Released Date: November 25, 2019
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:
E. D.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Frank Blasi, Counsel
For the Respondent:
Annemarie White, Counsel
HEARD: In Writing
August 12, 2019
OVERVIEW
1The applicant (“E.D.”) was involved in an automobile accident on September 20, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This dispute focuses on the fact that the respondent (“Aviva”) denied E.D. entitlement to chiropractic treatment.
2E.D. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.
3Aviva argues that E.D. has not established that the treatment plan is reasonable and necessary.
ISSUES
4The issues I must determine are as follows:
i. Is the medical benefit in the amount of $1,977.05 for chiropractic services recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan dated July 19, 2017, denied on August 23, 2017, reasonable and necessary?
ii. Is E.D. entitled to interest on any overdue payment of benefits?
iii. Is E.D. entitled to an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?
FINDING
5Based on a review of the evidence, I find the following:
i. E.D. is not entitled to the treatment plan in dispute;
ii. E.D. is not entitled to interest; and
iii. E.D. is not entitled to an award.
ANALYSIS
Is E.D. entitled to the chiropractic treatment plan?
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.1
7For the reasons that follow, I find that the treatment plan is not reasonable and necessary. E.D. submitted as evidence a treatment plan completed by Angel Russi, Chiropractor. Part 8 details E.D.’s Activity Limitations. Part 9 (a) sets out the treatment goals. Part 9 also lists the possible barriers to recovery as "prior MVA (Oct 2013); prior wrist injury that was re-aggravated with this accident, multiple sites of injuries, headache and sleep disorder, anxiety". Part 12 lists the proposed service, frequency and costs therein.
8E.D. directed me to the clinical notes and records of her family physician, Dr. Paul Zanette. I note the records includes notes of only two visits. At the first, on April 13, 2017, Dr. Zanette refers to a C-spine MRI report, “nil significant still having usual sx (i.e., “symptoms”) re: neck and (L) upper limb…also moderate back symptoms still hasn’t seen Dr. Tuli in follow-up re: (L) shoulder and upper limb”. Dr. Zanette mentions “chronic pain” and “chronic”, however, it’s not clear what Dr. Zanette is referring to. Dr. Zanette recommends counselling and psychology as directed. Critically, there is no recommendation for any physical treatment for her accident-related symptoms.
9At the second visit, on July 13, 2017, the notes indicate a recommendation from E.D.’s lawyer for a psychology assessment. I find that a recommendation from a legal representative, who is not a medical professional, to see a psychologist, does not establish the necessity for psychological treatment for E.D. There is no psychological treatment plan before me, therefore, I place little weight on any psychological medical reporting/evidence.
10Further, in the notes on the July 2017 visit, Dr. Zanette again makes reference to “chronic pain’ and “chronic”, which appear to be in reference to a uterine fibroid diagnosis. This is not an accident-related physical injury. Dr. Zanette recommended orthotics/orthopaedic shoes and compression stockings. There is no mention of any accident-related symptoms.
11A treating physician’s mention of a chronic pain condition, be it ‘syndrome’ or specific use of the term ‘chronic pain,’ is not enough to establish the necessity of a treatment plan. More importantly, E.D. has failed to establish that due to ‘chronic pain’, the treatment is reasonable and necessary.
12E.D. also relied on a report from Dr. Langer.2 Although Dr. Langer diagnosis E.D. with chronic pain, this is a pre-accident report. There is no post-accident report from Dr. Langer. An assessment report on behalf of an insured should be objectively based on both the pre- and post-accident impact on functionality. A pre-accident report that does not speak to the post-accident period fails to provide the necessary insight of an insured’s functionality. Where the post-accident objective view is absent, an insured fails to meet their burden to provide persuasive medical evidence in a proceeding.
13Further, there is no evidence that Dr. Langer is qualified as a chronic pain specialist. For these reasons, I am not persuaded by the report of Dr. Langer.
14In addition, I do not find the treatment plan is reasonable and necessary when the recommendations from E.D.’s own regular treating health practitioner do not support chiropractic care.
15Aviva conducted its own assessment and relied on its assessor’s reports3 in denying the treatment plan. E.D. reported to Dr. Goldstein that, in the approximately 13 months since the subject accident, she reports only a 15-20% improvement despite the soft tissue sprains and strains sustained in the accident. Dr. Goldstein opined that continuing with the same level of passive modalities would not be beneficial for E.D.
16The treatment plan is contradicted by E.D.’s self-reporting4, and treatment provider(s) recommendation of different treatment modalities for psychological treatment or other non-accident related injuries and impairments. This is not enough to establish entitlement to the disputed treatment plan. In this case, E.D. has provided a treatment plan, and no other recommendations for chiropractic treatment.
17As a result, I find E.D. has not met her onus in explaining how this treatment plan meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan reasonable and necessary.
AWARD
Is E.D. entitled to an award?
18Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.
19I have already found that E.D. is not entitled to the chiropractic treatment plan, therefore Aviva cannot be found to have unreasonably withheld payment of the benefit.
20There is no evidence before me that Aviva has established the threshold behavior required to justify an award claim under section 10. As a result, I find that Aviva has not unreasonably withheld or delayed payment for any benefit; therefore E.D. is not entitled to an award.
CONCLUSION
21E.D. has not met the onus on her to persuade me that the treatment plan is reasonable and necessary, therefore no interest is owing. E.D.’s claim is dismissed.
Released: November 25, 2019
Derek Grant
Adjudicator
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635.
- Orthopaedic Assessment report dated November 21, 2014 of Dr. Fred Langer
- Physician Assessment Report dated October 12, 2017 of Dr. Mark Goldstein; Physician Addendum Assessment Report dated June 27, 2019; and Orthopaedic Report of Dr. Fred Langer dated November 21, 2013.
- Ongoing shoulder pain as a result of an MVA 28 years prior to subject accident, slip and fall in 2005 again injured the left shoulder.