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:
Nagina Shahid
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Michael McChesney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on August 23, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the benefits on the basis of the Minor Injury Guideline (“MIG”), under s. 14(2) and because they were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
i. Is the applicant entitled to the cost of an examination for an Attendant Care Assessment and Form 1 in the amount of $1,800 as set out in a Treatment Plan prepared by Reddy’s Physiotherapy dated and submitted March 19, 2018?
ii. Is the applicant entitled to the cost of an examination for a Chronic Pain Assessment in the amount of $1,975 as set out in a Treatment Plan prepared by Reddy’s Physio Rehab dated May 1, 2019 and submitted May 8, 2019?
iii. Does interest apply on the overdue payment of benefits?
RESULT
3The applicant has not demonstrated entitlement to either of the treatment plans in dispute or interest.
ANALYSIS
Are the treatment and assessment plans reasonable and necessary?
4In order to receive payment for treatment and assessment plans under the Schedule, the applicant must demonstrate that the benefits are reasonable and necessary and incurred as a result of the accident. To meet her burden, the applicant should identify the goals of treatment, demonstrate how the goals are being met to a reasonable degree and prove on a balance of probabilities that the goals are reasonable in both time and cost.
5I find the applicant has fallen well-short of meeting her burden.
6First, the most problematic aspect of the applicant’s case is the fact that she has submitted no medical evidence whatsoever to support her claim, and did not offer reply submissions to rebut any of Aviva’s arguments or determinations. Indeed, other than her brief written submissions, she seemingly relies on the treatment plans themselves and the s. 44 reports of Dr. Moolla, Ms. Au and Dr. Chaudhry, conducted by Aviva, to demonstrate entitlement. With respect, the Tribunal has consistently determined that treatment plans and submissions are not evidence. Despite this, the applicant’s submissions do not specifically engage with either treatment plan, her submissions do not address the goals of treatment, whether they were being met or why the cost is reasonable and necessary. As a result, the remaining medical evidence before the Tribunal were the reports procured by Aviva. All of the s. 44 reports found the benefits in dispute to be not reasonable and necessary. In the absence of medical evidence to the contrary and with no specific submissions from the applicant, the Tribunal has no basis to depart from Aviva’s determinations.
7Second, the applicant’s submissions argue that she should be removed from the MIG despite the fact that Aviva removed her from same for psychological impairments on July 17, 2018. Her submissions do not identify any psychological impairments that would be assistive in meeting her burden to prove that attendant care and chronic pain assessments at the costs proposed would be reasonable and necessary. While her submissions briefly mention “ongoing pain in her neck, back, left elbow, and frequent headaches” there is no discussion of the level of pain or its affect on her function and there is no engagement with any of the six criteria under the AMA Guides that the Tribunal has adopted as an evaluative tool. In a similar vein, as noted, the applicant did not provide the Tribunal with clinical notes or treatment records that would objectively demonstrate contemporaneous or ongoing complaints warranting the assessments proposed in the OCF-18s, which is her burden to do.
8Finally, the applicant submits that Aviva failed to provide her with proper notice in accordance with s. 38 of the Schedule, “given that it failed to provide adequate medical reasons for its denial of the treatment plan.” On review, and without further specifics on her position and without the benefit of reply submissions, I find no deficiencies with Aviva’s denials. For example, the Attendant Care Assessment was first denied on March 28, 2018 based on s. 14(2) and the fact that the applicant was within the MIG when it was submitted. While the applicant was subsequently removed from the MIG for psychological reasons, I agree with Aviva that s. 38(6) prevents the Tribunal from reviewing the denial of an OCF-18 under s. 38(5). The applicant has provided no authority for the Tribunal to find otherwise. With respect to the chronic pain assessment, Aviva denied the claim based on the s. 44 report of Dr. Chaudhry, who determined that the assessment was not reasonable and necessary because she had reached maximum medical recovery and had reported the ability to complete her activities of daily living independently. In any event, the applicant has not provided submissions to explain why the treatment plans are reasonable and necessary and has not provided evidence that either plan was incurred.
9Accordingly, I find the applicant has failed to meet her burden to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary or incurred. As no benefits are overdue, no interest is payable.
ORDER
10The applicant is not entitled to payment or interest for either of the treatment and assessment plans in dispute. Her application is dismissed.
Released: March 29, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.