M.L. v. Aviva Insurance Company of Canada, 2019 CanLII 83886

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, Member

Date: July 15, 2019

File: 17-007722/AABS

Case Name: M.L. v. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Jeton Memeti, Counsel

For the Respondent: Candace Mak, Counsel

OVERVIEW

1This decision deals with a request for reconsideration by the respondent of a decision of the Tribunal dated July 26, 2018 whereby the adjudicator found that the applicant was entitled to the payment for two treatment plans for chiropractic services. The adjudicator wrote "[d]ue to the applicant’s physical injuries, it is reasonable and necessary that she choose her modality of treatment."

2The respondent submits that in finding so, the adjudicator created and applied an incorrect test that would result in every treatment plan be accepted as being reasonable and necessary.

3For the reasons that follow, the decision with respect to the two treatment plans is cancelled.

BACKGROUND

4The applicant was injured in a motor vehicle accident on April 21, 2016. From August 2016 to September 2017, she submitted six treatment plans for psychological services and two for chiropractic services. She eventually submitted an application to the Tribunal for payment that was heard on the basis of the parties’ written submissions.

5The adjudicator denied payment for all of the psychological services stating, with respect to these plans, that the applicant must prove on a balance of probabilities that each disputed amount is reasonable and necessary. At paragraph 10 of his decision, again with respect to psychological services, the adjudicator wrote the following:

The applicant submits that the proper determination of a reasonable necessary amount of treatment sessions is best stated by her treating practitioner, who is the person who prepared the Treatment Plan. While there is some merit to this submission, I need at least some evidence proving that the disputed amounts are reasonable and necessary. I cannot rely on the applicant’s submissions as evidence. Since there is no evidence on this issue, the applicant’s claims are denied.

6The respondent had retained Dr. Hannah, a general practitioner-emergency room physician, to conduct a section 44 assessment of the applicant to assist it in determining if she was entitled to the amounts claimed. Dr. Hannah diagnosed the applicant as having the following injuries:

• cervicogenic headaches;
• whiplash associated disorder (WAD I);
• myofascial sprain/strain affecting the thoracic region; and
• myofascial sprain/strain affecting the lumbar region.

7Dr. Hannah characterized the foregoing as soft tissue injuries. He also expressed the opinion that further facility-based treatment plans would not provide further rehabilitative benefit. The respondent denied payment based on Dr. Hannah’s opinion. In his addendum report dated January 23, 2017 he wrote the following:

From a physical perspective, [the claimant] has not sustained an impairment. The claimant has sustained uncomplicated soft tissue injuries as a result of the motor vehicle accident. It is therefore my opinion that an assessment and further facility based treatment would not provide any further rehabilitative benefit, and thus the treatment and assessment plan (OCF-18) is not considered reasonable and necessary.

8The adjudicator accepted the diagnoses provided by Dr. Hannah but, without explaining why, rejected his opinion that the proposed chiropractic treatment was not reasonable or necessary.

9Two paragraphs of the decision set out the adjudicator’s reasons for accepting the two chiropractic treatment plans. The adjudicator wrote the following:

The applicant is entitled to payment of $2,027 and $2,569 for chiropractic services because it is reasonable and necessary that she choose her modality of treatment given the extent of her physical injury. The goal of each Treatment Plan is to increase range of motion, reduce pain, increase strength, and return to activities of normal life and work.

It is reasonable and necessary that the applicant pursue the goals of the Treatment Pans through facility-based treatment given her myofascial strains/sprains and WAD I condition. In particular, the applicant should be allowed to choose the modality of pain reduction and strength and range of motion strengthening. Although facility-based treatment will be more expensive, it is not an unreasonable modality given the applicant’s physical injury.

ANALYSIS

10The respondent submits that the correct test in determining if a treatment plan is reasonable and necessary was set out in 17-002689/AABS v. Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT) at paras. 13, 15 and 16 where an adjudicator wrote the following:

In the treatment plan in dispute, Dr. Zoran Zivkovic, Chiropractor indicates “pain reduction, increase in strength, increased range of motion, return to activities of normal living” as the main goals. However, there is no objective medical evidence, such as a report of an assessment of the applicant by Dr. Zivkovic, to support these recommendations. Furthermore, [the applicant] has not provided additional objective evidence to support the need for further chiropractic treatment.

The presence of objective supporting evidence to justify further chiropractic treatment is key in determining whether the medical benefit in dispute is reasonable and necessary. A treatment plan for a medical benefit, without more, is not enough to establish entitlement. In this case, [the applicant] has only provided a treatment plan, and no other recommendations for chiropractic treatment.

As a result, I cannot decide in favour of [the applicant] that she is entitled to the medical benefits in dispute. I find [the applicant] has not met her onus in explaining how this treatment plan meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan reasonable and necessary.

11There is no one specific test that is used by all adjudicators in determining whether a treatment plan is reasonable and necessary, nor does the Schedule set one out. A typical analysis of the evidence to be considered in deciding the issue was set out in 17-004357/AABS v. Aviva General Insurance, 2018 CanLII 13152 (ON LAT) at para. 39(iii) where the adjudicator wrote the following:

I concur with other adjudicators that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. Compelling evidence from the applicant herself about the effectiveness of treatment in relieving pain or improving function would also be persuasive. The applicant does not provide that corroborating evidence.

12In my view, the adjudicator made a significant error of law such that the Tribunal would likely have reached a different decision had the error not been made, as set out in Rule 18.2(b) of the Tribunal’s rules applicable to this matter.

13It appears that the adjudicator applied different tests, or analyses, to the psychological treatment plans as opposed to those for chiropractic treatment. As explained in paragraph 5 above, he applied what would be close to the typical test when he considered whether the psychological plans were reasonable and necessary. He required some evidence “proving that the disputed amounts were reasonable and necessary.”

14In paragraph 18 of his decision, the adjudicator finds that the applicant is entitled to payment for the chiropractic services “because it is reasonable and necessary that she choose her modality of treatment given the extent of her physical injury.” That is not the correct analysis. The question is whether the services in the plan are reasonable and necessary, not whether it is reasonable and necessary that the applicant choose her preferred modality of treatment. The adjudicator repeats this error in paragraph 20 of his decision where he writes that the “applicant should be allowed to choose the modality of pain reduction and strength and range of motion strengthening.”

15In that same paragraph, he concludes that it is “reasonable and necessary that the applicant pursue the goals of the Treatment Plans through facility-based treatment given her myofascial strains/sprains and WAD I condition”. However, he doesn’t cite any evidence that the disputed services are reasonable and necessary or how they may assist her condition. It cannot be assumed that they were or would, just because she had the soft tissue injuries, especially in the face of the comprehensive report of Dr. Hannah and his opinion that the facility-based treatment proposed would not provide any benefit.

CONCLUSION

16In my view, given the significant legal errors made by the adjudicator, his decision with respect to the treatment plans of September 20, 2016 and September 5, 2017 for chiropractic services from Mackenzie Medical should be cancelled. The decision is otherwise confirmed. I order a new written hearing regarding the two chiropractic treatment plans. The new adjudicator will decide if further written submissions should be allowed.

D. Stephen Jovanovic Member Tribunals Ontario – Safety, Licensing Appeals and Standards Division