Tribunal File Number: 18-006313/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:
B.D.W.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Kimberly Parish
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Kathleen Mertes, Lawyer
Written Hearing: March 4, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident (“accident”) on April 29, 2017. She was the seat belted driver waiting at a stop to turn left and her vehicle was rear-ended by another vehicle. The applicant sustained physical and psychological injuries and has been removed from the Minor Injury Guideline (“MIG”).
2The applicant has one child and was working at the time of the accident as a collections clerk, and has continued to work since the accident.
3The applicant sought insurance benefits from the accident pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) when her claim for a medical benefit was denied by the respondent. A case conference was held on October 25, 2018 and the parties were unable to resolve the issues in dispute, and have proceeded to this hearing.
ISSUES
4The issues in dispute for this hearing are:
(i) Is the applicant entitled to a medical benefit in the amount of $4,086.68 for physiotherapy, chiropractic treatment, and massage therapy recommended by Active Life Wellness Centre in a treatment plan (OCF-18) submitted September 5, 2017, and denied by the respondent on September 22, 2017?
(ii) Is the applicant entitled to interest on any overdue payment of benefits?
(iii) Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?
RESULT
5I find the applicant is entitled to the treatment plan in the amount of $4,086.68. I also find the applicant is also entitled to the interest owing on this treatment plan in accordance with s. 51 of the Schedule. The applicant is not entitled to an award under Regulation 664.
ANALYSIS
6Section 14 of the Schedule stipulates an insurer is liable to pay benefits to, or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15 of the Schedule stipulates in relation to medical benefits that an insurer shall pay for all reasonable and necessary expenses incurred by, or on behalf of the insured person as a result of the accident.
7The burden remains with the insured person to establish that the benefit claimed is reasonable and necessary.
8The treatment plan in dispute was prepared was Dr. R. Sodhi, Chiropractor and is dated September 5, 2017. The proposed treatment plan recommended 15 chiropractic treatment sessions, 15 physiotherapy sessions, and 12 sessions of massage therapy to relieve pain in the areas of the neck, thoracic and lumbar region. Aggravating factors include: sustained neck postures, repetitive neck flexion, lifting her 10 month old child, bending forward, prolonged standing, and household chores. It was also noted the applicant reported a 70% improvement, in these areas with chiropractic treatment, physiotherapy, and massage. The goals of the treatment included: pain reduction, increase in strength and range of motion, functional restoration to pre-accident level of functioning, chronic pain prevention with strengthening and stretching, and preventing the development of passive dependency issues. The barriers to recovery were identified as limited functional and postural tolerances due to pain in multiple injury sites, and psychological issues.
9I find the treatment in dispute to be reasonable and necessary for the following reasons:
(i) The treatment plan identified the barriers to her recovery and the goals of the treatment plan aligned with addressing these barriers which included: reducing the applicant’s pain, chronic pain prevention, avoiding the development of passive dependancy issues, and restoring her pre-accident level of functioning. Further, the applicant reported that as a result of the received chiropractic treatment, physiotherapy, and massage therapy there was a 70% improvement in the areas she felt pain.
(ii) The treatment plan was submitted two weeks after the issuance of the insurer’s examination assessment report (“IE report”) done by Dr. N. Levine, General Practitioner. I note the applicant’s subjective complaints were consistent within both of these documents. The treatment plan2 and the IE report3 both noted: the same pain complaints, the same aggravating pain factors, and the impacts on the applicant’s activities of daily living. This supports the same subjective reporting details were before Dr. R. Sodhi, Chiropractor who submitted the treatment plan in dispute and Dr. Levine who performed the IE assessment.
(iii) The applicant’s complaints of ongoing pain in her back and neck were consistently reported to her family doctor following the accident on six occasions between May - August 2017. This led her family doctor to refer her to a physiatrist in August of 2017. The applicant consistently attended treatment a few times per week for: physiotherapy, chiropractic, and massage therapy.
10Since the accident the applicant has continued to complain of pain in her back and neck to her family doctor, Dr. Shariff4 and participated in treatment in an attempt to relieve her pain. The applicant was referred by Dr. Shariif to Dr. A. Czok, Physiatrist on August 16, 2017 to address ongoing neck and back pain and the referral letter noted physiotherapy did not help. Dr. Czok issued a report dated October 31, 2017 which noted some cervical strain and sprain with residual pain and she provided the applicant with instructions for exercises to relieve muscle pain. Dr. Shariff’s clinical note and record (“CNR”) dated November 27, 2017 noted a discussion of a referral to a chronic pain clinic. I find this evidence supports the pain in the applicant’s neck and back continued for several months after the accident which led her family doctor to refer her to a physiatrist. The referral note from Dr. Shariff noted physiotherapy did not help. However, the evidence supports the applicant continued going for treatment and Dr. Sodhi noted within the treatment plan in dispute that there was a 70% improvement in the areas the applicant felt pain. At the time the treatment plan in dispute had been denied, the applicant continued to receive physiotherapy, chiropractic treatment, and massage a few times per week which was consistent since the accident.5
11The evidence supports that the applicant has and will continue to benefit from treatment. In the treatment plan in dispute, Dr. Sodhi noted that the applicant had been steadily improving and her prognosis was fair-good.
12The active treatment proposed by Dr. Sodhi (stretching and stabilization exercises) also supports what Dr. Czok recommended. I find this supports the treatment plan was reasonable and necessary. Dr. Czok had recommended the applicant perform exercises to relieve her muscle pain. Active therapy was a component of the treatment proposed in Dr. Sodhi’s treatment plan. He noted that continued myofascial release is required for lumbar, pelvic, and lower extremities musculature with a focus on an active exercise program consisting of stabilization, proprioception, stretching and strengthening exercises. He further noted that in relation to her cervical spine she has progressed from stretching exercises to moderate resistance/stabilization exercises.6 This should not negate the fact that the applicant’s physical needs cannot be ignored and that the psychological well-being has an impact on the applicant’s physical recovery7. Dr. Sodhi had noted psychological issues as a barrier to recovery. Dr. Levine’s IE report provides further confirmation of the applicant’s continued complaints of pain in the areas of her neck and back which worsen throughout the day and are aggravated by prolonged sitting and standing. Dr. Levine noted that the applicant stated that physiotherapy does provide her with pain relief the following day and lasts until she becomes active. I find these reasons support that the treatment plan was reasonable and necessary.
13I was not persuaded by the medical evidence submitted by the respondent. The respondent relied on an IE report of Dr. Levine, dated August 23, 2017. This IE report formed part of a multi-disciplinary assessment to assess the applicant’s entitlement to income replacement benefits. The treatment plan in dispute was not before Dr. Levine and as a result he did not assess this benefit. He assessed a different benefit which was associated with a different legal test. As a result I afforded little weight to his report in reaching my determination.
Interest
14As I have found the treatment plan to be reasonable and necessary, the applicant is therefore entitled to the interest on any overdue payment of benefits in accordance with s. 51 of the Schedule
Is the Applicant Entitled to an Award under Regulation 664?
15Section 10 of Regulation 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing if it is the Tribunal’s finding that an insurer has “unreasonably withheld or delayed payments”.
16I find the applicant is not entitled to an award under Regulation 664 as I do not find evidence which supports the insurer unreasonably withheld or delayed payments. The applicant submits the respondent has denied the applicant access to reasonable and necessary treatment and as a result, her condition has become chronic, she has significantly deteriorated, and has difficulty with her vocation, family, and the rest of society. However, I do not find the applicant has led with any evidence which supports this statement. It was further submitted that in their denial of this treatment plan the respondent relied on: Dr. Levine’s opinion which was obtained before the treatment plan was submitted and Dr. Levine was never provided with this treatment plan to review. The applicant further submitted the psychological basis for removing the applicant from the MIG should not have been the respondent’s consideration when denying the applicant this treatment plan. Lastly, the applicant submitted the respondent’s denial of this treatment plan was not done in accordance with s. 38(8) of the Schedule.
17The respondent relied on the medical documentation at the time and the findings reached by Dr. Levine to conclude that the treatment plan was not reasonable and necessary. I find there is no obligation imposed by the Schedule which requires an insurer to conduct IEs or seek a medical expert opinion to probe an applicant’s claims or substantiate the reasons for its denial. Therefore it was the insurer’s decision not to have Dr. Levine review and comment on the treatment plan in dispute after he had completed his initial assessment and to maintain their reasons for their denial after further documentation was provided. I do not find that equates to an unreasonable withholding or delay. There is no evidence to support the respondent did not comply with s. 38(8) of the Schedule.
CONCLUSION
18For the reasons outlined above, I find that:
(i) The applicant is entitled to a medical benefit in the amount of $4,086.68 for physiotherapy, chiropractic treatment, and massage therapy recommended by Active Life Wellness Centre in a treatment plan (OCF-18) submitted September 5, 2017, and denied by the respondent on September 22, 2017.
(ii) The applicant is entitled to interest on any overdue payment of benefits in accordance with s. 51 of the Schedule.
(iii) The applicant’s claim for an award under Regulation 664 is dismissed without merit.
Released: June 24, 2019
___________________________
Kimberly Parish
Adjudicator
Footnotes
- O. Reg. 34/10
- Treatment Plan (OCF-18) dated September 5, 2017, additional comments on page 11 of 12 of treatment plan.
- IE Multi-disciplinary Assessment Report (“IE report”), dated August 23, 2017, at page 4 of 30 of report.
- Clinical notes and records of Dr. Shariff for the dates of: May 1, May 8, June 1, July 14, July 27, August 16, 2017
- Extended Health Care Benefits Statement for the period of April 29, 2017 - November 22, 2018. Included with the respondent’s written submissions.
- Supra, note 2.
- Applicant and Aviva Insurance Canada, 17-005691, 20018 CanLII 110921 (ONLAT), at para 19