17-000760 v Avivia Insurance, 2017 CanLII 76916

Date: 2017-10-26

Tribunal File Number: 17-000760/AABS

Case Name: 17-000760 v Avivia Insurance

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:

Applicant

Applicant

and

Avivia Insurance

Respondent

HEARING DECISION

Adjudicator: Ian Maedel

Appearances:

For the Applicant: Andrej Rondas, Paralegal

For the Respondent: Marianne D. Davies, Counsel

Heard in writing on: June 8, 2017

OVERVIEW:

1This is a hearing based on an application for appeal of accident benefits brought by the applicant to the Licence Appeal Tribunal – Automobiles Accident Benefits Service (hereinafter “LAT”). The applicant is seeking payment of several treatment plans denied by the respondent.

2On June 4, 2015, the applicant was injured in a motor vehicle accident when she was struck from behind by another vehicle. She sustained a number of injuries including whiplash associated disorder (WAD2), neck pain, lower back pain, shoulder pain, hip pain and anxiety.

3The applicant applied to the LAT on February 10, 2017 following the denials of treatment plans submitted to the respondent for a chronic pain assessment, an attendant care assessment, chiropractic, massage, and physiotherapy services. The respondent denied these treatment plans as they were deemed not reasonable and necessary pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

ISSUES TO BE DECIDED:

4The following are the issues to be decided:

a. Is the Applicant entitled to receive a cost of examination in the amount of $1,645.00 for an attendant care needs assessment, recommended by Midland Wellness Centre in a treatment plan dated October 4, 2016, denied by the Respondent on December 15, 2016?

b. Is the Applicant entitled to receive a medical benefit in the amount of $1,618.95 for chiropractic and massage services, recommended by Midland Wellness Centre in a treatment plan dated October 4, 2016, denied by the Respondent on December 15, 2016?

c. Is the Applicant entitled to receive a medical benefit in the amount of $2,348.20 for chiropractic, physiotherapy and massage services, recommended by Midland Wellness Centre in a treatment plan dated March 21, 2016, denied by the Respondent on May 12, 2016?

d. Is the Applicant entitled to receive a cost of examination in the amount of $2,034.08 for a chronic pain assessment, recommended by Midland Wellness Centre in a treatment plan dated March 21, 2016, denied by the Respondent on December 15, 2016?

e. Is the Applicant entitled to receive a medical benefit in the amount of $2,546.55 for chiropractic, physiotherapy and massage services, recommended by Midland Wellness Centre in a treatment plan dated December 2, 2015, denied by the Respondent on January 27, 2016?

f. Is the Applicant entitled to receive a medical benefit in the amount of $990.00 for an invoice from Midland Wellness Centre, denied by the Respondent on June 29, 2015?

RESULT:

5The applicant is not entitled to payment for any of the claimed benefits as they are not reasonable and necessary.

6The applicant’s appeal for benefits is hereby dismissed.

ANALYSIS:

7The test for medical benefits is laid out in the Schedule at section 15, an applicant must establish the treatment plans are reasonable and necessary. Subject to some exceptions that do not apply to this case, the respondent is required to pay for all medical treatment that is reasonable and necessary up to a statutory maximum of $50,000.00 as outlined in section 18 of the Schedule.

8The burden of proof rests on the applicant to establish a right to recover the costs of the benefits claimed as laid out in the Ontario Divisional Court decision of Scarlett v. Belair Insurance.¹ This onus is on the balance of probabilities standard.

9The applicant has provided very little in the way of evidence to support her position. Appended to the written submissions are a total of three documents:

a. Disability Certificate completed by Dipal Modi on June 18, 2015;

b. Report of Jnisha Theiventhrian dated October 26, 2016;

c. Report of Dr. J. Pilowsky dated September 21, 2016.

10The Order of April 18, 2017 issued by LAT Adjudicator Ferguson following the case conference specifically states:

The evidence that the parties wish to rely on for the purposes of the hearing will have to be resubmitted. The documents filed by the parties for the purposes of the case will not be before the Adjudicator hearing this matter.²

11The Disability Certificate (OCF-3) is appended to the applicant’s submissions. This was completed on June 18, 2015 by Dipal Modi, physiotherapist. It indicates that the applicant suffers a complete inability to carry on a normal life and a substantial inability to engage in caregiving activities and housekeeping and home maintenance services. The Disability Certificate (OCF-3) indicates that the duration of the applicant’s disability will be nine to twelve weeks. There is no other documentary evidence provided by Dipal Modi or any other physiotherapist on behalf of the applicant. This lack of documentary evidence is a fundamental flaw in the strength of the applicant’s case. Without such evidence, whether by way of medical opinions or other medical evidence, the applicant has failed to discharge her persuasive burden on a balance of probabilities.

12To avoid confusion, I have opted to examine each issue chronologically and not as presented in the order of the issues in dispute.

Medical Invoice in the Amount of $990.00

13This matter is listed as number six in the issues in dispute. It is a claim for a medical benefit in the amount of $990.00 for an invoice submitted by Midland Wellness Centre. It was denied by the respondent on June 29, 2015. The type of treatment is not specified and a copy of the invoice has not been provided in the materials.

14The applicant provided an invoice from Midland Wellness Centre in the amount of $990.00 which was denied by the respondent in an Explanation of Benefits (EOB) dated June 29, 2015. The respondent indicated that they were unable to provide payment of said invoice, due to provision of extended medical benefits through Manulife, available through her employer.

15The applicant was advised to seek payment through Manulife and resubmit this invoice once payment had been received from the extended medical benefits through Manulife. Only then would the respondent be able to calculate any remaining monies owed.

16The applicant makes no submissions with regard to this issue, addressing it only when listing the issues in dispute for the hearing.

17The respondent indicates that this benefit is not payable pursuant to section 47(2) of the Schedule until it was first submitted to the extended coverage insurer, Manulife. Only after payment was made by the primary insurer, could the respondent calculate any benefits remaining.

18Given the total lack of submissions and evidence with regard to this invoice, the applicant has failed to establish that the treatment plan is reasonable and necessary. Thus, the applicant has failed to meet her onus on a balance of probabilities.

19Given this initial failure I do not deem it necessary to examine the respondent’s arguments pursuant to section 47(2) of the Schedule.

20The claim for payment of the treatment plan (OCF-18) for a medical invoice in the amount of $990.00 is dismissed.

21The applicant provided a treatment plan (OCF-18) dated December 2, 2015 in the amount of $2,546.55 for chiropractic, physiotherapy and massage treatments. The respondent denied this treatment plan following an insurer’s examination by Dr. Fathi Abuzgaya who indicated that the treatment plan was not reasonable and necessary as the applicant’s injuries could be treated within the Minor Injury Guideline cap of $3,500.00.This denial was provided in an Explanation of Benefits (EOB) dated January 27, 2016. This matter is listed as issue number five in the application.

22The applicant has failed to provide any submissions or medical evidence with regard to this specific treatment plan.

23The respondent has submitted the insurer’s report of Dr. Abuzgaya, Orthopaedic Surgeon, dated January 27, 2016.

24Dr. Abuzgaya indicated that the accident-related diagnosis is consistent with cervical sprain, thoracic sprain, soft tissue injury to the left shoulder and soft tissue injury to the left hip.³

25Dr. Abuzgaya noted that the applicant “had functional range of motion of her cervical spine, shoulders, lumbar spine and hips. Overall, there is no objective evidence of any residual impairment attributable to the injuries sustained in the subject accident.”⁴

26Given the lack of evidence provided by the applicant and the evidence provided by the respondent, the applicant has not met the test pursuant to section 15 of the Schedule, this treatment plan is not reasonable and necessary.

27The applicant provided a treatment plan (OCF-18) dated March 21, 2016 in the amount of $2,348.20 for chiropractic, physiotherapy, and massage treatment and in the amount of $2,034.48 for a chronic pain assessment. The respondent denied these treatment plans following an insurer’s examination by Dr. Mark Goldstein who indicated that the treatment plans were not reasonable or necessary as the applicant’s injuries could be treated within the Minor Injury Guideline cap of $3,500.00. This denial was provided in an Explanation of Benefits (EOB) dated May 12, 2016.This matter is listed as issue number three in the application.

28The applicant has failed to provide any submissions or medical evidence with regard to this specific treatment plan.

29The respondent submitted a report by Dr. Mark Goldstein, Physician, dated May 11, 2016. Dr. Goldstein indicated there was “paraspinal tenderness in the neck and back, and the left hip along with pain ranges of motion in various planes. Pain reported with muscular palpitation of the neck, back and left shoulder”.⁵ He too confirmed the diagnosis that there were “various strain/sprain type injuries of the left hip, left upper trapezius, and left lumbar spine as a result of the subject motor vehicle accident”.⁶

30Dr. Goldstein concluded that there was no evidence of any pre-accident or concurrent disease, condition or injury that would preclude the applicant’s recovery. Dr. Goldstein is of the view that the applicant’s injuries can be treated within the MIG limit and that limit is no longer applicable. The applicant failed to adduce any evidence to the contrary, therefore the only evidence I have suggests that the treatment plan is not reasonable and necessary. Thus, the applicant has failed to discharge her evidentiary burden with respect to this treatment plan.⁷

31The applicant has been removed from the MIG due to psychological issues, not due to physical injuries. With no other medical evidence except the opinion of Dr. Goldstein, I accept his observations with regard to this treatment plan. I do not find the treatment plan reasonable or necessary pursuant to section 15 of the Schedule.

32This matter is listed as issue number four in the application. This is a treatment plan (OCF18) dated March 21, 2016 for a chronic pain assessment.

33The applicant has provided the report of Dr. J. Pilowsky, Psychologist, in reference to this treatment plan.

34The applicant has already been removed from the Minor Injury Guideline due to psychological issues, specifically a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood based on the strength of the report provided by Dr. Zakzanis following an insurer’s examination.

35Following her examination, Dr. Pilowsky diagnosed the applicant with Post Traumatic Stress Disorder with panic attacks and phobic symptoms, Major Depressive Disorder and Somatic Symptom Disorder, persistent, moderate with predominant pain.⁸

36Dr. Pilowsky examined the psychological well-being of the applicant at length, over a thirteen page report. The doctor recommends 12 sessions of psychotherapy including the incorporation of pain management tools.

37Dr. Pilowsky did not mention anything with regard to potential chronic pain until the second last paragraph of her extensive report. She indicated:

It is also my professional opinion that treatment at a Chronic Pain Facility is necessary given that [the applicant’s] physical and emotional conditions are ultimately intertwined. Research indicates that without psychotherapy and professional counselling, the psychological impact of chronic pain deepens. In a similar fashion, a person’s ability to cope with pain seems to dwindle as it becomes chronic. In addition to the pain itself, individuals often feel helpless, alone in their suffering, anxious depressed and angry. They also perceive a lack of understanding and support from family, friends and even medical professionals; thus, to be enaged in a Chronic Pain Program helps individuals mitigate their isolation and comprehend their circumstances.⁹

38This paragraph almost appears as an after-thought, following a thorough examination of the applicant’s sadness, hopelessness, feelings of worthlessness, bouts of anger, irritability, social withdrawal, diminished cognitive functioning, changed appetite, fatigue, flashbacks, intrusive thoughts, anxiety, panic attacks and phobic symptoms.¹⁰ While Dr. Pilowski opines that treatment would be helpful, the bulk of the paragraph addresses general conclusions about chronic pain treatment and does not tie those conclusions to the applicant’s condition. Clearly, the applicant has psychological issues that have arisen as a result of the motor vehicle accident. However, what is absent is any objective medical evidence that ties her physical pain to her psychological issues.

39Dr. Mark Goldstein examined this treatment plan as part of his report dated May 11, 2016. He noted that said treatment plan was “not reasonable and necessary for the management of this case”.¹¹ This is the only medical opinion provided by a physician other than a psychologist or neuropsychologist.

40Perhaps most telling is the report generated by Dr. Konstantine Zakzanis, Neuropsychologist, at an insurer’s examination. He provided a sixteen page report following an examination of the applicant.¹² Like Dr. Pilowsky, there was an extensive examination of the applicant’s psychological health and well-being. Conspicuously absent in the report generated by Dr. Zakzanis is any reference to chronic pain or physical pain linked to psychological symptoms.

41Following the examination of these three medical reports, provided by three separate medical professionals, I find that the applicant has failed to provide any evidence or comprehensive medical opinion that establishes a link between psychological and physical symptoms to warrant a chronic pain assessment. The focus must remain on whether the treatment plans are reasonable and necessary.

42The treatment plan (OCF-18) dated March 21, 2016 for a chronic pain assessment is not reasonable and necessary and is hereby dismissed.

43The applicant provided a treatment plan (OCF-18) dated October 4, 2016 in the amount of $1,645.00 for an attendant care benefit assessment and $1,618.95 for chiropractic treatment. These treatment plans were denied following an insurer’s examination by Dr. Mark Goldstein who indicated that said plans were not reasonable and necessary from the injuries sustained in the motor vehicle accident. This denial was provided in an Explanation of Benefits (EOB) dated December 15, 2016. This matter is listed as issue number two in the application.

44The applicant has failed to provide any submissions or medical evidence to support this claim for a medical benefit: specifically stating that “we request that all of the previously denied treatment plans for chiropractic, physiotherapy and massage services are approved by the Respondent since such services clearly are helping the Applicant recover from her injuries”.¹³ Bald, blanket statements such as this do little to assist the applicant in meeting her onus. There are otherwise no references to this treatment plan in the applicant’s submissions.

45This treatment plan was examined by Dr. Mark Goldstein in his report dated November 30, 2016. According to said report, he determined there was no injury or impairment related to the accident that would warrant the proposed facility-based therapy.¹⁴

46Given the lack of medical evidence provided, the applicant has not met her persuasive burden, the treatment plan is not reasonable and necessary pursuant to section 15 of the Schedule. The treatment plan is hereby dismissed.

47This matter is listed as issue number one in the application. This is a treatment plan (OCF-18) dated October 4, 2016 for an attendant care assessment.

48The applicant has provided an Attendant Care Assessment Report prepared by Jnisha Theiventhiran, Registered Nurse, who assessed the applicant on October 26, 2016.

49Following the in-home assessment Ms. Theiventhiran noted that the applicant had severe injuries, primarily to the left side of her body, accompanied by continuous pain and limitations to her range of motion.¹⁵ She also noted continuous stiffness and pressure in her neck aggravated by sudden movements, intermittent sharp pain in her left middle and lower back, grinding and dull pain radiating from her left hip and continuous aching pain and stiffness in her left shoulder.¹⁶

50Ms. Theiventhiran also undertook a number of range of motion physical tests. However, she did not indicate what tests were performed in order to arrive at her findings. As a result of her testing and observations, Ms. Theiventhiran recommended a number of assistive devices for daily living.¹⁷

51Ms. Theiventhiran concluded that the applicant was not able to carry out personal care and housekeeping needs for her daily demands. She recommended housekeeping assistance for twenty five hours per week to support the applicant’s current limitations. She further indicated that a follow-up assessment was recommended to monitor the applicant’s progress within six weeks.¹⁸

52The respondent has provided two reports completed by Dr. Mark Goldstein, Physician, dated May 11, 2016 and November 30, 2016.

53In the May 11, 2016 report, the applicant provided subjective comments regarding upper thoracic spine pain and sacroiliac region pain that had “a 55% level of improvement to date”.¹⁹ The applicant indicated she was independent with her self-care and independent with housekeeping, indicating that her husband and mother-in-law would assist on occasion.²⁰ The applicant also indicated that she had returned to work at 37.5 hours a week on modified duties.²¹

54A physical examination including the use of several objective testing techniques noted some pain in the upper trapezius and tenderness in the shoulders but shoulder range of motion was full on all planes and considered normal and pain free. Lumbar spine was unremarkable and range of motion was full and pain free in all planes of the hips, knees and ankles. Although some tenderness was noted over the left quadriceps.²²

55In his November 30, 2016 report, Dr. Goldstein examined the applicant once more. The applicant subjectively reported that the pain in her upper back had improved by “35% in this region.” Dr. Goldstein concluded that cervical and lumbar strain and lumbosacral sprain/strain had resolved. He further concluded that there did not appear to be any ongoing accident-related injury or impairment and the injuries appear minor in nature.²³

56Dr. Goldstein noted that there did not appear to be any ongoing accident-related injury or impairment that would warrant an attendant care assessment of the treatment plan (OCF-18) in dispute.²⁴

57I am now required to weigh the strength of the reports submitted with regard to said treatment plan.

58The Attendant Care Assessment report is thorough, but I have some question as to the objective methods in which the physical testing was undertaken. There is no note of what type or method of testing was used to determine range of motion abilities. I have similar concerns with the method of testing for the attendant care portion of the report. I am left with some doubt as to what constitutes a difference between partial, moderate, and extreme difficulty in tasks performed.

59Although the May 11, 2016 report provided by Dr. Goldstein was not specifically prepared to address the attendant care issue, it does reveal the clinical condition of the applicant at the time the insurer’s examination was performed.

60Dr. Goldstein, in both of his reports, cites specific objective tests used by clinicians to assess patients. These include references to Kemp’s test, Jackson’s Test, Spurling’s Test, the Hawkins-Kennedy test, drop arm test, Jobe relocation test, Speed’s test, O’Brien’s test, FABER test and Scour test.²⁵

61The timeline is also a determinative issue. Dr. Goldstein conducted assessments on the applicant twice, approximately six and half months apart. He was able to note the change in the applicant’s condition during that period and compare his assessment results.

62Ms. Theiventhiran examined the applicant on one occasion on October 26, 2016, opining that the applicant was not able to carry out personal and housekeeping needs. She noted that a follow-up would be required within six weeks. No evidence has been proffered to indicate a follow-up assessment was conducted.

63Dr. Goldstein’s second examination of the applicant was on November 16, 2016, some twenty-one days later. He noted that the lumbar strain and lumbosacral sprain had resolved and the physical injuries were minor.

64The disparity in condition over a period of twenty-one days as assessed by Ms. Theiventhiran and Dr. Goldstein is somewhat troubling and lends further doubt to the methodology and conclusions provided by Ms.Theiventhiran.

65Given the disparity, I find the evidence in the assessments of Dr. Goldstein more persuasive. I have more confidence in the clinical methods utilized by Dr. Goldstein and his ability to view the changes in the applicant’s condition over a six month period. Thus, I adopt his conclusion that the there is no accident-related injury or impairment that would warrant an attendant care assessment.

66For these reasons, I conclude that the attendant care assessment is not reasonable or necessary. The treatment plan (OCF-18) dated October 4, 2016 is hereby dismissed.

CONCLUSION

67For the reasons outlined above, I find that:

i. The applicant is not entitled to payment for any of the benefits claimed.

ii. The applicant’s appeal for benefits is hereby dismissed.

Footnotes

1. 1Scarlett v. Belaire Insurance, 2015 ONSC 3635 at para. 20.
2. 2AABS Order April 18, 2017 at page 3.
3. 3Report of Dr. Fathi Abuzgaya, January 27, 2016 at page 9.
4. 4Report of Dr. Fathi Abuzgaya, January 27, 2016 at page 10.
5. 5Report of Dr. Mark Goldstein, May 11, 2016 at page 12.
6. 6Report of Dr. Mark Goldstein, May 11, 2016 at page 13.
7. 7Report of Dr. Mark Goldstein, May 11, 2016 at page 13.
8. 8Report of Dr. J. Pilowsky, September 21, 2016 at page 10.
9. 9Report of Dr. J. Pilowsky, September 21, 2016 at page 13.
10. 10Report of Dr. J. Pilowsky, September 21, 2016 at pages 7-9.
11. 11Report of Dr. Mark Goldstein, May 11, 2016 at page 14.
12. 12Report of Dr. Konstantine Zakzanis, July 19, 2016.
13. 13Submissions of the Applicant, page 10, para. 41.
14. 14Report of Dr. Mark Goldstein, November 30, 2016 at page 12.
15. 15Report of Jnisha Theiventhiran, October 26, 2016 at page 4.
16. 16Report of Jnisha Theiventhiran, October 26, 2016 at pages 4-6.
17. 17Report of Jnisha Theiventhiran, October 26, 2016 at page 12.
18. 18Report of Jnisha Theiventhiran, October 26, 2016 at pages 12-13.
19. 19Report of Dr. Mark Goldstein, May 11, 2016 at pages 4-5.
20. 20Report of Dr. Mark Goldstein, May 11, 2016 at page 7.
21. 21Report of Dr. Mark Goldstein, May 11, 2016 at page 7.
22. 22Report of Dr. Mark Goldstein, May 11, 2016 at pages 9-10.
23. 23Report of Dr. Mark Goldstein, May 11, 2016 at page 12.
24. 24Report of Dr. Mark Goldstein, May 11, 2016 at page 12.
25. 25Report of Dr. Mark Goldstein, November 30, 2016 at pages 10-11.