T.N. v. Aviva General Insurance Company, 2021 CanLII 19492

Citation: T.N. v. Aviva General Insurance Company, 2021 ONLAT 19-02968/AABS

Released: February 9, 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:

T.N.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Kate Logushova, Paralegal

For the Respondent: Amanda Fowler, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on October 19, 2016 and 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 then filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

ISSUES TO BE DECIDED

2The issues to be decided in this hearing are:

a) Is the applicant entitled to a medical benefit in the amount of $2,000.00 for a chronic pain assessment recommended by Scarborough Medical in a treatment plan dated July 28, 2017?

b) Is the applicant entitled to a medical benefit in the amount of $5,939.80 for a chronic pain program recommended by Scarborough Medical in a treatment plan submitted on June 5, 2018?

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

RESULT

3The applicant is not entitled to medical benefits for a chronic pain assessment or a chronic pain program as neither treatment plan is reasonable and necessary. As no benefits are owing to the applicant there is no entitlement to interest.

ANALYSIS

4Sections 14-16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that each assessment and treatment plan is reasonable and necessary.

5The applicant is seeking entitlement to a chronic pain assessment that was recommended in a treatment plan dated July 28, 2017 and entitlement to a chronic pain program recommended in a treatment plan dated June 5, 2018. The applicant submits that she has chronic pain and serious psychological injuries as a result of the accident and therefore both these treatment plans are reasonable and necessary.

6The respondent denied each treatment plan and submits that there is no medical evidence to support the need for a chronic pain assessment or chronic pain program. The respondent submits that the assessments provided by the applicant should be given no weight because they are based on the applicant’s self-reporting and that the applicant’s credibility is an issue.

Is the treatment plan for a chronic pain assessment reasonable and necessary?

7The applicant did not file sufficient medical evidence to show that this treatment plan for a chronic pain assessment is reasonable and necessary.

8The applicant did not file the disputed treatment plan, however the respondent did. The applicant provided one note from her family doctor dated October 25, 2016 and a partial note from November 18, 2016. There are no notes past November 18, 2016. The applicant submits the disability certificate of November 2, 2016, completed by Dr. Sareen, chiropractor, as evidence of accident-related injuries, however, there are no treating records provided. There are also no treating records filed to show the applicant’s ongoing injuries from the accident.

9The applicant relies on the chronic pain assessment report of July 28, 2017 by Dr. Rozen. The report is dated the same day as the treatment plan for the assessment. This report is based on the applicant’s self-reporting and the only documents reviewed are the clinical notes and records of the family doctor from October 29, 2013 to October 25, 2016 (which are all pre-accident, with the exception of the October 25, 2016 note). There are no post-accident records reviewed by Dr. Rozen. The applicant also relies on the psychological report of Dr. Mrahar, dated February 11, 2017. Again, the opinion of Dr. Mrahar is based solely on the self-reporting of the applicant with no review of any medical documents.

10The applicant did not attend at the hospital following the accident of October 19, 2016, so there are no records with respect to the immediate injuries from the day of the accident.

11In her submissions, the applicant provides a summary of the various notations made by the family doctor post-accident, yet she does not provide the records. Initially, it appeared as though this was an oversight on the part of the applicant. However, I note that the respondent, in its submissions, not only points to the fact that there is a lack of records from the family doctor, but also submits that I make a negative inference because of the lack of records. The applicant did not provide a reply to the respondent’s submissions despite being able to. I also note that it is significant that the applicant retained Dr. Rozen, yet, she did not provide him with her post-accident clinical notes and records. While the applicant purports to summarize the family doctor’s post-accident clinical notes and records, submissions cannot be used as evidence. Based on the above, I find that the applicant made a conscious decision to not include her post-accident clinical notes and records from her family doctor and this decision to not include the post-accident clinical notes and records did not assist the applicant in meeting her burden to provide that the treatment plan in dispute is reasonable and necessary.

12To decide if this treatment plan is reasonable and necessary, I am left with the evidence from the Respondent. In the insurer examination (I.E.) report dated August 23, 2017, completed by Dr. Abuzgaya, orthopaedic surgeon, he highlights the prescription note of the family doctor dated July 27, 2017 that states the applicant suffers from “chronic pain syndrome post MVA”.² This is the only evidence before me provided by the family doctor of any potential post-accident impairments. The respondent submits that the applicant has reported to her own assessors and the I.E. assessors that she was involved in a previous motor vehicle accident and that the clinical notes and records pre-accident show a notable history of back pain. I agree with the respondent that, as per the I.E. reports and the reports of Dr. Mrahar and Dr. Rozen, that the applicant consistently reports a previous motor vehicle accident. Based on the clinical notes and records of the family doctor from prior to the accident, there is a history of pain that required the use of Percocet and Naprosyn. Without any further context from the family doctor about his opinion that the applicant suffers from chronic pain syndrome, I cannot put any weight on the diagnosis that the chronic pain syndrome is a result of the subject accident.

13I find that the applicant is not entitled to the treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. The applicant’s evidence pre-dates the accident and is unsupportive of the disputed treatment plan. I am left with no evidence post-accident from any treating providers that speak to the applicant’s injuries and/or impairments following the accident. 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. It is well-established that a treatment plan tendered without more evidence is not sufficient evidence to establish an applicant’s entitlement on the basis of reasonableness and necessity.

Is the treatment plan for a chronic pain program reasonable and necessary?

14The chronic pain program is recommended in a treatment plan dated June 5, 2018 by Dr. Shlepakov, chiropractor. The applicant submits that the treatment plan is reasonable and necessary and relies on the evidence noted in the paragraphs above, along with the disputed treatment plan for the chronic pain program.

15I find that the applicant has not met her onus to show that this treatment plan is reasonable and necessary, as there are no treating medical records in evidence to support a chronic pain program. Dr. Rozen, the independent chronic pain assessor retained by the applicant, does not make a recommendation for a chronic pain program, but recommends physiotherapy, biofeedback and psychotherapy.

16Other than the disputed treatment plan itself, the applicant has provided no evidence supporting the goals of this treatment plan and how the proposed treatment will achieve its goals. There is no evidence establishing that the overall cost is reasonable and necessary or that the treatment is even required. Therefore, the applicant has failed to meet her onus and I find the treatment plan for a chronic pain program is not reasonable and necessary.

INTEREST

17As no benefits are overdue, no interest is payable.

ORDER

18The application is dismissed in its entirety.

Date of Issue: February 9, 2021

_____________________________

Monica Chakravarti

Adjudicator

Footnotes

1. 1O. Reg. 34/10
2. 2Page 3 of 12 of the Report of Dr. Abuzgaya of August 23, 2017.