An insurer, under to s. 14 of the Schedule, is liable to pay an insured person medical and rehabilitation benefits if the insured person has sustained an impairment as a result of an accident, and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the insured person as a result of the accident.
I find the treatment plan dated December 4, 2015, is reasonable and necessary.
The physical injuries and sequelae resulting from the motor vehicle accident are noted on the treatment plan as including tension-type headaches, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, injury of muscle and tendon at neck level, sprain and strain of thoracic spine and lumbar spine, lumbar region radiculopathy, and unspecified chest pain.
In addition to the applicant’s physical impairments, the treatment plan also indicates the applicant’s psychological impairments, including mixed anxiety and depressive disorder, nonorganic sleep disorders, and post-traumatic stress disorder.
The treatment plan indicates that the applicant’s impairments inhibit his ability to carry out the activities of his normal life. Dr. Guy noted on the treatment plan that “due to the significance of the applicant’s injuries, he has extreme difficulty in pushing, pulling, bending, sitting for a period over 20 minutes, standing from the sitting position. Client finds it almost impossible to complete everyday tasks such as getting dressed and eating. Assistive devices are being recommended to help assist in the client’s recovery”
Since the motor vehicle accident, the applicant is unable to work a 60 hour full-time work week as he did before the accident, and now works in a modified capacity and about 20-30 hours per week. Both Dr. Goldstein’s May 11, 2016, insurer’s examination report, and Dr. Guy’s Functional Abilities Evaluation report dated August 18, 2016, noted the applicant’s limited ability to work.
Dr. Mark Goldstein, in his insurer’s examination report dated May 11, 2016, observed the applicant had tenderness, limited range of motion and pain. Dr. Goldstein diagnosed the applicant with having cervical strain, and headache associated to whiplash injury. He noted the applicant sustained an impairment as a result of the accident and presented with some “decreased sensation in the right upper extremity” and “with pain and muscular palpation and range of motion limitations, again due to pain.” Dr. Goldstein’s findings are indicative of the injuries sustained by the applicant.
Moreover, Dr. Rhonda Nemeth, in her insurer’s examination psychologist assessment dated January 29, 2015, indicates that as a result of the February 7, 2014, motor vehicle accident the applicant had symptoms meeting the criteria for “post-concussion syndrome” and the “symptoms are consistent with a head injury and the sequelae of limitations due to pain (e.g., depressed mood) and driving anxiety.” Dr. Nemeth indicated that the applicant’s impairments were exacerbated by the second motor vehicle accident. Dr. Nemeth’s findings are also indicative of the applicant’s injuries sustained as a result of the motor vehicle accident.
The applicant has limitations in engaging in pushing, pulling, bending and everyday tasks. The assistive devices are meant to assist in the client’s recovery, as confirmed in Dr. Justin Guy’s Functional Abilities Evaluation Report dated August 18, 2016. The report indicates that the applicant’s range of motion was limited, had neck pain when reaching, was unable to kneel or crouch, and had neck and mid back pain when trying to lift a 20 lbs. object.
Dr. Guy also indicates that as a result of suffering impairments from the two motor vehicle accidents, the applicant ought to treat his impairments by using passive therapies combined with the use of assistive devices. Dr. Guy indicates that the assistive devices would be “most beneficial in helping the client prevent muscle stiffness, spasticity and improve his overall functional capacity.”
The type of treatment must be tailored to meet the rehabilitative goals of each individual, taking into account their impairments, and unique circumstances. In the present case, the applicant, having suffered a heart attack, requires treatment that can assist in his recovery, but also coincides with his current heart condition. He continues to suffer from pain, and maintains limitations in his range of motion, but also has a heart condition. Goals of the treatment plan, as noted on the plan, are to reduce his pain, and increase his range of motion.
I find the assistive devices as set out in the treatment plan are reasonable and necessary to treat the applicant’s impairments.
Interest
- I find that the applicant is entitled to interest as the medical benefit is payable. Interest will be payable on the applicable amount of benefits owed to the applicant to the date of this decision in accordance with the Schedule.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs as follows:
The applicant is entitled to receive a medical benefit in the amount of $1,160.50.
The applicant is entitled to interest for the overdue payment regarding the medical benefit, and the interest is payable to the date of this order in accordance with the Schedule.
Released: March 9, 2017
Jeanie Theoharis, Adjudicator