Citation: Gurm v. Aviva Insurance Canada, 2024 ONLAT 22-006289/AABS

Licence Appeal Tribunal File Number: 22-006289/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:

Harbant Gurm

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Edward Langley

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By way of written submissions

OVERVIEW

1Harbant Gurm, (the “applicant”), was involved in an automobile accident on April 2, 2019, 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, 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 $2,512.60 for chiropractic services, proposed by Brampton Civic Care Centre in a plan submitted September 9, 2019 and denied September 17, 2019?

ii. Is the applicant entitled to $2,496.85 for chiropractic services, proposed by Brampton Civic Care Centre in an OCF-18/treatment plan (“plan”) submitted December 18, 2019 and denied December 27, 2019?

iii. Is the applicant entitled to $2,189.27 for chiropractic services, proposed by Brampton Civic Care Centre in a plan submitted July 28, 2020 and denied July 30, 2020?

iv. s the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre, in a plan submitted August 10, 2020 and denied August 19, 2020?

v. Is the applicant entitled to $1,197.51 for a functional cognitive assessment, proposed by Ontario Independent Assessment Centre, in a plan submitted October 2, 2020 and denied October 5, 2020?

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

WITHDRAWN ISSUES

3In their written submissions, the applicant withdrew issues 1 and 7 from the Case Conference Report and Order and therefore I have not listed them as issues in dispute.

RESULT

4I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.

5No interest is payable.

6The application is dismissed.

ANALYSIS

7To receive payment for a treatment plan under s.15 and s.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 is not entitled to the treatment plans for chiropractic services

8I find that the applicant has not proven on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary.

9The applicant has not identified how the goals would be met to a reasonable degree, nor that the overall costs of the treatments are reasonable. The applicant opines in paragraph 31 of their written submissions that the treatment plans for chiropractic and physiotherapy treatment are reasonable and necessary as the goals of the treatment plans aim to reduce pain, increase strength, and increase the applicant’s range of motion. They do not, however, point to any specific evidence to support these submissions, or demonstrate why these goals are reasonable and necessary to treat the applicant’s accident-related impairments.

10Evidence in written submissions relies heavily on the recollections and statements of the applicant herself. Specifically, the applicant states that she lost consciousness as a result of the accident. However, I was not directed to evidence to support this statement. On the contrary, the applicant stated in later assessments, when asked directly, that she did not, in fact, lose consciousness. In any event, it is unclear how her purported loss of consciousness would justify the reasonableness and necessity of the chiropractic treatments proposed, which is her burden.

11It is relevant to note here that although the applicant was ordered in the LAT Case Conference Report and Order to produce the clinical notes and records and the ambulance call report from the hospital visited immediately following the accident, these ordered documents were not produced to the respondent. I find these documents would have been assistive to the Tribunal in understanding the scope of the applicant’s impairments and required treatment.

12On a consideration of the applicant’s evidence, I find that the applicant has not proven on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary.

The applicant is not entitled to the treatment plan for a chronic pain assessment

13I find that the applicant has not proven on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable and necessary. The purpose of an assessment is to determine whether a condition exists. The applicant also bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. I am not persuaded by the applicant’s medical evidence that there are grounds that would require further investigation into chronic pain as a result of the accident.

14The applicant visited her family doctor several times post MVA, however only two of these visits appear to be related to the subject MVA. There are no complaints of any symptoms that would relate to chronic pain, nor are there any referrals from the family doctor to any specialist. I find the applicant has failed to produce evidence of on-going or worsening issues that could relate to chronic pain as a result of the accident. The family doctor CNRs confirm that there is no change in pain ratings from the applicant.

15The respondent submits as evidence various s.44 assessment reports. In each report, there is no medical opinion that the applicant suffers any lingering effects from any accident-related injuries that would support a finding of chronic pain. Ultrasound results on the applicant’s shoulder confirm that there was no damage beyond soft tissue injuries.

16On a consideration of the applicant’s evidence, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable or necessary.

The applicant is not entitled to the treatment plan for a functional cognitive assessment

17I find that the applicant has not proven on a balance of probabilities that the treatment plan for a functional cognitive assessment is reasonable and necessary. The purpose of an assessment is to determine whether a condition exists. The applicant also bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

18The applicant has not established the evidentiary basis for such an assessment as there is no medical evidence put forward by the applicant that she suffers from any functional cognitive impairment. The applicant opined that a cognitive assessment was reasonable and necessary given the fact that she lost consciousness on impact of the vehicle and the consistent cognitive difficulties reported throughout the clinical notes and records and reports. As stated earlier in paragraph 10, I was directed to evidence to support this statement. On the contrary, the applicant stated in later assessments, when asked directly, that she did not, in fact, lose consciousness.

19The respondent submits as evidence a Ministry of Transportation Medical Report dated May 29, 2020, completed by Dr. Gambhir. The medical report was ordered to address any potential functional cognitive impairments of the applicant in relation to the functional cognitive assessment. This evidence scores the applicant as “normal” for mental competence, and neurological examinations. There was no evidence of an emotional disorder. Overall, this document scores this examination as a normal assessment. It further states there was no decreased cognition, and that locomotor examination is within normal limits.

20On a consideration of the applicant’s evidence, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a functional cognitive assessment is reasonable or necessary.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payments, no interest is ordered.

ORDER

22The applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.

23No interest is payable.