Citation: Adams v. Aviva Insurance Company of Canada, 2024 ONLAT 22-009879/AABS

Licence Appeal Tribunal File Number: 22-009879/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:

Jacinda Nichole Adams

Applicant

and

Aviva Insurance Company of Canada*

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Sophia Chaudri, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Jacinda Nichole Adams, the applicant, was involved in an automobile accident on February 18, 2020, 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 of Canada, 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 the following medical benefits and cost of examination recommended by 101 Assessments in the following treatment plans/OCF-18s:

a) $2,647.00 for chiropractic services submitted April 29, 2022;

b) $2,460.00 for an orthopaedic assessment submitted January 10, 2022, and;

c) $2,423.91 for physiotherapy submitted February 10, 2022.

ii. Is the applicant entitled to an expense/OCF-6 in the amount of $186.00 for an optometry assessment and contact lenses submitted April 25, 2022?

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

3The parties agreed in their written hearing submissions that the applicant’s injuries are not within the Minor Injury Guideline (“MIG”). Therefore, I do not need to determine this issue as part of this hearing as it is no longer in dispute.

RESULT

4I find that the applicant is not entitled to the disputed treatment plans and expense as the applicant has not proven on a balance of probabilities that they are reasonable and necessary for her accident-related injuries. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

5To receive payment for a treatment plan (OCF-18) 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. 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 same are reasonable.

The applicant is not entitled to the proposed chiropractic services

6I find that the applicant has not demonstrated that the plan in dispute for chiropractic services is reasonable and necessary for her accident-related impairments. The applicant submits that her accident-related injuries include pain in her neck, back, shoulder, knee, leg and hip. The applicant argues that her pre-existing medical conditions including chronic mechanical back pain with sciatica, bursitis, migraine headaches, left knee, carpal tunnel syndrome, insomnia, bipolar disorder, stress, and anxious distress, have been aggravated by the accident.

7The applicant argues that since her injuries fall outside the MIG and she has not reached maximum medical recovery, the proposed treatment is reasonable and necessary. The applicant submits that the goals of the proposed treatment are pain reduction and to increase strength and range of motion and return to her activities of daily living. The applicant makes no submissions whether chiropractic treatments are reasonable and necessary to accomplish these goals for her accident-related injuries.

8The applicant relies on the clinical notes and records (“CNRs”) of Dr. Macky Chan of Markham McNicoll Urgent Care Centre, family physician, and the records of the treating clinic, Scarborough Rehabilitation Clinic. The applicant also relies on a chronic pain report dated May 24, 2021 by Dr. Michael Goeld, which indicates that the applicant has returned to her pre-accident employment and activities of daily living. Dr. Goeld mentions that the applicant reports she returned to reduced housekeeping and recreational activities. On review of the records of Dr. Chan from October 2015 to February 22, 2020, Dr. Goeld concluded the applicant has pre-existing back pain. Dr. Goeld found normal range of motion in the applicant’s neck, shoulders, back and hips. Dr. Goeld found reduced motion in the left knee due to pain. However, Dr. Goeld indicates that the applicant’s left knee tear and surgery is unrelated to the accident. Dr. Goeld does not mention whether the proposed chiropractic services are reasonable and necessary for the applicant’s accident-related injuries.

9The respondent argues that the applicant has not produced the updated records of Dr. Chan from January 2023. The respondent points to the Insurer’s Examination (“IE”) report dated May 16, 2022 by Dr. Seung-Jun Lee which indicates the applicant has reached maximum medical improvement from her accident-related soft tissue injuries. Dr. Lee’s opinion is consistent with Dr. Goeld’s findings of normal range of motion