Sidhu v. Aviva Insurance Canada, 2024 CanLII 99633

Sidhu v. Aviva Insurance Canada

Citation: Sidhu v. Aviva Insurance Canada, 2024 ONLAT 22-007280/AABS

Licence Appeal Tribunal File Number: 22-007280/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:

Navneet Sidhu

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Gary Marshall

APPEARANCES:

For the Applicant: Marc Golding, Paralegal

For the Respondent: Yann Grand-Clement, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Navneet Sidhu, the applicant, was involved in an automobile accident on October 5, 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 $2,357.00 for chiropractic services, proposed by Physiocare and Wellness Clinic, in a treatment plan/OCF-18 (“plan”) submitted January 27, 2022, and denied April 5, 2022?

ii. Is the applicant entitled to $4,287.50 for chiropractic services, proposed by Physiocare and Wellness Clinic, in a plan submitted on November 9, 2020, and denied on April 5, 2022?

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

RESULT

3I find the applicant has failed to demonstrate that the proposed treatment plans (OCF-18s) are reasonable and necessary for her accident-related injuries. As a result, the OCF-18s in dispute are not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

4The application is dismissed.

ANALYSIS

The applicant is not entitled to $2,357.00 for chiropractic sessions proposed by Physiocare and Wellness Clinic in a treatment plan/OCF-18 (“plan”) submitted on January 27, 2022, and denied on April 5, 2022.

The applicant is not entitled to $4,287.50 for chiropractic sessions proposed by Physiocare and Wellness Clinic in a treatment plan/OCF-18 (“plan”) submitted on November 9, 2020, and denied on April 5, 2022.

5The applicant has not demonstrated that the treatment plans for $2,357.00 and $4,287.50 for chiropractic sessions are reasonable and necessary for the following reasons.

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 the treatment plans are for ongoing chiropractic treatment. The treatment goals were pain reduction, increase in strength, increased range of motion, return to normal living activities and return to prew-accident work activities. The applicant submits that the treatment provided her with pain relief, even if only temporarily. The applicant relies on salient medical records and a report from Dr. Naresh Kumar, family doctor, who recommended further treatment to address lower back and medical complaints in a report dated October 7, 2017, as evidence to support her submissions.

8The applicant supports her claim for these treatment plans by relying on various medical assessment reports, clinical notes and records of family physician Dr. Naresh Kumar, the Schedule, and previously reported decisions with the Tribunal. According to the applicant, these records and cases together show that the applicant would be further along in her recovery and could have indeed reached maximum medical improvement.

9The respondent opposed the request by relying on various medical assessment reports, clinical notes and records of Dr. Jacqueline Auguste, the Schedule, and previously reported decisions with the Tribunal. According to the respondent, the applicant has not met her onus to establish that the treatment plans at issue are reasonable and necessary.

10Once again, I find the applicant has not demonstrated entitlement to these plans.

11Medical evidence must demonstrate that the applicant is improving due to the treatment. While pain relief is a valid treatment goal, the evidence shows that the applicant is only experiencing temporary pain relief by assessing chiropractic treatments. This supports the findings of Dr. Auguste, who stated that the applicant had reached maximum medical improvement.

12The applicant relies on her family physician, Dr. Naresh Kumar’s, clinical notes and records as support that she continued to experience ongoing chronic neck and back pain. During a visit to Dr. Kumar on November 19, 2019 (two years post-accident), the report noted the applicant mentioned that she suffered abdominal and back pain. During a subsequent visit on May 27, 2021, Dr. Kumar noted the applicant suffered from lower back pain again as well as related lower leg pains. The applicant noted there is a long and consistent history of her attending medical intervention sessions with Dr. Kumar about her neck and back pain.

13The applicant also mentioned a spine x-ray on October 7, 2017, which noted “degenerative changes at C4-5 with associated moderate right neural foraminal stenosis and a lucency in the vertebral body of C5, which was felt to be benign”. The applicant summarized that the mention of “degenerative changes” in the x-ray report indicated the applicant presented with pre-existing neck issues, which were exacerbated over the five years since the accident.

14The applicant posited that the October 7, 2017, cervical spine X-ray presented a pre-existing neck injury that was exacerbated over the course of the last five years. However, the applicant failed to provide medical evidence to support the alleged exacerbation.

15The applicant stated that the insurer's clinical examination conducted by Dr. Auguste on May 19, 2022, appeared to be “quite thin” but failed to provide any further evidence of this conclusion. In this same report, Dr. Auguste concluded that the applicant had reached maximum medical recovery for lower back pain. However, the applicant refuted this finding as she argues that she continues to struggle with “most activities of daily life” five years post-accident.

16In response, on November 26, 2018, the respondent scheduled an s.44 IE by Orthopedic Surgeon, Dr. Jacqueline Auguste, who found that the applicant suffered a WAD cervical strain/sprain and a lumbar strain/sprain as a result of the accident. No impairment was detected. On March 27, 2019, the applicant underwent another orthopedic surgery assessment with Dr. Auguste, whose assessment remained the same and the applicant was deemed to have reached maximum medical improvement. The applicant underwent a final evaluation by Dr. Auguste on May 19, 2022, during which Dr. Auguste found no signs of any substantive musculoligamentous, osseous, or neurological impairments related to the accident, and again, the applicant was deemed to have achieved maximum medical improvement from the injuries sustained because of the accident.

17The respondent also noted that the subject accident occurred in 2017, following which the applicant was diagnosed, from a physical perspective, with soft tissue injuries. The treatment plans in dispute were submitted in 2020 and 2022. As per the respondent, the applicant's soft-tissue injuries would have sufficient time to heal, as indicated by contemporaneous assessments and the fact that the applicant returned to her physically demanding job as a practical nurse.

18I find the applicant failed to provide corroborating evidence from her doctors or other service providers supporting the OCF-18s proposed by Physiocare Wellness Clinic. In the progress report dated September 23, 2022, the subject accident and history are mentioned; however, Dr. Kumar advised that said history is not deemed to be the cause of the applicant's back pain and is only mentioned in passing under the applicant's subjective complaints. Additionally, on November 26, 2018, orthopaedic surgeon, Dr. Auguste concluded during a medical examination that the applicant had suffered a WAD cervical strain/sprain and a lumbar strain/sprain as a result of the accident and no impairment was detected. On March 27, 2019, the applicant underwent another orthopaedic surgery assessment with Dr. Auguste at which time, Dr. Auguste concluded that the applicant’s diagnosis remained the same and the applicant was deemed to have reached maximum medical improvement. A third and final assessment of Dr. Auguste, conducted on May 19, 2022, which showed no accident-related physical impairment, is in line with Dr. Kumar's clinical notes and records. Additionally, the final assessment of Dr. Auguste also found that there was no change in her original opinion and there were no signs of any substantive musculoliogamentous, osseous, or neurological impairments related to the subject accident. The applicant has failed to establish that the OCF-18s for chiropractic services are reasonable and necessary as a result of the accident.

19The applicant’s submissions and evidence fall short of meeting the burden of proof to demonstrate why the specific treatment in dispute is reasonable and necessary to treat her accident-related impairments.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant did not establish entitlement to the OCF-18s in dispute for chiropractic services, no benefits are owed, and interest does not apply.

ORDER

21The applicant is not entitled to the disputed OCF-18s.

22The applicant is not entitled to interest pursuant to s. 51 of the Schedule.