Tribunal File Number: 17-007873/AABS
Case Name: 17-007873 v Aviva Insurance Canada
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 Canada
Respondent
DECISION
ADJUDICATOR:
Dawn J. Kershaw
APPEARANCES:
For the Applicant:
Domenic Pellegrino, Counsel
For the Respondent:
Mark Vella, Counsel
Held by Written Hearing:
April 23, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on July 15, 2015. She applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The respondent declined to pay for certain medical benefits because its examination reports found the treatment in dispute was not reasonable and necessary.
2The applicant applied to the Tribunal for resolution of the disputed treatment plan. For the reasons that follow, I find the applicant is not entitled to receive the disputed medical benefit.
ISSUES
3The parties agree that the issue in dispute is as follows:
(i) Is the applicant entitled to payment of $3,225.80 for chiropractic treatment recommended by Mediwise Healthcare Clinic in an OCF-18 treatment plan (“treatment plan”) submitted on April 23, 2016 and denied on June 3, 2016?
RESULT
4I find that the applicant is not entitled to payment of $3,225.80 for chiropractic treatment because she has not satisfied the onus on her of proving that the treatment plan was reasonable and necessary.
ANALYSIS
Timing of Productions
5Before considering the substantive issues before the Tribunal, I will address the procedural issue raised by the respondent. The respondent wrote to the Tribunal on March 13, 2018 to advise of its intention to seek certain relief because the applicant did not deliver her documents by March 12, 2018 as set out in the Tribunal’s order of February 20, 2018. The applicant provided the documents to the Tribunal and to the respondent on March 13, 2018, and the respondent made no further objection.
6In the absence of further objection by, or any prejudice to, the respondent caused by a one day delay, I permit the applicant to rely on the documents.
Entitlement to Medical Benefits and Parties’ Positions
7Entitlement to medical benefits is determined under sections 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 automobile accident.
8In this case, the respondent concedes that the Minor Injury Guideline and the resultant $3,500.00 financial cap under s. 18(1) of the Schedule does not apply to the present case.
9I was not provided with the disputed treatment plan. The only information I have about it is from the insurer’s examination report of Dr. Rabinovich, dated June 29, 2016 (“IE”), which sets out the requested treatment, as follows:
(i) Documentation, support activity for claim form
(ii) Manipulation, multiple body sites
(iii) Exercise, back NEC
(iv) Exercise, multiple body sites
(v) Exercise, respiratory system NEC
10In support of her argument that the treatment plan is reasonable and necessary, the applicant points to the clinical notes and records of her family physician, Dr. Chowdry, and to the Dr. Indech’s orthopaedic assessment report, dated August 11, 2016.
11The applicant began chiropractic and massage treatment soon after the accident. She first saw her family doctor, Dr. Chowdury, several weeks after the accident on July 30, 2015 for unresolved pain in her neck, left wrist, left arm and shoulders. He recommended continuing therapy and sent her for x-rays that showed disc space narrowing in her neck. Because of ongoing pain in her shoulder, she had an ultrasound on August 31, 2015 that revealed a small intersubstance tear in the supraspinatus tendon with mild underlying bursitis.
12The applicant relies on Dr. Chowdury’s September 22, 2015 review of the shoulder ultrasound and his recommendation that she continue physiotherapy and medications and follow up in 6 to 8 weeks if there was no improvement.
13Almost one year later, Dr. Indech diagnosed the applicant on August 11, 2016 with:
(i) acute left wrist and hand injuries, including a now recognized occult fracture of the left scaphoid carp [sic] bone;
(ii) post-traumatic onset of left carpal tunnel syndrome;
(iii) ongoing pain in the left anatomical wrist snuff box due to post-traumatic aseptic necrosis of the left scaphoid carpal bone;
(iv) post-accident late whiplash syndrome;
(v) post-accident aggravation of pre-existing low back pain;
(vi) post-traumatic multifactorial headaches; and
(vii) post-traumatic dysfunction of left arm, hand and wrist.
14He reviewed her treatment to date, which included having received chiropractic treatment for all of her injuries except her left hand and wrist. He noted that the applicant told him the treatments helped and she was still improving slowly.
15As of the date of his assessment, Dr. Indech reported that the applicant had headaches and pain in her left hand, neck and back. She had normal range of motion of her back, neck, shoulders, lower limbs and elbows. She had pain in the musculoligamentous structures of her back. Her most significant injury was a fractured scaphoid from which she had pain, numbness and weakness in her left hand.
16Dr. Indech’s only recommendation for treatment was a splint and possible surgery for the applicant’s left hand. He also stated that additional massage therapy could be helpful for her neck, upper body and low back.
17Dr. Rabinovich, the orthopaedic surgeon who conducted the IE, reported in July 2016 that the applicant had sustained primarily soft tissue injuries, undergone extensive passive therapy and had reached maximum medical recovery, and therefore no further treatment would facilitate her recovery. His March 13, 2018 addendum, in which he reviewed further medical documents including diagnostic tests, did not change his opinion.
18In light of all the medical evidence, I find that the applicant has not satisfied the onus on her to prove that the disputed treatment plan is reasonable and necessary. Although I did not have the treatment plan, my decision is not based on its absence. I was able to assess whether it was reasonable and necessary from the information in the IE and in the balance of the medical information.
19While the applicant challenged the IE findings, Dr. Indech’s assessment also provided no support for the recommended treatment, namely manipulation and exercise. His only recommendation was for massage therapy. Dr. Indech’s and Dr. Rabinovich’s reports, both of which provide no support for the recommended treatment, were authored closest in time to the disputed treatment plan.
20The applicant also relied on Dr. Chowdury’s September 2015 note, but not only was this note made 7 months prior to the treatment plan, it also recommended physiotherapy for the applicant’s left hand, which does not appear to be the treatment proposed in April 2016. I have no way of assessing whether the proposed treatment included treatment for the applicant’s left hand, which without a doubt was the worst injury, but even if it did, Dr. Indech subsequently diagnosed the applicant with a scaphoid fracture and recommended the applicant not have any other therapy on her hand until such time as possible surgery was excluded.
21For all these reasons, I therefore conclude that the applicant has not satisfied the onus on her of proving that the treatment plan was reasonable and necessary.
ORDER
22The applicant’s appeal is dismissed.
Released: May 31, 2018
___________________________
Dawn J. Kershaw, Vice-Chair