Sanderalingam v. Aviva General Insurance, 2020 CanLII 94664

Citation: Sanderalingam vs. Aviva General Insurance, 2020 ONLAT 19-005361/AABS

Released Date: 11/09/2020

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:

Nishankar Sanderalingam

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Carlos Bernal

Counsel

For the Respondent:

Mark Vella

Counsel

HEARD

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Nishankar Sanderalingam (“applicant”) was involved in an automobile accident as a pedestrian on January 19, 2016 (“accident”). The applicant submits that he sustained serious injuries from the accident. The applicant was removed from the Minor Injury Guideline (MIG) on July 6, 2017 by the respondent Aviva Insurance of Canada (“respondent”) due to identified psychological issues following a psychological assessment.

2The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied benefits by the respondent. The applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,553.60 for medical services, recommended by Pathway to Wellness Physio & Rehab Clinic in a treatment plan submitted September 1, 2016, and denied by the respondent on May 23, 2017 (“disputed treatment plan”)?

ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant is not entitled to the disputed treatment plan. No award is made. No interest is payable. The applicant’s application is dismissed.

LAW

5Sections 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 has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

Is the Applicant Entitled to the Treatment Plan for $1,553.60?

6The applicant filed the disputed treatment plan by Dr. Jesuthasa, applicant’s chiropractor, dated September 1, 2016 but did not file sufficient medical evidence to establish that the treatment plan is reasonable and necessary. The evidence filed by the applicant consists of correspondence between the parties, notices of respondent’s insurer’s examinations (“IE”) and explanations of benefits (“EOB”) and, in reply, invoice documentation, log notes and more correspondence between the parties. The applicant’s submissions primarily are critical of the respondent’s conduct including the alleged failure to re-consider the disputed treatment plan under a non-MIG regime, to arrange an MRI of the applicant’s knee, arranging approximately seven IEs, and delaying the applicant’s claim.

7I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary. The disputed treatment plan is not supported by any medical evidence from the applicant’s treating physician supporting the goals of the treatment plan. There is no evidence as to how the proposed treatment will achieve its goals. There is no evidence establishing that the overall cost is reasonable and necessary. Dr. Jesuthasa, as a chiropractor, cannot provide a medical diagnosis or opinion to support his proposed treatment plan. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of reasonableness and necessity.³

8Further, there is evidence from the respondent’s IE assessor Dr. Tansey, orthopaedic surgeon, that the disputed treatment plan is not reasonable and necessary. This is the only evidence before me from a physician as to the reasonableness and necessity of the disputed treatment plan. Dr. Tansey assessed the applicant and delivered a report dated May 17, 2017. Dr. Tansey indicates he was asked to determine if the applicant sustained a minor injury as a result of the accident and to consider the disputed treatment plan. Dr. Tansey’s opinion on the disputed treatment plan is not linked in his report to the MIG nor does he indicate he relied on the MIG in order to form his opinion about the reasonableness and necessity of the disputed treatment plan. Dr. Tansey opined that the disputed treatment plan is not reasonable and necessary. Dr. Tansey also opined that the applicant should have further investigation of his right knee in the form of an MRI arranged by his family doctor and referral to a knee specialist by his family physician if appropriate. Until this investigation is conducted, Dr. Tansey recommended the applicant continue with the exercises he has been shown as a self-directed, home-based program. Dr. Tansey’s report was given to the applicant by letter dated May 23, 2017. There is no evidence before me that the applicant consulted his family doctor or any other physician for further investigations as Dr. Tansey recommended or that any further investigations were arranged.

9The applicant submits that the respondent breached Ontario Regulation 7/00: Unfair or Deceptive Acts or Practices, s. 1(9) which provides that any conduct resulting in unreasonable delay in, or resistance to, the fair adjustment and settlement of claims is an unfair or deceptive act or practice. The applicant submits that because the respondent has not reconsidered the disputed treatment plan under the non-MIG regime, did not arrange an MRI of the applicant’s knee as recommended by its assessor Dr. Tansey, and has arranged “approximately seven insurer examinations” in order for the applicant to access $5,613.37 in medical and rehabilitation benefits, the respondent’s conduct amounts to an unfair or deceptive act or practice.

10I disagree with the applicant’s submissions and find that there is no evidence before me of conduct by the respondent that constitutes an unfair or deceptive act or practice within the meaning of O. Reg. 7/00. Firstly, there is nothing in the correspondence between the parties filed by the applicant that establishes any refusal by the respondent to reconsider the disputed treatment plan after the applicant was removed from the MIG or that the applicant provided any new or updated information to the respondent. Dr. Tansey’s opinion that the disputed treatment plan was not reasonable and necessary never changed nor did the applicant submit any new medical information that would necessitate a further review by Dr. Tansey or any other IE assessor or the respondent. It appears the applicant did not go to his family doctor for further investigation of his right knee as Dr. Tansey recommended.

11Secondly, Dr. Tansey did not suggest that the respondent arrange for further investigation but rather that the applicant’s family doctor do so. This was made clear to the applicant in the EOB dated May 23, 2017 which set out Dr. Tansey’s recommendation in the body of the EOB and enclosed the report. There is no suggestion in this EOB that the respondent would be arranging further investigation of the applicant’s knee but to the contrary, that Dr. Tansey recommended that the applicant’s family physician be consulted about this. The applicant could have either consulted his family doctor or submitted an OCF-18 for an MRI. There is no evidence that the applicant did either, tending to indicate that the applicant was not concerned about seeking an MRI, through OHIP or otherwise, for his right knee.

12The applicant relies on another Tribunal case⁴ to support his argument that the respondent cannot continue to maintain its denial of the disputed treatment plan after removing the applicant from the MIG. This case is not binding on me and I decline to follow it. More importantly, it is also factually different from this case. In Y.C.T.-T. the insurer failed to reconsider denials based solely on the MIG after removal from the MIG. Here, the May 23, 2018 EOB makes it clear that the respondent’s denial is based on medical evidence, Dr. Tansey’s report.

13Thirdly, I see no basis on the evidence before me to be critical of the respondent exercising its right to IEs with respect to this disputed treatment plan. Other IEs referred to in the correspondence and notices filed by the applicant relate to other benefits not in issue before me and are not relevant to this hearing.

14Fourthly, the onus remains on the applicant to establish that the disputed treatment plan is reasonable and necessary, even following removal from the MIG. Entitlement to medical benefits is not automatic but must be established by appropriate evidence. I find that the applicant has not done so here.

15Fifthly, I cannot find on the evidence before me that the respondent generally delayed the handling of the applicant’s claim in any material respect. Although there is some evidence that a paper review was not proceeded with and there were scheduling issues with the respondent’s IE assessment with Dr. Tansey, there is also evidence that there were issues with and delay caused by the applicant’s availability.

16After considering all of the evidence and submissions made, I find that the applicant has not established with medical evidence that the disputed treatment plan is reasonable and necessary.

Award

17Section 10 of Ontario Regulation 664 provides that a lump sum of up to 50% of the amount to which the insured person is entitled may be granted if the respondent unreasonably withheld or delayed payments. The applicant submits that the conduct of the respondent should be sanctioned by an award.

18The applicant also argues that the respondent breached Ontario Regulation 7/00: Unfair or Deceptive Acts or Practices as described above.

19I disagree. As there is no benefit payable, the respondent has not unreasonably withheld or delayed the payment of the benefit.

20Therefore, there is no award under Ontario Regulation 664.

Interest

21As no benefit is payable, no interest is payable.

ORDER

22For the reasons outlined above, the applicant is not entitled to the disputed treatment plan. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
3. 3See for example: Applicant v. Wawanesa Mutual Insurance Company, 16-001539/AABS.
4. 4Y.C.T.-T. v. Certas Home and Auto Insurance Company, 16-000872/AABS, 2017 CanLII 39869 (ON LAT)