S. Y. v. Aviva General Insurance Company, 2017 CanLII 63623

Date: 2017-09-25

Tribunal File Number: 16-004549/AABS

Case Name: 16-004549 v Aviva General Insurance Company

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:

S. Y.

Applicant

And

Aviva General Insurance Company (formerly RBC General Insurance Company)

Respondent

DECISION

Adjudicator: Anna Truong

Appearances: Murad Huseynov, Paralegal for the Applicant Samantha Mason, Counsel for the Respondent

Heard in writing on: June 29, 2017

OVERVIEW

1S.Y. (the “applicant”) was involved in an automobile accident on July 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), which were denied by the respondent.

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

3The Order dated April 5, 2017 outlines the following issues to be decided:

1. Is the applicant entitled to receive the following medical benefits:

a. Treatment plan dated July 18, 2014, in the amount of $2,796.18 for chiropractic services, recommended by Trillium Rehab Centre Inc.?

b. Treatment plan dated May 4, 2015, in the amount of $1,491.01 for chiropractic services, recommended by Trillium Rehab Centre Inc.?

c. Treatment plan dated February 22, 2016, in the amount of $1,331.67 for chiropractic services, recommended by Trillium Rehab Centre Inc.?

d. Treatment plan dated September 23, 2015, in the amount of $1,389.86 for chiropractic services, recommended by Trillium Rehab Centre Inc.?

e. A partially approved treatment plan dated December 15, 2014, in the amount of $167.75 ($1,382.75 claimed less $1,215.00 approved) for chiropractic services, recommended by Verity Medical Assessments Inc.?

f. Treatment plan dated October 5, 2016, in the amount of $2,186.67 for chiropractic services, recommended by Trillium Rehab Centre Inc.?

2. Is the applicant entitled the cost of a psychological assessment in the amount of $304.90 ($2,000.00 claimed less $1,696.10 approved), recommended by Verity Medical Assessments Inc. in a treatment plan dated July 9, 2015?

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

4In her submissions received by the Tribunal on May 24, 2017, the applicant did not include issues two and three in her list of issues currently in dispute. The applicant did not make any arguments with respect to them. However, she does request interest be paid.

5The respondent, in its responding submissions, concedes the treatment and assessment plans in issues e. and f. have been approved and therefore are no longer in dispute.

RESULT

6Based on the totality of the evidence before me, I find:

1. The applicant is entitled to receive a medical benefit outlined in the treatment plans dated December 15, 2014, and October 5, 2016. The applicant is not entitled to the rest of the treatment plans in dispute.

2. The applicant is not entitled to the cost of the psychological assessment.

3. The applicant is entitled to any applicable interest.

ANALYSIS

7The applicant had the opportunity to make a reply to the respondent’s submissions. However, she did not submit one. The only evidence submitted by the parties is documentary evidence. I have considered all of the submissions and documents the parties have drawn my attention to. I have summarized what I find relevant to my determination below.

8Section 14 and 15 of the Schedule provides an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.

(A) Treatment Plan Dated July 18, 2014

9The respondent raised a preliminary issue in its submissions with respect to the treatment plan dated July 18, 2014. The respondent submits the treatment plan is statute-barred and not payable, because the applicant brought an Application to the Tribunal more than two years after the date of denial contrary to section 56(1) of the Schedule.

10This issue was not included in the Case Conference Order dated April 5, 2017. However, a statute of limitation argument can be raised at any time as a defence. Furthermore, as mentioned above, the applicant had an opportunity to submit a reply, in which she could have made submissions with respect to this defence, but chose not to. Therefore, I am satisfied the applicant had proper notice and an opportunity to make submissions on this issue, so I will decide whether or not the treatment plan dated July 18, 2014 is statute-barred.

11Section 56(1) of the Schedule states proceedings under section 280 shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The treatment plan dated July 18, 2014, was denied by the insurer in an Explanation of Benefits dated August 13, 2014. The Tribunal received the applicant’s Application on December 19, 2016. The time between the date of denial (“DOD”) and the date of application (“DOA”) to the Tribunal is more than two years.

12As mentioned above, the applicant made no submissions with respect to the limitation period. Having no evidence to the contrary, I find the DOD of this treatment plan is August 13, 2014 and the DOA is December 19, 2016, which is approximately four months over the two year limitation period. Therefore, I find the treatment plan dated July 18, 2014 is not payable, because it is statute-barred.

(B) Treatment Plan Dated May 4, 2015

13The applicant did not submit this treatment plan as part of the hearing record. From the rest of the file, I have determined this treatment plan consists of massage, transcutaneous electrical nerve stimulation (TENS), and chiropractic therapy. The records the applicant pointed to in her submissions do not support these treatments as being reasonable and necessary.

14The applicant submits she continues to “experience pain in her right shoulder, wrist, and back.” She pointed to an MRI of her right shoulder dated December 27, 2014, which found tendinosis, a partial tear and mild joint arthrosis. These are predominately minor injuries. The applicant also pointed to the X-ray of her shoulder and back dated August 9, 2014. Her shoulder was unremarkable and her spine only showed disc degeneration, which is not abnormal given her age. None of the diagnostic imaging supports her need for ongoing treatment.

15None of the clinical notes and records of Dr. Sequeira the applicant draws my attention to support the applicant requires further physical treatment. Dr. Sequeira’s note of February 18, 2015, states “home physio”, which does not support the need for further facility-based physical treatment. While Dr. Sequeira’s note dated June 1, 2015, indicates the applicant is still experiencing mid-back and right shoulder pain, Dr. Sequeira notes physio is only “slightly helpful”. Furthermore, Dr. Sequeira does not recommend further physical treatments in his clinical notes and records. Therefore, the clinical notes and records of Dr. Sequeira do not support the treatment plan in dispute as being reasonable and necessary.

16In the respondent’s Orthopaedic Assessment Report dated October 26, 2014, Dr. Osinga did not identify any musculoskeletal findings to support ongoing accident related impairment at the cervical spine, right shoulder, or lower back. He concluded notwithstanding the pain, the applicant was at or near maximum medical recovery. In his Paper Review Report dated May 28, 2015, he opined the treatment plan of May 4, 2015 was not reasonable or necessary.

17None of the medical records the applicant submitted support her ongoing need for physical treatment. Furthermore, the applicant has returned to work as a dietary aide, which is a physically demanding job. Therefore, based on the evidence before me, the applicant has not met her onus of proving this treatment plan is reasonable and necessary.

(C) & (D) Treatment Plan Dated February 22, 2016, and September 23, 2015

18The applicant did not submit any contemporaneous medical evidence to support her entitlement to these treatment plans. The most recent medical record submitted was the clinical notes and records of Dr. Sequeira, whose last entry is dated July 7, 2015. The most recent entry the applicant points me to is Dr. Sequeira’s entry dated June 1, 2015. The applicant has not adduced any medical evidence to show what her condition was at the time the treatment plans were proposed. There is no evidence before me that deals with the applicant’s condition at the time the treatment plans were proposed, except for the treatment plans themselves.

19A treatment plan by itself is not enough to prove the proposed treatment is reasonable and necessary. There must be corroborating contemporaneous objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. The applicant has not adduced this evidence.

20The only evidence submitted from 2016 is a letter from Trillium Rehab Centre dated November 25, 2016, which indicates the applicant has returned to treatment. This letter tells me nothing about why she is seeking treatment and how much treatment she has been receiving. This letter does not indicate the treatment is for accident-related injuries. The fact that the applicant is currently receiving treatment is not enough evidence to prove the treatment plans in dispute are reasonable and necessary. Furthermore, as mentioned above under the treatment plan dated May 14, 2015, the past records do not support the need for ongoing physical treatment. Therefore, unless there are new medical records indicating a change in her condition, I find these treatment plans are not reasonable and necessary.

21Based on the evidence before me, I find the applicant has not proven on a balance of probabilities the treatment plans are reasonable and necessary. Therefore, the treatment plans dated February 22, 2016, and September 23, 2015 are not payable.

(E) & (F) Treatment Plans Dated December 15, 2014, and October 5, 2016

22As mentioned above, the respondent conceded the treatment plans dated December 15, 2014, and October 5, 2016, have been approved and are no longer in dispute. Therefore, these treatment plans are payable.

Psychological Assessment Plan Dated July 9, 2015

23The applicant claims $304.90 for the difference between the $1,696.10 approved and the $2,000 claimed in the assessment plan dated July 9, 2015 for a psychological assessment. As mentioned above, the applicant did not include this assessment as an issue in dispute in her submissions. The applicant made no submissions with respect to this assessment and did not include a copy of the assessment plan. In the absence of submissions from the applicant as to why the excess of $304.90 is payable, I cannot make a finding in her favour. Therefore, $304.90, the balance of the psychological assessment, is not payable.

Interest

24Since only the two approved treatment plans are payable, interest is only applicable if there is any overdue payment of benefits. Neither party made any submissions with respect to whether or not these treatment plans have been incurred. Interest will only be payable if any part of the two approved treatment plans have been incurred and not paid. Therefore, I will leave it to the parties to sort out any applicable interest.

CONCLUSION

25For the reasons outlined above, I find the applicant is entitled to the treatment plans dated December 15, 2014, and October 5, 2016 and any applicable interest. The applicant is not entitled to any of the other issues in dispute.