M.S. v. Aviva General Insurance Company, 2020 CanLII 19576

M.S. v. Aviva General Insurance Company

Citation: M.S. v. Aviva General Insurance Company 2020 ONLAT 18-007082/AABS

Tribunal File Number: 18-007082/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:

M.S. Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Applicant: Rome Petricca, Paralegal

For the Respondent: Patrick Sinclair, Counsel

HEARD In Writing: September 9, 2019

OVERVIEW

1M.S. (the “applicant”) was injured in an automobile accident on April 25, 2015, and sought benefits from Aviva General Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The applicant submited an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service when the respondent denied her claim for benefits on the basis that the treatment plans and expenses in dispute are neither reasonable nor necessary and/or do not arise from an impairment as a result of the accident.

ISSUES TO BE DECIDED

2The issues to be decided by me, as identified in the Orders of Adjudicators Thérèse Reilly and Ian Maedel, are:

i. Is the applicant entitled to a medical benefit for $4370.04 for chiropractic services recommended by Canadian Active Rehabilitation Centre submitted on July 16, 2016?

ii. Is the applicant entitled to a medical benefit for $3234 for optometric services recommended by View Eye care submitted February 13, 2018?

iii. Is the applicant entitled to a medical benefit for $3678.24 for optometric services recommended by Martow Vision Care submitted on February 14, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $2775 for post concussive therapy recommended by Dr. Burness at North Oak Chiropractic Clinic submitted on August 3, 2018?

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

RESULT

3Based on the totality of the evidence before me, I find that the applicant is not entitled to any of the medical benefits claimed and therefore no interest is payable.

ANALYSIS

4On April 25, 2015, the applicant was the driver of a vehicle which collided with another vehicle when it made a sudden U-turn directly in front of her vehicle. The airbags deployed. She was sent by ambulance from the scene of the accident to hospital where she remained for three days under observation due to a cardiac contusion. An MRI of her right knee was scheduled for June 13, 2015. The applicant suffered soft tissue injuries, concussion symptoms, neck and knee pain in the accident. She saw her family doctor, Dr. Akintan, about one week after the accident and was referred for physiotherapy. Approximately two weeks after the accident, the applicant began to experience double vision.

ISSUE 1: Is the applicant entitled to the medical benefit for chiropractic services?

5The applicant attended for physiotherapy, three times a week between May and August 2015, which she later reported was temporarily beneficial. She attended for more physiotherapy/rehabilitation treatments between August and October 2016, which appeared to also provide temporary benefit. The stated goal of this treatment plan is to decrease post concussive syndrome. Chiropractic treatments such as spinal manipulation, acupuncture, and muscle stimulation form part of the treatment.²

6The onus is on the applicant to show entitlement to the benefits claimed. In the applicant’s submissions, it was urged that I give more weight to the opinions of the applicant’s various treating physicians than to the reports from the insurer’s examinations who would only have seen the applicant once and were not her primary treating physicians. I note that there is nothing to indicate that the family physician, who has seen the applicant with the greatest frequency, has suggested or recommended the treatment outlined in this plan. Various medical reports have been referenced in the applicant’s submissions, but specific evidence in support of this treatment plan is not clear and, at times, the reports regarding the applicant’s medical status are conflicting.

7The treatment plan goal, as noted above, is to decrease post concussive symptoms, yet Dr. Akintan noted in August 2017 when assessing the applicant ahead of scheduled cataract surgery that the applicant had no concerning headaches³. In October 2017, Dr. Akintan referred the applicant for massage therapy for chronic muscle tension, noting on the referral that it was not due to the motor vehicle accident.⁴ Dr Ehrlich, an ophthalmologist who saw the applicant in December 2017, after the cataract surgery, noted that the concussion and diplopia (double vision) experienced after the motor vehicle accident had resolved.⁵ While there are medical reports focussed on the applicant’s right shoulder and the X-ray of her cervical spine in January 2016, even these reveal that soft tissues were normal and “disc space and vertebral body height as well as alignment is maintained”.⁶

8I therefore find, after a careful review of the various medical reports submitted by the applicant, that there is insufficient evidence to support the conclusion that the identified goals and nature of this treatment are reasonable or necessary.

ISSUES 2 and 3: Is the applicant entitled to the medical benefits for optometric services?

9The applicant did experience visual impairments subsequent to the motor vehicle accident. She had worn glasses most of her life and had been diagnosed with an astigmatism in her right eye. When she began to experience diplopia after the accident, the applicant saw various optometrists and ophthalmologists to try to resolve her vision issues, before she received a diagnosis of cataracts. The preponderance of the evidence submitted to me indicates that the underlying reason for her vision issues were the cataracts and the resolution was their removal in September 2017. Because both claims for optometric expenses raise similar entitlement issues, I will deal with both together.

10Expenses were incurred and submitted on OCF-6 forms, prior to treatment plans being submitted to the respondent.⁷ The respondent asserts that it is not liable to pay an expense incurred in respect of medical or rehabilitation benefit before a treatment or assessment plan is submitted unless the expense is reasonable and necessary as a result of the impairment sustained for prescription eyewear with a cost of $250 or less.⁸

11The claim for the View Eye Care expenses is for $3234⁹. This amount includes lenses for $1295, another set for $1504 (incurred in September 2015) and another for $380 (incurred in June 2016). The OCF-18 in relation to these benefits was not submitted to the respondent until February 2018. The second claim for benefits of $3678.24¹⁰ also includes several lenses for amounts greater than $250, all incurred prior the submission of an OCF-18 in February 2018.

12Based on s. 38(2) of the Regulation, I find that the respondent is not liable to pay these claims as the expenses were incurred before the applicant submitted a treatment and assessment plan.

13However, even if I had not found that the claims were not payable on that ground, I would find that there is no compelling evidence that the expenses are reasonable and necessary arising from an impairment sustained as a result of the accident. As noted above, the applicant has submitted reports from several optometrists and ophthalmologists which are inconsistent and are at times conflicting. Dr. Pal recommended and fit the applicant with scleral lenses (included in the Martow Vision Care claim)¹¹, yet Dr. Rutman in his assessment in June 2016 opined that based on his examination there was likely to be limited success with these lenses¹². Dr Hinton, in June 2017, concluded that the applicant’s vision was poor because of significant cataracts and that changing glasses will not help¹³. Though Dr. Hinton stated that the accident may have precipitated early onset cataracts, there is no compelling evidence before me to support that conclusion.

14From a review of the evidence, the reasonable conclusion is that the applicant’s eye and vision issues were the result of her cataracts which were initially not diagnosed by her treating physicians. Surgery was performed in September 2017 by Dr. Martow which has resulted in excellent vision though she continues to experience ‘floaters’ which the various ophthalmologists noted can be a lingering symptom post cataract surgery. The medical benefit claimed includes, for example, ‘toric’ lens inserted during the cataract surgery¹⁴. There is no medical evidence that the applicant’s vision problems were the result of the accident and therefore the applicant is not entitled to these medical benefits.

ISSUE 4: Is the applicant entitled to the medical benefit for post concussive therapy?

15Dr. Burness has identified the applicant’s injury from the accident as post concussion syndrome and the applicant’s activity limitations to be ‘visual tasking, driving, physical and mental exertion’. The stated goals of the treatment are ‘pain reduction, gaze stability, return to activities of normal living and return to modified work activities’. The treatment includes 12 sessions of brain therapy.¹⁵ Aside from the treatment plan itself, there is no explanation of the reason why this treatment is reasonable and necessary.

16The applicant cites a report from Dr. Chan¹⁶, but he recommends 20-30 sessions of “in office” vision therapy, noting that some of the applicant’s visual problems- the large floaters - may diminish over time, but that she may need to see a retinal specialist. The applicant also submitted a psychological assessment report from Dr. Bhattia dated March 8, 2019¹⁷. Dr. Bhattia diagnosed anxiety symptoms and a depressed mood and recommended 12 sessions of psychotherapy.

17The need for entitlement to treatment as suggested by Dr. Chan and Dr. Bhattia is not before me. However, I do not find support for the reasonableness or necessity of Dr. Burness’ treatment plan for post concussion therapy within the assessments by Dr. Chan and Dr. Bhattia, nor within, for example, the records of Dr. Akintan. The applicant did suffer post concussive symptoms, but various reports suggest that the concussive issues have in fact resolved.

18Therefore, I find, based on the above that the treatment plan is not reasonable and necessary.

ISSUE 5: Interest

19There is no interest owning as there are no benefits owing.

ORDER

20I order that the application be dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Applicant’s materials, Tab 10, OCF-18 from Canadian Active Rehabilitation Centre
3. 3Respondent’s material, Tab 23, Clinical notes and records of Dr. Akintan
4. 4Ibid
5. 5Applicant’s materials, Tab 17, Report of Dr. C. Erlich
6. 6Applicant’s materials, Tabs 6 and 7, Reports of Dr. Deitel
7. 7Applicant’s materials, Tabs 2 and 3
8. 8Schedule, s. 38(2)(c)(ii)
9. 9Applicant’s materials, Tab 2
10. 10Applicant’s materials, Tab 3
11. 11Applicant’s materials, Tab 3
12. 12Applicant’s materials, Tab 9, Report of Dr. Rutman
13. 13Applicant’s materials, Tab 16, Report of Dr. Hinton
14. 14Applicant’s materials, Tab 3
15. 15Applicant’s materials, Tab 20, Ocf-18 from Northoak Chiropractic
16. 16Applicant’s materials, Tab 19, Report of Dr. Chan
17. 17Applicant’s materials, tab 21, Report from Dr. Bhattia