Tribunal File Number: 17-006814/AABS
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:
G.N.K.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
Counsel for the Applicant: Jeton Memeti
Counsel for the Respondent: Britanny K. Tinslay
Heard in Writing on: May 7, 2018
OVERVIEW
1G.N.K. (“the applicant”) was involved in an automobile accident on July 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Tribunal when his claim for benefits was denied by Aviva (“the respondent”).
DISPUTED BENEFITS
2The issues to be decided by the Tribunal are:
Is the applicant entitled to receive a medical benefit in the amount of $8,856.00 for dental services recommended by [PCS] in a treatment plan submitted on August 15, 2017, and denied by the respondent on October 2, 2017?
Is the applicant entitled to interest on any overdue payments from the respondent?
Is the respondent liable to pay an award under Regulation 6642 (“the Regulation”) because it unreasonably withheld or delayed payments to the Applicant?
FINDINGS
3I find that the applicant has not proven his entitlement to the benefit he seeks: his application is denied. The question of payable interest is moot.
4The respondent is not liable to pay an award under the Regulation.
REASONS
5The applicant claims that he sustained broken teeth as the result of the accident. Teeth are numbered by dentists and the teeth broken are #24 and #44.
6The respondent claims that the applicant sustained no dental injuries in the accident.
7Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident.
8Section 15 of the Schedule provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
9If I find that the injuries for which the applicant seeks medical benefits for treatment, including medications, were not sustained as a result of the accident, I will not need to determine whether the disputed treatment plans are reasonable and necessary.
Were the applicant’s dental injuries caused by the accident?
10The applicant’s claim is supported by:
i. The disputed treatment plans dated August 15, 2017 and July 15, 2017 by his long-time dental services provider, [“PCS”], indicating that his dental treatment was needed due to injuries sustained in the accident.
ii. Selected dental records from PCS indicating the accident as the cause of the applicant’s dental injuries and reporting “emergency trauma control” on July 27, 2017.
11I assign very little weight to his evidence because:
i. None of the other medical evidence – a disability certificate, post-accident hospital emergency room reports, clinical notes and records (CNRs) or other reports from health practitioners seen in the weeks following the accident – indicates any tooth loss, fracture or other dental injury. No head strike was mentioned. It is simply not credible to me that tooth fractures would go unreported. This finding also applies to the failure of the applicant himself to mention any such injuries during this period of time.
ii. I don’t find it believable that the applicant or his dental surgeon waited until 18 days after the accident for “emergency trauma control” of dental injuries arising from the accident, as indicated by the PCS report.
12The applicant’s uncontested dental history raises questions about causation that he chooses to simply ignore. PCS records indicate that he had been undergoing, for years, consistent and ongoing work on his teeth, including the teeth (#24 and #44) allegedly damaged in the accident, and adjacent teeth:
i. Tooth #24 was already broken before the accident and that the applicant had declined to have it crowned on June 16, 2015.
ii. Tooth #44 was repaired seven times between 2008 and 2014.
iii. On March 29, 2017 the applicant declined root canal or extraction treatment options on the upper left side of his mouth, teeth 25-26.
13The insurer’s examination (IE) report and addendum report of Dr. Aviv Ouanounou, dentist, dated September 19, 2017 and February 2, 2018 respectively, are thorough and based on physical examination and a review of the applicant’s medical and dental history. They are persuasive. Dr. Ouanounou opines that the applicant’s dental treatments are not required as the result of the accident. I am guided by his opinion.
14The applicant’s criticisms of Dr. Ouanounou’s reports and findings were unpersuasive and most of them easily controverted by actually reading the reports. For example:
i. The applicant claims that Dr. Ouanounou failed to note his complaints about difficulty chewing food. In fact, the report notes these complaints expressly and very clearly.
ii. The applicant states that Dr. Ouanounou failed to describe what tests he conducted to investigate his chewing challenges. This is untrue. Dr. Ouanounou outlines a series of physical tests related to chewing and found no evidence of pain or restricted mobility.
iii. The applicant asserts that Dr. Ouanounou’s reports are weakened by failure to review CNRs from other practitioners. In fact, the examiner did review CNRs for his addendum report: as noted above in paragraph [11], those CNRs do not support the applicant’s claim that his dental issues are accident-related. Just as importantly, in my view, Dr. Ouanounou noted the lack of references to dental injury by medical service providers in the applicant’s OCF-1 and OCF-33 and drew appropriate conclusions about the cause of any dental complaints that the applicant has.
15Accordingly, I give Dr. Ouanounou’s reports substantial weight in determining this issue.
16I find that the applicant has failed to meet the onus on him to show that the injuries for which he claims benefits resulted from the accident. I find it more likely on the balance of probabilities that the recommended treatments address deficiencies in the applicant’s dental health which existed before the accident.
Request for Interest
17Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
18In this case, the applicant is not entitled to interest on denied claims, because no payment is due from the insurer.
Award under Regulation 664
19Section 10 of the Regulation permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.
20As I have found that the applicant has not met the onus on him to prove her entitlement to the disputed benefits, there is no basis for an award under s.10 of the Regulation.
CONCLUSIONS
21The applicant has not proven his entitlement to the benefits he claims.
22The question of interest is moot.
23The applicant’s request for an award is baseless and is denied.
Released: June 20, 2018
Christopher A. Ferguson
Adjudicator
Footnotes
- O. Reg. 34/10.
- O. Reg. 664, RRO 1990, pursuant to s.280 of the Insurance Act, RSO 1990 c.I.8, Part VI.
- i.e. his Application for Accident Benefits (OCF-1) and Disability Certificate (OCF-3)