Tribunal File Number: 19-001065/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:
A.U.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Anna Korolkova
For the Respondent:
Aryeh Samuel
WRITTEN HEARING:
March 19, 2020
OVERVIEW
1A.U. was injured in an automobile accident on November 14, 2016 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”).
2A.U. sustained injuries to his left shoulder, leg and hip. A.U. also sustained impairments to his back and chest and suffers from headaches. Aviva removed him from the MIG based on a psychological diagnosis of Adjustment Disorder. Despite being out of the MIG, it remains A.U.’s onus to prove that additional treatment is reasonable and necessary. He submitted two separate treatment plans consisting of physiotherapy, chiropractic treatment and massage, that were denied by Aviva on the basis that they were not reasonable and necessary. A.U. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided, as per the case conference order:
i. Is the applicant entitled to receive medical benefits in the amount of $3,074.62 for medical services recommended by Life Point Medical in a treatment plan submitted February 24, 2017, and denied by the respondent on April 17, 2017?
ii. Is the applicant entitled to receive medical benefits in the amount of $2,695.22 for medical services recommended by Life Point Medical in a treatment plan submitted May 3, 2017, and denied by the respondent on May 5, 2017?
iii. Is the applicant entitled to receive interest on any overdue payment of benefits?
RESULT
4I find A.U. is not entitled to payment for either of the treatment plans in dispute, as he has not met his onus to prove that they are reasonable and necessary.
ANALYSIS
Are the treatment plans in the amount of $3,074.62 and $2,695.22 for physiotherapy, massage and chiropractic services reasonable and necessary?
5I find A.U. is not entitled to payment for either of the treatment plans in dispute as A.U. has not met his onus to prove that they are reasonable and necessary.
6A.U. submits that the first treatment plan dated February 24, 2017 in the amount of $3,074.62, which includes active therapies and massage two to three times per week over a seven-week period, is reasonable and necessary to reduce his muscle spasms, decrease his chronic pain, increase core strength and promote tissue healing. The OCF-18 completed by Dr. Yu, chiropractor, indicates that A.U.’s driving anxiety, thoughts about the accident, sleeping difficulties, fatigue, diabetes and his history of left-shoulder dislocations are barriers to his recovery.
7A.U. submits that the second treatment plan dated May 3, 2017 in the amount of $2,695.22, which identifies the same goals and strategies as the previous treatment plan, is reasonable and necessary because his prognosis was improving, and it was important to continue treatment to avoid long-term detrimental effects.
8In response, Aviva addresses both treatment plans simultaneously. It contends that A.U. has only provided one doctor’s note in the two and half years from the period post-accident to May 2019 and, by all accounts, his physical accident-related impairments were minimal, with no referrals for facility-based treatment. It submits that there are no documented pain complaints, no diagnosis of chronic pain and that A.U. continued to work in a physically-demanding construction job post-accident to date. Aviva relies on the uncontroverted report of Dr. Ismail, physiatrist, who determined that there were no accident-related musculoskeletal or neurological impairments and therefore, that further treatment was not reasonable and necessary.
9I agree with Aviva. I find it reasonable that A.U. would have required some treatment in the weeks following the accident, which Aviva paid for and A.U. completed. However, I find there is limited concurrent evidence before the Tribunal to indicate that A.U. was still suffering from accident-related impairments after the initial block of approved treatment and at the time these treatment plans were submitted. Further, other than the OCF-18 documents, A.U. did not provide the Tribunal with clinical notes, a report or medical evidence that further facility-based treatment was even recommended by an objective medical professional or that he was deriving benefit from same. It is well-settled that a treatment plan, without medical evidence to support it, is not enough on its own to establish entitlement. In turn, without medical evidence, I have no reason to doubt the uncontroverted opinion of Dr. Ismail, who found A.U. had no accident-related musculoskeletal or neurological impairments and therefore, that further facility-based treatment for physical impairments was not reasonable and necessary.
10In submissions, A.U. discussed his chronic pain. While pain relief is a legitimate goal for treatment, I find no diagnosis of chronic pain or chronic pain syndrome in the medical documentation. While a diagnosis is not strictly required, it is difficult to reconcile how further facility-based treatment is necessary to treat allegedly chronic impairments where no recommendation to do so has been made. Further, A.U. did not provide continuous, corroborating records as evidence that his pain has continued, let alone that it causes him functional impairment. Indeed, the only two references A.U. cites to in submissions speak to a “re-aggravation of chronic left shoulder instability” in February 2017 and “chronic shoulder pain and lumbar pains” in May 2019. The 2017 reference is not a diagnosis of chronic pain. The 2019 reference comes two and half years after the accident and, as the clinical note indicates, only on the advice of A.U.’s counsel. There is no analysis of the severity, frequency or duration of A.U.’s pain or the functional impact it has on his daily activities in the medical documentation or in submissions. In the absence of a diagnosis or even a discussion of the functional impact of pain, it is not sufficient to claim that treatment is reasonably and necessary because of chronic pain.
11Accordingly, I find A.U. has not demonstrated why the specific treatments outlined in the OCF-18s are reasonable and necessary to treat the injuries he sustained as a result of the November 2016 accident. Therefore, I find the treatment plans in dispute are not reasonable and necessary.
12As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
CONCLUSION
13For the reasons outlined above, I find A.U. is not entitled to payment for any of the treatment plans in dispute as they are not reasonable and necessary. As no benefits are overdue, no interest is payable.
Released: April 9, 2020
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.