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:
KA
Appellant
And
Aviva General Insurance
Respondent
DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Kathleen E. Mertes, Counsel
HEARD:
In Writing on: February 11, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant, “KA,” was involved in a motor vehicle accident on October 20, 2016 (“the accident”).
2KA sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, Aviva, denied her claim.
ISSUES
3The issues in dispute are:
Is KA entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from July 1, 2017 to July 31, 2017?
Is KA entitled to a medical benefit in the amount of $1,966.13 for psychological services, recommended by General Med M Inc. in a treatment plan (“OCF-18”) submitted on February 5, 2018, denied by Aviva on May 24, 2018?
Is KA entitled to the cost of examinations in the amount of $1,995.00 for a neurological assessment, recommended by General Med M Inc. in a treatment plan submitted on February 5, 2018, denied by Aviva on May 24, 2018?
Is KA entitled to a medical benefit in the amount of $655.00 for other assistive devices, recommended by Mackenzie Medical Rehab Centre Inc., in a treatment plan submitted June 21, 2017, denied by Aviva on June 28, 2017?
Is KA entitled to a medical benefit in the amount of $3,695.50 for chiropractic services, recommended by October 31, 2016 in a treatment plan submitted on October 31, 2016, denied by Aviva on November 11, 2016?
Is KA entitled to the cost of examinations in the amount of $1,995.00 for an orthopedic assessment recommended by General Med M Inc. in a treatment plan submitted on September 28, 2017, denied by Aviva on October 6, 2017?
Is KA entitled to a medical benefit in the amount of $1,384.70 for chiropractic services and massage, recommended by Mackenzie Medical Rehab Centre Inc. in a treatment plan submitted on June 28, 2017, denied by Aviva on July 6, 2017?
Is KA entitled to a medical benefit in the amount of $1,382.70 for chiropractic and massage services, recommended by Mackenzie Medical Rehab Centre Inc. in a treatment plan submitted on June 28, 2017, denied by Aviva on July 6, 2017?
Is KA entitled to interest on any overdue payment of benefits?
RESULT
4KA’s appeal is denied in its entirety. Accordingly, no interest is owing to her.
ANALYSIS
Issue 1: IRB
5The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.
6KA was working as an office manager when the accident happened. KA claims to have missed four weeks of work from July 1 – July 31, 2017 and relies on her Employer’s Confirmation Form (“OCF-2”) as evidence. KA’s submissions include evidence that she complained of headaches, disordered sleep and psychological distress, and that these caused her to miss work.
7I was struck by the absence of any mention of work-related limitations in KA’s psychological progress reports (PPRs). The PPRs respectively dated August 25, 2017 (by Irina Mironova, RP supervised by Dr. Cheryl Walker) and February 22, 2018 (by Dr.Eugene W. Hewchuk, psychologist) were detailed, but silent on the issue of employment. Dr. Hewchuk’s PPR of May 3, 2018 clearly indicates that KA was working by that date with no apparent limitations, and with no reference to any previous work-related limitations. This body of evidence does not help me to connect KA’s absence from work to accident-related impairments.
8In addition, KA’s Disability Certificate (“OCF-3”) dated November 1, 2016 and signed by Dr. Patricia Porco, chiropractor, did indicate limitations on work, but indicated that modified work was feasible, and gave a 9 to 12-week prognosis for the duration of disability. That prognosis does not extend to the period of July 1-31, 2017 claimed by KA. The OCF-3 is unpersuasive as a result.
9In my view, KA has failed to provide evidence that she missed any work due to injuries sustained in the accident. In addition, she fails to rebut Aviva’s evidence that she actually returned to work within a few days of the accident and continued to work there until laid off on June 30, 2017. I agree with Aviva that the lay-off is the real reason that KA lost work and employment income – not the accident-related injuries.
10KA’s appeal is denied.
Issues 2-8: Treatment and Assessment Plans
11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident [emphasis mine]. Section 15(1) specifies that medical benefits shall pay for expenses incurred by or on behalf of the applicant as a result of the accident.
12If I find that the injuries for which the applicant seeks medical benefits for treatment, including medications, were not sustained as a result of the accident, I will not need to determine whether the disputed treatment plans (issues 2-8) are reasonable and necessary.
Were KA’s injuries a result of the accident?
13KA was involved in an unrelated subsequent motor vehicle accident (“the second accident”) on November 17, 2016. KA has opened an accident benefits claim for injuries allegedly sustained in the second accident. That claim has not been related to this one.
14According to Aviva, KA advised that in the second accident, her body was thrown back and her head struck the headrest. KA claims to have immediately developed headaches, dizziness and vomiting for three days after the second accident.
15Aviva submits that KA did not seek medical attention for injuries allegedly sustained in the first accident until November 30, 2016 – two weeks after the second accident – according to the clinical notes and records (CNRs) of her family physician, Dr. Marta Czerner.
16In a consultation report dated March 29, 2017, Dr. Viacheslav Prigozhikh, neurologist, concluded that KA had sustained a concussion in the second accident and diagnosed her with post-traumatic migraine.
17KA does not contest any of Aviva’s submissions with respect to causation. In fact, her submission fails to mention the second accident at all, although she reported it to medical assessors.2
18I find that KA has failed to show that the injuries for which she seeks treatment were a result of the accident. As a result, I will not assess the treatment plans in detail to determine whether they are reasonable and necessary.
CONCLUSION
19KA’s appeal is denied; accordingly, there are no overdue benefit payments and therefore no interest is owing to WLL.
Released: August 8, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- For example, Dr. Howard Waiser, psychologist, who notes it in his IE report dated May 3, 2018.