M.R. v. Aviva Insurance Canada, 2018 CanLII 97834

Date: 2018-08-17

Tribunal File Number: 17-007428/AABS

Case Name: 17-007428 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:

M.R.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

APPEARANCES:

Stephanie Kepman

For the Applicant:

Kal Stoykov, Counsel

For the Respondent:

Shivani Mehta, Counsel

Written Hearing on:

April 16, 2018

OVERVIEW

1M.R. (“the applicant”) was injured in an automobile accident (“the accident”) on December 14, 2014. He applied for insurance benefits from Aviva Insurance Canada (“the respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). After the respondent denied his request for several chiropractic treatment plans and a chronic pain assessment, he appealed those denials to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2A written hearing was scheduled, and I must now decide the issues in dispute based on the written materials the parties have filed with the Tribunal. After considering the parties’ submissions, I conclude that the applicant is not entitled to the requested treatment or assessment for the reasons that follow.

SUBSTANTIVE ISSUES

3The following substantive issues are in dispute before the Tribunal:

a. Is the applicant entitled to a medical benefit for services recommended by Scarborough Healthcare Centre for the following:

(1) $1,271.39 for chiropractic treatment, in a treatment plan dated April 7, 2015, and denied on November 4, 2015? (issue 1)

(2) $1,807.08 for chiropractic treatment, in a treatment plan dated September 8, 2015, and denied on November 4, 2015? (issue 2)

(3) $1,628.52 for chiropractic treatment, in a treatment plan dated November 17, 2015, and denied on February 24, 2016? (issue 3)

(4) $3,536.44 for chiropractic treatment, in a treatment plan dated January 6, 2015, and denied on January 16, 2015? (issue 4)

b. Is the applicant entitled to a cost of examination expense in the amount of $3,081.76 for a chronic pain assessment recommended by The Rehab Centre for Chronic Pain in a treatment plan submitted on December 15, 2015, and denied on February 24, 2016? (issue 5)

PRELIMINARY ISSUES

4The respondent raised the following preliminary issue regarding issue 4:

a. Is the applicant barred from proceeding with his claim for chiropractic treatment in the amount of $3,536.44, as he failed to commence his application within two years after the respondent’s refusal to pay the amount claimed?

RESULT

5Regarding the preliminary issue, I find that the applicant is beyond the limitation period set out in the Schedule. Accordingly, issue 4 is dismissed.

6I further find that the applicant is not entitled to any of the remaining treatment plans for chiropractic treatment. I am not satisfied that the treatment plans are reasonable or necessary.

7The applicant is also not entitled to the cost of examination expense in the amount of $3,081.76 for a chronic pain assessment, as I am not satisfied that the accident in question is the cause of the chronic pain and/or impairment in question.

BACKGROUND

8Following the accident, the applicant complained of pain in his neck, shoulders, the back of his skull, lower back, hip, groin and buttock area. He also complained of headaches and disturbed sleep.

9A year and five months after this accident, the applicant was involved in a second motor vehicle accident occurring on April 26, 2016. This hearing is only in respect of the first accident.

POSITION OF THE PARTIES

10The applicant argues that as a result of the accident, he lives with ongoing and persistent pain and therefore requires chiropractic treatments as well as a chronic pain assessment.

11The respondent argues that the impairments sustained by the applicant are minor, and do not require further treatment or assessment. It also argues that the applicant’s second motor vehicle accident is the cause of any chronic pain the applicant is experiencing and therefore the respondent is not obligated to pay for a chronic pain assessment.

PRELIMINIARY ISSUE

Limitation Period

12I first consider whether the applicant’s claim for the treatment in issue 4 is barred as being filed beyond the limitation period. Section 56 of the Schedule states:

“An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”

13The respondent submitted that the applicant should be barred from proceeding with substantive issue 4 because the 2 year limitation period of section 56 of the Schedule has passed. Specifically, the plan was denied on January 16, 2015, requiring an appeal to this Tribunal by January 16, 2017. The applicant did not appeal until November 1, 2017.

14The applicant does not dispute that the 2 year limitation has not been met, but argues that the time limit should be extended based on section 7 of Licence Appeal Tribunal Act². Section 7 of Licence Appeal Tribunal Act provides the Tribunal discretion to extend the limitation period³.

15The case law⁴ has set out four factors for determining whether an extension of limitation period should be granted:

a. the existence of a bona fide intention to appeal within the appeal period;

b. the length of the delay and the explanation for it;

c. any prejudice to the responding party (in this case Gore) caused or worsened by the delay;

d. the merits of the appeal

16The applicant has failed to adduce any explanation or evidence as to why an extension should be granted, simply stating that the length of the delay is not unreasonable and there will be no prejudice to the respondent. The applicant fails to inform the Tribunal why she was unable to file her appeal within the prescribed 2 year period.

17As I have not been provided with any evidence in this regard, I decline to extend the 2 year limitation period.

SUBSTANTIVE ISSUES

Chiropractic Treatment Plans (Issues 1, 2, and 3)

18I will now address the requested chiropractic treatment – issues 1, 2 and 3. Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. The applicant has the onus of showing on a balance of probabilities that the medical expenses listed in a treatment plan are reasonable and necessary as a result of impairment caused by the accident.

19I must, therefore, determine if the three remaining chiropractic treatment plans are “reasonable and necessary.”

20The applicant applied to the respondent to fund the 3 chiropractic treatment plans, all of which are recommended by Scarborough Healthcare Centre. The respondent denied all the plans as not reasonable and necessary based on Insurance Examinations (IEs) conducted for the respondent.

21The respondent does not dispute that the applicant suffers an impairment as a result of the accident, but disputes the degree of the impairment, arguing that the applicant’s current issues are from the 2^nd^ accident. In this regard, Dr. Mascarenhas, General Practitioner and Dr. Oshidari, Insurance Examiners for the respondent, both found that the applicant’s impairment from the first accident involved a sprain/strain of the spine and contusion of the left shoulder. These kind of impairments are considered minor as defined by the Schedule and would fall within the MIG – i.e. be subject to a $3,500 cap on treatment.

22Prior to his IEs, the applicant had been participating in various passive therapies, described best as “physical therapy”. They include massage, heat treatment, the usage of a TENS machine, electrotherapy, acupuncture, with occasional spinal manipulation and mobilization as part of a functional exercise program through Scarborough Health Centre for over 1 year.

23The applicant himself appears to admit that the treatment with Scarborough Health Centre had not been helpful. Dr. Oshidari notes in his IE conducted on February 10, 2016, almost 2 years after the applicant’s accident, that the applicant had over 1 year of extensive therapy. Yet, when the applicant was asked about this, Dr. Oshidari records the applicant’s response as follows:

“Today when I asked him with more than one year of treatment how much improvement he noticed, he stated not much”.

24The applicant has not provided any evidence as to the benefits that passive treatment may be providing the applicant. Thus, the evidence before me does not address why the applicant would choose to return for more treatment at Scarborough Health Centre when, so far, his treatment has not been successful. More importantly, given that the treatment the applicant had already received from Scarborough Health Centre used similar treating techniques as those in the proposed treatment, had similar goals and may have been performed by the same professionals, it is hard to accept this treatment as “necessary” if, by the applicant’s own account, he feels that after one year of service, said treatment hasn’t helped much.

25The applicant provided clinical notes and records from his family doctor, Dr. Charles Kwong. The majority of these records were not relevant to the accident. They were either from 2012, approximately 2 years before the accident, or from April 2016 or later, after the applicant’s second motor vehicle accident.

26I found 3 visits to Dr. Kwong particularly important; a visit after the applicant’s first accident on December 15, 2014, a visit 3 months later on March 23, 2015 and a third visit on January 18, 2016.

27The first visit comprised of the applicant describing his initial pain from the accident, which was described as mild right left neck ache. The second visit, approximately 6 months later, consisted of the applicant describing his work and travel plans. He makes no mention of pain affecting his daily life or activities.

28The applicant’s third visit, approximately 2 years after the applicant’s accident, and after the 2^nd^ accident, notes:

“[The applicant’s]MSK (musculoskeletal) ache is the same; lower back mainly; Shoulders and neck less; some back spasm; some occ (occipital) headache; short duration; Physio nothing, Stopped after money ran out in Nov; Home exercises some; occ (occipital) brief leg numbness, nonspecific;”

29In conclusion, I find that the applicant failed to present any medical evidence to demonstrate that his impairments are beyond soft tissue impairment; he has not demonstrated that his impairment are impairing his day to day life as he has been able to maintain full-time employment, take care of his activities of daily living and remains independent and active; and he has not shown why the requested treatment will help. Therefore, I do not find these plans reasonable or necessary.

Chronic Pain Assessment (Issue 5)

30I must determine if the applicant is entitled to the disputed chronic pain assessment. To do so, I must determine if the plan is reasonable and necessary, pursuant to section 25(1)(3) of the Schedule. The applicant has requested funding from the insurer for a chronic pain assessment in the amount of $3,081.76, recommended by Dr. Kachooie of the Rehab Centre, in the Treatment and Assessment Plan (OCF-18), completed on December 15, 2015. The respondent denied the plan on February 24, 2016, because the respondent deemed the treatment not reasonable and necessary based on its IE assessments. I find the chronic pain assessment is not reasonable and necessary for the following reasons.

31The applicant submitted his own Independent Chronic Pain Medical Legal Assessment by Dr. Dima Rozen, M.D. on December 5, 2016. This evidence is submitted to counter the findings of the insurance company.

32The applicant’s assessor, Dr. Rozen, did find that the applicant suffers an impairment. He found the applicant was dealing with pain symptoms in his lower and upper back, bilateral shoulders and neck, as well as headaches.

33Unfortunately, the applicant was involved in another more severe motor vehicle accident on April 26, 2016, a year, 4 months and 12 days after his first accident. I must deal with the issue of causation and determine if the applicant’s first accident or second accident cause this chronic pain.

34Dr. Rozen, who evaluated the applicant after his second accident, does not provide an opinion as to whether the first or second accident is the cause of the chronic pain he observes in the applicant.

35The applicant has made no submissions and presented no evidence to advance his argument that his first accident caused his chronic pain. Further, my review of the CNRs reveal that following the first accident there was only one visit to his family doctor which was immediately after the accident. There were no additional entries until after the second accident.

36The applicant has not provided any evidence to connect his current pain symptoms with the first accident. As such, I cannot find that the applicant has not met his onus to show that the first accident is responsible for the applicant’s current pain symptoms.

37For all of these reasons, I conclude that a chronic pain assessment is neither reasonable nor necessary

CONCLUSION

38For the reasons outlined above, I find that the applicant has not established his entitlement to any of the requested treatment or the assessment.

Released: August 17, 2018

___________________________

Stephanie Kepman, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 21999, S.O. 1999, c. 12, Sched. G
3. 3A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT)
4. 4Ibid