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.M.
Appellant
And
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Nicholas Kapelos, Counsel
For the Respondent:
Candace Mak, Counsel
HEARD:
In Writing on: July 22, 2019
OVERVIEW
1The applicant (“D.M.”) was involved in an automobile accident on January 31, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')1. D.M. was denied certain benefits by the respondent (“Aviva”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2Prior to the subject accident, D.M. had impairments from previous accidents that had still not resolved. Before the accident occurred, D.M. complained of aches and pains in his neck and back, was suffering from major depressive disorder and insomnia, and had applied for CPPD benefits2. He submits that the subject motor vehicle accident worsened his pre-existing impairments and caused new injuries.
3Regarding the accident, D.M. applied to Aviva for and received benefits under the Statutory Accident Benefits Schedule–Effective after September 1, 2010 (the “Schedule”). When it denied further benefits, he appealed to this Tribunal.
ISSUES
4The issues to be determined are:
a. Is the treatment plan in the amount of $1,797.00 for physiotherapy services provided by Rouge Valley Sports Injury and Wellness dated November 30, 2017 and denied on March 18, 2018, reasonable and necessary?
b. Is D.M. entitled to interest on any overdue payment of benefits?
RESULT
5Based on the evidence, I find that:
a. The treatment plan for physiotherapy is not reasonable and necessary; and
b. D.M. is not entitled to interest.
LAW
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.3 D.M. has not met his burden.
ANALYSIS
The treatment plan is not reasonable and necessary
7D.M. has not satisfied his onus nor persuaded me that the proposed treatment plan is reasonable and necessary to address his impairments resulting from the accident.
8I find the treatment plan is not reasonable and necessary for the following reasons:
a. D.M. has tried physiotherapy pre-accident and advised that he did not find it helpful. It’s not clear from the evidence how much pre-accident physiotherapy treatment D.M. has received; and
b. The insurer examination (“IE”) assessors found physiotherapy treatment not to be reasonable and necessary and recommended other forms of treatment; which, considering D.M.’s self-reports that he was not benefitting from physiotherapy, I am persuaded by the IE assessors’ reports and opinions.
9D.M. submits that he is entitled to physiotherapy treatment as he is suffering from whiplash, lumbar strain and tension headaches as a result of the accident. The goals of the treatment are to reduce pain, increase strength, increase range of motion, return to activities of daily living and to pre-accident work activities. D.M.’s Family Physician, Dr. Farber and the treatment providers have recommended physiotherapy to assist D.M. in his recovery. I am not persuaded by the opinions of the medical professionals and find D.M. suffered no significant exacerbation of pre-existing impairments.
10To meet his burden of proof, D.M. relies on a number of reports and recommendations from an array of physicians including medical specialists. His case for ongoing pain issues is based on:
i. Disability Certificate (“OCF-3”) dated March 11, 2014;
ii. OCF-3 dated May 15, 2015;
iii. OCF-3 dated March 21, 2017;
iv. Medical Report of Dr. Rahul Pathak dated June 23, 2016;
v. Medical Report of Dr. Tajedin Getahun dated May 15, 2018; and
vi. CNRs of Family Physician Dr. Farber
11I do not find Drs. Pathak and Getahun’s reports to be persuasive. Although both Drs. make similar diagnoses regarding D.M.’s impairments, neither discuss whether physiotherapy will provide further benefit.
12D.M. submits that physiotherapy [and massage therapy] provides him with some measure of pain relief, increased range of motion and strength and has prevented muscle atrophy and weakness. I disagree. On the contrary, D.M. reported to Dr. Shapero4 that, he's “had physical therapies and massage therapy without significant long-term benefit.” In addition, during a visit to Dr. Farber on October 16, 2017 notes that D.M. is doing physiotherapy but is still not better. Further, there is no medical evidence to support the claim of muscle atrophy.
13I reject the conclusion that the treatment plan is reasonable and necessary because D.M. has tried several modes of treatment (including physiotherapy) to deal with his pre-existing and accident-related impairments and pain. None of D.M.’s medical evidence amassed in the CNRs and reports by D.M.’s various treatment providers establish the benefit of further physiotherapy treatment.
14As a result of the foregoing findings, I conclude that the treatment plan is not reasonable and necessary.
CONCLUSION
15D.M. has not satisfied his onus to establish the treatment plan is reasonable and necessary.
16D.M. is not entitled to interest.
Released: November 1, 2019
___________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10.
- Medical Report for Service Canada CPP Disability application, completed by Dr. Farber, Family Physician, dated March 21, 2010, lists the following injuries: Major depression and chronic pain syndrome secondary to the accident(s); Neck pain, numbness and tingling in the right middle and right fingers due to C7 radiculopathy, headache, decreased range of motion and pain referred to the shoulder muscle; and Major depression related to the accident and inability to work.
- Scarlett v. Belair, 2015 ONSC 3635
- Dr. Gary Shapero (Pain Specialist), report dated March 31, 2017