Applicant v. Aviva Insurance Canada, 2019 CanLII 63382

Licence Appeal Tribunal

Tribunal File Number: 18-006362/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:

Applicant

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Dinesh Shan, Paralegal

For the Respondent:

Mark Vella, Counsel

HEARD:

In Writing on: February 4, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on May 7, 2016. He was the front seat belted passenger in a vehicle which was merging onto the highway when it was struck by another vehicle at the rear passenger side. The applicant sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for a medical benefit for chiropractic treatment 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:

(i) Is the applicant entitled to receive a medical benefit in the amount of $3,483.14 for chiropractic services, recommended by Perfect Physio and Rehab Centre in a treatment plan submitted on December 4, 2017, and denied by the respondent on February 5, 2018?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3Based on the evidence before me, and on a balance of probabilities, I find that:

(i) The applicant is not entitled to receive a medical benefit in the amount of $3,483.14 for chiropractic services, recommended by Perfect Physio and Rehab Centre in a treatment plan submitted on December 4, 2017, and denied by the respondent on February 5, 2018?

(ii) The respondent is not liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iii) The applicant is not entitled to interest on any overdue payment of benefits?

ANALYSIS

4I will need to determine if the treatment plan in dispute is reasonable and necessary in accordance with s. 15 (1) of the Schedule and also determine if the respondent is liable to pay an award under Regulation 664. I do not find the applicant has met their burden of proof in establishing the chiropractic treatment plan in dispute is reasonable and necessary. I find no evidence to support that the respondent has unreasonably withheld or delayed payments to the applicant to warrant the respondent being liable to pay an award. I will provide an analysis of my findings below.

5The applicant attended physiotherapy immediately following the accident and the clinical note and record of Dr. R. Gill dated June 29, 2016 noted he attended a walk-in clinic and was prescribed anti-inflammatories, and muscle relaxants. The applicant was also advised by Dr. Gill to continue with physiotherapy. It is the position of the applicant that the chiropractic treatment plan dated December 4, 2017 (“disputed treatment plan”) is reasonable and necessary. The applicant relies on its own assessment reports from 2018. One was a chronic pain assessment report dated October 29, 2018 issued by Dr. T. Getahun, orthopedic surgeon. In his report Dr. Getahun examined the applicant for ongoing complaints of upper and lower back pain, and right sided head pain. It was noted that the applicant reported that as a result of his injuries from the accident, he no longer works out at the gym, or performs his housekeeping tasks. Dr. Getahun also noted the applicant was experiencing psychological factors since the accident. Dr. Getahun diagnosed the applicant with chronic myofascial strain of the cervical and thoracic spine, and possible neuralgia for the chronic right scar pain. It was recommended the applicant enrol in a chronic pain treatment program and receive physiotherapy in a multidisciplinary setting. I afford little weight to this assessment report as it does not address the treatment plan in dispute. In the list of documents reviewed by Dr. Getahun, he noted reviewing the Insurer’s examination (“IE”) report dated January 26, 2018 issued by Dr. J. Guerra, orthopedic surgeon where Dr. Guerra specifically addresses the disputed treatment plan and why he found it was not reasonable and necessary. However, Dr. Getahun provides an opinion as it relates to chronic pain which I do not find supports whether the disputed treatment plan was reasonable and necessary.

6The applicant also relies on its own psychological report dated October 29, 2018 which was completed by Dr. M. Sadeghi, psychologist. It was noted that the applicant’s physical pain impedes with his daily activities. There were psychological diagnoses provided by Dr. Sadeghi including: adjustment disorder with mixed anxiety and depressed mood, features of posttraumatic stress disorder, specific phobia (situational type (motor vehicles), and somatic symptom disorder. It was recommended that the applicant undergo physical therapy, an active exercise program, massage, acupuncture, a functional abilities evaluation, and 16 sessions of psychotherapy. I do not afford any weight to this report in support of the disputed treatment plan. This assessor is a psychologist and recommendations for physical treatment are outside of this assessor’s area of specialization.

7I am persuaded buy the evidence contained within the insurance examination (“IE”) assessment dated January 26, 2018, completed by Dr. J. Guerra, orthopedic surgeon. This report specifically addresses the December 4, 2017 chiropractic treatment plan in dispute and this assessment concluded the treatment plan was not reasonable and necessary. The report concluded that as a result of the accident, the applicant sustained soft tissue injuries which were considered to be treatable within the Minor Injury Guideline and maximum medical recovery had been reached. No ongoing objective musculoskeletal impairments resulting from the accident were found. Dr. Guerra recommended further facility-based treatment was not required and the applicant was encouraged to continue with self-directed home exercises. The applicant was subsequently removed from the Minor Injury Guideline on June 13, 2018 for psychological reasons.

8The burden of proof remains with the applicant. The applicant has relied on Dr. Gill’s June 29, 2016 CNR which recommended the applicant continue with physiotherapy. However, there were no CNRs produced by the applicant to address the applicant’s physical impairments in 2017. I am not persuaded by the applicant’s reports produced by Dr. Getahun and Dr. Sadeghi for the reasons which I outlined above. I do not find the diagnosis of chronic pain by Dr. Getahun has addressed how the goals of the treatment plan in dispute will be addressed. The applicant has not proffered any evidence of how the specific goals will be met by the proposed treatment within the December 4, 2017 treatment. Therefore I find the disputed treatment plan is not reasonable and necessary.

Claim for an Award under S. 10 of Ontario Regulation 664

9I do not find the respondent has acted unreasonably or withheld benefits by maintaining their denial of the disputed treatment plan. The applicant’s claim for an award is dismissed without merit. The applicant submitted the respondent has acted in bad faith as they did not respond, or consider the opinions provided by Dr. Getahun and Dr. Sadeghi regarding the applicant requiring ongoing physical treatment. The respondent submitted that the applicant has not submitted any requests for physical treatment which was opined on within these assessor’s reports. The respondent relied on their IE assessment report of Dr. Guerra in denying this treatment plan and I find the treatment plan was properly denied. The applicant’s two assessment reports do not specifically address the treatment plan goals, or comment on whether it is reasonable and necessary.

Interest

10As I have denied the applicant’s claims, there is no interest payable by the respondent.

CONCLUSION

11I find the treatment plan in dispute is not reasonable and necessary. Further, I find the applicant is not entitled to an award under Ontario Regulation 664. As no benefits are owing, no interest is payable. The application is dismissed.