S.A. v. Aviva Insurance Canada, 2019 CanLII 72205

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.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Rome Petricca, Paralegal

For the Respondent:

Patrick Sinclair, Counsel

HEARD:

In Writing on January 14, 2019

OVERVIEW

1The applicant, S.A., was injured in a rear-end automobile accident while operating a taxi cab on December 25, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva Insurance Canada (“Aviva”), the respondent.

2Aviva denied S.A.’s claim for three treatment plans for bone growth stimulator services, a multidisciplinary chronic pain program and an MRI of S.A.’s spine. As a result, S.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on October 25, 2018, and the matter proceeded to a written hearing on January 14, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is S.A. entitled to a medical benefit in the amount of $4,809.72 for bone growth stimulator services, recommended by Dr. Oleg Livshin in a treatment plan dated January 11, 2017, and denied by Aviva on March 20, 2017?

(ii) Is S.A. entitled to a medical benefit in the amount of $11,271.90 for a multidisciplinary chronic pain program, recommended by Dr. H. Jacobs in a treatment plan dated December 6, 2017, and denied by Aviva on December 21, 2017?

(iii) Is S.A. entitled to payment for the cost of an examination in the amount of $1,950.00 for an MRI of the spine, recommended by Dr. Oleg Livshin in a treatment plan dated March 4, 2018, and denied by Aviva on May 10, 2018?

(iv) Is S.A. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, I find:

(i) S.A. is not entitled to the following treatment plans because they are not reasonable and necessary:

(a) the January 11, 2017 treatment plan for bone growth stimulator services; and

(b) the March 4, 2018 treatment plan for an MRI of S.A.’s spine;

(ii) S.A. is entitled to the functional exercise program that is part of the treatment plan for the multidisciplinary chronic pain program, and any interest owed on any overdue payment of this benefit in accordance with section 51 of the Schedule; and

(iii) S.A. is not entitled to the following elements of the treatment plan for the multidisciplinary chronic pain program: chiropractic rehabilitation; spinal decompression therapy; shockwave therapy – lower limb; shockwave therapy – MSK/Back; acupuncture V (PR); massage therapy (HV); mobilization W(PR); Botox injections; consultation with treatment providers (Psych); review of file materials (Psych); medical follow-up assessment; and a progress report (chronic pain).

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7S.A. bears the onus of proving his entitlement to the claimed bone growth stimulator services, chronic pain program and MRI by proving they are reasonable and necessary on a balance of probabilities.¹

a) Bone Growth Stimulator Services

8I find that S.A. has not met his onus of proving on a balance of probabilities that the treatment plan for the bone growth stimulator services is reasonable and necessary.

9S.A. sought funding for a bone growth stimulator and for completion of the treatment plan (“OCF-18”) which was submitted to Aviva on February 2, 2017. This OCF-18 was completed by Dr. Oleg Livshin, physician, with the regulated Heath Professional listed as Dr. Domenic Minnella, chiropractor. The information listed in the Injury and Sequelae Information section included, among other injuries, a right ankle fracture. The goals of this treatment plan were to provide S.A. with a safe, non-surgical treatment to aid the healing of the fracture, to prove S.A. with an accelerated recovery, to prevent further disability and to return S.A. to the activities of normal living.

10Additional comments to the treatment plan were submitted to explain the purpose of a bone growth stimulator, which is to improve healing by activating the body’s internal repair mechanism and to prevent disability. It is noted that in some patients, this healing process is impaired or absent. The OCF-18 describes bone growth stimulation as being very successful in treating non-union fractures. Additionally, the OCF-18 reports that bone growth stimulators are viewed as an adjunctive procedure in patients with high risk factors, including diabetes.

11Aviva denied this treatment plan on March 20, 2017 as it found that this treatment was not reasonable or necessary.² Aviva also advised that it considered this treatment premature, as it was sought by S.A. just 2 weeks post-accident.

12I accept that S.A. was diagnosed with Type 2 Diabetes prior to the accident, sustained a right ankle fracture as a result of the accident and was placed in an aircast for 4 weeks.³ While S.A. may have been a “patient with a high risk factor” as a result of his diabetes, there was no evidence that a bone growth stimulator was required because S.A.’s healing process was impaired by his diabetes or absent altogether. Additionally, no confirmation was given to show that his right ankle fracture was “non-union.”

13Further, I agree with Aviva that this treatment plan was submitted only 7 days prior to S.A. being discharged from Dr. Abdulmajid Ibrahim’s care at Lakeridge Health Fracture Clinic at which time Dr. Ibrahim noted that S.A.’s, “X-ray showed good evidence of healing.”⁴

14Based on the above, I find that S.A. has not met his onus of proving that the bone growth stimulation services were reasonable and necessary on a balance of probabilities because there was no evidence in this matter to suggest that S.A.’s internal body repair mechanism was absent or impaired by his diabetes, that this was a non-union fracture and S.A.’s X-ray 7 days after this OCF-18s submission showed good evidence of healing.

b) Multidisciplinary Chronic Pain Program

15Of the several component therapies that comprise the multidisciplinary chronic pain program, S.A. is entitled to the functional exercise program as he has proven on a balance of probabilities that this treatment is reasonable and necessary. S.A. is not entitled to any other treatments or modalities that are set out in this treatment plan.

16This treatment plan was completed by Dr. Howard Jacobs, physician, with the regulated Heath Professional listed as Dr. Domenic Minnella, chiropractor, and was dated December 6, 2017. This treatment plan sought funding for a multidisciplinary chronic pain program comprised of the following:

(i) psychological treatment ($1,698.64);

(ii) chiropractic rehabilitation ($1,440.00);

(iii) functional exercise program (HV) ($1,120.00);

(iv) spinal decompression therapy ($1,200.00);

(v) shockwave therapy – lower limb ($150.00);

(vi) shockwave therapy – MSK/Back ($150.00);

(vii) acupuncture V (PR) ($640.00);

(viii) massage therapy (HV) ($640.00);

(ix) mobilization W(PR) ($192.00);

(x) Botox injections ($2,000.00);

(xi) consultation with treatment providers (Psych) ($141.55);

(xii) review of file materials (Psych) ($141.55);

(xiii) medical follow-up assessment ($1,400.00); and

(xiv) a progress report (chronic pain) ($250.00).

17The treatment plan lists the following injuries and sequelae information: right ankle fracture; chronic sprain/strain of the cervical, thoracic and lumbar spine; post traumatic headache; chronic pain (right); and behaviour (symptoms and signs involving emotional state). The goals of this treatment plan were pain reduction, increased range of motion and strength, a return to activities of normal living and to make the pain and related symptoms less severe so that S.A. can remain productive in his activities.

18Additional comments to the treatment plan were submitted that included findings following an examination by Dr. Howard Jacobs on September 26, 2017. Dr. Howard concluded that S.A. suffered from a “chronic pain condition,” as opposed to “chronic pain syndrome,” and that he would benefit from participation in an interdisciplinary rehabilitation program. The treatment plan stated that at this juncture, this treatment was reasonable and necessary to identify S.A’s impairments to allow him to reach maximum medical recovery. This plan also noted that chronic pain is generally pain that persists for more than three to six months or pain that lasts longer than expected after an injury or an illness. Such pain is also associated with significant and reliable impairment of functional status.

19On December 21, 2017, Aviva notified S.A. that it was unable to determine if the recommended chronic pain program was reasonable and necessary and provided notice that S.A. was required to attend an insurer’s examination (“IE”). A physiatry in-person assessment was scheduled for February 13, 2018 with Dr. Dinesh Kumbhare and a psychiatric in-person assessment was scheduled with Dr. Tatiana Melnyk for February 26, 2018. Aviva argued that neither practitioner found S.A. to be suffering from chronic pain syndrome following the IEs, but instead found that S.A. had largely recovered from the accident and, therefore, the treatment plan for the chronic pain program was not reasonable and necessary.

20The onus is on S.A. to show that each individual component that the treatment plan is comprised of is both reasonable and necessary. The only submissions made by S.A. on the reasonableness and necessity of this treatment plan is that S.A. continues to experience pain almost 2 years post-accident.

Psychological Treatment

21S.A. is not entitled to payment for psychological treatment as proposed in the treatment plan because he has failed to prove on a balance of probabilities that it is reasonable and necessary.

22S.A. submitted as evidence a psychological assessment report dated March 2, 2018 signed by Linda Tomas and by Dr. Romeo Vitelli as the Supervisor.⁵ This report diagnoses S.A. with adjustment disorder with mixed anxious and depressed mood, chronic and chronic pain associated with both psychological factors and a general medical condition⁶ and recommends 12 sessions of psychotherapy that incorporates relaxation training, review of sleep hygiene and principals of mindfulness.⁷

23I am unable to place weight on this report and the recommendations contained therein for the following reasons:

(i) I agree with Aviva that it is unclear who performed S.A.’s assessment. The report refers to Dr. Vitelli in the third person and only lists him as the Supervisor whereas Linda Tomas, who is noted as working under the supervision of Dr. Vitelli, was “responsible for the integration of background data and the acquisition of assessment protocols, and served as the psychometrist.⁸ As such, when the report states under the “Interview and Observation” section that S.A. “presented as sad and isolated,”⁹ it is unclear who is making these observations;

(ii) S.A. was referred to Dr. Vitelli for a psychological assessment by his lawyer¹⁰ as opposed to by a health care provider;

(iii) Findings in the report are contrary to the overall opinions in the report. For example, S.A. scored mild on the Beck Anxiety Inventory, moderate on the Beck Depression Inventory-II and average on the Pain Patient Profile yet the conclusion is that, “the result of psychological testing indicates clinically significant emotional distress, mostly in the form of somatic pain, depression and frustration [my emphasis added].”¹¹ While S.A.’s score on the Beck Depression Inventory-II may qualify as “clinically significant,” it is clear that his scores on the other two tests do not; and

(iv) Most problematic is the reference to a different patient’s name on page 11 of the report.

24I am also unable to place weight on other evidence submitted by S.A. that identifies possible psychological injuries, as such determinations are outside of the practitioner’s areas of practice, such as Dr. West, as an orthopaedic surgeon, and Dr. Domenic Minnella, as a chiropractor.

Chiropractic Rehabilitation, Massage Therapy and Acupuncture

25S.A. is not entitled to payment for chiropractic rehabilitation, massage therapy and acupuncture as proposed in the treatment plan because he has failed to prove on a balance of probabilities that these treatments are reasonable and necessary.

26Dr. Michael West, orthopaedic surgeon, conducted an orthopaedic assessment of S.A. on December 4, 2017,¹² and noted that S.A.’s complaints at that time were back pain, neck pain, right ankle pain, frequent and severe headaches, insomnia including nightmares and flashbacks of the accident, decreased energy and fatigue, nervousness and anxiety when driving and fear of being a passenger in a vehicle and feelings of stress, irritability, anxiety and depression.¹³ Dr. West diagnosed S.A. as follows: right ankle fracture; myofascial strain cervical spine superimposed on degenerative disc disease at C4-5, as noted on the December 25, 2016 CT scan; myofascial strain lumbosacral spine; post traumatic cervicogenic headaches; post traumatic insomnia and fatigue; and post traumatic anxiety and stress with depressive episodes, which he acknowledged was beyond the scope of his practice.¹⁴

27As a result of his diagnosis, Dr. West recommended further treatment including, among other therapies, physical therapy/chiropractic treatment for S.A.’s right ankle, neck and back which would include deep heat, ultrasound therapy, active exercises and strengthening and massage therapy for symptomatic regions of S.A.’s spine. Dr. West also opined that S.A. may also benefit from acupuncture.

28I am unable to give weight to Dr. West’s report because it is lacking in important details. For example, there is no information about the length of S.A.’s assessment. Further, while Dr. West provides his diagnosis, he does not provide any additional information about what stages S.A.’s injuries are at. Dr. West also makes findings about S.A.’s inability to return to his pre-accident employment, but there is no evidence that S.A. had returned to work as suggested by Aviva at the time of Dr. West’s assessment.¹⁵ Dr. West also finds that S.A. is physically unable, “to resume his pre-accident level of housekeeping and home maintenance activities directly as a result of the injuries to his neck, back and right ankle,”¹⁶ but Dr. West fails to explain how he arrived at these determinations (i.e. via self-reporting, model exercises, etc.). Finally, Dr. West also reports that S.A., “enjoyed overall general good health prior to this accident,”¹⁷ but all other documents indicate that S.A. had diabetes and high cholesterol pre-accident.

29I am also not able to give any weight to Dr. Jegathesan’s referral to physiotherapy and massage therapy submitted by S.A. as this document is not dated.¹⁸

Functional Exercise Program (HV)

30I find that S.A. has met his onus of proving on a balance of probabilities that the functional exercise program is both reasonable and necessary, because the recommendation that S.A. to pursue an independent exercise program is made in the physiatry IE assessment report by Dr. Dinesh Kumbhare, which is included in the Multidisciplinary Assessment Report dated April 3, 2018¹⁹ and relied upon by Aviva.

Spinal Decompression Therapy, Shockwave Therapy for Lower Limb and MSK/Back, Mobilization W(PR) and Botox Injections

31S.A. is not entitled to payment for Spinal Decompression Therapy, Shockwave Therapy for Lower Limb and MSK/Back, Mobilization W(PR) and Botox Injections because he has failed to prove on a balance of probabilities that these therapies were reasonable and necessary, as there were no recommendations for these specific treatments in any of the medical documents submitted. Furthermore, the only mention of these treatments is in the OCF-18 that is in dispute, with no specific comments made by Dr. Jacobs on how these treatments will assist in achieving the goals of the treatment plan.

Consultation with Treatment Providers and Review of File Materials (Psych)

32S.A. is not entitled to payment for consultation and file review because these expenses are not reasonable and necessary. File review should be completed as part of the proposed treatment and no reasons were given for the need to consult with other treatment providers or who those treatment providers were.

Medical Follow-Up Assessment and Chronic Pain Progress Report

33As I have found that the only constituent treatment that makes up the chronic pain program treatment plan to be reasonable and necessary is the portion for functional exercise program, any funding sought for a medical follow-up assessment and a progress report is not reasonable or necessary given S.A.’s entitlement to one modality only.

c) MRI of the Spine

34I find that S.A. has met not his onus in proving on a balance of probabilities that the treatment plan for an MRI of his spine was reasonable and necessary.

35This treatment plan was completed by Dr. Oleg Livshin, physician, with the regulated Heath Professional listed as Dr. Saranjit Khaira, chiropractor, and was dated March 4, 2018. The information listed in the Injury and Sequelae Information included, among other injuries, chronic sprain/strain of the cervical, thoracic and lumbar spine, chronic shoulder sprain/strain (bilateral), post traumatic headache and behaviour (symptoms and signs involving emotional state). The goals of this treatment plan were to visualize detailed internal structures and to return S.A. to activities of normal living. Upon completion of the MRI, the OCF-18 noted that the results would be forwarded to the treating healthcare provider to determine future management to facilitate recovery.

36On May 10, 2018, Aviva notified S.A. of its denial of the treatment plan on the basis that it was not reasonable and necessary because Dr. Kumbhara determined that S.A. had reached maximum medical recovery.

37I find that S.A. has not met his onus of proving that the MRI of his spine was reasonable and necessary on a balance of probabilities because:

(i) the OCF-18 lacks information and details as to who the results would be forwarded to and the reasons that such results would be required to determine future treatment management for S.A.; and

(ii) the only mention of an MRI in the medical documentation was 15 months prior to the submission of this treatment plan. The CT report dated December 25, 2016, ²⁰ noted degenerative spine changes and that these changes could be assessed with an MRI if they would alter patient management. It is unclear why the request for an MRI was not made closer to the accident date.

Interest

38S.A. is entitled to interest for the cost of the functional exercise program only, which is part of the treatment plan for the multidisciplinary chronic pain program dated December 6, 2017. Interest is payable in accordance with section 51 of the Schedule.

CONCLUSION

39For the reasons outlined above, I find:

(i) S.A. is not entitled to the following treatment plans because he has failed to prove that they are reasonable and necessary on a balance of probabilities:

(a) The January 11, 2017 treatment plan for bone growth stimulator services; and

(b) The March 4, 2018 treatment plan for an MRI of S.A.’s spine;

(ii) S.A. is entitled to the functional exercise program that is part of treatment plan for the multidisciplinary chronic pain program, and any interest owed on any overdue payment of this benefit in accordance with section 51 of the Schedule, as S.A. has proven on a balance of probabilities that the functional exercise program is reasonable and necessary; and

(iii) S.A. is not entitled to the following elements of the treatment plan for the multidisciplinary chronic pain program as he has failed to prove that they are reasonable and necessary on a balance of probabilities: chiropractic rehabilitation; spinal decompression therapy; shockwave therapy – lower limb; shockwave therapy – MSK/Back; acupuncture V (PR); massage therapy (HV); mobilization W(PR); Botox injections; consultation with treatment providers (Psych); review of file materials (Psych); medical follow-up assessment; and a progress report (chronic pain).

Footnotes

1. 1Scarlett v. Belair Ins. Co., supra note 10, paras. 20-24.
2. 2Applicant’s Materials, tab 1.
3. 3Clinical Notes and Records of Dr. Abdulmajid, Applicant’s materials, tabs 8a and 8b.
4. 4Ibid.
5. 5Applicant’s Materials, tab 11.
6. 6Ibid. at page 10.
7. 7Ibid. at page 11.
8. 8Ibid. at page 1.
9. 9Ibid. at page 6.
10. 10Ibid. at page 1.
11. 11Ibid. at page 9.
12. 12Applicant’s Materials, tab 12.
13. 13Ibid. at page 3.
14. 14Ibid. at page 6.
15. 15Aviva referred to a CNR entry of Dr. Jegathesan that noted S.A. was an UBER driver. This CNR entry, however, was dated October 9, 2018, which was after Dr. West’s assessment.
16. 16Supra note 12 at page 7.
17. 17Ibid. at page 2.
18. 18Applicant’s Materials, tab 10a.
19. 19Respondent’s Written Submissions, tab 10.
20. 20Applicant’s Materials, tab 9c.