Tinglin v. Aviva Insurance Company of Canada, 2023 CanLII 1447

Citation: Tinglin v. Aviva Insurance Company of Canada, 2023 ONLAT 20-012581/AABS

Licence Appeal Tribunal File Number: 20-012581/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:

Christopher Tinglin

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jessica Cavdar

APPEARANCES:

For the Applicant: Andrea Seecharan, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was injured in an accident on April 22, 2018, and sought various benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to a medical benefit in the amount of $1,882.49 for chiropractic services and massage therapy, recommended in a treatment plan (“OCF-18”), submitted April 3, 2019?
2. Is the applicant entitled to a medical benefit in the amount of $2,569.40 for chiropractic services and massage therapy, recommended in an OCF-18, submitted June 6, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has failed to establish that the costs of examination in dispute are reasonable and necessary pursuant to the Schedule.

ANALYSIS

First plan: $1,882.49 for chiropractic and massage, submitted April 3, 2019

4To receive payment for a treatment and assessment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities 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 how the overall costs of achieving them are reasonable.

5The evidence led by the applicant fails to demonstrate that this treatment plan is reasonable and necessary as a result of the subject accident.

6The applicant relies on records from the day of the accident, April 22, 2018, from Brampton Civic Hospital. I note that the treatment plan in dispute was submitted April 3, 2019, almost a full year after these records were created. In any event, these records make no recommendation for any chiropractic or massage treatment.

7The applicant refers to an April 22, 2018 x-ray of his cervical spine as evidence of the reasonableness and necessity of the April 3, 2019 treatment plan in dispute. Again, this record is not contemporaneous with the impugned treatment plan. It further notes that the applicant’s soft tissue swelling could be technical in nature. It provides no evidence of ongoing pain, since it was taken the day of the accident, and provides no indication that the applicant requires the treatment in dispute that was proposed a full year later.

8The applicant relies on an August 3, 2018 Disability Certificate (“OCF-3”) as further evidence of the reasonableness and necessity of the April 3, 2019 treatment plan in dispute. The respondent subsequently approved certain chiropractic and massage treatments on December 3, 2018. I do not find that there is a nexus between the August 3, 2018 OCF-3 and this treatment plan proposed eight months later after other similar treatment had already been approved.

9To prove entitlement to this treatment plan, the applicant raises the October 11, 2018 and October 26, 2018 clinical notes and records of Dr. F. Rammo, family physician, which make no recommendation for the disputed treatment plan. He also cites the October 31, 2018 clinical notes of Dr. A. Chaiton, rheumatologist. Dr. Chaiton noted a normal examination of the applicant and made no recommendation for the treatment plan at issue.

10The applicant relies upon clinical notes and records of Dr. Rammo made eight months after the impugned treatment plan, on December 5, 2019. Dr. Rammo details that the applicant suffered a work accident one day prior, on December 4, 2019, in which a “heavy frame hit parietal head from 2-inch height.” Dr. Rammo noted that the applicant suffered “delayed (1h) pain of R neck and L shoulder” as a result of the December 4, 2019 work accident. There is no mention of the subject motor vehicle accident or the applicant’s injuries therefrom mentioned in Dr. Rammo’s December 5, 2019 report.

11I afford greater weight to Dr. Charanjit Sandhu’s s. 44 assessment dated April 29, 2019, conducted within the same month as the treatment plan in question. I find the contemporaneous nature of this report provides a more accurate snapshot of the applicant’s condition at the time of the denied treatment plan.

12The applicant reported to Dr. Sandhu that he had returned to full work hours and duties as a glass and metal technician at a construction firm as of April 29, 2019. The applicant advised Dr. Sandhu that his work involves heavy lifting, bending, and above-shoulder movements.

13Dr. Sandhu’s examination of the applicant’s spine revealed no misalignment in the coronal or sagittal planes. His shoulder exam did not reveal swelling or deformity and he had full range of motion in all planes of his shoulders. Dr. Sandhu found that the applicant’s left elbow showed no evident swelling or deformity, no pain on palpation, and full range of motion. Similarly, Dr. Sandhu reported that his examination showed no pain on palpation of the applicant’s hip and that the hip showed full range of motion.

14Dr. Sandhu concluded that the applicant showed no evidence of impairment on examination and showed a full range of motion of his cervical spine, shoulders, and lumbar spine. He therefore assessed the impugned treatment plan to be not reasonable or necessary since the applicant did not present with any substantial impairment on examination, which took place mere weeks after the subject treatment plan.

15Overall, the evidence before me does not meet the burden of demonstrating why the April 3, 2019 treatment plan is reasonable and necessary.

Second plan: $2,569.40 for chiropractic and massage, submitted June 6, 2019

16As discussed above, the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident is on the applicant.

17The applicant failed to adduce evidence of the goals of this particular treatment plan, nor did he provide any contemporaneous evidence that the chiropractic and massage treatment proposed on June 6, 2019 was reasonable and necessary as a result of the accident. It seems that applicant relies on the same evidence summarized above to support his claim to entitlement to the June 6, 2019 treatment plan.

18In addition, the applicant relies on an OCF-3 certificate completed by chiropractor Ayden Banibashar on May 22, 2019. However, this record fails to make any recommendation for the treatment in dispute, namely chiropractic and massage therapy.

19The evidence led by the applicant is insufficient to support his contention that this treatment plan is reasonable and necessary as a result of the accident.

CONCLUSION

20The applicant has not demonstrated that the treatment and assessment plans in dispute are reasonable and necessary. It follows that no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.