Z.A. v. Aviva Insurance Canada, 2017 CanLII 81605

Date: 2017-11-23

Tribunal File Number: 16-001928/AABS

Case Name: 16-001928 v Aviva Insurance Canada

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:

Z. A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

Adjudicator: Sandeep Johal

APPEARANCES:

For the Applicant: Elena Pelz, Counsel

For the Respondent: Andrew Smith, Counsel

Heard in-writing on: March 22, 2017

INTRODUCTION

1The applicant was injured in an automobile accident on May 28, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').

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

3The Tribunal held a case conference on November 30, 2016 and the matter proceeded to a written hearing.

ISSUES

4The parties were unable to resolve the issues in dispute and the Tribunal ordered a written hearing scheduled for March 22, 2017 with the following issues to be determined at the hearing:

i. Did the applicant sustain an impairment within the meaning of the Schedule as a result of the accident?¹

ii. Is the applicant entitled to receive a medical benefit in the amount of $4,447.56 for physiotherapy services, recommended by Physio Fix & Fitness in a treatment plan dated May 26, 2015?

RESULT

5Based on the totality of the evidence before me, I find that the applicant did sustain an impairment as a result of the accident, however the applicant has not established on a balance of probabilities that the treatment plan in dispute is reasonable and necessary.

ANALYSIS

6The applicant has the onus to prove on a balance of probabilities that the treatment plan being requested is reasonable and necessary. I find that she did not meet this onus. The evidence the applicant relies on in support of her position are, her family doctor’s examination of her on April 22, 2015, the recommended treatment plan by her chiropractor Dr. Tran dated April 27, 2015, a pediatric doctor, Dr. Chen’s assessment dated May 11, 2015 and an MRI of her right knee from August 20, 2015.

Applicant’s evidence

7It is for the Tribunal to determine whether a treatment plan is reasonable and necessary based on all the evidence. I find Dr. Getsos’ insurer examination report and clinical findings more persuasive than the evidence the applicant is relying on for the following reasons. The applicant’s own family doctor noted the applicant’s back pain resolved on June 9, 2014. Her MRI was with respect to knee pain that took place, more than a year post accident and there is no recommendation with respect to treatment. The treatment plan in dispute for this hearing is not clear on what is being done to treat her “right chondromalacia patellae” or knee injuries. I am giving little weight to Dr. Chen’s report as discussed below and none of the other medical records the applicant submitted support the need for ongoing physical treatment.

8The applicant’s family doctor, Dr. Goldberg notes that the applicant was involved in an accident on May 28, 2014 where a vehicle ran a stop sign and hit her as a pedestrian. On May 29, 2014 she was noted to be having pain in her right side, along her hip and lower back. The impairment, according to Dr. Goldberg’s notes, was a contusion from the motor vehicle accident. On June 9, 2014 the notes indicate her back pain has resolved but she continued to have right knee pain. On April 22, 2015 he notes she still has right knee pain and it hurts to bend the knee but there was no recommendation with respect to facility based treatment.

9On April 27, 2015 Dr. Tran, a chiropractor, who submitted the treatment and assessment plan in dispute notes the applicant’s injuries and what treatment is proposed but it is not clear to me based on the treatment plan submitted by the applicant whether the treatment is for her knee or her lumbar spine. The treatment plan is for massage, laser therapy, exercise ball, exercise mat, weights and comprehensive rehabilitation sessions including for spinal manipulation. The treatment plan on its own is not enough to prove the proposed treatment is reasonable and necessary and there must be corroborating medical evidence to substantiate whether the treatment is reasonable and necessary. The applicant has not adduced this evidence.

10The applicant submitted a report dated May 11, 2015 by Dr. Chen who is a pediatrician. I am giving little weight to the report prepared by Dr. Chen for three reasons. One, the applicant is not a minor, second, according to the applicant’s Application for Accident Benefits (OCF-1) the applicant is employed at the clinic where Dr. Chen works and third, he recommends daily exercise with pain medication as needed however he has not indicated how it ties in with the proposed treatment plan and whether the proposed treatment plan is reasonable and necessary.

11The MRI from August 20, 2015 of the applicant’s right knee does not support the treatment plan in dispute as being reasonable and necessary as the MRI shows the medial and lateral menisci, cruciates, collaterals and extensor mechanism as being intact. The MRI concludes that the applicant has mild signal change and mild chondrosis but no focal chondral defects. The applicant has not provided evidence or submissions on what exactly does this mean for the applicant and whether these mild changes are accident related. The MRI further does not recommend what, if any, physical therapy is required to alleviate these symptoms.

12The respondent sent the applicant to an insurer examination on October 20, 2016 in order to provide an opinion on whether the treatment and assessment plan in dispute is reasonable and necessary.

Respondent’s evidence

13Dr. Getsos, a qualified chiropractor since 2004 that has been performing insurer chiropractic evaluations since 2007, conducted an insurer examination on behalf of the respondent. Dr. Getsos’ conclusions are that there does not appear to be any “objectively substantiated data or findings supporting any ongoing accident-related injury or impairment that warranted further facility based treatment” and he opines that the treatment and assessment plan from Dr. Tran for $4,447.56 is not reasonable and necessary.

14Dr. Getsos tested the applicant with the Manual Muscle Testing (MMT) technique. He notes the applicant was able to perform a bilateral and single leg squat without any difficulty or pain being reported. Her range of motion in her hips knees and ankles appeared full and considered pain-free in all planes.

15Dr. Getsos also noted that the applicant was able to perform the following physical tolerances: transfer from sitting to standing unassisted, turn around 360 degrees while standing, stand with both eyes closed for ten seconds, looking over each shoulder while standing, standing on her heels for three consecutive seconds, standing on her toes for three consecutive seconds, perform a heel-to-toe walk for three consecutive steps forward and then backwards, perform a partial squat and hold the position for five consecutive seconds and perform a bilateral full squat and hold the position for five consecutive seconds. Her lower extremities were also tested for hip flexion (sitting), knee flexion (bending) and knee extension. She was noted to have been rated as a five, normal full range of motion against gravity and full resistance.

16The main complaint according to the applicant appears to be her knee and not related to sprains and strains of her lumbar spine or sacroiliac joint. The applicant has not provided evidence of physical treatment being required for her knee and I am not able to ascertain what treatment would be done for her knee pain according to the treatment plan in dispute. I do not find the applicant to have satisfied her onus on a balance of probabilities that the treatment plan is reasonable and necessary.

CONCLUSION

17As a result of my findings above, I do not find the treatment plan to be reasonable and necessary and the applicant’s claim for physiotherapy services in the amount of $4,447.56 is denied.

Footnotes

1. 1Despite the order from the case conference listing the issue of whether the applicant sustained an impairment within the meaning of the Schedule as mentioned in 4(i) above, the respondent took no issue with the fact that the applicant has sustained an impairment in their written submissions and I accept that this point is conceded.