Tribunal File Number: 18-004574/AABS
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:
V.V.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Thérèse Reilly, Adjudicator
Appearances:
For the Appellant:
Gurpa Sandhu, Counsel
For the Respondent:
David E.W. Koots, Counsel
Heard: In Writing
Hearing: May 9, 2019
OVERVIEW
1The applicant was involved in an automobile accident on April 10, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant maintains she is entitled to the medical benefit on the basis that the respondent wrongfully denied the treatment plan as based on medical evidence the treatment plan is reasonable and necessary. The applicant argues the medical documentation from her family doctor and physiatrist make it clear that the applicant suffered an impairment as a direct result of the accident and seeks a declaration to that effect from the Tribunal. The respondent denied the treatment plan and argues the applicant must first seek payment of the benefit under its collateral benefit provider. Moreover, it questions whether the injury with the passage of over 9 years since the accident is accident related. It also questions the Tribunal’s jurisdiction to make a declaration for future benefits.
3The Order of the case conference adjudicator states the issues as follows:
i. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,464.00 for physiotherapy recommended by the Sporting Edge in a treatment plan that was submitted on August 4, 2017, denied by the respondent on October 13, 2017?
ii. Is the applicant entitled to receive interest on the overdue amounts?
RESULT
4I find based on the totality of the evidence that the applicant’s collateral benefits are not exhausted. I find the treatment plan is not reasonable and necessary. The request for a declaration is dismissed. The claim for interest is dismissed.
THE LAW
5The respondent refers to the relevant language of Section 47(2) of the Schedule (formerly section 60 (2) of the Schedule) which states as follows:
Payment of a medical, rehabilitation or attendant care benefit or a benefit under part IV is not required for that portion of an expense for which payment is reasonably available to the insured under any insurance plan or law or under any other plan or law.
6The respondent argues it is not required to pay the benefit as the applicant has collateral benefits coverage that is available to pay for the item in dispute and as such it is not necessary for the Tribunal to determine if the treatment plan is reasonable and necessary. For the reasons set out below I disagree.
7The respondent under section 15 (1) of the Schedule is required to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.
COLLATERAL BENEFITS COVERAGE
8The applicant maintains that even if the Tribunal finds the collateral benefit applies, she seeks a declaration from the Tribunal that the applicant sustained an impairment as a direct result of the accident and the proposed goods and services in the treatment plan are reasonable and necessary. She maintains such a declaration will play an important role in any future claims for statutory accident benefits by the applicant arising from this accident.
9The respondent denies it is required to pay for the benefit, even if it were found to be reasonable and necessary, as the applicant has collateral benefits coverage which is available to pay for the benefit. It argues the collateral coverage must first be exhausted before it is required to pay for the benefit under section 47(2) of the Schedule. It maintains it is not liable to pay for the benefit under section 47(2) of the Schedule as the applicant has collateral benefits which have not been exhausted.
10The parties prior to the written hearing exchanged emails1 to confirm the collateral benefits coverage is in place and is available to the applicant. The evidence from the parties indicates that the applicant has coverage for $5000 a year from one collateral benefit provider for physiotherapy treatment. There is a further $1000 of collateral benefits coverage available from another collateral benefit provider coverage for several benefits. The respondent argues that the applicant’s collateral benefits insurer covers the medical benefits proposed as there is no outstanding balance at Sporting Edge Physiotherapy Inc. The respondent in its submissions states that the collateral coverage would be available to the applicant to pay for the benefit in dispute. 2
11The respondent relies on a reconsideration decision of the Tribunal in GT v. Unifund3 in which it was determined that an insured must first seek coverage through a collateral benefit provider. The insurer must advance some evidence showing that collateral coverage is available and on doing so the onus then shifts to an insured to show there is no collateral benefits coverage available.
12The applicant acknowledges the respondent is raising the issue of the collateral benefits coverage.4 The applicant admits in her submissions that the applicant’s collateral benefits cover most if not all of the claimed medical benefit in dispute. 5 She presented no evidence to indicate that coverage has been exhausted for 2017 and did not present any evidence to challenge the respondent’s position that the collateral benefits coverage is available to pay for the disputed item. The applicant did not file any reply submissions.
ANALYSIS
13On a reading of the LAT decision in GT v Unifund, the applicant would have to first exhaust coverage that is available from the collateral benefits provider. However, the evidence from the applicant does not support the position that the collateral benefit is exhausted and would cover all of the benefit as she states the benefit would cover most if not all of the benefit being sought. The respondent states the coverage would be available to cover but no specific evidence is provided of that.
14Despite the wording of section 47(2), I find no evidence has been presented by either party to show the amount of collateral benefits coverage that is actually available to pay for the benefit in dispute. As such I cannot find that collateral coverage is available to pay for the specified benefit.
15Alternatively, I will determine whether the treatment plan is reasonable and necessary, and the injuries are accident related.
Is the treatment plan reasonable and necessary?
16The applicant maintains she is entitled to the medical benefit on the basis that the treatment plan is reasonable and necessary. The respondent argues that the treatment plan is not reasonable and necessary, and it questions whether the injuries are accident related.
17The applicant bears the burden to establish the proposed treatment plan is reasonable and necessary.
18To support her position, the applicant submits the clinical notes of her family doctor which indicate that the applicant suffered injuries as a direct result of the accident in 2010. The notes refer to visits in May 25, 2011, July 13, 2011 and December 2012 where the family doctor refers to neck and shoulder pain being suffered by the applicant following the accident. The notes of the family doctor acknowledge the applicant has persistent pain and doing physio, massage therapy, and acupuncture, although the symptoms are not improving.
19However, the notes become silent between December 2012 until August 31, 2017 on the applicant’s pain complaints arising from the accident. The respondent argues that in the 8 visits to the family doctor between December 2012 and August 2017, no mention is made of the musculoskeletal injuries and pain symptoms. In this time period, it argues the applicant had 2 children, was able to engage in martial arts and returned to work. The respondent relies on the absence of notes from the family doctor between December 2012 and August 2017 to support its argument that the ongoing pain complaints are not accident related. No evidence is presented by the applicant to explain the gap in the notes and what has occurred between December 2012 and August 2017. The respondent urges there is a gap in treatment and the doctor’s notes raise a causation issue. I agree. The evidence from the family doctor and Dr. Paleksic discussed below supports this finding.
20The applicant from August 2017 going forward (some 7 years post accident) complaints that her pain is persisting in the neck and shoulder. The doctor states these symptoms are aggravated by posture, from being in one position for too long. The family doctor in November 2018 acknowledged her pain has been aggravated by work place repetitive strain and subdeltoid bursitis.
21The applicant submitted the clinical notes from Dr. S. Paleksic, physiatrist which on May 17, 2017 indicated to the family doctor that the applicant has myofascial neck and parascapular pain with right rotator cuff dysfunction in the form of bursitis and impingement and suffers from some minor headaches. Dr. Paleksic reports that the pain complaints started after the initial injury in 2010 due to whiplash, but it has propagated due to repetitive strain in a non-ergonomically adjusted position at work. Dr. Paleksic, in her report concludes that if the work place repetitive strain ergonomics are not corrected at the workplace, no amount of medical rehabilitation will improve the applicant’s pain as the applicant will always interact with repetitive activity.
22In support of its denial of the treatment plan, the respondent relies on a report by Dr. Kruger, general physician dated September 29, 2017. He concluded from his examination of the applicant from a musculoskeletal perspective, that the claimant suffered only soft tissue injuries. Dr. Kruger found the applicant suffered minor pains and strains and the treatment plan is not reasonable and necessary.
23The respondent argues that Dr. Kruger arrived at the same conclusions reached by Dr. Taromi, orthopaedic surgeon dated November 2011 in which Dr. Taromi found the applicant had sustained soft tissue injuries which had significantly improved at the time of his examination.
24The respondent refers to Dr. Paleksic’s conclusion that if the work place repetitive strain ergonomics are not corrected at the workplace, no amount of medical rehabilitation will improve the applicant’s pain as the applicant will always interact with repetitive activity. It states something other than the accident is causing the ongoing pain complaints of the applicant. I agree. I find there is sufficient evidence to support the respondent’s position that something other than the accident is responsible to the ongoing pain complaints.
25The applicant maintains Dr. Kruger’s report should be discounted. However, even if I were to discount Dr. Kruger’s report, which I am not, I find the applicant has failed to present sufficient evidence to establish the treatment plan is reasonable and necessary. The comments by Dr. Paleksic about the need to address workplace non-ergonomics is of particular relevance and importance to the issue of causation and whether the treatment plan is reasonable and necessary. Moreover, the applicant provides no explanation for the gap in the family doctors records. Dr. Taromi noted in November 2011 that the applicant’s symptoms had improved in November 2011. Dr. Kruger examined the applicant in 2017 and found no musculoskeletal impairment.
26I also find the evidence suggests that despite 9 years of treatment such as massage, physiotherapy, etc. it has not been effective as the pain complaints continue despite the treatment. I find this is a further reason to find the treatment plan is not reasonable and necessary.
27I find based on the totality of the evidence the treatment plan is not reasonable and necessary. The request for a declaration from the Tribunal that the applicant sustained an impairment as a direct result of the accident and the proposed goods and services in the treatment plan are reasonable and necessary is dismissed. The claim for the benefit is denied. The claim for interest is dismissed.
CONCLUSION
28For the reasons outlined, the applicant is not entitled to the rehabilitation benefit for $2,464.00 for physiotherapy. The claim for interest is dismissed.
Released: August 14, 2019
Thérèse Reilly
Adjudicator
Footnotes
- Tab 5, written submission of the respondent.
- Written submissions of the respondent, paragraphs 13 and 14.
- GT v Unifund, 2017 CanLii 81527, Tab 2 of the written submissions of the respondent.
- Written submissions of the applicant, paragraph 45.
- Written submissions of the applicant, paragraph 46.