Licence Appeal Tribunal
Tribunal File Number: 17-008638/AABS
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:
A.J.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Sandra Driesel
APPEARANCES:
For the Applicant: Raffi Akelian, Counsel
For the Respondent: Thomas Hughes, Counsel
HEARD: Written Hearing: May 18, 2018
OVERVIEW
1The applicant was injured in an automobile accident (“the accident”) on January 12, 2015 and sought and received insurance benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). When the respondent refused to approve his request for further physiotherapy and an orthopaedic assessment, he applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2The respondent denied the applicant’s claims because it determined that the treatment plan and cost for an assessment are not reasonable and necessary.
3The applicant’s position is he has yet to reach maximal recovery and has continually sought relief from injuries suffered as a result of the motor vehicle accident (“MVA”). He believes the treatment plan and a further assessment is necessary to support his recovery. I must now determine whether those plans are reasonable and necessary.
ISSUES IN DISPUTE
4Is the applicant entitled to a medical benefit in the amount of $1,675.00 for a physiotherapy treatment recommended by CBI Health Care in a treatment plan submitted on January 2017 and denied by the respondent on February 2, 2017?
5Is the applicant entitled to the costs of an examination in the amount of $3,785.00 for an orthopedic assessment recommended by Allied Medical Evaluation Inc. submitted on March 31, 2017 and denied by the respondent on April 17, 2017?
RESULT
6After reviewing the parties’ submissions and evidence, I find that:
i. The applicant is entitled to a medical benefit in the amount of $1,675.00 for physiotherapy treatment recommended by CBI Health Care in a treatment plan submitted on January 18, 2017 and denied by the respondent on February 2, 2017.
ii. The applicant is not entitled to a the cost of an examination in the amount of $3,785.00 for an orthopaedic assessment recommended by Allied Medical Evaluation Inc., submitted on March 31, 2017 and denied by the respondent on April 17, 2017.
ANALYSIS
Reasonable and necessary
7Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.
Treatment plan in the amount of $1,675.00 submitted January 18, 2017
8This treatment plan is for physiotherapy completed by Mr. Peter Rego, Registered Physiotherapist of CBI Health Care. The respondent denied it based on an insurance examination that concluded it was not reasonable or necessary because the applicant has reached maximal medical recovery.
9An April 18, 2016 insurance examination report by Dr. Sangita Sharma determined surgery is required for the shoulder injury. The report states “the claimant has not reached maximal medical recovery as surgical management has not been addressed for his right shoulder his grade/ possible full thickness rotator cuff tear”.
10The records of the applicant’s family physician, Dr. Rebecca Wallace, reveal that the applicant has predominantly experienced continuing shoulder pain for nearly two years after the accident, and also some lower back pain. Dr. Wallace sent the applicant to see Dr. Patrick Henry, Orthopaedic Consultant. On January 3, 2017, Dr. Henry suggested surgery may be an option for the shoulder injury but there may be risks related to its success because of the applicant’s age. Dr. Henry mentions ‘a long discussion’ with the applicant and the applicant determined to continue with a ‘conservative management program’ (the only treatment incurred at that time was physiotherapy). Dr. Henry did not provide any comments to suggest the applicant’s current management program was not reasonable or not necessary.
11Dr. Osinga conducted an orthopaedic paper review report on February 12, 2017 for the respondent. He states that he believes some portion of this [rotator cuff injury] is related to the MVA described by the claimant. With this, Dr. Osinga’s second assessment (the first being December 22, 2016) notes the applicant’s shoulder has not been fully evaluated, as an MRI has not been performed and he suggests that there is no finding of a lower back injury related to the MVA. He states that “with no firm plan for a novel treatment approach, such as shoulder surgery, it is reasonable to assume the claimant is at maximal medical recovery.”
12The goal of the disputed plan is to reduce the pain of the applicant so that he can return to a functional goal of a pre-accident lifestyle. Dr. Osinga seems to ignore Dr. Patrick Henry’s report that suggests that optimal results may not be achieved from surgery given the applicant’s age. I am not convinced that on the basis that the applicant has not consented to surgery for which he was deemed a less than suitable candidate, that Dr. Osinga can conclude he has reached maximal medical recovery.
13I find the treatment plan in dispute to be reasonable and necessary and payable by the respondent. The applicant is also entitled to any interest accrued in accordance with the Schedule.
Treatment plan in the amount of $3,785.50 submitted March 31, 2017
14This treatment plan is for an orthopaedic examination completed by Dr. Michael West of Allied Med Treatment. The plan was denied based on an insurance examination that concluded it was not reasonable or necessary because the applicant has reached maximal medical recovery.
15Upon review of the evidence and submissions, I find that the examination in dispute is not reasonable or necessary, not because the applicant has reached maximal medical recovery, but because I could not find any compelling evidence that there was a need for any further orthopaedic examination.
16As noted above, on recommendation from his family doctor, the applicant underwent an orthopaedic examination from Dr. Henry. I could not find that Dr. Henry’s examination, or even Dr. Osigna’s insurance examination, suggested any new medical symptom or injury that would require additional assessment.
17In light of my above finding the applicant does have ongoing issues, I would like to be clear, that conclusion relates to this examination only, which appears duplicative of Dr. Henry’s examine when requested so close in time. A different analysis may apply to future orthopaedic examinations such as ones requested after the passage of time, or based on reasons to explore different treatment, but that analysis is not before me.
CONCLUSIONS
18I find the applicant is entitled to a medical benefit in the amount of $1,675.00 for physiotherapy treatment recommended by CBI Health Care in a treatment plan submitted on January 18, 2017 and denied by the respondent on February 2, 2017.
19I find the applicant is not entitled to a the cost of an examination in the amount of $3,785.00 for an orthopaedic assessment recommended by Allied Medical Evaluation Inc., submitted on March 31, 2017 and denied by the respondent on April 17, 2017, for the reasons stated above.
Released: August 28, 2018
Sandra Driesel Adjudicator