S.A. v. Aviva Insurance Canada, 2020 CanLII 19568

Citation: S.A. vs. Aviva Insurance Canada, 2020 ONLAT 19-000995/AABS

Tribunal File Number: 19-000995/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. A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Jennifer Mitchell, Counsel

For the Respondent: Stuart Norris, Counsel

HEARD: In Writing on September 9, 2019

OVERVIEW

1The applicant was injured in an automobile accident on July 31, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and, in response, the applicant has 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:

1. Is the applicant entitled to medical benefits for chiropractic treatment recommended by Dr. I. Horseman, chiropractor, as follows;

a. $4,160.00 for a treatment plan dated August 8, 2016; and

b. $4,160.00 for a treatment plan dated January 4, 2017?

2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the benefits claimed. As no payments are overdue, no interest is payable.

BACKGROUND

4The applicant was the driver of a vehicle travelling on a major highway which collided with another vehicle that was changing lanes. The collision caused the applicant’s vehicle to turn sideways, which then resulted in it being pushed off the highway by the other vehicle.

5The applicant was examined by ambulance attendants at the scene of the accident but was not transported to hospital. Instead, the applicant visited the collision reporting centre, obtained a rental vehicle, and continued to her destination.

6The applicant was involved with a physiotherapy treatment program at the time of the accident due to previous accidents on November 29, 2014 and April 1, 2015, making the July 31, 2015 incident the applicant’s third accident in less than a year. In addition, she was also involved in a fourth accident on November 6, 2015.

PRELIMINARY ISSUE

7The respondent raised a preliminary issue prior to the start of the hearing. It submits the applicant is statute-barred from filing an application to dispute entitlement to the August 8, 2016 treatment plan.

8After reviewing the submission and evidence, I have concluded the disputed treatment plans are not reasonable and necessary as a result of the July 31, 2015 accident. Considering this, I find an analysis on the preliminary issue is not required for this hearing.

INJURIES CLAIMED

9The applicant claims the subject accident of July 31, 2015 aggravated her pre-existing soft-tissue injuries, concussion symptoms, and depression and anxiety. According to the disputed treatment plans, the applicant’s predominant injuries are “postconcussional syndrome” and a whiplash associated disorder with neurological signs (“WAD 3”). She claims this and the other injuries have caused her on-going pain and functional impairment.

THE DISPUTED TREATMENT PLANS

10The goals of the treatment plans are to provide pain relief, improve functionality and return to pre-accident condition. They note no prior condition which would impact her recovery.

11The treatment plans have a significant focus on the applicant’s concussion issues but it appears she suffered no such head injury as a result of the July 31, 2015 accident. She was able to continue a multi-hour commute following the accident and did not seek any medical attention until a treatment session on August 5, 2015. Though the treatment session record briefly notes the applicant experienced an aggravation of concussion symptoms, it does not say it was a motor vehicle accident that aggravated the symptoms. In addition, and more importantly, the primary takeaway from the August 5, 2015 note is the applicant was experiencing significant psychological symptoms, which appear to be the predominant injury as a result of the July 31, 2015 accident.

ANALYSIS

12Considering the submissions and evidence, I find the disputed treatment plans are not reasonable and necessary as a result of the July 31, 2015 accident.

13I find no supporting evidence to conclude the applicant suffered a WAD 3 injury as a result of the July 31, 2015 accident. The insurer’s examinations dated December 9, 2016 by Dr. H. Smyth, neurosurgeon and December 23, 2016 by Dr. A. Belfon, physician, both came to this conclusion. Dr. Smyth was critical of the applicant’s neurological treatment and found the applicant’s head injury was indirect and minor. Dr. Smyth expressly disagreed with the diagnosis of a concussion or post-concussion syndrome and found “no continuous record of the development of any neurological sign related to the specific motor vehicle accident of July 31, 2015”. Likewise, Dr. Belfon found the applicant’s cervical and lumbar spine range of motion to be functional and ruled out a WAD 3 injury due to the absence of neurological issues. Dr. Belfon concluded the August 8, 2016 treatment plan was not reasonable and necessary to treat the applicant’s uncomplicated soft-tissue injuries. Considering the timing of these assessments, I find them to be the most relevant evidence for this hearing and afford them the most weight when assessing the evidence.

14Dr. Neseeruddin’s records do not upset the findings in the IE reports. The applicant visited Dr. S. Neseeruddin, family physician, on September 28, 2016, February 28, 2017, and August 24, 2017. Though all three visits note the applicant’s multiple accidents, the primary purpose of two visits is to address the applicant’s psychological injuries. The third visit refers to muscle pain and prescribes Lyrica, which can be used to treat neurological pain, but there is no record following this to show whether this recommendation was effective for the applicant. Further, there is no record of any recommendation or referral for chiropractic treatment.

15The report of Dr. D. Khumbare, physician, holds no weight as it is too far removed from the time of the treatment plans. The report dated April 18, 2019 is more than two years following the disputed treatment plans. This untimely report is not as compelling as the IE reports because it relies heavily on the applicant’s self-reports and the physical examination does not reflect the applicant’s condition at the time the treatment plans were proposed.

16Dr. Horseman’s December 10, 2018 report holds less weight than the IEs due to the time lapse from the date the treatment plans were submitted and because it was not accompanied by any CNRs or test results. The report found it impossible to distinguish which of the applicant’s symptoms are from which accident but noted her neck and back have been slowly improving and her mood and demeanour within the clinic has improved. The report has no record of any objective medical testing such as range of motion testing. The absence of objective testing and Dr. Horseman’s CNRs is remarkable. Dr. Horseman is the author of the disputed treatment plans and, presumably, would have relevant records to support the recommendation. Yet, the applicant provided none of these records.

CONCLUSION

17The primary purpose of the disputed treatment plans is to treat the neurological and concussion-related injuries claimed by the applicant. However, the evidence shows the applicant suffered predominantly psychological injuries as a result of the July 31, 2015 accident and does not support the applicant’s claim of neurological and concussion-related injuries. I find the disputed treatment and assessment plans are not reasonable and necessary as a result of the July 31, 2015 accident.

18The applicant is not entitled to the disputed treatment plans. No interest is payable as no payments went overdue.

Released: March 3, 2020

___________________________

Brian Norris

Adjudicator```