A.G. v. Aviva General Insurance, 2019 CanLII 119748

Citation: AG vs. Aviva General Insurance, 2019 ONLAT 18-012669/AABS

Release 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:

A.G.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Yasar Saffie, Counsel

For the Respondent:

Leanne Zabudsky, Counsel

HEARD: In Writing

August 19, 2019

OVERVIEW

1The applicant ("A.G.") was involved in a motor vehicle accident on May 2, 2015 ("the accident") and sought medical benefits from the respondent ("Aviva").

2A.G. submits that as a result of injuries he sustained in the subject accident, the physiotherapy treatment he seeks is reasonable and necessary.

3Aviva argues A.G. has not established that the treatment plan is reasonable and necessary.

ISSUES

4The issues to be determined are as follows:

i. Is the medical benefit for physiotherapy services recommended by MedRehab Woodbridge reasonable and necessary?

ii. Is A.G. entitled to interest on any overdue payment of benefits?

FINDINGS

5Based on a review of the evidence, I find the following:

i. A.G. is not entitled to the treatment plan in dispute; and

ii. A.G. 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.¹

ANALYSIS

The treatment plan is not reasonable and necessary

7A.G. has not satisfied his onus nor persuaded me that the proposed physiotherapy 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. The information in Part 8 b), Activity Limitations of the November 2015 treatment plan, is almost identical to that contained in the treatment plan in dispute. In 2015, A.G. is noted to have moderate to severe pain over the entire back, he must stretch several times a day at work "in order to keep up", his pain increases with prolonged sitting, standing and repetitive bending, he has pain in his ankles and knees when standing and was having difficulty finding a comfortable position for sleep;

b. In the same section on the disputed treatment plan, the treatment provider notes that A.G. is complaining of severe back pain over his entire back, he still must stretch at work during the day, he is still reporting pain in both ankles and knees that increases with weight hearing and he has difficulty falling asleep;

c. In the disputed treatment plan, A.G.'s reported pain levels have increased since the 2015 treatment plan; and

d. The insurer examination ("IE") assessor found physiotherapy treatment not to be reasonable and necessary. Considering A.G.'s self-reports that he "identifies little to no improvement in symptoms", I am persuaded by the IE assessors' reports and opinions.

9A.G. 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. A.G.'s Family Physician, Dr. Andrew Caruso and the treatment provider have recommended physiotherapy to assist A.G. in his recovery.

10To meet his burden of proof, A.G. relies on clinical notes and records and the report/recommendations from the treatment provider. His case for ongoing pain issues is based on:

i. The treatment plan ("OCF-18") in the amount of $1,596.50, dated July 19, 2018 authored by Physiotherapist Rochelle Nicdao; and

ii. Clinical notes and records ("CNRs") of his Family Physician, Dr. Caruso.

11I do not find the goals of Ms. Nicdao's treatment plan/report and Dr. Caruso's CNRs to be persuasive. Although both treatment providers make similar diagnoses regarding A.G.'s impairments, neither discuss whether physiotherapy will provide further benefit.

12I reject the conclusion that the treatment plan is reasonable and necessary because A.G. has tried several modes of treatment (including physiotherapy) to deal with his accident-related impairments and pain. None of A.G.'s medical evidence amassed in the CNRs nor previous treatment plans or reports by A.G.'s various treatment providers establish the benefit of further physiotherapy treatment.

13A.G. submits that physiotherapy is slightly helpful. A.G. reported to Aviva's assessor, Dr. Khaled², an increase of 80% improvement in his symptoms, however, the pain has gotten worse over the past three years. A.G. stated that while physiotherapy does not help with his migraines, it does help with his low back, arm and leg pain.

14A.G. has failed to provide any clinical updates from treating practitioners, including the health services provider who completed the treatment plan, to establish that treatments have been effective in reducing his pain or impairment. Aviva contends that evidence of benefit from treatment is needed to meet the onus on A.G. to prove that the claimed benefits are reasonable and necessary.

15I agree with A.G.'s argument that pain relief is a valid treatment goal, and Aviva agreed with this position. However, in the case cited by A.G. in support of his claim, the disputed treatment plans were shown likely to produce results.³ I find that A.G.'s evidence does not meet this standard. For instance:

(a) From my reading of the previous treatment plans submitted by both parties, A.G.'s pain complaints have not significantly decreased over the years between the November 10, 2015 and the disputed July 19, 2018 treatment plans, despite physiotherapy treatment. This is evidence that the proposed treatment is not achieving the pain reduction goals indicated in the treatment plan.

(b) A.G.'s failure to provide any clinical updates from treating practitioners to establish objective progress or effectiveness of treatment leaves me with no evidence to refute Aviva's contention that the proposed treatment will not be effective in reducing his pain or impairment. I am persuaded by A.G.'s self-reporting⁴ and the evidence of Dr. Khaled that the treatment received to date has not proven to be necessarily effective. A.G. has not met the onus on him to prove that the claimed benefit is reasonable and necessary.

16The medical evidence shows that since the November 2015 treatment plan, the pain complaints have increased, rather than decreased. This is significant, because A.G. has received physiotherapy treatment approximately 1-2 times per week for an extended period since the accident, and with the treatment plan over four years post-accident, pain complaints have in fact increased despite the same claimed treatment being received.

17In addition, Dr. Caruso's CNRs show the objective testing regarding A.G.'s range of motion has been consistently normal over the period of time between the November 2015 treatment plan and the disputed treatment plan. This is similar to Dr. Khaled's objective testing which also found normal range of motion.

18As a result of the foregoing findings, I conclude that A.G. has not satisfied his onus to establish that the treatment plan is reasonable and necessary.

CONCLUSION

19A.G. is not entitled to the disputed medical benefit for physiotherapy services or interest.

Released: November 25, 2019

___________________________

Derek Grant

Adjudicator

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635
2. 2Physician Assessment Report, prepared by Dr. M. Khaled (Physician), at HVE Healthcare Assessments, dated November 16, 2018
3. 317-001146 v Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT)
4. 4A.G.'s Affidavit dated July 10, 2019 - Tab 4 – Applicant's submissions