Tribunal File Number: 18-010460/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:
[O.W.]
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Raj Sharda
APPEARANCES:
For the Applicant:
[O.W.], Applicant
Kevin Souch, Counsel
For the Respondent:
Michael Silver, Counsel
HEARD: In Writing
November 29, 2019
REASONS FOR DECISION [AND ORDER]
OVERVIEW
1The applicant was involved in an automobile accident on June 29, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant was 19 years old at the time of the accident. He lived a socially, recreationally active life. He could complete his activities of daily living. Post accident he suffered post concussive symptoms, including headaches, vertigo, chronic fatigue, long term memory loss, severe pain in the neck, shoulders and back. These symptoms continue at the time of the application over 2 years after the accident.
3He has engaged in treatment since the accident and is working although with limitations. He has sought treatment plans for physiotherapy and occupational therapy, which has been denied on the basis that these treatment plans are not reasonable and necessary.
ISSUES
4The Issues in dispute were identified and agreed to as follows:
(i) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,067.50 for physiotherapy treatment recommended by VOR Physiotherapy in a treatment plan (OCF-18) submitted on November 16, 2017, and denied on April 10, 2018?
(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for occupational therapy treatment recommended by Jennifer Berg-Carnegie in a treatment plan (OCF-18) submitted on November 15, 2017, and denied on April 10, 2018?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
(iv) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
5In its reply submissions the applicant conceded that issue 4 (ii) should be withdrawn.
6The written hearing will therefore proceed on issue 4 (i) the treatment plan for physiotherapy for $1067.50 and Issues 4 (iii) and (iv) interest on the benefits in 4 (ii) and whether the applicant is entitled to an award only.
EVIDENCE
Respondent
7Respondent relies upon Dr. Heitzner Physiatrist and Dr. Bradbury Neuropsychologist to support its position to deny the physiotherapy benefits as not reasonable and necessary.
8Dr. Bradbury states in her March 29, 2018 report that she could not comment on the physiotherapy treatment plan and she deferred to Dr. Heitzner and limited her evaluation to the Income replacement benefits.
9Dr. Bradbury does confirm that the applicant had suffered post-concussion symptoms but from a neuropsychological perspective they had healed over time. As such, her report is more focused upon determining if the applicant meets the criteria for the Income replacement benefits (IRB). She concludes that the applicant would not qualify for IRB as he did not suffer a substantial impairment of his pre-accident employment ability.
10Dr. Heitzer, conducted an IE assessment he focused upon the treatment plan in question. He concluded that the applicant continued to suffer from “mild decreased range of motion of his cervical spine”. 1
11Dr. Heitzer concluded that the proposed plan was not reasonable and necessary as the applicant was unlikely to receive “any significant change in his current level of functioning or provide symptom reduction” to this mild decreased range of motion of his cervical spine from the proposed treatment.
Applicant
12The Applicant relied upon the evidence of Dr. Sloka a Neurologist, and Mr. Aggerholm a Physiotherapist, Dr. Ghouse a Physiatrist,
13Dr. Solaka concludes in late 2016 that the applicant had improved and the recover from memory loss and foggy thinking is improving slowly. He deferred any investigations to the physical therapy and concussion therapy at VOR.
14Mr. Aggerholm is the Physiotherapist at Vestibular & Orthopaedic Rehabilitation (VOR). He completed the treatment plan in question. He responded to Dr. Heitzner’s findings that the applicant had reached maximal medical recovery.
15In his report dated May 24th, 2018, Mr. Aggerholm submits that “the presence of increasing pain reports, increasing headache intensity, and frequency and further subluxation of a first rib would not indicate maximal recovery”.
16Mr. Aggerholm also states the lack of frequency of treatment has caused the applicant’s headaches to increase in frequency. He states that when treatment was frequent the applicant’s headache were infrequent and the applicant could manage tension in the neck through regular stretching exercises.
17The treatment plan is also focused on the strengthening of the shoulder girdle, strengthening of the cervical spine as well as working on endurance of these two regions of the body.
18Dr. Ghouse report of November 14, 2018 is submitted by the applicant to support its position that the treatment plan is reasonable and necessary.
19Dr. Ghouse state that the applicant has poor activity tolerance, sitting and standing 30 minutes, and walking 1 hour, driving a few hours. 2 The applicant is independent in personal care other than putting on shoes and socks and dressing his upper and lower body. These activities aggravate the pain in his back and shoulders.3
20The applicant has poor tolerance for household activities such as vacuuming and cleaning activities, which aggravate his shoulder pain.
21Dr. Ghouse concluded that the applicant has multiple symptoms, activity intolerances, physical and functional impairments. He has impaired movements of the cervical and lumbar spine. He has impaired balance and cognitive difficulties. He is impaired in multiple aspects of his daily living. 4
22Dr. Ghouse also concluded that the applicant has impaired functioning in some aspects of his personal care, most aspects of his housekeeping and home maintenance, social and recreational activities and in his ability to work in an unrestricted and pain free manner. 5
23Based upon these findings he concludes that the applicant periodically would require involvement in a program of rehabilitation therapy and exercises through physiotherapy, chiropractic treatments or massage therapy, to alleviate any exertion related symptoms. Therapy will be required for 6-8 weeks at a time.
24None of the IEs reports, or applicant’s medical reports indicate that the applicant was not forthcoming in his reporting of his pain condition.
LAW
Is the Treatment Plan reasonable and necessary?
25The Schedule prescribes:
i. Section 14 states except as otherwise provided in this regulation an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
(a) Medical and rehabilitation benefits under section 15 – 17.
ii. Section 15(1) of Ontario regulation 34/10 states subject to section 18, Medical benefits shall pay for all reasonable and necessary expenses incurred by or on the behalf of the insured person as a result of the accident for”
ANALYSIS
26The key question is whether the treatment plan is reasonable and necessary for the applicant’s maximal recovery.
27The evidence from the doctor’s reports indicate that the applicant has significantly recovered from the injuries caused by the accident.
28Dr. Heitzner concluded that the applicant continued to suffer from “mild decreased range of motion of his cervical spine”.
29Dr. Ghouse confirms both shoulder and cervical spine impairments but does not classify them as mild.
30Mr. Aggreholm finds a causal link between the applicant’s frequency in headaches and lack of physical treatment.
31Mr. Aggreholm identifies specific areas upon which the treatment plan will focus and the treatment will assist in the applicant becoming increasingly non-dependant on physical therapies. These areas include the strengthening of the shoulder girdle, strengthening of the cervical spine as well as working on endurance of these two regions of the body.
32I find that the applicant’s impairments and injuries are not limited to mild decreased range of motion of his cervical spine. Dr. Heitzner did not explain why he did not find any neck pain which was causing the headaches.
33The treatment plan is focused upon reducing the pain in the applicant’s cervical spine and shoulders and improving the endurance of these two areas of his body.
34Dr Ghouse has observed multiple impairments which the applicant continued to suffer after the IE reports. He further recommends the very type of treatments recommended in the treatment plan.
35I therefore find that the treatment plan in question is reasonable and necessary for the applicant to support him reaching maximal recovery, which he has not done so as yet.
36The award request is predicated on a submission that the respondent relied upon Dr. Bradbury’s reports to deny the physical therapy. However, it is clear that Dr. Heitzner’s report was relied upon to deny the physical therapy since Dr. Bradbury deferred to Dr. Heitzner. Hence, I find the reliance on Dr. Heitzner’s report was appropriate and no award is warranted.
CONCLUSION
37I therefore, find that the treatment plan in paragraph 4 (i) is reasonable and necessary.
38The applicant is entitled to interest on the approved plan but not an award.
ORDER
39The Tribunal therefore orders:
a) That the treatment plan in paragraph 4 (i) is approved.
b) The applicant is not entitled to interest in accordance with s. 51.
c) The applicant is not entitled to an award.
Released: February 3, 2020
Raj Sharda
Adjudicator