S.M. v. Aviva Insurance Canada
Tribunal File Number: 19-000041/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.
Between:
S.M.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
For the Applicant:
Victoria Gorbenko, Paralegal
For the Respondent:
Nabila Majidzadeh, Counsel
Held by Written Hearing:
September 30, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on January 23, 2017. To assist in his recovery, he sought medical benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent refused to pay for some of these benefits, the applicant applied to the Tribunal.
2As I will explain below, I find that the applicant is entitled to the disputed medical benefits, so long as the services were incurred following the submission of a treatment plan.
ISSUES
3According to correspondence from the applicant (dated August 30, 2019) and the submissions from the parties, the remaining benefits are at issue:
(i) Chiropractic services in the amount of $3,749.60 (less $1,730.70 deemed payable by the respondent) in a treatment plan submitted on January 31, 2017; and,
(ii) Chiropractic services in the amount of $3,196.64 (less $187.29 deemed payable by the respondent) in a treatment plan submitted on May 4, 2017.
4The applicant is also requesting interest on any overdue payment of benefits. Though he asked for an award in his reply submissions, the applicant later clarified (in an e-mail dated September 20, 2019) that he would not be pursuing this remedy.
ANALYSIS
5Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.
6Both of the disputed treatment plans recommend physical therapy with the goal of pain reduction, increased range of motion, increased strength, and a return to pre-accident activity levels.
Parties’ Positions
7The applicant argued that this physical therapy is a reasonable and necessary expense to help him address his accident-related pain. Left ankle and foot pain are the main focus of his submissions, as he had fractured this foot several years before the subject accident.
8The applicant also highlighted the range of motion measurements included in these plans, as they show increased movement in his cervical and lumbar spines between January and May 2017. Finally, the applicant highlighted the fact that these plans were originally denied due to the Minor Injury Guideline, and he has since been removed from this funding limit.
9The respondent stands by its denials, as its assessors found that the applicant’s pain presentation was inconsistent and unusual. For example, the respondent’s neurologist, Dr. Jamsheed Desai, concluded that the applicant’s reported limitations seem “somewhat improbable given the severity of the reported accident.” The respondent also highlighted that—while the plans state that the applicant has severe restrictions in his range of motion—no such limitations were observed when these movements were not being formally tested. Therefore, while the applicant was removed from the Minor Injury Guideline on account of his psychological impairments, the respondent stands by its conclusion that his accident-related, physical injuries no longer require facility-based therapy.
Section 38(8)
10As noted above, the respondent accepts that it is liable to pay for part of the two treatment plans in dispute. The respondent conceded that it failed to comply with the timeline in s. 38(8) of the Schedule. Briefly, an insurer must deny a benefit within ten business days of receiving a treatment plan. Therefore, since both of these plans were denied following this deadline, the respondent must pay for any amounts that were incurred after the 11th business day and before a proper denial was provided.
11The parties dispute the amounts that are payable due to this non-compliance. That is, while the applicant argued that he incurred more during the period following the submissions of his denied treatment plans, the respondent contended that these supposedly outstanding amounts were incurred outside of the period between the 11th business day and the date of denial. The respondent also highlighted that some of this treatment was incurred before a treatment plan had even been submitted.
12In light of my findings about the reasonable and necessary nature of the proposed treatment, I will not address this dispute. However, I will note that any treatment incurred before the submission of a treatment plan is not payable by the respondent, in accordance with s. 38(2) of the Schedule. In particular, an OCF-21 prepared in relation to the treatment plan submitted on January 31, 2017 states that services were incurred several days before on January 26 and 28, 2017. These amounts are not payable.
Reasonable and Necessary
13To determine whether a medical benefit is payable, an adjudicator must compare an applicant’s accident-related impairments to the proposed goals and treatment modalities listed in a treatment plan. As such, it is not enough to say that an applicant has sustained a specific impairment, but rather the disputed benefit must have a rational connection to the treatment of this impairment. Further, the amounts in dispute cannot be excessive or unjustified.
14To start, I am satisfied that the applicant experienced significant pain as a result of the accident, especially in his left ankle/foot and upper body.
15First, the applicant has experienced functional limitations due to his accident-related pain. For instance, in the psychological screening report from Dr. Harinder Mrahar (dated March 2, 2017), the applicant reported being unable to attend the gym due, in part, to his pain. Then, in Dr. Mrahar’s psychological assessment report dated April 3, 2017, the applicant expressed concerns that his “significant physical injuries and emotional difficulties” would limit his ability to pursue his dreams of becoming a plumber.
16Physical limitations are also noted in the two disputed treatment plans, e.g., bending, lifting, “activities entailing strength and endurance”, etc.
17Evidence of this pain can also be found in the respondent’s assessment reports. For example, the applicant told Dr. Desai that he “was in so much pain that he could not perform range of motion nor could he provide resistance for manual motor strength testing.” The respondent’s physician, Dr. Roger Lam, then noted that the applicant’s ambulation was affected by his pain.
18After establishing the existence of an accident-related impairment, I am then satisfied that physical therapy has helped the applicant to treat this accident-related impairment.
19First, the applicant’s range of motion has improved significantly as a result of the disputed physical treatment. That is, in both the treatment plans and the records from the applicant’s treating clinic, there is evidence that physical therapy has progressively improved his ability to move his cervical and lumbar spines.
20In addition to improvements in his range of motion, the May 2017 treatment plan also noted a drop in the applicant’s self-reported pain. That is, in preparation of the January 2017 plan, the applicant rated his pain as between 8-10/10 (with lower back and left ankle pain being the worst). Then, in May 2017, he reported pain levels ranging from 6-8/10. These self-reported symptoms are further evidence that this physical therapy is addressing his accident-related impairments.
21The respondent takes issue with these findings for a number of reasons. To start, regardless of what the treatment plans may state, its assessors concluded that the applicant’s movements were markedly better when he did not believe he was being tested during the physical examinations (e.g., during a transfer). I do not share these concerns.
22Rather, even if he had the ability to move with a full range of motion, I am still satisfied that he did so with pain. That is, according to the clinical note from his visit with Dr. Emad Guirgis on February 17, 2017, this physician noted full range of motion in his neck and right shoulder. However, Dr. Guirgis also observed that these movements were painful for the applicant. Therefore, even if the therapy is only assisting the applicant to make these movements with less pain, I still find that the treatment is necessary to address his accident-related pain.
23Second, the respondent highlighted the unusual symptomology noted by its assessors—inconsistencies that led it to question his self-reported complaints. Based on the findings of the parties’ psychological assessors, I am satisfied that the applicant has credibly described his medical condition to the various assessors.
24In her report from April 2017, Dr. Mrahar observed that the applicant exhibited “no signs of pain-inflicted behaviour that would have suggested attention seeking or malingering.” This conclusion was then largely shared by the respondent’s psychological assessor, Dr. Amena Syed, who found that his highly negative self-presentation was “indicative of an individual crying for help versus intentional feigning.” His scores on the psychometric testing also provided evidence that his self-reported symptoms were accurate. Overall, Dr. Syed was satisfied that her findings provided a “generally valid estimate of his current clinical psychological status.”
25These assessors were obviously focused on the applicant’s psychological condition, but I still find this evidence useful in my analysis of his physical impairments. Specifically, the valid reporting of psychological concerns is a strong indication that the applicant is not feigning his other self-reported symptoms. As such, I do not share the respondent’s concerns about the applicant’s credibility, and, by extension, I am satisfied that his reported pain and improvements are credible as well.
26I would also add that the applicant’s psychological impairments appear to be closely related to his experience of physical pain—a point noted in the reports from both Drs. Mrahar and Syed. Therefore, if this physical therapy assists the applicant’s pain, it is likely to be of assistance to his psychological complaints as well.
ORDER
27I find that the applicant is entitled to the disputed medical benefits, save for those physiotherapy services incurred on January 26 and 28, 2017 (in relation to the treatment plan submitted on January 31, 2017).
28He is also entitled to interest in accordance with s. 51 of the Schedule.
Released: April 16, 2020
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.