Tribunal File Number: 18-007327/AABS
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:
D. K.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Mark Vella, Counsel
HEARD: In writing on March 25, 2019
OVERVIEW
1The applicant was injured in an automobile accident on April 29, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES:
2The issues in dispute in this hearing are:
- Is the applicant entitled to medical benefits for treatment recommended by HealthPlus Rehab as follows;
i. $1,592.00 for chiropractic treatment submitted in a treatment plan dated October 4, 2017; and
ii. $1,140.00 for chiropractic treatment submitted in a treatment plan dated May 17, 2018?
Is the applicant entitled to interest on overdue payment of benefits?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonable withheld or delayed the payment of benefits?
RESULT
3The applicant is entitled to the treatment plan dated October 4, 2017.
4The applicant is not entitled to the treatment plan dated May 17, 2018.
5The applicant is entitled to interest on the incurred goods and services related to the October 4, 2017 treatment plan.
6The applicant is not entitled to an award.
BACKGROUND
7The applicant was the rear-seated, unbelted, passenger of a vehicle which was struck by an oncoming vehicle. The applicant was transported to the hospital following the accident but was discharged after x-rays and a CT scan of the head found no fractures.
8The applicant initially received treatment for soft-tissue injuries within the framework of the Minor Injury Guideline (MIG), which the respondent funded. The applicant was later found to have suffered from a psychological injury and was removed from the MIG and no longer subject to the $3,500.00 funding limit on treatment. Despite the applicant’s removal from the MIG, the respondent denied funding for two treatment plans, which the applicant disputes in this hearing.
9The applicant submits the proposed treatment plans are reasonable and necessary to reduce ongoing pain, increase range of motion in the neck and back, and return the applicant to activities of normal living. The applicant further submits the clinical notes and records ("CNRs") from HealthPlus Rehab, Dr. J. S. Dulku, family physician, Dr. J. Sidhu, chiropractor, and the noted pain complaints contained in those records are evidence the disputed treatment plans are reasonable and necessary. The applicant further submits the respondent’s denial of funding for treatment has caused the applicant’s condition to deteriorate.
10The respondent submits the applicant has not provided any significant evidence as to why the proposed treatment plans are reasonable and necessary. It submits the CNRs of Dr. Sidhu are only for the period from June 5, 2017 to August 25, 2017 and are too remote to address the disputed treatment plans. The respondent also submits the treatment plans are not reasonable because the applicant has not provided any evidence establishing how the goals of the treatment plan will be achieved.
THE TREATMENT PLAN DATED OCTOBER 4, 2017
11Upon review of the submissions and for the following reasons, I find the treatment plan dated October 4, 2017 is reasonable and necessary. The treatment plan goals are to reduce pain, increase range of motion, and return to activities of normal living which I find to be consistent with the applicant’s recovery.
12The CNRs of Dr. Dulku shows the applicant complained of lingering back, neck, and shoulder pain during visits on June 5 & 16, and August 25, 2017. The CNRs of HealthPlus Rehab list low and mid back pain during clinical visits throughout September 2017 and note the applicant “feels relaxed” after treatment. The insurer examination (“IE”) report by Dr. N. Farber, physician, noted the applicant’s pain complaints during the October 27, 2017 assessment.
13I find Dr. Dulku’s CNRs are relevant and timely when considering whether the October 4, 2017 treatment plan is reasonable and necessary. The last entry in Dr. Dulku’s CNRs is dated August 25, 2017, which is less than 6 weeks prior to the treatment plan. This is a reasonable amount of time between visits when one considers the applicant did not have OHIP coverage at the time of the accident and was already receiving regular treatment from HealthPlus Rehab.
14The applicant’s complaints of pain continued for over 3 months following the submission of the October 2017 treatment plan. The complaints are noted in the psychological assessment by Dr. T. Toneatto, psychologist, and A. Mahmood, psychotherapist, which occurred on January 19, 2018 (“the Toneatto/Mahmood report”). The applicant complained of neck, back and shoulder pain during the assessment and it was noted the applicant was on modified duties at work following the accident, but the report does not specify the duration. The Toneatto/Mahmood report concluded the applicant’s pain, stress, and anxiety interfere with all areas of functioning.
15The finding in the Farber IE of October 27, 2017 does not override the balance of the evidence. Dr. Farber found that the proposed treatment is not reasonable and necessary because, according to Dr. Farber, the applicant shows no objective signs of physical impairment. The focus of the Farber IE was whether the applicant’s physical injuries were subject to the MIG, not whether further treatment would reduce pain, increase range of motion, and return the applicant to activities of daily living. I find Dr. Farber’s opinion on the treatment plan unpersuasive considering the plan had more goals than just to improve functionality.
THE TREATMENT PLAN DATED MAY 17, 2018
16In addition to the Toneatto/Mahmood report and the CNRs of Dr. Dulku, the applicant provided the CNRs from Dr. A. Khakshaee, family physician and from a treatment facility located overseas. The applicant submits the treatment plan is reasonable and necessary based on this evidence but did not specify why.
17The respondent objects to the inclusion of the CNRs from the overseas treatment facility because it was only produced with the applicant’s initial written submissions and not in compliance with the Tribunal’s direction.
18The respondent submits the applicant wrongly relies on the opinion in the Toneatto/Mahmood report to claim entitlement to the physical treatment outlined in this disputed treatment plan. The respondent further submits the only timely medical opinion that addresses the physical nature of the applicant’s injuries outlined in the May 17, 2018 treatment plan is the IE report of Dr. P. Tepperman, physician.
19I agree with the respondent and find the treatment plan dated May 17, 2018 is not reasonable and necessary. My reasons are as follows.
20I have admitted the CNRs from the applicant’s treatment overseas but assign them little weight. The records were disclosed late, without any reason why the records weren’t disclosed according to the Tribunal’s direction, and the respondent was not given adequate time to scrutinize the CNRs or provide them to IE assessors for comment. In addition, the records do not show any recommendation for treatment. Similar to the CNRs from the overseas treatment facility, I find the CNRs of Dr. Khakshaee to be of little value. This is because CNRs from Dr. Khakshaee are for a period starting 6 months after the May 17, 2018 treatment plan was submitted.
21I find the CNRs from HealthPlus Rehab and specifically the re-assessment of May 10, 2018, offer little in support of the May 17, 2018 treatment plan. The reassessment note states the applicant reported a reduction of neck and back pain, had already returned to work on regular duties, and was independent with activities of daily living. This evidence is not in-line with the goals of the May 17, 2018 treatment plan. For instance, the plan notes the applicant’s injuries affect the applicant’s ability to carry out tasks of employment and activities of normal life however, as mentioned, the applicant returned to work on a full-time basis and was no longer on modified duties at that time.
22The lack of persuasive evidence produced by the applicant leaves the Tepperman IE virtually uncontested and as a result, it is the most relevant evidence when determining whether the May 17, 2018 treatment plan is reasonable and necessary. This is because the Tepperman IE was properly disclosed and is the timeliest reflection of the applicant’s medical status when the treatment plan was proposed.
23Dr. Tepperman examined the applicant’s neck, shoulders, and back and despite noting ranges of motion which were occasionally below normal limits, found the applicant’s pain presentation was non-organic. Dr. Tepperman noted that during the assessment, the applicant exhibited pain-focused behaviour, symptom magnification, and self-limiting movement and concluded the applicant’s soft-tissue injuries had sufficient time to heal and no further institutionally-based treatment is required.
INTEREST
24Pursuant to section 51 of the Schedule, the applicant is entitled to interest on the incurred goods and services related to the October 4, 2017 treatment plan.
AWARD
25Pursuant to section 10 of Regulation 664 the applicant may be entitled to an award because the respondent unreasonably withheld payment of a benefit.
26The applicant claims entitlement to an award on two accounts. First, the applicant submits the benefits disputed in this hearing were not denied in accordance with section 38(8). Second, the applicant submits the respondent wrongly kept the applicant within the MIG after receiving evidence indicating the applicant suffered injuries outside the MIG. I find the applicant is not entitled to an award on both accounts. My reasons are as follows.
27Section 38(8) provides the respondent must respond to a treatment and assessment plan within 10 business days after receipt. It also states the respondent must clearly indicate the goods and services which it will and will not pay for, give medical and other reasons for the denials, and must advise whether the applicant is subject to the MIG. The applicant however, has not made any submissions as to how the respondent failed to follow this section. In addition, and unlike the applicant’s other submissions, these allegations make no reference to the evidence.
28A cursory view of the evidence shows the treatment plan dated October 4, 2017 was submitted October 6, 2017 and was replied to on October 17, 2017. The response noted the applicant's injuries were predominantly minor and subject to the MIG, and an IE was arranged to determine whether the applicant’s injuries were minor and subject to the MIG. The May 17, 2018 treatment plan was submitted on May 22, 2018 and was responded to on June 1, 2018, advising the applicant’s injuries were predominantly minor and subject to the MIG, and an IE was to be arranged to determine if the MIG applies. The treatment plans were responded to within 10 business days, expressly reference the MIG, and have medical and other reasons. The applicant has not provided any submissions as to how the reasons provided by the respondent fail to comply with section 38(8).
29On the other front, the applicant claims the respondent knew the applicant suffered a concussion and ought to have removed the applicant from the MIG as a result. I find this position is unpersuasive because it fails to consider the concussion note the applicant refers to was part of an OCF-23, which is a treatment plan submitted specifically for and pursuant to the MIG. Although the treatment facility noted the applicant may have suffered a concussion, it still felt the applicant’s treatment should proceed according to the MIG and the balance of the evidence suggested the applicant has suffered from predominantly soft tissue injuries. It would be unreasonable to expect the respondent to reject the treatment facility’s findings and remove the applicant from the MIG for one mention of a concussion in a treatment plan submitted under the MIG.
CONCLUSION
30The treatment plan dated October 4, 2017 is reasonable and necessary. The applicant has incurred the costs of the treatment plan as in entitled to be reimbursed for it, plus interest pursuant to section 51. The treatment plan dated May 17, 2018 is not reasonable and necessary. The applicant is not entitled to an award.
Released: October 18, 2019
Brian Norris
Adjudicator