K. R. v. Aviva Insurance Canada, 2019 CanLII 22218

Licence Appeal Tribunal

Date: 2019-02-12

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:

K. R.

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Appearances:

For the Appellant: Sandra D' Alessandro, Paralegal

For the Respondent: Brittanny K. Tinslay, Counsel

Heard In Person: November 13, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant “KR” was involved in a motor vehicle accident (“the accident”) on August 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2KR applied to the Licence Appeal Tribunal (“the Tribunal”) when her claims for benefits were denied by the respondent “Aviva”.

ISSUES IN DISPUTE

3I must determine the following issues:

1. Is KR entitled to a medical benefit in the amount of $980.00 for acupuncture services recommended by [Physical Therapy Clinic] in a treatment plan (“OCF-18”) submitted to the respondent on July 11, 2016 and denied on August 23, 2016?

2. Is KR entitled to a medical benefit in the amount of $2,907.44 for acupuncture services recommended by [Physical Therapy Clinic] in an OCF-18 submitted to the respondent on August 22, 2016 and denied on August 23, 2016?

3. Is KR entitled to a medical benefit in the amount of $1,821.50 for physiotherapy services recommended by [Physical Therapy Clinic] in an OCF-18 submitted to the respondent on July 6, 2016 and denied on August 23, 2016?

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

RESULT

4I find that KR has not met the onus on her to prove that the medical benefit she seeks is reasonable and necessary.

REASONS & ANALYSIS

5Sections 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

6Aviva contends that KR has failed to lead any medical evidence or argument to establish that the disputed treatment plans are reasonable and necessary and therefore she “has failed to satisfy her burden of proving entitlement” to the disputed benefits. Aviva argues that KR’s failure to include the disputed OCF-18s in her submissions represents a failure to address the essential elements of showing that they are reasonable and necessary.³

7In addition, Aviva raises the following concerns about KR’s medical evidence, which it argues indicates that there is no evidence of ongoing physical impairment that would make further treatment necessary:

i. KR accuses Aviva of ignoring her deteriorating physical condition, but her own family doctor -- Dr. Lara Rosenberg – made clinical notes on March 1, 2016 describing significant improvement, with range of motion restored, minimal tenderness and a reported return to almost all work activities and housekeeping chores. Dr. Rosenberg wrote a letter to KR’s employer on the same date, confirming her fitness to return to work with the exception of using an industrial vacuum cleaner.

ii. Dr. Rosenberg never referred KR to a specialist with respect to her alleged physical impairments. There is no evidence of a referral for further diagnostic testing either.

8Lastly, Aviva relies on the findings of its medical assessor, Fathi Abuzgaya, orthopedic surgeon, set out in two insurer’s examination (IE) reports dated February 18, 2016 and August 22, 2016 respectively, that KR suffered from no musculoskeletal impairments as the result of the accident and that, from a physical perspective, KR’s injuries could be treated within the funding cap set by the Schedule for minor injuries.⁴

9I find that KR has failed to meet the onus on her to show that the medical benefits she seeks are reasonable and necessary. I reached this conclusion because:

i. KR’s failure to include her OCF-18s with her submissions makes it impossible for me to assess whether they are reasonable and necessary against such criteria as treatment goals, response to previous treatment and diagnoses. This is compounded by KR’s failure in submissions to speak directly to the OCF-18s in dispute. I find that KR has failed to establish the elements for finding her OCF-18s reasonable and necessary.

ii. Contrary to KR’s assertions in her submissions, there is no medical evidence before me to suggest that her physical injuries are “permanent and serious”, or that she suffers from a “condition so chronic in nature” that they “will continue to give her cause for extreme pain and disability into the ongoing future.” These statements are unsupported by the medical documentation. KR does not contest Aviva’s evidence that her physical condition was, in fact, improving. Accordingly I give KR’s statements little weight.

iii. KR has not contested the evidence led by Aviva that she suffers from soft-tissue injuries and has not contested the inferences drawn by Aviva from its two IE reports, that her physical injuries did not warrant further medical treatment.

INTEREST

10Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

11The benefits claimed by KR are denied and therefore, no interest on overdue payments is due.

CONCLUSION

12KR has not met the onus on her to prove her entitlement to the disputed treatment plan.

13There are no payments owing to KR and therefore no interest due on overdue payments.

Released: February 12, 2019

___________________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Aviva cites 17-003860 v The Guarantee Company of North America, as a precedent for reaching this conclusion.
4. 4I note that KR was removed from the MIG because she sustained psychological injuries as a result of the accident.