17-000612 v Aviva Insurance, 2017 CanLII 81576

Date: 2017-11-21

Tribunal File Number: 17-000612/AABS

Case Name: 17-000612 v Aviva 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

Aviva Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the applicant: Oleh Vereshchak, Counsel

For the respondent: Nabila Majidzadeh, Counsel

HEARD: Written Hearing: August 24, 2017

Overview

1The applicant [the applicant] was a seat-belted passenger when the car was T-boned on December 6, 2007. At the time of the accident, [the applicant] was employed full-time as a financial planner. She returned to work about two months after the accident. Two years post-accident, she went on disability and has not returned to work to date.

2As a result of her injuries, [the applicant] sought and received some insurance benefits from Aviva Insurance Company of Canada under the Statutory Accident Benefits Schedule – Effective on or after November 1, 1996 (the “Schedule”). Aviva, however, denied [the applicant] funding for physical therapy. [The applicant] appeals to the Licence Appeal Tribunal for the payment of that benefit.

3The issue in this hearing is whether the treatment sought is reasonable and necessary. The onus is on [the applicant] to prove that it is more likely than not that the requested treatment is reasonable and necessary.

Issue:

4I must determine the following issue:

i. Is [the applicant] entitled to receive a medical benefit in the amount of $4,344.40 for physical therapy, recommended by The Rehab Centre in a treatment plan dated November 14, 2014?

Result:

5Based on a review of the evidence presented, I find that the proposed treatment plan is not reasonable and necessary, and as such, [the applicant] is not entitled to this treatment plan.

Background:

6In her submissions, [the applicant] states that she suffered numerous injuries as a direct result of the accident, including a compound fracture of the L2 vertebrae and fractures of the pubic rami.¹

7[The applicant] seeks payment for physical therapy treatment recommended by The Rehab Centre on November 14, 2014 (“the treatment plan”), approximately 7 years post-accident. From the medical evidence before me in this case, the primary goal of the disputed treatment plan is pain relief and management and maintaining current level of functioning.

8On May 3, 2016, the Respondent denied the treatment plan, based on a January 29, 2015 insurer examination report authored by Dr. Lyndon Mascarenhass, general physician.

Law and Analysis:

Law

9Section 15 of the Schedule provides that the insurer shall pay for medical benefits to or on behalf of an applicant so long as the medical benefit is “a reasonable and necessary expense” incurred by [the applicant] “as a result of the accident.”

Applicant’s Position

10Dr. Alireza Kachooie, a physiatrist at The Rehab Centre, completed the treatment plan. Dr. Kachooie notes that [the applicant] sustained the following injuries as a direct result of the accident: nerve root and plexus disorders, sacroiliitis, other cervical disc generation, radiculopathy, lumbosacral region, low back pain and other chronic pain. The goals of the treatment are “pain reduction, increase in strength, and increased range of motion.” He also indicates that the treatment seeks to achieve “a return to activities of normal living and a return to pre-accident work activities.”

11[The applicant] submits the relief of pain is a proper goal of treatment, even if the pain relief is not designed to promote recovery or lead to lasting improvement.² I agree that in many situations this may be true. However, the proposed treatment must still be “reasonable and necessary.”

12[The applicant] relied on reports authored by Dr. Shawn Scherer, psychologist, dated December 7, 2011 and Dr. Stephen Roblin, chronic pain specialist, dated April 24, 2012. [The applicant] provides no additional or more recent evidence to support the need for further facility-based physical treatment or an indication on how it will improve her condition. I don’t find these 2011 and 2012 reports to be persuasive and I find that they do not speak to the condition of [the applicant] at the date of the proposed treatment plan of November 14, 2014. Beyond these reports, [the applicant] has not provided any other evidence to support the entitlement to the treatment plan.

13[The applicant] also submits that she continued to see Dr. C.T. Lee, her family physician, for pain complaints. [The applicant] references a comment made by Dr. Lee from a “recent letter” which states, [the applicant] “continues to attend my office on a regular basis for the injuries sustained in the MVA…” However, Dr. Lee’s letter was not submitted by [the applicant] in her materials to the Tribunal, and as such, I am unable to place any weight on any reference to any reports from Dr. Lee.

Respondent’s Position

14The respondent’s position is that the treatment plan is not reasonable and necessary because [the applicant]’s physical injuries are not severe enough to require further treatment.

15Further, the respondent submits, as stated in the explanation of benefits dated February 5, 2015, “the report indicates that you are seven years post-accident you have had the benefit of appropriate facility-based treatment. No further treatments or facility based treatment is required.”

16The respondent relies on Dr. Mascarenhass’s 2015 report, which I find to be more reliable as to [the applicant]’s current physical condition.

17Based on his assessment, Dr. Mascarenhass opined that “[the applicant] had normal cervical curvature; range of motion was satisfactory in all directions. Range of motion of both shoulder girdles was full in all directions. She had normal lumbar posture. Range of motion was satisfactory in all directions. In the supine position, no leg dominant pain was noted during straight leg raising manoeuvres. The gross neurologic examination from a sensory and motor perspective for the upper and lower extremities was symmetrical.”

18Dr. Mascarenhass concluded G.M has already had the benefit of appropriate facility-based treatment and that she does not need any further investigations or facility-based treatment, which would, at best, provide [the applicant] with very limited and temporary relief. Further, Dr. Mascarenhass noted facility-based treatment was not clinically indicated for the injuries she sustained in the accident that occurred over seven years ago.

Is the treatment plan reasonable and necessary?

19I accept that [the applicant] still experiences effects from the accident, however, I must determine if the proposed treatment plan is reasonable and necessary.

20In considering the medical evidence as a whole, I find that there is insufficient evidence to conclude on a balance of probabilities that the proposed treatment plan is necessary. Much of [the applicant]’s evidence is more than two years older than the 2014 treatment plan, which makes it less reliable to support the treatment plan. The evidence also doesn't sufficiently address why the facility based treatment would be necessary seven years after the accident. In this regard, I accept the conclusions of the insurer’s assessments that the treatment plan is not reasonable and necessary as she has received the benefit of facility-based treatment. [The applicant]’s physical ailments have been appropriately treated. I cannot conclude, on a balance of probabilities, that the further supervised physical therapy sessions, as proposed by The Rehab Centre, will produce further recovery.

Conclusion:

21After considering the evidence, pursuant to the authority vested in me under the provisions of the Act, I find that the treatment plan for physical therapy is not reasonable and necessary.

Footnotes

1. 1A more detailed list of [the applicant]’s injuries are: A compression fracture of the L2 vertebral body with anterior wedging of the vertebra and depression of the superior end plate. Additionally, there was approximately 3 mm of dorsal displacement of the upper aspect of the L2 vertebral body causing spinal stenosis. [The applicant] also sustained a comminuted fracture of the inferior pubic ramus on the right side with 1-2 mm of anterior displacement of one of the fracture fragments. There was also a fracture of the right superior ramus that was essentially displaced. Additionally, there was a comminuted fracture noted involving the anterior aspect of the right sacral rami at the S1 level. There was approximately 0.8 cm of distal displacement of one of the fracture fragments into the sacral ala.
2. 2Leclerc v. State Farm Mutual Automobile Insurance Co., [2009] (FSCO Arb. Dec. A08-000745).