S.M. vs. Aviva General Insurance Company, 2020 ONLAT 17-008818/AABS
Tribunal File Number: 17-008818/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:
S.M.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Rachelle Mitri
For the Respondent: Suhasha Hewagama
Written Hearing: July 29, 2019
OVERVIEW
1S.M. was injured in an automobile accident on March 21, 2016. S.M. sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). S.M. is being treated outside of the confines of the Minor Injury Guideline and has received physical and psychological treatment to date. She submitted two chiropractic/physiotherapy treatment plans that were denied by Aviva on the basis that the treatment was not reasonable and necessary. S.M. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
i. Is the applicant entitled to receive a medical benefit in the amount of $1,830.00 for chiropractic services recommended by Derry Road Physiotherapy in a treatment plan submitted on August 31, 2016 and denied by the respondent on September 20, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,192.16 for chiropractic services recommended by Derry Road Physiotherapy in a treatment plan submitted on October 23, 2017 and denied by the respondent on November 16, 2017?
iii. Is the applicant entitled to receive an award pursuant to section 10 of Reg. 664, R.R.O. 1990?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find S.M. is entitled to both of the treatment plans in dispute as they are reasonable and necessary and incurred. Interest applies on overdue benefits. I find an award is not appropriate.
ANALYSIS
Are the treatment plans in dispute reasonable and necessary?
4Sections 14-16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary. I find S.M. is entitled to the treatment plans in dispute, as they are reasonable and necessary and incurred.
$1,830.00 for chiropractic services denied on September 20, 2016
$2,192.16 for chiropractic services denied on November 16, 2017
5S.M. submits that she continues to suffer from severe left arm tendinosis and wrist pain, neck pain, shoulder pain, back pain and headaches. She argues that the treatment plans are reasonable and necessary because they have a chiropractic and physiotherapy component that helps with her impairments, and her progress has been hindered by Aviva’s refusals due to financial constraints and not wanting to run up a tab at Derry Road Physio. In support of her position, S.M. relies on various clinical notes and records supporting her ongoing pain symptoms and functional limitations, the medical opinions of Drs. Wilderman (chronic pain specialist), Rehemtula (family G.P.) and Rathore (chiropractor) who all support continuing treatment, and an ultrasound and x-rays. S.M. argues that the Insurer Examination (“IE”) report of Dr. Safir (O.S.), which Aviva relied on in denying treatment, is extremely flawed, does not indicate what medical documentation was reviewed and should be afforded limited weight in comparison to the volume of evidence she relies on.
6In response, Aviva submits that further facility-based treatment is not reasonable and necessary and that S.M. has achieved maximal medical recovery for primarily minor physical injuries. It relies on the IE report and addendum of Dr. Safir, who indicated that S.M. reported a 50 percent improvement in her symptoms and that there was no objective evidence of any musculoskeletal impairment as a result of the accident and that she was neurologically intact. Aviva adopted Dr. Safir’s recommendation for S.M. to continue with a self-directed and at-home exercise program for general maintenance and conditioning purposes.
7I agree with S.M. Based on the notes in the file, I find S.M. continuously reported pain to her family physician in 2016 and 2017. She continues to take over the counter and prescription pain medication and gets temporary relief from ice packs and heating pads. In assessments, she self-reports the pain rising to 6-7/10 (and as high as 9/10 in her neck and back to Dr. Wilderman) in her neck and back. She reported a sitting and standing tolerance of 15 minutes and walking tolerance of under 30 minutes. She consistently reported left wrist/arm pain post-accident which is exacerbated by her office job tasks, which at the time of the IE, were at reduced hours. Based on the opinion of Dr. Wilderman, I accept that her right hand/wrist/arm pain has emerged as a result of overcompensating.
8Further, the findings of Dr. Rathore that S.M. has reduced or limited range of motion in her back, left shoulder and right arm and his recommendation that she continue with rehabilitative care provide further support, in my view, that her impairments are affecting her function. In addition, I do not find that this is a situation where the clinic was submitting multiple plans for treatment unreasonably. After the 2016 denial, S.M. sought treatment through her collateral benefits. When those benefits were exhausted, the 2017 treatment plan was submitted. In addition, she attempted home-based programs and purchased a TENS machine to help with her pain, with limited success. On this basis, I agree that it is reasonable to continue facility-based treatment with a professional in order to increase her function and address her pain.
9On the medical evidence, I find it difficult to reconcile how S.M. had achieved maximum therapeutic benefit from previous treatment, as Aviva argues, based on her consistent and continuous complaints of pain and lingering impairments. It is well-settled that pain reduction, increasing strength and endurance are legitimate goals of treatment. The records are consistent that S.M. received temporary relief from treatment and a 50% improvement. She consistently sought treatment through Aviva as well as through her collateral benefits on the advice of medical professionals. The pages of clinical notes from Derry Road Physio are thorough, corroborate her pain complaints over time, chart her progress from treatment and prove that treatment was incurred. Notably, Dr. Wilderman diagnosed S.M. with chronic pain at multiple sources and fibromyalgia, recommending that she participate in an intensive and multidisciplinary chronic pain treatment program with supervised exercise, chiropractic and physiotherapy treatment. The treatment plans in dispute are comprised of these components.
10I turn to the s. 44 report and addendum of Dr. Safir on which Aviva relies. In submissions, S.M. alleged that Dr. Safir did not conduct a thorough examination, that the IE only lasted a few minutes and that the opinion was therefore unreliable, which Aviva contested. After a successful motion, S.M. submitted an affidavit outlining her impression of the examination. Aviva sought a reconsideration of the admission of the affidavit, which was unsuccessful. Thereafter, Aviva submitted an affidavit from Dr. Safir himself, who stated that the IE was thorough, included several tests, that it lasted 30 minutes, was conducted in the presence of a female chaperone and resulted in a detailed report. Dr. Safir strongly denied S.M.’s allegations. While these affidavits provided some colour to the dispute, I make no specific finding on credibility or the thoroughness of the examination because I find there is ample evidence elsewhere in the file to support S.M.’s claim.
11On the totality of the evidence, I prefer the opinions provided by S.M.’s medical practitioners to that of Dr. Safir. While I am alive to Dr. Safir’s opinion that S.M. had reached maximal medical recovery, I find S.M.’s continued attendance at treatment, her continuous reports of pain and functional impairment and Dr. Wilderman’s diagnosis of chronic pain suggests otherwise. I find the opinions of Dr. Wilderman and Dr. Rathore that further facility-based treatment is reasonable and necessary to be more proportional to the medical evidence and S.M.’s self-reporting over time. Indeed, 30 total sessions of chiropractic/physiotherapy treatment spread out over one year is, in my view, a reasonable strategy to placate S.M.’s lingering pain and potentially return her to her pre-accident function. The goals of the treatment plans are rather humble, and the cost is not excessive.
12For these reasons, I find both of the treatment plans in dispute are reasonable and necessary, incurred and therefore payable. As benefits are overdue, interest is payable pursuant to s. 51 of the Schedule.
Award
13S.M. claims entitlement to an award under s. 10 of Ontario Regulation 664 on the basis that Aviva unreasonably withheld payment of the treatment plans, hindering her progress. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which S.M. is entitled if the Tribunal finds that Aviva has unreasonably withheld or delayed payments because of its conduct.
14On the facts and evidence before me, I find an award is not appropriate. Aviva was within its rights under the Schedule to challenge whether the treatment plans submitted are reasonable and necessary on the basis of competing medical opinions. A disagreement on entitlement to a benefit does not automatically trigger an award. While S.M. may disagree, I find there was nothing improper about Aviva’s handling of the issue and, in my view, nothing amounting to unreasonable conduct or bad faith on Aviva’s part sufficient to warrant an award.
CONCLUSION
15I find S.M. is entitled to payment for both of the treatment plans in dispute as they are reasonable and necessary. Interest is payable on overdue benefits pursuant to s. 51. I decline to order an award.
Released: April 3, 2020
___________________________
Jesse A. Boyce, Adjudicator