Tribunal File Number: 17-005865/AABS
Case Name: 17-005865 v Aviva Insurance Canada
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 Canada
Respondent
DECISION
ADJUDICATOR: Jessica Cavdar
APPEARANCES:
For the Applicant: Jae H. Cho, Counsel
For the Respondent: Robert Jones, Counsel
HEARD: In writing on March 28, 2018
OVERVIEW
1The applicant was involved in an automobile accident on June 30, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The respondent denied the benefits on the basis that the proposed treatment plan was not reasonable and necessary. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3The parties participated in a case conference but were unable to resolve the issues in dispute.
ISSUES
4The following issues must be determined by the Tribunal:
I. Is the applicant entitled to receive medical benefits in the amount of $2,793.86 for chiropractic services recommended by Dr. Edward Chun in an OCF-18 dated August 4, 2015 (the “Treatment Plan”)?
II. Is the applicant entitled to interest on any overdue payment of benefits?
5The applicant’s submissions included an argument that the applicant’s injuries fall outside of the Minor Injury Guideline (MIG). The applicant requested that the Tribunal find that the applicant was out of the MIG.
6The Minor Injury Guideline was never an issue in dispute before the Tribunal (according to the Order of Adjudicator Kowal issued on December 22, 2017). The respondent also confirmed in its submissions that it agrees that the applicant’s injuries fall outside those in the Minor Injury Guideline. Accordingly, a MIG determination is not in dispute.
RESULT
7After reviewing the parties’ submissions and documentary evidence, and for the reasons that follow, I find that the Treatment Plan for chiropractic services is neither reasonable nor necessary.
REASONABLE AND NECESSARY
8Under s.14 of the Schedule, an insurer must pay the medical and rehabilitation benefits under ss. 15 to 17 to an insured person who sustains an impairment as a result of an accident. Section 15(1) includes expenses for chiropractic treatment that is reasonable and necessary for the treatment of the insured person.
9The question before me is whether the applicant has established, on a balance of probabilities, that her requested chiropractic Treatment Plan is reasonable and necessary.
THE PARTIES’ POSITIONS
10The applicant argues that she is entitled to the chiropractic services recommended in the Treatment Plan, stating that it is reasonable and necessary for her circumstances because she continues to suffer from consistent, ongoing pain. The applicant submits that a denial would be detrimental to her overall and long-term health.
11The respondent argues that the applicant is not entitled to the Treatment Plan because no evidence supports the applicant's assertion that she requires ongoing chiropractic treatment for the injuries she sustained in the accident.
ANALYSIS
12I find that the applicant has not led sufficient evidence to link her proposed Treatment Plan to her ability to return to activities of daily living or to her pain management. Accordingly, the applicant has failed to establish, on a balance of probabilities, that the requested Treatment Plan for chiropractic services is reasonable and necessary.
13To support her submission that the Treatment Plan in question is reasonable and necessary, the applicant relies on a November 26, 2015 section 25 report by Dr. Igor Wilderman, a physician and pain management consultant.
14Dr. Wilderman’s report was not drafted in response to or in support of the Treatment Plan; his report does not mention the Treatment Plan at all. Rather, this report recommends that the applicant receive chronic pain treatment.
15Dr. Wilderman concludes in his report that the applicant would benefit from the implementation of a “well-structured intensive chronic pain program.”1
16I note that Dr. Wilderman mentions that “the above [intensive chronic pain] program should incorporate active exercise, chiropractic treatment, and physiotherapy.” However, this was his report’s only mention of chiropractic treatment.
17Notably, in the subsequent paragraphs of his report, Dr. Wilderman goes on in great detail to specify many different treatment recommendations for the applicant, which include aqua-fit exercises; stretch and spray techniques; dry needling; acupuncture; biofeedback, cognitive behavioural therapy; stress management; dialectical behavioural therapy; socialization in a group setting; 10-12 sessions of psychotherapy; meditation and relaxation techniques; cortisone injections to her bilateral thumbs and left trochanter; OnabotulinumtoxinA injections; transdermal compounding cream with anti-inflammatory medications and muscle relaxants; wrist splints; lumbar support in the form of a lower back brace; foot orthotics; and microcurrent electrical therapy.2
18I find that the passing reference to chiropractic treatment in Dr. Wilderman’s chronic pain report is, by itself, insufficient to demonstrate why the applicant’s requested chiropractic Treatment Plan is reasonable and necessary. This is especially so when Dr. Wilderman immediately went on to devote considerable space and detail in his report to recommending a range of other modalities that would benefit the applicant that did not include chiropractic treatment. I do not give much weight to Dr. Wilderman’s report as sufficient evidence as to why the requested Treatment Plan for chiropractic is reasonable and necessary, especially when considered with what was reported by the applicant’s family doctor about her athletic activities in clinical notes and records, as described below.
19The applicant did not submit any clinical notes and records from her family doctors for almost two years post-accident as evidence. However, clinical notes and records were before me in this matter because the respondent tendered them as evidence.
20The clinical notes and records of Dr. Donatus Mustasingwa, the applicant’s new family physician as of May 2017, do not indicate that the applicant informed him of the accident or any accident-related impairment.
21On July 17, 2017, the applicant informed Dr. Mutasingwa that she had developed a new left shoulder pain that occurred once a year, but that she was continuing to golf regularly and had no issues with activities. Dr. Mutasingwa examined her shoulder, which was normal, and did not recommend any chiropractic treatment.
22On September 28, 2017, the applicant attended a regional health centre complaining of throbbing chest pain which radiated into her left arm, left neck, and head. She visited Dr. Mutasingwa’s office on October 2, 2017 with complaints of intermittent bilateral shoulder pain. The doctor opined that her pain may be related to constipation, and was “likely unrelated to mechanical concern.” Dr. Mutasingwa again did not recommend chiropractic treatment.
23I find that the clinical notes and records before me do not demonstrate why the applicant’s requested chiropractic Treatment Plan is reasonable and necessary. In fact, I find that Dr. Mutasingwa’s specific reference to the applicant’s ability to golf regularly and the fact that her shoulder was normal to be incongruous with the requested Treatment Plan, which seeks chiropractic treatment to restore range of motion and strengthening of the applicant’s rotator cuff. If the applicant’s shoulder was normal three years post-accident, a Treatment Plan for chiropractic for her shoulder does not appear to be reasonable and necessary.
24The applicant further relies on a February 16, 2018 letter from chiropractor Dr. Edward Chun, in which he discusses his clinical notes from the applicant’s visit on August 4, 2015. This letter contains no new information and is a rehashing of Dr. Chun’s contemporaneous clinical notes. He writes: “The recommended treatment plan was to restore range of motion and strengthening of involved rotator cuff musculature.”
25Although dated from this year, this letter, too, is insufficient to demonstrate why the applicant’s requested chiropractic Treatment Plan is reasonable and necessary; it is a restatement of Dr. Chun’s original notes.
26The applicant has not met the burden of proof to show why this specific Treatment Plan is reasonable and necessary for any accident-related impairment.
27For the reasons set out above, I find that the Treatment Plan for chiropractic services is neither reasonable nor necessary.
ORDER
28For the above-noted reasons, this application is dismissed.
Released: July 23, 2018
Jessica Cavdar
Adjudicator