Tribunal File Number: 17-007853/AABS
Case Name: 17-007853 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:
S.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Maureen Helt
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD:
Written Hearing: May 28, 2018
OVERVIEW
1S.S. (“the applicant”) was injured in an automobile accident on September 28, 2015 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
2This application is for three treatment plans, set out below, denied on the basis that the insurer examinations found the applicant had reached maximum medical recovery and, further, that there was no objective evidence that the impairments are attributable to the injuries sustained in the accident.
ISSUES
3The issues in dispute are as follows:
(a) Is the applicant entitled to receive a medical benefit in the amount of $1,926.10 for chiropractic and massage treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra, submitted on February 22, 2016 and denied on March 29, 2016?
(b) Is the applicant entitled to receive a medical benefit in the amount of $3,652 for chiropractic and physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra, submitted on February 25, 2016 and denied on April 6, 2016?
(c) Is the applicant entitled to receive a medical benefit in the amount of $2,789 for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra, submitted on June 27, 2016 and denied on October 11, 2016?
(d) Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
4After reviewing the parties’ medical evidence and submissions, I find that the applicant has not established that the disputed treatment plans are reasonable and necessary to address the injuries sustained in the accident.
BACKGROUND
5In this case, the background information concerning the applicant’s medical history is an important factor in determining whether or not the treatment and benefits sought are reasonable and necessary to treat the applicant’s injuries sustained in the accident.
6The clinical notes and records (CNRs) of Dr. Pazuki, the applicant’s family doctor, reveal that the applicant first complained of back pain almost three years prior to the accident. Between 2012 and the date of accident, the CNRs state that the applicant experienced dizziness, disc bulge, and degenerative disc disease for which Dr. Pazuki recommended chiropractic and massage therapy and orthotic stockings.
7The CNRs from January 2013 confirm that the applicant attended fir an MRI of the lumbar spine on January 21, 2013. The MRI revealed degenerative disc disease in the lumbar spine and cysts in both kidneys. More specifically, the MRI found mild bulging at L2-L3 with no spinal canal or neuroforaminal compromise. At L3-L4 there were multiple bulges with additional small focal central disc protrusion. Further disc protrusion was seen at L4-L5. At L5-S1 there was a moderate degenerative change of the facet joints.
8The applicant’s motor vehicle accident occurred on September 28, 2015, two years after the first MRI of his lumbar spine. He was rear-ended by another vehicle. The air bags did not deploy, the police did not attend, and he went a collision reporting centre where the estimated damage to his vehicle was $1500.00.
9After the accident, the applicant first attended at Dr. Pazuki’s office on October 7, 2015 complaining of lower back pain, neck pain, and shoulder pain.
10A treatment plan dated October 9, 2015 and prepared by Dr. Wadehra (chiropractor) was then submitted to the insurer. This treatment plan is not in dispute in this application. Dr. Wadehra diagnosed the applicant as suffering from “radiculopathy; injury of muscle and tendon at neck level; pain and strain of thoracic spine; dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis; tension-type headaches; other anxiety disorders, disorders of imitating and maintaining sleep; and depressive episode.”
11Upon receiving the treatment plan, the applicant was required to attend an insurer examination (IE) with Dr. Abuzgaya (orthoapaedic surgeon) on December 15, 2015. At the time of the assessment, the applicant complained of pain in his neck, shoulders, and mid-lower back.
ANALYSIS
12Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits to or on behalf of an applicant so long as the applicant sustains impairment as a result of the accident and the medical benefit is a reasonable and necessary expense incurred as a result of an accident. The onus is on the applicant to establish a right to such benefits.
13There are three treatment plans in dispute in this application. The parties submitted several medical documents and reports which I have considered in reaching my decision.
14Below, I have set out each of the treatment plans in dispute separately along with the relevant medical evidence to determine whether or not each proposed treatment plan is reasonable and necessary to address injuries sustained as a result of the accident.
Issue 1 – Is the applicant entitled to a medical benefit in the amount of $1,926.10 for chiropractic and massage treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra dated February 17, 2016?
15The proposed treatment plan prepared by Dr. Wadehra is for six weeks of chiropractic and massage therapy, which includes 8 sessions of exercise, multiple body sites; 8 sessions of manipulation, multiple body sites; and 8 sessions of therapy, multiple body sites.
16To support his claim for benefits, the applicant relies on Dr. Pazuki’s CNRs, which clearly confirm a history of degenerative disease dating back to 2013. The applicant also relies on a report of a physiatrist, Dr. Amani. The applicant was referred to Dr. Amani by Dr. Pazuki for neck pain, back pain, knee pain, and tingling in the hands.
17Dr. Amani’s report dated March 24, 2016 notes that the applicant “complains of low back pain after his MVC in September 2015.” The diagnosis of Dr. Amani was as follows:
(1) cervical strain – rule out disc herniation;
(2) lumbosacral strain – rule out disc herniation;
(3) bilateral SI joint strain – rule out sacroilitis; and
(4) bilateral knee strain/synovitis.
18Dr. Amani recommended that the applicant attend physical therapy and gentle massage as needed for his pain. An MRI of the lumbar spine was ordered to rule out disc herniation. The MRI was done in June 2016.
19On March 29, 2016, the insurer denied this treatment plan relying on both an IE conducted by Dr. Abuzgaya on December 15, 2015, and a further paper review report prepared by Dr. Abuzgaya dated March 22, 2016. Dr. Abuzgaya’s conclusion in both reports is that the applicant’s accident-related diagnosis was consistent with cervical sprain, lumbar sprain, and soft tissue injury to the shoulders. He also noted that the applicant had functional range of motion in his cervical spine, shoulders, and lumbar spine, and that overall there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in accident.
20In reviewing the submissions and the medical reports, I find that there is very little to support the applicant’s claim that the proposed treatment is reasonable and necessary to address injuries arising from the motor vehicle accident.
21While it is clear that the applicant has a pre-existing condition of degenerative disc disease, there is nothing on the record to support the claim that his current impairments are as a result of the accident rather than the natural progression of degenerative disc disease. The applicant makes no submissions in this regard.
22Rather, the applicant makes submissions objecting to the reports of Dr. Abuzgaya on two grounds. I will deal with each of these grounds. The first is that Dr. Abuzgaya was not provided with all relevant medical information, specifically Dr. Pazuki’s CNRs which, the applicant submits were produced by the applicant’s former counsel on December 11, 2015.
23In its submissions, the respondent denies this and states that, at the time of the assessment, it had repeatedly requested but had never received Dr. Pazuki’s CNRs from the applicant.
24The respondent further submits that Dr. Abuzgaya’s opinion was based on the history taken from the applicant, physical examination, and review of documentation.
25In reviewing the December 30th, 2015 report of Dr. Abuzgaya, there is no mention of the applicant’s history of back pain or any referral to the CNRs of Dr. Pazuki. Rather, in terms of past medical history, the applicant self-reported that he had work related stress in the past as well as heart issues. The applicant failed to report any history of back pain and degenerative disc disease.
26The question then is had the CNRs been provided to the Dr. Abuzgaya, leaving aside the issue if they were in the insurer’s possession or not, would his opinion have changed. I think not. First, the CNR’s deal largely with other unrelated medical issues. Second, with respect to the complaints noted in the CNRs of back and neck pain, Dr. Abuzgaya performed a thorough examination of the applicant and determined that, based on his finding that the applicant had a functional range of motion of his cervical spine, shoulders and lumbar spine, there was no evidence that any impairments were attributable to injuries from the accident.
27The second objection relates to the credibility and impartiality of the report and all subsequent reports of Dr. Abuzgaya. The applicant submits that the referral letter from the respondent to Dr. Abuzgaya sets out “specific instructions to their independent vendor to deny the OCF-18” dated October 9, 2015 and specified the “exact medical reasons to accompany this denial.”
28The referral letter is found at tab 17 of the applicant’s brief. Under the heading Medical Reasons, there is a notation which states: “Upon review of the minor injury guideline and treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”
29In my view, this is not, as the applicant alleges, instructions to the examiner as to what finding to make. Rather, the language is clear that, in the respondent’s opinion, the applicant suffers from a predominantly minor injury. This in itself does not suggest an actual or perceived bias or lack of impartiality on the part of Dr. Abuzgaya.
30To further support this view, Dr. Abuzgaya’s reports clearly set out that he has over 16 years of experience in the performance of Independent Medical Evaluations, and other assessments. He is also member of the College of Physician and Surgeons and the Ontario Medical Association and, as such, is bound by Rules of Professional Conduct, which would not allow him to be anything but independent in providing such a report.
31Without any other evidence to corroborate the suggestion that calls into question Dr. Abuzgaya’s credibility, I reject this argument.
32In view of the insufficient evidence and submissions indicating why this treatment is reasonable and necessary to address injuries sustained from the accident, I find the applicant is not entitled to the benefit claimed.
Issue 2 – Is the applicant entitled to a benefit in the amount of $3,652 for chiropractic and physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra dated February 25, 2016?
33On March 11, 2016, the applicant submitted a treatment plan dated February 25, 2016 for chiropractic and massage therapy. The respondent denied the plan on the basis that it was the same treatment as proposed in the treatment plan dated February 22, 2016 (noted above and dated only eight days later), which was denied.
34In its submission, the applicant relies on the same objections noted in response to the February 17, 2016 treatment plan and states that the respondent’s denial is unreasonable. As I have already rejected the applicant’s objections above, and there is no other submission or evidence to establish the treatment plan as reasonable and necessary to address the injuries sustained in the accident, I deny this claim for medical benefits.
Issue 3 – Is the applicant entitled to a medical benefit in the amount of $2,789 for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Dr. Nevin Wadehra, dated June 23, 2016?
35On October 11, 2016, the insurer denied the applicant’s request for approval of a treatment and assessment plan in the amount of $2789.00 submitted June 23, 2016 for chiropractic treatment.
36The insurer referred the applicant for an IE with Dr. Ruhr, chiropractor, who performed a chiropractic assessment of the applicant on September 23, 2016.
37In his report dated October 7, 2016, Dr. Ruhr specifically comments on the question of whether the proposed treatment plan is reasonable and necessary. He stated that, in his opinion, the applicant had achieved maximum therapeutic benefit from treatment administered to date as it related to any injuries sustained in the accident.
38Dr. Ruhr reviewed several documents as part of his assessment of the applicant, including the MRI reports of the applicant’s lumbar spine, dated June 14, 2016. The MRI revealed circumferential disc bulge and facet degeneration at L1-L2. At L2-L3 there is circumferential disc bulge and facet degeneration causing mild spinal stenosis; L3-L-4 central disc protrusion; L4-L5, disc bulge and facet degeneration; and L5-S1 circumferential disc bulge and facet degeneration.
39Dr. Ruhr also conducted and in-person examination as part of the assessment. As set out in his report, he performed several range of motion tests for the thoracic-lumbar spine and cervical spine. He found normal passive motion and normal extension.
40Dr. Ruhr found that the orthopaedic evaluation of the cervical spine was normal after performing the following tests: Scalenus Anticus, Spurling’s Kemp Dourbells etc. He also noted motion palpation of the lower cervical spine was within normal limits. He conducted an orthopaedic evaluation of the shoulders and the lumbar spine and muscle testing of the lower and upper limits.
41Overall, Dr. Ruhr concluded that he did not see the need for any further formal (facility based) forms of passive or active therapy, as it related to the injuries sustained from the subject motor vehicle accident, stating that no accident-related impairments or functional limitations remain.
42Instead, Dr. Ruhr recommended a self-directed (at home) exercise program concentrating on core strengthening and stabilizing and general stretching.
43Subsequent to Dr. Ruhr’s examination, and after the insurer denied this treatment plan on October 19, 2016, the applicant was referred by Dr. Amani to Dr. Chan, an orthopaedic surgeon who recommended physiotherapy, exercise, laser treatment and pain control medication.
44On physical examination, Dr. Chan noted that the patient has reasonable flexion/extension of the cervical lumbar spine and normal and full straight leg raising with no muscle power deficit. He also noted that an MRI of the applicant’s cervical and lumbar spine revealed degenerative disc disease with moderate to severe foramina stenosis.
45Dr. Chan concluded that there is no corresponding clinical evidence of radiculopathy and myelopathy. His clinical impression was that the applicant had paraspinal myofascial pain for which he recommended shockwave/laser treatment. He encouraged the applicant to continue physiotherapy and regular walking and swimming.
46Dr. Amani saw the applicant again on March 17, 2017, noting that the applicant complained of increasing low back pain and bilateral leg pain. Dr. Amani diagnosed the applicant as suffering from right L5 radiculopathy, lumbosacral multilevel degenerative changes, and disc bulges and protrusion. She advised the applicant to continue physical therapy, medications, and back support.
47After being provided with this additional medical information, Dr. Ruhr was asked to prepare an addendum report and to comment on whether his opinion that the OCF 18 dated June 23, 2016 was not reasonable and necessary remained the same. After having reviewed all of the above noted reports, as well as other documents. Dr. Ruhr confirmed that he could not find anything in the additional documents to suggest that the additional chiropractic treatment requested would be reasonable and necessary as a result of any motor vehicle related impairments.
48I find Dr. Ruhr’s report persuasive. Not only does he specifically review all of the relevant medical information available, he also conducted extensive in-person tests to examine the applicant’s mobility and functionality to determine if he suffered any injuries as a result of the accident and whether he would benefit from the proposed treatment.
49It was Dr. Ruhr’s overall opinion that there was no need for any further formal (facility based) forms of passive or active therapy, as it related to the injuries sustained from the subject motor vehicle accident, stating that no accident related impairments or functional limitations remain.
50While there is no doubt that the applicant is experiencing pain in his back, the applicant’s medical evidence fails to address how the accident may have aggravated the applicant’s pre-existing condition of degenerative disc disease.
51I find that the applicant has not established that the treatment plans in dispute are reasonable and necessary to address the applicants injuries sustained from the motor vehicle accident.
INTEREST
52The benefits claimed by the applicant are denied. Therefore, no interest is due.
Released: September 19, 2018
___________________________
Maureen Helt, Adjudicator