Tribunal File Number: 17-004497/AABS
Case Name: 17-004497 v Aviva Insurance Company
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:
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Dawn J. Kershaw
APPEARANCES:
For the Applicant: Rome Petricca, Paralegal
For the Respondent: Jason Frost, Counsel
Heard: In Writing on January 29, 2018
OVERVIEW
1On April 7, 2015, the applicant was involved in a motor vehicle accident in which she alleges she suffered injuries. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent denied payment of the cost of an orthopaedic assessment, and the applicant has applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) for resolution of this dispute.
2I must decide the dispute based on the written materials the parties have filed with the Tribunal.
ISSUES IN DISPUTE
3The parties agree that the issue in dispute is as follows:
a. Is the applicant entitled to payment of $2,070.00 for an orthopaedic assessment recommended by Dr. Indech of Healthcare Management Group in a treatment plan dated August 24, 2015?
b. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is entitled to payment of the cost of the orthopaedic assessment and is therefore entitled to interest.
BACKGROUND
5At the time of the accident, the now 28 year old applicant was a passenger in a vehicle that was exiting the highway when a vehicle in front of it stopped abruptly causing her vehicle to rear end the stopped vehicle. Her vehicle was written off.
6The applicant’s knee hit the dashboard. Paramedics attended and put the applicant in a neck brace, but she was too emotional to attend the hospital. She saw her family doctor two days later, who prescribed physiotherapy and analgesics.
7The applicant asserts that she sustained injuries including neck pain, concussion with a brief loss of consciousness, right hand and leg numbness, contusion of the right upper arm, sprain and strain of the right elbow, right shoulder pain, right ribs pain, abdominal bruising, back pain, right knee pain and bruising, headaches, sleep disturbances, depression and anxiety.
8On August 24, 2015, about 4 ½ months after the accident, Dr. Indech, an orthopaedic surgeon, submitted an OCF-18 treatment and assessment plan (“treatment plan”) recommending an orthopaedic assessment in the sum of $2,070.00.
9In response, the respondent had the applicant examined by Dr. Alvi. The respondent then denied payment in its January 4, 2016 Explanation of Benefits (“EoB”) as not reasonable and necessary based on the insurers’ examination (IE) report by Dr. Alvi, dated October 27, 2015.
IS THE ORTHOPAEDIC ASSESSMENT REASONABLE AND NECESSARY?
Evidence
10I must determine if the disputed orthopaedic assessment is reasonable and necessary, pursuant to section 25(1)(3) of the Schedule.
11Dr. Nejad, from Healthcare Management Group, completed the applicant’s Disability Certificate on April 21, 2015. He listed the injuries detailed in paragraph 7, above, as well as others. He stated the applicant suffered a complete inability to carry on a normal life and a substantial inability to perform housekeeping and home maintenance. He estimated the duration of her disability at 9 to 12 weeks. The Disability Certificate refers to a report that was not provided to the Tribunal by the applicant.
12The applicant’s family doctor indicated the applicant was prescribed medications on April 9, 2015 including Baclofen and Tylenol 3. The applicant had normal x-rays of her cervical and lumbar spine, SI joints, sacrum and coccyx on April 21, 2015.
13Dr. Indech, an orthopaedic surgeon, completed the treatment plan on August 24, 2015. He noted that the applicant continued to experience pain with certain activities of daily living and domestic engagement. He wrote that the chronic nature of the injury was a barrier to the applicant’s recovery. To overcome the barrier, he recommended compliance and potentially minimally invasive interventions if pain persisted.
14He wrote that the goal of the treatment plan was to rule in or out causal elements and resulting impairment, and to make recommendations to facilitate recovery. He further wrote that the assessment was to address the chronic nature of physical pain and referral pains into the upper and lower limb, to further rule in or out potential discogenic and neurogenic pain and injury and make proper recommendations accordingly.
15The applicant also saw a psychologist, Dr. Moshiri, at Healthcare Management Group for assessment on June 14, 2016. He recommended psychotherapy for psychological issues and pain disorder associated with her psychological factors.
16After the applicant had four psychotherapy sessions in September 2016, Dr. Moshiri reported the applicant rated her pain at 5 out of 10, and continued to have anxiety and depression.
17The only other medical report the applicant submitted was a May 29, 2017 MRI of her right shoulder that showed mild subdeltoid bursitis and a small perforation-like full thickness tear at the insertion of the supraspinatus tendon, measuring approximately 4 mm in width.
18The respondent submitted two IE orthopaedic assessments by Dr. Alvi, dated October 27, 2015 and July 14, 2016. Dr. Alvi found the applicant sustained a mild myofascial strain of the lumbar and cervical spine and right knee, and that the injuries were soft tissue and temporary.
19The applicant had physiotherapy between April and October 2015, and then once in January 2016 and once in April 2016. Between April 21, 2015 and April 12, 2017 the applicant saw no OHIP-funded health practitioner for any accident-related concerns or treatment.
20Dr. Alvi reported in his July 14, 2016 report that the applicant stated she had had 70 to 80% improvement with physiotherapy. He maintained his opinion that all the applicant’s injuries were mild and soft tissue and she should return to her pre-accident functional activities.
21The applicant saw a doctor at a walk in clinic in April 2017 for right shoulder pain that she advised began about 18 months prior, which was about 6 months post-accident.
22The October 27, 2015 IE makes no mention of shoulder pain, and the July 14, 2016 IE mentions left shoulder pain as opposed to right shoulder pain.
Analysis
23The onus is on the applicant to prove that the proposed treatment plan is reasonable and necessary. There is no definition of reasonable and necessary in the Schedule.
24After having reviewed all of the medical evidence and submissions, I find the proposed treatment plan is reasonable and necessary, for the following reasons.
25Dr. Indech proposed the treatment plan in August 2015 because the applicant continued to suffer pain with certain activities of daily living and domestic engagement 4 ½ months after the accident. He referred to the chronic nature of the applicant’s physical pain and referral pains into both the upper and lower limb. He wanted to rule out causal elements.
26I note that the applicant’s pain continued through 2015. In addition, while the relevant time to assess whether the treatment plan was reasonable and necessary was in August 2015, the fact that the applicant continued to experience pain into 2016 supports Dr. Indech’s position that the applicant’s pain is chronic.
27The treatment plan submitted by the applicant contemplates a further orthopaedic assessment. Dr. Alvi, pursuant to an insurer’s examination in October 2015, assessed the applicant’s accident injuries orthopaedically and found the treatment plan to be not reasonable and necessary because in his opinion the applicant suffered only soft tissue injuries of a temporary nature. However, his opinion that the injuries were temporary is belied by the fact that the applicant had pain when the treatment plan was submitted, and this pain continues into 2016.
28My finding is also supported by the fact that Dr. Indech’s opinion comes from the applicant’s treating clinic, Healthcare Management Group, whereas Dr. Alvi only saw the applicant once.
29My view is not changed by the fact that the treatment plan contemplates an orthopaedic assessment to determine potential discogenic and neurogenic pain and injury even though the applicant had normal x-rays of her cervical and lumbar spine, SI joints, sacrum and coccyx on April 21, 2015. Normal x-rays do not mean there is no pain, nor do they mean there are no orthopaedic injuries that may be revealed by orthopaedic assessment.
30Dr. Indech’s recommendation in the treatment plan mentions the chronicity of the applicant’s pain, and the proposed orthopaedic assessment is to rule out orthopaedic causes for that pain.
31While the respondent points out that the applicant had physiotherapy only once in each of January and April 2016, she had regular physiotherapy between April and October 2015, which encompasses the period when the treatment plan was proposed.
32Finally, while the medical evidence submitted shows one potentially new injury, namely to the right shoulder, the treatment plan was submitted to address the pain that resulted from the injuries listed in it. The fact that the applicant potentially has a new injury does not render the treatment plan not reasonable and necessary.
33As such, the medical evidence supports a finding that the treatment plan is reasonable and necessary.
CONCLUSION
34I find the respondent is required to pay for the orthopaedic assessment as a result of section 38(11)2 of the Schedule based on my finding that it is reasonable and necessary as a result of the April 7, 2016 accident.
35Based on the submissions, I understand that the assessment has not been incurred, and thus there are no overdue payments upon which interest would run.
Released: May 29, 2018
Dawn J. Kershaw, Vice-Chair