D.L. v. Aviva Insurance Canada, 2020 CanLII 63542

Citation: D.L. vs. Aviva Insurance Canada, 2020 ONLAT 19-001860

Released Date: 08/25/2020

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:

D. L.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Paul DeLuca, Counsel

For the Respondent: Christine McKenna, Counsel

HEARD By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1D. L. (“applicant”) was involved in an automobile accident on February 18, 2015 (“accident”) and sought benefits from Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹

2The applicant was denied benefits by the respondent and he submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE – Missing and Late Production of Documents

3The respondent submits that the applicant has not produced any of the productions requested by the respondent and as a result, where there are gaps in the evidence, an adverse inference should be drawn. The respondent also requests that the report of Dr. Abouali dated December 29, 2018 be excluded because it was produced after the deadline in the Tribunal’s case conference Order. The applicant did not file any reply submissions responding to this.

4While breach of a Tribunal Order is always concerning, the burden of proof is on the applicant in this hearing and any lack of evidence will be considered in the weighing of evidence. The respondent’s request to exclude the applicant’s materials delivered after the production deadline has already been dealt with in the Tribunal’s June 16, 2020 Order. There is basis to revisit.

ISSUES

5The issues to be decided in this hearing are:

i. Is the applicant entitled to receive a medical benefit in the amount of $2,569.01 for chiropractic treatment, recommended by Dr. Ian Kai in a treatment plan submitted October 27, 2017 and denied on November 3, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,569.01 for chiropractic treatment, recommended by Dr. Ian Kai in a treatment plan submitted October 27, 2017 and denied on November 3, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,670.58 for chiropractic treatment, recommended by Dr. Ian Kai in a treatment plan submitted February 9, 2018 and denied on March 9, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,215.29 for chiropractic treatment, recommended by Dr. Ian Kai in a treatment plan submitted March 2, 2017 and denied on april 10, 2018?

v. Is the applicant entitled to payment for the cost of examinations in the amount of $26,499.00 for a catastrophic assessment (“CAT assessment”), recommended by Novo Medical Services in a treatment plan submitted August 7, 2018 and denied on October 22, 2018?

vi. Is the applicant entitled to payment for the cost of examinations in the amount of $3,345.00 for a psychological assessment recommended by Dr. Pilowsky in a treatment plan submitted May 24, 2017 and denied on May 26, 2017?

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

viii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

6I find that the applicant is not entitled to the costs of the CAT assessment as claimed or the three chiropractic treatment plans or the treatment plan for psychological assessment. No interest is payable. No special award is made. The applicant’s application is dismissed.

LAW

7Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation 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 plan he or she seeks is reasonable and necessary.²

8Section 25 (1) 5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45 (1) provides that an insured who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

9Section 25 (5) (a) provides that the insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and the preparation of the related report.

10The applicant bears the onus of proving the reasonableness of the assessments claimed.

ANALYSIS

Is the Applicant Entitled to $26,499.00 for CAT Assessment?

11The applicant submits it is reasonable and necessary to determine whether he has suffered a CAT impairment because it is possible the applicant may be catastrophically impaired. The respondent submits that the applicant has failed to satisfy his onus on any of the disputed treatment plans.

12I find the applicant is not entitled to payment of $26,499.00 for the CAT assessment, or any portion of it, because there is no reasonable basis to investigate whether the applicant is catastrophically impaired. There is insufficient objective medical evidence to suggest whole person impairment of 55% or marked impairment in three or more areas of function as a result of the accident. Even bearing in mind that, by their nature, assessments are speculative and their purpose is to determine if an applicant has a specific condition or meets a specific threshold, there must be some suggestion that the specific condition exists and arose from the accident and that further investigation is reasonable and necessary. That has not been established.

13The applicant was taken to [The Sciences Centre] at the time of the accident where he was diagnosed with left hand pain and soft tissue injuries. February 27, 2015 imaging showed normal spine with no fracture or dislocation. Dr. Carlos, applicant’s physician, noted some two weeks later that an x-ray of his left hand was normal, diagnosed bilateral wrist strain as a result of the accident and recommended physiotherapy. The applicant recalls he took about a week off work and then was back to work with some modified duties and fewer hours.

14The applicant’s CAT assessment dated August 7, 2018 was prepared by Dr. Milad, a physician at Novo Medical Services Inc. and proposes catastrophic determination assessments by Dr. Milad, a social worker (biopsychosocial assessment), two chiropractors, a psychiatrist, a psychologist, OT, neurologist and “other” each at a cost of $2,000.00 as well as two documentation costs at $200.00 each, two transportation to treatment costs of $399.00 and $560.00 each.

15I find that the applicant has not brought forward sufficient evidence to establish that any of the modalities proposed in the CAT assessment are reasonable and necessary. I find the proposed physical evaluations by Dr. Milad, the chiropractors, OT and neurologist are not reasonable and necessary. There is no evidence from the applicant’s family doctor that the applicant suffered anything other than minor physical injuries as a result of the accident. The OCF-3, disability certificate, from Dr. Kai, applicant’s chiropractor, describes injuries allegedly arising from the accident which are not supported by the medical evidence before me. Dr. Kai is not qualified to diagnose.

16I find that the balance of the proposed assessments are not reasonable and necessary including the psychiatrist, psychologist, and OT. Based on the lack of explanation of “other”, I find that this proposed part of the CAT assessment is not reasonable or necessary. The documentation and travel expenses are also not reasonable and necessary given the applicant’s health post-accident. In Dr. Pilowsky’s reports her opinion is based, in part, on the applicant’s self-reporting. The applicant’s self-reporting to Dr. Pilowsky is not borne out by his testimony at the examination on October 10, 2018 or the surveillance evidence and falls far short of the catastrophic impairment level of marked impairment. By the fall of 2018, the applicant was working, able to do child care, lift and carry his daughter, grocery shop, drive, socialize with his family, work out at a gym, do some home renovations, had not taken any prescriptions post-accident, had improvement in his neck and he was not getting any treatment for it, the problem in his hands had resolved post-accident, he had seen a psychotherapist for car anxiety and that had largely resolved and was seeking full time employment, all of which are not supportive of a suggestion of catastrophic injury. Although the applicant relies on the March, 2016 report of Dr. Ebrahimian, respondent’s psychologist, this report does establish that any of the proposed assessments are reasonable and necessary given the state of the applicant’s recovery by 2017.

17With respect to any psychological injuries from the accident, I prefer the report of respondent’s psychiatrist Dr. Eisen who assessed the applicant specifically with respect to the proposed CAT assessment. In his January 2, 2019 report Dr. Eisen opines that the CAT assessment is not reasonable and necessary as the applicant is capable of almost all his pre-accident activities and the applicant’s driving anxiety following the accident had improved considerably. Dr. Eisen also noted that the applicant had joined a gym and lost 20 pounds post-accident, something that the applicant’s doctors had recommended to him pre-accident due to his pre-accident medical history. Dr. Eisen’s report is corroborated by the October, 2018 report of respondent’s physiatrist, Dr. Oshidari, who after a paper review also opined that the CAT assessment is not reasonable and necessary.

18The applicant’s argument that he is entitled to the cost of the CAT assessment and the cases relied on are unpersuasive. Entitlement to payment for a CAT assessment is not absolute. An insurer is not obligated to pay all CAT assessments but only those that are reasonable and necessary. This has been expressed by the Tribunal before. As stated by Vice Chair Lester, “…it does not seem in line with the Schedule that there would be no test for entitlement to catastrophic assessment as long as the fees charged were reasonable. Although section 45 does not stipulate a test for determining entitlement to the catastrophic assessment, it is only reasonable to conclude, on the balance of probabilities, that reasonableness and necessity would be the appropriate test. This is the test consistently used in the Schedule for determinations of entitlements for assessments.”³

19Although the applicant may have sustained some injuries in the accident and undergone some treatment as a result, in totality, the weight of the applicant’s medical evidence does not approach catastrophic impairment levels. As a result, the CAT assessment is therefore not reasonable and necessary.

20I also find that the overall cost of the CAT assessment is not reasonable given the lack of evidence that such assessment is warranted.

21I find that the applicant has not established that the CAT assessment is reasonable and necessary with respect to injuries resulting from the accident and that the applicant is not entitled to the payment claimed.

Is the Applicant Entitled to $2,569.01, $2,670.58 and $1,215.29 for Three Chiropractic Treatment Plans and $3,345.00 for Psychological Assessment Treatment Plan?

22I find that the applicant is not entitled to the payment of these four treatment plans because he has not established, on a balance of probabilities and with sufficient medical evidence, that any of them are reasonable and necessary.

Goals

23I find that the goals of the plans are not reasonable and necessary based on the totality of the medical evidence. The chiropractic treatment plans were proposed in March and October, 2017 and in February, 2018 and the psychological assessment treatment plan in 2017, all more than two years post-accident. The goal of assisting the applicant in recovery from his physical injuries arising from the accident is at odds with the minor nature of the applicant’s injuries from the accident and his recovery by 2017.

24As set out above, post-accident, the applicant had very little decrease in his activities of daily living. He lost approximately one week of work and then was able to resume his employment, with some modified duties and reduced hours. The applicant was able to continue with child care. By August, 2015 the records of North Toronto Rehabilitation show he only had low back pain when lifting his children or groceries. The records of Dr. Carlos and Premier do not show any accident related complaints from February 23, 2015 to August, 2016. By the summer of 2016 the applicant was lifting weights, cycling and playing football. The reports of respondent’s orthopaedic surgeon, Dr. Leone in February, 2016 and Dr. Henderson in May, 2017 indicate the applicant had reached maximum medical recovery by 2016. Dr. Henderson notes that between May, 2016 and May, 2017, the applicant did not have any physical treatment related to the accident. Dr. Kachooie, applicant’s physician, diagnosed mechanical back pain in 2018 but did not link this pain to the accident. Dr. Maistrelli, respondent’s orthopaedic surgeon in his report dated September 14, 2017 confirmed that issues noted on the applicant’s CT scan were degenerative in nature and unrelated to the accident. Given the applicant’s admitted lack of use of prescription drugs, his ability to do daily activities and be active in sports, I find there is no evidence of chronic pain related to the accident. Although the applicant relies on the report of applicant’s orthopaedic surgeon, Dr. Abouali dated December, 2018, I find that this report is unreliable because it inaccurately describes the applicant’s pre-accident condition as extremely active when his medical records shows that his doctor was concerned about his weight and recommended increased physical activity. Dr. Abouali’s report also indicates that the applicant is 75% less active post-accident and cannot do daily activities and housekeeping which is not consistent with the applicant’s testimony at his examination and the surveillance.

25With respect to the applicant’s possible psychological injuries from the accident, as set out above, I find Dr. Pilowsky’s reports to be unreliable and prefer the report of Dr. Eisen which states that the applicant is capable of almost all his pre-accident activities and the applicant’s driving anxiety following the accident has improved considerably and the October, 2018 report of Dr. Oshidari.

Are Goals Being Met to a Reasonable Degree

26The applicant has failed to provide sufficient information about the effectiveness of the disputed treatment plans. Therefore, I am unable to find that the goals of the plans are being met to a reasonable degree.

Overall Cost

27I find that the overall cost of all four disputed treatment plans is also not reasonable and necessary given that the applicant has failed to establish that any of them are necessary.

28Considering the totality of the evidence, I find that the applicant has not provided sufficient medical evidence to meet his burden of proof that the plans are reasonable and necessary.

Interest

29As no benefits are payable, no interest is payable.

Special Award

30Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. By Order made June 16, 2020 the Tribunal excluded any submissions from the applicant related to the this claim for an award. Having reviewed the evidence and in the absence of any submissions by the applicant on this issue, I see no basis for an award. I find that there was no payment unreasonably withheld or delayed.

ORDER

31For the reasons outlined above, I find that the applicant is not entitled to the costs of the CAT assessment as claimed or the three chiropractic treatment plans or the treatment plan for psychological assessment. No interest is payable. No special award is made. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
3. 3Reconsideration Decision C.A. v. Intact Insurance Company, 2019 CanLII 101845 (ONLAT) at para 11.```