17-004754 v Aviva General Insurance
Tribunal File Number: 17-004754/AABS
Case Name: 17-004754 v Aviva General Insurance
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 General Insurance
Respondent
DECISION
Adjudicator: Amanda Fricot
Appearances:
For the Applicant: Nader Fathi, Representative
For the Respondent: Shivani Mehta, Counsel
Heard in Writing: December 19, 2017
OVERVIEW:
1[The applicant] (“the applicant”) was involved in a motor vehicle accident on February 13, 2016 and sought accident benefits from Aviva Insurance Canada (“the respondent”) pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied the applicant’s claims for medical benefits for chiropractic, massage and physiotherapy services.
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference and the matter proceeded to this written hearing.
ISSUES IN DISPUTE:
3The following issues are in dispute before the Tribunal:
- Is the applicant entitled to receive medical benefits recommended by Mackenzie Medical Rehabilitation Centre Inc. as follows:
i. $1,418.00 for chiropractic treatment submitted on August 15, 2016 and denied on August 24, 2016?
ii. $2,027.00 for chiropractic treatment submitted on July 7, 2016, and denied on July 22, 2016?
- Is the applicant entitled to receive medical benefits in the amount of $1,995.65 for a physiotherapy treatment proposed by Promed Rehab Clinic in a treatment plan submitted May 10, 2016 and denied May 25, 2016?
RESULT:
4After reviewing the parties’ submissions and the documentary evidence and for the reasons that follow, I find:
The applicant is not entitled to medical benefits for chiropractic and massage treatments in the amount of $1,418.00 and $2,027.00 as the treatment plans are not reasonable and necessary.
The applicant is not entitled to medical benefits for physiotherapy treatment in the amount of $1,995.65 as the treatment plan is not reasonable and necessary.
BACKGROUND:
5The applicant was injured in a motor vehicle accident on February 13, 2016. The applicant reported hitting his head and his left shoulder in the accident.
6On February 17, 2016 he was assessed by Dr. Russi, chiropractor, Mackenzie Medical Rehabilitation Centre Inc. He began receiving rehabilitation treatment shortly thereafter. He saw his family doctor only once regarding injuries sustained in the accident, on February 22, 2016.
7On May 10, 2016 Promed Rehab Clinic completed a treatment plan recommending physiotherapy treatment. On July 7, 2016 and August 15, 2016 Mackenzie Medical Rehabilitation Centre Inc. completed treatment plans recommending chiropractic and massage treatments. It is the reasonableness and necessity of these three treatment plans that are in issue in this Application.
ANALYSIS:
8Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.
9Although the applicant is no longer subject to the Minor Injury Guideline as a result of psychological impairment, the applicant bears the onus of proving, on a balance of probabilities, that the specific benefits claimed are reasonable and necessary.1 To satisfy that onus, the applicant must establish that there is evidence supporting the treatment plans for chiropractic, massage and/or physiotherapy treatments, and that the treatment proposed will be effective to treat injuries sustained in the accident.
Is the applicant entitled to the medical benefits for chiropractic, massage and physiotherapy treatments?
Applicant’s Submissions and Evidence
10The applicant’s submissions note that the applicant was taken out of the Minor Injury Guideline as a result of the applicant’s psychological conditions.
11The applicant makes no submissions with regards to the treatment plans themselves, other than to reference the applicant’s injuries listed therein.
12The applicant notes that he saw his family doctor, Dr. Patrick Safieh, on February 22, 2016. Dr. Safieh’s clinical notes and records indicate that the applicant advised him of the motor vehicle accident and that he had had a gradual onset of pain in his neck, with headaches and back aches. He advised that he was going to rehab and Dr. Safieh advised him to continue with rehab. There is no indication in Dr. Safieh’s clinical notes of any complaints relating to the applicant’s shoulders. Although the applicant saw his family doctor again on June 16, 2016 regarding an unrelated medical condition, the applicant made no mention of any neck, back or shoulder pain at that time.
13The applicant also refers to Dr. Safieh having seen the applicant for back and neck pain after a 2009 motor vehicle accident and for a sporting injury to his right shoulder in 2015.
14The applicant refers to the reports prepared by two psychologists, Dr. Vitelli and Dr. Syed, who assessed the applicant on June 9, 2016 and November 30, 2016 respectively, and to the applicant’s self-reports of his physical complaints at the time of those assessments.
15None of the applicant’s submissions address how the documentary evidence referred to by the applicant establishes the reasonableness or necessity of any of the treatment plans in issue.
Respondent’s Submissions and Evidence
16The respondent submits that the applicant has failed to meet the onus on him to prove that the treatment plans are reasonable and necessary to improve the applicant’s condition.
17The respondent submits that it is not sufficient that the applicant personally believes that the treatment is necessary, but rather, that objective medical evidence must be considered.
18The respondent relies upon the report of Dr. Belfon who conducted an insurer’s physician examination of the applicant on March 23, 2016. At the time of that assessment, the applicant reported neck pain and headaches and indicated that his pre-existing shoulder pain was “a little worse”. The applicant also advised that his back pain had resolved. When asked about any difficulties with personal care since the accident, the applicant stated that he was independent in dressing, grooming, toileting, showering and feeding himself. When asked about any difficulties with housekeeping and home maintenance duties since the accident, he stated that he was able to continue cooking, tidying and washing laundry and that his son helped with cleaning.
19The applicant also advised Dr. Belfon that he had started rehabilitation treatment two weeks after the accident and that his rehabilitation treatment was continuing on March 23, 2016. Documents filed by the respondent included treatment plans dated February 17, 2016 and April 4, 2016 prepared by Mackenzie Medical Rehabilitation Centre Inc., both of which had been partially approved, which recommended treatment including manipulations, therapy, exercises, total body assessment and/or massage.
20Dr. Belfon notes that some tenderness and mild pain was reported when he examined the applicant’s cervical spine on March 23, 2016, but that there was no tenderness or pain reported during examination of his lumbar spine and right shoulder. Dr. Belfon concluded that the applicant’s presentation was “consistent with sprain/strain injuries of the cervical spine, resolved sprain/strain injuries of the lumbar spine, post-traumatic headaches and right shoulder contusion with myofascial pain” and that the applicant’s injuries appeared to be uncomplicated soft tissue injuries that fell within the Minor Injury Guideline.
21Dr. Belfon notes that the applicant had advised that he had been able to resume full use of his right shoulder after his 2015 injury with minimal pain. Dr. Belfon concluded that it “does not appear that this pre-exiting [right shoulder] injury is affecting his M.V.A. related injuries in a significant way.”
22The respondent submits that the applicant has not adduced any evidence to refute the evidence of Dr. Belfon.
Analysis and Conclusions
23I find that the evidence does not support a finding that any of the treatment plans are reasonable and necessary as a result of the accident for the following reasons.
24Dr. Belfon assessed the applicant on March 23, 2016, in part for the purpose of determining the reasonableness and necessity of a treatment plan for chiropractic services dated February 17, 2016, not regarding any of the treatment plans in dispute, all of which were submitted after March 23, 2016. Dr. Belfon’s report is, however, persuasive evidence that when the applicant was assessed on March 23, 2016, his condition was improving. At that time his back pain had resolved, his pre-existing right shoulder pain was “a little worse”, he had headaches and only mild pain in his neck. It is also persuasive evidence that the applicant’s physical injuries were minor and appeared to be uncomplicated soft tissue injuries that fell within the Minor Injury Guideline.
25The applicant saw his family doctor only once regarding the injuries sustained in the February 13, 2016 accident. That was on February 22, 2016. When he saw his family doctor again on June 16, 2016, which was close in time to when the treatment plans in issue were submitted, the applicant made no mention of any ongoing concerns relating to any accident related injuries.
26The treatment plan dated May 10, 2016 provides little support for the applicant’s position that it is reasonable and necessary as a result of the accident. The list of injuries referred to in that treatment plan, which are stated to be a direct result of the accident, includes “pain in joint, radiculopathy, low back pain, pain in limb”. Any back pain resulting from the accident had resolved by the time the applicant was seen by Dr. Belfon on March 23, 2016. There is no evidence of any complaints of limb pain or radiculopathy by the applicant following the accident. The treatment plan itself is not, therefore, persuasive evidence that it is reasonable and necessary as a result of the accident.
27When Dr. Vitelli assessed the applicant on June 9, 2016 for the purpose of completing a psychological consultation, the applicant reported neck, right shoulder, back, and left leg/buttock pain, headaches and a number of other complaints. As the applicant had advised Dr. Belfon on March 23, 2016 that the back pain he had experienced after the accident had resolved, Dr. Vitelli’s record of the applicant’s self-reporting on June 9, 2016 is insufficient evidence to establish that the back pain or left leg/buttock pain complained of on June 9, 2016 was related to the accident.
28The treatment plans dated July 7, 2016 and August 15, 2016 provide little support for the applicant’s position that they are reasonable and necessary as a result of the accident for the following reasons:
The list of injuries referred to in these treatment plans, which are stated to be a direct result of the accident, includes dislocation, sprain and strain of joints and ligaments of the thorax, lumbar spine and pelvis. Any back pain resulting from the accident had resolved by March 23, 2016. There is no evidence of any complaints by the applicant following the accident regarding his pelvis.
The treatment plans provide insufficient evidence that the treatment plans are reasonable with regards to neck pain and headaches, which were complaints following the accident, or that they will improve those conditions. Both treatment plans propose the same types of treatment that had been recommended and partially approved in February 2016 and April 2016, namely manipulations, therapy, exercises, total body assessments and massage. However, in response to the question “what was the applicant’s improvement at the end of the previous plan”, the response in both treatment plans was that the “Applicant reports no significant change overall”. No explanation is provided with regards to how more of the same type of treatment will assist the applicant with accident related injuries.
The treatment plans themselves are not persuasive evidence that they are reasonable and necessary as a result of the accident.
29As Dr. Syed did not examine the applicant until November 30, 2016, Dr. Syed’s report sheds very little light on the reasonableness or necessity of treatment plans submitted in May, July and August 2016. It should be noted, however, that contrary to what is stated in the applicant’s submissions, Dr. Syed’s report did not note a diagnosis of chronic pain.
30I find that the applicant has failed to prove, on the balance of probabilities, that any of the treatment plans are reasonable and necessary as a result of the accident.
ORDER
The applicant is not entitled to medical benefits for chiropractic and massage treatments in the amount of $1,418.00 and $2,027.00.
The applicant is not entitled to medical benefit for physiotherapy treatment in the amount of $1,995.65.
Released: May 25, 2018
Amanda Fricot, Adjudicator
Footnotes
- D. J. Aviva Insurance Canada, 2016 CanLII 93136 (ON LAT) at paragraph 28.```