Carter v. Aviva Insurance Canada, 2024 CanLII 97886

Citation: Carter v. Aviva Insurance Canada, 2024 ONLAT 22-010474/AABS

Licence Appeal Tribunal File Number: 22-010474/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:

Darryn Carter

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Shen Subramaniam, Counsel

For the Respondent: Rajesan Rajendran, Counsel

HEARD: By way of written hearing

OVERVIEW

1Darryn Carter (the “applicant”) was involved in an automobile accident on November 29, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (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 chronic pain assessment for $2,164.00, submitted June 15, 2022, by Midland Wellness Centre?

ii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant has failed to demonstrate the chronic pain assessment is reasonable and necessary. As the applicant is not entitled to payment for the treatment plan in question no special award under s.10 of O. Reg. 664 is due.

ANALYSIS

Applicant has the onus to establish a treatment plan is reasonable and necessary.

4To 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.

5There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.

6In demonstrating the reasonableness and necessity of a benefit sought, 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 the goals are reasonable.

Chronic Pain Assessment

7The applicant has not established that the treatment plan for a chronic pain assessment is reasonable and necessary.

8The goals of the treatment plans in question are pain reduction, increase in strength and increased range of motion. to increase muscle strength. All of these goals are to allow the applicant to return to her activities of normal living.

9The applicant argues he is entitled to the chronic pain assessment due to a pain condition that has persisted for more than three to six months. The applicant relies on elements of a physiatry report by Dr. Ko, Physiatrist.

10The respondent argues that the applicant has not provided objective medical evidence to prove that the assessment is reasonable or necessary. The respondent relies on a physiatry report by Dr. Ko, Physiatrist.

11The applicant relies on a physiatry report by Dr. Ko, completed on August 4, 2022. The report was to establish if the treatment plan in dispute was reasonable and necessary. However, while Dr. Ko lists a number of physical impairments, the doctor also notes that he could not conclusively state these impairments were caused by the accident. Further, and critically, Dr. Ko states that the applicant has reached maximal recovery and that the treatment plan is not reasonable or necessary. Thus Dr. Ko's evidence doesn't support the that the treatment plan is reasonable or necessary, and since this is the only evidence, the applicant has relied on to substantiate this issue, the applicant can't meet their onus.

12Therefore, I find that the treatment plan for a chronic pain assessment is not reasonable and necessary.

Conclusion

13The applicant has not met his burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

Special Award

14As the applicant is not entitled to payment for the treatment plan in question, no special award under s.10 of Reg. 664 is due.

ORDER

15I find that:

i. The applicant is not entitled to the payment for a chronic pain assessment.

ii. The applicant is not entitled to a payment of an award under s.10 of O. Reg. 664.

iii. The application is dismissed.