E.B. v. Aviva Insurance Canada, 2019 CanLII 126109

E.B. v. Aviva Insurance Canada

Citation: E.B. vs. Aviva Insurance Canada, 2019 ONLAT 18-010159/AABS

Tribunal File Number: 18-010159/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:

E.B.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Bambi Santiago, Paralegal

For the Respondent: Marianne D. Davies, Counsel

HEARD: In Writing on May 21, 2019

OVERVIEW

1The applicant was injured in an automobile accident on June 24, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Is the applicant entitled to medical benefits for treatment recommended by Pain Rehab Clinic as follows:

a. $2,900.00 for acupuncture, massage, and chiropractic therapy proposed in a treatment plan dated July 14, 2017;

b. $2,200.00 for a social work assessment proposed in a treatment plan dated October 14, 2016;

c. $2,035.00 for an in-home assessment proposed in a treatment plan dated April 14, 2017; and

d. $200.00 for the production of a disability certificate dated June 16, 2017?

2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the benefits claimed.

BACKGROUND

4The applicant was the driver of an electric scooter which crashed while swerving to avoid a nearby vehicle while travelling on an urban street. The applicant did not seek medical assistance immediately following the accident but went to the hospital the following day and diagnosed with three (3) broken ribs on the left side. The applicant participated in physiotherapy and chiropractic treatment following the accident, and the respondent paid for it.

5About 4 months following the accident, the applicant requested funding for a social work assessment – Issue 1(b) – but the respondent denied it.

6About a year following the accident, the applicant requested funding for further chiropractic and physiotherapy treatment – Issue 1(a) – as well as an in-home assessment – Issue 1(c). The respondent also denied funding for these services on the opinion an insurer’s examination assessment that found further physical treatment is not reasonable and necessary. The applicant disagrees and claims entitlement to the assessment and treatment plan, which are also subjects to this hearing.

ISSUE 1(A) - The treatment plan dated July 14, 2017

7I find the chiropractic and physiotherapy treatment plan is not reasonable and necessary because the applicant was reported to be virtually pain-free and functional at the time the plan was proposed.

8As the applicant submits, this disputed treatment plan was proposed in order to improve the applicant’s range of motion and functionality, and to reduce pain. However, the clinical notes and records (“CNRs”) of Dr. L. Wilson, the applicant’s family physician, note the applicant is pain free near the time the treatment plan was proposed and the physiatry insurer’s examination (“IE”) reports of Dr. J. Millard state the applicant has functional range of motion. Specifically, the physiatry IE report by Dr. Millard, dated January 18, 2017, found the applicant’s right shoulder had functional range of motion and only a mild impairment in range of motion. In an addendum report dated April 28, 2017, Dr. Millard maintained this opinion and added there was nothing preventing the applicant from immediately returning to work as a painter. The CNR’s of Dr. L. Wilson, family physician, note on March 15, 2017, the applicant was no longer taking prescription pain medication and was reporting improved shoulder functionality. In August 2017, Dr. Wilson noted the applicant had full range of motion and was pain free.

9In addition, the breakdown of the fees proposed is too vague. The facility notes it charges $150.00 per treatment session but does not say which treatment modality will be provided, nor does it indicate the duration of the treatment sessions.

ISSUE 1(B) - The social work assessment plan dated October 7, 2016

10I find the applicant is not entitled to the social work assessment plan dated October 7, 2016 because there is no evidence of social problems the plan aims to address. The plan proposes an assessment to determine the treatment required to address financial and social stressors related to disability and difficulties with re-integrating into the workforce.

11Oddly, the injuries listed in this plan are different than the injuries listed in the other treatment plans. It lists problems related to social environment, certain psychosocial circumstances, housing, and employment. It also notes issues in his relationships with his spouse, parents, and in-laws. However, the injuries listed on the OCF-3 dated June 16, 2017, the in-home assessment plan dated April 14, 2017, and the physiotherapy and chiropractic plan dated July 14, 2017 do not include any of those issues. Instead, they include multiple fractures of the ribs and sprain and strain injuries to the shoulder joint and thoracic spine.

12In the IE report by Dr. A. Syed, psychologist, dated January 18, 2017, does not support the need for a social work assessment. In Dr. Syed’s report, the applicant advised of no change in his relationships with his spouse, children, family, and community. Dr. Syed concluded the nature and severity of the applicant’s psychological distress is subclinical, and from a psychological perspective, considered him to have reached maximum medical recovery.

13The bio-psychosocial assessment report is not persuasive because it is not supported by other medical evidence. The report by A. Silvester, psychotherapist, dated July 16, 2018, notes the applicant reports to be experiencing diminished cognitive skills, contrary to the OCF-12 Activities of Normal Life form, completed August 2, 2016. More importantly, the report notes limitations affect the applicant’s ability to participate in daily tasks and maintain relationships with friends as a result of psychological impairments, but this claim is not supported by other medical records and the applicant provided no examples or evidence of such limitations. Likewise, the report notes the applicant’s relationship with his son has deteriorated, but this is the first and only record of such hardship.

ISSUE 1(C) - The in-home assessment plan dated April 14, 2017

14The applicant claims entitlement to an in-home assessment and submits it is reasonable and necessary because it is more probable than not that personal care and home care assistance is required as a result of the accident-related injuries. The respondent disagrees and submits the assessment is not reasonable and necessary because there is no compelling evidence in support of this assessment.

15While the parties disagree on the test to determine whether the assessment is reasonable and necessary, I find the applicant does not meet either test put before me because there is no evidence showing the applicant is disabled from completing his personal care tasks.

16The applicant participated in an IE by Dr. Millard, physiatrist, about 4 months prior to the submission of this treatment and assessment plan, on December 8, 2016. Dr. Millard noted the applicant reported to be fully capable with personal care. Dr. Millard found the applicant had functional range of motion in the right shoulder and full active range of motion in the cervical spine.

17Likewise, Dr. Wilson’s CNRs do not support the need for an in-home assessment. As previously stated, Dr. Wilson noted the applicant’s shoulder functioning had improved and he was no longer using prescription pain relief as of March 15, 2017. In an entry dated August 9, 2017, Dr. Wilson noted the applicant’s shoulder range of motion was full and without pain.

18I find the OCF-12 Activities of Normal Life form, does not sufficiently overcome the medical opinions above. This is because the OCF-12 is a self-reporting document completed about 8 months prior to the submission of the treatment and assessment plan, and it includes no medical opinion. Further, relative to the other medical evidence, the information in the OCF-12 is not persuasive – it notes independence with cognitive activities, grooming, dressing/undressing (but some difficulty donning shirts), walking, sitting, climbing stairs, grocery shopping. The only disabilities the applicant noted were an inability to wash his back, wash floors, take out the garbage, cut grass, and make his bed independently.

ISSUE 1(D) – Is the applicant entitled to payment for the OCF-3?

19The applicant also seeks reimbursement for the production of an OCF-3 Disability Certificate, dated June 16, 2017. The respondent refused to pay for this cost because the respondent did not request it.

20I find the applicant is not entitled to the cost to produce the disability certificate because it was not required under section 21, 36, or 37 of the Schedule.

21Section 25(1)1 entitles the applicant to the reasonable fees related to the production of a Disability Certificate if required under section 21, 36, or 37. The applicant has provided no evidence of a claim for lost educational expenses as outlined in section 21. Similarly, the applicant had previously submitted a disability certificate dated November 23, 2016 for the purposes of claiming income replacement benefits (“IRBs”), pursuant to section 36. Lastly, there is no evidence the respondent requested a disability certificate to determine the applicant’s ongoing entitlement to IRBs, pursuant to section 37.

CONCLUSION AND ORDER

22Upon review of the submissions and evidence before me, I find the applicant is not entitled to any of the disputed treatment and assessment plans. No benefits are payable or overdue. As a result, no interest it payable.