Parmar v. Aviva Insurance Canada, 2020 CanLII 98724

Parmar v. Aviva Insurance Canada

Citation: Parmar vs. Aviva Insurance Canada, 2020 ONLAT 19-007750/AABS

Released Date: December 4, 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:

Kamaldip Parmar

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Sandeep Johal, Vice-Chair

APPEARANCES:

Paralegal for the Applicant: Anastasiya Chepak

Counsel for the Respondent: April C. Snow

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on June 17, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a seat-belted driver of a vehicle that was rear-ended by another vehicle. As a result of the accident, the applicant submits she experienced pain in her jaw, neck, back and shoulders.

3The applicant applied for a medical benefit and a cost of examination that were denied by the respondent on the basis that they 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:

i. Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a temporal mandibular joint (“TMJ”) Assessment recommended by Imperial Medical Assessments in a treatment plan (OCF-18) submitted on May 30, 2017 and denied on August 15, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $3,850.00 for dental services recommended by Dr. Manpreet Mangat in a treatment plan (OCF-18) submitted on January 21, 2018 and denied on February 8, 2018?

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

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

5In the respondent’s submissions, it raised the issue of causation and therefore causation will be addressed as part of this written hearing.

RESULT

6For the reasons outlined below, I find that the applicant is not entitled to a cost of examination for a TMJ assessment nor a medical benefit for dental services as both are not reasonable and necessary. As there are no benefits outstanding there is no interest or an award that is payable.

ANALYSIS

Causation

7Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the applicant’s TMJ impairment from which the applicant is suffering for the following reasons.

8The respondent raises the issue of causation as a result of the applicant having problems with her TMJ before the accident and because there was no injury to her head, or jaw in the subject accident. As a result, the respondent submits that the applicant has not proven on a balance of probabilities that the use or operation of the vehicle directly caused the impairment

9The applicant does not address the issue of causation in her submissions or in response to the respondent’s submissions. The applicant submits that her oral medicine specialist, Dr. Grushka did not address treatment in relation to the applicant’s TMJ impairments arising from the subject accident. Therefore according to the applicant a proper TMJ assessment must be completed in order to determine the extent of the applicant’s injuries as a direct result of the subject accident.

10The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.² The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The accident does not need to be the cause of the injury but it must be at least a necessary cause of the injury.³

11As stated above, the applicant does not provide any submissions with respect to causation or in response to the respondent. However, upon a review of the evidence submitted I agree with the respondent, that there is no compelling evidence on a balance of probabilities to suggest that the applicant’s TMJ impairments were a necessary cause of the accident.

12The applicant has had TMJ pain that dates back to 2014 and which required her to take a disability leave from her job in December 2014. Dr. Grushka noted the applicant had moderate to severe pain to palpitation to both TM joints in October 2015.⁴

13In a report dated July 6, 2020, Dr. Grushka writes the report based on a visit by the applicant on September 3, 2015 which predates the subject accident. In that report, Dr. Grushka does not state that the applicant’s TMJ pain was re-aggravated by the subject accident, but refers to an accident that took place in 2014 in reference to pain in the muscles of mastication and pain over the TM joint.⁵

14As stated in Sabadash, the injuries do not need to be the cause of the accident, but at least a necessary cause. In my view, based on the evidence on a balance of probabilities, I am not persuaded that the subject accident is a necessary cause of the applicant’s TMJ impairments.

15Even if I were to find that the applicant’s TMJ impairments were causally related to the subject accident, I find that the cost of examination and the treatment plan for dental services are not reasonable and necessary.

16I will now turn to discuss the cost of examination and the treatment plan.

Is the applicant entitled to a payment for the cost of examination for a TMJ assessment in the amount of $2,000?

17For the following reasons, I find that the cost of examination for a TMJ assessment is not reasonable and necessary.

18The applicant submits that the applicant’s jaw pain was re-aggravated from a previous motor vehicle accident in 2014 and points to a report from Dr. Jain.⁶ However, the report from Dr. Jain at the Jain Dental Clinic is undated and it does not mention the subject accident or that the applicant’s jaw pain was in any way re-aggravated as a result of the subject accident.

19The clinical notes and records from Fogal Medical from June 18, 2016 state that the applicant had long standing TMJ joint pain and that she complained about it being worse after the accident. Upon assessment, it was noted that the applicant’s TMJ had full range of motion with discomfort and “mild tender” over the TMJ joint. The applicant was advised to see her family doctor.⁷

20According to the respondent, the applicant visited her family doctor on June 20, 2016 complaining of TMJ pain however upon her visits to the family doctor thereafter from July 2016 to March 2017, the only complaints the applicant had were soft-tissue injuries to her neck, back and shoulder.⁸

21The applicant refers to her OHIP summary that her TMJ was re-aggravated and the fact that she had a consultation with Dr. Gordon of Maple Dental for therapeutic Botox injections for her severe jaw pain, headaches and pain, was associated with her TJM injuries and that supports the need for an assessment. However, I do not find the OHIP summary or Dr. Gordon’s consultation notes on her Botox injections to be of assistance to the applicant. The OHIP summary does not state that her TMJ was re-aggravated, and the consultation with Dr. Gordon does not appear to be based on a referral from her family doctor or any treating practitioner but rather based on her own self research with respect to Botox injections. There is no mention in the consultation notes of the subject accident being a cause of the applicant’s pain or that Botox injections were recommended or required to treat any impairments sustained as a result of the subject accident.

22The respondent relies upon an insurer examination (“IE”) assessment by Dr. Ouanounou, Dentist, who prepared a report dated August, 1, 2017. It was Dr. Ouanounou’s opinion that after assessing the applicant, his examination failed to detect any abnormality with the TMJ or any of the oral and maxillofacial structures. He found that all her muscles of mastication had no tenderness to percussion, there were no clicking sounds in the TM joints and the mandibular range of motion was normal and had no indication of inflammation. It was Dr. Ouanounou’s opinion that the applicant did not sustain an impairment as a direct result of the accident as the applicant had an unremarkable oral and maxillofacial examination. In his opinion the jaw is unlikely to be traumatized during an accident unless it sustains direct trauma.⁹ According to the self-reports of the applicant to Dr. Ouanounou, she did not strike her head or sustain a loss of consciousness and she was able to exit her vehicle unassisted after the accident.¹⁰

23In my view, the applicant does not need to prove that she has the condition the assessment will investigate, however there must be compelling evidence that the applicant’s TMJ condition was as a result of the accident or exacerbated from the accident and I have not been persuaded on a balance of probabilities that it was. Despite the applicant’s submissions that the TMJ condition was exacerbated by the accident, the medical evidence does not support this position.

24Other than the self-reports immediately after the accident to the clinic and her family doctor, and then Dr. Grushka’s report dated July 6, 2020 - which the respondent submits was filed for the first time with the applicant’s submissions and not in accordance with the Tribunal’s Order that required all evidence to be submitted by May 8, 2020 – there is no evidence I have been pointed to that suggests the TMJ pain is related to the subject accident.

25However, I do not agree with the respondent that Dr. Grushka’s report should be struck for being filed past the production deadline as the respondent has had the opportunity to review the 2-page report and provide submissions on it. In any event, I do not find it to be of assistance to the applicant and I place less weight on the report as it is in support of her pain from TMJ which is dated 3 years after the request for the cost of the assessment.

26I have not been presented with contemporaneous evidence in support of the TMJ assessment during the time the cost of examination was proposed. The reason for the TMJ assessment is not clear on a balance of probabilities. There is no compelling medical evidence of any impairment to her TMJ as a result of the accident and there is no compelling evidence in support of any TMJ related issues that would warrant a referral for an assessment.

27Dr. Gordon who provided Botox injections to the applicant was not someone the applicant was referred to treat any accident related impairments, but rather someone that the applicant chose to go to for Botox treatments. Dr. Gordon’s consultation notes also do not mention anything about the subject accident or that the Botox injections would treat any accident related impairments.

28As a result of the above, I find that the TMJ cost of examination is not reasonable and necessary.

Is the applicant entitled to a medical benefit in the amount of $3,850 for dental services treatment?

29I find the treatment plan for dental services is not reasonable and necessary for the following reasons.

30The applicant did not provide submissions or direct me to any evidence in support of the dental treatment or what dental treatment was provided and whether it was as a result of an impairment related to the subject accident.

31The respondent submits the applicant is seeking funding for unspecified dental work and details have not been provided regarding the work that was performed despite a request under s. 33 of the Schedule for documents to be provided regarding estimates, invoices for the work provided and clinical notes and records from the dentist who performed the work.¹¹ The respondent submits that no evidence or medical documentation has been provided by the applicant in support of these expenses or any documentation that the dental work is related to the subject accident or that they are reasonable and necessary.

32I agree with the respondent. The applicant does not provide submissions or direct me to any evidence in support of the dental treatment and with the onus on the applicant to prove on a balance of probabilities, I have not been persuaded that the medical benefit for dental services is reasonable and necessary.

CONCLUSION

33For the above reasons, I find that the applicant is not entitled to a cost of examination for a TMJ assessment nor a medical benefit for dental services as both are not reasonable and necessary. As there are no benefits outstanding there is no interest or an award that is payable.

Released: December 4, 2020

___________________________

Sandeep Johal

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
3. 3Ibid at paras. 36, 39.
4. 4Respondent’s Document Brief at Tab 3D and 3E.
5. 5Written Submissions of the Applicant at Tab 10.
6. 6Ibid at Tab 1.
7. 7Ibid at Tab 5.
8. 8Respondent’s Brief of Documents at Tab 3B.
9. 9Ibid at Tab 3J, pg. 6.
10. 10Ibid at pg. 2.
11. 11Ibid at Tab 3N.```