Date: 2017-12-15

Tribunal File Number: 17-000746/AABS

Case Name: 17-000746 v Aviva 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:

A. K.

Applicant

and

Aviva Canada

Respondent

DECISION AND ORDER

Adjudicator: Marisa Victor

Appearances:

For the Applicant: Andrej Rondas, paralegal

For the Respondent: Candace Mak, counsel

Written Hearing: June 5, 2017

REASONS FOR DECISION AND ORDER:

I. Introduction

1The applicant was driving his motor vehicle on August 15, 2015 in Scarborough, Ontario. He was pulling out of a gas station and attempting to make a left-handed turn over three lanes of highway when his vehicle was struck by another car on his front driver side.

2The applicant claimed he was injured as a result of the accident. He reported that no ambulance was called, he did not go to hospital, nor did he visit his family doctor. The applicant reported that he began to feel symptoms several days after the accident. He began physiotherapy several months later.

3The applicant applied for accident benefits from the respondent. He submitted requests for accident benefit coverage for two chiropractic treatment plans, and an attendant care assessment. These plans were all denied by the respondent. The applicant appeals those decisions.

4I find that the chiropractic plans and the attendant care assessment plans applied for were not reasonable and necessary for the applicant’s treatment or rehabilitation. The applicant is not entitled to the benefits applied for and is not entitled to any interest.

II. Issues

5The issues are:

a. Are the chiropractic treatments plans reasonable and necessary for the applicant’s treatment or rehabilitation?

i. The request for a chiropractic treatment plan costing $2,568.80 recommended by Midland Wellness, dated June 22, 2016, denied by the respondent on September 9, 2016.

ii. The request for a chiropractic treatment plan costing $2,324.19 recommended by Midland Wellness, dated December 28, 2016, denied by the respondent January 9, 2017

b. Is the attendant care assessment reasonable and necessary for the applicant’s treatment or rehabilitation?

i. The request for an attendant care needs assessment costing $1,645.00 recommended by Midland Wellness, dated June 22, 2016, denied by the respondent on October 28, 2016.

c. If the applicant is entitled to any of the above, is the applicant entitled to receive interest on the overdue amounts?

III. Evidence and Analysis

A. The chiropractic treatment plans are not reasonable and necessary for the applicant’s treatment or rehabilitation

6Under sections 14, 15 and 38 of the Schedule, the insurer is liable to pay for reasonable and necessary medical and rehabilitation benefits. The onus is on the applicant to prove on a balance of probabilities that the treatment and assessment plans claimed are reasonable and necessary.

7The applicant submits that the chiropractic treatment plans should be approved as they are helping the applicant recover from his injuries.

8The applicant submitted that he suffers from chronic pain throughout his body, strong headaches daily and trouble sleeping. He submitted that he experiences pain in his neck, shoulders, pain in the collar bone area and pain in his ribs, upper, mid and lower back. The applicant further submits that his psychological issues are caused by ongoing physical pain. He also submits that along with job changes, he has had significant life changes and that he no longer engages in social activities to the same extent as he suffers from fatigue and lack of energy.

9The applicant supported his application with two medical documents:

a. A disability certificate completed by Dr. Doekiesingh, chiropractor, completed on December 2, 2015; and

b. A psychological assessment completed by Dr. Pilowsky, psychologist.

10Dr. Doekiesingh, listed the following physical injuries in the disability certificate:

a. Sprain and strain of shoulder joint

b. Sprain and strain of lumbar spine

c. Sprain and strain of sacroiliac joint

d. Headache

e. Dizziness and giddiness

f. Malaise and fatigue

g. Nonorganic sleep disorders

11Dr. Doekiesingh stated that given the applicant’s pain level and decrease in range of movement he is expected to have difficulty with housekeeping and home maintenance for more than 12 weeks.

12The respondent submits that the applicant has failed to provide medical documentation supporting his position that the chiropractic treatments are reasonable and necessary. The respondent also submits that the applicant has submitted no medical documentation to support a diagnosis of chronic pain. The respondent argues that the report of Dr. Pilowsky, psychologist, is not evidence that can support the reasonableness or necessity of the chiropractic plans.

13The respondent relies on the following evidence:

a. The evidence of Dr. Mula, medical examiner, who conducted an independent examination of the applicant on behalf of the respondent. The date of the report was August 26, 2016.

b. The evidence of Dr. Balsky, chiropractor, who conducted an independent examination of the applicant on behalf of the respondent. His report is dated February 10, 2017.

14Dr. Mula diagnosed the applicant with myofascial strain of the neck, left shoulder, and mid back, lumbosacral myofascial strain and tension headaches. He concluded that the applicant had achieved a good level of recovery and that further chiropractic treatment were unlikely to lead to further improvement.

15Dr. Balsky found that the applicant no longer demonstrated objective signs of physical impairment due to the accident. He stated that further treatment was not necessary given the nature of the uncomplicated soft tissue injuries the applicant suffered in the accident. Dr. Balsky stated that given the applicant’s experience and education with exercise, he should be able to manage himself independently.

16I find that the applicant has failed to provide enough evidence to show that the chiropractic treatments are reasonable and necessary. The disability certificate supports the fact that the applicant suffered physical injuries but does not provide information regarding his state of recovery at the time the chiropractic plans were submitted. In addition, the applicant’s submission that he has chronic pain is unsupported by any medical evidence. I find that the psychological report by Dr. Pilowsky is not relevant to the denied plans. The applicant has not met the onus placed upon him.

17The respondent did, however, provide relevant medical evidence to support its submissions that the chiropractic plans were not reasonable and necessary. Both the reports of Dr. Mula and Dr. Balsky found that further treatment was not reasonable and necessary considering the applicant’s injuries and recovery to date. I accept this evidence.

18The applicant has failed to show that the denied plans are reasonable and necessary. Therefore, I confirm the denials.

B. The attendant care assessment plan is not reasonable and necessary for the applicant’s treatment of rehabilitation

19Under section 14, 15 and 38 of the Schedule, the insurer is liable to pay for reasonable and necessary assessments. Again, the onus is on the applicant to show that the assessment for attendant care is reasonable and necessary.

20The only relevant medical evidence that the applicant submitted was the disability certificate filled out by his chiropractor six months before the request for an attendant care assessment. The disability certificate states that given the applicant’s pain level and decrease in range of movement, he is expected to have difficulty with housekeeping and home maintenance for more than 12 weeks.

21The applicant submits that the attendant care needs assessment would help determine how much attendant care the applicant would require.

22The respondent’s evidence again consisted of the evidence of Dr. Mula and Dr. Balsky.

23Dr. Mula reported that the applicant had advised that he was functionally independent. He had returned to work and reported that he was independent with regard to personal hygiene and grooming, managing money and driving. Dr. Mula also stated that the accident-related injuries would not be expected to result in the need for attendant care.

24Dr. Mula also conducted a paper review file of the applicant’s medical brief. He produced this report on October 17, 2016. Dr. Mula stated in this report that he did not find the attendant care assessment necessary and reasonable based on his review of the documents.

25The respondent also relies on Dr. Balsky’s report where the applicant also reported functional independence.

26The respondent submits that the psychological report of Dr. Pilowsky is not evidence that can support the reasonableness or necessity of the need for an attendant care assessment.

27I find that again the applicant has failed to meet the burden of proof placed upon him. The disability certificate provides insufficient evidence of the need for attendant care and was quite dated. In addition, I find it persuasive that during the respondents’ independent examinations, the applicant reported that he was functionally independent negating the need for attendant care.

28The denial of the attendant care assessment is confirmed.

C. The applicant entitled to receive interest on the overdue amounts?

29Since I have found that the applicant was not entitled to the chiropractic treatment plans or the attendant care assessment, there is no interest payable.

IV. Decision and Order

30I order the following:

31The applicant is not entitled to the chiropractic treatments plans.

32The applicant is not entitled to the attendant care assessment.

33The applicant is not entitled to any interest payments.

34The application is dismissed.