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:
S.A.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Melody Maleki-Yazdi
APPEARANCES:
Counsel for the Applicant:
Yousef Jabbour
Counsel for the Respondent:
Suhasha Hewagama
Heard in writing:
August 20, 2018
OVERVIEW
1S.A. (“the applicant”) was involved in an automobile accident on November 18, 2014 and sought and received benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent, however, refused to pay for one treatment confirmation form (OCF-23) and one treatment plan (OCF-18) requested by the applicant. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of that dispute.
3A case conference held on May 17, 2018 failed to fully resolve the issues disputed by the parties. As a result, a written hearing was ordered to be conducted in this matter, which is now before me. This decision is based upon my review of the parties’ evidence and written submissions. The applicant did not file reply submissions.
ISSUES
4The following are the issues to be decided:
Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy treatment recommended by Mackenzie Medical Rehabilitation in a treatment plan dated November 28, 2016, and denied on December 2, 2016?
Is the applicant entitled to payment for the cost of examination in the amount of $2,260.00 for a chronic pain assessment recommended by Injury Management in a treatment plan dated June 13, 2017, and denied on July 7, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on the totality of evidence before me, I find that the applicant is not entitled to the physiotherapy treatment. The applicant is also not entitled to the chronic pain assessment. There is no entitlement to interest as there are no overdue payments of benefits.
ANALYSIS
Was the applicant’s right hip injury sustained as a result of the accident?
6The applicant submits that he suffers from chronic neck, shoulder, back, hip and knee pain as a result of the accident.
7The respondent submits that as a direct result of the accident, the applicant sustained only the following physical injuries: neck pain, left shoulder pain, left pelvic pain and left leg pain. In addition, the applicant suffered from headaches and dizziness.
8There is a discrepancy between the applicant’s and respondent’s submissions with regard to the applicant’s right hip injury. I must decide whether the applicant’s right hip injury, one of the injuries for which he seeks treatment, was sustained as a result of the accident.
9In relation to the right hip injury, the clinical notes and records of Dr. Adnan Siddiqui (family physician) indicate the applicant complained about right hip pain on the following dates: January 12, 2016; February 1, 2016; May 3, 2016; May 1, 2017 and August 22, 2017. The applicant had a fall from the steps of a truck sometime in November of 2015. In some of Dr. Siddiqui’s notations, the applicant attributes the right hip pain to the fall and in other later notations he attributes the right hip pain to his accident.
10The applicant met with Dr. Hamid Nourhosseini (orthopaedic surgeon) on April 19, 2016, where in the corresponding consult note it is indicated that the applicant is complaining of severe right sided hip pain. The applicant submits that after ongoing complaints, on April 24, 2016, he underwent a MRI of his right hip to rule out a labral tear. The MRI revealed that there is mild tendinosis of the right gluteus minimus tendon.
11The respondent submits that there is no medical evidence in support of the applicant sustaining a right hip injury as a direct result of the accident. Following the accident, the applicant had only complained of left hip pain until January 12, 2016 (approximately 1 year and 2 months following the accident). On that date, he complained of right hip pain for the first time. He reported to Dr. Siddiqui that in November he “fell from truck on floor”. His headaches and backaches were better with time, but his right hip pain was still there. A pelvic, right hip and femur x-ray was conducted on this date. It was a normal exam and there was no bony injury. On February 1, 2016, the applicant reported “right hip pain since fall” to Dr. Siddiqui.
12The applicant did not file reply submissions and has not provided evidence in support of the right hip injury being sustained as a result of the accident.
13The respondent submits that the “but for” test is the appropriate test for determining causation. The applicant did not make any submissions on the appropriate test to be applied.
14For the reasons below, I find that on either the “but for” test or the “material contribution” test, on a balance of probabilities, the applicant’s right hip impairment is not as a result of the accident. The applicant told Dr. Siddiqui on two occasions (on January 12, 2016 and on February 1, 2016) about how the right hip pain is as a result of the incident with the truck, rather than as a result of the accident. It is only later, in 2017, that the applicant begins to report to Dr. Siddiqui that the pain is as a result of the accident. I find it more convincing that the applicant was truthfully sharing with his family physician the cause of his right hip injury pain in 2016, in close time proximity to when the pain started, rather than in 2017 when more time had passed since the truck incident.
Is the applicant entitled to physiotherapy treatment?
15The treatment confirmation form was prepared by Dr. Patricia Porco, a chiropractor. The form lists the applicant’s injuries as: chronic post-traumatic headache; sprain and strain of cervical spine; sprain and strain of lumbar spine; sprain and strain of sacroiliac joint; dizziness and giddiness; other sleep disorders; nervousness and irritability and anger.
16The applicant is not entitled to the physiotherapy treatment because he has failed to prove that the expense is reasonable and necessary.
Is the physiotherapy treatment reasonable and necessary?
17In support of the reasonableness and necessity of the physiotherapy treatment, the applicant relies on the following:
a. Dr. Siddiqui referred the applicant to Dr. David Morgenthau (neurologist) due to ongoing dizziness and he saw the applicant on March 30, 2015. Dr. Morgenthau noted that the applicant presented with post-traumatic dizziness which is improving, but not resolved. He recommended a course of physiotherapy to improve the applicant’s neck pain and to possibly improve both the dizziness and the headaches.
b. As recommended by Dr. Siddiqui, the applicant underwent physiotherapy treatment from November of 2016 to August of 2017 as a way to get relief for the injuries he sustained as a result of the accident. Due to the applicant’s severe and frequent pain in his neck, left shoulder, back, hip and knee, his physiotherapy exercises were formatted to resolve the pain found in these problematic areas. The applicant would benefit from continued physiotherapy in order to address his symptoms and relieve some of this pain.
18To rebut the applicant’s claim, the respondent relies on the following:
a. The respondent retained Dr. Mohamed Khaled (general practitioner) to conduct an insurer’s examination (“IE”) of the applicant in relation to the requested physiotherapy treatment. In a report dated April 2, 2018, Dr. Khaled opined that the applicant sustained uncomplicated soft tissue injuries as a result of the accident. Dr. Khaled’s physical examination did not reveal any residual or ongoing musculoskeletal, neurological or orthopaedic accident-related injury or impairment. Dr. Khaled concluded that the physiotherapy treatment is not reasonable and necessary as the applicant has had appropriate and adequate facility-based soft tissue rehabilitation therapy.
b. The applicant did not follow the recommendation to attend physiotherapy that was made by Dr. Morgenthau shortly after the accident. On March 29, 2016, Dr. Siddiqui ordered an x-ray and recommended physiotherapy. This was his first recommendation for physiotherapy and it was made approximately 1 year and 4 months after the accident. The applicant did not attend physiotherapy treatment at this time. Approximately two years after the accident, on November 1, 2016, the applicant started physiotherapy treatment. The applicant has not attended treatment since August 22, 2017.
c. At the time the treatment confirmation form was submitted in November of 2016, the clinical notes and records of Dr. Siddiqui indicate that the applicant did not have any ongoing complaints of accident-related injuries. From April of 2016 to date, the applicant made two complaints of “right hip pain” since the accident and the applicant also complained of dizziness once. As discussed above, it is the respondent’s position that the right hip pain should not be attributed to the accident and that the dizziness was attributed to the applicant’s uncontrolled diabetes.
19I conclude, on a balance of probabilities, that the physiotherapy treatment is not reasonable and necessary. I agree with Dr. Khaled’s conclusion that the applicant has had appropriate and adequate facility-based soft tissue rehabilitation therapy as it pertains to injuries sustained as a result of the accident. The applicant attended physiotherapy from November of 2016 to August of 2017. During this time, the applicant complained to Dr. Siddiqui only about his right hip pain injuries, which I determined were not sustained as a result of the accident. On March 19, 2018, the applicant reported to Dr. Khaled that he did not find physiotherapy to be beneficial. Furthermore, there is no evidence that the applicant’s pain inhibits his activities of daily living.
20The physiotherapy treatment requested in the treatment confirmation form dated November 28, 2016 is not reasonable and necessary. The applicant is not entitled to payment for this treatment plan.
Is the applicant entitled to a chronic pain assessment?
21The treatment plan, prepared by Dr. Tajedin Getahun (orthopaedic surgeon), lists the applicant’s injuries as: headache; dizziness and giddiness; cervicalgia; pain in thoracic spine; low back pain; other and unspecified injury of other muscles and tendons at lower leg level; other depressive episodes; malaise and fatigue; disorders of initiating and maintaining sleep [insomnias]; nightmares; irritability and anger; nervousness and anxiety disorder, unspecified.
22The goals of the treatment plan are: to rule out any ongoing pain symptomatology and to determine the possible treatment options at this stage; return to activities of normal living and to return to pre-accident work activities.
23The applicant is not entitled to the chronic pain assessment because he has failed to prove that the expense is reasonable and necessary.
Is the chronic pain assessment reasonable and necessary?
24In support of the reasonableness and necessity of the chronic pain assessment, the applicant relies on the following:
a. Throughout the claim, the applicant has made frequent trips to his family physician, Dr. Siddiqui, in relation to the injuries he suffered in the accident. His injuries have become chronic in nature and have not healed within the three-month period of therapy as required under the Minor Injury Guideline.
25To rebut the applicant’s claim, the respondent relies on the following:
a. The denial of the treatment plan in dispute was based on the findings of Dr. Khaled’s IE report dated April 2, 2018. Dr. Khaled concluded that the treatment plan for the chronic pain assessment was not reasonable and necessary. The applicant did not have any signs or symptoms consistent with any chronic pain conditions that required further or specialized treatment. He has had appropriate and adequate treatment and assessment in relation to the soft tissue injuries.
b. There is no evidence in support of the applicant suffering from chronic pain. The applicant remains highly functional. He returned to work three months following the accident, where he is required to drive long distances.
c. The applicant’s reporting of accident-related injuries to Dr. Siddiqui was sporadic and he has not reported any accident-related injuries for a period of over two years. There is no evidence to support that a chronic pain assessment is reasonable and necessary.
26In evaluating the evidence, I prefer the respondent’s evidence over the applicant’s evidence. I find that the applicant has not provided sufficient medical evidence to show, on a balance of probabilities, that he may be experiencing chronic pain that requires a chronic pain assessment. The applicant’s family physician, Dr. Siddiqui did not opine or comment about any chronic pain in the clinical notes and records. The applicant has not provided a report from a treating physician who has assessed the applicant for whether he may have chronic pain.
27The IE physician, Dr. Khaled, assessed the applicant on March 19, 2018 and the applicant noted pain in his low back, right leg, as well as headaches and neck pain. From the injuries sustained as a result of the accident, the applicant’s low back pain, neck pain and headaches are not reported to be a severe, persistent or constant type of pain. Furthermore, I have not been provided with any evidence that the pain causes a functional impairment. The applicant reported that he is able to work and drive, and is independent with regard to personal activities of daily living.
28I find that the chronic pain assessment treatment plan is not reasonable and necessary.
CONCLUSION
29For the reasons above, the applicant is not entitled to the physiotherapy treatment. The applicant is also not entitled to the chronic pain assessment. There is no entitlement to interest as there are no overdue payments of benefits.
Released: January 25, 2019
Melody Maleki-Yazdi
Adjudicator