James Eapen v. Aviva Insurance Company of Canada, 2022 CanLII 84686

Citation: Eapen v. Aviva Insurance of Canada Company, 2022 ONLAT 20-013398/AABS

Licence Appeal Tribunal File Number: 20-013398/AABS

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:

James Eapen

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION [AND ORDER]

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Robert Lamot, Counsel

For the Respondent: Andrea L. Bandow, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1James Eapen (the “applicant”) was injured in an automobile accident on January 8, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from Aviva Insurance Company of Canada (the “respondent”). The applicant was denied certain benefits on the basis that they were not reasonable and necessary and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are to be decided:

(i) Is the applicant entitled to $2,230.64 for chiropractic treatment recommended by the Brampton Civic Care Centre in a treatment plan (“OCF-18”) dated May 3, 2019?

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

RESULT

3The applicant is not entitled to the treatment plan in dispute as it is not reasonable and necessary. Given that no benefits are outstanding, no interest is payable.

OVERVIEW AND ANALYSIS

4Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as the result of an accident. The medical benefit must be a reasonable and necessary expense. The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating that the OCF-18 in dispute is reasonable and necessary on a balance of probabilities.²

Medical Evidence

5On January 9, 2018, the applicant sought treatment with his family physician, Dr. A. Iskandir. Clinical notes and records (“CNRs”) of Dr. Iskandir state that the applicant reported “pain on right side of lower chest and upper abdomen” along with “mild tenderness over right side of chest and upper abdomen.”³ Dr. Iskandir assessed the applicant as having sustained a “whiplash type of injury” as a result of the subject accident and ordered a chest x-ray and an abdominal ultrasound.⁴ Results of the ultrasound were not cited, but the chest x-ray, conducted on January 9, 2018, revealed a “Normal chest.”⁵

6The Disability Certificate (“OCF-3”) filed by Dr. A. Salayeva, chiropractor, on January 19, 2018 indicates that, as a result of the subject accident, the applicant sustained whiplash associated disorder (“WAD2”) with neck pain and musculoskeletal signs, muscle strain, sprain and strain of the cervical, thoracic, and lumbar spine, sprain and strain of other and unspecified parts of the shoulder girdle, insomnia, contusion of the thorax, sprain and strain of the shoulder joint and rotator cuff capsule, low back pain, and pain in the thoracic spine.⁶ Dr. Salayeva recommended that the applicant not return to work (although he did, due to financial reasons⁷) and that a Functional Ability Evaluation and a psychological assessment be conducted.⁸

7The applicant subsequently received care at Brampton Civic Care Centre in the form of chiropractic, massage, exercise, and other physical treatment. CNRs from the facility show that treatment this took place from January 2018 through at least May 2019 (although these notes were provided solely in handwritten form, making it difficult to read much of the information).⁹ The respondent submits that the applicant attended at least 53 treatment sessions at the Brampton Civic Care Centre,¹⁰ and that appears credible given the extensive CNRs provided from that facility, despite their lack of legibility.

8With regard to the Brampton Civic Care Centre OCF-18 dated May 3, 2019 in dispute, the applicant relies on the above, along with the OCF-18 itself, to demonstrate that this plan is reasonable and necessary. This treatment plan, filed by Dr. N. Yaa Barnes, chiropractor, recommended chiropractic manipulation, physiotherapy, and functional exercises for a period of six weeks to address symptoms of pain and muscle spasm.¹¹ Dr. Barnes further noted that the applicant reported difficulties sitting, standing, bending, lifting, and other activities involving strength and endurance.¹²

9The applicant also refers to one further CNR of Dr. Iskandir. In notes from an appointment that took place on May 28, 2018, Dr. Iskandir recommended “massage therapy” due to “Neck pain and back pain.”¹³ He added that the applicant was experiencing “anxiety after accident.”¹⁴

10In response, Aviva relies upon an insurer examination (“IE”) conducted by Dr. P. Jugnundan, family physician, on March 16, 2021.¹⁵ Dr. Jugnundan diagnosed the applicant with predominantly minor soft-tissue injuries related to the subject accident, specifically “mechanical low back pain and mechanical back pain.”¹⁶ He further noted there were “no neurological findings” and that the applicant did not suffer an impairment.¹⁷

11Dr. Jugnundan found that the treatment plan in dispute here “would not be of any significant added benefit more than his self-directed exercise program since all of his issues are soft tissue in nature,” and that other physical treatment recommended in a second OCF-18 (that he also reviewed as part of his report, and did find reasonable and necessary) would address the applicant’s symptoms.¹⁸ Furthermore, Dr. Jugnundan noted that the applicant reported that “overall there has been no significant improvement” as a result of the physiotherapy, massage, and chiropractic treatment that he had been receiving at the Brampton Civic Care Centre.¹⁹

Is the Brampton Civic Care Centre OCF-18 ($2,230.64) Reasonable and Necessary?

12I place significant weight upon the report of Dr. Jugnundan. This is the sole expert assessment of the applicant’s injuries, and the most detailed of the medical CNRs submitted by either party. Dr. Jugnundan’s conclusions that the applicant suffered only minor soft-tissue injuries—and that no benefit would result from the chiropractic treatment recommended in the OCF-18 in dispute—stand unchallenged by another physician. It is also telling that the applicant reported to Dr. Jugnundan that he had gained no significant improvement from the treatment previously provided at Brampton Civic Care Centre, as that treatment was similar if not identical to that proposed in the OCF-18 at dispute.

13Although the applicant is not required to submit specific expert reports, in their absence his medical evidence places undue focus on the CNRs of Dr. Iskandir. Dr. Iskandir’s reports contain very limited information. They indicate that the applicant sustained a whiplash injury as a result of the subject accident, but do not go into any added detail. There is no evidence that the applicant saw his family physician concerning the accident at any time after May 28, 2018. The most recent clinical note with any reference to the accident is thus dated almost a year before the OCF-18 in dispute, which raises questions about its untimeliness.

14Dr. Iskandir’s notes about the accident and accident-related injuries feature in just a few lines in the notes of two appointments. He did not recommend any physical treatment other than massage therapy, either, so there is no mention in his CNRs of the chiropractic treatment in the disputed plan. Finally, the x-rays ordered by Dr. Iskandir revealed a normal chest. As a result, I assign little weight to Dr. Iskandir’s CNRs when it comes to forming any basis for the treatment plan in dispute being reasonable and necessary.

15The applicant also relies on the OCF-18 in dispute. Treatment plans on their own, however, are not compelling evidence in support of said treatment. While they can be useful in assessing an applicant’s medical status, they must be accompanied by compelling, contemporaneous medical evidence, which simply is not present here. Some of the observations and recommendations in this OCF-18 are also contradicted by the Dr. Jugnundan report. Most noteworthy is that the OCF-18 describes that the applicant is experiencing “mild-moderate improvements” due to physical therapy.²⁰ This is in opposition to the Dr. Jugnundan report, which includes reference to the applicant commenting that he was experiencing “no significant improvement” from this treatment.²¹ Given the lack of supporting persuasive evidence, I assign little weight to the OCF-18 and its standalone recommendations.

16The applicant further relies upon the “but for” test, which is recognized as the leading test for causation arguments, and cites numerous examples in case law.²² He submits that the CNRs and records of treatment prove that the subject accident materially contributed to an impairment that would not have developed “but for” the accident having occurred.

17Thus, I must determine if the applicant would not have had his impairments but for the accident.²³ The accident is not required to have been “the cause”—that is, the accident need not be the sole cause or have been sufficient in itself to have caused the applicant’s impairments, rather, the accident need only to have been a “necessary cause.”²⁴

18I agree that the “but for” test is worth considering. In the end, however, I do not find it applicable. The “but for” test is used to screen out trivial acts and events that could not be a possible cause of impairments. The facts and circumstances of the accident, along with the resulting injuries and treatment authorized by Aviva, satisfy the causation test already.

19Although I reviewed the extensive case law provided by the applicant to demonstrate the test for causation and how it should be applied,²⁵ this approach sidestepped the most important consideration here—assessing whether or not the treatment plan in dispute is reasonable and necessary. Causation alone does not establish this. Medical evidence must be provided. All of the medical evidence submitted by the parties indicate that the applicant sustained soft-tissue injuries and suffered no ongoing impairment. Further, there are no medical recommendations for the chiropractic treatment in the OCF-18 at dispute beyond those in the treatment plan itself, and that alone does not provide enough medical evidence to demonstrate that such treatment is reasonable and necessary—particularly given the report of Dr. Jugnundan and its assertions to the contrary.

20The applicant’s reply submissions reiterate the causation argument and cite both a reassessment by Brampton Civic Care Centre²⁶ and an OCF-21 dated April 20, 2021²⁷ as evidence of the applicant’s ongoing impairments. The reply also refers to the insurer’s approval of treatment plans similar to the one in dispute that address the same injuries. I assign this argument little weight, as these two examples again do not refer to the specific OCF-18 in dispute, and they do not provide enough credible, expert medical evidence in comparison with the report of Dr. Jugnundan.

21I note the respondent’s preliminary comments in the written submissions challenging the applicant’s inclusion of the entirety of the CNRs from Brampton Civic Care Centre.²⁸ As I describe above in paragraph 7, the CNRs from Brampton Civic Care Centre were provided in their original, handwritten state, and are mostly illegible. As a result, I did not refer to them other than to their totality, in that the CNRs demonstrated that the applicant received an extensive amount of physical therapy at this facility.

22Given the lack of medical evidence submitted by the applicant with regard to this OCF-18, I find that that the applicant has not met his onus of establishing on a balance of probabilities that this treatment plan is reasonable and necessary. The report of Dr. Jugnundan is the sole expert medical opinion specifically addressing the OCF-18 at dispute. As such, Dr. Jugnundan’s conclusions that the applicant suffered only soft-tissue injuries and no ongoing impairment, and that the OCF-18 at dispute would not provide any benefit to the applicant, hold considerable weight. As a result of the above, I am not persuaded this treatment plan is reasonable and necessary pursuant to the Schedule. Payment of this treatment plan is denied.

Interest

23Given that there is no overdue payment of benefits, it follows that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

24For the above reasons, the application is dismissed and I find that the applicant is not entitled to:

(i) $2,230.64 for chiropractic treatment recommended by the Brampton Civic Care Centre in an OCF-18 dated May 3, 2019.

(ii) Interest on any overdue payment of benefits.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Ibid. s. 14, 15.
3. 3Applicant Written Submissions, Tab F, page 1 (CNRs of Dr. Iskandir). (NOTE: All page citations refer to the pagination of the submitted PDF documents, not the page numbers of the reports within said documents.)
4. 4Ibid.
5. 5Ibid. Tab G, page 1. (Golden Gate X-Ray Report, dated January 10, 2018).
6. 6Ibid. Tab C, page 6 (OCF-3 of Dr. Salayeva dated January 19, 2018).
7. 7Ibid. Tab C, page 3.
8. 8Ibid. Tab C, page 4.
9. 9Ibid. Tab D (CNRs of Brampton Care Centre).
10. 10Respondent Written Submissions, page 7.
11. 11Applicant Written Submissions, Tab E, page 11 (OCF-18 from Brampton Care Centre dated May 3, 2019).
12. 12Ibid. Tab E, page 7.
13. 13Ibid. Tab F, page 2 (CNRs of Dr. Iskandir).
14. 14Ibid.
15. 15Respondent Written Submissions, Tab 9 (Physician Assessment Report of Dr. Jugnundan, March 29, 2021).
16. 16Ibid. Tab 9, pages 69-70.
17. 17Ibid.
18. 18Ibid. Tab 9, pages 70-71.
19. 19Ibid. Tab 9, page 67.
20. 20Applicant Written Submissions, Tab E, page 7 (OCF-18 from Brampton Care Centre dated May 3, 2019).
21. 21Respondent Written Submissions, Tab 9, page 67 (Physician Assessment Report of Dr. Jugnundan, March 29, 2021).
22. 22See Sabadash v. State Farm Mutual Insurance Company, 2019 ONSC 1121, [2019] O.J. No. 788 (Div. Ct. (at paragraph 31) amongst others.
23. 23Ibid.
24. 24Ibid. at para. 39.
25. 25Case law stuff.
26. 26Applicant Reply Submissions, Tab A (Chiropractic Reassessment, Brampton Civic Care Centre, May 3, 2019).
27. 27Ibid. Tab B (OCF-21, April 20, 2021).
28. 28Respondent Written Submissions, pages 3-4.