B.M. v. Aviva Canada, 2019 CanLII 119740

Citation: B.M. vs. Aviva Canada, 2019 ONLAT 18-009182/AABS

Tribunal File Number: 18-009182/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:

B.M. Applicant

and

Aviva Canada Respondent

REASONS FOR DECISION AND ORDER

PANEL: Sandeep Johal, Adjudicator

APPEARANCES: For the Applicant: Lawson H. Hennick, Paralegal For the Respondent: Christine McKenna

HEARD: In Writing on: August 19, 2019

OVERVIEW

1The applicant was injured in an automobile accident on May 12, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was making a left hand turn when a truck ran a red light and struck her vehicle. The force resulted in the deployment of her vehicle’s airbags. The applicant opted to have her husband take her home and shortly after she began to experience dizziness, nervousness and her legs started to shake. As a result of the accident, the applicant experienced headaches, neck pain, shoulder pain, arm pain, sleeping difficulties, depression, anxiety, phobia, irritability, frustration, stress and fatigue.

3The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided as set out in the case conference order dated April 16, 2019:

i. Is the applicant entitled to a medical benefit in the amount of $1,296.75 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on September 27, 2016 and denied on October 6, 2016?

ii. Is the applicant entitled to a medical benefit in the amount of $2,268.02 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on April 18, 2017 and denied on May 2, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $4,191.85 for chiropractic treatment recommended by Movement Physio in a treatment plan (OCF-18) submitted on September 12, 2017 and denied on September 28, 2017?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find the applicant is entitled to:

a. A medical benefit in the amount of $2,268.02 for chiropractic treatment;

b. A medical benefit in the amount of $4,191.85 for chiropractic treatment; and

c. Interest on the overdue payment of the benefits above.

6The applicant is not entitled to a medical benefit in the amount of $1,296.75.

ANALYSIS

Is the applicant entitled to a medical benefit in the amount of $1,296.75?

7Based on the following, I find the applicant is not entitled to this treatment plan for the following reasons.

8The respondent submits this identical treatment plan was submitted by the applicant on August 30, 2016 and approved by the respondent on December 13, 2016. The current treatment plan submitted on September 27, 2016 is a duplication and is not reasonable and necessary.

9The applicant submits it was submitted one month after the previous treatment plan and the applicant’s treatment needs would not have been materially changed in the timeframe and the applicant had an active need for treatment.

10I agree with the respondent. A review of both treatment plans shows them to be in essence identical in terms of the injuries and the treatment being proposed and the physiotherapist recommending the treatment. The applicant submits that the treatment would not have materially changed in that one-month time frame, which may be true, however the proposed treatment plan submitted on September 27, 2016 was to last for a period of 8 weeks with 16 sessions and I am not provided with any submissions or directed to any evidence of whether the previous treatment plan was completed or even started and why the need for an additional 8 sessions of the same treatment was required only 4 weeks later.

11With the onus being on the applicant, I find that she has failed to establish on a balance of probabilities that the treatment plan is reasonable and necessary.

Is the applicant entitled to the treatment plans in the amount of $2,268.02 and $4,195.85?

12I find that these two treatment plans to be reasonable and necessary for the following reasons.

13The applicant submits that as a result of the accident, she went to see her family doctor who diagnosed her with myofascial sprain and bilateral pain to both shoulders and lumbar sprain with a recommendation for physiotherapy treatment. There are several instances after the accident where the applicant went to visit with her family doctor complaining of pain.²

14In support of her submissions, the applicant refers to her self reports contained within the psychological clinical notes and records of pain in her back, shoulders, left hip, left leg and left knee along with numbness and weakness in her leg and headaches.³ Also the psychological assessment report dated May 6, 2017 by Dr. Wagner and Mr. Ismailov, psychotherapist who reported that the applicant experiences daily headaches and pain in her neck, back, shoulders and bilateral extremities.⁴ The same report also summarizes that the applicant is debilitated by her pain and that her anxiety manifests through psychological symptoms including, heart racing, difficulty breathing, dizziness and muscle tension.⁵

15The respondent relies on the insurer examination (“IE”) assessor, Dr. Nesterenko, who opined the applicant sustained a WAD I/II sprain/strain to the cervical spine, thoracolumbar spine sprain/strain and right shoulder sprain/strain as a result of the accident and Dr. Nesterenko reports that the applicant’s cervical spine backward extension was mildly reduced and that there was end range of motion pain and her lateral rotation was slow. The applicant’s shoulders were tender with end range of motion pain, her thoracic spine flexion was 70 degrees standing and 90 degrees when seated. Backward extension was 10 degrees, lateral flexion was 30 degrees to the right and 40 degrees to the left. Her rotation was reduced with end range of motion pain as well as tenderness and tightness in her lower back.⁶

16However, Dr. Nesterenko does not provide any assessment on whether the range of motion he is reporting the applicant has are within normal limits or are reduced. Dr. Nesterenko goes onto diagnose the applicant with similar injuries to that of the applicant’s family doctor, namely sprain and strain type injuries to her back and shoulder. He goes on to state that at 8 months post accident the applicant has no subjective improvement with respect to her pain complaints and concludes that the applicant did not demonstrate any muscular skeletal impairment and recommends a self-directed at home exercise program.

17I place less weight on the recommendation provided by Dr. Nesterenko because his diagnosis is similar to the family doctor however, he makes this diagnosis 8 months post accident but yet states that the customary healing time for these types of injuries is 8-12 weeks and that her prognosis in relation to these injuries is good. But he does not provide any explanation as to why after 8 months her injuries still persist when in his opinion, they should have healed in 8-12 weeks.

18The respondent further submits that I should place no weight on the applicant’s affidavit as she is not credible for not having disclosed pre-accident injuries to the IE assessors that she had dizziness in 2009, shoulder pain with discomfort in 2014, vertigo in 2015 and neck pain prior to the accident.

19Even if I were to assign no weight to her affidavit evidence, I am presented with other sources of medical evidence including the IE assessor who noted the applicant to have limitations in her range of motion as a result of pain and that her pain has not healed 8 months post accident. Furthermore, the applicant’s family doctor diagnosed the applicant with myofascial sprain-cervical and both shoulders and lumbar sprain that were as a direct result of the accident. I am not directed to any evidence to suggest that her pre-existing injuries dating back to 2009 are in any way the cause of her pain that continues post-accident.

20The applicant further submits and testified that the treatment would assist her to get back to her normal activities, reduce her pain and increase her range of motion and strength.⁷

21Part 9 of both treatment plans lists as its goals, pain reduction, increase in strength, increased range of motion and a return to activities of normal living.

22It is clear based on medical evidence, the applicant’s evidence and the evidence of the IE assessor, Dr. Nesterenko, that the applicant is in pain and that according to the treatment plan, the goal is to provide pain relief allowing the applicant to function. The Tribunal jurisprudence has established that pain relief is a reasonable and legitimate goal of treatment and the applicant is entitled to seek treatment that helps achieve that goal.

23As a result of the above, I find that the applicant has proven on a balance of probabilities that the treatment plans in the amount of $2,268.02 and $4,191.85 are reasonable and necessary.

INTEREST

24The applicant is entitled to interest on the payment of the two outstanding benefits in accordance with the Schedule.

ORDER

25For the reasons outlined above, the applicant is entitled to:

a. A medical benefit in the amount of $2,268.02 for chiropractic treatment;

b. A medical benefit in the amount of $4,191.85 for chiropractic treatment; and

c. Interest on the overdue payment of the benefits above.

26The applicant is not entitled to a medical benefit in the amount of $1,296.75.

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Applicant at Tab 12.
3. 3Ibid at Tab 13.
4. 4Ibid at Tab 14.
5. 5Ibid at Tab 14, page 9.
6. 6Written submissions of the Respondent at Tab 24(A), page 5.
7. 7Applicant affidavit dated April 25th, 2019 at paragraph 25.