[V.L.] v. Aviva Insurance Company, 2020 CanLII 14475

Licence Appeal Tribunal

Tribunal File Number: 18-012327/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the *Insurance Act*, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[V.L.]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

PANEL: Robert Watt, Adjudicator

APPEARANCES: For the Applicant: Norma Barron, Counsel For the Respondent: Maggie Morgan, Counsel

HEARD: In Writing on: August 12, 2019

OVERVIEW

1The applicant was involved in an automobile accident on July 19, 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 Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES IN DISPUTE

2I have been asked to decide the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy treatment recommended by Scarborough Physio and Rehab in a treatment plan (OCF-18) submitted on February 26, 2018, and denied on March 27, 2018?

ii. Is the applicant entitled to the cost of examination in the amount of $1,370.51, for a functional abilities evaluation, denied on May 19, 2017?

iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to a medical benefit in the amount of $2,265.00 for physiotherapy treatment.

4The applicant is not entitled to the cost of examination in the amount of $1,370.51, for a functional abilities evaluation.

5The applicant is not entitled to an award or to any interest.

BACKGROUND

6The applicant was 66 years of age at the time of the motor vehicle accident that occurred on July 19, 2016. The applicant did not go to the hospital and returned to work within two weeks of the accident, as a personal support worker (PSW).

7The applicant visited her family physician on July 18, 2016, Dr. I. Yee complaining of headache, shoulder pain, neck pain, back pain and left knee pain. She was diagnosed with strain injuries.¹

8An x-ray of the chest on July 23, 2016 was normal.² An x-ray of the left knee dated January 6, 2018 was normal.³ An ultrasound of the left knee dated January 6, 2018 noted minimal bursitis.⁴ On February 28, 2018, Dr. Jenny Shu, family doctor diagnosed her with muscular pain in her left leg.⁵ An x-ray of the lumbosacral spine dated March 1, 2018, noted mild multilevel degenerative changes and no compression fracture.⁶

9The applicant saw her family doctor Dr. Shu on May 29, 2018, complaining of her left knee. She reported having only mild pain.⁷ An x-ray of the right shoulder on December 18, 2018 was normal.⁸ An ultrasound of the right shoulder dated December 18, 2018 noted a partial tear of the supraspinatus tendon.

10Dr. Shu saw the applicant on February 27, 2019, where she complained of right shoulder pain for the past three months. The doctor noted that she did a lot of physical work as a PSW. The applicant was diagnosed with a partial thickness rotator cuff tear with well-maintained range of motion.⁹

11Since July 19, 2018, the respondent has paid $9,246.82 in medical benefits.

ANALYSIS

Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy treatment?

12I find that the proposed medical benefit for physiotherapy treatment is not reasonable and necessary for the reasons outlined below.

13Section 15 of the Schedule requires all medical benefits requested to be paid by an insured, to be reasonable and necessary expenses.

14Since the date of the accident, the applicant has continuously complained of pain in the neck, right shoulder, lower back, hips and left knee. I am having difficulty in determining separating the cause of the current pain, that is understanding whether it exists because of the accident or because of the applicant's job as a PSW, or whether it is a combination of both.

15I have no information on how the applicant improved after the last physiotherapy treatment. The applicant, when she attended the Scarborough Physiotherapy Rehabilitation Centre on July 27, 2016 reported complaints of pain in the neck, both shoulders back, lower back, hips, knee chest wall and ribs, and rated the pain as 9/10.¹⁰ The applicant at the time of the submission of the treatment plan at issue (19 months post accident) reported neck pain at 8/10, low back pain 6/10 and hip and knee pain 8/0. The report noted that the acute pain was reduced but "not too good".¹¹

16A section 44 Chiropractic Assessment Report by Dr. D Kopansky-Giles, chiropractor, on March 23, 2018, noted that the applicant indicated that facility-based treatment afforded the applicant relief for one night. Dr. Kopansky-Giles concluded that the applicant had reached maximum medical recovery and that the treatment plan was not reasonable and necessary.¹²

17There is no evidence before the Tribunal that the proposed treatment plan would meet the listed goals set out in the plan, one goal being to reduce the applicant's pain. The applicant has not reported that her pain has been reduced by previous physiotherapy treatments. The report of Dr. Kopansky-Giles, because of this factor, concludes that the applicant has reached maximum medical recovery.

18I accept the conclusion of Dr. Kopansky-Giles that the applicant has reached maximum medical recovery, because the applicant's self reporting to Dr. Kopansky-Giles, has confirmed that there is almost no change in the applicant's pain, since the last physiotherapy treatment.

Is the applicant entitled to the cost of examination in the amount of $1,370.51, for a functional abilities evaluation?

19I find that the cost of examination is not reasonable and necessary for the reasons outlined below.

20In Dr. Hersberg's section 44 Medical Physician Assessment Report dated May 11, 2017, she noted that the applicant "had returned to her fulltime pre-accident employment as a PSW, was independent with self care tasks and was completing most of her housekeeping chores"¹³. She noted in her report that the applicant suffered minor injury strain.

21Section 15 of the Schedule requires that the proposed benefit be reasonable and necessary. The applicant is functional and does not need further evaluation on her functional abilities. There is no other evidence before me indicating that a further function abilities evaluation would be beneficial to the applicant. Therefore, I do not find the treatment plan reasonable and necessary.

AWARD AND INTEREST

22For an award to be ordered against an insurer, an insurer has to unreasonably withhold or delay payment of benefits owing. There is no evidence before me that the respondent unreasonably withheld payments or delayed payments, as no payments were required to be paid. There is also no interest owing as no payments were required to be paid.

CONCLUSION

23Upon review of the evidence and submissions of the parties and the reasons outlined above:

i. The treatment plan for a medical benefit in the amount of $2,265.00 for physiotherapy treatment is dismissed.

ii. The treatment plan for the cost of examination in the amount of $1,370.51 for a functional abilities evaluation is dismissed.

iii. The claim for an award and interest is dismissed.

Footnotes

1. 1Clinical notes of dr. Yee from January 23, 2015 to January 7, 2019 Tab 2a Brief of Documents
2. 2X-ray of chest dated July 23, 2016 Tab 2b - Brief of Documents
3. 3X-ray of left knee dated January 6, 2018 Tab 2C- Brief of Documents.
4. 4Ultra sound of the left knee dated January 8, 2018 Tab 2D Brief of Documents.
5. 5Report of Dr. J Shu dated February 28, 2018
6. 6X-ray of the Lumbosacral spine dated March 1, 2018Tab 2P - Brief of Documents
7. 7Report of Dr. J. Shu dated May 29, 2018 Tab 2g- Applicant's Brief of Documents
8. 8X-ray of the right shoulder dated December 18, 2018. Tab 2H - Brief of Documents.
9. 9Report of Dr. Jenny Shu dated February 27,2019 Tab 2J- Brief of Documents
10. 10Clinical notes of Scarborough Physiotherapy & rehabilitation Centre dated July 27, 2016 tab 20 - Brief of Documents.
11. 11Clinical notes of Scarborough Physiotherapy & Rehabilitation Centre dated February 26, 2018 tab 2P-Brief of Documents
12. 12Section 44 Chiropractic Assessment Report by Dr. D. Kopansky-Giles dated March 23, 2018 Tab 2Q - Brief of Documents
13. 13Section44 Physician Assessment Report by Dr. M Hershberg dated May 11, 2017 Tab 2L - Brief of Documents