Manhertz v. Aviva General Insurance, 2024 CanLII 88885

Citation: Manhertz v. Aviva General Insurance, 2024 ONLAT 22-007584/AABS

Licence Appeal Tribunal File Number: 22-007584/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:

Daniel Manhertz

Applicant

And

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: K. Stancheva, Paralegal

For the Respondent: K. Mertes, Counsel

HEARD: By way of written submissions

OVERVIEW

1Daniel Manhertz, the applicant, was involved in an automobile accident on January 29, 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 the respondent, Aviva General Insurance, the insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute is/are:

1. Is the applicant entitled to $2,416.63 for chiropractic services, proposed by Brampton Civic Care Centre, in a treatment plan/OCF-18 submitted May 12, 2022 and denied June 30, 2022?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to $2,416.63 for chiropractic services, nor interest.

4The applicant is not entitled to an award.

ANALYSIS

Issue # 1 – Is the applicant entitled to a $2,416.63 treatment plan for chiropractic services?

5The applicant submitted a treatment plan (OCF-18) to the insurer on May 12, 2022 from Brampton Civic Care Centre in the amount of $2,416.63 for treatment of injuries arising from his motor vehicle accident (MVA) of January 29, 2018.

6The applicant presented a Disability Certificate (OCF-3) signed by chiropractor Dr. Roger Singh dated February 21, 2018, which states that he sustained the following injuries: muscle strain, sprain and strain of the cervical and lumbar spine as well as the sacroiliac joint, shoulder girdle, other parts of his hand, specified sites of his hip and specified sites of his knee. It also states that the applicant sustained contention of thorax, generalized anxiety disorder, headache, tension-type headache and nervousness.

7In support of his claim, the applicant submitted a notation from his family physician, Dr. Jason Skeete, dated March 19, 2019 in which Dr. Skeete notes that the applicant is still having pain from the car accident, “lower right back and hip pain”.

8The applicant also submits a Psychological Evaluation Report dated December 12, 2018 in which psychologist, Marco Chiodo, recommends psychological treatment due to depressed mood, anxiety, irritability and difficulty coping with pain. In a subsequent Psychological Reassessment Report, psychologist Chiodo opined that the applicant continues to demonstrate Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as a somatic symptom disorder.

9The applicant further submitted a driving assessment dated April 25 and 30, 2019 by psychologist Erin Langis in which psychologist Langis opined that the applicant’s symptoms were commonly associated with individuals suffering from post-accident psychological impairment.

10The respondent submitted a Section 44 Examination Report Physician Assessment Report produced by physician Dr. Eric Silver dated August 11, 2022. With respect to the treatment plan at issue, Dr. Silver concluded that it was not reasonable or necessary. In his report, Dr. Silver stated “…it is my opinion that Mr. Manhertz likely sustained sprain and strain injuries and/or contusions to his neck, back, right shoulder girdle, right hip and right knee as a result of the subject accident. Based on the duration of time since the subject accident and the currently available information, it is my opinion that Mr. Manhertz does not currently suffer from an accident related musculoskeletal diagnosis.”

Conclusion regarding Issue # 1

11The applicant submits that the treatment plan in dispute should be approved.

12The respondent submits that the applicant has not provided any medical documentation regarding physical injuries other than the applicant’s diagnosis of soft-tissue injuries and that that documentation does not include any medical evidence beyond July 14, 2019. The respondent also submits that the applicant has not provided any medical evidence counters the opinions of those of Dr. Silver in his Physician Assessment Report.

13I concur with the respondent. The applicant did not provide any medical evidence which addresses the reasonableness and necessity of the treatment proposed in the subject treatment plan. The focus of the applicant seemed to centre on his psychological condition and treatment. This evidence, however, does not address his need for chiropractic treatment.

14In light of the evidence submitted, and the lack of evidence to support his position, I find that the applicant has failed to establish on a balance of probabilities the treatment plan in dispute is reasonable or necessary. I find that that the applicant is not entitled to a treatment plan in the amount of $2,416.63 for chiropractic services.

Issue # 2 – Is the applicant entitled to interest?

15As no benefit is payable, I find that no interest is payable.

Issue # 3 – Is the applicant entitled to an award?

16The respondent is not liable to pay an award.

17Section 10 of Regulation 664 (the “Regulation”) provides that the Tribunal may make an award if the respondent has unreasonably withheld or delayed payments.

18Although the applicant requests an award pursuant to s. 10 of the Regulation, the applicant made no submissions as to how the respondent has unreasonably withheld or delayed payments.

19Conversely, the respondent submits that they did not fail to consider relevant medical evidence or otherwise acted improperly in denying the disputed treatment plan.

20With respect to the treatment plan in dispute, I note that the respondent did provide the applicant with an Explanation of Benefits and Notice of Examination by Insurer. Once in receipt of the assessment of Dr. Silver the respondent provided the applicant with the final Explanation of Benefits with the enclosed Physician Assessment Report.

21Based upon the applicant’s lack of explanation as to the basis for an award, as well as the documentary evidence submitted by the respondent, I do not find any basis for making an award under s. 10 of the Regulation.

22The applicant is not entitled to an award.

ORDER

23The applicant is not entitled to $2,416.63 for a treatment plan for chiropractic services;

24The applicant is not entitled to interest;

25The applicant is not entitled to an award.