Applicant fails to meet threshold of "but for" test for his injuries - 18-000651 SA v Aviva Insurance Canada, 2019 CanLII 18332 (ON LAT)

April 15, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

18-000651 SA v Aviva Insurance Canada, 2019 CanLII 18332 (ON LAT)

Date of Decision: January 23, 2019
Heard Before: Adjudicator Melody Maleki-Yazdi

ENTITLEMENT TO BENEFITS – applicant fails to provide evidence of injury; applicant fails to indicate one injury for over a year post accident; “but for” and “material contribution” tests applied; applicant fails to make case for injury

SA was in a car accident on November 18, 2014 and applied for SABs but Aviva refused to pay for one treatment confirmation form (OCF-23) and one treatment plan (OCF-18). As a result, SA applied to the LAT for resolution of that dispute.

Issues

1. Is SA entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy treatment recommended in a treatment plan November 28, 2016?
2. Is SA entitled to payment for the cost of examination in the amount of $2,260.00 for a chronic pain assessment in a treatment plan dated June 13, 2017?
3. Is SA entitled to interest on any overdue payment of benefits?

Result

1. Based on the totality of evidence SA is not entitled to the physiotherapy treatment. SA is also not entitled to the chronic pain assessment. There is no entitlement to interest as there are no overdue payments of benefits.

Analysis

Was SA’s right hip injury sustained as a result of the accident?

SA submits that he suffers from chronic neck, shoulder, back, hip and knee pain as a result of the accident.

Aviva submits that as a direct result of the accident, SA sustained only the following physical injuries: neck pain, left shoulder pain, left pelvic pain and left leg pain. In addition, SA suffered from headaches and dizziness.

The Adjudicator was left to decide whether SA’s right hip injury, one of the injuries for which he seeks treatment, was sustained as a result of the accident.

In relation to the right hip injury, the clinical notes and records indicate that SA attributes the right hip pain to the fall and in other later notations he attributes the right hip pain to his accident. An MRI revealed that there is mild tendinosis of the right gluteus minimus tendon.

Aviva submits that there is no medical evidence in support of SA sustaining a right hip injury as a direct result of the accident. Following the accident, SA had only complained of left hip pain until January 12, 2016 (approximately 1 year and 2 months following the accident). On that date, he complained of right hip pain for the first time. SA did not file reply submissions and has not provided evidence in support of the right hip injury being sustained as a result of the accident.

Aviva submits that the “but for” test is the appropriate test for determining causation. SA did not make any submissions on the appropriate test to be applied.

The Adjudicator determined that on either the “but for” test or the “material contribution” test, on a balance of probabilities, SA’s right hip impairment is not as a result of the accident

SA is not entitled to the physiotherapy treatment because he has failed to prove that the expense is reasonable and necessary.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.