Citation: Khan v. Aviva General Insurance, 2021 ONLAT 19-005947/AABS
Release date: 03/29/2021
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:
Abdul Khan
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: Dinesh Shan, Paralegal Eiman Sharifpour, Student-at-law
For the Respondent: Nisaa Khan, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Abdul Khan, was involved in a motor vehicle accident on March 28, 2017 and sought medical benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Aviva denied the benefits and the applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
ISSUES TO BE DETERMINED
2The issues to be decided in this hearing are:
a) Is the applicant entitled to $1,779.34 for Chiropractic Services recommended by East Rehabilitation Centre in a treatment plan (OCF-18) submitted November 23, 2017 and denied by the respondent December 12, 2018?
b) Is the applicant entitled to $2,004.96 for Chiropractic Services recommended by East Rehabilitation Centre in a treatment plan (OCF-18) submitted August 3, 2017 and denied by the respondent August 9, 2017?
c) Is the applicant entitled to $1,196.47 for an Attendant Care Assessment, recommended by All Health Medical Centre in a treatment plan submitted May 24, 2017 and denied by the respondent June 28, 2017?
d) Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, recommended by East Rehabilitation Centre in a treatment plan submitted June 25, 2017 and denied by the respondent December 12, 2018?
e) Is the applicant entitled to $198.32 (total of $1,300.00 partially approved for $1,101.68) for Chiropractic and Massage Services recommended by East Rehabilitation Centre in a treatment plan (OCF-18) submitted June 6, 2017 and denied by the respondent June 30, 2017?
f) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
g) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant failed to provide objective medical evidence to meet his onus to show that the treatment plans in dispute are reasonable and necessary. As the applicant is not entitled to any of the benefits in dispute, he is not entitled to an award or interest as no benefits were unreasonably withheld or overdue.
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. Abdul Khan bears the onus of proving on a balance of probabilities that each assessment and treatment plan is reasonable and necessary.
a) Is the applicant entitled to chiropractic and massage services?
5Abdul Khan submits that he is entitled to the chiropractic and massage services treatment plans because Aviva denied these plans on the basis that Abdul Khan was in the Minor Injury Guideline (MIG) and, now that he is removed, Aviva should pay for the below:
a. The balance of the treatment plan submitted June 26, 2017 for chiropractic and massage services. The remaining amount in dispute is $198.32.
b. The treatment plan for chiropractic services submitted August 3, 2017 in the amount of $2,004.96.
6Further, Abdul Khan submits that the treatment plan for chiropractic services is reasonable and necessary based on the medical information and Aviva had no basis to deny the following:
c. The treatment plan for chiropractic services submitted November 23, 2017 in the amount of $1,779.34.
7As stated above, Abdul Khan bears the onus of proving on a balance that the treatment plans are reasonable and necessary even if he is no longer confined to the MIG. Abdul Khan has not met this onus for the reasons below.
8In his submissions, Abdul Khan does not rely on the treatment plans. The treatment plans were not submitted by Abdul Khan as evidence. Prior to the decision the Tribunal requested copies of the disputed treatment plans from Abdul Khan’s counsel and advised Aviva that it was doing so. The Tribunal provided a deadline for the submission of the copies of the treatment plan. Following the passage of the deadline, the Tribunal again requested copies of the disputed treatment plans and received from Abdul Khan’s counsel the letters of the denial and/or partial approval along with the “fax back” page of the treatment plans. Despite being provided with the opportunity to provide the treatment plans in full Abdul Khan did not provide same.
9The Tribunal has consistently found that reasonable and necessary is assessed by determining if the treatment goals, as identified, are reasonable; if these goals can be met to a reasonable degree; if the overall costs (financial and investment of time) of achieving these goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives1. Abdul Khan has not provided evidence or an analysis of the reasonableness and necessity of the goals of the treatment plans and the outcomes of the treatment plans. Abdul Khan’s submissions consist of summarizing the evidence that he filed. The evidence filed consisted of the clinical notes and records of the family doctor, Dr. Wong, from December 2018 (18 months post-accident) onward and the records of the rehabilitation clinic from March 30, 2017 to approximately June 8, 2017. Abdul Khan does not point to anything in the evidence that speaks to the reasonableness or necessity of the chiropractic or massage services proposed. Abdul Khan submits that pain relief is a reasonable goal however he points to nothing in the evidence that specifically speaks to treatment proposed providing pain relief for accident related injuries or impairments.
10Aviva did file the clinical notes and records of Abdul Khan’s family doctor. In the notations between the date of the accident of March 28, 2017 and December 2018, there are two notations about the accident: the first on June 3, 2017 (three months after the accident) and the second and last notation is on October 24, 2018. In neither of these notes are there any recommendations for treatment for any accident-related injuries or anything that points to the reasonableness and necessity of the treatment plans submitted by Abdul Khan in June, August and November of 2017.
11Based on the above, I find Abdul Khan has not met his onus to show that the above noted treatment plans are reasonable and necessary.
b) Is the applicant entitled to the assessments?
12Abdul Khan is also seeking entitlement to the following assessments:
a. An attendant care assessment, as per the treatment plan submitted May 24, 2017; and
b. A chronic pain assessment, as per the treatment plan submitted June 25, 2017.
13Abdul Khan submits that since the accident he has ongoing complaints of pain and functional limitations as a result of injuries sustained in the accident. His family doctor referred him to a pain specialist and his family doctor requisitioned an MRI for his lumbar spine and an ultrasound for his left shoulder. Abdul Khan submits that he sustained major injuries and by removing him from the MIG, Aviva concedes that the injuries in the accident are major.
14Unfortunately, Abdul Khan points to no evidence to support the need for a chronic pain assessment. He does point to the MRI dated December 9, 2018 (18 months post-accident) which shows disc bulges and his family doctor notes that Abdul Khan has degenerative disc disease. He also points to the ultrasound of the left shoulder dated July 31, 2019. There is no evidence that the disc bulges are related to the accident. There is no evidence provided to explain what complaints, if any, were related to his purported accident-related injuries, and what, if any, treatment or assessment recommendations were made and why. Abdul Khan also does not point to the assessment plans nor does he explain what the assessment entails, what the goals of these assessments are, etc. Abdul Khan submits that he was referred to a pain specialist, however, no evidence of this alleged referral was provided.
15Similarly, outside of Abdul Khan’s submissions, there is no evidence to support the attendant care assessment. Again, there is no treatment plan for the Tribunal to consider (despite, as noted above, requesting a copy of the treatment plan), there are no reports, medical recommendations or evidence that supports the need for an attendant care assessment. Abdul Khan simply points to the insurer’s examination (I.E.) reports and submits that they are not to be relied upon because the I.E. assessors were not provided with the medical records from late 2018. The I.E. assessors note that Abdul Khan reports no functional limitations at home or with his self-care and Abdul Khan has not provided evidence to refute this.
16The burden lies with Abdul Khan to show that the disputed assessments are reasonable and necessary. He has not met this onus, as he did not provide evidence of ongoing pain or functional limitations to warrant the disputed assessments.
c) Is the applicant entitled to an award and/or interest?
17Abdul Khan claims entitlement to an award pursuant to section 10 of Ontario Regulation 664 on two grounds. First, he submits Aviva unreasonably withheld benefits by deliberately ignoring medical evidence supporting the treatment plans. Second, Aviva did not provide the MRI and ultrasound reports to the I.E. assessors despite the I.E. assessors noting in their respective reports that if new information becomes available that they would review same.
18Aviva submits no award should be payable as there was merit to its denials and it relied on the contemporaneous medical evidence available at the time.
19Pursuant to section 10 of Ontario Regulation 664, an applicant may be entitled to an award of up to 50% of the amounts payable if the respondent unreasonably withheld or delayed payment of a benefit.
20I see no evidence that Aviva unreasonably withheld or delayed payment of a benefit. Aviva’s decision to conduct IEs and deny the treatment plans in dispute is reasonable. The new information in the form of the MRI and ultrasound were records that were not contemporaneous to the treatment plans and, most importantly, did not connect the findings to accident-related injuries. There was no deliberate withholding of the medical information from the I.E. assessors and there was no unreasonable withholding of benefits. Further, as no benefits in this appeal are payable, it cannot be said that there was a withholding or delay in the payment of benefits.
21With respect to the interest claimed, as Abdul Khan is not entitled to the disputed medical benefits, there is no interest owing as none of the benefits are payable.
ORDER
22The application is dismissed in its entirety.
Released: March 29, 2021
Monica Chakravarti, Adjudicator