Citation: Burak v. Aviva General Insurance, 2024 ONLAT 22-000113/AABS

Licence Appeal Tribunal File Number: 22-000113/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:

Yuliya Burak

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Yalda Aziz, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Yuliya Burak (the “applicant”), was involved in an automobile accident on July 6, 2018, 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 (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 chronic pain treatment in the amount of $7,839.88, ($10,125.94 less $2,286.06 approved) proposed by Kneed Wellness in a treatment plan (“OCF-18”) submitted on December 20, 2019, and denied on January 7, 2020?

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

RESULT

3The applicant is not entitled to the remaining services in the OCF-18 in dispute, as she has not demonstrated that it is reasonable and necessary. As there are no benefits due, interest is not payable.

ANALYSIS

The applicant is not entitled to the OCF-18 with a remaining balance of $7,839.88 for chronic pain treatment, submitted on December 20, 2019

4I find that the applicant has not met her onus to prove that the remaining services in the OCF-18 are reasonable and necessary.

5The applicant submitted an OCF-18 on December 20, 2019, seeking $10,125.94 for chronic pain treatment. On March 17, 2020, the respondent partially approved the disputed OCF-18 for an initial assessment, psychological treatment, and a consultation with treatment providers. The remaining proposed services remained denied by the respondent.

6To 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.

7The applicant submits that she has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type (travelling in a motor vehicle), and chronic pain syndrome. Further, the applicant submits that these additional treatments would significantly benefit in her road to recovery. To this end, she relies on the medical evidence from Dr. Igor Wilderman, family doctor, Mr. Mandeep Singh, psychological associate, Dr. Kenneth Liang, family physician, Dr. Tatiana Felipe Ramirez, family physician, and Kneed Wellness.

8The respondent submits that the applicant has not met her onus to establish entitlement to the proposed services, as she has not provided compelling medical evidence. Moreover, the respondent submits that the applicant was involved in a subsequent accident on July 28, 2020. Lastly, the respondent relies on the s. 44 reports of Dr. Nikolaos Harmantas, family doctor, dated January 30, 2020, and Dr. Pushpa Kanagaratnam, psychologist, dated February 19, 2020.

9The applicant has fallen well short of meeting her onus in proving the remaining services in the OCF-18 are reasonable and necessary.

10First, to be frank, despite being represented, the applicant’s submissions and evidence were not assistive to the Tribunal. For example, the applicant’s submissions were completely silent on whether the treatment goals are reasonable, whether the goals will be met to a reasonable degree and whether the overall cost of achieving the goals is reasonable. This makes it challenging for the applicant to meet her burden.

11Moreover, while the applicant submits that she was diagnosed with chronic pain syndrome by Dr. Wilderman, and that he recommended additional therapy, she did not tender a copy of this report as evidence for the purposes of this hearing, despite having the opportunity to do so. The onus is on the applicant to establish entitlement to the proposed chronic pain treatment, and she had the opportunity to enclose a copy of the report for the Tribunal’s review, but she chose not to do so. It is well settled that submissions are not evidence.

12Second, outside of the OCF-18, the applicant has not presented evidence from any of her treatment providers to support a finding that the proposed treatment was reasonable and necessary.

13My finding is supported by the following medical evidence. The CNRs of Dr. Liang confirm that the applicant sustained chronic neck pain, anxiety, myofascial headaches, and a concussion, however there are no recommendations for the treatments proposed in this OCF-18, during the time period it was submitted.

14While Mr. Singh recommended 16 sessions of cognitive behavioural therapy on February 18, 2019, the applicant has already received this treatment and the sessions proposed in this OCF-18 is for 12 additional sessions. Problematically, the applicant provided no submissions on why additional cognitive behavioural therapy is reasonable and necessary.

15Next, during the time period the OCF-18 was submitted, there is no corroborating medical evidence that supports or recommends any of the treatment proposed in this OCF-18 for this subject accident. In fact, on November 10, 2020, Dr. Ramirez recommended physiotherapy treatment for the applicant’s subsequent accident, not this accident.

16I similarly do not find the treatment records of the applicant’s treatment provider, nor the OCF-18 form itself to be sufficient evidence establishing the need for ongoing treatment. I acknowledge that the applicant attended at Kneed Wellness until March 5, 2020, however the applicant did not provide any submissions or refer me to evidence that demonstrates that the proposed services in this OCF-18 are reasonable and necessary based on these records. In any event, the records do not address how the applicant will meet the stated goals with the proposed treatment as outlined in the OCF-18.

17Finally, I am persuaded by the unrebutted s. 44 reports of Dr. Harmantas and Dr. Kanagaratnam who both opined that the remaining services are not reasonable and necessary. First, the review of the medical evidence by both assessors was comprehensive. Second, the findings were based on objective testing. Third, Dr. Kanagaratnam noted that some of the services proposed in the OCF-18 were unclear and some appeared to be duplications of previously provided services. Despite having the opportunity to provide reply submissions, the applicant chose not to do so.

18For these reasons, I find that the applicant has not demonstrated that the remaining services in the disputed OCF-18 are reasonable and necessary. As no benefits are overdue, no interest is payable under s. 51 of the Schedule.

ORDER

19The applicant has not demonstrated that the remaining services in the OCF-18 are reasonable and necessary under s. 15. As no benefits are due, no interest is payable. The application is dismissed.