Citation: Lee v. Aviva Insurance Canada, 2024 ONLAT 22-006371/AABS

Licence Appeal Tribunal File Number: 22-006371/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:

Young Sook Lee

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Jae Hyon Cho, Counsel

For the Respondent:

Mark Rybnik, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Young Sook Lee, the applicant, was involved in an automobile accident on January 25, 2017, 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 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 $2,342.78 for chiropractic services, proposed by Dr. Edward Chun in a treatment plan dated September 29, 2021?

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

RESULT

3I find that the applicant is not entitled to the treatment plan in dispute or interest.

ANALYSIS

4Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

5The applicant has the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

The OCF-18 for chiropractic treatment is not reasonable and necessary

6The applicant submitted an OCF-18 dated September 9, 2021 in the amount of $2,342.78 for chiropractic services. The treatment plan proposed 12 sessions of chiropractic treatment and massage therapy. She submits that the treatment is required to address her constant neck, lower back and shoulder pain.

7The applicant argues that since the January 25, 2017 accident, she has suffered from chronic pain. She relies on the s. 25 orthopaedic assessment report of Dr. Franco Tavazzani dated May 23, 2018. Dr. Tavazzani diagnosed the applicant with chronic pain syndrome, chronic myofascial strain to the neck, back and shoulder, exacerbation of pre-existing age-related facet arthritis of the lumbar spine and disc bulges of the cervical spine. The applicant argues that the proposed treatment is required, as she still continues to suffer serious injuries and pain even years after the accident.

8The respondent submits that the applicant has not led sufficient evidence that further chiropractic treatment would be beneficial more than six years after the accident. It submits that the applicant has already received $18,863.31 in medical and rehabilitation benefits to date and that the applicant’s file has been inactive since 2020. It relies on the s. 44 physician’s examination of Dr. Michael Hanna, who found that while the applicant still reported pain symptoms, she had only sustained accident-related sprain/strain type injuries of the cervical, thoracic and lumbar regions and left shoulder. Dr. Hanna opined that the applicant had received sufficient facility-based treatment.

9I find that the applicant has not led sufficient evidence to establish that further facility-based treatment is warranted, more than four years post-accident.

10The applicant has not provided any contemporaneous medical records from her family physician Dr. Seung Jun Lee, recommending ongoing chiropractic and massage treatment. The most recent clinical notes and records (“CNRs”) of Dr. Lee were from June 2018, more than three years before the OCF-18 was submitted. The applicant references diagnostic imagining of her lower back, neck and left shoulder indicating degenerative changes, disc bulges, osteophytes and calcium deposits. However, all of this imaging is from 2017. Similarly, the s. 25 orthopaedic assessment the applicant relies on is from January 2017. Although the applicant reported that she has been receiving physical therapy for years post-accident, no treatment records or progress reports have been provided from any treating clinic.

11I agree with the respondent that the applicant has not led any evidence as to what her current medical condition is. In her submissions, the applicant reports that she currently suffers from constant neck, lower back and shoulder pain, fatigue, anxiety and depression. However submissions alone are not evidence. Rather, evidence must be provided in support of her claim. While the applicant has led evidence that in 2017 and 2018 she suffered from ongoing accident-related pain, no medical evidence was provided as to her current level of pain or accident-related impairment.

12The only contemporaneous evidence provided by the applicant is the OCF-18 itself. In it, the applicant’s treating chiropractor provides a general statement that the applicant has not achieved her pre-accident state. Dr. Chun references a July 24, 2021 “assessment and disability outcome measures“, which showed “moderate to severe impairment in many aspects of daily living”. However, no such assessment or any details of testing were provided by the applicant.

13The respondent’s s. 44 assessor reviewed the OCF-18 in dispute and opined in a report dated November 9, 2021 that at over four years post-accident, further facility-based treatment would not provide any long-term benefits or further improvements. The applicant has not provided any evidence to refute Dr. Hanna’s assessment.

14Further, in order to establish the reasonableness and necessity of a treatment plan, it is not sufficient to only provide evidence of ongoing impairments. Rather, the applicant must also lead evidence to establish that the goals of treatment are being met to a reasonable degree and that the time and cost expended to achieve these goals is proportional to the benefit. Although the applicant has apparently attended chiropractic treatment for years post-accident, no evidence has been provided as to the gains made with such treatment. No information has been adduced as to whether the treatment has been effective in reducing the applicant’s pain, increasing range of motion or strength or assisting in returning to activities of normal living.

15Without any objective evidence to establish either the applicant’s current medical condition or that treatment goals are being met, I am unable to find that the applicant has met her onus to prove that the proposed treatment is reasonable and necessary.

Interest

16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

ORDER

17For the reasons cited above, I find that the applicant is not entitled to the OCF-18 in dispute, or interest.

18The application is dismissed.