J.S. vs. Aviva Insurance Canada, 2020 ONLAT 18-008643/AABS
Tribunal File Number: 18-008643/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:
J.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Christine McKenna, Counsel
HEARD: In Writing on August 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on January 29, 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 benefits and, as a result, the applicant 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:
Is the applicant entitled to the cost of an orthopaedic assessment in the amount of $2,410.00, recommended by All Health Medical in a treatment and assessment plan dated September 12, 2016?
Is the applicant entitled to a medical benefit in the amount of $1,685.00 for a chiropractic treatment plan recommended by Health Plus Rehab, dated April 11, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delated the payment of benefits?
RESULT
3The applicant is not entitled to the benefits claimed.
BACKGROUND
4The applicant was the driver of a car which was struck by another vehicle near the rear end on the passenger’s side. The applicant went to her family physician, Dr. G. S. Dhillon, later that day and complained of neck and back pain. Dr. Dhillon diagnosed the applicant with whiplash cervical sprain and low back pain. The applicant was prescribed pain medication and physiotherapy.
5The applicant was initially treated according to the Minor Injury Guideline (“MIG”), but was later removed from the MIG due to psychological injuries. As a result, the applicant is not subject to the $3,500.00 funding limit on treatment.
COMPLIANCE WITH SECTION 38(8)
6The applicant claims entitlement to the disputed treatment and assessment plans on the basis the respondent has not complied with section 38(8) of the Schedule. I find the applicant has not established how or why the notices denying the treatment and assessment plans are not compliant with section 38(8).
7Section 38(8) provides that the respondent has three obligations when responding to a treatment and assessment plan: 1) the response must be delivered within 10 business days, 2) the response must identify the goods and services the respondent agrees to pay for and those the respondent does not agree to pay, and 3) the response must include the medical and all other reasons why the respondent does not agree to pay for any of the goods and services proposed.
8In this case, the applicant’s submission that the respondent has failed to comply with section 38(8) is unclear. The applicant does not specify which obligation the respondent has failed to comply with, let alone how the respondent failed to comply. The applicant makes no submissions on the timeliness or the content of the responses. There are no submissions addressing whether the notice fails to identify the goods and services which the respondent agrees or does not agree to pay. Nor are there any submissions on whether the notices provide the medical and other reasons for the decision. As a result, the applicant has failed to demonstrate in any way why the respondent’s notices are deficient.
ISSUE 1 - The orthopaedic assessment plan dated September 12, 2016
9I find the applicant is not entitled to the orthopaedic assessment plan because it is not reasonable and necessary.
10In short, the orthopaedic assessment is a duplication of services. The applicant was previously assessed by Dr. E. Lansang, orthopaedic surgeon, on August 3, 2016, fewer than two months prior to the submission of the disputed orthopaedic assessment plan. The Lansang assessment was as a result of a referral from her family physician, Dr. Dhillon, and was paid for by OHIP. Dr. Lansang found the applicant had evolving arthritis and suggested the applicant engage in weight loss and knee strengthening programs. Dr. Lansang did not recommend any other assessments.
11An investigation into the applicant’s orthopaedic injuries is not required. There are no new orthopaedic injuries reported during the time leading up to the submission of the assessment plan. Similarly, the applicant’s medical record shows no indication there may be unidentified orthopaedic injuries requiring further investigation. The treatment plan notes no new orthopaedic concerns and the treatment facility records are not before me for review. Dr. Dhillon’s clinical notes and records (“CNRs”) note no new orthopaedic concerns beyond those which precipitated the referral to Dr. Lansang.
ISSUE 2 - The chiropractic treatment plan dated April 11, 2018
12The applicant is also not entitled to the treatment plan dated April 11, 2018 because it is not reasonable and necessary for accident-related injuries.
13The treatment plan addresses injuries that are not accident-related. The injuries listed in the treatment plan are sprain/strains of the hips, lumbar spine, sacroiliac joint and elbow, as well as whiplash associated disorder (WAD2). However, the applicant’s other family physician, Dr. P. Singh, in a record dated April 9, 2018, noted the applicant complained of low back pain and stiffness for five days, knee and leg pain for four weeks, and stress at work and home. There is no mention of the accident during this visit and the duration of the symptoms, about four weeks, indicates the applicant’s issues are not accident-related. In fact, there is no mention of the subject accident in the entirety of Dr. Singh’s CNRs for 2016, 2017, and 2018.
14Although Dr. Dhillon’s CNRs acknowledge the subject accident, they are not relevant to this treatment plan because they are only for the period from January to December 2016. In addition, it appears the applicant’s sacroiliac joint sprain/strain is not accident-related. There was no reference to sacroiliac joint or hip issues initially reported after the subject accident. During an insurer’s examination on June 21, 2016, Dr. F. Siddiqui, physician, reported no tenderness during palpation of the coccyx and sacroiliac joint. Likewise, the applicant’s ongoing left elbow tendonitis appears to be a pre-existing degenerative condition. There are records of the applicant’s left elbow tendonitis as far back as 2012.
15The applicant had achieved two of the four goals of the treatment plan at the time it was proposed. The goals are to reduce pain, increase range of motion, and return to work and activities of normal living. However, the applicant had already returned to work and is independent with self care.
16The orthopaedic report by Dr. O. Benmoftah, dated October 6, 2016, is not as compelling as the balance of the applicant’s medical record. Dr. Benmoftah diagnosed the applicant with chronic pain syndrome and opined the applicant would be unable to return to work or provide caregiving for her 18 year-old daughter, despite the fact the applicant returned to work. Dr. Benmoftah recommended a multidisciplinary chronic pain management program yet the applicant never submitted one for approval until this treatment plan, nearly one and a half years after this report was issued. Despite the respondent noting it in submissions, the applicant had no comment or explanation for this delay.
INTEREST AND AN AWARD
17Interest is only payable on overdue payments of benefits. Having found no benefits payable or overdue, I find no interest payable as well.
18Pursuant to section 10 of O. Reg. 664, an award may be payable in the event the respondent has unreasonably withheld payment of a benefit. Having found no benefits payable, withheld, or delayed, I find the applicant is not entitled to an award.
CONCLUSION
19Upon review of the submissions and evidence before me, I find the applicant is not entitled to any of the disputed treatment and assessment plans because they are not reasonable and necessary. No benefits were delayed, are payable, or overdue. As a result, no interest or award is payable.
Released: January 13, 2020
___________________________
Brian Norris
Adjudicator