Tribunal File Number: 17-004394/AABS
Case Name: 17-004394/AABS v Aviva Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
[Applicant]
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Elena Pelz, Counsel
For the Respondent: Mina N. Mikhail, Counsel
Held by Written Hearing: December 5, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on November 22, 2013. She applied for statutory accident benefits from the respondent, Aviva Insurance Company, payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The respondent declined to pay for certain medical benefits. As such, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of these disputed issues.
ISSUES
2The disputed issues are as follows:
- Is the applicant entitled to receive medical benefits, recommended by Physio Fix & Fitness, as follows:
a $4,268.22 for a physiotherapy treatment plan, submitted February 6, 2016;
b $1,238.24 for an acupuncture treatment plan, submitted February 17, 2016;
c $2,363.95 for an orthotics assessment, as recommended in a treatment plan submitted March 7, 2016; and,
d $2,139.34 (less $1,396.88 already approved) for a psychological assessment, as recommended in a treatment plan submitted March 7, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $1,000.00 for chiropractic services proposed by Dr. Gordon McDiarmid in a treatment plan, submitted September 12, 2016?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3I find the applicant has demonstrated that the medical benefits for physiotherapy and chiropractic services are reasonable and necessary. I have also partially approved the remaining amount in dispute for the psychological assessment. In accordance with s. 51 of the Schedule, the applicant is entitled to interest for the overdue payment of benefits.
ANALYSIS
Physio Fix & Fitness Treatment Plans
4Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.
a) Physiotherapy treatment plan
5In this first treatment plan, the applicant is seeking a 6 week course of rehabilitation sessions, together totalling $4,268.22. In addition to dizziness, headaches, and “chronic pain” more generally, the health practitioner noted that the applicant experiences sprain and strain of the cervical spine, thoracic spine, lumbar spine, and the sacroiliac joint. The applicant’s “tasks of employment” and “activities of normal life” were being affected by these impairments.
6In response to this treatment plan, the respondent required the applicant to attend an insurer’s examination with Dr. Alborz Oshidari. In his report dated May 4, 2016, Dr. Oshidari took the position that the applicant’s impairments fell within the Minor Injury Guideline (the “MIG”). Specifically, Dr. Oshidari stated that, while the applicant experienced a reduced range of motion and pain, “her perception of causing harm or expectation of experiencing pain is a contributory factor to this restriction of lumbar spine.”
7Furthermore, since an x-ray taken of the thoracic spine in August 2015 did not reveal any abnormality (save for mild scoliosis), he could not conclude that the findings of abnormalities in a later MRI from January 2016 were “correlated with the index accident of 2013 based on the information provided to me”. Instead, the injuries caused by the 2013 accident were limited to “sprain/strain of spine and contusion”. Therefore, the respondent denied this treatment plan.
8Then, as a result of the treatment plan for a psychological assessment, the respondent asked the applicant to attend an insurer examination with Dr. Shulamit Mor. In a report dated April 21, 2016, Dr. Mor diagnosed the applicant with Mild Adjustment Disorder with Depression and Anxiety. As a result, the respondent removed the applicant from the MIG.
9Dr. Oshidari’s conclusion about the 2016 MRI was then supported by a further, insurer examination report from Dr. Michael Hanna. Dr. Hanna also concluded (in a report dated December 19, 2016) that the applicant sustained the following “accident related injuries”: tension-type headaches, Whiplash Associated Disorder (WAD I), and myofascial sprain/strain injuries in the thoracic and lumbar regions.
10The applicant submits that this (and the other) denied treatment plans are reasonable and necessary to address the pain that was caused by the November 2013 accident. Specifically, the proposed treatments will allow her to resume “pre-accident physicality and normal activities of daily living.”
11The respondent submits that the applicant has not demonstrated that her current injuries were caused by the November 2013 accident. Since physical abnormalities noted in an MRI from January 2016 did not appear in an x-ray from August 2015, another accident must have taken place between August 2015 and January 2016.
12Specifically, the respondent points to the following record from Dr. Amal Iskandir (dated November 23, 2015): “[The applicant] came today claiming that she had a car accident on Nov. 22, 2015… the other car hit her car from the back.”
13The applicant replied to this record with an affidavit in her Reply Submissions (sworn November 14, 2017): “I have reviewed the clinical note and verily believe this was a mistake. I was not involved in a car accident on November 23, 2015.”1
14I do note that the respondent submits that the applicant should not be allowed to submit new evidence with her Reply Submissions. However, considering the affidavit is highly relevant to the issues before me, I would allow the admission of the applicant’s affidavit. Even still, I place little weight on it.
15First, if the accident described by Dr. Iskandir was similar in nature to the November 22, 2013 accident, one could assume that the reference to “November 22, 2015” was a typo. That is, the physician incorrectly typed “2015”, instead of “2013”. Yet, the accident in 2013 involved a vehicle making contact with the passenger’s side of the applicant’s vehicle. In the account from Dr. Iskandir, the 2015 accident involved a vehicle hitting “her car from the back”.
16Furthermore, the physician made a number of observations that would seem unnecessary if the accident took place several years ago. That is, the physician observed that: “No lacerations or bruises noticed… No bleeding from nose or ears.”
17Finally, according to the applicant’s Reply Submissions, she has been a client of Dr. Iskandir since 2007. It is, therefore, improbable that she would not mention the November 22, 2013 accident to this physician until November 23, 2015.
18Taken together, I conclude that the applicant visited Dr. Iskandir on November 23, 2015 to complain about a motor vehicle accident that took place the day before.
19In her Reply Submissions, the applicant contends that she complained about back pain a number of times following the November 2013 accident. A review of the medical notes included with her original Submissions supports this claim.
20Of note, the applicant met with her family physician on August 12 and November 18, 2015 to discuss back pain. No abnormalities were discovered in the spine, and there was a normal range of motion. However, the physician noted that there was persistent tenderness with these movements. Tenderness was also noted when touching either the lumbar or the thoracic regions.
21Then, during the November 18 visit, the physician referred the applicant to a pain clinic. She was also told to continue with physiotherapy and massage therapy. If there was no improvement with the physiotherapy, the duration of her symptoms would require x-rays and an MRI of the lumbar area. This MRI took place on January 5, 2016.
22The respondent also points to a 2005 motor vehicle accident as another, possible source of this long-standing pain. According to the respondent: “The Applicant has failed to provide any documentation which indicates her back pain is somehow different than what was experienced prior to the accident… [The respondent] submits ongoing pain relates to her pre-existing diagnosis of chronic pain.”
23In response, the applicant contends that her OHIP Summary (from November 22, 2007 to September 17, 2014) does not show any “complaints of lumbar pain until after her accident.” Once again, there is a question as to whether these new records can be admitted as evidence with her Reply Submissions. However, the respondent’s Submissions include a copy of the applicant’s OHIP Summary from April 4, 2011 until August 30, 2016.
24On a balance of probabilities, I conclude that the applicant continues to experience injuries that are caused by the November 22, 2013 motor vehicle accident. Both the timing of the discussions with her family physician (where she detailed ongoing back pain and tenderness), as well as the findings of Drs. Oshidari and Hanna (who found soft tissue injuries similar to those complained about to her family doctor), allow me to conclude that there are lasting, physical effects from the 2013 accident, and that these effects manifested themselves before the 2015 accident.
25Furthermore, while I accept the possibility that there may be ongoing effects from the 2005 accident, I again note that the evidence before me demonstrates a causal link between the 2013 accident and her current medical presentation. It is also difficult to reconcile the arguments that the 2005 accident is contributing to the applicant’s medical presentation, but—at the same time—that there are no ongoing effects from the more recent 2013 accident.
26While I have not been provided with much documentation about this earlier accident, I would note that the treatment plan prepared for acupuncture treatment found that there is [emphasis added] “chronic upper/mid back pain stemming from previous MVA in 2005.” Yet, there is evidence that pain now also exists in the lower back, i.e., lumbar spine and the sacroiliac joint.
27In regards to the question of whether the proposed treatment plan is reasonable and necessary, I would turn to the reassessment report from Dr. Reza Babaloui (dated April 5, 2016). In this report, the chiropractor noted that the applicant “presented with restricted ranges of motion” in the shoulders and back, as well as pain and tender muscles across the head and the upper back. Dr. Babaloui then stated that the applicant had been receiving passive modalities and a program of active stretching and strengthening. Moving forward, she would receive targeted exercises, endurance training, laser therapy, and assistive devices.
28Additionally, as noted by Dr. Babaloui, the applicant reported that there has been “moderate improvement in symptoms since starting treatment”, e.g., the pain in her upper back and neck has become less frequent.
29In the end, he provided the following prognosis: “… this client requires continued access to rehabilitation with a goal of restoration of pre-accident physically [sic] and normal activities of daily living… Without physical and a possible psychological intervention or treatment, her condition can deteriorate.”
30Ultimately, it seems that the persistent nature of the applicant’s pain derives, in part, from her perception and expectation of causing pain. Dr. Babaloui’s reassessment, therefore, confirms that this treatment plan will assist the applicant in meeting her recovery goals. That is, as Dr. Babaloui stated in his reassessment [emphasis added]: “The main goal of physical rehabilitation is to increase functioning, educate hurt vs. harm, pain control, return to activities of daily living, improve quality of living and return the patient to pre-accident health status.” The physical and mental aspects of the injuries must be targeted to encourage full recovery, and I am satisfied that this treatment plan will address both aspects.
31I find the applicant has met her onus of demonstrating, on a balance of probabilities, that the medical benefits for physiotherapy are reasonable and necessary.
b) Acupuncture treatment plan
32The applicant is seeking an acupuncture assessment and 18 treatments, together totalling $1,238.24. In the treatment plan, the health practitioner stated:
[The applicant] has headaches, pain in her back, upper back, low back and severe tension on her back muscles. The patient’s neck range of motion was mildly limited in some directions with pain. Her low back range of motion was mildly limited with pain in some directions. The pain, tension and limited ROG [sic] are caused by stagnation of acupuncture channels and can be relived [sic] if acupuncture treatment is performed on a regular basis.
33As noted above, Drs. Oshidari and Babaloui’s reports point to a need for treatment that addresses both the physical and mental aspects of the applicant’s injuries. Yet, both the proposed treatment and the health practitioner’s diagnosis are strictly physical, i.e., acupuncture treatment to relieve the “stagnation of the acupuncture channels”. This focus on the physical aspects of the injuries stands in contrast to the other medical opinions and treatment plans that will also address the psychological aspects of the injuries. As such, I find this treatment plan is not reasonable and necessary.
c) Orthotics assessment
34In this treatment plan, the applicant is seeking an orthotics assessment and related costs, together totalling $2363.95.
35Under Part 8 of this plan, the health practitioner noted that the applicant’s “activities of normal life” had been affected by her impairments. The health practitioner noted that any effect on her ability to carry out her tasks of employment was “unknown”. Then, under Part 9, the anticipated goals of the treatment plan were listed as “other”, with an explanation that possible interventions, if any, would be determined after the assessment.
36In my review of both the applicant’s Submissions and Reply Submissions, I do not see any argument for why this particular assessment is reasonable and necessary.
37The respondent asked Dr. Oshidari for a follow up report about this further treatment plan. In an addendum report, dated November 7, 2017, he observed that all of the symptoms listed in this treatment plan “fit under the definition of a minor injury, and there is no documentation of other conditions for which an assessment by an orthopedic surgeon would be required.”
38The applicant has the onus of demonstrating that a treatment and assessment plan is reasonable and necessary. After considering the evidence and submissions before me, I conclude that this onus has not been met. There is insufficient evidence connecting the need for an orthotics assessment to the improvement of the applicant’s accident related injuries. Therefore, I find the applicant is not entitled to this assessment.
d) Psychological assessment
39Before addressing the issue of entitlement, a question was raised by the respondent over the proper characterization of this benefit, i.e., while the applicant defines this benefit as “psychological services”, the respondent submits that “this benefit is properly characterized as a cost of examination…”
40It is clear that the contemplated benefit is a psychological assessment. For instance, in the “Additional Comments” section of the treatment plan, Dr. Gladshteyn provides the reader with a description of the assessment’s anticipated components.
41Since the respondent has agreed to pay $1,396.88, $742.46 remains in dispute.
42The respondent’s assessor (i.e., Dr. Mor) accepted that a “psychological assessment for treatment planning is reasonable”, but the proposed expense was “excessive”. Instead, a cost of no more than $1,396.88 was found to be an acceptable sum (i.e., 8 hours at the prescribed rate of $149.61/hour + the cost of preparing the treatment plan). There does not appear to be amounts set aside for HST or transportation costs.
43Breaking down the applicant’s proposed expenses (namely, removing the transportation cost, HST, and treatment plan preparation fee then dividing by the hourly rate), Dr. Gladshteyn is requesting 12 hours to complete his assessment. In the “Additional Comments” section, he states that the purpose of the assessment “is to provide clinical information necessary to formulate a treatment plan in response to the presenting complaints.”
44Ensuring her health practitioner has sufficient information to formulate a responsive treatment plan is recognized by both sides as being beneficial. However, I have not been provided evidence for why 12 hours is needed to accomplish what Dr. Mor believes can be done in 8. However, considering the approved amount does not include HST, I would award the applicant an additional $181.59 to cover these expenses.
45Additionally, the distance between the applicant’s home and Dr. Gladshteyn’s office is almost 250 kilometres. As such, I would include transportation costs (which the applicant valued at $50.00, plus $6.50 for HST). Together, these additional amounts equal $238.09.
Chiropractic Services Treatment Plan from Dr. McDiarmid
46In this final, disputed treatment plan, the applicant is seeking medical benefits for 8 weeks of chiropractic treatment, totalling $1000.00. As of the date of this treatment plan, the applicant had received three treatments from Dr. McDiarmid.
47The proposed treatment is mobilization of the spine, back, and sacroiliac joint, as well as exercise of the spinal vertebrae.
48The applicant highlights that Dr. Hanna noted there was a “20% improvement in her symptomology”. This improvement was a self-report from the applicant. The applicant also submits that while she has comparable levels of activity to her pre-accident state, these activities are done with a significant amount of pain.
49The respondent again states that Dr. Hanna concluded there is no connection between the 2013 accident and the abnormalities found in the January 2016 MRI. As such, the respondent submits that this treatment plan will not address any accident related injuries, regardless of the effects the treatment may have.
50As noted above, I have found that the applicant’s persistent pain was caused by the 2013 accident. I have also found that this pain is, in part, a result of the applicant’s perception and expectation of pain. Exercising the spinal vertebrae will demonstrate the capacity and range she possesses to move her back, and there is self-reported evidence that the treatment has, in fact, reduced this pain.
51Taken together, I find that the applicant has demonstrated that Dr. McDiarmid’s proposal for chiropractic treatment is reasonable and necessary.
CONCLUSION
52As detailed above, the applicant has demonstrated her entitlement to the following medical benefits:
(i) $4,268.22 for physiotherapy services proposed in a treatment plan submitted on February 6, 2016;
(ii) An additional $238.09 for a psychological assessment recommended in a treatment plan submitted on March 7, 2016; and,
(iii) $1,000.00 for chiropractic services proposed in a treatment plan submitted on September 12, 2016.
53In accordance with s. 51 of the Schedule, the applicant is also entitled to interest, payable with respect to the overdue payment of benefits.
Released: March 06, 2018
___________________________
Craig Mazerolle
Adjudicator