J.S. v. Aviva General Insurance Company, 2020 CanLII 87949

Citation: J.S. vs. Aviva General Insurance Company, 2020 ONLAT 19-004585/AABS

Released Date: 10/02/2020

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:

J.S.

Applicant

and

Aviva General Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Dilenthi S. Warakaulle

Counsel for the Respondent: Maggie Morgan

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on March 25, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the passenger in a vehicle being driven by her husband. The vehicle was stopped in traffic when another vehicle impacted the rear of their vehicle. As a result of the accident, the applicant suffered physical and psychological injuries.

3The applicant applied for physical treatment that was denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

a. Is the applicant entitled to a medical benefit in the amount of $1,853.72 for goods and services recommended by Healing Hands in a treatment plan which was denied on January 31, 2018?

b. Is the applicant entitled to a medical benefit in the amount of $1,953.72 for psychological treatment recommended by Healing Hands in a treatment plan which was denied on January 31, 2018?

c. Is the applicant entitled to a medical benefit in the amount of $200.00 for chiropractic treatment recommended by Healing Hands in a treatment plan which was denied on June 22, 2017?

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

5Based on the parties’ submissions, issue number b. above for psychological treatment would appear to be an error in the Tribunal order and it should be for chiropractic treatment instead.

6Issue c. above, is not discussed by the parties in their respective submissions and as there is no evidence related to it, the issue is therefore dismissed.

7Only the chiropractic treatment plans in dispute as issues a. and b. above, as well as interest will be addressed.

RESULT

8The chiropractic treatment plans are not reasonable and necessary and as there are no outstanding benefits that are payable by the respondent, the applicant is not entitled to interest.

ANALYSIS

Is the applicant entitled to the chiropractic treatment plans in dispute in the amounts of $1,853.72 and $1,953.72?

9Based on the following, I find the medical benefits for chiropractic treatment are not reasonable and necessary.

10The applicant submits that, in order to determine whether a treatment plan is reasonable and necessary, it must first be determined whether the applicant’s injuries resulted from the accident; and, if yes, then second, each treatment plan must be determined to be reasonable and necessary.²

11The applicant relies upon the Disability Certificate (OCF-3) to indicate that, as a result of the accident, the applicant suffered the following ; (1) an injury of the muscle and tendon at neck level; (2) dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis; (3) sprain and strain of thoracic spine; (4) dislocation, sprain and strain of joints and ligaments of shoulder girdle; (5) headache; (6) nonorganic sleep disorders; and (7) phobic anxiety disorders.³

12The applicant relies upon her treating psychologist who noted in her report that the applicant has not returned to her previously enjoyed activities due to the accident and remains pain focused.⁴ Furthermore, the applicant relies upon the respondent’s insurer examination assessor (“IE”) who recommended attendant care benefits in support of her position that she suffers from impairments as a result of the accident.⁵

13The applicant also relies upon the treatment plan itself (OCF-18) in support of her position that she has consistently complained to her doctors and treatment providers for her injuries and that she has been progressing with treatment.

14The respondent takes the position that the applicant has not requested or put into evidence the clinical notes and records of her treating chiropractor and facility and there is no evidence as to the efficacy of previous similar treatment. Furthermore, the respondent argues that the clinical notes and records of the applicant’s family doctor, Dr. Mati, offer no insight into whether there has been any improvement with pain reduction, strength, range of motion, stability or with any of the applicant’s activities of daily living.

15The respondent further relies upon its IE assessments by Dr. Tepperman, in which he noted the applicant states she has only improved by 10% since the accident, and who concluded that there was no objective evidence of a musculoskeletal impairment or neurological impairments. He concluded that she suffered uncomplicated soft-tissue injuries which had sufficient time to resolve and was non-organic.⁶

16Furthermore, it is the respondent’s position that the applicant is relying on the clinical notes and records of Sedighed Naisi, psychotherapist, and Dr. Brown, psychologist, in support of the chiropractic treatment plans; however, according to the respondent, these practitioners did not comment on the chiropractic treatment plans and it would outside their scope of practice to comment on the reasonableness, the necessity and the efficacy of chiropractic treatment.

17The onus is on the applicant to prove her entitlement to these benefits on a balance of probabilities, and I find that the applicant has not done so.

18In the present case, the applicant refers me to an In-Home IE Assessment conducted on behalf of the respondent for attendant care benefits in support of the applicant’s reduced and limited functions.⁷ Certain portions of a psychological report that states she has physical injuries,⁸ and a letter from the doctor at the treating facility who disagrees with the respondent’s IE assessor’s opinion that the applicant has reached maximum medical recovery.⁹

19To show the applicant has progressed with treatment, she relies upon the psychological report of Dr. Brown from June 7, 2018, where it is recommended she receives an additional six sessions of psychotherapy to cope with her stress and other symptoms.¹⁰ A progress report from Sedigheh Naisis, psychotherapist, dated January 17, 2019 recommend psychotherapy to deal with her stress and other symptoms including sleep difficulties, anxiety, low tolerance and vehicle anxiety.¹¹ As well as a letter dated July 15, 2019 from Dr. Soltan-Mohammadi from the treating facility that she continues to experience pain and that she has not achieved maximum medical recovery.¹²

20The applicant submits she has continuously complained about her impairments and injuries to her doctors and treatment providers and that she has been treated by the treating facility, Healing Hands since the date of the accident. However, other than the letter dated July 22, 2019 and January 8, 2020 from the treating practitioner at Healing Hands that lists her injuries, there are no clinical notes and records from the treating practitioner or her family doctor in support of her injuries or in support of treatment contemporaneous to the request for the treatment plan.

21The applicant relies upon the Tribunal case of B.F. and Certas Home and Auto Insurance Company,¹³ where in that case it was held that chiropractic treatment and psychological services were reasonable and necessary as the applicant had shown through medical evidence that treatment is required to regain strength, range of motion and to assist in resuming pre-accident levels of functions. In B.F. there was medical evidence from the applicant’s chiropractor by way of an assessment, from a physician and a psychiatrist that physiotherapy treatment provided temporary relief of his pain and that since treatment had stopped, B.F.’s physical pain progressively increased. In the present case, I am not presented with compelling evidence in support such as any assessment in support of chiropractic treatment, any clinical notes and records in support of treatment or that any previous courses of treatment were effective in reducing pain or improving any of her limitations.

22The respondent relies upon its IE assessment by Dr. Tepperman in a report dated September 13, 2017,¹⁴ wherein after conducting an examination of the applicant that it was replete with pain-focused behaviour and self-limitation of movement. He went onto to opine that there was no consistence objective evidence of musculoskeletal impairment and no neurological impairment. He concluded that the applicant suffered uncomplicated soft-tissue injuries which had sufficient time to resolve and her presentation was non-organic.

23When new medical information was provided, Dr. Tepperman was asked for an addendum report and provided addendum reports dated May 11, 2018 and February 24, 2020. In those reports, Dr. Tepperman indicated that the new information did not alter his original opinion.¹⁵

24I do not place much weight on the psychotherapy reports that are in support of treatment for the applicant’s anxiety and stress-related symptoms, or the letter from the treating facility. The letters dated July 15, 2019 and January 8, 2020 from Dr. Soltan-Mohammadi at the treating facility does not state what, if any testing was done to assess the applicant or on what basis Dr. Soltan-Mohammadi is basing his conclusions on. It is not clear if any documentation was reviewed in arriving at his conclusion that it is unreasonable to assume she has reached maximum medical improvement. In my view, the psychotherapy reports and the letters are not compelling evidence in support of the chiropractic treatment. I am not presented with contemporaneous evidence in support of the chiropractic treatment plan. I have not been directed to evidence in support of treatment from her family doctor, or any clinical notes and records to indicate she is benefiting from treatment or that the treatment plans goals are being carried out to any reasonable degree.

ORDER

25As a result of the above, I find that the chiropractic treatment plans are not reasonable and necessary and as there are no outstanding benefits the applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2J.T. and Aviva General Insurance, 2019 CanLII 122730 (ON LAT) at para. 8.
3. 3Written Hearing Brief of the Applicant at Tab 18.
4. 4Ibid at Tab 39, Psychological Report dated June 7, 2018 of Dr. Natasha Brown.
5. 5Ibid at Tab 23, In-Home Assessment IE Report dated September 2017.
6. 6Written Submissions of the Respondent at Tab 21. IE report dated September 13, 2017.
7. 7Written Hearing Brief of the Applicant at Tab 23.
8. 8Ibid at Tab 39.
9. 9Ibid at Tab 61.
10. 10Ibid at Tab 39.
11. 11Ibid at Tab 45.
12. 12Ibid at Tab 50.
13. 132019 CanLII 43890 (ON LAT). (“B.F.”)
14. 14Written Submissions of the Respondent at Tab 2I.
15. 15Ibid at Tabs 2L and 2M.