Tribunal File Number: 16-003997/AABS
Case Name: 16-003997 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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Cezary Paluch, Member
APPEARANCES:
For the Applicant: Daniel J. Holland, Counsel
For the Respondent: Michael J.L. White, Counsel
Written Hearing: August 2, 2017
OVERVIEW:
The applicant, [the applicant], was injured in an automotive accident on March 28, 2014 and sought benefits from the respondent, Aviva General Insurance (“Aviva”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
The parties were unable to resolve their dispute at a case conference held on February 14, 2017, and the matter proceeded to a hearing consisting of an in-person portion scheduled for August 2, 2017 to allow the applicant to testify with respect to her claim for non-earner benefits, and an in writing component regarding her claim for medical benefits.
On July 27, 2017, the applicant advised the Tribunal that she wished to withdraw her claim for non-earner benefits for the period of January 16, 2015 to date and ongoing. Consequently, that issue is no longer in dispute, and the hearing proceeded in writing on the remaining issues.
BENEFITS IN DISPUTE:
- The benefits in dispute are:
i. Is the applicant entitled to a medical benefit in the amount $3,080.96 for physical rehabilitation services from Wai-Ling Cheng, the Rehab Centre, as submitted on September 24, 20141 and denied on December 31, 2014?
ii. Is the applicant entitled to a medical benefit in the amount $1,100.00 for acupuncture services by the Rehab Centre, as submitted on September 1, 2015 and denied on October 26, 2015?
iii. Is the applicant entitled to interest on the overdue payment of benefits?
iv. Is the respondent entitled to costs?
RESULT:
- Based on the totality of evidence before me, I find that:
i. The applicant is entitled to payment for the physical rehabilitation services and acupuncture services because she has sufficiently proven that they are reasonable and necessary expenses.
ii. The applicant is entitled to interest on the overdue payment of benefits.
iii. The respondent is not entitled to costs.
LAW:
- Sections 14 and 15 of the Schedule requires the respondent to pay for medical benefits to or on behalf of the applicant so long as:
i. The applicant sustains an impairment as a result of the accident; and
ii. The medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
ISSUES TO BE DETERMINED:
The first issue to be determined is whether the applicant’s injuries resulted from the accident?
If the answer to issue one is yes, then I must determine if each treatment plan is reasonable and necessary?
EVIDENCE AND ANALYSIS:
Issues 1: Are the applicant’s injuries a result of the accident?
The applicant’s vehicle was rear ended by another car causing her head to strike the steering wheel. Her son was also present in the vehicle. The applicant was transported via ambulance to the hospital. She was discharged the same day. The following day she felt dizziness and called an ambulance which took her to the hospital again. She remained in hospital for over 24 hours.
The applicant submits that she sustained neck, head, back, shoulders and right leg injuries as a result of the accident. The applicant also submits that her depression has been exacerbated through the pain she suffered as a result of the subject accident.
The respondent in its Written Submissions under the heading “Part 3(a) Medical and Rehabilitation Benefits” has not addressed whether applicant’s injuries resulted from the accident and essentially focused their entire argument on the reasonable and necessity component of the test.
I am satisfied that the applicant’s neck, shoulders, back and head injuries are a result of the accident. In addition, I find that these injuries caused her psychological distress. The impairment is different than the applicant felt on her neck and back before the accident from an earlier January 30, 2011 car accident.
The applicant’s post-accident clinical records of her family doctor, Dr. W.F. Simmonds dated April 1, 2014 (4 days after the accident) indicate that the day after the accident she had neck pain, back pain, nausea and had to return to emergency again. She returned to Dr. Simmonds on April 22 and complained of dizziness with nausea including back pain and joint stiffness. He increased her medication for pain, sleep issues, anxiety and depression. On September 22, 2014, she again complained of dizziness, nausea, neck pain with stiffness and mood change. Dr. Simmonds clinical notes document the exacerbation of the applicant’s symptoms and persistent pain since the accident.
Dr. Simmonds referred the applicant to Dr. A. Kachooie, a physiatrist to assess her symptoms of persistent pain. A report, dated June 2, 2014, noted that the applicant’s “lumbar spine examination was associated with marked stiffness and pain performing range of motions…there was tenderness at the SI joints.” Dr. Kachooie concluded that her symptoms and findings were consistent with: 1. Residual whiplash; 2. Greater occipital neuralgia headaches; 3. SI joint disorder; 4. Lower back pain; 5. Sub talar joint osteoarthritis; 6. Secondary sleep difficulties, depression. Dr. Kachooie recommended active rehabilitation including physiotherapy in conjunction with pain management for acute pain.
The applicant underwent a psychological assessment on December 3, 2014 with Dr. K. Zakzanis. Dr. Zakzanis noted that that “…it is most certainly reasonable to conclude that the accident of March 28, 2014, is a source of considerable psychological distress for Ms. Khan, and as such, it is possible that she is experiencing psychological impairment secondary to the subject motor vehicle accident…”
Based on the medical evidence, I am satisfied that the applicant’s physical impairments are a result of the accident and caused her pain and psychological distress.
Having found the injuries resulted from the accident, the next step in the analysis is to determine whether the treatment plans are reasonable and necessary.
Issues 2 & 3: Are the treatment plans of September 18, 2014 for physical rehabilitation services and September 1, 2015 for acupuncture reasonable and necessary?
The applicant seeks payment for medical benefits for physical rehabilitation services and for acupuncture recommended by the Rehab Centre.
The respondent also submits that medical benefits are not a reasonable and necessary expense incurred by the applicant as a result of the accident because the applicant has failed to provide any evidence that the treatment plans will provide any benefit. The respondent submits that the applicant has not submitted any proof that she has incurred any of the treatment plans in dispute. Having not met the definition of incurred, even if the treatment plans are reasonable and necessary, they are not payable because they have not been incurred.
Taking the medical evidence as a whole, I find that there is sufficient evidence to conclude that the two treatment plans are reasonable and necessary.
a) The first Treatment Plan for Rehabilitation Services
- On September 24, 2015, Wai-Ling (Janet) Cheng, of the Rehab Centre, submitted a Treatment Plan to Aviva requesting the following services:
Physical Rehabilitation (16): $1,580.96
Acupuncture (8): $600.00
Documentation: $200.00
Orthopaedic Devices: $300.00
Orthopaedic Devices: $400.00
- In Part 8 and Additional Comments section of the Treatment Plan, the health practitioner provided the following explanation regarding how the 16 sessions of rehabilitation would help the applicant’s ability to function:
The patient’s post-accident persistent pain and prolonged symptoms have affected activities of daily living and functional abilities.
In Part 9 of the Treatment Plan, the health practitioner identified pain reduction, increase in strength and range of motion as the goals of the proposed treatment.
Aviva commissioned an insurer’s Medical Physician Assessment in relation to this treatment plan. Dr. M. Goldstein provided a report dated November 11, 2014 and concluded that from a physical perspective, “the applicant sustained myofascial strain/sprain injuries and her injuries can be treated within the minor injury guideline and the treatment plan of September 18, 2015 would not be considered medically necessary or reasonable”. Aviva denied payment based on Dr. Goldstein’s report.
I place limited weight on Dr. Goldstein’s report for the following reasons. First, Dr. Goldstein states that the recommendations in the report are based on a review of medical documentation but does not specifically set out what medical documents he reviewed (aside from the OCF forms listed on Appendix A) including any test or imaging results.
Second, he concludes that the applicant did not have any pre-existing chronic or episodic pain prior to the index accident, but the overwhelming medical evidence, including evidence from the applicant’s long time family doctor clearly established (or should have established if it was available) that she had a history of depression following the death of her son in 1996 and chronic pain following the earlier accident in January 2011.
Third, Dr. Goldstein, on page 8 of his report, does not directly answer the central question whether the applicant sustained an impairment as a direct results of the accident. He merely describes the symptomology and what the applicant reported but does not arrive at a conclusion to this question.
Finally, Dr. Goldstein seems to misquote the appropriate test when he concludes that the treatment plans dated September 18 and 25 “would not be considered medically necessary or reasonable.” Sections 15 of the Schedule requires the respondent to pay for medical benefits so long as the medical benefit is reasonable and necessary. In other words, the treatment has to be both, reasonable and necessary, and not either necessary or reasonable as Dr. Goldstein states in his report.
b) The second Treatment Plan for acupuncture
- On September 1, 2015, Moazami Mohsen, of the Rehab Centre, submitted a Treatment Plan to Aviva requesting the following services:
Acupuncture, multiple body sites (12): $900.00
Documentation: $200.00
- In Part 8 and Additional Comments of the Treatment Plan, the health practitioner provided the following similar explanation for how the acupuncture would help the applicant’s ability to function:
The patient’s post-accident persistent pain and prolonged symptoms have affected activities of daily living and functional abilities.
Contemporary medical acupuncture is a tool we have successfully used to treat patient’s pain and pain symptoms. Acupuncture works on the nervous system to decrease sensitivity to pain and improves blood circulation and allows hypertonic musculature to relax which can be a source of pain.
In Part 9 of the Treatment Plan, the health practitioner identified pain reduction, increase in strength and range of motion as the goals of the proposed treatment.
Aviva commissioned an insurer’s medical evaluation in relation to this treatment plan. Dr. Fathi Abuzgaya, orthopaedic surgeon, conducted an Orthopaedic Surgeon Assessment and provided a report dated October 22, 2015. Dr. Abuzgaya concluded that the applicant’s accident-related diagnosis is consistent with cervical sprain, lumbar sprain and soft tissue injury to shoulders, right foot and right ankle and her injuries can be treated within the minor cap of $3,500. The practitioner concluded that the treatment plan dated September 1, 2015 in the amount of $1,100.00 is not reasonable or necessary. Aviva denied payment based on Dr. Abuzgaya’s report.
I have placed limited weight on Dr. Abuzgaya’s report for the following reasons. First, on page 6, Dr. Abuzgaya, states that “all documents provided were reviewed” but only itemizes the Treatment and Assessment Plan dated September 1, 2015 and Dr. Goldstein’s report of November 11, 2014 (who Dr. Abuzgaya inadvertently refers to as “Dr. Gold Markstein”). Although the attached Appendix A does list additional documents most of which are OCF forms and IE reports. It appears that these two documents and the OCF forms and insurer reports were the only documents that he reviewed to conduct his assessment and he did not review any of the applicant’s medical records from her family doctor or imaging results or records related to her prior car accident from 2011 to get a complete and thorough understanding of the applicant’s present condition. This is also not consistent with what Dr. Abuzgaya wrote in his introduction to the report that the entire process included a “medical record review.”
Second, Dr. Abuzgaya opines that the applicant had signs of symptom magnification based on tenderness to light touch, jump sign positive and hands by the side test. Also, that causal observation showed much better range of motion than elicited on the physical examination. However, Dr. Abuzgya is not very specific about the reliability of these tests, how these tests were administered and what the specific results of the tests were.
Third, Dr. Abuzgaya concludes that there was no objective evidence of any musculoskeletal impairment but it appears that the doctor did not review any x-rays, MRI or imaging type results to come to this conclusion.
Finally, Dr. Abuzgaya concludes that the applicant’s injuries can be treated with the minor injury guideline but does not explain why the proposed treatment plan is not reasonable and necessary. It seems to me that he concludes that the plan is reasonable and necessary as long as it can be treated within the cap of $3,500.00.
Analysis
The applicant bears the onus of proving her entitlement to a specific benefit that she is claiming on a balance of probabilities.
I accept the affidavit evidence of the applicant that that the variety of treatments including acupuncture, pain management, exercise and management have helped her with respect to her ongoing recovery and that her physical issues “were somewhat improved through the efforts of the Rehab Centre.” However, notwithstanding that she may have found the treatments helpful the proposed treatment must still be “reasonable and necessary.”
In her medical evidence, the applicant does provide sufficient detail explaining why the specific treatment requested is reasonable and necessary for her specific impairment. For example, both Treatment Plans themselves shed light on the services sought. First, the Treatment Plan dated September 18, 2014, identifies the goals of pain reduction, increase strength and range of motion. Similarly, under the Additional Comments section the Plan explains that treatment will focus on restoring function and optimizing their range of motion, muscular endurance, core muscle strength, overall strength and proprioception within the capability of the injured patient.
Dr. Kachooie in the report dated June 2, 2014, recommended active rehabilitation including physiotherapy active exercises in conjunction with interventional pain management for acute pain.
I find that the applicant’s statement that treatment is helping her recover is consistent with the above goals set out in the Treatment Plans.
At paragraph 4 of her Affidavit, she states: “my physical condition was exacerbated through the subject motor vehicle accident which has led to an exacerbation of my chronic pain and psychological overlay.” For this reason the applicant was also referred to the Allevio Pain Management Clinic for intravenous pain injection due to medically resistant neuropathic pain. The records of the pain management clinic describe in detail that the infusions are providing significant improvement of pain and that the applicant felt happy with the treatment. There is also a psychological component to her pain as well. Dr. Zakzanis’s report noted that another psychotropic medication for depression was added post-accident. She is experiencing sleep issues.
As such, I am satisfied that the proposed treatment plans would in fact alleviate the applicant’s pain, increase strength and range of motion or her depression.
Therefore, for the above reasons, I have found the two treatment plans in dispute of September 24, 2015 and September 1, 2015 are reasonable or necessary.
As a related issue, the respondent argues that even if the treatment plans are found to be reasonable and necessary, they are still not payable because they have not been incurred by the applicant
While I am mindful that it is the applicant’s onus to prove his case, I am not persuaded by the respondent’s suggestion that the Treatment Plan has not been incurred. The evidence before me, specifically paragraph 7 of the applicant’s Affidavit, is that $2,342.18 remains outstanding to the Rehab Centre. Moreover, the Standard Benefit statement dated May 28, 2017, shows the applicant’s medical benefits available at $50,000 - $3,395.00 = $46,605.00. In any event, I find the expense deemed incurred pursuant to section 3(8) of the Schedule.
Issue 4: Interest
- Given my decision in finding that there are benefits owing, the applicant’s request for interest is allowed.
Issue 5: Costs
The respondent’s request for costs is denied. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure costs are an exceptional remedy. I find the respondent has not provided sufficient evidence to show that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding.
The claim for costs is dismissed.
CONCLUSION and ORDER
- For the reasons outlined above, I order that the applicant is entitled to payment for the following treatment plans for medical benefits recommended by the Rehab Centre:
$3,080.96 for physical rehabilitation services denied on December 31, 2014.
$1,100.00 for acupuncture services denied on October 26, 2015.
Released: December 20, 2017
___________________________
Cezary Paluch, Adjudicator