Tribunal File Number: 17-002689/AABS
Case Name: 17-002689/AABS 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: Derek Grant
APPEARANCES:
For the Applicant: Aida Davari
For the Respondent: Patrick Baker
Heard by way of a written hearing: September 14, 2017
Overview
1The applicant [the applicant] was injured in an automobile accident on May 29, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent (“Aviva”).
2[The applicant] made a claim for a medical benefit for chiropractic treatment. Aviva denied the benefit on the basis of an insurer’s examination (“IE”) which found that [the applicant] injuries were minor and therefore subject to the $3,500 treatment limit under the Minor Injury Guideline (“MIG”)1.
3Aviva has since acknowledged that [the applicant] is no longer under the Minor Injury Guideline (‘MIG’) designation based on a second IE which determined that the applicant 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 MIG.2
4The issue of whether or not [the applicant] is subject to the MIG is therefore no longer in dispute, so I do not need to address it.
5As a result of the accident, [the applicant] sustained injuries to her neck, left shoulder/arm, left hip/leg and full back. [The applicant] suffered similar injuries when she was struck by a car as a pedestrian on January 10, 2013, ten months previously. [The applicant] submits she still requires chiropractic treatment for her more recent accident injuries because her recovery from these injuries has been prolonged by her pre-existing injuries. [The applicant] also claims she has chronic pain syndrome from the January 10, 2013 accident, which was exacerbated by the subject accident.
6The onus is on [the applicant], based on a balance of probabilities, to prove that she is entitled to the benefit in dispute on the basis that the treatment is reasonable and necessary as a result of the accident.
7I find that [the applicant] has not provided persuasive evidence to support her position that the medical treatment she claims in this application is reasonable and necessary.
Issues in Dispute
(i) Is [the applicant] entitled to receive a medical benefit in the amount $4,124.88 for chiropractic services, recommended by Kingsbury Family Chiropractic as detailed in a treatment plan dated March 19, 2015?
(ii) Is [the applicant] entitled to interest on any overdue payment of benefits?
(iii) Is [the applicant] entitled to costs due to unreasonable, frivolous, vexatious or bad faith actions on the part of Aviva?
Result
(i) [The applicant] is not entitled to the treatment plan in dispute.
(ii) [The applicant] is not entitled to interest.
(iii) [The applicant] is not entitled to costs.
Analysis and Reasons
Is the treatment for chiropractic services reasonable and necessary?
8I find that [the applicant] is not entitled to chiropractic services.
9Given that [the applicant] injuries are not predominantly minor; she is eligible for treatment up to $50,000.00 in medical and rehabilitation benefits.
10Under section 15 of the Schedule, the test is whether the treatment plan is reasonable and necessary.
11[The applicant] argues that the treatment plan is reasonable and necessary due to injuries she sustained in a previous accident and chronic pain syndrome. As a result of her pre-accident injuries, [the applicant] submits that recovery from her injuries have been slowed down requiring continued chiropractic treatment, which has reduced her pain.
12Aviva submits the treatment plan is not reasonable and necessary because, in the opinion of its medical assessor, [the applicant] has reached maximum medical recovery for her accident-related injuries and any further facility-based treatment for chiropractic treatment will not improve her condition. Aviva further submits that “[the applicant] has not identified a single recommendation from any health practitioner to suggest that additional chiropractic treatment is warranted.”
13In the treatment plan in dispute, Dr. Zoran Zivkovic, 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 the applicant by Dr. Zivkovic, to support these recommendations. Furthermore, [the applicant] has not provided additional objective evidence to support the need for further chiropractic treatment.
14In her affidavit, [the applicant] provides statements regarding recommendations from Dr. Nabi, Family Physician (January 14, 2015 and March 27, 2015 visits) and Dr. Boktor, Pain Specialist (March 4, 2016 visit) for physiotherapy. Neither of these two doctors recommends chiropractic treatment. I cannot establish further chiropractic treatment is reasonable and necessary, when the recommendations from [the applicant] own treating health practitioners do not support chiropractic treatment.
15The presence of objective supporting evidence to justify further chiropractic treatment is key in determining whether the medical benefit in dispute is reasonable and necessary. A treatment plan for a medical benefit, without more, is not enough to establish entitlement. In this case, [the applicant] has only provided a treatment plan, and no other recommendations for chiropractic treatment.
16As a result, I cannot decide in favour of [the applicant] that she is entitled to the medical benefit in dispute. I find [the applicant] has not met her onus in explaining how this treatment plan meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan reasonable and necessary.
Costs
17[The applicant] seeks costs on the basis that she spent time and effort in preparing submissions about why she should be taken out of the MIG on psychological grounds, when Aviva had already decided to remove [the applicant] from the MIG based on a psychological IE. [The applicant] submits that she did not receive the psychological assessment report from Aviva prior to the August 14, 2017 deadline for submissions in this hearing.
18[The applicant] submits that Aviva acted unreasonably and in bad faith, with respect to removing [the applicant] from the MIG after the submissions deadline in this hearing.
19Aviva submits it was unreasonable for [the applicant] to expect Aviva to communicate the results of the IE before it was released on August 15, 2017. I agree. Aviva provided the findings to [the applicant] on August 23, 2017.
20I do not find Aviva’s actions unreasonable, vexatious, frivolous or in bad faith, pursuant to Rule 19.1. As such, [the applicant] is not entitled to costs.
Conclusion:
21[The applicant] is not entitled to receive a medical benefit in the amount $4,124.88 for chiropractic services, recommended by Kingsbury Family Chiropractic, as detailed in a treatment plan dated March 19, 2015;
22[The applicant] is not entitled to interest on any overdue payment of benefits; and
23[The applicant] is not entitled to costs.
Released: January 8, 2018
Derek Grant, Adjudicator