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:
F. P.
Appellant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
For the Appellant:
Dharshika Pathmanathan, Counsel
For the Respondent:
Nabila Majidzadeh, Counsel
Heard: In Writing
Hearing: March 18, 2019
OVERVIEW
1The applicant, ("F.P"), was involved in an automobile accident on May 16, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2F.P. applied to the Licence Appeal Tribunal (the "Tribunal") when the disputed benefits were denied by Aviva.
ISSUES IN DISPUTE
3The issues in dispute are as follows:
(i) Is the treatment plan in the amount of $4,767.98 for chiropractic services recommended by PhysioFix & Fitness in a treatment plan that was submitted on May 15, 2016, and denied by Aviva on August 17, 2016, reasonable and necessary?
(ii) Is F.P. entitled to receive interest on any overdue benefit payments?
RESULT
4F.P.'s appeal is denied because he failed to meet his onus to prove that the treatment he seeks is reasonable and necessary. Because F.P.'s is not entitled to the treatment in dispute, I do not need to address the whether he is entitled to interest.
ANALYSIS
5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
6To establish his claim, F.P. relies on the following evidence:
(i) Clinical notes from his Family Physician, Dr. Maher Atalla, reporting the accident and pain in his neck and back (May 19, 2015) and a disability certificate diagnosing him with knee sprain/strain, upper back sprain/strain and lower back sprain/strain (July 24, 2015);
(ii) A report by Dr. Fardin Maleki, Chiropractor, diagnosing "achy pain and stiffness in cervical spine, intermittent pain in neck and upper back", including the treatment plan recommended by Dr. Maleki;
(iii) History notes and records from PhysioFix and Fitness of physical injury complaints.
7To rebut F.P.'s claim, Aviva relies on the following evidence:
(i) In a chiropractic report dated August 12, 2016, Dr. Igor Steiman, reported that F.P.'s current complaints were not accident related, but due to the effects of his construction work. Dr. Steiman concluded that F.P. has sustained soft tissue injuries, and that further facility-based treatment was not reasonable and necessary. Dr. Steiman recommended self-directed exercise.
8Aviva also questions the strength of F.P.'s evidence with the following assertions:
(i) There is nothing in any of the medical reports or notes of F.P.'s doctors that indicates that chiropractic treatment is recommended, aside from the treatment plan of the Chiropractor;
(ii) The records of PhysioFix & Fitness, in which F.P. reported a 60% improvement in September 2015 and a 70% improvement by February 2016, and by March 19, 2016, he was starting to feel much better. It should be noted that F.P. reported that he found more benefit from physiotherapy than from chiropractic treatment;
(iii) The family physician records are only up to September 2015 and are very illegible.
9I find that F.P. has failed to meet his onus to prove his entitlement to the disputed medical benefit for the following reasons:
(i) A treatment plan, without any supportive persuasive evidence is not enough to establish that a treatment plan is reasonable or necessary.
(ii) F.P. returned to work immediately after the subject accident and has not missed any time off;
(iii) F.P.'s reports of improvement were based on the exercises and stretching modalities he participated in at home and wanted more exercises to help him recover. In addition, in his self-reporting to Dr. Kopansky-Giles and Dr. Steiman, F.P. stated that he was able to work and continue his daily activities without needing physical therapy. Further, F.P. has stated to his own treating physicians and insurer assessors that he has found more benefit from home exercise.
(iv) F.P.'s medical history shows complaints of back pain reported to Dr. Atalla as early as May 1, 2014 (pre-accident) "pain on & off, work in construction, pain bending on both sides". These pre-accident pain complaints are similar to the post-accident complaints reported to the treating physicians and diagnosed by the insurer assessors;
(v) I find Dr. Steiman's report persuasive in its finding that F.P.'s current injury complaints are work related, and not accident-related. F.P. has returned to working 6 days a week and is unlikely to benefit from further facility-based treatment. Dr. Steiman also concluded that F.P. is unlikely to obtain further functional improvement from the disputed physical treatment. Further, F.P. has stated to his own treating physicians and insurer assessors that he has found more benefit from home exercise.
CONCLUSION
10F.P.'s appeal is denied. As no benefits are owing, no interest is payable.
Released: July 22, 2019
Derek Grant
Adjudicator
Footnotes
- O.Reg. 34/10
- Scarlett v. Belair, 2015 ONSC 3635