Citation: Dass v. Aviva General Insurance Company, 2021 ONLAT 20-006063/AABS

Release date: 09/14/2021

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:

Ghanshyam Dass

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Muhammad Alam, Counsel

For the Respondent:

Michal Baura, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Ghanshyam Dass, was injured in an automobile accident on January 3, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance Company, the respondent.

2The respondent denied the applicant’s claims for physiotherapy and chiropractic treatment and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on October 21, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is the applicant entitled to physiotherapy services and chiropractic treatment recommended by Airport Rehab Centre as follows:

(a) $2,128.10 in a treatment plan (OCF-18) dated May 8, 2018?

(b) $1,902.48 in an OCF-18 dated January 17, 2019?

(ii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is not entitled to the May 8, 2018 OCF-18. The applicant is entitled to $800.00 of the January 17, 2019 OCF-18, representing eight sessions of physiotherapy, plus interest in accordance with s. 51 of the Schedule. The applicant, however, is not entitled to the remainder of the January 17, 2019 treatment plan.

PROCEDURAL ISSUE – Striking Portions of the Applicant’s Reply

6On March 19, 2021, the respondent wrote to the Tribunal requesting that certain portions of the applicant’s reply submissions be struck as they referred to case conference material and discussions which are confidential. The respondent also requested that Tab 2 of the applicant’s Initial Submissions be struck on the same basis.

7On March 22, 2021, the applicant responded to the respondent’s letter. The applicant’s position was that once an appeal is filed, which has occurred in this matter, all filed information may become available to the public. The applicant also took issue with the timing of the respondent’s request to strike tab 2 of its Initial Submissions as the respondent did not request this relief in its written submissions.

8The portions of the applicant’s reply submissions that the respondent is requesting to be struck discuss the respondent’s concession that the applicant’s injuries are outside of the Minor Injury Guideline (MIG)³ and the applicant’s position that he was “unnecessarily made to respond to this issue in its [sic] Initial Submissions.”⁴ The applicant then makes certain submissions about the respondent’s behaviour in handling the applicant’s claim.

9While it is true that the applicant used much of his Initial Submissions to address the MIG, the fault of this cannot be laid at the feet of the respondent. The issue of whether the applicant’s injuries were within the MIG was not listed as an issue in dispute between the parties in the Tribunal’s October 21, 2020 Case Conference Report and Order.

10In any event, no award under Regulation 664 was claimed in this matter and, therefore, the applicant’s suggestions regarding the respondent’s conduct are irrelevant to my determination of the issues in dispute. As a result, the respondent’s request to strike portions of the applicant’s reply submissions is denied.

11The respondent’s request to strike tab 2 of the applicant’s Initial Submissions, which is the respondent’s case conference summary form and attachments, is also denied for the following reasons:

(i) Rule 14.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) states that only settlement discussions and the “documents put forward solely for the purpose of settlement” at a case conference are confidential. The respondent’s case conference summary did not include any offers to settle. Therefore, I find that the respondent’s case conference summary was not solely for the purposes of settlement; and

(ii) All of the documents attached to the respondent’s case conference summary are either before me in the hearing briefs as separate documents, are denial letters (which the applicant is not disputing the sufficiency of), the Response by an Insurance Company (which is a pleading), the applicant’s undated Application for Accident Benefits (which is not a privileged document) and a June 20, 2018 Physiatry Insurer’s Examination (IE) Paper Review Report by Dr. Michael Ko, physiatrist, in which Dr. Ko confirms his earlier opinions and conclusions in his Physiatry IE Assessment Report of the same date which was submitted by the respondent in its hearing brief. I find that none of these documents are improperly before me as the hearing adjudicator or discloses any confidential information.

ANALYSIS

12Sections 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.

13I find that the applicant has failed to meet his onus⁵ of proving on the balance of probabilities that the May 8, 2018 OCF-18 is reasonable and necessary and, therefore, he is not entitled to this treatment plan. I find that the applicant is entitled to $800.00 of the January 17, 2019 OCF-18, representing eight sessions of physiotherapy. However, I also find that the applicant is not entitled to the remainder of the January 17, 2019 treatment plan.

May 8, 2018 OCF-18

14The May 8, 2018 OCF-18 was completed by Amna Bajwa, physiotherapist, and sought funding for a total body assessment, eight sessions of physiotherapy and ten 1-hour sessions of chiropractic treatment. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion and a return to activities of normal living. This OCF-18 noted that the applicant felt some improvement since the end of his previous treatment plan and that his pain is “on/off” and is aggravated by movement. The OCF-18 also stated that the applicant has limited shoulder and neck range of motion and that he would benefit from treatment for ongoing recovery.

15I find that the applicant has failed to prove on a balance of probabilities the reasonableness and necessity of the May 8, 2018 OCF-18. A treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan which, in my opinion, has not been submitted in this matter.

16The applicant’s position is that the proposed treatment was reasonable and necessary because he was experiencing relief with the treatment and, as a result, he needed continued treatments to achieve maximum relief. To support his position, the applicant relied upon the clinical notes and records (CNRs) from Airport Rehab Centre, his treating facility, which he submitted show that he was “feeling much better with the treatments on January 10, 2018, February 6, 2018, February 20, 2018, February 27, 2018 and April 10, 2018.”⁶ The applicant submitted that the CNRs also show that he was improving with treatment and, therefore, was benefiting from it.⁷

17The applicant’s references to the Airport Rehab Centre CNR entries, however, only refer to the applicant’s relief from massage therapy. In the applicant’s 17 visits with Ms. Bajwa and Dr. Stephanie Behmer, chiropractor, between January 9, 2018 to May 1, 2018, the CNRs only report that the applicant was “feeling better” on February 6, 2018 and had “some improvement” on February 20, 2018. The remaining 15 entries either indicated that the applicant’s subject pain complaints were the same or no subjective pain rating was reported.

18Further, the CNRs of the applicant’s family physicians, Dr. Anureet Dhillon and Dr. Afzal Muhammad, do not provide any contemporaneous evidence in support of continued chiropractic treatment and physiotherapy services in or about the date of the treatment plan. For example, Dr. Dhillon last recommended physiotherapy prior to this treatment plan on March 7, 2018. Airport Rehab Centre’s CNRs show that the applicant attended for treatment throughout March, April and for one session on May 1, 2018. As such, it is unknown if the applicant was receiving treatment under a previous treatment plan during this time. In any event, the applicant saw Dr. Muhammad on May 26, 2018, shortly after the date of the disputed treatment plan but Dr. Muhammad did not recommend physiotherapy for the applicant at that time. In fact, the next recommendation made for physiotherapy after the date of the disputed treatment plan was not until October 22, 2018. Therefore, it was not until five months after the date of the treatment plan that physiotherapy was recommended to the applicant by his family physicians. Further, at no time in or about the date of the treatment plan did Dr. Muhammad or Dr. Dhillon recommend chiropractic treatment for the applicant.

19The applicant did not direct me to any other contemporaneous evidence in support of the treatment plan.

20In contrast, the respondent relied upon the June 20, 2018 Physiatry IE Assessment by Dr. Ko⁸ which was included as part of a Multidisciplinary IE Assessment Report. While the applicant challenged Dr. Ko’s opinion that the applicant had reached maximum medical improvement from a physical perspective and his resulting opinion that the May 8, 2018 OCF-18 was not reasonable and necessary, the burden never shifts to the respondent to disprove entitlement to benefits. Therefore, even if I agreed with the applicant’s position, he still has not directed me to any other compelling contemporaneous evidence in support of the proposed treatment plan.

21For all the above reasons, I find that the applicant has failed to prove on a balance of probabilities that the May 8, 2018 OCF-18 was reasonable and necessary. Therefore, he is not entitled to this treatment plan.

January 17, 2019 OCF-18

22The January 17, 2019 OCF-18 was also completed by Ms. Bajwa and it sought funding for a total body assessment, eight sessions of physiotherapy and eight 1-hour sessions of chiropractic treatment. The goals of this treatment plan were the exact same as the May 8, 2018 OCF-18. This OCF-18, however, noted that the applicant “has not shown any significant changes,” and only receives temporary relief after treatment. The treatment plan again noted the applicant’s limited range of motion in his shoulders and neck and recommended ongoing therapy to help manage his symptoms.

23I find that the applicant has proven on a balance of probabilities that the proposed eight sessions of physiotherapy are reasonable and necessary. While the treatment plan itself confirms that the applicant has not shown any significant changes, Dr. Dhillon recommended that the applicant continue with physiotherapy due to worsening back pain shortly after the date of the treatment plan on February 11, 2019.

24Dr. Dhillon’s recommendation is supported by the February 14, 2019 clinic note by Dr. Matthew Bajzath, physician, with the Karmy Chronic Pain Medical Clinic.⁹ Although Dr. Bajzath recommended nerve blocks to the applicant for his ongoing pain, the applicant declined this type of intervention. As a result, Dr. Bajzath recommended that the applicant continue with his physiotherapy, massage therapy, Tylenol and topical creams, but that he should reconsider nerve blocks for chronic pain control if there was insufficient response to these therapies.¹⁰ Therefore, in or about the time of the January 17, 2019 treatment plan, Dr. Bajzath was of the opinion that it was reasonable for the applicant to continue on with his physiotherapy at that time.

25The respondent relied upon the March 12, 2019 Orthopaedic Surgery IE Assessment Report by Dr. Louis Weisledger, orthopaedic surgeon,¹¹ in support of its denial of the treatment plan. Dr. Weisledger opined that the applicant had reached maximum medical improvement (MMI) for the injuries that he sustained in the accident which were uncomplicated soft tissue injuries to his neck, upper back, lower back and both knees.¹² Dr. Weisledger opined that as the applicant had been appropriately assessed and treated for injuries sustained in the accident,¹³ further treatment proposed in the January 17, 2019 OCF-18 was neither reasonable nor necessary.

26I give less weight to Dr. Weisledger’s opinion that the applicant had achieved MMI because Dr. Weisledger’s opinion did not address the applicant’s chronic pain condition which the respondent concedes.¹⁴ Further, Dr. Weisledger acknowledged the applicant’s ongoing care at a chronic pain clinic, stating that the applicant was reassessed there one or two months prior to Dr. Weisledger’s assessment,¹⁵ but Dr. Weisledger did not have the benefit of Dr. Bajzath’s February 14, 2019 clinic note as part of his assessment of the applicant. Further, it does not appear that Dr. Weisledger had the benefit of updated CNRs from Dr. Dhillon or Dr. Muhammad beyond 2015.

27I am also not persuaded by the respondent’s position that no portion of the proposed treatment plan was reasonable and necessary because the applicant’s condition declined while he continued with treatment at Airport Rehab Centre to the point where the applicant sought out catastrophic impairment assessments in November 2020. The applicant’s condition in November 2020 and his catastrophic impairment assessment reports are not relevant to the determination of the issues in dispute as they are not contemporaneous evidence with the date of the proposed treatment.

28Nonetheless, I find that the applicant has not provided any compelling contemporaneous evidence to support the reasonableness and necessity of the proposed chiropractic treatment and the total body assessment. The treatment plan itself is not sufficient evidence for the applicant to meet his burden of proving these components are reasonable and necessary.

29Therefore, the applicant is entitled to $800.00 of the January 17, 2019 OCF-18, which represents the eight sessions of physiotherapy. The applicant is not entitled to the remainder of the treatment plan.

Interest

30The applicant is entitled to interest in accordance with s. 51 of the Schedule for $800.00 of the January 17, 2019 OCF-18.

CONCLUSION

31For the reasons outlined above, I find that:

(i) The applicant is not entitled to the May 8, 2018 OCF-18; and

(ii) The applicant is entitled to $800.00 of the January 17, 2019 OCF-18, representing eight sessions of physiotherapy, plus interest in accordance with s. 51 of the Schedule, but he is not entitled to the remainder of the January 17, 2019 treatment plan.

Footnotes

1. 1O. Reg. 34/10.
2. 2In a February 22, 2021 letter to the Tribunal and to the respondent, the applicant withdrew issue 3 as set out in the Tribunal’s October 22, 2020 Case Conference Report and Order which was a claim for a chronic pain treatment program in the amount of $10,747.90.
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
4. 4Reply Submissions of the Applicant, page 2.
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
6. 6Initial Submissions of the Applicant, page 6.
7. 7Initial Submissions of the Applicant, page 10.
8. 8Written Submissions of the Respondent, tab 4.
9. 9Initial Submissions of the Applicant, tab 5.
10. 10Ibid.
11. 11Written Submissions of the Respondent, tab 1.
12. 12Ibid. at page 5.
13. 13Ibid.
14. 14Written Submissions of the Respondent, page 6.
15. 15Supra note 11 at page 2.