Licence Appeal Tribunal File Number: 22-013506/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:
Dhanraj Sonnital
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dhanraj Sonnital, (the “applicant”), was involved in an automobile accident on February 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 Aviva General Insurance Company (the “respondent”) 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 a non-earner benefit (“NEB”) of $185.00 per week from March 19, 2019 to December 19, 2020?
ii. Is the applicant entitled to $1,384.70 for chiropractic services from McKenzie Medical Rehabilitation Centre proposed in a treatment plan (“OCF-18”) dated September 3, 2020?
iii. Is the applicant entitled to $1,977.05 for chiropractic services from McKenzie Medical Rehabilitation Centre proposed in a OCF-18 dated July 16, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to NEB.
ii. The applicant is not entitled to the OCF-18s in dispute.
iii. As there are no benefits due, interest is not payable.
iv. The application is dismissed.
ANALYSIS
The applicant has not established entitlement to NEB
4I find that the applicant has not met his burden to prove his entitlement to NEB.
5Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre-and post-accident activities.
6Despite NEB being a live issue in dispute as indicated in the case conference report and order, the applicant provided no submissions on why he would be entitled to NEB, nor did he point me to evidence that supports his entitlement to the claim. As the onus is on the applicant to establish entitlement to NEB, and he has provided no submissions on this point, it follows that he is not entitled to NEB.
The applicant is not entitled to the OCF-18 for chiropractic services in the amount of $1,384.70, dated September 3, 2020
The applicant is not entitled to the OCF-18 for chiropractic services in the amount of $1,977.05, dated July 16, 2020
7I find that the applicant has fallen short of meeting his onus in proving the proposed services in the OCF-18s are reasonable and necessary.
8To 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.
9The applicant argues that his pre-existing chronic back pain was exacerbated by the accident. He further argues that he has sustained injuries to his neck, chest, and sciatic pain down his right leg/right knee as a result of the accident. He also argues that the clinical notes and records (“CNRs”) of Dr. Bai S. Cheng, family physician, and Dr. Michael Pflug, rheumatologist demonstrate the severity of his pain. As a result, the applicant argues that he is entitled to the proposed OCF-18s.
10The respondent argues that the applicant has not specifically addressed in his submissions why the proposed treatment is reasonable and necessary nor has he produced contemporaneous medical evidence. It further argues that it has approved nearly identical treatment on May 23, 2019, July 10, 2019, January 16, 2020, March 20, 2020, and June 16, 2020, and that the applicant has not addressed why this nearly identical treatment is required a month later. To support this position, it relies upon the various approved OCF-18s as noted above, and the s. 44 report of Dr. Ahmad Belfon, general practitioner, dated November 24, 2020.
11To be frank, despite being represented, the applicant’s submissions and evidence were not assistive to the Tribunal. While the applicant’s submissions provided a summary of his diagnoses and pain symptomatology, critically, he did not address how the proposed treatment is reasonable and necessary to address his pain complaints. His submissions are silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals is reasonable. This alone makes it challenging for the applicant to meet his burden.
12I further note that to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. Here, the applicant has not identified what the goals of treatment are, which alone makes it difficult to determine whether the goals of treatment are reasonable.
13The applicant has also not produced contemporaneous medical records from either Dr. Cheng or Dr. Pflug, which support the reasonableness and necessity of the proposed treatment. I acknowledge that the applicant largely relies upon the CNRs dated February 8, 2019, March 9, 2019, June 1, 2019, June 18, 2019, and October 16, 2019, however none of these entries are contemporaneous to the submission of the proposed OCF-18s. In any event, the respondent approved physical rehabilitation, massage, chiropractic, and acupuncture treatment from May 23, 2019 to June 16, 2020. The applicant did not address in his submissions why the proposed treatment is reasonable and necessary when the respondent approved identical treatment shortly before these disputed OCF-18s were submitted.
14In a similar vein, no CNRs were provided from any treating clinic to indicate the applicant’s progress with the treatment, nor were any progress reports or summaries provided by the applicable practitioner. Critically, on November 24, 2020, the applicant only reported 10 percent improvement to Dr. Belfon, despite attending treatment for approximately 21 months. Without the records from the treating clinic, I am unable to assess the efficacy of treatment, and whether the stated goals of the plans were being met to a reasonable degree.
15Finally, the applicant argues that Dr. Belfon’s report should be given less weight because it contains contradictory opinions. The applicant’s submissions are not clear on this point but it appears that he is arguing that Dr. Belfon’s opinion was contradictory because he opined that the applicant had not reached maximum medical improvement but also opined that further treatment would be “wasteful”. He further argues that Dr. Belfon’s conclusion that he exhibited signs of pain focusing and self-limiting behaviors is contrary to the objective medical evidence.
16However, the onus rests on the applicant to prove the reasonableness and necessity of the plan, not on the respondent to disprove it. The applicant must still point me to his own evidence and argument that is then potentially further supported by the alleged failings of the respondent. Relying on alleged weaknesses in the respondent’s evidence alone is insufficient. In this regard, the applicant has made no specific submissions or referred me to evidence which identifies the goals of treatment, how the goals will be met and why the costs are reasonable. Nor, has he referred me to contemporaneous medical evidence that supports the reasonableness and necessity of the proposed chiropractic treatment. Therefore, the applicant has not met his burden.
Interest is not payable
17As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
18For the reasons outlined above, I find that:
i. The applicant is not entitled to NEB.
ii. The applicant is not entitled to the OCF-18s in dispute.
iii. As there are no benefits due, interest is not payable.
iv. The application is dismissed.
Released: December 23, 2024
Tanjoyt Deol
Adjudicator