T.P.B. v. Aviva Insurance Canada, 2017 CanLII 149636

T.P.B. vs. Aviva Insurance Canada, 2020 ONLAT 19-000856/AABS

Citation: T.P.B. vs. Aviva Insurance Canada, 2020 ONLAT 19-000856/AABS

Released Date: 09/02/2020

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:

T. P.B.

Applicant

and

Aviva Insurance Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

T.P.B., Applicant

Salome J Lopes, Oksana Turner; Counsel

For the Respondent:

Sam Davies, Counsel

Heard

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 21, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective June 1, 2016 (the ''Schedule'').

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (AABS) (the “Tribunal”).

ISSUES IN DISPUTE:

3At the case conference the issues in dispute were identified and agreed to as follows:

a) Is the applicant entitled to receive a medical benefit in the amount of $3,153.76 for psychological services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on January 5, 2017 denied by the respondent on January 11, 2018?

b) Is the applicant entitled to receive a medical benefit in the amount of $4,687.12 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on January 31, 2017 denied by the respondent on February 21, 2017?

c) Is the applicant entitled to receive a medical benefit in the amount of $2,354.60 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on September 5, 2018 denied by the respondent on January 16, 2019?

d) Is the applicant entitled to receive a medical benefit in the amount of $1,950.00 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on May 19, 2017 denied by the respondent on May 25, 2017?

e) Is the applicant entitled to receive a medical benefit in the amount of $5,375.87 for psychological services recommended by Ontario Independent Assessment Centre in a treatment plan dated March 20, 2018 denied by the respondent on March 29, 2018?

f) Is the applicant entitled to receive a medical benefit in the amount of $2,294.54 for a neuropsychological assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated June 24, 2018 denied by the respondent on July 11, 2018?

g) Is the applicant entitled to payments for the cost of examinations in the amount of $1,850.00 for an Attendant Care Assessment, recommended by Alexmuir Wellness Centre Inc. in a treatment plan dated January 31, 2017 denied by the respondent on February 21, 2017.

h) Is the applicant entitled to interest on any overdue payment of benefits?

4The respondent has agreed to pay benefits set out in the order of Adjudicator Daoud issued on September 4, 2019, in paragraphs [3] a) and e)

RESULTS

5The applicant is not entitled to receive any benefits for physiotherapy or psychological services recommended by Alexmuir Wellness Centre Inc.

6The applicant is not entitled to receive any benefits for neurological assessment recommended by Ontario Independent Assessment Centre.

7The applicant is not entitled to payments for the cost of examinations in the amount of $1,850.00 for an Attendant Care Assessment, recommended by Alexmuir Wellness Centre Inc.

8The applicant is not entitled to interest.

BACKGROUND

9The applicant was involved in a motor vehicle accident on January 21, 2017 when he was rear ended by a truck. No airbags were deployed, and he did not lose consciousness. He complained on January 24, 2017, to his family doctor of pain in the neck, left shoulder, and headaches. The applicant did not complain of left shoulder pain on the date of the accident¹. Objective imaging of the head and chest on the date of the accident were unremarkable.²

10The applicant saw his family doctor, Dr. Alexov, on January 25, 2017. His doctor diagnosed him with Wad 11, right knee pain, left shoulder pain, chest wall pain, lower back pain and headaches. Dr. Alexov noted that the applicant suffered a complete inability to carry on a normal life, expecting the disability to last 9-12 weeks.³ The applicant was prescribed physiotherapy and muscle relaxant therapy.

11The applicant has a pre-accident medical history for bilateral knee issues and a left shoulder full thickness tear of the supraspinatus. In March 2015, the applicant fell. A left shoulder Ultrasound dated March 13, 2015 found that the applicant suffered significant injuries consistent with biceps and subacromial subdeltoid bursitis with associated full thickness tear of the supraspinatus tendon.⁴

12Dr. Alexov saw the applicant on March 1, 2017 and assessed him with musculoskeletal pain. He was sent for a left shoulder MRI on March 25, 2017. The report indicated a full thickness complete supraspinatus tendon tear with retraction and no fatty atrophy of the muscle and a partial tear infraspinatus tendon near insertion.⁵

13Dr. Jason Smith, orthopaedic surgeon, after examining the applicant wrote in his report dated May 11, 2017, that he had previously seen the applicant for his rotator cuff tendon tear and that the applicant described another accident on January 31, 2017 where it was exacerbated. Dr. Smith continued, “However, this is longstanding and nothing new. He deferred his previous surgery but now his shoulder really hurts a lot again…he and I talked about it again and our plan is to go in and reconstruct the shoulder with a left arthroscopic rotator cuff tendon repair”.⁶

14On July 20, 2017, the applicant underwent left shoulder arthroscopic rotator cuff tendon repair with no complications. An MRI of the left Shoulder dated July 16 2018 found significantly improved appearance of the rotator cuff with intact repair.⁷

ANALYSIS

Medical Benefits

15Section 15 of the Schedule requires the insurer to pay for all medical expenses that are reasonable and necessary.

16The onus is on the applicant to prove on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.⁸

17The applicant also has to show what the goal of plans are, whether any goals are being met to a reasonable degree and that the overall cost of the treatment plans are reasonable taking into consideration both the degree of success and availability of other treatment.⁹

Is the applicant entitled to receive a medical benefit in the amount of $3,153.76 for psychological services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on January 5, 2017 denied by the respondent on January 11, 2018?

Is the applicant entitled to receive a medical benefit in the amount of $5,375.87 for psychological services recommended by Ontario Independent Assessment Centre in a treatment plan dated March 20, 2018 denied by the respondent on March 29, 2018?

18The respondent has agreed to pay these benefits as set out in paragraph 4 of its written submission, so these benefits are no longer an issue to be dealt with by the Tribunal.

Is the applicant entitled to receive a medical benefit in the amount of $4,687.12 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on January 31, 2017 denied by the respondent on February 21, 2017?

Is the applicant entitled to receive a medical benefit in the amount of $2,354.60 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on September 5, 2018 denied by the respondent on January 16, 2019?

Is the applicant entitled to receive a medical benefit in the amount of $1,950.00 for a functional abilities test recommended by Alexmuir Wellness Centre Inc. in a treatment plan submitted on May 19, 2017 denied by the respondent on May 25, 2017?

19I find that the treatment plans are not reasonable and necessary for the reasons set out below.

20The pre-accident left shoulder ultrasound dated March 13, 2015 and the consultation report of Jason Smith dated May 11, 2017 indicate that the injury was long standing and nothing was new. There is no medical evidence that the shoulder injury was caused by the accident or exacerbated by the accident.

21The applicant has to meet the “but for “causation test to relate the shoulder injury to the accident.¹⁰

22Dr. Abuzgaya, orthopaedic surgeon, in his Insurer’s Examination (“IE”) report dated March 27, 2017 noted that ”there is no evidence of residual muscle impairment attributable to the injuries sustained as a result of the accident.” He also noted that the left shoulder would not likely respond to passive and active physical treatment and required surgery.¹¹

23In another IE report dated November 18, 2018¹², Dr. Abuzgaya again stated that “there is no evidence of residual muscle impairment attributable to the injuries sustained as a result of the accident”. He opined that the applicant has reached maximum medical improvement and that the accident had a minor impact on the pre-existing left shoulders symptoms.

24An MRI taken on July 16, 2018 indicated that there was no tear in the rotator cuff.¹³

25The applicant has put in no evidence to support the reasonableness and necessity of the plans.

26These plans were rejected by the respondent on the grounds that the respondent expected the applicant to complete surgery before any further physical therapy or assessments would be approved. This makes sense as Dr. Abuzgaya in his report dated March 27, 2017, indicated that the left shoulder would not respond to passive and active physical treatment and required surgery. There would be no further benefit to the applicant for continued treatment until the surgery is completed.

27The applicant, however, did have left shoulder arthroscopic rotator cuff tendon repair on July 20, 2017 with no ensuing complications. An MRI of the left shoulder on July 16, 2018 found significantly improved appearances of the rotator cuff with intact repair.

28I find that the applicant has not met the “but for “causation test to relate the shoulder injury to the accident.

Is the applicant entitled to receive a medical benefit in the amount of $2,294.54 for a neuropsychological assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated June 24, 2018 denied by the respondent on July 11, 2018?

29I find that the treatment plan is not reasonable and necessary for the reasons set out below.

30Dr. F. Salerno, psychologist, in his s. 44 IE psychological report dated October 12, 2017, found that “there is insufficient objective evidence in support of a psychological diagnosis or need for psychological treatment and that the applicant has an unremarkable pre-accident psychological history.¹⁴

31I accept the report of Dr. Salerno over the reports of Dr. Steiner and Dr. Belyakova, as his report compares both pre-and post accident history, is more neutral and not based on the applicant’s self reporting.

32There is also no evidence or complaint by the applicant that he suffered head trauma or complained of cognitive impairments related to the accident. The diagnostic imaging of the head on the date of the accident did not reveal any medical evidence of head trauma.

Is the applicant entitled to payments for the cost of examinations in the amount of $1,850.00 for an Attendant Care Assessment, recommended by Alexmuir Wellness Centre Inc. in a treatment plan dated January 31, 2017 denied by the respondent on February 21, 2017.

33I find that the treatment plan, is not reasonable and necessary for the reasons set out below.

34The report of Dr. Abuzgaya dated March 27, 2017 found the treatment plan not reasonable and necessary.

35The applicant has put forth no evidence to suggest otherwise.

36The explanations given by the respondent in the EOBS of February 21, 2017, and March 28, 2018, together with report of Dr. Abuzgaya clearly indicate the medical reasons why the respondent found that the plans were not reasonable and necessary.

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

37As no benefits are owing, I find that no interest is owing.

CONCLUSION

38For the reasons set out above, the application is dismissed except for the treatment plans that the respondent has agreed to pay.

Footnotes

1. 1Rouge Valley Emergency Record Applicant’s submissions Tab 7.
2. 2CT scan of head and x-ray of the Chest dated January 21, 2017 Respondent’s Submissions at Tab 7.
3. 3Applicant’s Submissions- Report of Dr. Alexov dated January 25, 2017, Tab 8.
4. 4Clinical note of Dr. Alexov dated March 10, 2015, Applicant’s submissions at Tab 3; Left shoulder Ultrasound dated March 13, 2015 Applicant’s submissions at Tab 2.
5. 5Left Shoulder MRI dated March 25, 2017 Respondent’s submission at Tab 9.
6. 6Consultation Report of Dr. Smith dated May 11, 2017, Respondent Submissions at Tab 11.
7. 7MRI of Left Shoulder dated July 16, 2018 Respondent Submissions at Tab 10.
8. 8Scarlett v. Belair, 2015 ONSC 3635 par 24 Respondent’s Submissions at Tab 12.
9. 9Vimaljeet Rattan v Aviva Insurance Company 2019ONLAT 18-002880/AABS at para 26-27 respondent’s Submissions at Tab 15.
10. 10Sabadash v. State Farm et al. 2019 ONSC 1121 para 34 Respondent’s Submission at Tab 16.
11. 11S. 44 Orthopaedic Report of Dr. Abuzgaya dated March 27, 2017 Respondent’s Submissions at Tab 17.
12. 12S. 44 Orthopaedic Report of Dr. Abuzgaya dated November 16, 2018 Respondent’s submissions at Tab 18.
13. 13MRI dated July 16, 2017 Respondent’s Written Submissions Tab 10.
14. 14S. 44 Insurer Examination of Dr. Fabio Salerno, psychologist, dated October 12, 2017 Respondent’s submissions at Tab 19.