T. N. v. Aviva Insurance Canada, 2018 CanLII 13180

Date: 2018-01-31

Tribunal File Number: 17-002971/AABS

Case Name: 17-002971 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:

T. N.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Sevda Guliyeva

For the Respondent: Monica Pathak

Heard by way of a Written Hearing: October 19, 2017

Overview

1The applicant ("T.N.") was injured in an automobile accident on January 22, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent ("Aviva").

2T.N. made claims for medical benefits for chiropractic treatment. Aviva initially denied the benefits on the basis of an insurer's examination ("IE") which found that T.N.'s injuries were minor and therefore subject to the $3,500 treatment limit under the Minor Injury Guideline ("MIG").¹

3Aviva has since acknowledged T.N. is no longer under the MIG designation based on a psychological IE, which determined that T.N. suffered from depression, anxiety and cognitive impairment as a result of the accident, to the extent that her injuries do not fall within the definition of a "minor injury" under the Schedule.²

4As a result of the accident, T.N. sustained injuries to her neck, left shoulder/arm, and lower back. T.N. submits she still requires chiropractic treatment for her injuries because her recovery has been prolonged by her pre-existing lower back pain. T.N. also claims she has chronic pain disorder/syndrome, which was exacerbated by the subject accident.³

5The onus is on T.N to prove, on a balance of probabilities, that she is entitled to the benefits in dispute on the basis that the treatment is reasonable and necessary as a result of the accident.

6I find that T.N. has not provided persuasive evidence to support her position that the medical treatments she claims in this application are reasonable and necessary.

Issues in Dispute

(i) Is the applicant entitled to receive a medical benefit in the amount of $1,458.92 for chiropractic services recommended by Alexander Yu in a treatment plan submitted July 17, 2015, denied by the respondent on July 27, 2015?

(ii) Is the applicant entitled to receive a medical benefit in the amount of 1,215.20 for chiropractic services recommended by Alexander Yu in a treatment plan submitted September 16, 2015, denied by the respondent on September 24, 2015? Is the applicant entitled to receive a medical benefit in the amount of $1,763.66 for chiropractic services recommended by Alexander Yu in a treatment plan submitted October 27, 2015, denied by the respondent on November 3, 2015?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

(iv) Is the applicant entitled to costs under Rule 19.1 of the LAT Rules?

Result

(i) T.N. is not entitled to the treatment plans in dispute.

(ii) T.N. is not entitled to interest.

(iii) T.N. is not entitled to costs.

Analysis and Reasons

Are the treatments for chiropractic services reasonable and necessary?

7I find that T.N is not entitled to chiropractic services.

8Given that T.N.'s injuries are not predominantly minor, she is eligible for treatment up to $50,000.00 in medical and rehabilitation benefits.

9Under section 15 of the Schedule, the test is whether the treatment plans are reasonable and necessary.

10T.N. argues that the treatment plans are reasonable and necessary due to pre-existing lower back pain and chronic pain syndrome/disorder. As a result of her pre-existing impairment, T.N. submits that recovery from her accident-related injuries has been slow, requiring continued chiropractic treatment, which has reduced her pain.

11Aviva submits the treatment plans are not reasonable and necessary because, in the opinion of its medical assessors, T.N. has reached maximum medical recovery for her accident-related injuries and any further facility-based treatment for chiropractic treatment will not improve her condition.⁴

12In the treatment plans in dispute, Dr. Alexander Yu, Chiropractor, indicates "pain reduction, increase in strength, increased range of motion, return to activities of normal living" as the main goals. However, there is no objective medical evidence, such as a report of an assessment of T.N. by Dr. Yu, to support these treatment plans. Furthermore, T.N. has not provided additional objective evidence to support the need for further chiropractic treatment.

13On a visit to the Summerville Family Health Team on February 2, 2015, Dr. June Kingston, Family Physician, recommends T.N. "avoid chiro for neck pain". Between September 26, 2016 and November 14, 2016, T.N. receives several physiotherapy treatments from Physical Therapy One Mississauga, and notes improvement from the treatments. T.N. relies on additional evidence regarding visits to Dr. Kingston (clinical notes and records dated November 2, 2016) where Dr. Kingston notes T.N. receives physiotherapy, massage and some chiropractic treatment, however, recommends physiotherapy treatment. Further evidence points to Dr. Ruth Smith, Pain Specialist (January 13, 2017 visit), who also specifically recommends physiotherapy.

14I cannot find that further chiropractic treatment is reasonable and necessary when T.N.'s own treating health practitioners do not support or recommend chiropractic treatment.

15The presence of objective supporting evidence to justify further chiropractic treatment is important in determining whether the medical benefits in dispute are reasonable and necessary. In this case, T.N. has only provided treatment plans which set out multi-modal treatment recommendations.

16T.N. has not provided any other evidence in support of the chiropractic treatment.

17As a result, I cannot find that T.N. is entitled to the medical benefits in dispute. T.N. has not met her onus in explaining how these treatment plans meet the test of being reasonable and necessary. Consequently, I do not find the treatment plans reasonable and necessary.

Costs

18T.N. has asked for costs in this matter, without explanation or argument. I deny T.N.'s request for costs.

19Rule 19 sets out the basis and procedure for a request for costs. Rule 19.4 requires the requesting party to provide "[…] the particulars of the other party's conduct that are alleged to be unreasonable, frivolous, vexatious or in bath faith." T.N.'s request for costs is unsupported by any evidence or argument, and therefore fails to meet the requirements of Rule 19.4.

20T.N.'s cost request does not meet the requirements of Rule 19. Therefore, there is no basis for a cost award.

Conclusion:

21T.N. is not entitled to receive medical benefits for chiropractic services, recommended by Dr. Alexander Yu;

22T.N. is not entitled to interest on any overdue payment of benefits; and

23T.N. is not entitled to costs.

Footnotes

1. 1Dr. Bob Karabatsos, Orthopaedic Surgeon, report dated August 11, 2015 and addendum report dated September 23, 2015.
2. 2Dr. Amena Syed, Psychologist diagnosed T.N. with Adjustment Disorder with Mixed Anxiety and Depressed Mood, report dated June 24, 2015.
3. 3Dr. Dima Rozen, Chronic Pain Specialist, report dated July 12, 2017.
4. 4Dr. Bob Karabatsos, Orthopaedic Surgeon, report dated August 11, 2015 and addendum report dated September 23, 2015; Dr. G. Gelman, Physician, report dated November 5, 2015 and November 12, 2015.