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:
C.R.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Virginia Essipova
For the Respondent:
Robert Jones
HEARD In Writing on:
November 12, 2018
OVERVIEW
1The applicant, "CR", was involved in an automobile accident on November 29, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied to the Licence Appeal Tribunal (the "Tribunal") when the disputed benefits were denied by Aviva.
3A preliminary issue raised by Aviva in the case conference and included in the Order for this hearing was effectively withdrawn when Aviva agreed to pay one of the disputed benefits, an Attendant Care Needs assessment.
SUBSTANTIVE ISSUES
4The issues remaining in dispute are as follows.
Is CR entitled to receive a medical benefit in the amount of $2,373.00 for psychological services recommended by [Health Centre], in treatment plan that was submitted on February 10, 2016, denied by Aviva on March 11, 2016?
Is CR entitled to receive a medical benefit in the amount of $2,865.82 for chiropractic services recommended by [Health Centre] in a treatment plan that was submitted on March 14, 2016, denied by Aviva on March 24, 2016?
Is CR entitled to receive a medical benefit in the amount of $2,865.82 for chiropractic services recommended by [Health Centre] in a treatment plan that was submitted on May 11, 2016, denied by Aviva on June 1, 2016?
Is CR entitled to receive an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?
Is CR entitled to receive interest on any overdue benefit payments?
FINDINGS
5CR's appeal is denied because she failed to meet the onus on her to prove that the treatments and assessment she seeks are reasonable and necessary. Because CR's appeal is denied, the issue of interest does not arise.
6CR's award request is dismissed.
REASONS
7Sections 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. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
8To establish her claim, CR relies on the following evidence:
i. clinical notes from her family physician, Dr. Zagros Niakan, diagnosing "left nerve damage" (October 14, 2016) and chronic whiplash injury, with a recommendation for chronic pain management (November 14, 2017);
ii. a report by Dr. W. Purzanski, a pain specialist, diagnosing chronic recurrent headaches of multifactorial origin with accident-related tension and cervicogenic factors and chronic pain due to myofascial strain in the left shoulder, trapezius and paraspinal groups of muscles and chronic lumbar strain;
iii. a report dated March 29, 2018 by Dr. Karen Woolfrey, chronic pain specialist, diagnosing significant mutli-facet joint pain, significant myofascial pain around shoulder joints and tension-type headaches;
iv. reports by all three doctors of psychological complaints.
9To rebut CR's claim, Aviva relies on the following evidence:
i. In a psychological report dated April 19, 2016, Dr. Rakesh Ratti, psychologist, found no basis for a psychological diagnosis, no evidence of psychological factors affecting CR's functional abilities, and reported that CR noted a return to full-time work and denied any impact by the accident on relationships.
ii. In an orthopedic surgery report dated May 9, 2016, Dr. Manoj Bhargava, reported that CR had reached maximum medical recovery (MMR) and showed no signs of ongoing orthopedic impairments as a result of the accident, exhibited normal ranges of motion in her joints and that her soft-tissue injuries had resolved.
iii. After reviewing Dr. Purzanski's report, Dr. Ratti and Dr. Bharagava wrote addendum reports dated August 28, 2016 and August 31, 2016 respectively, both denying any ongoing objective impairments related to the accident and indicating that psychological and chiropractic treatments were not reasonable and necessary.
10Aviva also questions the strength of CR's evidence with the following assertions:
i. There is nothing in any of the medical reports or notes of CR's doctors that indicates that chiropractic or psychological treatment or assessment is recommended. Dr. Woolfrey suggested trying aquatherapy.
ii. Dr. Purzanski's report was written in support of chronic pain treatment, but did not address the treatment outlined in the disputed OCF-18s. By contrast, Aviva's medical assessors addressed the disputed OCF-18s directly.
iii. CR saw her family physician three times over the three years following the accident and the medical records from this period do not mention ongoing neck pain, back pain or headaches for almost two years after the accident.
11I note that none of Aviva's assertions as set out in paragraph 10 above is contested by CR.
12I find that CR has failed to meet the onus on her to prove her entitlement to the disputed medical benefits for the following reasons:
i. I prefer Aviva's evidence on claims of psychological impairment because nothing in Dr. Niakan's records indicates ongoing psychological issues and because Dr. Ratti is better qualified to reach conclusions on psychological issues than any of CR's medical assessors. Dr. Ratti conducted objective psychological tests in addition to conducting a clinical interview3, which in my view makes his findings more reliable.
ii. I accord Dr. Purzanski's report relatively light weight in determining this issue because it doesn't help me assess the specific treatments outlined in the disputed OCF-18s.
iii. CR's medical history is in my opinion inconsistent with her claim of chronic pain and psychological injury, which are the foundations of her argument for entitlement to the chiropractic treatment set out as issues 2 and 3 above.
iv. I find Dr. Bhargova's report persuasive in its finding that CR has reached MMR and is unlikely to obtain further functional improvement from the disputed physical treatments.
Award
13Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has "unreasonably" withheld or delayed payments.
14Despite claiming an award in her appeal, CR made no submissions on this issue, nor did Aviva address it. I dismiss it.
CONCLUSIONS
15CR's appeal is denied. As no benefits are owing, no interest is payable.
16CR's award requested is dismissed.
Released: February 27, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Scarlett v. Belair, 2015 ONSC 3635
- Along with a clinical interview, the following measures were administered to CR: The Beck Depression Inventory-II (BDl-11), the Beck Anxiety Inventory (BAI), Multidimensional Pain Inventory (MPI), and the Millon Clinical Multiaxial Inventory-III (MCMI-III) .