Chandrakumar v. Aviva Insurance Company of Canada, 2023 CanLII 15066

Chandrakumar v. Aviva Insurance Company of Canada

Citation: Chandrakumar v. Aviva Insurance Company of Canada, 2023 ONLAT 20-000904/AABS

Licence Appeal Tribunal File Number: 20-000904/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:

Maunitha Chandrakumar

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Teresa Walsh, Adjudicator

APPEARANCES:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Danielle Ralph, Counsel

HEARD: By Way of Written Submissions

BACKGOUND

1Maunitha Chandrakumar, the applicant, was injured in an accident on April 21, 2018, and sought medical treatment benefits from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent denied the benefits in dispute on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSES

3The issues in dispute are:

i. Is the applicant entitled to $3,016.20 for physiotherapy services proposed by Alexmuir Wellness in a treatment plan/OCF-18 (“treatment plan”) submitted on May 22, 2019?

ii. Is the applicant entitled to $2,113.04 for physiotherapy services proposed by Alexmuir Wellness in a treatment plan submitted on September 13, 2019?

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

RESULT

4The applicant has not established that the disputed treatment plans are reasonable and necessary. As there are no benefits owing, no interest is payable. The application is dismissed.

ANALYSIS

The applicant has failed to establish the disputed treatment plans are reasonable and necessary

5The applicant needed to demonstrate that the two disputed treatment plans are reasonable and necessary. She has failed to do so.

6To receive payment for a medical benefit sought in a treatment 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 that the overall costs of achieving them are reasonable.

7The applicant’s accident-related injuries included a right clavicle fracture, strain to her neck and back, headache and blurred vision. The goals of treatment in both disputed treatment plans are: “pain reduction, increase range of motion, increase strength, return to activities of normal living, return to modified work activities and return to pre-accident work activities”.

8The applicant notes that her accident-related injuries, including to her right clavicle, have been accepted by the respondent as non-minor, and therefore not subject to treatment within the $3,500.00 Minor Injury Guideline limit in the Schedule.

9Most of the medical records filed by the applicant for this hearing relate to the surgery she opted to undergo within days of the accident. As part of that surgery, a plate and screws were inserted into the applicant’s right shoulder area to re-align her clavicle. Medical records filed by the applicant also address neck and back pain she complained of following a 2017 accident, and the subject accident.

10The applicant submits that acceptance of her accident-related injuries as being non-minor, together with the medical records she has filed, are sufficient evidence to establish that the disputed treatment plans are reasonable and necessary.

11The respondent submits that the treatment plans on their own do not establish on a balance of probabilities the reasonableness or necessity of the benefits claimed within them.

12The respondent further submits that the applicant has failed to provide any objective medical evidence prepared contemporaneously with the proposed treatment plans. Specifically, the applicant did not produce any medical records post-dating June 2018 from her family doctor or any other treating health care practitioner. The October 12, 2021 Case Conference Report and Order for this matter required the applicant to produce these records in advance of the hearing.

13The respondent argues that without objective, contemporaneous medical evidence showing the applicant’s condition at the time the disputed treatment plans were prepared, it is not possible to conduct a meaningful analysis of the goals, efficacy and cost of the proposed treatment, and whether there are other treatments available.

14The respondent also relies on the orthopedic assessments of its examiner, Dr. Edwin Urovitz, in disputing the reasonableness and necessity of the treatment plans. Dr. Urovitz assessed the applicant twice, first in August 2018, and subsequently in July 2019. On both occasions, the applicant reported that she was independent in self-care and working at her pre-accident job as a bank administrator.

15In August 2018, Dr. Urovitz was of the view that the applicant had not reached maximum medical recovery regarding her right shoulder mobility. On that basis, he agreed that some proposed treatment (not in dispute here), was reasonable and necessary.

16Dr. Urovitz concluded in July 2019 that the applicant had reached maximum medical recovery. He noted that on physical examination the applicant had good bilateral shoulder movement, with minimal range of motion restriction in the right shoulder. Dr. Urovitz did not find the two treatment plans to be reasonable and necessary. He stated that the applicant should be engaged in a self-directed program of abdominal and core strengthening exercises to address intermittent back pain, but that she did not require further formal treatment.

17I find the applicant has fallen far short in meeting her burden of establishing that either of the disputed treatment plans is reasonable and necessary. My finding is based on:

i. the applicant’s failure to produce any objective, contemporaneous medical evidence supporting the reasonableness and necessity of proposed treatment;

ii. the applicant’s failure to comply with medical record production requirements for this hearing;

iii. the applicant providing no evidence of requests made to treating health care practitioners for required medical records;

iv. the applicant failing to establish how the treatment plan goals would be met to a reasonable degree, or how the overall costs of achieving the treatment goals are reasonable;

v. regarding the stated treatment goals, there being no evidence in the applicant’s materials to rebut or otherwise respond to information from the respondent’s examiner Dr. Urovitz that the applicant was reportedly independent in self-care, had returned to work before the August 2018 assessment, and was continuing to work when re-assessed in July 2019; and

vi. there being contemporaneous medical evidence from Dr. Urovitz that the treatment plans are not reasonable and necessary.

Interest

18As there are no medical treatment benefits owing, no interest is payable.

ORDER

19For the reasons outlined above, I find that:

i. The applicant is not entitled to $3,016.20 for physiotherapy services proposed by Alexmuir Wellness in a treatment plan submitted on May 22, 2019.

ii. The applicant is not entitled to $2,113.04 for physiotherapy services proposed by Alexmuir Wellness in a treatment plan submitted on September 13, 2019.

iii. As there are no medical treatment benefits owing, no interest is payable.

iv. The application is dismissed.