Kerr v. Aviva General Insurance Company, 2024 CanLII 10518

Citation: Kerr v. Aviva General Insurance Company, 2024 ONLAT 21-009616/AABS

Licence Appeal Tribunal File Number: 21-009616/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:

Brianna Kerr

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Christina N. Trotta, Counsel

For the Respondent: Yann Grand - Clement, Counsel

HEARD: By written submissions

OVERVIEW

1Brianna Kerr, the applicant, was involved in an automobile accident on November 26, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General 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 $2,200.00 for an orthopaedic assessment, proposed by Verity Medical Assessments in a treatment plan dated July 18, 2020?

ii. Is the applicant entitled to $2,196.00 for physiotherapy services, proposed by Sandalwood Physiotherapy & Wellness Centre in a treatment plan/OCF-18 (“plan”) dated May 25, 2021?

iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 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

3The applicant is not entitled to the treatment plans, nor interest.

4The respondent is not liable to pay an award.

ANALYSIS

5To 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.

Orthopedic Assessment

6The applicant is not entitled to an orthopaedic assessment.

7For an assessment, the applicant must show that it is reasonable and necessary to investigate a condition.

8According to the applicant, she sustained orthopaedic injuries in her left shoulder and left calf as a result of the accident. The clinical notes and records of her family doctor and treating practitioners indicate that her accident related pain is ongoing and chronic in nature. She submits that an orthopaedic assessment is warranted to obtain a formal diagnosis and formulate an appropriate treatment for her ongoing pain.

9The respondent submits that the applicant has already had orthopaedic assessments and she has not explained why another assessment is required. According to the respondent, this assessment is not reasonable and necessary.

10Two orthopaedic assessments are in evidence. The insurer’s examination (“IE”) dated May 9, 2018 by Dr. Louis Weisleder, orthopaedic surgeon. He physically examined the applicant and diagnosed her with cervical strain, left shoulder strain, lumbar strain, and left gastrocnemius tear injuries caused by the accident.

11The second orthopaedic assessment, dated September 17, 2020, is an IE paper review by Dr. Weisleder. He determined that this treatment and assessment plan is not reasonable and necessary because the applicant’s impairments are pain related and do not require an orthopaedic assessment.

12There is no dispute among the parties that the applicant continues to experience pain caused by the accident. However, she has already had two orthopaedic assessments. The conditions causing her pain were identified and the applicant has not explained why a further assessment is needed. In my view, this plan duplicates a service that has already been provided to the applicant. As such, I find that this plan is not reasonable and necessary.

Physiotherapy

13The applicant is not entitled to physiotherapy.

14The goals of this treatment plan are pain reduction, increased range of motion, increase in strength, and return to activities of daily living. The applicant submits that these goals are reasonable and proportionate to her injuries. The applicant further submits that previous physiotherapy was helpful to her and physiotherapy was recommended by her treating practitioners.

15The respondent notes that the applicant works as a personal support worker, has resumed exercising, and manages pain with over the counter medication. The respondent also notes that Dr. Weisleder has opined that the applicant reached maximum medical improvement. The respondent submits that the evidence establishes that this treatment plan is not reasonable and necessary.

16I note that the applicant has not identified any functional impairments. She has also returned to work as a personal support worker. Both of these factors do not support her assertion that a return to the activities of daily living is a reasonable treatment goal.

17Likewise, the applicant has not made any specific, pinpoint references in the evidence which show that she has experienced deconditioning as a result of the accident. This undermines the premise that increasing strength is a reasonable treatment goal.

18Neither the applicant nor the treatment plan identify specific range of motion limitations. In his 2018 report, Dr. Weisleder states that the accident caused an impairment in the range of motion of the applicant’s neck and shoulders. As already noted above, the parties agree that the applicant continues to experience pain caused by the accident. Consequently, the evidence shows that applicant has range of motion limitations and pain caused by the accident.

19Dr. Weisleder’s opines in his 2019 report that the applicant has reached maximum medical improvement. This raises the question of how physiotherapy can increase the applicant’s range of motion and reduce her pain to a reasonable degree if she has already achieved maximum medical improvement. The applicant does not address this question. In fact, she makes no submissions on how the goals of the treatment plan would be met to a reasonable degree.

20I further note that the applicant has made no submissions on whether the overall costs of achieving the plan’s treatment goals are reasonable.

21Some of the treatment goals of this plan are not reasonable. The applicant is silent on how the goals of the plan will be met to a reasonable degree and on whether the costs of achieving these goals are reasonable. For these reasons, I find that the applicant has not established that this treatment plan is reasonable and necessary.

Interest

22The applicant is not entitled to interest pursuant to s. 51 of the Schedule as no benefits are owing.

Award

23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

24As no benefits are owing, the respondent cannot be found liable to pay an award.

ORDER

25The applicant is not entitled to the treatment plans, nor interest.

26The respondent is not liable to pay an award.