N.I. v. Aviva Insurance Canada, 2020 CanLII 61465

Citation: N.I. vs. Aviva Insurance Canada, 2020 ONLAT 19-000372/AABS

Released Date: 08/21/2020

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:

N.I.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: N. I., Applicant Victoria Gorbenko, Paralegal

For the Respondent: Kathleen Mertes, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 28, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (AABS) (the “Tribunal’).

ISSUES IN DISPUTE

3At the case conference hearing, the issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to a medical benefit in the amount of $3,090.09 for chiropractic services provided by Alexander Yu at Life Point Medical Inc. as set out in a treatment and assessment plan dated May12, 2017, and denied by the respondent on May 17, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $897.27 (44,266.16 less $3,368.89 approved) for psychological services sessions (each being 90 minutes less 60 minutes approved) provided by Svetlana Gabidulina, as set out in a treatment and assessment plan dated July 10, 2017 and denied by the respondent on July 12, 2017?*

*The parties have agreed that this matter will only proceed to hearing if the full 90 minutes sessions were incurred.

iii. Is the applicant entitled to the cost of examination in the amount of $1,229.96 for a Functional Abilities Evaluation (“FAE”) by Marco Curcio, as set out in a treatment and assessment plan dated August 30, 2017, and denied by the respondent on September 18, 2017?

iv. Is the applicant entitled to interest on any overdue payments of benefits?

4The applicant withdrew items [3] ii, iii on August 23, 2019 and on September 26, 2019.¹

RESULTS

5The applicant is not entitled to a medical benefit in the amount of $3,090.09 for chiropractic services provided by Alexander Yu at Life Point Medical Inc. as set out in a treatment and assessment plan dated May 12, 2017.

6The applicant is not entitled to any interest as no benefits were owing.

BACKGROUND

7The applicant was stopped at an intersection when he was rear ended. There was no loss of consciousness and no airbag deployment. He did not get any medical attention at the accident site and sought physical therapy treatment a couple of days later at Life Point Medical Inc. He attended 2-3 times a week until June 2017.²

8The applicant attended at his family doctor, Dr. Ghazi-Mirsaeed, on February 14, 2017 and again on June 2, 2017 complaining of upper back and neck pain and anxiety. No medication was prescribed.³

9On June 9, 2017, the applicant attended an Insurer’s Examination (“IE”) with Dr. Kopansky-Giles, chiropractor. The applicant advised Dr. Kopansky-Giles that he no longer required medications for his accident related injuries, and that he was managing the pain by doing home based exercises.⁴

10On October 30, 2017, the applicant followed up with Dr. Ghazi-Mirsaeed in relation to his neck pain. The doctor’s clinical notes indicated that the applicant has done some physiotherapy, is feeling better and he is noted to be “back to normal.⁵

11The applicant made no further visits to Dr. Ghazi-Mirsaeed from October 30, 2017 to March 8, 2019.

12Dr. Kopansky-Giles, in her IE report dated June 13, 2017, concluded that further chiropractic treatment was not reasonable and necessary. The respondent had indicated to her that he performed self directed exercises at home on a regular basis and that he did not feel that he required chiropractic treatment at the clinic.⁶ The applicant had returned to playing basketball in one of the three leagues that he was playing in prior to the motor vehicle accident (“MVA”) and Dr. Kopansky-Giles opined that he would be able to resume playing in all three leagues over the next short while.⁷ The applicant noted that his improvement since the accident was at 75%.⁸

13Dr. Kopansky-Giles also noted in her IE report that the applicant had likely reached maximum therapeutic benefit from the facility-based treatment prior to the submission on the treatment plan.⁹ Dr. Kopansky-Giles recommended that the applicant attend for two personal training sessions at a gym to strengthen his back and core. The applicant never submitted a treatment plan for the treatment recommended by Dr. Kopansky-Giles.

14Dr. Kopansky-Giles also noted in her report that the WADII neck injury sustained in the MVA had been objectively resolved. The physical assessment of the applicant’s lower back indicated “very minor joint dysfunction persisting at the left joint only, and which the claimant noted was relieved by doing home exercises”.¹⁰

ANALYSIS

15Section 15 of the Schedule requires all medical benefits to be reasonable and necessary, before an insurer is required to pay for them.

16I find that the applicant has not proven on a balance of probabilities that the proposed treatment plans are reasonable and necessary, for the reasons set out below.

17The applicant by his own admissions has indicated that he performed self directed exercises at home and does not need the required chiropractic treatment at the clinic. He had admitted to Dr. Kopansky-Giles that he is playing basketball in one league and hopes to be shortly playing in the other two leagues. The applicant never submitted any treatment plan as recommended by Dr. Kopansky-Giles for the training sessions.

18Dr. Kopansky-Giles noted in her IE report that the applicant had likely reached maximum therapeutic benefit from the facility-based treatment prior to the submission on the treatment plan. The physical assessment of the applicant’s lower back indicated “very minor joint dysfunction persisting at the left joint only, and which the claimant noted was relieved by doing home exercises”.

19The evidence of the applicant that he was resuming playing basketball, and the findings by Dr. Kopansky-Giles, clearly indicate that there is no further need for chiropractic services.

INTEREST

20There is no interest owing as no benefits are owing.

CONCLUSIONS

21The applicant’s application is dismissed for the reasons set out above.

Footnotes

1. 1Emails from Victoria Gorbenko, counsel for the applicant Tab 2.
2. 2Section 44 Insurer’s Examination Chiropractic Assessment Report of Dr. Deborah Kopansky-Giles, chiropractor dated June 23, 2017 at p 4, Tab 3.
3. 3Clinical notes and records of Dr. Ghazi-Mirsaeed dated February 14, 2017, and from March 2017 -March 8, 2019 Tab 4.
4. 4Ibid page 4.
5. 5Ibid page 14.
6. 6Ibid Note 2 at page 5.
7. 7Ibid note 2 page 5.
8. 8Ibid note 2 page 5.
9. 9Ibid Note 2 page 9.
10. 10Ibid note 2 page 9.