M.L. v. Aviva Insurance Company, 2019 CanLII 94046

Citation: M.L. vs. Aviva Insurance Company, 2019 ONLAT 17-007722/AABS

Tribunal File Number: 17-007722/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:

M. L.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal For the Respondent: Candace Mak, Counsel

HEARD: In writing on August 6, 2019

OVERVIEW

1The applicant was injured in an automobile accident on April 21, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES:

2The issues in dispute in this hearing are:

1. Is the applicant entitled to medical benefits for treatment recommended by Mackenzie Medical Rehabilitation Centre Inc. as follows; i. $2,027.00 for a treatment plan dated September 20, 2016; and ii. $2,569.40 for a treatment plan dated September 5, 2017?

2. Is the applicant entitled to interest on overdue payments?

RESULT

3The applicant is successful on all issues.

BACKGROUND

4The applicant was the driver of a vehicle which was struck from behind while waiting at a red light. The accident caused the applicant to have sprain/strain injuries to the cervical, thoracic, and lumbar areas of the spine, headaches, as well as an adjustment disorder with mild anxiety and depressed mood. The applicant engaged in physical and psychological treatment at Mackenzie Medical Rehabilitation Centre Inc., however, the respondent denied funding for certain treatment costs.

5The applicant commenced a proceeding with the Tribunal to resolve these disputes over entitlement to certain benefits. The matter was ordered to a hearing in writing, which occurred and resulted in a decision dated June 11, 2018. Following the decision, the respondent requested the Tribunal reconsider the matter, which the Tribunal did. The reconsideration decision ordered this re-hearing regarding entitlement to two treatment and assessment plans, listed above under the issues in dispute and herein referred to as the disputed treatment plans, plus interest.

DISCUSSION

6At issue is whether the disputed treatment plans are reasonable and necessary. I find they are. My reasons are as follows.

7The applicant’s submissions focused on the deficiencies of the respondent’s insurer examination reports and fail to address how or why the disputed treatment plans are reasonable and necessary. However, I find the medical evidence demonstrates the disputed treatment plans are reasonable and necessary despite the respondent’s contention the applicant has not provided any evidence demonstrating this.

8I find the applicant has suffered from soft-tissue injuries to the neck and back which are aggravated by bending and prolonged sitting and sleeping. The medical records show the applicant has ongoing pain from these injuries. The clinical notes and records (“CNRs”) of Mackenzie Medical Rehabilitation Centre Inc, albeit difficult to read, document the applicant’s complaints of neck and back pain at the beginning of virtually every appointment. This includes the time period immediately preceding the date of the disputed treatment plans. The psychological insurer’s examination report by Dr. S. Mor, dated November 1, 2016 (“the Mor IE”) notes the applicant is “experiencing some emotional disturbance related to (the applicant’s) pain”, has pain which can feel overwhelming, and has pain which interferes with work. The insurer’s examination by Dr. MacKay dated August 25, 2017 (“the MacKay IE”) also notes the applicant’s pain and that the applicant reported a benefit from the treatment received prior to the assessment and spoke about increased symptomology when regular treatment ended. The CNRs of Dr. J. Pilowsky, psychologist, note the applicant’s ongoing pain complaints and also note the applicant’s physical and psychological state deteriorated and pain is aggravated by a lack of physical treatment.

9The respondent denied the disputed treatment plans on the recommendation of Dr. Hanna, physician, in the insurer’s examination report and addendum, dated December 2, 2016 and January 23, 2017 (“Dr. Hanna’s reports”), respectively. I find Dr. Hanna’s reports do not outweigh the balance of the evidence. Dr. Hanna’s reports focus on whether or not the applicant’s injuries fall within the Minor Injury Guideline (“MIG”). I find this focus skews the assessor’s opinion because Dr. Hanna’s examination focused on whether the applicant’s injuries were predominantly minor injuries as defined by the Schedule and fails to address the true test for entitlement: whether the disputed treatment plans are reasonable and necessary. In fact, Dr. Hanna, despite having an insurer’s examination report confirming the applicant suffered psychological injuries which require treatment outside the MIG, erroneously found the applicant’s injuries to be within the MIG. For these reasons, I prefer the opinions in the Mor IE, the MacKay IE, and the information in the CNRs of Dr. Pilowsky over Dr. Hanna’s opinion.

10The disputed treatment plans propose chiropractic, massage therapy, and physiotherapy treatment to increase range of motion, reduce pain, increase strength, and return to activities of normal living and working. Considering the applicant continues to have ongoing pain which has impacted the applicant’s functionality, I find these goals to be reasonable and necessary. The respondent does not dispute the fees for the proposed goods and services.

CONCLUSION AND ORDER

11The disputed treatment plans are reasonable and necessary.

12The applicant has incurred the services recommended in the treatment plan dated September 20, 2016 and the respondent must pay for the incurred treatment plus applicable interest pursuant to section 51 of the Schedule.

13I am unsure if the applicant has incurred the services recommended in the treatment plan dated September 5, 2017. If so, the applicant is entitled to payment from the respondent for the services incurred to-date plus any applicable interest. If the applicant has not incurred the services, the applicant is entitled to do so and the respondent is liable to pay the incurred expenses pursuant to the treatment plan.

Released: August 15, 2019

___________________________

Brian Norris

Adjudicator