Citation: Jackson v. Aviva Insurance Company of Canada, 2021 ONLAT 19-009172/AABS

Released: February 26, 2021

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:

Amanda Jackson

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Danielle Ralph, Counsel

HEARD:

By way of written submissions

1The applicant was involved in a motor vehicle accident on March 19, 2018. As a result of the accident the applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The respondent denied these benefits and the applicant filed an appeal with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

2Specifically, the applicant is seeking medical and rehabilitation benefits. The applicant has the onus to show that these benefits are reasonable and necessary and are related to accident related injuries and/or impairments. The respondent disagrees that the benefits are reasonable and necessary for the applicant’s accident related injuries and/or impairments.

ISSUES TO BE DECIDED

3The parties agreed in their submissions that the following issues are to be decided in this hearing:

a) Is the applicant entitled to $2,2160.00 for a neurological assessment, recommended by Alpha Med Wellness Centre Inc., in a Treatment Plan (OCF-18) dated August 28, 2018?

b) Is the applicant entitled to $197.25 for physiotherapy treatment, recommended by Bloor Bathurst Physiotherapy and Sports Medicine in a Treatment Plan dated January 29, 2019?

c) Is the applicant entitled to $474.87 for purchase of a dog, submitted on a claim form (OCF-6) dated May 29, 2019?

d) Is the applicant entitled to $1,273.38 for purchase of medical cannabis, submitted on a claim form (OCF-6) dated June 14, 2018?

e) Is the applicant entitled to $317.03 for a dental night guard, submitted on a claim form (OCF-6) dated June 17, 2019?

f) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has not met her onus to show that the medical and rehabilitation treatments, assessments and expenses in dispute are reasonable and necessary or payable. As no benefits are overdue and payable there is no entitlement to interest.

ANALYSIS

Pre-Accident History and Immediate Post-Accident Care

5The applicant’s pre-medical history includes the following:

Chronic fibromyalgia with recurring flares
Chronic fatigue
Anxiety/depression
Interrupted sleep
Aches in neck, shoulder back and knees
Chronic nausea
Poor activity tolerance

6The applicant was the driver and sole occupant in her vehicle when the subject accident occurred on March 19, 2018 at 2:30 p.m. The applicant reports that at the time of the accident there was a truck backing up in front of her vehicle causing her to reverse her own vehicle. This truck then struck the front of the applicant’s vehicle which was either stopped² or reversing³ at the time. Following the impact, she exited and inspected her vehicle and noted that the licence plate fell off and there was some front-end damage.⁴ After exchanging the necessary information with the other driver she parked her vehicle and went to one store⁵.

7At 9:17 p.m. that day she took herself to the hospital and had complaints of muscle pain to bilateral arms shoulders, right buttocks, no neck/head/back pain, teary at triage, no LOC [loss of consciousness]⁶.

8The applicant was diagnosed at the hospital with soft tissue injuries. She was told to take Tylenol, ibuprofen, ice if she could tolerate it and follow up with her GP/physio.⁷

9On March 28, 2018 she saw her family doctor who noted that that applicant had a flare up in her existing symptoms when she was involved in the accident. The family doctor confirmed that this was a mild collision and that she has no new symptoms.

The Disputed Issues

10The applicant will be entitled to the disputed medical and rehabilitation treatment and expenses if, in accordance with section 15 and section 25 of the Schedule, she can establish that the treatments and medical expenses represent reasonable or necessary medical expenses incurred as a result of the accident.

11Even if the applicant has been removed from the Minor Injury Guideline (MIG), she continues to bear the onus of establishing reasonableness and necessity of any claimed medical benefits on a balance of probabilities.

a) Neurological Assessment

12The treatment plan for a neurological assessment dated August 28, 2018, lists the accident related injuries as fibromyalgia, nausea alone, malaise and fatigue, spinal instabilities, multiple sites of spine, chronic instability of knee, sprain and strain of lumbar spine, sprain and strain of hip. As per the treatment plan, the purpose of the neurological examination is to determine if there is a neurological impairment affecting a return to activities of daily living and to address if further investigations or treatment is reasonably required. Under prior and concurrent conditions, the practitioner lists unknown.

13The applicant submits that the neurological assessment is reasonable and necessary as she sustained a concussion in the accident and a neurological assessment will allow for further understanding of the applicant’s cognitive difficulties as well as provide recommendations for treatment and therapy to attempt to resolve or lessen the severity of the applicant’s cognitive therapy.

14The respondent disputes that the diagnosis of concussion is reliable. The respondent submits that the applicant sustained no neurological injuries as a result of the accident and any neurological or concussive symptomology that is reported by the applicant are the same issues that were reported by the applicant pre-accident.

15I find that the applicant has not met her onus to show that the neurological assessment is reasonable and necessary. First, the applicant’s submission that the neurological assessment is required due to the applicant’s diagnosis concussion is not reasonable. The neurological assessment treatment plan makes no mention of any cognitive assessments or any assessments with respect concussive symptomology. In the list of injuries in the treatment plan there is no mention of any cognitive issues or a suspected concussion etc. The applicant submits that the assessment relates to her purported cognitive issues following the accident, however the evidence does not support that the assessment would take into consideration a cognitive aspect.

16Second, other than the treatment plan itself there is no recommendation for a neurological assessment. The family doctor has been the applicant’s primary care physician for some time and the notes indicate that the family doctor has made referrals pre- and post-accident to the appropriate specialists. There is no evidence that the family doctor has made any mention of neurological issues as a result of the accident nor are there any notes of the applicant reporting neurological issues to her family doctor.

17The applicant relies heavily on the report of Dr. Thirlwell. Dr. Thirlwell in her two reports makes nine different recommendations for assessments and/or treatment but does not recommend a neurological assessment.

18Based on the reasons above the applicant has not met her onus to show that the neurological assessment is reasonable and necessary.

b) Physiotherapy Treatment Plan

19A physiotherapy treatment plan in the amount of $1,297.25 dated January 16, 2019 was submitted by the applicant to the respondent. The respondent agreed to fund $1,100.00. The balance of $197.25 is in dispute.

20The applicant submits that the reason for the non-payment of the balance of the treatment plan is because the applicant was within the confines of the minor injury guideline and further funding was not available. Had the applicant been out of the confines of the MIG the respondent would have paid this balance. Further the applicant submits that she requires ongoing physical treatment due to chronic pain that was exacerbated by the accident.

21The respondent submits that the despite the applicant not being within the confines of the MIG, the applicant still has to prove that the balance of the treatment sought is reasonable and necessary as a result of accident-related impairments. Further the respondent submits that although the goals listed in the treatment plan are reasonable objectively, subjectively for this applicant they are not.

22The treatment goals are identified as being: (i) pain reduction; (ii) increased range of motion; (iii) increase in strength; (iv) other : restores pre-morbid functional capacity pain-free; (v)return to activities of normal living; (vi) return to pre-accident work activities; (vii) return to modified work-activities; and (viii) other: return to pre-morbid work duties and ADL’s (activities of daily living) pain free.

23The applicant has the onus of showing that the treatment plan portion that was not approved is reasonable and necessary. I find that on a balance of probabilities the applicant has not shown that the balance of the treatment plan is reasonable and necessary for the below reasons.

24The goals of this treatment plan of the applicant returning to pre-morbid work duties and activities of daily living pain free is not a reasonable goal. The evidence shows that the applicant has chronic pain and fibromyalgia since at least 2014 if not earlier, chronic pain since at least 2016 and that she has been unable to work since at least 2017. To expect that this treatment would make her pain free I find is an unreasonable goal.

25An I.E. took place on April 24, 2019 with Dr. Tepperman. Dr. Tepperman concludes that the applicant’s symptomology is related to her pre-accident fibromyalgia. Dr. Tepperman concluded that the applicant’s soft-tissue injuries from the accident had sufficient time to heal. This conclusion is unrefuted. The applicant has provided no treating or expert reports to show that she requires continued physical therapy. The report of Dr. Thirlwell, psychiatrist does not make any recommendations for physiotherapy nor would it be within the scope of the psychiatrist to provide same. The only recommendation for physiotherapy was by her dentist Dr. Schecter, however this recommendation was for TMJ pain and not for the injuries listed in the treatment plan.

26Therefore, based on the reasons above the applicant has not met her burden to show that the balance of the treatment plan for physiotherapy services is reasonable and necessary.

c) Expenses for a Dog

27The applicant provided an expense claim form (OCF-6) along with a receipt to the respondent for the purchase of a dog. The applicant submits that she purchased a dog on the advice of her family doctor to provide emotional support for her psychological well-being and it has a calming effect on her. Therefore, the applicant submits that this expense is reasonable and necessary

28The applicant provides no evidence or support other than the submissions (which are not evidence) to meet her onus that the dog is a reasonable and necessary medical expense or that it is reasonable and necessary as a result of accident related injuries or impairments. There is no support in any of the evidence filed that speaks or supports the reasonableness or necessity of this medical expense to her accident related injuries and there are no notes from the family doctor that show that a dog was recommended.

29Therefore, the applicant has not met her onus to show that this is a reasonable and necessary accident related medical expense.

d) Medical Cannabis Expense

30The applicant provided an expense claim form (OCF-6) for medical cannabis. She relies on the prescription by Dr. Thirlwell who states that as a result of the accident and due to increased pain and post-concussion syndrome she requires an increase in her medical cannabis prescriptions. The applicant submits the she requires an increase from her pre-accident amounts because of the accident and this increased amount is a reasonable and necessary expense.

31The respondent submits the applicant used medicinal cannabis prior to the accident however, no information has been provided as to what her pre-accident prescription for medicinal cannabis was, or what her medicinal cannabis expenses were prior to the accident and therefore the applicant has not shown that the medical cannabis is reasonable necessary.

32I agree with the respondent’s submissions that the applicant has not met her burden to show that the medical cannabis is reasonable and necessary. No pre-accident prescriptions have been produced. No pre-accident receipts for medicinal cannabis have been produced.

33The only evidence on which the applicant relies on to prove entitlement to this expense is a note from Dr. Thirlwell dated June 5, 2018 which indicates she required an increase in her medical cannabis prescription due to increased pain and post - concussion syndrome. The clinical note from the visit precipitating this prescription has not been produced, and no explanation of how it has been determined that the applicant has increased pain or post-concussion syndrome as a result of the accident has been provided.

34There is no explanation connecting the increase in medicinal cannabis to the applicant’s specific accident related impairments or details on how the medicinal cannabis would assist.

35The applicant has not shown that the cannabis is related to her accident related injuries or impairments, as opposed to her pre-accident impairments, nor has she met her burden to show that the cost of the cannabis is reasonable and necessary.

e) Dental Nightguard Expense

36The applicant provided an expense claim form (OCF-6) for a dental nightguard. The applicant submits that as a result of the accident she has TMJ clicking/pain and therefore she requires a dental nightguard as recommended by Dr. Schecter, dentist.

37As pointed out by the respondent, the only evidence the applicant relies on to prove her entitlement is a note from Dr. Schecter dated June 17, 2019, 15 months post-accident which indicates she required a dental nightguard due to TMJ clicking/pain/current concern of lock jaw. I do not find this note persuasive. The clinical note from the visit precipitating this prescription has not been produced. No explanation is provided as to how it has been determined that the Applicant has TMJ/pain/lock jaw as a result of the accident. Dr. Schecter does not address the Applicant’s pre-existing fibromyalgia or chronic pain syndrome. It is not clear that he was made aware of these conditions. The request was made 15 months post-accident. There are no other reports of jaw pain following the accident. There is no explanation connecting the TMJ/pain/lock jaw to the accident. There are no details as to how the night guard is expected to relieve TMJ/lock jaw/or pain as a result of the accident.

38The applicant self-reports that the clicking, pain etc. in her jaw is precipitated by the accident, however, there is no corroborating evidence that show that the applicant reported this to her treating physician or to the various I.E. doctors in the fifteen months prior to this expense.

39Based on the evidence the applicant has not met her burden to show that the dental night guard is a reasonable and necessary expense as a result of accident related injuries.

Interest

40As no benefits are overdue the applicant is not entitled to any interest on those benefits.

CONCLUSION and ORDER

41The applicant has not met her onus to show that the treatment plans, assessments and medical expenses are reasonable and necessary. The applicant is also not entitled to interest as no benefits are payable.

42The application is dismissed in its entirety.

Date of Issue: February 26, 2021