Tribunal File Number: 18-001787/AABS
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:
Z. K.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Nidhi Punyarthi
APPEARANCES:
Stephanie Sales, Counsel for the Applicant
Suhasha Hewagama, Counsel for the Respondent
Date of Decision: December 28, 2018
BACKGROUND
1The applicant was involved in an automobile accident (“accident”) on October 2, 2015. As a result of that accident, she sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). When the respondent denied her claim for benefits, she applied to the Licence Appeal Tribunal (“Tribunal”) for an adjudication of her claims.
2By way of a brief background, this applicant had been involved in a prior accident in September 2009. She had also lost her job at an engineering firm in 2013.
3She also had a subsequent accident in September 2016.
4The only accident in issue before me is the accident in 2015.
5The respondent’s assessments (insurer examinations) in relation to this accident did not take place until October 2017.
ISSUES IN DISPUTE
6I have been asked to decide the following issues at this written hearing:
a. Is the applicant entitled to a medical benefit in the amount of $1,985.65 for chiropractic services recommended by Mathieu Turgeon in a treatment plan (OCF-18) submitted on February 23, 2016, and denied on March 4, 2016?
b. Is the applicant entitled to the cost of assessment in the amount of
$2,486.00 for an orthopedic assessment recommended by Dr. Franco Tavazzani in a treatment plan (OCF-18) submitted on March 17, 2016, and denied on March 23, 2016?
c. Is the applicant entitled to interest on any overdue payment of benefits?
d. Is the applicant entitled to an award under Section 10 of Ontario Regulation 664 because the respondent unreasonably withheld or denied the payment of benefits?
RESULT
7The applicant is not entitled to the chiropractic treatment plan or the cost of the orthopedic assessment being claimed. Neither item is reasonable or necessary.
8The chiropractic treatment plan is not reasonable and necessary because:
a. There is no medical evidence to support the claimed benefit of the treatment plan;The applicant was involved in a subsequent accident with similar injuries, and did not advise the respondent’s assessors of this fact when they assessed her; and
b. The applicant did not access chiropractic treatment after February 8, 2016, and did not use the full limits of chiropractic treatment that was previously approved by the respondent.
9The cost of the orthopedic assessment is not reasonable and necessary because:
a. The treatment plan for this assessment, as drafted, is not detailed enough to help me make that finding; and
b. The orthopedic assessment provided to me by Dr. Tavazzani does not contain a supported diagnosis.
10I have also found that interest and the award under Section 10 of Regulation 664 are not payable in this case.
REASONS FOR DECISION
A. Chiropractic and Massage Treatment Plan
11To 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).
Absence of supportive medical evidence
12The applicant has provided me with the following evidence in support of her claim for the chiropractic treatment plan:
a. Records of the applicant’s visits to her family doctor, Dr. Spiros Konstantatos;
b. Records of the applicant’s visits to the chiropractic treatment clinic; and
c. A report from Dr. Franco Tavazzani, orthopedic specialist, based on an examination conducted on April 15, 2016.
13Dr. Konstantatos’ records indicate that the applicant had a prior accident in 2009. She had trouble sleeping, was referred to a sleep specialist, and was making changes in her life to deal with claustrophobia.
14Shortly before the accident at issue, the applicant underwent a cervical ultrasound on March 26, 2015. That utrasound did not show any abnormalities.
15After the accident at issue, Dr. Konstantatos diagnosed the applicant with low back strain and neck strain arising from the accident. His notes of the visit from October 5, 2015 indicate: “she was reassured that the timeline of her symptoms are consistent with a whiplash strain and she was reassured that this would gradually improve with time.”
16Then, on February 9, 2016, Dr. Konstantatos recorded that the applicant was experiencing pain in her right hand joint, WAD, headache, and MPC pain. He prescribed ibuprofen to her and referred her to Dr. Sukhinder Bhangu in the area of physical medicine. The applicant did not ultimately follow through with that referral. Also, there is no mention of the accident at issue in Dr. Konstantatos’ notes after this date.
17Dr. Konstantatos’ notes and records do not give me any information on:
(i) whether the applicant experienced benefits from any chiropractic treatments previously received, and if so, what the nature of those benefits was; and
(ii) how the chiropractic and massage treatment received impacted the applicant’s healing from the accident-caused injuries.
18Furthermore, the clinical notes and records of the chiropractic clinic visited by the applicant detail the treatments performed, but do not address, for example:
(i) the progression of the applicant’s symptoms;
(ii) her response to treatment; and
(iii) the progression of her healing from accident-related injuries over the course of the treatments.
19The report of Dr. Tavazzani, orthopedic specialist, who examined the applicant on April 15, 2016, recommends that the applicant pursue chiropractic treatment but does not answer the question of why the applicant would require the treatment that is set out in the treatment plan at issue.
20I was unable to therefore find support in the medical evidence for the proposition that the chiropractic treatment plan at issue is reasonable and necessary.
Failure to advise section 44 assessors of subsequent accident
21The applicant had a subsequent accident on September 24, 2016. According to Dr. Konstatatos’ notes and records, the applicant had low back strain, neck strain, and left shoulder strain as a result of this subsequent accident. These injuries are similar to the injuries identified from the accident at issue.
22The applicant was then assessed under Section 44 of the Schedule by Dr. Todd Levy, a chronic pain specialist, on October 19, 2017, and by Dr. Manoj Bhargava, orthopedic specialist, on October 16, 2017. These assessments took place over two years after the accident at issue because the applicant’s representative had initially refused to produce her for section 44 examinations.
23Both Section 44 assessors opined that the applicant’s claims in this application are not reasonable and necessary. In addition, neither assessor was advised of the applicant’s subsequent accident.
24The causal relationship between the accident at issue and the treatment claimed is an important part of the test for entitlement to medical benefits. The applicant’s subsequent accident interferes with that causal relationship. Therefore, I am unable to give much weight to medical evidence after the date of the subsequent accident.
The applicant’s non-attendance for chiropractic treatment after February 8, 2016
25The applicant does not appear to have attended for chiropractic treatment after February 8, 2016, and does not appear to have used the full amount of previously approved chiropractic treatment. She indicates that she has not attended further chiropractic treatment as same has not been funded by the respondent.
26I do not find that the treatment being sought is reasonable and necessary when the applicant has not taken steps to access the treatment already available to her.
27Based on the above reasons, I find that the applicant has not met her evidentiary burden to establish that the chiropractic treatment plan at issue is reasonable and necessary as a result of the accident.
B. Cost of Orthopedic Assessment
28Section 38 of the Schedule sets out the requirements that an applicant has to meet in order to be entitled to a cost of an assessment. For example, pursuant to Section 38(2) of the Schedule, the treatment and assessment plan submitted on the applicant’s behalf has to comply with the requirements listed under Section 38(3). One of these requirements is a statement from a health practitioner that the assessment and its proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation.
29As per Section 25(1)3. of the Schedule, if an assessment or examination is “necessary” for the purpose of reviewing and approving a treatment andassessment plan under Section 38, then the “reasonable fees” of such an assessment or examination are payable.
Sparse information in the treatment plan
30The treatment plan for the cost of this assessment, drafted by Dr. Franco Tavazzani, shows the following information:
a. Under “goals”, it states: “assessment”.
b. Under “evaluation,” it states: “assessment”.
c. One week is anticipated for an assessment and documentation.
d. Under “additional comments,” it states: “ortho assessment – evaluate accident-related injuries. Assessment to consist of interview, medical review and examination. Assessor to comment on diagnosis, prognosis and treatment recommendations.”
31This treatment plan as drafted, does not, by itself, provide me with enough information to make a finding that the orthopedic assessment as proposed as well as its associated costs are reasonable and necessary for the applicant’s treatment or rehabilitation.
No relationship between observations and conclusions of Dr. Tavazzani
32I was also provided with the result of the orthopedic assessment by Dr.
Tavazzani: a report based on his examination of the applicant on April 15, 2016.
33Dr. Tavazzani conducted a physical examination and made a number of observations with respect to her physical movements and capabilities. He observed that she was generally able to perform the movements required of her during the physical examination, and that some of the movements caused her pain.
34Further on in the report, he provided a diagnosis of “chronic myofascial strain to the cervical spine; chronic myofascial strain to both shoulder girdles; chronic myofascial strain to the lumbar spine; sprain of the metacarpophalangeal joint of the right finger; and chronic pain syndrome” caused by the accident. He also quoted literature relating to the late onset of symptoms following a whiplash injury, and stated that one cause of chronic whiplash injury is “serious permanent injuries to the ligaments of the upper cervical region.”
35Dr. Tavazzani has not shown in his report how the results of his physical examination led to his conclusion that the applicant had “serious permanent injuries to the ligaments of the upper cervical region” or chronic strain. He has not provided a sufficient explanation to indicate how he arrived at his final diagnosis from his examination findings.
36Accordingly, I find that the conclusions in Dr. Tavazzani’s report are not supported by the data gathered during his tests of the applicant. The costs of such an assessment, in my view, are not reasonable and necessary.
C. Interest
37Given that no benefits are overdue to the applicant, interest is not payable.
D. Award under Section 10 of Regulation 664
38Pursuant to Section 10 of Regulation 664 of the Insurance Act, if the Tribunal finds that the respondent has unreasonably withheld or delayed payments, then the Tribunal may, in addition to awarding the benefits and interest payable under the Schedule, award a lump sum of up to 50% of the amount to which the applicant is entitled to at the time of the award, together with interest on all amounts then owing (including unpaid interest), at 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule.
39Based on the evidence before me, the respondent:
a. Responded to the treatment plans in a timely manner;
b. Placed the applicant in the “minor injury” category on the basis of the information before it at the time of the initial denials of the treatment plans;
c. Approved some treatment plans within the minor injury category;
d. Requested examinations under section 44 in relation to the applicant’s requests for benefits, but the applicant’s representative did not produce the applicant for these examinations initially;
e. Asked, once again, for examinations under section 44 to be held, and the applicant’s representative agreed to produce her in late 2017 for such examinations;
f. Commissioned and conducted the section 44 examinations, which resulted in an opinion that the applicant still had predominantly minor injuries;
g. Issued Explanations of Benefits to the applicant based on the opinions arising out of the section 44 examinations; and
h. Responded to and participated in the proceedings before them Tribunal.
40None of these actions of the respondent appear unreasonable in relation to the applicant’s claims for benefits under the Schedule. The respondent acted in the ordinary course of its business and complied with its legal obligations.
41The respondent has recently removed the applicant from the “minor injury” category some time prior to this hearing. The respondent has made this decision in the course of its ongoing adjustment of the applicant’s claim file. Its previous decisions and denials of the applicant’s claim were founded on the basis of the information before it and on the basis of the results of its section 44 examinations.
42There is, accordingly, nothing unreasonable about the respondent’s recent decision to move the applicant out of the “minor injury” category, and there was nothing unreasonable about the respondent’s previous decisions and actions with respect to the applicant’s claims for benefits.
43For these reasons, there is no basis to make an award under Section 10 of Regulation 664.
CONCLUSION
44The application is dismissed.