17-006138 v Aviva Insurance Canada, 2018 CanLII 112127

Date: 2018-08-21

Tribunal File Number: 17-006138/AABS

Case Name: 17-006138 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:

Applicant

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

Applicant: Self-represented

Counsel for the Respondent: Jessica Green

HEARD in Writing: June 18, 2018

OVERVIEW

1The applicant was involved in a motor vehicle accident on May 2, 2013, and sought psychological services and chiropractic treatment pursuant to the statutory Accident Benefits Schedule-Effective September 1, 2010. (“the Schedule”)

2The applicant was denied the benefits as claimed, by the respondent and submitted an application to the license appeal Tribunal.(the “Tribunal”

ISSUES IN DISPUTE

3The issues in dispute are as follows:

i. Is the applicant entitled to receive a medical benefit for psychological services performed by Promed Rehab Clinic, in the amount of $2,200.00 for a treatment plan submitted on May 6, 2017?

ii. Is the applicant entitled to receive a medical benefit for chiropractic services performed by Promed Rehab Clinic, in the amount of $1765.20, for a treatment plan submitted on May 6, 2017?

iii. Is either party entitled to costs?

RESULTS

4The applicant’s claim to receive a medical benefit for psychological services in the amount of $2,200.00 is dismissed.

5The applicant’s claim to receive a medical benefit for chiropractic services in the amount of $1,765.20 is dismissed.

6Neither party is entitled to costs.

BACKGROUND

7The applicant was involved in a collision on May 2, 2013, where the accident was minor, and $1,418.04 was paid towards the property damage of the vehicle.¹

8The applicant claims that after the accident he commenced physical therapy, psychotherapy, and sees a chronic pain physician, Dr. Kevin Rod, for pain in the right shoulder and lower back. He had been seeing Dr. Rod prior to the accident at issue. He claims that he has driving anxiety and has not resumed driving after the accident. The applicant claims that he has psychological impairments and needs further assessments to determine those impairments, so that appropriate treatment can be provided. The applicant also complained about injury to his left wrist.

9The applicant was involved in previous and subsequent motor vehicle accidents on the following dates: September 12, 2010; March 27, 2011; March 31, 2011; March 31, 2012; May 1, 2014, and November 22, 2015.²

10The applicant, between May 14, 2013, and May 6, 2017, did not claim any medical or rehabilitation benefits from the respondent, but did make medical claims for his subsequent accidents.^{3 4} The applicant’s prescription summary from September 13, 2009, to October 18, 2017, shows no medication prescribed, prior to September 30, 2016, and after that on October 30, 2017, for Cialis.

11The applicant attended his family doctor, Dr. N. Gerges, on May 8, 2013, who noted in his records that the applicant had soft tissue injuries.⁵

12The applicant complained of right shoulder and cervical and lumbar pain, but these were pre-existing since his 2010 accident and noted in the medical reports following his two accidents in 2011.^{6 7 8}

13An MRI conducted on October 19, 2011, revealed a SLAP lesion (tear) and mild supraspinatus tendinopathy, with bursal sided fraying in his right shoulder.⁹ An MRI on October 19, 2013, revealed the same findings.¹⁰ An ultrasound on October 6, 2014, showed that the tear had healed.¹¹

14The applicant had reported to Dr. Rajaratnam, at the Fracture Clinic at [the hospital], on November 30, 2015, that he sustained his initial rotator cuff and left wrist injuries from the 2014 accident.¹² The doctor noted at this time that the applicant indicated that the right shoulder pain “has been there since the 2014 accident.” The doctor also noted in his clinical notes relating to the complaint of the right shoulder and left wrist, that the applicant was ”very vague with pain focus, functional overlay, and possible secondary gain”.¹³ Dr. Rajaratnam, in a follow up visit on December 7, 2015 noted that there” was a very obvious case of secondary gain with the applicant.”¹⁴

15The applicant attended a section 44 assessment with Dr. A. Syed, a psychologist, on October 31, 2017. At this assessment, the applicant: did not disclose that he was employed as a paralegal; indicated that he had not driven since the accident when his driver record search shows on four different occasions between 2016-2017 that he had been pulled over and charged with driving offences¹⁵; stated that he was not involved in any previous accidents and in only one subsequent accident.¹⁶

16Dr. Syed found no objective psychometric test result to substantiate a psychological impairment.

17Dr. Mark Goldstein (physiatrist), in a section 44 examination on June 28, 2017, diagnosed the applicant with soft tissue injury. At this meeting the applicant reported one previous accident in 2011, and reported no accidents after that.¹⁷

18Both Dr. Goldstein and Dr. Syed in their original and addendum reports found the OCF-18’s at issue, not reasonable or necessary.^{18 19}

19The applicant was ordered by the adjudicator on April 3, 2018 to produce by May 14, 2018: the complete accident benefits file from the two accidents from 2011, one accident from 2014 and the accident from 2015; the clinical notes and records from all treatment providers visited from one year prior to the motor vehicle accident in issue to 2018; the applicant’s decoded OHIP summary from one year prior to this motor vehicle accident to 2018; the motor vehicle accident report for the motor vehicle accident in issue and the ambulance report for this motor vehicle accident.

20The applicant failed to comply with the order as he only provided the authorizations to the third parties, two days before the May 14, 2018, which made it impossible for the applicant to acquire the requested documentation by the respondent.

ANALYSIS

Benefit Claims

21Section 15(1) of the Schedule requires all medical benefits to be paid for, to be reasonable and necessary.

22The onus is on the applicant to prove as a result of the accident, the alleged impairments sustained in the accident and the reasonableness of the proposed treatment. Also, the insurers are not expected to fund ineffective treatment.^{20 21}

23I find that a lot of the medical complaints raised by the applicant are not connected to the accident that occurred on May 2, 2013, but are connected to previous and subsequent accidents. The tear in the right shoulder occurred in 2011, but was healed by 2014. The complaint relating to left wrist was a result of his November 22, 2014, accident, and not a result of the accident at issue.

24I find that the applicant, in his self-reporting to Dr. Syed and to Dr.Goldstein was not forthcoming on all of the evidence to enable the doctors to obtain a full understanding of his injuries resulting from the 2013 accident. I do accept however, their conclusions of no psychological impairment and soft tissue injury.

25I find that the applicant returned the consents for third party information late, preventing the respondent from obtaining a decoded OHIP summary and treatment records as ordered. This information is important to show: what treatment the applicant has had; is having as a result of the other accidents; that the benefits currently claimed are not duplicated or ineffective, and are therefore reasonable and necessary. The disclosure process has been circumvented, which is unfair to the respondent.

26The information is important to show what treatment the applicant has received and is currently receiving as a result of the other accidents, and that the benefits currently claimed are not duplicated or ineffective, and are therefore reasonable and necessary.

27I find that the applicant has not provided sufficient evidence to show that the proposed treatment plans are reasonable and necessary, and that the injuries they proposed to treat, resulted from the 2013 accident.

28I find that there is no evidence before me to take the injuries out of MIG or that the applicant’s pre-existing injuries (which are not clarified as still existing) were exacerbated by the May 3, 2013 accident, which would prevent the applicant from achieving maximal recovery if the applicant is subject to the MIG.²²

COSTS

29Rule 19 ²³ allows the Tribunal to award costs where a party in a proceeding has acted “unreasonably, frivolously, vexatiously or in bad faith.”

30The applicant has acted disrespectfully and unprofessionally as found by the previous adjudicator at the dispute resolution process, which is different than frivolously and vexatious during the process. The Rule was created to address the process from the beginning to the end, where for example, scheduled time has been wasted, or witnesses called, unnecessarily etc.

31There is no evidence before me to reach the high standard required for an order for costs.

Released: August 21, 2018

___________________________

Robert Watt, Adjudicator

Footnotes

1. 1Property Damage Documents Schedule A Tab3
2. 2AutoPlus Report page 4 under claims Schedule A Tab 4
3. 3Ibid 2
4. 4Initial intake form, Ravine health Centre, dated May 21, 2014, Schedule A, Tab 6 page 20f 8 and page 3 of 8
5. 5Clinical notes and records of Dr. Gerges dated May 8, 2013, Schedule A, Tab 5
6. 6Clinical Notes and Records from Dr. Gerges Schedule A, Tab11
7. 7Ambulance Call Report and ER dated March 27, 2011,. Schedule A Tab 12
8. 8Humber River Regional Hospital Clinic Report dated April 1, 2011, Schedule A Tab 12
9. 9Humber River Regional Hospital MRI of the Right Shoulder dated October 19, 2011 April 1, 21011 Schedule A Tab 15
10. 10William Osler Health System Diagnostic Imaging Report dated October 19, , 2013 Schedule A Tab 15
11. 11MIC Medical Imaging Ultrasound dated October 6, 2014 Schedule A Tab 16
12. 12Consultation Report dated November 30, 2015 Dr. Rajaratnam, Hamilton general hospital, Schedule A, Tab 9 (last paragraph)
13. 13Consultation Report dated November 30, 2015 Hamilton General Hospital Schedule A tab 9
14. 14Consultation Report dated December 7, 2015 Hamilton General Hospital Schedule A tab 10
15. 155 year Driver Record Search dated October 31, 2017, Schedule A Tab 30
16. 16Section 44 Psychology assessment Dr. Syed dated November 16, 2017 Schedule A Tab 29, pages9,10,11,15
17. 17S44 Medical assessment , Dr. Mark Goldstein, dated November 16, 2017 Schedule A Tab 32
18. 18S.44 Physician Addendum Report, Dr. Mark Goldstein dated December 6, 2017. Schedule A Tab 33 p.3
19. 19S.44 44 Psychological Addendum Report Dr. A. Syed, dated December 6, 2017 Schedule A Tab 34 p 7
20. 20General accident Assurance Co. of Canada v. Violi, FSCO Appeal P99-00047 (September 27, 2000, Director’s Delegate Draper.)
21. 2116-000940 v Certas Direct Insurance Company, 2016 CanLII 96161 (ON LAT) Schedule B Tab 2 page 12
22. 22Schedule sect 18.
23. 23All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)```