Citation: C.M. vs. Aviva Insurance Company, 2020 ONLAT 19-004478/AABS

Released Date: 10/20/2020

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:

C. M.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Anton Serikov, Paralegal

For the Respondent:

Alex Robineau, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, C.M. was involved in an automobile accident on September 13, 2015 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ This dispute focuses the respondent’s (“Aviva”) denial of C.M.’s entitlement to medical benefits.

2C.M. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.

3Aviva argues that C.M. has not established that the treatment plan is reasonable and necessary.

ISSUES

4The issues I must determine are as follows:

i. Is the medical benefit in the amount of $1,384.70 for physiotherapy in a treatment plan (“OCF-18”) recommended by Mackenzie Medical, submitted on December 5, 2017, and denied on December 28, 2017, reasonable and necessary?

ii. Is the medical benefit in the amount of $571.19 ($2,791.90, less $2,200.71 approved) for psychological treatment in an OCF-18 recommended by Medex Assessments, submitted on April 10, 2017, reasonable and necessary?

iii. Is C.M. entitled to interest on any overdue payment of benefits?

FINDING

5Based on a review of the evidence, I find the following:

i. C.M. is not entitled to the OCF-18s in dispute; and

ii. C.M. is not entitled to interest.

ANALYSIS

Issue 4(i) – Is C.M. entitled to the OCF-18 for physiotherapy?

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an 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

7For the reasons that follow, I find that the OCF-18 is not reasonable and necessary. C.M. submitted as evidence a treatment plan completed by Chiropractor Ayden Banibashar and Massage Therapist, Galina Bolshakova. Although C.M. submits that the treatment she seeks is for physiotherapy, the OCF-18 does not specify physiotherapy (it recommends physical therapy, chiropractic treatment and massage therapy). Further, C.M. does not put forth any evidence that supports physiotherapy treatment is reasonable and necessary.

8Additional evidence that C.M. relies on is a consultation report³ from Pain Management Specialist, Dr. Chris Giorshev. In the consultation report, Dr. Giorshev notes that C.M. initially found physical therapy helpful, but at the time of the report, it is no longer helpful. C.M. noted to Dr. Giorshev that massage therapy and chiropractic treatment was too painful to continue.

9C.M. discussed other treatment modalities with Dr. Giorshev, specifically nerve block injections. The evidence shows that in January and February 2019, she received the nerve block injections, which she reported were beneficial. There is no further evidence of any treatment updates after February 2019.

10C.M. also relies on the clinical notes and records of Occupational Therapist, Diane Lang and Family Physician, Dr. Manoj Bhargava. The notes of Dr. Bhargava and Ms. Lang are dated July and August 2016 and provide no support for the December 2017 OCF-18.

11I place very little weight on the evidence from Dr. Giorshev, Dr. Bhargava and Ms. Lang as there is no evidence to establish that the physiotherapy OCF-18 is reasonable and necessary. Dr. Giorshev recommends injections, which are not part of any recommendation in the OCF-18. Dr. Bhargava’s and Ms. Lang’s recommendations pre-date the OCF-18 by over one year, and I do not consider those to be valid recommendations when compared with the Dr. Giorshev consultation report.

12For the reasons stated above, I find C.M. has not met her onus in showing how this OCF-18 meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan to be reasonable and necessary.

Issue 4(ii) – Is the remaining amount of the OCF-18 for psychological treatment reasonable and necessary?

13For the reasons that follow, I find that the balance of the OCF-18 is not reasonable and necessary. C.M. submits that 12 sessions were reasonable. However, the OCF-18, under the Additional Comments section, state that 10 psychotherapy sessions were recommended.

14Aviva submits that the explanation of benefits dated April 24, 2017, outlined that various costs were not payable. Specifically, that tax was not applicable on psychological services in Ontario, review of external material was not necessary and the cost of preparing the progress report was above the standard rate.

15C.M.’s submissions regarding the cost of the proposed treatment was limited to the following statement, “the cost is in line with FSCO Guidelines⁴ and does not represent any great leap from what would be considered reasonable”. C.M. put forth no argument or evidence to support her position regarding the remaining costs of the OCF-18. I am unable to make a determination in her favour as a result. C.M. has not met her burden of establishing the remaining costs are reasonable and necessary.

CONCLUSION

16C.M. has not satisfied her onus to persuade me that the OCF-18s are reasonable and necessary. She is therefore not entitled to the benefits.

17No interest is owing as there is no overdue payment of benefits.

18C.M.’s claim is dismissed.

Footnotes

1. 1Ontario Regulation 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635.
3. 3Applicant Document Brief – Tab 9, p.62
4. 4Professional Services Guideline, under Superintendent’s Guideline 03/14 made pursuant to s. 268.3(1) of the Insurance Act.; Financial Services Commission of Ontario Guidelines – “FSCO Guidelines”