Licence Appeal Tribunal
Tribunal File Number: 17-005454/AABS
Case Name: 17-005454 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c. I.8., in relation to statutory accident benefits.
Between:
H.N.L.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Marisa Victor
APPEARANCES:
Counsel for the Applicant:
Isabelle Loffredi
Counsel for the Respondent:
Geoffrey Keating
Written Hearing:
April 9, 2018
OVERVIEW
1On November 17, 2014, the applicant was driving [on a highway] when his vehicle was struck by a tire that had come off of a tractor-trailer. The applicant lost control of his vehicle and came to a stop in a ditch. As a result of the accident, he sought Statutory Accident Benefits from the respondent, Aviva Insurance Canada.
2The applicant sought coverage for chiropractic treatment for his injuries under the Statutory Accident Benefit Schedule - Effective September 1, 2010 (the Schedule). As of August 15, 2015, further chiropractic treatment coverage was denied by the respondent. The applicant then submitted three more treatment plans for chiropractic treatment, which were also all denied. The denial of these four claims resulted in this appeal to the Licence Appeal Tribunal (the LAT).
3On November 23, 2017, a case conference was held in this matter. As a result of the case conference, the issues to be determined were identified and a written hearing ordered.
ISSUES
4The issues are:
a. Is the applicant entitled to receive the following medical benefits for services recommended by his chiropractor, Mr. Oscar Manias:
i. $1,988.00 for chiropractic services, as detailed in a treatment plan dated August 19, 2015, denied by the respondent on August 24, 2015?
ii. $2,430.00 for chiropractic services, as detailed in a treatment plan dated September 7, 2016, denied by the respondent on September 20, 2016?
iii. $2,794.40 for chiropractic services, as detailed in a treatment plan dated February 22, 2017, denied by respondent on March 7, 2017?
iv. $1,553.60 for chiropractic services, as detailed in a treatment plan dated August 18, 2017, denied by respondent on August 24, 2017?
b. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
5Based on a review of the evidence presented, I find that:
a. The applicant is not entitled to the four chiropractic treatment plans; and
b. The applicant is not entitled to interest.
ANALYSIS
A. The applicant is not entitled to the four chiropractic treatment plans
6The onus is on the applicant to prove that the claimed medical benefits are reasonable and necessary on a balance of probabilities.
7I find that the evidence has failed to prove, on a balance of probabilities, that the claimed medical benefits are reasonable and necessary. The appellant had pre-existing injuries that he was already struggling with. There is conflicting evidence as to whether he was able to work prior to this MVA and therefore whether this accident has prevented him from working. According to the chiropractor who has been treating him and who he is seeking benefits for, his recovery has plateaued. I find that the goals of the treatment plans are not reasonable or cost–effective considering that the applicant has reached maximum recovery.
8The applicant suffered from significant pre-existing issues, as noted in the clinical notes and records from 2010 – 2014 as provided by his family doctor, Dr. Hoanh Nguyen. These included:
a. Neck, back and left knee pain
b. Chronic pain
c. Difficulty sleeping
d. Stress
9Dr. Nguyen wrote a letter on March 5, 2018 supporting chiropractic treatment. He stated that as a consequence of the November 2014 accident, the applicant has recurrent neck and back pain which lead to chronic pain syndrome and depression. He supports the treatment plan to improve ability to cope and return to pre-MVA activities.
10The applicant also saw a pain specialist, Dr. Sokol, from August 2014 onwards, prior to the accident. He noted the following:
a. neck, back and right leg pain
b. chronic pain
c. depressions
d. stress
e. Stopped work in 2013 due to pain
f. Nausea and vomiting
11The applicant also saw Dr. Nhan Tong, a pain management specialist, prior to the accident in regard to "multiple injured areas that occurred in the past." Dr. Tong noted the following:
a. Two previous motor vehicle accidents: 1990, 2009
b. A fall in 1988
12Dr. Tong confirmed lower back pain, neck pain and chronic pain, as well as inability to work and poor memory.
13The applicant saw a Psychiatrist, Dr. Phuong Tran, in August 2014 who diagnosed the applicant with a pain disorder and a major depressive disorder. He also notes that the applicant stated he was unable to work as of 2013, that he had anxiety while driving and lacked enjoyment in life.
14On March 9, 2015, the applicant underwent an insurer's examination (IE) conducted by Dr. Weisleder. At that time, benefits were provided as a result of the IE.
15The applicant subsequently submitted four OCF-18 treatments plans for chiropractic services from his chiropractor Mr. Oscar Manias as follows:
a. August 19, 2015, for $1,988.00;
b. September 7, 2016, for $2,430.00;
c. February 22, 2017, for $2,794.40;
d. August 18, 2017, for $1,533.60.
16On September 21, 2015, the applicant underwent another IE conducted by Dr. Weisleder. His second report is dated October 2, 2015 (the September IE).
17At the September IE, the applicant reported that after the accident he had increased neck pain, right shoulder pain and lower back pain. The applicant stated he was unsure if he had pre-existing upper back pain. The applicant denied previous motor vehicle accidents. He reported that he has not returned to work since the accident. The applicant reported that the following pain remained unchanged since March 2015:
a. Neck pain
b. Right shoulder pain
c. Upper back pain
d. Lower back pain
18Dr. Weisleder concluded that the applicant had suffered cervical strain, right shoulder strain, thoracic strain and lumbar strain as a result of the accident.
19Dr. Weisleder also concluded that apart from residual pain and stiffness in the region of the neck, shoulder, upper and lower back, the applicant had reached maximum medical recovery and therefore did not require further treatment.
20All the treatment plans were denied based on Dr. Weisleder's September IE report.
21Mr. Manias, the applicant's chiropractor, Mr. Manias, began seeing the applicant in April 2015. He also wrote a supportive letter on October 26, 2017 stating that the applicant suffered from the following post-MVA:
a. Increased pain in the neck, back and right shoulder
b. Increased depression
c. Poor sleep and fatigue
d. Emotional issues and depressive feelings
e. Poor memory
f. Poor social interaction with family
g. Anxiety while driving
22Mr. Manias reported that although the applicant has benefited from therapy, he has reached plateau in his progress. However, he felt that continued therapy would help maintain his modest improvements and allow temporary relief of on-going symptoms.
23Mr. Manias also reported that the appellant was working prior to the accident but has been unable to return to work since.
24The applicant reported to Dr. Tong that his pre-existing injuries were as a result of a fall, and two MVAs. The clinical notes and records of his family doctor, two pain specialists and psychiatrist, in the months prior to the accident, confirm the following pre-existing injuries:
a. Neck, back and leg pain
b. Depression
c. Poor memory
d. Sleep disturbance
e. Anxiety driving
f. Loss of enjoyment of life and difficulty with personal relationships
25These are the same complaints the applicant seeks treatment for post-MVA. While the applicant also states to various medical practitioners that the pain he experiences has increased since the MVA, both Dr. Weisleder and Mr. Manias determined that the applicant's recovery has plateaued since the accident.
26The applicant also reported to all of his medical practitioners prior to the accident that he was unable to work, but he provided contradictory information at the IE and to Dr. Manias. At the IE, he reported that he had been working prior to the accident but was no longer able to work. The applicant also did not advise Dr. Weisleder of his previous MVAs or the fall. He told Dr. Manias he was working at the time of the accident but could not work after.
27I find that the evidence is inconsistent with regard to the increased severity of the applicant's post-MVA pain and physical symptoms. I therefore find that the applicant's self-reporting of increased symptoms is unreliable. I do accept the findings at the IE of the applicant's current health as they were made in relation to two exams (March and September). In particular, I accept the finding that the applicant has reached maximum recovery. This is supported by Mr. Manias, whose treatment plans are the subject of this appeal.
28In addition, given the applicant's inconsistent reporting of his ability to work, and that no change in his social life or enjoyment of life are discernible from the evidence provided, it is unclear what effect this MVA has had on the applicant's personal life. As such, I cannot find that the disputed treatment provided to date has resulted in any improvement in his overall well-being.
B. The applicant is not entitled to interest.
29Given my finding above that the applicant is not entitled to further chiropractic treatment, the applicant is therefore not entitled to interest.
CONCLUSION
30I order the following:
a. The applicant has not proven on a balance of probabilities that he is entitled to the four treatment plans.
b. The applicant is not entitled to interest. The appeal is dismissed.
Released: July 18, 2018
Marisa Victor, Member