Citation: Hibbert v. Aviva Insurance Canada, 2023 ONLAT 21-004941/AABS

Licence Appeal Tribunal File Number: 21-004941/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:

Verna Hibbert

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rob El-Sayed

APPEARANCES:

For the Applicant:

Davies Bagambiire, Counsel

For the Respondent:

Eric Grossman, Counsel

Written Hearing:

Heard by way of written submissions

OVERVIEW

1Verna Hibbert, (the “applicant”), was involved in an automobile accident on August 9, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

i. Is the applicant entitled to $3,491.75 for physiotherapy services, proposed by Garima Chordia, North York Healthcare in a treatment plan/OCF-18 (“treatment plan”) dated November 25, 2020?

ii. Is the applicant entitled to $2,745.11 for a driver/passenger assessment, proposed by Elana Korman in a treatment plan submitted July 28, 2021?

iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is not entitled to the following:

i. $3,491.75 for physiotherapy services; and

ii. $2,745.11 for a driver/passenger assessment.

4The respondent is not liable to pay an award under s. 10 of Regulation 664.

5The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

Entitlement to treatment plan

6To receive payment for a treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Is the physiotherapy treatment plan reasonable and necessary?

7The applicant has not proven to me that the physiotherapy treatment plan in the amount of $3,491.75 is reasonable and necessary.

8The applicant submits as a result of the accident she suffered serious and lasting injuries to her neck, anterior right knee, back pain, headaches, lumbar strain, neck strain, soft tissue strains, whiplash associated disorder and she also suffers lack of sleep, low mood, difficulty coping, fatigue, and vehicle passenger/driver anxiety. She believes this treatment plan is necessary to return to pre-accident health. The applicant acknowledges that she has pre-existing back pain since 1997 and was in a previous accident in 2010.

9The respondent disagrees and argues that the injuries caused by this accident are minor in nature. The applicant has pre-existing injuries for which she was receiving ongoing treatment from 1997 leading up to the current accident. She was also involved in a second motor vehicle accident which occurred in 2010. The respondent further submits that there is a lack of objective evidence to suggest that the applicant requires ongoing treatment.

10The applicant relies on the reports of Chodia Garima, registered physiotherapist, dated November 25, 2020, Apex Physiotherapy and Chiropractic dated August 28, 2023, Dr. Lim dated October 2, 2018, Dr. Rajwani, chiropractor, dated March 23, 2020, Dr. Nusinowitz, family doctor, dated May 11, 2021, in support of her position.

11The respondent relies on the opinions of Dr. Jacqueline Auguste, orthopaedic surgeon, dated January 7, 2021, and Dr. Himmel, Emergency Family Medicine, North York General Hospital in support of its position that these plans are not reasonable and necessary.

12The applicant submitted that on August 9, 2018, she attended the Emergency Department of Rouge Valley Hospital, but was not assessed at the hospital. On August 11, 2018, she attended a walk-in clinic and on August 23, 2018, her family doctor, Dr. Lim. Dr. Lim assessed her with lumbar, neck, soft tissue strain, and headaches, she prescribed the applicant pain and muscle relaxant medication. The applicant told her doctor that upon approval from the respondent she will seek physiotherapy treatment. The applicant argues that Dr. Lim was “clearly in agreement with this plan”, I disagree with the applicant’s impression. In Dr. Lim’s clinical notes and records she did not correlate the injuries sustained with the subject accident and did not suggest treatment with specific goals or timelines. I give little weight to this evidence as it based on the applicant’s self-reporting.

13Dr. Nusinowitz, the applicant's family doctor since 2020, prepared a report dated May 11, 2021. Dr. Nusinowitz opines that the accident has materially contributed to the applicant’s medical disabilities and recommends rehabilitation and an exercise program. However, I find that Dr. Nusinowitz’s report is not convincing evidence that the treatment plan is reasonable and necessary because it fails to establish goals, a timeline for achieving those goals, reasons why the treatment plan might achieve those goals or any discussion regarding the cost of treatment and how that cost is reasonable considering its stated goals.

14The applicant submitted chiropractor, Dr. Rajwani’s report dated March 23, 2020, in support of her position that she sustained injuries from this accident and requires further treatment. Dr. Rajwani confirms the applicant had a pre-existing back condition. He opined that the applicant’s back pain has worsened because of the accident. However, Dr. Rajwani has not outlined a specific goal or a timeline for the applicant to return to her pre-accident health. Dr. Rajwani opines that the applicant’s pre-existing condition has been exacerbated by the new accident and presently, she continues to have ongoing symptoms in her back. His report does not provide me with evidence that this treatment plan is reasonable and necessary.

15Upon review of the applicant’s evidence, I am not persuaded that the treatment plans are reasonable and necessary. The applicant has not provided me with sufficient evidence that the treatment plan would improve her physical condition. The treatment providers have not outlined clear goals for her recovery. I have evaluated all the medical evidence and provided by the parties and agree with the respondent. There is no convincing medical evidence to support the need for the physiotherapy treatment plan, and therefore I find that the treatment plan is not reasonable and necessary.

16The applicant has not met the test according to the “Schedule”, she has not provided expert opinions that support her position that her injuries were related to this accident and that this treatment is reasonable and necessary.

17I find that the plan is not reasonable and necessary.

Is the driver/passenger assessment reasonable and necessary?

18I find that the driver/passenger assessment in the amount of $2,745.11 is not reasonable and necessary.

19The applicant submitted that she is suffering from driver/passenger anxiety, and although she has reported that it has got “a little better” she still maintains that the anxiety persists, and she needs an assessment to determine the extent of fear and difficulties she has with travelling in a car because of the accident.

20The respondent takes the position that the applicant has not raised the driver/passenger psychological issue with her family doctors, she has been driving regularly and it has not affected her activities of daily living. The expert opinions do not support the need for further intervention. The respondent disagrees that the assessment is necessary.

21The applicant was assessed by psycho-metric testing using an Accident Fear Questionnaire (AFQ) by John Lee, psychologist on May 25, 2020. The ratings when measuring avoidance behaviour of accident/traffic-related stimuli were in the range of individuals suffering from specific phobia symptoms. Dr. Lee diagnosed the applicant with accident-related distress and found the applicant would benefit from 8 hours of psychological treatment. A progress report conducted by Dr Lee dated May 12, 2021, after the applicant attended the psychological sessions as recommended by Dr. Lee in his initial report states “…. At this point, she feels that she can best manage on her own (emphasis added). Therefore, counselling interventions with Ms. Hibbert have concluded” (emphasis added).

22Based on John Lee’s assessment, and the applicant’s statement that she feels that she can best manage on her own, I find the applicant does need the proposed assessment. The progress report shows that the previous treatment has been effective, and future treatment is no longer needed.

23As a result of the evidence provided, I find that the driver/passenger assessment is not reasonable and necessary.

Interest

24Since no benefits are in arrears, I find that interest is not payable.

Regulation 664 Award

25Since no benefits were unreasonable withheld or delayed, the applicant is not entitled to an award.

CONCLUSION

26For the above-noted reasons, I find the following:

i. The applicant is not entitled to the physiotherapy treatment plan in dispute.

ii. The applicant is not entitled to the driver/passenger assessment in dispute.

iii. The applicant is not entitled to interest.

iv. The applicant’s claim for an award is dismissed.