S.G. v. Aviva Insurance Company, 2019 CanLII 76988

Licence Appeal Tribunal

Tribunal File Number: 18-002269/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:

S.G.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

PANEL: Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant: Timothy Gindi, Lawyer

For the Respondent: David Koots, Lawyer

HEARD: In Writing on: December 6, 2018

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on May 17, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant has been removed from the Minor Injury Guideline for psychological reasons and thus has access to $50,000 in medical and rehabilitation benefits under the Schedule.

3The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) when his claims for medical benefits were denied by the respondent. A case conference was held on June 20, 2018 and a combination hearing was scheduled. Written correspondence was received from the parties in November 2018 which advised the Tribunal the in-person component of the hearing was not required, and the hearing would be proceeding in writing only.

ISSUES

4The following issues are in dispute:

(i) Is the applicant entitled to receive a medical benefit in the amount of $1,071.41 for chiropractic services, recommended by Revive Health Services in a treatment plan submitted August 20, 2016, and denied by the respondent on September 2, 2016?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $1,529.81 for chiropractic services recommended by Revive Health Services in a treatment plan submitted November 9, 2016, and denied by the respondent on November 16, 2016?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $1,415.21 for chiropractic services, recommended by Revive Health Services in a treatment plan submitted March 1, 2017 and denied by the respondent on March 14, 2017?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $1,300.61 for chiropractic services, recommended by Revive Health Services in a treatment plan submitted November 9, 2017, and denied by the respondent on November 14, 2017?

(v) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

5I find that the applicant has not established that any of the disputed treatment plans are reasonable and necessary. The claim for an award is dismissed without merit. As no benefits are payable, there is no entitlement to interest.

ANALYSIS

6The applicant argues the treatment plans in dispute are reasonable and necessary. The applicant relies on the diagnosis of Dr. K. Prutis, physiatrist that the applicant suffers from chronic low back pain as a result of the accident. The applicant submitted he works as a truck driver and sitting for prolonged periods exacerbates his low back pain. He further submitted that ongoing treatment helps with managing his pain and “reducing flare-ups” and he attends treatment once per week. The applicant relies on the following two decisions of the Tribunal: 16-000393 v. Pembridge Insurance Company² and 16-002861 v. Aviva Insurance Company³ in which the adjudicators found that pain relief was a legitimate treatment goal even if it did not promote recovery.

7The respondent argues the treatment plans in dispute are not reasonable and necessary as the applicant has not established his ongoing pain complaints are related to the accident.

8I find the treatment plans in dispute are not reasonable and necessary. I have reached this conclusion based on the following reasons:

(i) I find the reporting of musculoskeletal complaints to be too infrequent to establish that the applicant’s ongoing low back pain is the result of the accident. The delay of almost two months in the applicant initially reporting any musculoskeletal complaints to his doctor following the accident is worthwhile noting. The OHIP summary notes that the applicant did not report any musculoskeletal complaints following the accident until July 13, 2015. The OHIP summary which noted entries up to March 5, 2018 contained only three additional entries noting musculoskeletal complaints.⁴ Further, no clinical notes and records were produced for the hearing to reference the accident as the cause of the applicant’s ongoing low back pain complaints.

(ii) The applicant relied on the consultation reports of Dr. Prutis to support his claim, but I afford little weight to these reports as they were done 15 and 18 months after the accident and Dr. Prutis relied on the applicant’s self reporting and the results of an MRI. She noted the MRI revealed multi-level degenerative disc disease of the spine and the applicant had disc protrusions (herniations) at the L4-L5 level and L5-S1 levels, the latter with an annular tear and small sequestered disc fragment at the L5-S1 level. It was the conclusion of Dr. Prutis that the applicant sustained moderately severe lumbar strain as a result of the subject accident and suffers from chronic low back pain as a result. Dr. Prutis recommended physiotherapy treatment. However, Dr. Prutis did not provide an explanation as to how she reached her conclusion that the applicant’s chronic low back pain was linked to the accident.

(iii) Although I find the recommended treatment noted by Dr. Prutis noted some of the same treatment modalities as recommended within the disputed treatment plans, I am not persuaded by the reports of Dr. Prutis that the applicant’s chronic low back pain is a result of the accident for the reasons which I have noted above.

(iv) My findings are further supported by the insurer’s examination report dated July 26, 2016 of Dr. F. Abuzgaya, orthopedic surgeon. Dr. Abuzgaya found that the applicant’s accident-related diagnosis was consistent with soft tissue injury to bilateral shoulders and lumbosacral strain. He noted the applicant had functional range of motion in his shoulders and lumbar spine and found no objective medical evidence of any residual musculoskeletal impairment resulting from the accident.

9Based on the evidence before me, the applicant, for the reasons noted above, has not persuaded me that the proposed treatment within the disputed treatment plans is required as a result of the accident, or that it is reasonable and necessary.

Is the Applicant Entitled to an Award Under Ontario Regulation 664?

10Section 10 of Regulation 664 allows the Licence Appeal Tribunal to award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing if it is the Tribunal’s finding that an insurer has “unreasonably withheld or delayed payments”.

11The applicant did not make any submissions regarding a claim for an award. I do not find the respondent has deliberately withheld or delayed payments to the applicant based on their denial of the treatment plans in dispute. The applicant’s claim for an award is therefore dismissed without merit.

INTEREST

12As no benefits are payable, there is no entitlement to interest.

CONCLUSION

13For the reasons outlined above, the applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 216-000393 v. Pembridge Insurance Company, 2017 CanLII 12600 (ONLAT)
3. 316-002861 v. Aviva Insurance Canada, 2017, 62160 (ONLAT)
4. 4OHIP Summary produced for the hearing which further noted strains, sprains and musculoskeletal complaints on the following dates: February 28, 2016, August 30, 2017, and November 29, 2017