Tribunal File No.: 18-003817/AABS
In the matter of an application pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c.I.8, in relation to statutory accident benefits.
Between:
E.B.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Nidhi Punyarthi, Adjudicator
APPEARANCES:
For the Applicant:
Nicole Walker, Counsel
For the Respondent:
Shivani Mehta, Counsel
HEARD:
In Writing on: January 29, 2019
OVERVIEW
1On March 23, 2016, the applicant was injured in a motor vehicle accident. She sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010. The respondent denied her claim for benefits, and she applied to the Licence Appeal Tribunal (“Tribunal”) for an adjudication of the dispute.
2The application was originally scheduled for a telephone hearing combined with a written hearing. On January 29, 2019, the date that was scheduled for the telephone hearing, counsel for the parties called to advise that they will no longer be proceeding with the telephone hearing, and that the matter can be dealt with by way of writing. Some of the listed issues in dispute were also withdrawn.
ISSUES IN DISPUTE
3The issues that remained in dispute for the purposes of the hearing were identified as follows. These matters were heard in writing:
(i) Is the applicant entitled to a medical benefit in the amount of $1,299.98 for chiropractic treatment recommended by Activa Clinics in a treatment plan that was submitted on May 13, 2016 and denied in part on June 3, 2016, leaving an unpaid balance of $112.81?
(ii) Is the applicant entitled to a medical benefit in the amount of $2,004.96 for chiropractic treatment recommended by Activa Clinics in a treatment plan that was submitted on July 28, 2016 and denied on September 6, 2016?
(iii) Is the applicant entitled to a medical benefit in the amount of $2,004.96 for chiropractic treatment recommended by Activa Clinics in a treatment plan that was submitted on May 17, 2017 and denied on September 18, 2017?
(iv) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is entitled to the treatment plans in dispute. She is also entitled to interest on the overdue payment of these benefits. I have made this decision for the following reasons:
a. The medical records in evidence have persuaded me that the treatment plans at issue are reasonable and necessary.
b. These medical records do not appear to have been taken into account by the respondent’s section 44 assessors who had opined that the treatment plans should be denied.
ANALYSIS
A. Key Medical Records
(i) Pre-accident
5Prior to the accident, the applicant was diagnosed with osteoporosis, osteoarthritis, and cervicogenic headaches by her family doctor.1 She was attending physiotherapy to assist with the cervicogenic headaches.2
(ii) Day of accident
6The accident itself did not result in “obvious trauma” according to the same-day paramedic and hospital records. The applicant was noted to be moving in a slow and controlled manner. She reported a throbbing headache, midline cervical neck pain, and midline lower back pain.3
(iii) Post-accident
7The first chiropractic treatment plan at issue was for a functional conditioning program to aid with pain management, and was submitted on May 13, 2016. The respondent approved most of this plan on June 3, 2016. The respondent approved 8 instead of 9 hours of exercise treatment.4
8In the weeks preceding this treatment plan submission, the applicant went to see her family doctor on April 20, 2016 and on May 3, 2016. On these dates, she reported lower back pain and lumbar back pain, respectively. On April 20, 2016, the family doctor noted that the applicant had been lifting boxes two days prior to the onset of pain. On May 3, 2016, the doctor noted that there was lumbar back pain and ongoing physiotherapy, and that the applicant would be returning to work the following week.
9Since the respondent approved this treatment plan in part, it is reasonable to infer that causation is not an issue. There is no explanation before me as to why the respondent approved 8 hours as opposed to 9 hours. Furthermore, this treatment plan was submitted within the first two months of the accident, and the family doctor records confirm that the applicant was experiencing ongoing back pain even during the days when she had taken time off work. The applicant had, in addition, a history of osteoarthritis. For these reasons, I find that the entirety of the functional conditioning program proposed in the first treatment plan is reasonable and necessary.
10The next treatment plan at issue was submitted on or about July 28, 2016. The submitting chiropractor indicated that the applicant experienced chronic pain. The proposed treatment was a pain reduction program, and included shorter and longer term goals in this regard.
11I find that it was reasonable and necessary for the applicant to supplement her treatment with a chiropractic pain reduction program with short and long term objectives as detailed in the second treatment plan at issue. I have made this finding for the following reasons:
a. The applicant had a history of osteoarthritis and treatment to manage that condition prior to the accident. This condition rendered her more susceptible to the impact of the accident.
b. The second treatment plan, when submitted, was dated only four months after the accident. As per the family doctor’s notes reviewed, the applicant was experiencing ongoing lower back pain in the months immediately following the accident.
c. In the first two months after the accident, the applicant was pursuing and, more importantly, benefitting from physiotherapy. It is reasonable, then, to infer that the chiropractic treatment plan submitted in the two months that followed would have also benefitted the applicant.
12Therefore, at the time the second treatment plan was submitted, it was reasonable and necessary. The respondent should not have denied the treatment plan.
13The third treatment plan at issue is also for chiropractic treatment, and for a similar amount and a similar program. The difference is that this treatment plan is dated about a year later on May 17, 2017.
14I find support for this treatment plan in the imaging report that was produced of the applicant on March 14, 2017. In that spine imaging report, it is indicated that the applicant was diagnosed with lumbar pain radiating to right leg with right leg tremor and weakness, and other degenerative changes.
15The applicant had a pre-existing osteoarthritic condition, and reported low back pain both on the day of the accident and in the months following it. Given this imaging report in early 2017, the applicant’s lumbar pain had still not resolved by that time. As a result, I find that the treatment plan as proposed on May 17, 2017, for chiropractic treatment, specifically, a pain reduction program, is reasonable and necessary.
16In the next section of my decision, I will discuss why I have not been persuaded by the two section 44 reports that the respondent used to deny the applicant the treatment plans at issue.
B. Problems with the Section 44 reports
(i) Dr. Loritz
17Dr. Loritz prepared a section 44 assessment report in relation to the applicant on August 29, 2016. The applicant reported to Dr. Loritz a 50% improvement in her accident-related symptoms (consisting of painful symptoms in her neck, lower back, hips and chest as well as headaches), and residual symptoms of neck pain with cervicogenic headaches. Dr. Loritz noted that the applicant has resumed work at reduced hours, is independent in self-care, and completes some of her usual housekeeping tasks.
18Dr. Loritz’ report confirmed what the applicant had reported to her family doctor a few months prior: that she continued to experience pain in the identified areas. The symptoms had not resolved fully: rather, they had only resolved to 50%.
19Furthermore, Dr. Loritz’ report was prepared within the first five months of the accident. He opined in this report that this applicant would benefit more from self-directed exercise as opposed to facility-based treatment.
20I am unable to follow the rationale behind this opinion, given the evidence before me of the applicant’s pre-existing condition and of the benefits that she experienced from treatment around the time of the report. By the time of Dr. Loritz’ report, the applicant had received approximately five months of rehabilitative treatment.5
21Based on the medical evidence of the applicant’s condition and treatment around that time, the treatment plan being evaluated should have been characterized as reasonable and necessary.
(ii) Dr. Alikhan
22Dr. Alikhan examined the applicant after the third chiropractic treatment plan was submitted. This was about a year after the accident. Dr. Alikhan indicated that the applicant reported back pain to her. She did not give this report from the applicant much credence because the applicant had not reported back pain to Dr. Loritz.
23Dr. Alikhan did not appear to have the family doctor clinical notes and records from 2016 or the diagnostic report from March 2017 when she prepared her opinion.
24Based on the evidence before me, the applicant was still in pain and in need of treatment when she was assessed by Dr. Loritz. To the extent that Dr. Alikhan relied on Dr. Loritz to discount the applicant’s reports of back pain to her, I am not persuaded by that reasoning.
25As well, through no fault of her own, Dr. Alikhan was, in my view, missing key medical evidence: the diagnostic imaging report from March 2017.
26For these reasons, I am not persuaded by Dr. Alikhan’s opinion that the third treatment plan at issue is not reasonable and necessary.
CONCLUSION
27The respondent shall pay the applicant the unpaid balance under the first treatment plan at issue as well as the second and third treatment plans at issue. The respondent shall also pay interest in accordance with the Schedule.
Released: April 15, 2019
___________________
Nidhi Punyarthi
Adjudicator
Footnotes
- Family doctor CNRs dated May 9, 2014, August 22, 2014, January 5, 2015, and January 15, 2015, Tab 14 of Applicant’s Book of Documents.
- Family doctor CNRs dated January 15, 2015, Tab 14 of Applicant’s Book of Documents.
- March 23, 2016 – records from paramedic and hospital, Tab 15 of Applicant’s Book of Documents.
- Explanation of Benefits, June 3, 2016, Tab 5 of Applicant’s Book of Documents.
- Report of Dr. Frank Loritz, September 2, 2016, “Summary of Clinical Findings and Conclusions”, p.4 of 8.