Citation: A.H. v. Aviva Insurance Canada, 2020 ONLAT 18-004237/AABS
Tribunal File Number: 18-004237/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
[A.H.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Applicant:
Jaspal Brar, Counsel
For the Respondent:
Kimberley J. Tye, Counsel
Held by Teleconference:
December 9, 2019
OVERVIEW
1The applicant, [A.H.] (“applicant”), was involved in an automobile accident on June 24, 2015 (“accident”) and sought benefits from the respondent, Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”). The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service when her claim for benefits was denied by the respondent.
2The respondent denied the applicant’s claim because it determined that the proposed treatment for chiropractic services was not reasonable and necessary. The applicant’s position is the opposite.
3The cost of the medical treatment plan and the applicant’s claim for costs are now before me by way of a hearing in writing.
ISSUES TO BE DECIDED
4As per the Tribunal Orders made August 8, 2019 and September 16, 2019, the issues to be decided by me are:
i. Is the applicant entitled to a rehabilitation benefit in the amount of $4,534.35 for chiropractic services recommended by Active Life Wellness Centre in a treatment plan dated January 30, 2019 denied by the respondent on January 30, 2019?
ii. Is the applicant entitled to costs due to the respondent’s unreasonable withholding of benefits pursuant to s. 17.1(a) of the Statutory Powers and Procedure Act and Rule 19.1 of the Tribunal’s Rules?
RESULT
5The applicant’s appeal is not granted because she has not met her onus to prove that the treatment she seeks is reasonable and necessary. In addition, the applicant is not entitled to costs.
LAW AND ANALYSIS
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
7I find that the applicant has not met her onus to prove that the treatment plan she seeks is reasonable and necessary.
The Treatment Plan In Dispute
8Following the accident, the applicant reported to her family physician, Dr. Mehmi, pain in her neck, lower back, upper back and left shoulder. In an OCF-18 dated January 30, 2019 by Dr. Ravin Sodhi, chiropractor with Active Life Wellness Centre Inc., a treatment plan for $4,534.35 was recommended (“treatment plan”). The treatment plan lists the following as its goals: pain reduction, increased range of motion, return patient to pre-accident level and function, chronic pain prevention with strengthening and stretching, avoid passive dependency issues from developing, functional restoration protocols, review of activities to better prepare for future discharge from therapy and return to activities of normal living. The treatment plan consists of one assessment, 12 manipulation sessions, 15 physical rehabilitation sessions, 10 therapy sessions (massage), and eight planning services which the applicant submits is reasonable and necessary to assist with managing her pain and to live comfortably.
9The applicant submits that the accident aggravated her pre-existing back condition.
10I find that the applicant is not entitled to payment of the treatment plan because she has failed to prove on a balance of probabilities that it is reasonable and necessary.
11The 2012-2014 clinical notes and records of Dr. Mehmi, the applicant’s family doctor, confirm that the applicant had pre-existing severe back pains and back muscle spasms and was referred to physiotherapy for back pain in 2014. The decoded OHIP summary shows that the applicant went to Dr. Mehmi five times for osteoarthritis in the six months prior to the accident. On January 21, 2015, Dr. Mehmi records that the applicant has increased back pain, no relief with Percocet, walks with a cane. The diagnosis was sciatica and she was prescribed Lyrica.
12Two days after the accident, on June 26, 2015, the applicant complained of neck pain and headaches to Dr. Mehmi, who referred the applicant for physiotherapy and scheduled an X-ray. On August 31, 2015, the applicant complained to Dr. Mehmi of ongoing shoulder joint pain that restricted movements and an inability to sleep. He advised the applicant to continue physiotherapy as the doctor’s impression was that she suffered from arthralgia in the left shoulder joint. Dr. Mehmi’s 2017 records show the applicant complained of left shoulder pain, back pain that restricted movement, back pain radiating down her left leg causing numbness in the last three toes, depressive symptoms and visited the emergency room at a hospital due to severe back pain. Dr. Mehmi’s 2018 records show that the applicant has severe backache and the pain radiates to both of her feet giving sciatica pain. Dr. Mehmi’s records and those of William Osler Health System show that the applicant has been to the hospital emergency department a number of times for this. On January 21, 2019, Dr. Mehmi notes the applicant complained of severe back pain and he advised her to continue physiotherapy and massage treatments. The records of Dr. Mehmi up to April 22, 2019 and the hospital records show that the applicant continued to complain of severe back pain and to visit the hospital emergency room. On January 28, 2019, she was diagnosed with a lumbar strain at the hospital.
13The weight of the applicant’s medical notes, reports and records does not establish that the proposed treatment plan is reasonable and necessary for the following reasons.
14The applicant’s medical evidence does not clearly relate the proposed treatment plan to accident related impairments. The medical records for 2015 show that physiotherapy was recommended by Dr. Mehmi and received by the applicant for at least two and one half years after the accident. Based on the records filed before me, there is no reference in his records to any complaints from the applicant about injuries from the accident for approximately the next two years. The fact that there were no documented complaints from the applicant to her family physician about injuries from the accident for a period of some two years is not consistent with Dr. Mehmi’s view that she continued to suffer injuries from the accident several years after accident.
15Although there is a letter from Dr. Mehmi to applicant’s lawyer in April, 2018 indicating she has been suffering from backache and sciatica since the accident, the thrust of the letter is that she cannot work. I have no evidence as to the purpose for which the letter was written to applicant’s lawyer and, given that her family physician does not recommend any chiropractic treatment in the letter, the letter is not helpful to me in deciding whether the treatment plan proposed is reasonable and necessary.
16The applicant was treated at the hospital for low back pain in November, 2017. The hospital documented at that time that there was “…no isolating event” with respect to cause of the applicant’s back pain.
17Dr. Lansang who saw the applicant at the hospital in December, 2017 wrote in his records that “…I have told her that I am unsure as to the etiology of her condition.”
18Dr. MacKenzie, applicant’s neurologist, in a report dated February 27, 2018 recorded that the applicant suffered from significant pain in her lower back and particularly with straight leg raising notably crossover pain toward her left side and has ongoing issues with spinal stenosis and nerve root compression at the lumbar spine level. Dr. McKenzie recommended the applicant continue with “conservative therapy” in the “hope” this will lead to further improvement and he noted he is reluctant to seek a surgical opinion, however that could change depending on the applicant’s progress. Dr. MacKenzie does not draw a causal connection between the applicant’s complaints and the accident nor does he specifically recommend chiropractic services.
19Dr. Vayalumkal who saw the applicant at the hospital in January, 2019 diagnosed lumbar strain and did not attribute this to the accident and did not recommend any physical therapy.
20Dr. Getahun, an orthopaedic surgeon who assessed the applicant and delivered a report dated October, 2018, concludes that the applicant still has accident related injuries and recommends physiotherapy and other treatment. Dr. Getahun, indicated that the applicant suffers from left shoulder strain adhesive capsulitis (frozen shoulder possible rotator cuff tear), chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing degenerative changes. He noted that an MRI done on January 30, 2018 commented on multilevel degenerative disc disease with severe congenital and acquired spinal canal stenosis. Dr. Getahun recommended left shoulder subacromial corticosteroid injection and physiotherapy, physiotherapy focussing on range of motion and an MRI of the left shoulder to rule out associated internal derangement. I do not find this report sufficiently supportive of the proposed treatment plan given that Dr. Getahun assessed the applicant some two and one half years after the accident. Further, this report does not sufficiently distinguish the applicant’s injuries from the 2015 accident and her previous 2004 and 2007 motor vehicle accidents.
21Based on the totality of this evidence, I cannot find that the applicant’s complaints are clearly related to the 2015 and therefore the treatment proposed is not reasonable and necessary.
22Also, there is insufficient medical evidence put forward by the applicant to explain how the proposed treatment plan would be likely to result in any significant improvement given her history of pre-accident back pain, her two previous motor vehicle accidents, and the post-accident rehabilitation program she has already participated in for several years.
23I find that the applicant has failed to provide sufficient evidence to prove that the treatment plan is reasonable and necessary.
Costs
24The applicant claims costs due to the respondent’s “unreasonable withholding of benefits…pursuant to s. 17.1(1) of the Statutory Powers and Procedure Act and Rule 19.1…” of the Tribunal’s Rules.
25Section 17.1(1) of the Statutory Powers and Procedure Act provides that a tribunal may, in the circumstances set out in the tribunal’s rules, order costs. Rule 19.1 of the Tribunal’s Rules provides that where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may request costs from the Tribunal. However, Rule 19.4 provides that a submission on costs shall set out the reasons for the request and the particulars of the alleged unreasonable, frivolous, vexatious or bad faith conduct. The applicant has failed to provide any particulars of conduct sufficient to support her claim for costs and I, therefore, decline to exercise my discretion to award costs.
26Further, as no benefits are payable, the applicant is not entitled to costs.
CONCLUSION
27For the reasons outlined above, I find that:
i. The applicant has not met her onus to prove that the treatment plan she seeks is reasonable and necessary.
ii. The applicant is not entitled to costs.
iii. The applicant’s claim is dismissed.
Released: March 3, 2020
___________________________
Avril A. Farlam
Vice-Chair
Footnotes
- O.Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635.