Jurgens Antonius v. Aviva General Insurance, 2024 CanLII 88876

Citation: Antonius v. Aviva General Insurance, 2024 ONLAT 21-015428/AABS

Licence Appeal Tribunal File Number: 21-015428/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:

Jurgens Antonius

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Maria Bihnam, Paralegal

For the Respondent: James Kolumbus, Counsel

HEARD: In Writing

OVERVIEW

1Antonius Jurgens, the applicant, was involved in an automobile accident on November 26, 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 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 a non-earner benefit (“NEBs”) in the amount of $185.00 per week from April 9, 2021 to date and ongoing?

ii. Is the applicant entitled to $486.00 ($2,486.00 less $2,000.00 approved) for the cost of a psychological assessment, proposed by Medex Assessments Inc. in a treatment plan dated January 18, 2021?

iii. Is the applicant entitled to $2,177.58 for physiotherapy services, proposed by Physiomed in a plan dated May 27, 2021?

iv. Is the applicant entitled to $2,723.30 for a chronic pain assessment proposed by Medex Assessments Inc. in a plan dated June 16, 2021?

v. Is the applicant entitled to $2,297.58 for physiotherapy services proposed by Physiomed in a plan dated November 23, 2021?

vi. Is the applicant entitled to $347.00 for expenses related to physiotherapy, submitted in an OCF-6 dated October 24, 2022?

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

RESULT

3The applicant has failed to establish that he has suffered a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to NEBs.

4The applicant is not entitled to the treatment plans for physiotherapy services, a chronic pain assessment, the denied portions of a psychological assessment or the physiotherapy expenses submitted on an OCF-6.

5As the applicant is not entitled to any of the disputed medical benefits, no interest is payable.

ANALYSIS

The applicant has not established that he is entitled to NEBs

6I find that the applicant has not established that he is entitled to NEBs as he has not suffered an impairment that prevents him from engaging in substantially all of the activities he engaged in prior to the accident.

7The applicant argues that the clinical notes and records of his family doctor demonstrate that he meets the test for NEBs. The applicant also relies on the psychological assessment report of Dr. Tenenbaum dated March 22, 2021 as demonstrating that he entitled to NEBs.

8The respondent argues that the applicant’s submissions and evidence fail to discharge the applicant’s burden to prove that he entitled to NEBs. The respondent also relies on the medical evidence of its assessors, Ronald Findlay, occupational therapist, Dr. Nikkhou, neuropsychologist, and Dr. Kopyto, general practitioner, as well as surveillance evidence establish that the applicant is not entitled to NEBs.

9Section 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 (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

10The applicant’s submissions fall short of meeting his burden. While the applicant has identified the correct legal test, the applicant’s submissions do not establish that he has been prevented from engaging in substantially all of the activities he engaged in prior to the accident. To the contrary, the applicant’s submissions are that it is “more difficult” to perform certain tasks. The applicant’s reply submission further state that he finds it “difficult to do things around the house”, not that the applicant is unable to do so. The Court of Appeal in Heath noted that the quality of performance post-accident must be considered, however, in this case, the applicant has not demonstrated through medical evidence or his submissions that he is sufficiently restricted to be considered to be prevented in engaging in substantially all of the activities he engaged in prior to the accident.

11The applicant’s submissions argue that after the accident he visited his family doctor, Dr. Stanton, and reported that it was more difficult to carry out a long list of activities. This submission is cited to the clinical notes and records of Dr. Stanton, at Tab 2, page 307 of the applicant’s evidence brief. Upon review, this reference resolves to a haematology report. Further review of the clinical notes and records near this area, reveal a record of a visit to Dr. Stanton on December 4, 2020, with a single activity, difficulty holding a frying pan being noted.

12The applicant did not specifically cite to any other specific visits to Dr. Stanton to support that the applicant had difficulty with other activities or that the difficulty reported on December 4, 2020 continued post-accident. I note that the Case Conference Report and Order of Adjudicator Lundy, released January 5, 2023, ordered that “[s]ubmission shall make specific reference to the evidence and law by tab and page number. The hearing adjudicator may choose not to review evidence not so referenced.” While I have reviewed the applicant’s evidence, I have not been directed or identified evidence to support that the applicant’s accident-related injuries sufficiently restrict his ability to engage in substantially all his pre-accident activities.

13I also note that the clinical notes and records of the applicant’s family doctor in November and December of 2020 state that the applicant had difficulty completing tasks around the house. The applicant did not report to his family doctor that he was unable to perform these tasks. These notes also mention that in March 2021 the applicant’s condition was improved, he was able to exercise and “bike ride ok”. In January of 2022 the applicant was even able to partake in recreational skiing at Glen Eden.

14The applicant also relies on the psychological assessment report of Dr. Tenenbaum dated March 22, 2021, claiming that the report “confirmed the [a]pplicant’s inability to engage in all of the activities before the accident. A review of this report, and particularly page 12 cited by the applicant does not support this claim.

15It is noteworthy that Dr. Tenenbaum’s assessment was not conducted for the purpose of determining whether the applicant is entitled to NEBs. Rather it was for providing treatment recommendations. The applicant relies in particular on page 12 of the report, at which Dr. Tenenbaum makes a psychological diagnosis and finds that the psychological injury is not subsumed under the definition of minor injury as defined in the Schedule. The Minor Injury Guideline is not at issue in this application. The balance of page 12, continuing to page 13 discusses the applicant’s difficulties based on the applicant’s self-reporting the report does not suggest that the applicant meets the test for entitlement to NEBs.

16The respondent submits that the applicant has failed to satisfy his burden of providing evidence of his pre- and post-accident function to demonstrate that he suffers a complete inability to carry on a normal life as result of the motor vehicle accident. The respondent notes that this is particularly significant in this case because the applicant had significant pre-existing conditions, was on long term disability at the time of the accident and had been suffering from severe psychological issues for approximately 13 years prior to the accident. As such, the applicant has failed to establish his onus as contemplated by Heath.

17The respondent also points to its own evidence in the form of a multidisciplinary assessment and surveillance evidence. In particular, the assessment of Ronald Findlay, OT, noted that the applicant was able to conduct many normal activities of daily living. Similarly, the psychological assessment of Dr. Nikkhou, neuropsychologist and Dr. Kopyto, MD, both concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the motor vehicle accident. The surveillance evidence agreed with these expert opinions and depicted the applicant carrying garbage, driving and conducting various errands. The applicant did not challenge the respondent’s evidence despite having the opportunity to do so in his reply submissions.

18Considering the evidence and submissions, I find that the applicant has failed to establish that he has suffered a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to an NEB.

The applicant is not entitled to $486.00 relating to a partial denial of a treatment plan for a psychological assessment

19I find that the applicant has failed to establish his entitlement to the disputed $486.00 of the psychological assessment treatment plan.

20The amount in dispute relate to a treatment plan for a psychological assessment in the amount of $2,486.00, which was partially approved in the amount of $2,000.00. The denied of amount of $486.00 is comprised to two separate denied amounts; for $286.00 and $200.00.

21The applicant argues that the denied amount of $286.00 is for HST and is therefore payable. The applicant relies on the Superintendent’s Guideline No. 03/14, and in particular relies on the portion that reads “…[i]f the HST is considered by the CRA to be applicable to any of the services or fees listed in this Guideline, then the HST is payable by an insurer in addition to the fees as set out in this Guideline.” The applicant goes on to state that the $286.00 is the HST portion of the treatment plan and is therefore payable.

22The applicant also claims that the remaining denied amount of $200.00 is payable because the Superintendent’s Guideline No 03/14 states under the Forms “The $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF 18.” The applicant concludes by stating that the $200.00 forms fee should be paid and not included in the cost of the assessment.

23The respondent does not address the applicant’s submissions regarding the $286.00 charged for taxes. However, the respondent submitted that the $200.00 charged on the OCF-18 and in dispute is listed as being for “med/rehab and initial assessments.” I understand the respondent’s submission to mean that because the OCF-18 lists the $200.00 fee as being for these activities, the fee cannot be for completing the form. The applicant did not dispute the respondent’s submissions in his reply submissions.

24In considering the parties’ submissions, I once again note that the applicant has not attached the OCF-18 in dispute as evidence with his submissions. Without this key evidence, there is no way for the Tribunal to find that the $286.00 allegedly listed for taxes is in fact listed this way. Similarly, without the OCF-18, there is no way for the Tribunal to find that the $200.00 in dispute is properly attributable to a form fee, especially given the respondent’s unchallenged assertions to the contrary.

25In view of the evidence before me and the parties’ submissions, I find that the applicant has failed to establish his entitlement to the disputed $486.00 of the psychological assessment treatment plan.

The applicant is not entitled to the treatment plans for physiotherapy services

26I find that the applicant has failed to establish that the disputed treatment plans for physiotherapy services are reasonable and necessary.

27In his submissions, the applicant cites a single instance of his family doctor, Dr. Stanton, recommending physiotherapy in June 2021. I note that the applicant has not specifically cited to any instances of Dr. Stanton or any other practitioner recommending physiotherapy treatment after that date. A review of Dr. Stanton’s clinical notes and records fails to provide any other examples of recommendations of physiotherapy to treat the applicant’s injuries resulting from the motor vehicle accident. The applicant has not identified to any other recommendations for physiotherapy during the next two years of medical records provided, which detail the applicant’s regular medical consultations for various other reasons.

28The applicant relies on Pundit vs. Aviva Insurance Canada, 2020 ONLAT 19-005786/AABS (“Pundit”) for the proposition that “to establish that goods and services are reasonable and necessary, an insured person has to show that the goods and services requested will have a rehabilitative purpose or at a minimum, lead to a reduction of pain…”. In Pundit, the Tribunal noted that the applicant had not set out any submissions relating to the treatment goals, whether they are being met, or the costs of the plans considering the success of the treatment in question. The applicant in Pundit failed to discharge her burden to establish that the disputed treatment plans were reasonable and necessary.

29The applicant submits that the decision in 17-002624 v Aviva Insurance Canada, 2018 CanLII 13183 ON LAT (“17-002624”) stands for the proposition that prolonged and passive treatments can be reasonable and necessary in some circumstances. Even if that proposition is accepted, it is not possible to determine if this reasoning in 17-002624 is applicable to this application. The applicant has failed to point to any evidence in this application regarding what types of treatments or therapeutic goals were proposed in the disputed treatment plans and, consequently, failed to discharge his burden to establish whether the treatments and goals are reasonable or necessary. The single instance that the applicant points to where Dr. Stanton indicated that the applicant requires physiotherapy simply states: “[c]ontinue chiro/physio”. As the applicant’s submissions, the evidence does not support that the disputed treatment plan, its treatments or therapeutic goals, the course of treatment and cost are reasonable and necessary.

30The respondent relied on the medical evidence in Dr. Kopyto’s assessment report, which was based on a paper review and an earlier in-person assessment conducted in relation to the applicant’s claim for an NEB. Dr. Kopyto concluded that the applicant suffered strain injuries as a result of the accident. Dr. Kopyto also opined that the disputed treatment plan was not reasonable and necessary as the applicant did not suffer an ongoing impairment and had reached maximal recovery.

31The respondent also noted the applicant’s lack of submissions regarding the key elements to establishing entitlement to the disputed treatment plans. Here, just as in Pundit, the applicant has failed to provide any submissions or references to evidence regarding the treatment goals and their costs, of the disputed treatment plans.

32I find that the applicant has failed to establish that the disputed treatment plans for physiotherapy services are reasonable and necessary. The applicant has cited a single recommendation by his family doctor in June 2021. When considered against the medical evidence of the respondent’s assessment, I do not find that the applicant has established the necessity of the disputed treatment plans. Moreover, I agree with the respondent that in view of the applicant’s lack of submissions on the disputed treatment plans’ therapeutic goals, whether they are being met, or their costs, the applicant has failed to establish the plans’ reasonableness.

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

33I find that the applicant has failed to establish that the disputed treatment plan for a chronic pain assessment is reasonable and necessary.

34The applicant claims that the applicant’s long-standing pain following the accident demonstrate that he is entitled to the disputed treatment plan for a chronic pain assessment. The applicant acknowledged that he had a pre-accident history of pain but asserted in his submissions there were no complaints with respect to this back before the accident. However, a review of the applicant’s evidence brief reveal at least two pre-accident incidences, on July 17, 2020 and November 12, 2020, where the applicant reported pain in his back to medical professionals.

35The respondent again notes that the applicant has failed to discharge his burden by failing to make any submissions regarding reasonableness and necessity of the treatment plan in dispute. As before, the applicant has failed to provide any submissions or references to evidence regarding the assessment’s, methods or its costs – all key to establishing whether the disputed treatment plan is reasonable.

36I note that the applicant has not cited to the disputed treatment in any of his submissions regarding its reasonableness and necessity. As with treatment plans discussed above, the applicant has failed to address whether and how the services proposed in the disputed treatment plan are reasonable.

37In view of the evidence before me, including the applicant’s pre-accident history of pain, and the parties’ submissions, I find that the applicant has failed to establish his entitlement to the treatment plan for a chronic pain assessment.

The applicant is not entitled to $347.00 for incurred expenses related to physiotherapy

38I find that the applicant is not entitled to $347.00 for incurred physiotherapy services as detailed on the OCF-6 because it was incurred prior to the submission of an OCF-18.

39The respondent noted that pursuant to section 38(2) of the Schedule, it is not liable to pay for medical expenses which are incurred prior to the submission of a treatment and assessment plan. The respondent also noted that none of the potential exceptions provided in section 38(3) are applicable.

40The applicant did not make any submissions regarding this OCF-6 and section 38(2). Rather, he grouped his submissions regarding this OCF-6 together with his submissions for the two OCF-18s for physiotherapy services, arguing that all the denied physiotherapy treatment was reasonable and necessary.

41Given the lack of submissions by the applicant regarding section 38(2), I agree with the respondent and find that that the applicant is not entitled to payment of this OCF-6.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to any of the disputed benefits, the applicant is also not entitled to interest.

ORDER

43I find that:

i. the applicant is not entitled to an NEB in the amount of $185.00 per week from April 9, 2021 to date and ongoing.

ii. the applicant is not entitled to $486.00 ($2,486.00 less $2,000.00 approved) for the cost of a psychological assessment, proposed by Medex Assessments Inc. in a treatment plan dated January 18, 2021.

iii. the applicant is not entitled to $2,177.58 for physiotherapy services, proposed by Physiomed in a plan dated May 27, 2021.

iv. the applicant is not entitled to $2,723.30 for a chronic pain assessment proposed by Medex Assessments Inc. in a plan dated June 16, 2021.

v. the applicant is not entitled to $2,297.58 for physiotherapy services proposed by Physiomed in a plan dated November 23, 2021.

vi. the applicant is not entitled to $347.00 for expenses related to physiotherapy, submitted in a plan dated October 24, 2022.

vii. the applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

44The application is dismissed.