Tribunal File Number: 19-003149/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:
M.W.
Applicant
and
Aviva General Insurance
Respondent
DECISION
Adjudicator: Stephanie Kepman
APPEARANCES:
For the applicant: Ilan Liebner, Counsel
For the respondent: Louise Kanary, Counsel
Written Hearing on: February 24, 2020
OVERVIEW
1[M.W.] ("the applicant") was injured in an automobile accident ("the accident") on August 26, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") when her claims for benefits were denied by the respondent.
ISSUES
2The following are the issues to be decided:
(i) Is the applicant entitled to a medical benefit in the amount of $2,314.48 for physiotherapy treatment recommended by Physiotherapy Active Rehab in a treatment plan submitted on July 31, 2018 and denied by the respondent on August 1, 2018?
(ii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the medical benefit is not reasonable and necessary. I also find that the applicant is not entitled to interest on said benefit.
ANALYSIS
4Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.
5The onus is on the applicant to prove, on a balance of probabilities, that the medical benefits sought are reasonable and necessary as a result of the injuries sustained in the accident.2
6Some background is necessary to give clarity to the analysis to follow. The applicant was removed from the Minor Injury Guideline ("MIG") due to her pre-existing chronic back strain and scoliosis.
a. Is the physiotherapy treatment plan recommended by Physiotherapy Active Rehab plan reasonable and necessary?
7I find that the applicant has not demonstrated that the cost of the physiotherapy treatment plan is reasonable and necessary for the following reasons:
a. The applicant relies on the clinical notes and records of her family physician, Dr. Rudolph Hyles. On September 3, 2015, Dr. Hyles recommended that the applicant attend physiotherapy or massage therapy. Dr. Hyles opines that her chronic back pain was aggravated by this new incident.
On June 8, 2017, Dr. Hyles made a referral for massage therapy for the applicant. However, this is approximately 1 year and 2 months prior to submitting to the respondent the treatment plan that's in dispute.
b. When further delving into the applicant's clinical notes and records, the applicant was later treated by family doctor, Dr. Deanna Chin. Dr. Chin opined on July 30, 2019 that the applicant had fibromyalgia. Dr. Chin noted that the applicant was attending "massage/PT".
On August 23, 2019, the applicant and Dr. Chin discussed the applicant's likely diagnosis of fibromyalgia. Dr. Chin advised the applicant to keep to an exercise plan, reduce her stress and practice meditation. She also referred her to Dr. Imtiaz Khan, rheumatologist.
At no point did Dr. Chin specifically recommend any passive therapy, such as the disputed physiotherapy plan.
i. Based on this, the passive therapy is only currently being recommended by the treatment provider of the OCF-18, Physiotherapy Active Rehab.
c. Dr. Khan saw the applicant on December 2, 2019 for a consultation regarding possible fibromyalgia. Dr. Khan reports that none of the passive therapies that the applicant has attended, including physiotherapy, have helped with her pain.
Based on his interview, physical examination and medical investigation, Dr. Khan refers the applicant for a magnetic resonance imaging ("MRI") of her sacroiliac ("SI") joints and test her for HLA-B27 antigens. Dr. Khan recommends that the applicant use 220mg of over the counter Aleve until her next appointment. Dr. Khan does not recommend or refer the applicant to more passive therapy such as physiotherapy.
d. The applicant also participated in an Insurer's Examination ("IE") on August 24, 2018 with physiotherapist Zinnia Lee. Ms. Lee notes that the applicant has reached maximum therapeutic improvement from physiotherapy intervention.
Furthermore, Ms. Lee further notes that though the applicant does state she experiences a symptomatic improvement, it's only 20%, despite 3 years of consistent passive treatment.
The applicant argues that she has not reached maximum therapeutic improvement from physiotherapy. Though the applicant has demonstrated that she is experiencing pain as a result of her accident via the medical evidence of Dr. Hyles, Dr. Chin and Dr. Khan, the only direct recommendation for massage and physiotherapy comes from Dr. Hyles in 2015.
When taking this recommendation into consideration, I must consider that this recommendation came almost 3 years before the applicant's OCF-18 was denied. I must also consider that Dr. Hyles, Dr. Chin and Dr. Khan are silent on specifically recommending more passive therapy for the applicant.
The issue in dispute is not whether the applicant is dealing with pain, but rather if this particular OCF-18 for physiotherapy is reasonable and necessary.
8Because I have found the treatment plan in dispute is not reasonable or necessary, I do not have to consider the issue of interest on said treatment plan.
CONCLUSION
9For the reasons outlined above, I find that:
i. The applicant is not entitled to the requested physiotherapy treatment plans.
ii. The applicant is not entitled to interest.
Released: April 6, 2020
___________________________
Stephanie Kepman
Adjudicator
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair Insurance Company, 2015 ONSC 3635.