Citation: S.F. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-012486/AABS
Tribunal File Number: 18-012486/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.F.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jaskarn Grewal, Counsel
For the Respondent: Joy Kohli, Counsel
HEARD: In Writing on August 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on November 11, 2016 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 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 costs of assessments for examinations recommended by Tier 1 Assessments as follows:
a. $2,330.00 for a neurological assessment proposed in a treatment plan dated February 9, 2017;
b. $2,122.31 for a functional abilities evaluation proposed in a treatment plan dated May 23, 2017; and
c. $2,122.31 for an in-home ergonomic assessment proposed in a treatment plan dated February 9, 2017?
Is the applicant entitled to medical benefits in the amount of $1,142.70 for assistive devices recommended by Tier 1 Assessments in a treatment plan dated February 9, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the benefits claimed.
BACKGROUND
4The applicant was the passenger of a vehicle which struck the guardrail on the highway while the driver was trying to avoid colliding with another car. The applicant sustained an open fracture of the right radius and ulna as a result of the collision, as well as soft-tissue injuries to her back, neck and shoulder.
5The applicant’s right arm was casted as a result of the fractures. The cast was removed around January 5, 2017. Within the next few months following the removal of her cast, the applicant requested and was denied the assessments and devices listed as issues in dispute.
6The applicant submits the disputed treatment and assessment plans should be approved because of the applicant’s broken forearm and because she qualified for non-earner benefits (“NEBs”) at the time the disputed treatment and assessment plans were proposed.
7I note the applicant did not submit the disputed treatment and assessment plans for this hearing. As a result, I am required to rely on the information in the IE report dated May 11, 2017, which provides a basic list of the goods and services proposed.
NEBs AND MEDICAL AND REHABILITATION BENEFITS
8The status of the applicant’s claim for NEBs does not automatically entitle her to the disputed treatment and assessment plans, as suggested in her submissions.
9Throughout her submissions, the applicant holds that she met the disability test for NEBs and requires the assessments to assist with her inability to carry on a normal life, making the assessments reasonable and necessary. The respondent holds it never accepted the applicant met the complete inability test but rather, it paid the applicant the benefit during the period when insurer examinations were being conducted.
10The applicant’s position has incorrectly connected NEBs and medical benefits. While the evidence in support of one or another benefit may overlap, the tests for the two benefits are different. In short, the test for entitlement to medical benefits is whether they are reasonable and necessary, not whether the applicant has a complete inability to carry on a normal life.
11If I were to accept the applicant’s position, I would be creating a scenario in which any and all medical benefits are payable to an insured person who qualifies for NEBs. This is not the intention of the Schedule.
ISSUE 1(A) - The neurological assessment plan dated February 9, 2017
12I find the neurological assessment is not reasonable and necessary as the applicant did not show any accident-related neurological complications which require further investigation.
13There is insufficient evidence to suggest the applicant requires a neurological assessment. The [hospital] records from the day of the accident confirm the fracture of both forearm bones but note the applicant’s neurovascular examination is intact. Though the excerpt from the report by, Dr. T.Y. Getahun, Orthopaedic Surgeon, dated January 21, 2017, recommended a neurological assessment for the applicant’s vertigo symptoms, this is the only page of the report the applicant submitted. She excluded any mention of the examinations conducted by Dr. Getahun or their corresponding results which form the basis of the recommendation. The applicant provided a disability certificate completed by Dr. S. Chakrabarti, Chiropractor, dated November 18, 2016, however it only notes the applicant has objective signs of a concussion and does not diagnose vertigo or a neurological injury or impairment. One recommendation in an orthopaedic assessment report, absent the balance of the report or any compelling supporting evidence, is not sufficient evidence of a need for a neurological assessment.
14The insurer’s examination report by Dr. V. Naumetz, Orthopaedic Surgeon, dated May 11, 2017 was provided in its entirety. It concluded a neurological assessment was not reasonable and necessary because the applicant did not complain of vertigo, nor did Dr. Naumetz observe any evidence of vertigo. Dr. Naumetz concluded the applicant was neurologically intact in her upper and lower extremities except for some slight numbness associated with her recent forearm scarring. Considering the resolution of any vertigo symptoms, and the numbness clearly associated with scarring, I see no need to further investigate the applicant’s neurological health.
ISSUE 1(B) - The functional abilities assessment plan dated May 23, 2017
15I find the functional abilities assessment is not reasonable and necessary because the applicant has not provided compelling evidence to show she needs assistance, education, and coping strategies for her ongoing pain and limitations.
16Contrary to the applicant’s submissions, the disability certificate dated November 18, 2016 is not relevant to this issue. It is from 6 months before this treatment plan was submitted and it reflects her condition while her arm was casted during her recovery from forearm surgery. A more accurate account of the applicant’s injuries is the May 11, 2017 report by Dr. Naumetz who found the applicant had “essentially recovered from her musculoskeletal injuries as a result of the motor vehicle accident”.
17The clinical notes and records (“CNRs”) from Heartland Wellness Clinic do not support the need for the functional abilities evaluation. The records are from more than a year after the evaluation is proposed. The August 31, 2018 note states the applicant started working and she found her wrist painful at the end of the day. This seems to be a reasonable fatigue symptom considering she entered the work market after a 4-year break. The January 18, 2019 entry, which appears to be the applicant’s first visit following the August 31 appointment, notes the applicant missed treatment recently due to school and an inability to drive to therapy. It also states the applicant’s pain “flared up” as a result of working and attending school full-time. The entry also noted that treatment relieved pain. Considering the applicant did not attend treatment for over four months, this explains why the applicant was experiencing pain at that time of the visit. This note does not support the need for a functional abilities evaluation because it shows no sign the applicant is impaired by pain and recommends wrist splints and not an evaluation.
18I find this matter is distinguishable from 16-004674 v The Co-operators1 because, unlike the applicant in that case, the applicant here has exhibited few to no signs of a functional impairment which warrants investigation.
19I find this matter is more analogous to 18-002429 v Allstate Insurance2. In that case it was determined the applicant was functional and, as a result, the functional abilities evaluation was found not reasonable and necessary.
ISSUE 1(C) - The in-home ergonomic assessment plan dated February 9, 2017
20I find no evidence to support the need for an in-home ergonomic assessment.
21The applicant’s family physician had no concern of the ergonomics of the applicant’s living space. The applicant visited Dr. S. Ameen twice in January 2017. The first was on January 5, just before her cast was scheduled to be removed and the second on January 12, following the removal of her cast. Dr. Ameen recommended physiotherapy treatment in both visits but makes no mention of the applicant’s living space or any ergonomic issues. Further, Dr. Ameen acknowledges the applicant experienced mild discomfort and stiff fingers as well as a need for child care during the 4-6 months following the removal of her cast. Despite the thorough visit, Dr. Ameen makes no indication the applicant requires an ergonomic assessment.
22It appears Dr. N. Zabita, the applicant’s orthopaedic surgeon at Oakville Trafalgar Hospital, had a similar opinion as Dr. Ameen. A consultation record dated February 24, 2017 found she exhibited good wrist pronation, flexion, and extension. The applicant’s alignment was noted as good and there were no recommendations provided other than to follow up as necessary. There is no evidence the applicant followed up with Dr. Zabita following this visit.
23The insurer’s examination report by Shelley Elliott, Occupational Therapist, dated May 11, 2017, found the proposed ergonomic assessment not reasonable and necessary. Occupational Therapist Elliott assessed the applicant in her home on April 26, 2017 and found she presented with sufficient range of motion, strength, mobility, and tolerances to complete her routine activities at home. During the assessment, the applicant reported she is completing most of her self care tasks independently and participates in shared household and childcare tasks. Occupational Therapist Elliott also noted the applicant had already participated in an in-home attendant care assessment on or before January 13, 2017 and found further in-home assessment is not required.
ISSUE 2 - The treatment plan for assistive devices, February 9, 2017
24I find the treatment plan for assistive devices is not reasonable and necessary because there is no evidence which shows the applicant requires them.
25The treatment plan was not provided as evidence in this hearing. While this is not a fatal flaw, it requires me to rely on the information in the IE report dated May 11, 2017. The IE report notes the treatment plan proposes a dusting device, long-handled toilet brush, bath scrubber, light-weight vacuum cleaner, Swiffer, long-handled reacher, long-handled shoehorn, bath sponge, personal massager, grab bars for bathroom, bath bench, and shower hose head.
26The bulk of the proposed devices address mobility impairments for which there is no evidence the applicant suffered from at the time they were requested. The applicant’s predominant injury is a fractured forearm and there are no submissions and little evidence to show any other significant injuries. For instance, long-handled devices are primarily for those who suffer from back, neck, or shoulder range of motion impairments. Yet, the applicant reports no such impairments. Similarly, bathroom grab bars, a bath bench, and shower hose are typically for those who are at risk of falling. Yet, the applicant shows no such risk.
27I find no evidence to show the proposed devices would facilitate the applicant’s return to college or work. The applicant submits the devices would help her manage her wrist and forearm pain in order to complete her activities of daily living, perform at school, and subsequently, at work. As noted above, the devices prescribed are predominantly for neck, back, and shoulder range of motion impairments. The applicant has led no evidence showing ongoing neck, back or shoulder impairments which require the applicant use the assistive devices. As a result, the assistive devices are not reasonable and necessary.
28I find this matter distinguishable from 17-007626 v Aviva Canada Inc3. In that case the applicant was employed at the time of accident and nearing retirement age. She was found to have constant pain complaints and required basic devices to facilitate her home exercise program and return to self employment and avoid reinjury. Here, the applicant is in her 30’s, was not employed at the time of the accident, was engaging in facility-based treatment, and provided no evidence of ongoing pain or an impairment as a result of pain.
CONCLUSION AND ORDER
29Upon review of the submissions and evidence before me, I find the applicant is not entitled to any of the disputed treatment and assessment plans. No benefits are payable or overdue. As a result, no interest is payable.
Released: February 27, 2020
___________________________
Brian Norris
Adjudicator