C.A. v. Aviva General Insurance, 2018 CanLII 81954

Licence Appeal Tribunal Decision

Date: 2018-05-28

Tribunal File Number: 17-006243/AABS

Case Name: 17-006243 v Aviva General Insurance

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:

C.A.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES:

Counsel for the applicant: Louis DelSignore, Jr.

Counsel for the respondent: Andrew Smith

HEARD: In Writing: April 4, 2018

OVERVIEW

1The applicant was injured in an automobile accident on September 29, 2015 (the “accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that the medical benefit claimed by the applicant is not reasonable and necessary under Section 15(1) of the Schedule.

ISSUES TO BE DECIDED

3The case conference order dated December 20, 2017, provides that the following are the issues to be decided at this hearing:

(i) Is the applicant entitled to receive a medical benefit in the amount of $3,581.53 for chiropractic services, recommended by Dr. Robin Meister-Valente in a treatment plan that was submitted on July 21, 2017, and denied by the respondent on August 15, 2017 (the “Treatment Plan”)?

(ii) Is the applicant entitled to receive interest on the overdue amounts?

RESULT

4I find, on a balance of probabilities, that the Treatment Plan is neither reasonable nor necessary.

5Consequently, I further find that the applicant is not entitled to interest on the overdue amounts with respect to the Treatment Plan.

ANALYSIS:

Background

6The applicant is a resident [in Ontario]. She was 53 years old at the time of the accident. On September 29, 2015, her vehicle was rear-ended by a third party vehicle while she was stopped at an intersection.

7On July 21, 2017, Dr. Robin Meisner-Valente, a chiropractor [at a medical centre], submitted a Treatment Plan on behalf of the applicant to the respondent. In this Treatment Plan, Dr. Meisner-Valente recommends that the applicant undergo active rehabilitation, chiropractic and massage therapies. The respondent denied this Treatment Plan on August 15, 2017. The respondent relied on its section 44 assessment report prepared by Dr. Steve Taylor, GP, dated March 24, 2016, and subsequent addendum reports prepared by Dr. Taylor dated May 12, 2016, March 8, 2017, and March 30, 2017. Dr. Taylor’s conclusion in his March 24, 2016 report was essentially that the applicant’s injuries would be considered minor injuries under the Schedule, and that further treatment would not result in meaningful improvement in her condition. His conclusion is unchanged in his subsequent reports.

8The respondent had removed the applicant from the Minor Injury Guideline on June 3, 2016. As such, the issue of whether the applicant is within or outside of the Minor Injury Guideline is not an issue that needs to be determined by the Tribunal.

9In support of her claim for the Treatment Plan at issue, the applicant relies on the report of Dr. Patrick Potter, MD, FRCPC, dated April 12, 2017 (the “Potter Report”).

10The respondent states that the Potter Report does not assist the applicant, and maintains that the Treatment Plan at issue is neither reasonable nor necessary.

Is the Treatment Plan claimed by the applicant reasonable and necessary?

11The onus is on the applicant to show that the treatment plan claimed is reasonable and necessary.²

The Potter Report

12The Potter Report recommends the following treatments for the applicant:

a. a generalized stretching program, including a trial of yoga;

b. occupational therapy to assist with driving;

c. a neuropsychological assessment to determine the effects of the concussion;

d. a focused stretching program on the flexors and the extensors of her forearms;

e. MRI investigation of the temporomandibular joints;

f. refitting of the bite plane;

g. a trial of Botox;

h. a directed exercise program involving stretching, strengthening, postural exercises and medical approaches such as Botulinium Toxin; and

i. assistance with heavier homemaking and home maintenance responsibilities.

13The Potter Report also states that the applicant is approaching maximum medical recovery and it is probable that she will experience residual symptoms in her neck and headaches.

14The applicant has not submitted a neuropsychological assessment to this Tribunal despite the fact that such an assessment was recommended in the Potter Report.

The Treatment Plan submitted by Dr. Meisner-Valente

15The Treatment Plan recommends:

(a) chiropractic treatment:

(i) assessment (examination) total body;

(ii) manipulation, multiple body sites;

(b) physiotherapy:

(i) therapy, multiple body sites;

(c) massage:

(i) therapy, multiple body sites.

The Section 44 Examination Report by Dr. Steve Taylor

16Dr. Steve Taylor, in his section 44 examination report dated March 24, 2016, indicates that the applicant’s injuries consist of a minor head injury, and a whiplash type 2 injury. He states that these injuries fall within the Minor Injury Guideline, and that further treatment will not result in meaningful improvement in the applicant’s condition.

Analysis

17The Potter Report has made a number of treatment recommendations for the applicant. However, the actual services on the Treatment Plan, namely, chiropractic services, physiotherapy services and massage services, are not listed within the treatment recommendations in the Potter Report.

18The Potter Report also appears to be making inconsistent statements, as follows:

a. On the one hand, there is a reference that the applicant is “approaching maximum medical recovery” and “it is probable that she will experience residual symptoms in her neck and headaches”; and

b. On the other hand, Dr. Potter also states that “it is probable Ms. Arthurs has sustained a [permanent] impairment of an important physical function; that being her neck.”

19I am unable to reconcile how “residual symptoms in the applicant’s neck” amount to “a [permanent] impairment of an important physical function; that being her neck”.

20Dr. Potter’s statement that the applicant is approaching maximal medical recovery appears to be consistent with Dr. Taylor’s statements in the IE report. I therefore find, on a balance of probabilities, that these consistent statements between Dr. Potter and the IE assessor, Dr. Taylor, are more probable than the statement by Dr. Potter that the applicant has sustained a permanent impairment of her neck.

21I also add that there was no affidavit evidence submitted by the applicant on the question of whether the Treatment Plan claimed is reasonable and necessary.

22In summary, given that:

a. The Potter Report does not recommend the actual services listed on the Treatment Plan;

b. The Potter Report contains inconsistent statements, some of which appear to align with the statements in Dr. Taylor’s report;

c. The Tribunal was not provided with a neuropsychological assessment of the applicant, despite the fact that such an assessment was recommended in the Potter Report; and

d. There was no affidavit evidence provided by the applicant to support the claimed need for the Treatment Plan,

e. I find, on a balance of probabilities, that the Treatment Plan claimed by the applicant is neither reasonable nor necessary.

CONCLUSION:

23For the reasons outlined above, I find that:

a. The applicant is not entitled to receive a medical benefit in the amount of $3,581.53 for chiropractic services, recommended by Dr. Robin Meister-Valente in a treatment plan that was submitted on July 21, 2017, and denied by the respondent on August 15, 2017; and

b. The applicant is not entitled to interest as claimed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para. 24.