Citation: Jardine v. Aviva General Insurance, 2021 ONLAT 19-010989/AABS

Released Date: 06/15/2021

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:

Alan Jardine

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Gus Triantafillopoulos/Shannon Kelly, Counsel

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

In Writing and by Videoconference

OVERVIEW

1The applicant was involved in an automobile accident on January 15, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to the cost of examination in the amount of $2,486.00 for a Neurology Assessment, recommended by Synoptic Medical Assessments Inc. in a treatment plan dated February 8, 2019, and denied on February 21, 2019?

ii. Is the applicant entitled to the cost of examination in the amount of $2,034.00 for an Electroencephalogram (E.E.G.) recommended by ISCOPE Concussion and Pain Centres in a treatment plan dated November 15, 2019 and denied on January 13, 2020?

iii. Is the applicant entitled to the cost of examination in the amount of $4,746.00 for an MRI of the brain and nuclear study recommended by ISCOPE Concussion and Pain Centres in a treatment plan dated November 15, 2019 and denied on January 13, 2020?

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

v. Is the applicant entitled to interest on any overdue payments of benefits?

RESULTS

3The applicant is not entitled to the costs of examinations for a Neurology Assessment, for an E.E.G. and for an MRI.

4The applicant is not entitled to an award.

5The applicant is not entitled to interest.

BACKGROUND

6The applicant was involved in an accident on January 15, 2018. He was not taken to the hospital. Ambulance services were not involved, and the applicant required no immediate medical services. The applicant had a history of ongoing neck and low back pain as a result of a 2010 accident and since that time has been on disability, with ongoing back and neck pain.¹

7An OCF-23 was submitted by Physio Village Clinic, dated March 22, 2018, stating that the applicant suffers from post-concussion syndrome.²

8The applicant’s family doctor, Dr. Daien, filed an OCF-3 on February 8, 2019 indicating that the applicant sustained a minor head injury as a result of the accident.³ There was no mention of a concussion diagnosis or traumatic brain injury. On visits to Dr. Daien on March 8, 2018, on August 22, 2018 and on January 14, 2019, there was no diagnosis of any neurological symptoms nor any referral for an MRI brain or other imaging.

9The applicant attended a pain clinic on February 1, 2019 and saw Dr. Di Fonzo. Dr. Di Fonzo noted that the applicant had neck and shoulder pain, and headaches for the previous nine years. He noted that the applicant had cervicogenic headaches. Dr. DiFonzo saw the applicant on September 15, 2020 and diagnosed the applicant with mechanical neck pain with myofascial features, mechanical back pain and cervicogenic headaches.⁴

10In his Neurological Report dated December 9, 2019, Dr. M. Mehdiratta, neurologist, assessed the applicant with a mild traumatic brain injury and also noted that the applicant had normal language and attention.⁵ The applicant’s complaints to him were neck and lower back pain.

11Dr. Hui Li, neurologist, on September 24, 2019 noted that the applicant had a normal neurological exam. He concluded that the applicant has mechanical neck pain.⁶

12Dr. Nagib Yahmad, neurologist, in his s. 44 IE reports dated April 15, 2019, January 9, 2020 and an addendum report dated May 29, 2020 came to the conclusion that the applicant did not sustain any significant traumatic brain injury. He opined that the applicant’s headaches were likely cervicogenic in nature, related to the soft-tissue injury of the cervical sprain/strain, musculoskeletal and were non-neurologic in nature. Dr. Yamad concluded that there was no evidence of post-concussion syndrome.⁷ He opined that the applicant would have a full recovery, even with a mild traumatic brain injury.

ANALYSIS

i. Is the applicant entitled to the cost of examination in the amount of $2,486.00 for a Neurology Assessment, recommended by Synoptic Medical Assessments Inc. in a treatment plan dated February 8, 2019, and denied on February 21, 2019?

ii. Is the applicant entitled to the cost of examination in the amount of $2,034.00 for an E.E.G. recommended by ISCOPE Concussion and Pain Centres in a treatment plan dated November 15, 2019 and denied on January 13, 2020?

iii. Is the applicant entitled to the cost of examination in the amount of $4,746.00 for an MRI of the brain and nuclear study recommended by ISCOPE Concussion and Pain Centres in a treatment plan dated November 15, 2019 and denied on January 13, 2020?

13Section 15 of the Schedule requires all medical benefits to be reasonable and necessary in order to be payable.

14I find that the applicant is not entitled to the costs of the examinations set out above for the following reasons.

15The applicant’s position is that the applicant suffered a head injury as a result of the accident which is causing his headaches and pain. The applicant’s position is that the three treatment plans for examinations will assist to determine the treatment needed to deal with the brain injury and are therefore reasonable and necessary.

16The respondent’s position is that the neck and back pain is the continuing pain that the applicant had pre-accident and that the headaches are cervicogenic headaches relating to the soft-tissue injury of the cervical sprain/strain and are not associated with any neurological disability or impairments.

17There is no objective medical evidence before me to show that the applicant suffered a neurological disability, or impairment as a result of the accident. There is no medical documentation that the applicant lost consciousness at the accident, was confused, needed an ambulance or needed immediate medical treatment.

18The applicant’s family doctor, Dr. Daien, filed an OCF-3 on February 8, 2019 indicating that the applicant sustained a minor head injury. There was no mention of a concussion diagnosis or traumatic brain injury. On visits to Dr. Daien on March 8, 2018, on August 22, 2018 and on January 14, 2019, there was no diagnosis of a brain injury or concussion nor any referral for any MRI brain or other imaging.

19The reports of Dr. Yahmad, Dr. DiFonzo and Dr. Lui all come to the same conclusion that the applicant suffered no traumatic brain injury and that the headaches of the applicant were cervicogenic in nature. I accept these reports over any other medical reports on the basis that they also support Dr. Daien’s findings. Dr. Daien at no time diagnosed a brain injury or concussion, nor felt the need to refer the applicant for further brain tests.

20The OCF-23 submitted by Physio Village Clinic dated March 22, 2018 noting post-concussion syndrome was prepared by a physiotherapist who is not qualified to provide a diagnosis of a brain injury. No weight can be given to this opinion. For these reasons, I find the applicant has not demonstrated that any of the Neurology Assessment, E.E.G. or MRI are reasonable and necessary or payable.

AWARD/INTEREST

21As no benefits are owing, I find that the respondent is not liable to pay an award under Regulation 664 or interest.

CONCLUSION

22Based on the above findings, the application is dismissed.

Footnotes

1. 1Clinical notes and Records of Dr. D. Daien Tab 9
2. 2OCF-23 date March 22, 2018 Applicant’s Document Brief Tab 10
3. 3OCF-3 dated February 8, 2019 Applicant’s Document Brief Tab 12
4. 4Report of Dr. Di Fonzo dated February 12, 2019, and September 15, 2020 Tab 10 Respondent’s Brief of Documents
5. 5Report of Dr. Mehdiratta dated December 9, 2019 Applicant’s Brief of Documents Tab 15
6. 6Report of Dr. Li dated September 24, 2019 Tab 11 Applicant’s Brief of Documents
7. 7Reports of Dr. Yahmad dated April 15, 2019, January 9, 2020, May 29, 2020, Tabs 4,7, Applicant’s Brief of Documents