S.E. v. Aviva General Insurance, 2019 CanLII 34624

Date: March 13, 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:

S.E.

Appellant(s)

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Petros Yannakis, Counsel

HEARD: In writing

OVERVIEW

1The applicant was involved in an automobile accident on September 1, 2015, when the vehicle she was driving collided with a third party in a rear-end type collision. Following the accident, the applicant sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant initially participated in treatment within the “minor injury” framework. The framework’s $3,500 limit was exhausted around February 2016. Following the applicant’s diagnosis of a psychological impairment in June 2016, the respondent determined that the applicant was no longer subject to the $3,500 “minor injury” limits.

2Nevertheless, a dispute arose when the respondent refused to pay for certain medical benefits for which the applicant applied. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES

3The disputed claims in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $1,965.00 for physiotherapy treatment from Springdale Physio Services, recommended in a treatment plan (OCF-18) dated January 14, 2016?

ii. Is the applicant entitled to costs of examinations in the amount of $2,505.20 for an orthopedic assessment by Dr. Sagar Desai, recommended in a treatment plan (OCF-18) dated August 29, 2016?

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

RESULT

4I find that the applicant has not proven her entitlement to the disputed treatment plans. The appeal is dismissed.

ANALYSIS

5In order to determine the applicant’s entitlement, I considered, pursuant to ss. 14, 15 and 25 of the Schedule, whether the treatment plans in dispute were reasonable and necessary as a result of injuries sustained in the accident.

6The applicant was taken to hospital following the accident, where she was examined and discharged without further investigation. Two days later, the applicant saw her family doctor, Dr. Abdulhusein, with complaints of pain in her nose and face from the airbags, as well as pain in her neck, back, chest, abdomen and headaches.¹

7Dr. Abdulhusein recommended massage and physiotherapy, and prescribed Vimovo. The applicant returned on two occasions in October 2015 and once in December 2015. She complained of ongoing headaches, as well as pain in her back and neck. Dr. Abdulhusein noted that the applicant had tenderness on examination, and decreased ranges of motion.²

8Within a week of the accident, the applicant returned to work full-time as a teacher’s assistant, and returned to school where she was in her third year of the Child and Youth program at Ryerson.³

9The initial disability certificate, completed by Dr. Abdulhusein, indicates that the applicant missed two days from work and then returned full-time on full duties.⁴ The doctor indicated that the applicant had no pre-existing condition that would affect her ability to perform her activities. Dr. Abdulhusein’s clinical notes and records indicate that, nine weeks before the accident, the applicant attended with complaints of pain in her neck and back, and demonstrated reduced ranges of motion.[5]

Physiotherapy Treatment

10The treatment plan for physiotherapy was submitted in February 2016, proposing 10 sessions each of rehabilitation and massage therapy. The goals of treatment included pain reduction, increased strength and range of motion, and resumption of pre-accident work activities.

11I am not satisfied that the treatments were reasonable or necessary to achieve the stated goals. The evidence supports that the applicant’s injuries had resolved, her ranges of motion were normal, and she had resumed her pre-accident activities. According to the family doctor’s records, during a visit in February 2016 (for an unrelated issue) the applicant exhibited ranges of motion within normal limits and she reported that her symptoms had improved. The applicant also continued to work at her physically demanding job and returned to school. Between February and September 2016, the applicant saw her family physician on nine more occasions, however all were unrelated to the accident.

12The respondent relies on the report of Dr. Guerra in support of its position that the treatment plan is not reasonable or necessary. This report, dated June 7, 2016, indicates that the applicant advised that she had not stopped working after the accident and was able to perform all of her usual housekeeping tasks. The examination was largely normal, and the applicant demonstrated full ranges of motion with minimal discomfort. Dr. Guerra diagnosed the applicant with soft tissue injuries of the lumbar and cervical spine (WAD I). Dr. Guerra opined that there was no longer any impairment as a result of the accident, and that the applicant had reached maximum medical recovery.

13The applicant became pregnant around June 2016. In the fall of 2016, the applicant reported to her family doctor that she continued to experience low back pain from injuries sustained in the accident. Examination revealed mild tenderness and decreased ranges of motion on extremes of movement.

14The applicant underwent the disputed orthopedic assessment with Dr. Desai on October 24, 2016. I find there were several inconsistencies between this report and other objective evidence. For example, Dr. Desai noted that the applicant did not have any pre-existing medical issues related to the injury. This is inconsistent with the clinical notes and records that document prior back and neck pain complaints. Additionally, according to this report, the applicant was unable to exit the vehicle independently and was not ambulatory at the scene. This contradicts the Ambulance Call Report. Further, the applicant reported neck pain and headaches at a 10/10 on the Pain Numeric Scale to Dr. Desai. However, the clinical notes and records of the family physician indicate that she saw her doctor the day after this assessment, and there is no neck pain or headaches reported.

15Upon examination, Dr. Desai noted that the applicant’s ranges of motion were very slow, and she had tenderness upon palpation of her neck and back. The applicant continued to work full-time. The worsening of her back pain was attributed to her pregnancy and related weight gain.⁶ The applicant was attending the gym three times per week, but did not do much due to her ongoing symptoms. Dr. Desai diagnosed chronic myofascial strain injuries of the cervical and lumbar spine, and tension headaches. He concluded that the examination revealed no objective signs of impairment that would prolong her back and neck symptoms. Her prognosis was guarded due to the chronicity of her symptoms and lack of response to formal physical therapy. Dr. Desai recommended that the applicant continue with her physical therapy. However, he noted that she would require a more active approach since passive modalities had been unsuccessful so far.

16I find it significant that Dr. Desai found no objective signs of impairment. Further, the passive modalities recommended in the treatment plan in dispute are not supported by Dr. Desai, who noted that passive modalities had been unsuccessful, and a more active approach was required.

17Dr. Abdulhusein completed an updated disability certificate, dated January 10, 2017, which indicates that the applicant continued to suffer from back pain and headaches, and frequently woke up at night as a result of nightmares. The doctor noted that she was unable to work at present due to increased back pain. Under part 8 of the OCF-3, Dr. Abdulhusein noted that the applicant was pregnant, expected to deliver on March 16, 2017, which may affect her disability.

18The evidence before me does not support the applicant’s position that she suffered from ongoing physical impairments as a result of accident-related injuries. The goals of the proposed treatment included pain reduction, increased strength and range of motion, and to resume her pre-accident work activities. I am not satisfied that the treatments were reasonable or necessary to reach the goals of treatment. The applicant returned to work and school at full capacity within a few days of the accident. Her family physician determined her injuries had improved by February 2016, and she demonstrated full ranges of motion. This is further supported by the fact that the applicant stopped attending treatment in early 2016.⁷ Dr. Guerra concluded that the applicant’s soft tissue injuries had resolved at the time of his assessment in June 2016, consistent with the records of the family doctor.

19The applicant’s pregnancy had progressed a further five months when she saw Dr. Desai, at which time it was noted that any increased weight gain was due to the pregnancy, not the MVA. The worsening of her back pain was related to her pregnancy and related weight gain.

20The applicant did not provide any clinical notes and records from the treatment provider. No prescription evidence was submitted. There is no diagnostic imaging that would provide objective evidence of injury. There is no evidence that the applicant was referred to any specialists or recommended any additional treatment by her family physician. Such evidence would normally be available if the applicant had ongoing impairment as a result of her injuries.

21The applicant submits that pain relief is a legitimate goal of treatment.⁸ However, there is little evidence to support that the applicant actually experienced relief of her ongoing symptoms with treatment, particularly since the clinical notes and records from the physiotherapy clinic were not provided.

22The applicant submits that she is entitled to the treatment “most importantly” because she was diagnosed with a concussion. Despite that assertion, the applicant has not provided any evidence to support the position that physiotherapy is appropriate treatment for a concussion.

23In light of the foregoing, I find that the proposed treatment is not reasonable or necessary.

Orthopedic Assessment

24The applicant submits that this assessment was necessary to evaluate the applicant’s condition, provide a proper diagnosis, prognosis and recommendations for future treatment.

25For the same reasons outlined above, I am not satisfied that the orthopedic assessment in dispute was reasonable or necessary. The applicant has not demonstrated that she suffered any ongoing impairment as a result of the accident that would warrant further assessment. According to the clinical notes and records, the applicant’s accident-related complaints had resolved by February 2016. She continued to work full-time, and went to the gym three days a week. After the applicant became pregnant, she began to experience worsening back pain, which was attributed to the pregnancy and her weight gain. The applicant’s own assessor concluded that there were no objective signs of impairment.⁹ In fact, both disability certificates completed by the family physician indicate that no further investigations are required.

26In light of the foregoing, I find that the proposed orthopedic assessment is not reasonable or necessary.

Timing of Denials

27I also considered the applicant’s submissions regarding the sufficiency and timing of the denials of the treatment plans. The applicant relies on the Tribunal’s decision in M.F.Z. v Aviva, and submits that the respondent’s failure to comply with s. 38(8) triggers the consequences set out in s. 38(11) of the Schedule.¹⁰

28Having reviewed the submissions and evidence, I am satisfied that the consequences are not triggered. In accordance with s. 38(11) of the Schedule, the respondent “shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)” [emphasis added].

29The treatment plan is dated January 14, 2016, but was submitted to the insurer on February 12, 2016. The insurer was therefore required to respond by February 29, 2016. The insurer provided proper notice in accordance with s. 38(8) on March 1, 2016. Thus, the respondent is required to pay for all treatment incurred on February 29, 2016 only – being the one day during which it was non-compliant with s. 38, until the compliant notice was provided the following day. There is no evidence that any of the disputed treatment was incurred on February 29, 2016. Absent evidence that the treatment was incurred on February 29, 2016, none of the disputed treatment plan is payable per s. 38(11).

30With respect to the disputed orthopedic assessment, the treatment plan is dated August 29, 2016. The insurer denied the treatment plan by explanation of benefits dated September 26, 2016. The disputed assessment was completed on October 24, 2016, which is well after the notice was provided. Therefore, I am satisfied that the insurer is not required to pay for the assessment as a result of the consequences in s. 38(11).

CONCLUSION

31For the reasons set out above, I find that the applicant has failed to prove her entitlement to the treatment plans in dispute.

32The applicant’s appeal on all issues is dismissed.

Footnotes

1. 1Clinical notes and records of Dr. Abdulhusein.
2. 2Ibid.
3. 3OCF 1, dated October 28, 2015.
4. 4OCF 3, dated November 11, 2015 by Dr. Abdulhusein.
5. 6Orthopedic Assessment, Dr. Desai, dated October 24, 2016 at page 3.
6. 7Ibid.
7. 8NC v RBC, ONLAT 16-000282, December 7, 2016.
8. 9Orthopedic Assessment, Dr. Desai, dated October 24, 2016 at page 7.
9. 10MFZ v Aviva ONLAT 16-000517 Reconsideration Decision September 22, 2017.