Citation: Marca v. Aviva Insurance Company, 2023 ONLAT 21-006698/AABS

Licence Appeal Tribunal File Number: 21-006698/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:

Teresa Marca

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Olga Poznyakova, Paralegal

For the Respondent:

Parthenia Magharious, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Teresa Marca, the applicant, was involved in an automobile accident on April 14, 2017, 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 Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $3,041.30 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan (“OCF-18”) dated October 14, 2020?

ii. Is the applicant entitled to $1,120.00 for assistive devices, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated March 1, 2021?

iii. Is the applicant entitled to $1,823.60 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated March 8, 2021?

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

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

RESULT

3I find that:

i. The applicant is not entitled to the OCF-18s in dispute.

ii. As no benefits are owing, no interest is payable.

iii. The respondent is not liable to pay an award under Regulation 664.

ANALYSIS

Medical and Rehabilitation Benefits

4To receive payment for a treatment and assessment plan under s. 15 and 16 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.

The applicant has not established that the OCF-18s in dispute are reasonable and necessary

5The applicant submitted three OCF-18s, dated October 14, 2020, March 1, 2021 and March 8, 2021, by Mackenzie Medical Rehabilitation Centre (Mackenzie Medical). Two OCF-18s were for a combination of chiropractic treatment, physical and active therapy and massage, and one OCF-18 was for assistive devices, including a personal massager, TENS unit, heating pad and gel cream. All three OCF-18s had the same listed injuries and same stated goals of pain reduction, increase in strength, increase in range of motion, return to activities of normal living and return to modified work.

6The applicant relies on diagnostic imaging and the clinical notes and records (“CNRs”) of her family physicians, Dr. Chen and Dr. Kunal, to establish her post-accident impairments and ongoing reports of chest, back, neck, right knee and right shoulder pain. She attended physiotherapy soon after the accident, and submits treatment records from May 2017 to February 2018, in support of her claim that such treatment has been helpful in the past, in addressing her impairments. The applicant submits that as she continues to suffer from these impairments years after the accident, the proposed treatment and assistive devices are reasonable and necessary.

7The respondent denied the OCF-18s on the basis of an insurer’s examination (“IE”) report by Dr. Yuri Marchuk, physiatrist, dated December 11, 2020 and paper review dated March 26, 2021. Dr. Marchuk diagnosed the applicant with whiplash associated disorder-2, cervicothoracic bilateral shoulder myofascial dysfunction, right arm rotator cuff syndrome, lumbar musculoligamentous myofascial dysfunction and bilateral knee patellofemoral joint dysfunction. Dr. Marchuk further found that the applicant had achieved maximum medical improvement and that the applicant’s condition had plateaued and the proposed treatment would not likely assist in her recovery.

8The applicant submits that since she still suffers from impairments and pain years after the subject accident, correspondingly, she should still continue to receive medical treatment. However, to establish the reasonableness and necessity of the OCF-18s in dispute, the applicant must prove not only that she suffers from ongoing accident related impairments, but also that the treatment goals are reasonable, that they are being met to a reasonable degree and that the overall cost of achieving them are reasonable.

9The applicant has provided limited evidence that additional facility-based treatment and assistive devices are reasonable and necessary three and four years post-accident. In terms of contemporaneous evidence, the CNRs of her family physician, Dr. Kunal, are of limited assistance. Although the applicant states that the CNRs of Dr. Kunal indicate that he recommended that the applicant attend “rehabilitations” to help with her impairments and pain, I do not see that reflected in the record. The CNRs indicate that Dr. Kunal suggested in January 2020 that the applicant continue with medication, but that she could have “better control with diet modification and exercise”. However, I do not see that as a recommendation for the specific therapies being proposed. In addition, this notation was nine months and more than a year prior to the submission of the OCF-18s in dispute. The applicant has not submitted any evidence that her family physician recommended such treatment or assistive devices at the time of submission.

10Further, the treatment records of Mackenzie Medical are also of limited assistance. The applicant submits records indicating that she resumed therapeutic treatment from October 2020 to March 2021. However, the entries provide little detail and simply indicate that the applicant attended during this period and continued to report pain complaints. There is no additional information provided indicating what progress was made through the various treatment modalities and how the stated goals of the treatment were being met. The applicant argues that treatment records from her prior physiotherapy clinic from 2018 indicate that with similar treatment, she had shown improvement in pain reduction, range of motion and strength. However, these records are from two and a half years and three years prior to submission of the OCF-18s in dispute. I find that they are of limited persuasive value in showing that such treatment is still reasonable and necessary years later.

11I further note the respondent’s submissions that the applicant has not reported significant improvement with these treatment modalities. While the applicant attended therapeutic treatment in 2017 and 2018, she continued to report the same pain and impairments to her family physician at the time, Dr. Chen. In addition, in his IE report, Dr. Marchuk found that the applicant had reported minimal improvement despite receiving similar treatment in the past. As such, the applicant has not adduced sufficient medical evidence to refute Dr. Marchuk’s findings that the applicant has achieved maximum medical recovery four years post-accident and that the proposed treatment would not assist in recovery.

Interest

12Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

Award

13The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest, if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The test for a s. 10 award is whether an insurer’s actions are excessive, imprudent, stubborn, inflexible, unyielding or immoderate. As I have found the disputed OCF-18s to not be reasonable and necessary, it follows that the respondent’s action were justified

ORDER

14The applicant has not demonstrated that the disputed OCF-18s are reasonable and necessary. Accordingly, no interest is payable.

15The applicant is not entitled to an award.