M.R. v. Aviva Insurance Canada, 2019 CanLII 22196

Date: 2019-02-15

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:

M.R.

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

Appearances:

For the Appellant: Leyla Shikhzamanova, Counsel

For the Respondent: Suhasha Hewagama, Counsel

Heard by Written Hearing: January 15, 2019

OVERVIEW

1The applicant was involved in an automobile accident on October 29, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant submitted an application to the License Appeal Tribunal-Automobile Accident Benefits Service (“Tribunal”).

3The parties participated in a case conference but they were unable to resolve the issues in dispute between them.

ISSUES IN DISPUTE

4The issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Physiatry Assessment, recommended by [Assessments Inc.] in a treatment plan dated January 28, 2016, and denied by the respondent on March 10, 2016?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,240.36 for assistive devices (amount remaining beyond $678 of partially approved treatment plan), recommended by [Assessments Inc.] in a treatment plan dated November 17, 2016, and denied by the respondent on November 25, 2016?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,791.53 for physiotherapy, recommended by [Rehab] in a treatment plan dated November 20, 2016, and denied by the respondent on December 30, 2016?

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

RESULT

5The applicant is not entitled to payment for any of the claimed benefits.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was in the driver’s seat, stopped in a parking lot at a plaza, when a transport truck exiting the plaza rear-ended his vehicle at the left rear corner and sideswiped the left door. The applicant exited his car and was not transported to a hospital.

8The applicant worked full time as a meat hygiene inspector, working approximately 37.5 hours per week. His job entailed sitting, standing, and occasionally lifting. The applicant took no time off work after the accident. The applicant has a history of hypertension.

9On November 19, 2014, the applicant visited his family doctor, Dr. Suzan Ghattas. The diagnosis was: “sprains, strains, trauma to neck, and low back”¹. On November 5, 2015, Dr. Ghattas completed a disability certificate (OCF-3). The injuries were listed as soft tissue injuries; R/0 [rule out] Rt arm radiculopathy 2x to [secondary to] MVC; [rule out] Carpal Tunnel] syndrome 2x to [secondary to] MVA; Flare up of C-spine DDD 2x to [secondary to] MVC and Cervical + Thoracic+Lumbar Sprain²

10The next visit to Dr. Ghattas, approximately one year later, was on September 21, 2016, where the applicant complained of difficulty sleeping and neck discomfort. The doctor made no recommendations.³

11The applicant visited Dr. Ghattas on October 18, 2017, complaining of right shoulder pain, neck pain, and lower back pain.⁴ He attended at Dr. Ghattas’s office on July 7, 2018, and on July 16, 2018, still complaining of neck, back and left elbow pain⁵.

12The applicant attended physiotherapy regularly from November 24, 2014, to April 29, 2015. On February 15, 2014, it was noted in the medical reports that the applicant had no more lower back pain.⁶ Nicole Burling, physiotherapist, in her patient report dated November 19, 2015, indicated that the applicant “has improved significantly.”⁷

13The respondent approved physical therapy in a Treatment and Assessment Plan (OCF-18) submitted on October 30, 2015, by [Rehab] in the amount of $900.00. The applicant did not go for further physical therapy.

14The applicant attended at an insurer’s examination (“IE”) with Dr. A. Oshidari, physiatrist, on March 3, 2016. Dr. Oshidari in his report dated March 9, 2016, stated that any further assessment would have no rehabilitation benefit and would not be reasonable or necessary .He felt that the applicant had non-complicated soft tissue injury (under Minor Injury Guideline (MIG) which was almost resolved at the time of his assessment.⁸ He also concluded that the applicant “from a physical point of view in relation to treatment has reached maximum medical recovery.” Dr. Oshidari found no chronic pain. His addendum reports dated November 21, 2016, and dated January 18, 2017, indicated that his original opinion was unchanged⁹.

15Dr. Oshidari reviewed the Treatment and Assessment Plan dated November 17, 2016 in the amount of $1918.36. The plan proposed the following assistive devices: Obus Forme Back Support, Custom Foot Orthotics, TENS Acupuncture Therapy Machine and Gym membership. Dr. Oshidari prepared an IE Physiatry Addendum report dated December 8, 2016, concluding that only the gym membership was reasonable and necessary because the applicant should be involved in a self-directed exercise program in order to prevent general deconditioning¹⁰. Dr. Oshidari prepared IE addendum reports on January 18, 2017, and on March 22, 2017 confirming his original report.

16The applicant attended at Dr. I. Wilderman, physician, who prepared a chronic pain report dated October 24. 2016.¹¹ The applicant was still complaining about neck pain, right shoulder pain, lower back pain, and left elbow pain. Dr. Wilderman concluded that the applicant’s injuries consisted of a chronic pain condition with a psychological component and that his injuries fell outside of the MIG. He recommended a well-structured intensive chronic pain program, aqua fit exercises, acupuncture, 10-12 psychotherapy sessions, lower back brace and foot orthotics.

17Dr. Mohamed Khaled in his IE General practitioner Report dated February 18, 2016, concluded that the applicant has reached maximum medical recovery.¹² Dr. Khaled also found no chronic pain.

ANALYSIS

18The Schedule requires all medical and rehabilitation benefits to be reasonable and necessary¹³.

19The reasonableness and necessity of treatment must be held to an established standard which requires:

a. The treatment goals as identified must be reasonable;

b. The treatment goals are being met to a reasonable degree;

c. The overall costs of achieving those goals are reasonable¹⁴.

20The onus of proving that the medical benefits are reasonable and necessary lies with the applicant.¹⁵

Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Physiatry Assessment, recommended by [Assessments Inc.] in a treatment plan dated January 28, 2016, and denied by the respondent on March 10, 2016?

21Dr. A. Oshidari’s reports indicated that no further assessments would have any rehabilitation benefit and would not be reasonable or necessary. He also felt that the applicant had reached from a physical point of view” maximum medical recovery”. He did recommend gym membership for a self -directed exercise programme. Dr. Wilderman also recommended physical activity as opposed to further assessments.

22There is no further medical evidence before me to show that a further Physiatry Assessment is necessary and reasonable to assess further treatment goals. Those treatment goals have already been assessed by both Dr. Oshidari and Dr. Wilderman in detailed analysis based on their in person exams.

23I therefore find that the cost of examinations for a Physiatry Assessment is not reasonable nor necessary.

Is the applicant entitled to receive a medical benefit in the amount of $1,240.36 for assistive devices (amount remaining beyond $678 of partially approved treatment plan), recommended by [Assessments Inc.] in a treatment plan dated November 17, 2016, and denied by the respondent on November 25, 2016?

24The respondent did approve a gym membership in the amount of $678.00 on December 22, 2016. Dr. Oshidari in his IE Physiatry Report dated March 22, 2017, rejected part of the recommendations of Dr. Wilderman of “passive modalities”( lower back brace, foot orthotics etc.). He felt that active use of the body and gym exercises would address the needs of the applicant. Dr. Oshidari indicated that there was no abnormality in both upper and lower extremities to warrant the use of orthotics. Part of Dr. Wildeman’s report also recommended physical activity (aqua fit programs).

25I find that there is not sufficient evidence before me to show how the assistive devices would help the applicant to further any recovery. The medical reports of Dr. Oshidari recommend physical activity and not “passive modalities.” Dr. Oshidari’s reports indicate that there was no abnormality in both upper and lower extremities to warrant the use of orthotics. Dr. Wilderman does not elaborate in his report as to how assistive devices would assist the applicant. I accept the report of Dr. Oshidari with its greater detailed analysis on the use of assistive devices. I therefore find that the proposed medical benefit for assistive devices is not reasonable nor necessary.

Is the applicant entitled to receive a medical benefit in the amount of $1,791.53 for physiotherapy, recommended by [Rehab] in a treatment plan dated November 20, 2016, and denied by the respondent on December 30, 2016?

26The Treatment and assessment Plan (OCF-18) dated November 30, 2016 proposed 12 physiotherapy sessions, and 16 massage therapy sessions.

27Both Dr. Mohamed Khaled in his IE General practitioner Report, dated February 18, 2016, and Dr. Oshidari in his IE Physiatry Assessment Report, dated March 9, 2016, concluded that the applicant has reached maximum medical recovery.¹⁶ Dr. Khaled also found no chronic pain.

28The applicant attended physiotherapy regularly from November 24, 2014, to April 29, 2015. On February 15, 2014, it was noted in the medical report that the applicant had no more lower back pain. The respondent had approved further physical therapy in the treatment plan submitted on October 30, 2015, which the applicant did not attend. This would indicate to me that further physiotherapy treatment was not required by the applicant, nor necessary and needed.

29I find that further facility-based treatment is not reasonable and necessary based on the above doctor reports of Dr. Oshidari and Dr. Khaled, the fact that the applicant had attended previous physiotherapy sessions for over five months and the fact that he did not attend further additional physical therapy sessions offered by the respondent.

Interest

30As no benefits are owing, I find that no interest is owing.

ORDER

31Based on the above analysis the applicant’s appeal is dismissed.

Footnotes

1. 1Respondent Material Tab 17 p142
2. 2Respondent material Tab 3 page 9
3. 3Ibid tab 15, p112
4. 4Ibid Tab 15 p111
5. 5Ibid tab15 p117
6. 6Ibid Tab 16, p126 The applicant attended 8 sessions of treatment from October 20 2015 to November 15, 2015
7. 7Ibid Tab 16, p136
8. 8Ibid Tab 10 p63-64
9. 9Ibid Tab 13 p84
10. 10Ibid The respondent approved $678.00. The applicant took out the gym membership in august 2018Tab 12 P76
11. 11Chronic Pain Assessment Report dated October 24 2016 Tab 2- Applicant’s Written Submissions.
12. 12Respondent’s Written Submissions Tab 9 .p 54.; Tab 10 p64
13. 13Schedule s 14-16
14. 14General Accident Insurance Company and Violi (Appeal P.99-00047 September 2000)
15. 15Ibrahim and State Farm (FSCO A-12-003584 dated December 10 2014)
16. 16Respondent’s Written Submissions Tab 9 .p 54.; Tab 10 p 64