Citation: J.A.A. vs. Aviva General Insurance Company, 2019 ONLAT 18-008671/AABS
Tribunal File Number: 18-008671/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:
J.A.A.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
PANEL: Jesse A. Boyce, Adjudicator
APPEARANCES: For the Applicant: Jeton Memeti For the Respondent: Kathleen Mertes
HEARD: In Writing on: October 7, 2019
OVERVIEW
1The applicant, J.A.A., was injured in an automobile accident on June 8, 2016. J.A.A sought various benefits from the respondent, Aviva General Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2J.A.A. is outside of the confines of the Minor Injury Guideline and has received physical and psychological treatment to date. Here, J.A.A. submitted a treatment plan for chiropractic services that was denied by Aviva on the basis that the treatment was not reasonable and necessary. J.A.A disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. A case conference was held but the parties were unable to settle the issues and dispute and, thus, proceed to this written hearing.
ISSUES
3The issues in dispute, as outlined in the Case Conference Order dated April 1, 2019, are as follows:
a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,456.20 for chiropractic treatment recommended by Activa Kitchener in a treatment plan (OCF-18) denied on March 2, 2018?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find J.A.A. is not entitled to the treatment plan, as it is not reasonable and necessary. No interest is payable, and I decline to issue an award.
ANALYSIS
Is the treatment plan in dispute reasonable and necessary?
5Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary. I find J.A.A. is not entitled to the treatment plan in dispute, as it is not reasonable and necessary.
6J.A.A argues that the treatment plan is reasonable and necessary because he continues to experience pain and functional limitations as a result of the accident, that his condition has become chronic in nature, that prior treatment has proven to be helpful in his recovery and that his complaints of pain have been consistent. He submits that Aviva’s denial was improper under s. 38, that it was based on an outdated assessment and that the treatment plan should be paid because he has incurred a majority of it. In support of his position, J.A.A. relies on three OCF-3’s and various clinical notes and records.
7In response, Aviva submits that it properly denied the treatment plan on the basis of a previous s. 44 Physiatry Insurer’s Examination (“IE”). The report finds there was no indication that J.A.A.’s ongoing symptoms represented “any active, progressive or ominous soft tissue pathology.” Further, Aviva argues there were no significant features of MVA-related ongoing musculoskeletal impairments. Aviva relies on the findings in the report, which concluded that J.A.A. had reached maximum medical recovery from his accident-related physical impairments and that no further treatment was necessary. An addendum report was conducted by Aviva that reached the same conclusion: J.A.A. had achieved maximum therapeutic benefit from the previous chiropractic treatment and further clinic-based chiropractic treatment was not reasonable or necessary. J.A.A. was encouraged to continue with independent therapeutic exercises at home. I agree with Aviva.
8First, contrary to J.A.A.’s submissions, I find nothing improper or even irregular with Aviva’s denial correspondence dated March 12, 2018. On review of the explanation of benefits