Tribunal File No.: 18-000097/AABS
Between:
T. F.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Nidhi Punyarthi, Adjudicator
APPEARANCES:
For the Applicant:
Nivedita Misra
For the Respondent:
Mark Vella
HEARD In Writing on:
October 15, 2018
OVERVIEW
1The applicant was involved in an accident on May 28, 2015. She sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied her claims for benefits, and she applied to the Licence Appeal Tribunal (“Tribunal”).
2This matter proceeded to a written hearing before me.
ISSUE IN DISPUTE
3The parties have asked me to decide the following issue:
i. Is the applicant entitled to a medical benefit in the amount of $2,004.96 for chiropractic services recommended by [a Clinic] in a treatment plan (OCF-18) dated April 20, 2016, that was denied by the respondent on June 9, 2016?
RESULT
4I find that the applicant is not entitled to the chiropractic treatment plan because the evidence before me did not persuade me that the treatment plan is reasonable and necessary.
5In particular, the problems with the evidence before me are as follows:
ii. The impairments listed in the treatment plan are not supported by the evidence before me;
iii. The treatment plan is dated over a year after the accident and I am not persuaded that the listed impairments were directly caused by the accident;
iv. I have an uncontradicted opinion of a chiropractor that is not in support of the treatment plan;
v. The psychological and psychiatric evidence provided was not relevant to the question of determining whether the chiropractic treatment plan is reasonable and necessary; and
vi. The chiropractic evidence from 2018 was too removed from the accident and the treatment plan in dispute.
ANALYSIS
6To be entitled to a medical benefit under the Schedule, the applicant has to satisfy me on a balance of probabilities that:
a. she has suffered an impairment as a result of the accident (Section 14); and
b. the expenses are reasonable and necessary and incurred as a result of the accident (Section 15).
7The applicant has not met these criteria due to the evidentiary problems listed above. I have provided more detail on these evidentiary problems in the following paragraphs:
A) The impairments listed in the treatment plan are not supported by the evidence before me
8In the treatment plan at issue, the chiropractor, Dr. Furgal, lists a number of areas of impairment. These include: “cervical disc disorder with radiculopathy; other sprain and strain of cervical spine; sprain and strain of thoracic spine; sprain and strain of shoulder joint, not otherwise specified; sprain and strain of lumbar spine; low back pain; headache; nervousness; disorders of initiating and maintaining sleep.”
9The chiropractor also identified the following barriers to recovery: severity of symptoms at the time of initial assessment; “emergence of radicular symptoms (left C5, C6 nerve roots); history of chronic headaches; initial injury reactions such as sleeping difficulty and nervousness; high scores on the Neck Disability Index and Oswestry Disability Index; hypothyroidism and coronary heart disease; not employed prior to the accident; involved in a severe accident; shows signs of emotional disturbance regarding injuries; shows signs of post-traumatic stress.”
10There is no medical evidence before me to support these listed impairments and barriers to recovery. I have no records of chiropractic treatment from around the timeframe of the treatment plan, or a supportive opinion or report. Therefore, I do not see the basis upon which Dr. Furgal identified these matters when he prepared the treatment plan in April, 2016.
11I also note that only two months after this treatment plan was submitted, the applicant advised a chiropractic assessor retained by the respondent, Dr. Balsky that previous chiropractic treatment had resolved all of her physical accident-related ailments save and except her left shoulder. This is directly in contrast with the information provided by Dr. Furgal on the treatment plan.
12Because the impairments listed in the treatment plan are not supported by the evidence before me, I am not satisfied that the listed impairments were caused by the accident, or that the treatment plan itself is reasonable and necessary.
B) Almost one year gap between accident and treatment plan
13There is a time gap in the medical records provided to me. The treatment plan is dated about 11 months after the accident. I have not been provided with any records of medical visits or treatment that took place in the interim period.
14This gap in the evidence presents a challenge in terms of identifying whether the treatment as proposed in the plan is reasonable and necessary as a result of the accident. Based on the lack of evidence during this crucial time period, I am not able to find that the treatment plan is reasonable and necessary.
C) Dr. Balsky’s opinion under section 44 remains uncontradicted
15The respondent requested an assessment under section 44 by a chiropractor, Dr. Balsky. Dr. Balsky assessed the applicant on June 8, 2016.
16As indicated above, the applicant indicated to Dr. Balsky that the only unresolved complaint from the accident was her left shoulder.
17Dr. Balsky conducted a musculoskeletal examination of the applicant and found that she no longer demonstrates any accident-related impairment. The pain that she experienced “in some tests performed with adequate levels of palpation and provocation” did not translate into an accident-related impairment.
18Dr. Balsky went on to reject the treatment plan at issue for the following reasons:
a) More than one year had passed since the accident, and the applicant’s uncomplicated soft tissue injuries as a result of the accident should have healed with time so as not to warrant further facility-based rehabilitation.
b) The applicant should be able to manage herself independently with a home-based exercise program that she was compliant with at the time of the assessment.
c) In the past, chiropractic treatment has benefited the applicant and resolved her previous ailments, but her left shoulder has not improved. However, further treatment in the same vein as proposed in the treatment plan would not provide her with additional rehabilitative benefit at this juncture.
19I find that Dr. Balsky’s opinion on the reasonableness and necessity of the treatment plan at issue is supported by his examination results and the data that he gathered. He observed pain and limitation in some movements on the applicant’s part, and opined that this pain and limitation was not an accident-related impairment. He was attentive to the applicant’s report that her left shoulder remained a problem for her, and opined that the treatment as proposed in the plan, more than one year after the accident, would not provide her with additional rehabilitative benefit to address her left shoulder problem.
20I have not been provided with any opinion to challenge or contradict the findings and report of Dr. Balsky. I find Dr. Balsky’s opinion to be properly supported by his examination data and consider it to be persuasive in determining that the treatment plan of Dr. Furgal is not reasonable and necessary.
D) Irrelevant psychological and psychiatric evidence
21The applicant has submitted clinical notes and records of her psychiatrist, Dr. Lalani, and reports from a psychologist, Dr. Vitelli. The records of Dr. Lalani and Dr. Vitelli do not address the treatment plan in question, and do not provide any commentary on whether the treatment plan in question for chiropractic services is reasonable and necessary for the applicant.
22In addition, I have not been provided with any evidence on the relationship between the issues identified by Dr. Lalani and Dr. Vitelli and the applicant’s need for chiropractic treatment as proposed by Dr. Furgal.
23Accordingly, I have not considered the records of Dr. Lalani or Dr. Vitelli as relevant for the purpose of deciding the issue in dispute.
E) Remoteness of evidence from 2018
24The accident was in May 2015. The Treatment Plan is dated April 20, 2016. I have been provided with records showing that the applicant started seeing a chiropractor for the first few months of 2018. She also happened to re-injure her left shoulder in a separate incident in March, 2018.
25In my view, any evidence of these events, as well as any subsequent assessments conducted by the respondent, are far too removed from the accident and treatment plan in question.
26Therefore, I have not considered the evidence of events and assessments from 2018 as relevant to the question of whether the treatment that Dr. Furgal had proposed in April 2016 was reasonable and necessary.
CONCLUSION
27The treatment plan as drafted did not correspond to the applicant’s own reports about her injuries at the time. She complained of left shoulder pain, and Dr. Balsky found that it was not an accident-related impairment.
28There is no cogent evidence before me to support the propositions that the impairments listed in the treatment plan were caused by the accident and that the treatment proposed is reasonable and necessary to address those impairments. Rather, the uncontradicted opinion of Dr. Balsky shows that the applicant does not have the impairments listed in the treatment plan, and that she would benefit from a self-directed exercise program as opposed to the chiropractic sessions proposed in the treatment plan.
29On the basis of the evidence before me, the treatment plan at issue was properly denied and is not payable.
Release date: February 14, 2019
Nidhi Punyarthi
Adjudicator