Y.I. v. Aviva Canada Inc., 2018 CanLII 133515

Licence Appeal Tribunal

Tribunal File Number: 18-000542/AABS

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

Y.I.

Applicants

and

Aviva Canada Inc.

Respondent

DECISION

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Jeton Memeti

Counsel for the Respondent: Patrick M. Baker

Heard in writing on: August 27, 2018

OVERVIEW

1The applicant was injured in an automobile accident on September 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a passenger in a vehicle that was rear-ended, causing the vehicle to move forward and collide with another vehicle in front. The applicant was taken to Brampton Civic Hospital and complained of right knee and shoulder pain as a result of the accident.

3The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided as set out in the case conference order dated May 29, 2018:

i. Is the applicant entitled to a medical benefit in the amount of $3,939.43 for chiropractic treatment recommended by Complete Rehab in a treatment plan (OCF-18) submitted on December 15, 2016 and denied on January 3, 2017 by the respondent as not being reasonable and necessary?

ii. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for chiropractic treatment recommended by Complete Rehab in a treatment plan (OCF-18) submitted on March 29, 2017 and denied on April 5, 2017 by the respondent as not being reasonable and necessary?

iii. Is the applicant entitled to a medical benefit in the amount of $2,042.36 for chiropractic treatment recommended by Complete Rehab in a treatment plan (OCF-18) submitted on September 12, 2017 and denied on September 26, 2017 as not being reasonable and necessary?

iv. Is the applicant entitled to a medical benefit in the amount of $1,816.74 for chiropractic treatment recommended by Complete Rehab in a treatment plan (OCF-18) submitted on October 24, 2017 and denied on November 6, 2017 as not being reasonable and necessary?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the applicant entitled to an award under Ontario Regulation 664 of the Insurance Act² because the respondent unreasonably withheld or delayed the payment of benefits?

5In the applicant’s written submissions, he has withdrawn issue number ii above and therefore it will not addressed as an issue for the purposes of this hearing.

RESULT

6Based on the totality of the evidence before me, I find the applicant is entitled to the following treatment plans in dispute for chiropractic services:

a. A medical benefit in the amount of $3,939.43;

b. A medical benefit in the amount of $2,042.36; and

c. Interest in accordance with the Schedule on the above approved treatment plans.

7The applicant is not entitled to:

a. A medical benefit in the amount of $1,816.74 for chiropractic services; or

b. An award.

ANALYSIS

Is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $3,939.43?

8Based on the following, I find the applicant to be entitled to this treatment plan for chiropractic treatment for the following reasons.

9The treatment plan in dispute lists the applicant’s injuries as “sprain and strain of cervical spine. Possible “radiculopathy”, “sprain and strain of thoracic spine”, “sprain and strain of shoulder joint” and other injuries as listed on page 10 of 11 of the treatment plan.

10The description of the treatment being proposed is listed in part 12 and it states 24 sessions of “Active functional restoration program” and 8 sessions of “Massage Therapy”. The treatment providers for the active functional restoration program are split between Dr. Rahim Jessa, a chiropractor, and Amit Patel, a physiotherapist. The massage therapy is being provided by three different massage therapists.

11The respondent submits that the applicant’s family doctor who saw the applicant a few days after the accident did not recommend chiropractic treatment and noted the applicant to have full range of motion in his neck and spine but had suggested physiotherapy treatment. The respondent therefore argues that this treatment plan in dispute is not reasonable and necessary.

12Furthermore, the respondent relies on the insurer’s examination (“IE”). It argues that Dr. Taromi reported that the treatment plan is not reasonable and necessary because the applicant’s soft-tissue complaints had resolved and the shoulder issue was pre-existing.³ I disagree with the respondent for the following reasons.

13The IE doctor, Dr. Taromi does not state in his report that the applicant’s soft-tissue complaints had resolved. Dr. Taromi’s summary and diagnosis are that the applicant’s injuries are “consistent with sprain and strain of cervical spine with associated headaches, lumbar spine sprain and strain, right-sided knee sprain and strain and right-sided ankle sprain and strain.”⁴ Dr. Taromi goes on to opine that the applicant has reached maximal medical recovery for his injuries related to his cervical spine, lumbar spine, right knee and right ankle but does not explain how he has come to this conclusion. Dr. Taromi noted the applicant’s current symptoms of neck pain and low back pain. During the physical examination, Dr. Taromi found the applicant to have “end range pain at the cervical and lumbar spine and palpitation of the spine showing tenderness over the cervical and lumbar spine region.” The pain was also noted to be “more in the cervical spine, his right shoulder had functional range of motion with pain at the end of flexion, abduction and hands behind the back” and the “right shoulder cuff showed mild weakness with supraspinatus and infraspinatus.”⁵

14The chiropractic component is one of eight different types of treatment being proposed. Should the chiropractic component not be tolerable for the applicant, he can advise the clinic of that or the treatment could be approved less any chiropractic component. To simply deny the entire treatment plan when one component can be modified to be in accordance with his doctor’s recommendation of physiotherapy does not seem reasonable in my opinion.

15The respondent’s IE assessor, Dr. Taromi, also opines that the applicant’s right shoulder may also have had a degree of tearing in the right rotator cuff and his examination revealed weakness in the supraspinatus and infraspinatus.⁶ Dr. Taromi concludes that if a scheduled MRI shows a tear, then it would be a pre-existing injury versus partially a result of the car accident.⁷ However, he provides no basis for this opinion and concludes the applicant has soft tissue sprain and strain type injuries and that the treatment is not reasonable, nor necessary.

16Once the additional documentation was provided to Dr. Taromi, he then completed an addendum report dated November 6, 2017. The additional documents Dr. Taromi reviewed were the applicant’s Diagnostic Imaging for his right shoulder from April 3, 2017, the MRI of his right shoulder from February 15, 2017, the applicant’s OHIP summary records dated January 17, 2017, the diagnostic imaging of the cervical spine and right shoulder x-ray dated November 30, 2016 and an ultrasound of the right shoulder dated November 30, 2016.⁸

17However, despite this information and his assessment that the “right shoulder MRI shows chronic, multiple rotator cuff tears…”⁹ Dr. Taromi concludes these changes are “chronic and pre-existing likely for many years and not a direct result of the accident.”¹⁰

18Once again, Dr. Taromi provides no basis for his opinion that the injury is pre-existing and not related to the accident. He has not stated what documentation he reviewed or whether it was the applicant’s self-reporting that may have led to this opinion.

19As a result of the above and of the applicant’s numerous visits to his medical practitioners of his shoulder pain, knee and back pain as well as the MRI and x-ray showing a complete tear in the supraspinatus tendon and infraspinatus tendon¹¹ and the family doctor’s recommendation for treatment, I find on a balance of probabilities that the treatment plan is reasonable and necessary.

Is the applicant entitled to medical benefit for chiropractic treatment in the amount of $2,042.36?

20I find that this treatment plan in the amount of $2,042.36 is reasonable and necessary for the following reasons.

21The treatment plan proposes an active functional restoration program and massage therapy to be completed in part by a chiropractor, Dr. Rahim and a physiotherapist Amit Patel along with message therapists over the course of 8 weeks.¹²

22A review of the applicant’s family doctor’s clinical notes and records shows the applicant attended several times after the date of the accident about pain in his shoulder, knee and back.¹³ In May, July and October, 2017 the applicant continued to have back pain, cervical pain and shoulder pain.¹⁴

23Part 9 of the treatment plan lists as its goals pain reduction, increase in strength, increased range of motion and to decrease swelling, inflammation and muscle spasm. The functional goals are for a return to activities of normal living and pre-accident work activities.

24The reduction of pain for the applicant is, in my opinion, a reasonable and necessary goal and he is entitled to choose treatment that would help him do that. The treatment plan’s proposal of functional restoration program to be completed in part by a physiotherapist and massage therapy is, in my opinion, reasonable and necessary to help alleviate pain, increase strength and range of motion. As a result, I find the treatment plan to be reasonable and necessary.

Is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $1,816.74?

25I do not find this treatment plan to be reasonable and necessary as I find it to be a duplication of the treatment plan in the amount of $2,042.36 for the following reasons.

26A review of the treatment plan lists identically the applicant’s injuries and the proposed treatment almost exactly 8 weeks after the treatment plan in the amount of $2,042.36 was submitted to the respondent. The treatment plan is identical except for the fact that it recommends 17 treatment sessions over 8 weeks as opposed to 18 for the previous one.

27There are no submissions or evidence on whether the previous therapy sessions were completed and if so, what the outcome was with respect to the goals of the treatment plan and whether they were achieved on behalf of the applicant. Without this information and no submissions on why it was required again immediately after the previous one, I am unable to ascertain the reasonableness and necessity of this treatment plan.

28As a result, I do not find the treatment plan for chiropractic treatment in the amount of $1,816.74 to be reasonable and necessary and it is therefore denied.

INTEREST

29The applicant is entitled to interest on the approved treatment plans in accordance with the Schedule.

AWARD

30The applicant requests an award citing his submissions on the treatment plans that the respondent acted in bad faith when adjusting the claims. Further, the applicant argues that the respondent did not comply with section 38(8) of the Schedule requiring notice of the services the insurer agrees to pay for or not and the reasons why and, as a result, the applicant was denied treatment.

31I deny the applicant’s request for an award for the following reasons.

32Regulation 664 states that the Tribunal may award a lump sum of up to 50 per cent of the amount to which the applicant was entitled if the respondent unreasonably withheld or delayed the payment of benefits.

33The respondent submits that the applicant did not provide the medical documentation despite repeated requests and, once that information was provided, the respondent obtained addendum reports from the IE assessors and it acted in good faith.

34The onus is on the applicant and I am not persuaded of unreasonably withheld or delayed payments on the part of the respondent.

35The applicant directs me to the adjuster’s log note dated October 19, 2017 wherein it states that the MRI report was provided but was not forwarded to the assessor for review.¹⁵ However the next entry states: “Will send the updated CNR’s to the assessor to provide addendums to the reports.”¹⁶

36The applicant has not satisfied his onus to persuade me of how the respondent failed to comply with the Schedule and how it failed to review all available medical evidence when making its determination. I have not been directed to evidence of conduct on the part of the respondent that constitutes unreasonably withholding or delaying of the payment of benefits. More is required than to point out a potential oversight on the part of the respondent or that the applicant disagrees with the IE assessor’s conclusions. As a result, I find that the applicant is not entitled to an award.

ORDER

37For the reasons outlined above, I find that the applicant is entitled to:

a. A medical benefit in the amount of $3,939.43 for chiropractic services;

b. A medical benefit in the amount of $2,042.36 for chiropractic services; and

c. Interest in accordance with the Schedule on the above approved treatment plans.

38The applicant is not entitled to:

a. A medical benefit in the amount of $1,816.74 for chiropractic treatment or

b. An award.

Released: February 05, 2019

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 10, R.R.O. 1990, Reg. 664: Automobile Insurance
3. 3Respondent submissions dated August 13, 2018 at paragraph 11.
4. 4Written submissions and evidence of the Applicant Tab 5. Dr. Taromi’s report dated March 7, 2017 at page 6 of 9.
5. 5Dr. Taromi’s report dated March 7, 2017 at page 5 and 6.
6. 6Supra note 4 at page 7.
7. 7ibid
8. 8Written submissions and evidence of the Applicant Tab 9, Dr. Taromi’s addendum report dated November 6, 2017 at page 2-3.
9. 9Ibid at page 6.
10. 10Ibid.
11. 11Applicant’s written submissions and evidence, Tab 13.
12. 12Applicant’s written submissions and evidence, Tab 7, part 12 of the OCF-18.
13. 13Applicant’s written submissions and evidence, Tab 13 at page 2.
14. 14Ibid at pages 12-13.
15. 15Applicant’s written submissions and evidence, Tab 12 page 1.
16. 16Ibid at page 2.