J.R. v. Certas Home and Auto Insurance Company, 2020 CanLII 37624

Citation: J.R. v. Certas Home and Auto Insurance Company, 2020 ONLAT 18-000917/ABBS

Released: May 20, 2020

Tribunal File Number: 18-000917/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:

[J.R.]

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

PANEL:

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Applicant:

[J.R.], Self-represented

For the Respondent:

Philippa G. Samworth, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, [J.R.] (“applicant”), was involved in an automobile accident on January 14, 2016 (“accident”) and sought benefits from the respondent, Certas Home and Auto Insurance Company (“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 his claim for benefits was denied by the respondent.

2By way of motion Order dated May 22, 2019, the Tribunal dismissed the applicant’s claim for non-earner benefits but allowed the applicant’s claim for the two treatment plans in dispute to proceed to a written hearing.

ISSUES TO BE DECIDED

3As per the Tribunal’s Order made August 12, 2019, the issues to be decided by me are:

i. Is the applicant entitled to receive a medical benefit for chiropractic treatment, in the amount of $1,175.00, that was recommended by Dr. Saad Hussain in a treatment plan submitted to the respondent on November 16, 2016 and denied on November 28, 2016?

ii. Is the applicant entitled to receive a medical benefit for chiropractic treatment, in the amount of $450.00, that was recommended by Nguatyle Integrative Medical Clinic in a treatment plan submitted to the respondent on February 2017 and denied on March 7, 2017?

iii. Is the applicant entitled to receive interest on the delayed receipt of benefits?

RESULT

4I find that the applicant is not entitled to the medical benefits claimed and therefore no interest is payable.

ANALYSIS

5Sections 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

6Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense for a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan unless, among other reasons, the expense is for drugs prescribed by a regulated health professional or goods with a cost of $250.00 or less per item.

Applicant’s submission

7The applicant submitted a letter dated January 20, 2020 requesting an in-person hearing with a Polish interpreter because of his “medical and physical health”, and a letter dated January 20, 2020 critical of respondent’s counsel and attaching “medical documents providing evidence of physical injuries from October 23, 2012 and January 14, 2016 motor vehicle accidents”.

8The medical information attached was (1) a note from a cervical spine MRI by Dr. Alam on May 31, 2016, (2) a note of Dr. Bydon, applicant’s neurosurgeon, from an October 6, 2016 office visit, (3) the first page of a note from an MR of the lumbar spine by Buffalo Diagnostic Imaging on December 15, 2016, and (4) Dr. Woo’s note from an ultrasound of applicant’s left shoulder on March 19, 2019.

9Also attached was the first page of Tribunal decisions 17-000851 & 17-000911 v. Aviva Insurance Canada³ and 16-000693 v. Aviva Insurance⁴.

Respondent’s submission

10The respondent submitted that the $1,175.00 treatment plan was improperly submitted, there is no evidence that the $450.00 treatment (acupuncture treatment erroneously referred to as chiropractic treatment according to the respondent) was ever submitted in a treatment plan, and that the treatment plans are not reasonable and necessary and have not been incurred.

Hearing Format Already Decided

11With respect to the applicant’s request for an in-person hearing with a Polish interpreter, the format of the hearing was decided by the Tribunal’s case conference Order made August 12, 2019. The applicant attended this case conference, represented himself and was aided in translation by a Polish interpreter. The applicant also received the case conference Order which told him of the format for the hearing. The applicant made submissions pursuant to that Order for this hearing. This issue is not before me.

Applicant’s Medical Evidence

12I find that the applicant has not met his onus to prove that the treatment plans he seeks are reasonable and necessary because he has failed to provide sufficient medical evidence to establish on a balance of probabilities that the treatment plans are reasonable and necessary.

13Dr. Alam’s note from the May 31, 2016 MRI refers to an “MVA two years ago” and notes a comparison with “7/23/2014”. Dr. Alam notes straightening of normal cervical lordosis, which would tend to indicate some improvement in the applicant’s condition. Otherwise, the applicant’s results are unchanged from the prior study except at C3-C4, where Dr. Alam notes there is moderate-to-severe left neural formaninal narrowing due to disc protrusion, uncovertebral spurring and facet arthropathy which is progressed from the prior study. Dr. Alam does not recommend any physical therapy treatment.

14Dr. Bydon notes that the applicant was involved in two motor vehicle accidents, in 2012 and in 2016. He records that the applicant complains of pain in his neck, shoulders, arms and pectoralis muscle as well as below his armpits. He reviewed an MRI and MRA of the brain, which both looked fine, and the cervical spine MRI, which shows the applicant has a disk bulge at C3-C4 and foraminal stenosis. For the neck, Dr. Bydon recommended an elective operation when the applicant wishes to have it and recommends the applicant go to a headache clinic for evaluation and treatment. He prescribed Lyrica for neuropathic pain. Dr. Bydon does not recommend any physical therapy or indicate it might be helpful to the applicant.

15Only the first page of the note from an MRI of the lumbar spine on December 15, 2016 was filed. It refers to clinical history of low back pain, right-sided, radiates to right leg and a history of MVA. The findings include multilevel dehydration and desiccation. The impression includes disc bulges and annular tear at L5-S1, L4-L5 and an annular tear at L3-L4 together with foramina narrowing at L5-S1, moderate to sever left and mild to moderate right foraminal stenosis at L4-L5 with hypertrophic facet disease and ligamentum flavum hypertrophy contributing, canal and foramina are patent. There is no evidence that any physical therapy treatment was recommended.

16Dr. Woo’s record from an ultrasound of applicant’s left shoulder on March 19, 2019, addressed to Dr. Hussain, notes the only soft tissue abnormality is small full-thickness tear with no significant retraction, mild to moderate subacromial/subdeltoid bursitis. Dr. Woo does not recommend any physical therapy.

17According to the records provided by the applicant, none of these physicians have recommended any physical therapy, including acupuncture. The treatment plans were not filed by the applicant at this hearing.

18The respondent filed an OCF-18 Treatment and Assessment Plan dated November 16, 2016 bearing the name of Dr. Hussain, physician, but not signed by him and also bearing the name of Justin Ngui, acupuncturist, but not signed by him. The injuries that are the direct result of the accident are recorded as postconcussional syndrome, multiple injuries of neck and chronic post-traumatic headache. The treatment proposed is $200.00 for documentation and $975.00 for acupuncture, multiple body sites. Given that Dr. Hussain did not sign this treatment plan, I am not persuaded that Dr. Hussain has recommended the treatment plan described, only $975.00 of which is for physical therapy.

19Considering the totality of the evidence before me, I am not persuaded that the disputed treatment plans are reasonable and necessary.

Applicant’s legal references

20The applicant did not express in his submissions why he referred to Tribunal decisions 17-000851 & 17-000911 v. Aviva Insurance Canada and 16-000693 v. Aviva Insurance and only included the first page of each decision. Both of these cases deal with the consequences of failure to attend insurer’s examinations. No such issue is before me so these cases are of no assistance.

Interest

21Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefit payments, no interest is payable.

CONCLUSION AND ORDER

22For the reasons outlined above, the applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635.
3. 32017 CanLII 81579 (ON LAT)
4. 42017 CanLII 19192 (ON LAT)```