C.N. v. Aviva General Insurance Company, 2020 CanLII 43087

C.N. vs. Aviva General Insurance Company, 2020 ONLAT 19-004514/AABS

Citation: C.N. vs. Aviva General Insurance Company, 2020 ONLAT 19-004514/AABS

Released: 06/09/2020

Tribunal File Number: 19-004514/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:

C. N.

Applicant

And

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Nicole Walker

For the Respondent:

Samuel Davies

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on May 21, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent paid for some benefits but refused to pay for certain medical benefits. As a result, 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:

1. Is the applicant entitled to receive a medical benefit in the amount of $3,591.00 for physiotherapy, recommended by Oliver Got Physiotherapy in a treatment plan dated March 18, 2019, and denied by the respondent on March 21, 2019?

2. Is the applicant entitled to payments for the cost of examinations in the amount of 1,981.70 for a driving anxiety assessment, recommended by Prime Healthcare Inc. in a treatment plan dated June 4, 2019, and denied by the respondent on June 27, 2019?

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

RESULT

3The applicant is not entitled to the disputed treatment plans.

BACKGROUND

4The applicant was driving through an intersection when she was struck by another vehicle which failed to stop at a red light. She was assessed at the scene by paramedics whose records state that the applicant appeared very emotionally distraught. Her chief complaint at the scene was noted as right leg discomfort. She was taken from the scene to the hospital, where she was x-rayed, revealing no evidence of a fracture. The applicant was then given pain medication and discharged with advice to follow up with her family physician. The applicant visited her family physician, Dr. A. Rafay, about two weeks later. Dr. Rafay diagnosed the applicant with whiplash and headaches and recommended using ice and heat, massage and physiotherapy treatment, and pain medication on a per need basis.

5The respondent initially characterized the applicant’s injuries as predominantly minor injuries. The respondent changed its position around May 11, 2017. This is date of an insurer’s examination report by Dr. J. Clewes, which concluded the applicant suffered from psychological injuries as a result of the accident. Specifically, Dr. Clewes diagnosed the applicant with driving phobia as a result of the accident.

6Time proceeded and the applicant, after participating in various psychological and physical treatments, later requested funding for further physiotherapy treatment and another psychological assessment. The respondent denied funding for these requests, which are now the subject of this hearing.

7Section 15 of the Schedule entitles the applicant to all reasonable and necessary expenses incurred as a result of the accident, subject to the restrictions outlined in section 15(2) and the monetary limits outlined in section 18. It is the applicant’s burden to prove the benefits claimed are reasonable and necessary as a result of the accident.

THE PHYSIOTHERAPY TREATMENT PLAN DATED MARCH 18, 2019

8Based on the evidence and submissions, I find the applicant has not met her burden to prove entitlement to the disputed physiotherapy treatment plan.

9The applicant claims entitlement to the physiotherapy treatment plan and submits it is reasonable and necessary based on the medical evidence. She submits that physiotherapy treatment was recommended by Dr. N. Hussan, family physician, and, historically, physiotherapy treatment has contributed to her recovery. She claims the entirety of the plan was incurred, resulting in improved functionality and reduced pain. The injuries listed in the treatment plan include headaches, thoracic spine pain, whiplash associated disorder, and sprain/strain of the shoulder and bicep. The plan’s stated goals are to reduce pain, increase range of motion and strength, and return the applicant to her activities of normal living.

10The respondent submits the applicant has failed to meet her burden to prove the treatment plan is reasonable and necessary for her accident-related injuries. Further, it questions whether the injuries claimed by the applicant are as a result of the May 21, 2016 accident. The respondent submits the applicant was involved in a motor vehicle accident sometime in December 2016 or January 2017, another motor vehicle accident in January 2019, and a cycling accident in June or July 2019. The applicant was provided an opportunity to issue reply submissions but chose not to.

11There is no evidence to indicate Dr. Hussan’s recommendation for physiotherapy was as a result of the May 21, 2016 accident. The applicant became a patient of Dr. Hussan in January 2019, nearly three years after the subject accident. As a result, Dr. Hussan had little knowledge of the applicant’s accident-related injuries or of any intervening traumatic events, such as the subsequent motor vehicle and bicycle accidents. The CNRs from Dr. Hussan on March 28, 2019 note the applicant complained of neck pain and dizziness for one week and advised she had an accident two years ago and had the same condition and treated it with physiotherapy. This entry explains Dr. Hussan’s recommendation for further physiotherapy but it is not evidence the recommendation is as a result of the May 2016 accident. Lastly, it is remarkable that Dr. Hussan’s March 28, 2019 prescription for physiotherapy is devoid of any mention of a motor vehicle accident.

12There is a significant and unexplained gap in the applicant’s medical record. As a result, I am unable to determine if the injuries reported in 2019 are as a result of the May 2016 accident. There is no evidence the applicant met with her previous family physician, Dr. Rafay, after June 2016. The CNRs from Dr. Anis, a family physician from a different walk-in clinic, end with an October 18, 2017 entry which notes the applicant to be “doing well”. The CNRs from [the Clinic], where the applicant received treatment for the subject accident, end on October 21, 2016. Lastly, the CNRs from [Medical Center], where the applicant recently sought physiotherapy treatment, are only for 2019. Ultimately, there is no evidence the applicant’s physical injuries from the May 2016 accident continued to impair her in March 2019, when the disputed treatment plan was proposed.

13The applicant has declined to dispute the respondent’s position that her current injuries are as a result of one or multiple subsequent motor vehicle and bicycle accidents. The respondent points to entries in the applicant’s medical record which raise legitimate concerns regarding the cause of the applicant’s injuries. Notably, there is evidence the applicant was involved in a motor vehicle accident only a few months prior to the submission of the disputed physiotherapy treatment plan. However, she makes no attempt to distinguish how or why the requested treatment is as a result of the May 2016 accident.

THE DRIVING ANXIETY ASSESSMENT PLAN DATED JUNE 4, 2019

14I find the psychological assessment is not reasonable and necessary for the following reasons.

15The applicant claims entitlement to the psychological assessment and submits the treatment is reasonable and necessary for her injuries as a result of the May 21, 2016 accident. The applicant submits she was diagnosed with driving anxiety and requires a driving assessment to address her anxiety and fears adequately.

16The respondent submits the assessment is not reasonable and necessary because it is unclear as to whom will conduct the assessment and whether an in-vehicle evaluation will be conducted. It also submits the treatment plan is not reasonable and necessary given (1) that the plan relies on an unidentified recent psychological assessment which, in turn, is based entirely on subjective complaints, and (2) because Dr. C. Goodfield, psychologist, found it not reasonable and necessary in an IE report dated August 14, 2019.

17The applicant has failed to provide relevant medical information to support entitlement to a psychological assessment. The evidence provided is mostly out dated and fails to speak to the applicant’s psychological condition at the time the assessment was proposed. For example, the applicant relies on a May 11, 2017 IE by Dr. J. Clewes, psychologist, who concluded the applicant suffered from driving phobia and found a psychological assessment and cognitive behaviour therapy treatment to be reasonable and necessary. This report is from two years prior to the submission of the proposed assessment and, for obvious reasons, fails to address the applicant’s psychological condition for the relevant time period. The psychological assessment report of Dr. A. Shaul and H. Ilios is from a year prior to submission of the proposed assessment plan and, likewise, does not address the applicant’s psychological state at the time of the proposed assessment.

18There is no record of the psychological treatment received by the applicant. While the applicant claims to have benefitted from psychological treatment, there is no record of her participation in psychological treatment. Likewise, there is no evidence to indicate whether she benefited from previous psychological treatment to-date. As noted by the respondent, the treatment plan refers to a recent psychological assessment, but the assessment report submitted by the applicant is from one year prior and no other report is submitted.

19The applicant has also not addressed the accident which occurred in January 2019. The Goodfield IE report dated July 31, 2019 notes the applicant had a setback in her psychological recovery when a sheet of ice slid off a truck and struck her vehicle, causing her to later experience stress when driving. Considering this incident and the absence of any submissions refuting it, I find the applicant has not met her onus to prove the assessment is reasonable and necessary as a result of the May 21, 2016 accident.

20Lastly, the most relevant evidence, the IE report of Dr. Goodfield, concludes the driving assessment is not reasonable and necessary. During the assessment, the applicant denied panic attacks or flashbacks to Dr. Goodfield and reported to be coping better and that her driving anxiety had improved. Dr. Goodfield’s assessment found the applicant made good progress in her recovery, was coping well overall, and found her reported symptoms were mild in severity and did not meet the criteria for a DSM 5 diagnosis. At the time of the assessment, the applicant still had a few remaining psychological treatment sessions and Dr. Goodfield concluded no further treatment was required.

INTEREST

21Pursuant to section 51 of the Schedule, interest is payable when the respondent fails to pay a benefit within the time period prescribed by the regulation. I find no interest payable because the applicant is not entitled to the disputed benefits.

CONCLUSION

22The applicant is not entitled to the disputed treatment plans because they are not reasonable and necessary as a result of the May 21, 2016 motor vehicle accident.