Licence Appeal Tribunal
Tribunal File Number: 16-003323/AABS
Case Name: 16-003323/AABS 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:
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCE:
For the Applicant: Yousef Jabbour, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: Written Hearing: November 20, 2017
OVERVIEW:
1[The applicant] (the “applicant”) was involved in a motor vehicle accident on September 21, 2014. She applied for accident benefits to Aviva Insurance Canada (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied her claim for a non- earner benefit, medical benefits and an examination expense.
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference and the matter proceeded to this written hearing.1
ISSUES IN DISPUTE:
3I have been asked to decide the following issues:
a) Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from March 21, 2015 to date and ongoing?
b) Is the applicant entitled to a medical benefit in the amount of $3,939.43 for a treatment plan for physiotherapy dated November 13, 2014 recommended by Complete Rehabilitation Centre?
c) Is the applicant entitled to a medical benefit in the amount of $1,288.32 for a treatment plan for physiotherapy, chiropractic treatment and massage dated March 24, 2015 recommended by Omsai Physiotherapy?
d) Is the applicant entitled to a cost of examination in the amount of $2,248.90 for an in-home assessment submitted in treatment plan dated December 23, 2014 recommended by Complete Rehabilitation Centre?
e) Is the applicant entitled to interest on the overdue payments of benefits?
f) Is the respondent entitled to costs?2
RESULT:
4For the reasons that follow, I find the following:
a) The applicant is not entitled to a non-earner benefit.
b) The applicant is not entitled to the following treatment plans:
(i) $3,939.43 for a treatment plan for physiotherapy dated November 13, 2014 recommended by Complete Rehabilitation Centre;
(ii) $1,288.32 for a treatment plan for physiotherapy, chiropractic treatment and massage dated March 24, 2015 recommended by Omsai Physiotherapy; and
(iii) $2,248.90 for an in-home assessment submitted in treatment plan dated December 23, 2014 recommended by Complete Rehabilitation Centre.
c) In light of my decision above, the applicant is not entitled to interest on overdue payments of benefits;
d) The respondent is not entitled to costs.
REASONS:
5The applicant submits that she is entitled to a non-earner benefit as she has not returned to her normal everyday activities following the accident. The applicant maintains that she was involved in a prior motor vehicle accident on December 2, 2013, in which she sustained injuries resulting in chronic pain. Further, her pre- existing injuries had not resolved and were exacerbated by the September 2014 accident (“subject accident”). Therefore, the treatment plans for the medical benefits are reasonable and necessary. Further, the purpose of the in-home assessment was to prove that her injuries are not minor and subject to the policy limits of $3,500 of the Minor Injury Guideline (the “MIG”). Therefore, the assessment is a reasonable expense.
6The applicant relies on the treatment plans, the respondent’s denials, the clinical notes and records of the treating clinics and the chronic pain assessment of Dr. Farhan Siddiqui dated October 2, 2014 to support her position.
7The respondent submits that the applicant has not met her onus in demonstrating that she meets the complete inability test for a non-earner benefit. The respondent contends that the applicant has reached maximum medical recovery from any physical injuries resulting from the accident. Therefore, the treatment plans for the medical benefits and in-home assessment are not reasonable and necessary.
8The respondent relies on the multidisciplinary insurer examination (“IE”) reports dated May 22, 2015 of Dr. Jacqueline Auguste, orthopaedic surgeon, Dr. Jason Bacciochi, psychologist and Ms. Lorna Ford, occupational therapist to support its position that she is not entitled to the non-earner benefit. Further, it relies on the IE of Dr. Auguste dated May 25, 2015, to support its position that the treatment plans are not reasonable and necessary as the applicant’s physical impairments are minor and treatment is subject to the policy limit of the MIG.
9The onus is on the applicant to prove on a balance of probabilities that she is entitled to these benefits.
ANALYSIS:
Is the applicant entitled to a non-earner benefit?
10In determining whether or not the applicant is entitled to a non-earner benefit, section 12 of the Schedule provides that she must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and not qualify for an income replacement benefit.
11The leading case with respect to proving entitlement to a non-earner benefit establishes that a claimant must be able to prove that he or she has been continuously prevented from engaging in “substantially all” activities in which the person engaged in before the accident.3 In order to assess this, one must look at the applicant’s pre and post-accident activities over a reasonable period of time before the accident. The onus is on the applicant to establish that she meets the test for entitlement to the non-earner benefit on a balance of probabilities.
12I find the applicant is not entitled to payment of a non-earner benefit for the following reasons.
13First, the applicant failed to address what her normal everyday activities were pre-accident and what she can no longer do post-accident. As established in Heath, a comparison of the applicant’s pre and post-accident activities is an essential step to proving entitlement to the benefit. Evidence from the applicant is instrumental in order to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. In a written hearing for a non- earner benefit it would have been helpful for the applicant to submit affidavit evidence along with corroborative evidence providing a comparison of her pre and post-accident activities to support that she meets the test.
14Second, other than a disability certificate (“OCF-3”) submitted to the respondent before the expiry of the 26 week waiting period, no other medical records supported entitlement to the benefit. More significantly, the second disability certificate provided to the respondent, after the 26 week waiting period, did not support entitlement. The only report submitted by the applicant was Dr. Siddique’s chronic pain report. However, this report was in relation to the December 2013 accident, it does not mention the subject accident and does not address the legal test for a non-earner benefit. Therefore, I have assigned it little weight.
15By contrast, the respondent’s multidisciplinary IE reports dated May 22, 2015 of Dr. Jacqueline Auguste, orthopaedic surgeon, Dr. Jason Bacciochi, psychologist and Ms. Lorna Ford, occupational therapist (“OT”) address whether the applicant is entitled to a non-earner benefit. The opinions of these assessors found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. These reports remain unchallenged by any medical records submitted by the applicant in support of her claim for a non-earner benefit.
16For example, Dr. Auguste’s physical examination found that the applicant demonstrated full range of motion and diagnosed the applicant with uncomplicated myofascial strain/sprain of the cervical and lumbar spine as a result of the accident. Dr. Bacciochi’s psychological assessment found no accident-related psychological impairment. Further, the applicant did not report any pre-existing psychological issues to the doctor. Dr. Bacciochi’s findings were corroborated by psychological tests. Finally, Ms. Ford’s OT assessment determined that the applicant has the physical ability to complete her pre- accident tasks if she paces herself and uses some modifications.
17The only medical report submitted to the Tribunal by the applicant did not mention the subject accident. Therefore, the respondent’s reports remain unchallenged.
18I find the applicant has not provided any evidence to prove, on a balance of probabilities, that she is entitled to a non-earner benefit.
Is the applicant entitled to the treatment plans for chiropractic treatment, physiotherapy and massage recommended by Complete Rehabilitation Centre and Omsai Physiotherapy?
19The applicant is not entitled to the treatment plans for chiropractic treatment, physiotherapy and massage.
20Sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to or on behalf of an applicant so long as the applicant sustains an impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of the accident.
21In order to determine whether the treatment plan is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment.
22In support of her claim, the applicant submitted to the Tribunal the treatment plan (“OCF-18”) dated November 11, 2013, prepared by Dr. Rahim Jessa, rehabilitation specialist with Complete Rehab. The OCF-18 listed the following accident related impairments: sprain and strain of the cervical spine; dislocation, sprain and strain of joints and ligaments of the thorax, lumbar spine, pelvis, shoulder girdle, right knee, left ankle and foot; temporomandibular joint disorder, stress, headaches and low mood. With respect to Activity Limitations, part 8 of the OCF-18 indicated that the applicant was unable to perform repetitive lifting, carrying, pushing, bending, and twisting without pain. Further, she reported difficulty concentrating due to headaches and poor sleep.
23The applicant also submitted the OCF-18 completed by Benjamin Mandapat, physiotherapist with Omsai Physiotherapy Clinic dated March 25, 2015, requesting an extension for treatment in the MIG. The OCF-18 listed similar injuries to the first plan, and stated that the goal of the treatment plan was for pain reduction, increased range in motion and increased strength.
24I do not find either treatment plan to be reasonable or necessary for the following reasons:
25First, most of the medical evidence submitted by the applicant relates to the December 2013 accident. For example, the clinical notes and records of Complete Rehab (which were not legible) list 38 entries, which with the exception of a few, pre-date the subject accident. Further, no evidence was submitted to confirm that the applicant has temporomandibular joint disorder in relation to the subject accident and the remaining injuries are consistent with soft tissue injuries which are within the definition of the MIG.
26The applicant was involved in a prior motor vehicle accent on December 2, 2013, in which she was struck as a pedestrian crossing the road. The applicant submitted Dr. Siddique’s chronic pain assessment dated October 2, 2014 in relation to that accident, which diagnosed the applicant with chronic myofascial pain, anxiety consistent with post-traumatic stress, non-restorative sleep, and cognitive difficulty secondary to chronic pain. The respondent asserts that the chronic pain report of Dr. Siddique should be given zero weight as it was prepared in relation to the December 2013 accident. In addition, this report was prepared 11 days after the subject accident and the applicant did not even mention the accident to Dr. Siddique.
27I agree with the respondent. Had the applicant’s pre-existing impairments been exacerbated by the accident the fact that she did not mention this to Dr. Siddique in my view decreases the report’s credibility. Further, there was no medical evidence submitted confirming that the applicant’s pre-existing chronic pain resulting from the December 2013 accident was exacerbated by the subject accident. In addition, Dr. Siddique was not provided with any documents to review and did not administer any testing to corroborate the applicant’s self- reports of pain. For these reasons, I have assigned Dr. Siddique’s report little weight.
28Second, the applicant submitted a copy of the treatment plans, the respondent’s denials, an illegible note of the applicant’s family doctor and a few entries made by the treating clinic to support her claim for benefits. I did not find that any of these documents showed that past physical treatment helped to reduce or improve the applicant’s pain or functioning. As such, the applicant failed to demonstrate the effectiveness of the treatment plans in dispute.
29Third, I found the evidence of the respondent more persuasive. The respondent submitted the applicant’s OHIP records which demonstrate that the applicant sought medical attention on December 2, 2013, March 18, 2014 and September 21, 2014. Two of these visits pre-date the subject accident and the third was on the date of the accident. In my view, this does not reflect an individual suffering from chronic pain. Further, the IE of Dr. Auguste, orthopaedic surgeon dated May 22, 2015, found that the applicant’s injuries from a physical perspective are minor. Dr. Auguste’s examination consisted of a clinical interview, document review and physical examination and relates to the September 2014 accident. For that reason, I find the report more compelling than that of Dr. Siddique.
30The onus is on the applicant to prove on a balance of probabilities that she is entitled to the benefit. I do not feel that she has met her onus. Therefore, I do not find the treatment plans to be reasonable or necessary.
Is the applicant entitled to the in-home assessment recommended by Complete Rehab?
31The applicant is not entitled to the in-home assessment for the following reason:
32In her submissions, the applicant argued that she is entitled to the in-home assessment in order to prove that she should be removed from the MIG. The applicant made no other argument and did not submit any evidence. Further, the applicant has since been removed from the MIG. Therefore, I do not find the assessment to be reasonable and necessary.
Is the respondent entitled to costs?
33The respondent requested costs in its submissions. Rule 19.1 of the Licence Appeal Tribunal’s Rules of Practice provides that a party may request the Tribunal to order costs where a party believes that the other party has acted unreasonably, frivolously or vexatiously, or in bad faith. The respondent did not provide any submissions, evidence or authority with respect to why I should award costs in this matter. Therefore, the respondent’s request for costs is dismissed.
ORDER
1This application is dismissed.
2The applicant is not entitled to the benefits in dispute.
3The applicant is not entitled to interest.
4The respondent is not entitled to costs.
Released: January 16, 2018
___________________________
Rebecca Hines, Adjudicator
Footnotes
- This written hearing was initially scheduled for April 2017 but was delayed as a result of a motion brought by the respondent to address the applicant’s submission of a chronic pain assessment which was first served on the respondent with her written submissions. The hearing was adjourned and the applicant attended another IE. The parties were asked to file additional written submissions with respect to the chronic pain assessment of Dr. Siddique
- After the commencement of this written hearing the applicant was removed from the MIG due to pre-existing psychological issues.
- Heath v Economical, 2009 ONCA 391, 95 O.R. (3d) 785, para 32.