Tribunal File Number: 17-001040/AABS
Case Name: 17-001040 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: Eleanor White
APPEARANCES:
For the Applicant: Maria Mikhailitchenko, counsel
For the Respondent: Suzanne Clarke, counsel
HEARD: Written Hearing: June 22, 2017
OVERVIEW
1The applicant, [applicant], was involved in an automobile accident on June 25, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The respondent was initially found to sustain only minor injuries, as defined in the Schedule, but was eventually excluded from the limitation of coverage under the Minor Injury Guideline (MIG).
3After the applicant incurred multiple treatment plans for therapeutic services, the respondent denied further treatment plans. The applicant attended various Insurer Examinations (IEs) at the respondent’s request and subsequently, the insurer maintained its denial of the benefits. As a result, the applicant appealed the denial to the Tribunal.
4The respondent found that the Treatment Plans submitted were not consistent with the recommendations made in the insurer’s assessor’s reports for greater emphasis on independent exercise rather than facility-based passive treatment. Additionally, the respondent found insufficient evidence to support the recommendation for both the chronic pain and the neurological assessments.
5The applicant did not agree with the respondent’s position and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, and the parties were unable to resolve the issues. The matter then proceeded to this written Hearing to determine the following issues in dispute.
ISSUES IN DISPUTE
- Is the applicant entitled to receive the following medical benefits recommended by Way to Health Clinic, in chronological order:
a. Chiropractic and massage services in the amount of $753.76 submitted on January 23, 2015 and denied on December 30, 2015 by the respondent,
b. Chiropractic services in the amount of $1,868.74 submitted on February 18, 2015 and denied on June 2, 2015 by the respondent,
c. Chiropractic services in the amount of $1,716.58 submitted on June 8, 2015 and denied on August 26, 2015 by the respondent, and
d. Chiropractic, massage and active therapy services in the amount of $1,613.63 submitted on August 5, 2015 and denied by the insurer on September 24, 2015.
Is the applicant entitled to the cost of an examination for a neurological assessment in the amount of $1,980.00, submitted by Alliance Diagnostics on March 10, 2016 and denied by the respondent on September 19, 2016
Is the applicant entitled to the cost of an examination for a chronic pain assessment in the amount of $1.950.80, submitted by Way to Health Clinic on March 18, 2016 and denied by the respondent on January 24, 2017?
Is the applicant entitled to interest on overdue benefits under section 51 of the Schedule?
RESULTS
6I find that the applicant is entitled to the two treatment plans listed above as Issue 1 (a) and 1 (b), dated as submitted on January 23, 2015 and February 18, 2015, respectively
7I find that the applicant is not entitled to the remaining treatment plans listed above as Issues 1 (c) and 1 (d), dated as submitted on June 8, 2015 and September 24, 2015, respectively.
8I find that the applicant is entitled to the cost of examination for chronic pain, submitted on March 8, 2016.
9I find that the applicant is not entitled to the cost of examination for a neurological assessment.
10The payment of interest for incurred and ordered treatment plans is payable under section 51 of the Schedule.
ANALYSIS
11An insurer is liable to pay the medical and rehabilitation benefits on behalf of an insured person who sustains impairment as a result of an accident in accordance with the Schedule. Section 15 (1) includes, among other expenses, those for medical, chiropractic, and physiotherapy services, which are in dispute in this application. The same section specifies that the medical benefits must be reasonable and necessary expenses incurred as a result of the accident. In viewing the issues in dispute, I must decide if these services are reasonable and necessary and whether or not the service has been incurred as a result of the accident.
12I find that the provision of ongoing facility-based passive care, as recommended in issues 1(a) and 1(b) is reasonable and necessary because it is supported by the ongoing pain, self-reported by the applicant and her request to resume care from the service provider of her choice. However, the course of care is not providing continued improvement; again, self-reported by the applicant. The IE assessors acknowledge the applicant’s report of pain and agree that continued passive care is not recommended, instead suggesting remedies that concentrate more on fitness and coping skills for