Tribunal File Number: 17-001238/AABS
Case Name: 17-001238 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
R. B.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Billeh Hamud
For the Applicant: David Carranza, paralegal
For the Respondent: Shaya Motamed, counsel
Heard in writing: June 28, 2017
BACKGROUND:
The applicant was injured in an automobile accident on August 14, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
The respondent denied four treatment plans for various medical benefits and an examination.
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
- The issues in dispute identified by the parties in their submissions and to be decided are:
i) Is the applicant entitled to payments for the cost of examinations in the amount of $1,994.72 for orthopaedic assessment, recommended by Healthway Medical Management Inc. in a treatment plan dated November 25, 2015, denied by the respondent on December 18, 2015?
ii) Is the applicant entitled to receive a medical benefit in the amount of $1.296.99 for chiropractic services, recommended by Physio Fix and Fitness in a treatment plan dated November 30, 2015, denied by the respondent on December 18, 2015?
iii) Is the applicant entitled to receive a medical benefit in the amount of $4,617.27 for chiropractic services, recommended by Physio Fix and Fitness in a treatment plan dated January 24, 2016, denied by the respondent on January 29, 2016?
iv) Is the applicant entitled to receive a medical benefit in the amount of $4,268.24 for chiropractic services, recommended by Physio Fix and Fitness in a treatment plan dated March 27, 2016, denied by the respondent on April 5, 2016?
v) Is the respondent liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT:
I find on all of the evidence that the applicant is not entitled to payment for the cost of an examination for an orthopedic assessment.
In addition, I find that the treatment and assessment plans dated November 30, 2015 and January 24, 2015 are reasonable and necessary.
I find that the treatment and assessment plan dated March 27, 2016 is not reasonable and necessary.
I find the respondent is not liable to pay an award under s.10 of Regulation 664 because it did not unreasonably withhold payment of any benefit.
The applicant is also entitled to interest in accordance with the Schedule.
ANALYSIS:
Cost of Examinations: Orthopaedic Assessment
On November 25, 2015, Dr. Frederic Langer, the applicant’s Orthopaedic Surgeon, completed the OCF-18 and stated that the applicant suffered from the following injuries: sprain and strain of cervical spine, sprain and strain of lumbar spine, contusion of elbow, reaction to severe stress, and adjustment disorders and reaction to severe stress, unspecified. Dr. Langer recommended an orthopaedic assessment based on the reported injuries of the applicant which suggested musculoskeletal/ligamentous injuries. Dr. Langer noted that the orthopaedic assessment sought to clarify the diagnosis and advise appropriate treatment.
On December 18, 2015, the respondent denied Dr. Langer’s treatment and assessment plan and stated that they were unable to determine whether the recommendations were reasonably required based on the injuries sustained in the accident. The respondent also noted that the type of treatment did not appear consistent with the patient’s diagnosis and that treatment appeared to focus on passive care without an active rehabilitation phase. The respondent also provided notice to the applicant for a s.44 examination. In their submissions, the respondent concedes that the denial of Dr. Langer’s OCF-18 was made in error because it made reference to chiropractic and massage therapy rather than his recommended orthopaedic assessment.
Nevertheless, it is the applicant who bears the onus of providing sufficient evidence to prove on a balance of probabilities that the given treatment and assessment plan is reasonable and necessary.
I find the applicant is not entitled to the cost of an orthopaedic assessment for the following reasons.
The applicant has failed to provide sufficient evidence to demonstrate that an orthopaedic assessment is reasonable and necessary based on the applicant’s injuries. In fact, Dr. Langer does not refer to any objective medical findings to support the conclusion that an orthopaedic assessment is reasonable and necessary. Specifically, it appears that Dr. Langer’s recommendation for an orthopaedic assessment is based entirely on the applicant’s self-reported injuries as noted in the OCF-18. Furthermore, Dr. Geraldine Cruz, the applicant’s family physician, examined the applicant on August 19, 2015, four days after the accident, and stated that the applicant’s x-rays were normal and that there was a good range of motion of the cervical spine, shoulders and elbows.
In addition, the respondent’s s.44 orthopaedic assessment conducted by Dr. Maistrelli, Orthopaedic Surgeon, also confirmed that there were no physical structural abnormalities which would indicate that the applicant had any orthopaedic or physical impairment from the accident. Instead, Dr. Maistrelli noted that the applicant sustained soft tissue injuries to her right elbow, as well as the neck and the trapezius and back regions.
The applicant’s submissions did not point to any objective medical evidence to support Dr. Langer’s recommendation that an orthopaedic assessment was reasonable and necessary. As a result, I rely on Dr. Maistrelli’s findings since it was supported by objective medical evidence and consistent with Dr. Cruz’s medical evidence.
As a result, I am not convinced that Dr. Langer’s recommendation for an orthopaedic assessment is reasonable and necessary based on the applicant’s injuries.
Medical Benefit: Chiropractic Services
I find the applicant is entitled to a medical benefit for two out of the three treatment plans for chiropractic services for the following reasons.
Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
(i) Treatment plan dated November 30, 2015
I find that the applicant is entitled to this medical benefit.
On November 30, 2015, Dr. Jade Egonia, the applicant’s Chiropractor, recommended multiple sessions of massage therapy and rehabilitation.
On December 18, 2015, the respondent denied the treatment plan and provided the following medical reason: “The type(s) of treatment does not appear consistent with the patient’s diagnosis. Treatment appears to focus on passive care without an active rehabilitation phase”.
I find the recommended treatment by Dr. Jade Egonia for “comprehensive rehabilitation session”, which included exercise, IFC, Ultrasound, TENS, Electrotherapy, manipulation of spine, mobilization, heat/ice pack, education, manual therapy and massage therapy, to be consistent with applicant’s injuries. As noted in the OCF-18, the goal of the treatment was to reduce pain, increase strength and range of motion. Dr. Egonia also noted that the applicant reported “moderate improvement since the initial treatment”.
The respondent submits that the treatment is not reasonable or necessary. Specifically, the respondent relies on Dr. Maistreli’s s. 44 examination report which claims that the OCF-18 in dispute recommended passive modalities and that it would have no rehabilitative benefit and would only reinforce pain- focused behaviours.
I disagree with the respondent that Dr. Egonia’s treatment plan only recommended “passive modalities”. The OCF-18 clearly outlines a combination of active modalities, including exercise, and passive modalities. Specifically, I disagree with Dr. Maistrelli’s claim in his report that “ongoing physiotherapy or other treatments do not produce a better result than a self-directed exercise program to include strengthening and stretching”, since Dr. Egonia did indeed recommend an exercise program in the OCF-18. In fact, Dr. Egonia’s progress report dated January 24, 2016, explicitly states that the applicant was receiving passive modalities “to complement her active stretching and strengthening program” (emphasis added). Furthermore, Dr. Cruz’s medical records dated August 19, 2015 also recommended physiotherapy as a treatment. Accordingly, I find the applicant’s treatment plan to be reasonable and necessary.
I also find that the treatment’s goal of pain reduction, increasing strength and increasing range of motion to be reasonable and necessary. Furthermore, the OCF-18 notes that the applicant reported moderate improvement since the last treatment. Accordingly, I am convinced that the treatment plan will achieve that goal and the cost is also reasonable.
(ii) Treatment plan dated January 24, 2016
I find the treatment plan dated January 24, 2016 to be reasonable and necessary.
On January 24, 2016, Dr. Egonia recommended multiple sessions of rehabilitation and massage therapy.
On January 29, 2016, the respondent denied this treatment plan on the basis of Dr. Maistrelli’s s.44 report dated January 21, 2016 in which he opined that the recommended treatment would have no rehabilitative benefit and would further reinforce pain-focused behaviours.
I disagree with the respondent’s reason for denying this treatment plan since it mischaracterizes Dr. Maistrelli’s recommendation. Specifically, Dr. Maistrelli did not review Dr. Egonia’s OCF-18 dated January 24, 2016. In fact, Dr. Egonia’s recent treatment plan includes many of the treatments that were suggested in Dr. Maistrelli’s s.44 examination including “a self-directed exercise program to include strengthening and stretching”. Moreover, Dr. Egonia’s treatment plan includes additional active treatments that were not included in the November 30, 2015 treatment plan such as strengthening and stretching exercises and range of motion exercises.
I also find that the goal of pain reduction, increasing strength and increasing range of motion to be reasonable. Although the respondent is correct that the applicant reported minimal improvement of symptoms since starting the treatment outlined in the OCF-18 dated November 30, 2015, I find that Dr. Egonia’s new treatment plan which includes challenging stability exercises and endurance training to be more consistent with Dr. Maistrelli’s recommendation of strengthening and stretching exercises. Accordingly, I am convinced that the treatment plan will achieve the goals outlined in the OCF-18 and the cost is also reasonable.
(iii) Treatment plan dated March 27, 2016
I find the treatment plan dated March 27, 2016 not to be reasonable and necessary.
On March 27, 2016, Dr. Egonia recommended that the applicant undergo a comprehensive rehabilitation session, IFC, ultrasound, TENS, electrotherapy, strengthening and stretching exercises, exercise, manipulation of spine, mobilization, range of motion exercises, heat/ice pack, massage therapy and laser therapy. This is essentially the same treatment plan which was recommended by Dr. Egonia on January 24, 2016.
On May 18, 2016, the respondent denied this treatment plan and relied on Dr. Henderson’s s.44 report dated May 16, 2016 stating that the recommended treatment was not reasonable and necessary.
Dr. Egonia’s progress report claims that the applicant reported “moderate improvement in symptoms since starting treatment”. However, Dr. Egonia’s progress report dated January 25, 2016 noted “upper and low back pain has become intermittent with an intensity rating of 8/10 at its worse” compared to a rating of 7/10 in her March 21, 2016 progress report. I do not find this minimal decrease in reported pain to be significant. I agree with Dr. Henderson that there does not appear to be any “substantive benefit” in this treatment to the applicant.
Furthermore, Dr. Egonia reports that the applicant’s barriers to recovery include a previous coccygeal fracture from a slip and fall incident and possible psychological yellow flags. Dr. Egonia states that all of these factors may have delayed the healing process and are significant enough to conclude that the applicant’s impairments do not fall under the Minor Injury Guideline. However, even if the applicant’s injuries do not fall under the Minor Injury Guideline, this treatment plan does not address the other barriers to recovery identified by Dr. Egonia, including the applicant’s psychological issues.
Accordingly, I find the proposed treatment plan is not reasonable and necessary.
Award
The applicant seeks an award under s. 10 of Regulation 664 (Reg. 664: Automobile Insurance) under the Insurance Act, R.S.O 1990, c I.8, because the respondent unreasonably withheld or delayed payments.
Section 10 of Reg. 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.
The applicant did not point to any evidence in their submissions to support this claim for an award. Instead, the Applicant simply states that they are entitled to reimbursement for legal expenses. However, legal expenses are not a basis for an award.
Therefore, I do not find that the respondent unreasonably withheld or delayed payment of any benefits.
Interest
- I find that the applicant is entitled to interest in accordance with the Schedule for the approved chiropractic treatment plans.
ORDER:
I order the following:
i. The respondent is ordered to approve the treatment plans dated November 30, 2015 and January 24, 2016.
ii. The respondent is ordered to pay interest in accordance with the Schedule.
Released: November 2, 2017
Billeh Hamud, Adjudicator