T.H. vs. Aviva General Insurance Company, 2020 ONLAT 19-002070/AABS
Tribunal File Number: 19-002070/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:
T. H.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Christopher D. Finlay
For the Respondent:
Nisaa Khan
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on May 29, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for a certain treatment plan and, in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Is the applicant entitled to receive a medical benefit in the amount of $1,285.60 for physiotherapy treatment recommended by Queen Square Physical Therapy and Rehabilitation Inc. (“QSPTR”) in a treatment plan dated November 10, 2017?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant is not entitled to the disputed treatment plan or interest.
BACKGROUND
4The applicant was driving a vehicle which had a side-to-side collision with another vehicle on the highway. The collision caused both vehicles to flip over, with the applicant’s vehicle coming to a rest in a ditch. She was taken to the hospital following the accident where she reported pain in her right shoulder, a toe laceration, and headaches. At the hospital she was assessed, prescribed Baclofen and released.
5She followed up with her family physician, Dr. M. Garay, on June 2, 2015. Dr. Garay assessed the applicant and diagnosed her with tension headaches, upper back strain and anxiety/sleep disturbances. Dr. Garay advised her to take Tylenol and Advil as required for the headaches, cyclobenzaprine to relax her muscles and help her sleep, and start physiotherapy. She started physiotherapy treatment the following day.
6For about the next year, the applicant continued with physiotherapy and met with Dr. Garay on a semi-regular basis. During this time, Dr. Garay referred her to Dr. E. Marmor, neurosurgeon, due to ongoing pain in her shoulder. Dr. Marmor assessed the applicant on February 3, 2016 and noted her condition improved following physiotherapy treatment and did not recommend surgery.
7The applicant later submitted a treatment plan for physiotherapy and massage therapy through Focus Physiotherapy, dated July 7, 2016. The respondent initially denied funding for the treatment plan but, after receiving compelling medical evidence, approved the treatment plan on May 29, 2017, nearly a year after the plan was submitted.
8The applicant never incurred the July 7, 2016 treatment plan. Instead, she chose to seek treatment from QSPTR because, according to the applicant, it is closer to her family physician’s office. QSPTR submitted a treatment plan on behalf of the applicant, dated November 10, 2017, which is the basis for the substantive issue in dispute for this hearing.
ENTITLEMENT TO THE PHYSIOTHERAPY TREATMENT PLAN
9Pursuant to section 15(1) of the Schedule, the applicant is entitled to the reasonable and necessary expenses incurred as a result of the accident. The applicant’s entitlement is subject to the exclusions outlined in section 15(2) of the Schedule and the monetary limits outlined in section 18. Though, neither of the exclusions are relevant to this dispute.
10It is the applicant’s burden to establish that on a balance of probabilities, the physiotherapy treatment plan in dispute is reasonable and necessary for her accident-related injuries.
11I find the applicant has failed to meet her burden for the following reasons.
Can the applicant exchange one treatment plan with another from a different facility?
12While in other circumstances it may be reasonable to exchange an approved treatment plan with a similar one from a different facility, I find it is not reasonable in this case.
13In her submissions, the applicant argues the disputed treatment plan from QSPTR was submitted as a replacement for the approved treatment plan dated July 7, 2016. She further submits the QSPTR treatment plan is less expensive and consists of the same modalities as the plan from Focus Physiotherapy which wasn’t incurred.
14The respondent submits it first heard of the applicant’s position upon receipt of her submissions for this hearing. It further submits the applicant has failed to provide evidence or a reason for not incurring the July 7, 2016 treatment plan after it was approved on May 29, 2017 and before the November 10, 2018 treatment plan was submitted. Lastly, it submits that switching clinics, as the applicant did, is not persuasive evidence that the physiotherapy treatment plan is reasonable and necessary. I agree.
15The applicant provides no authority for her position. She provides no caselaw involving a scenario where an insured person was permitted to exchange a treatment plan approved at one clinic for a treatment plan at a different clinic. Likewise, she makes no reference to any provision in the Schedule which would permit such an exchange.
16The applicant fails to explain the substantial gap in treatment. As noted by the respondent, the applicant provides no reasonable explanation as to why she did not incur the treatment plan once it was approved. Her claim that she wishes to engage in treatment at a facility which is closer to her family physician has merit however, it fails to address the six-month gap between the approval of the July 7, 2016 treatment plan and the submission of the November 10, 2018 plan.
17It is unreasonable to approve additional treatment when similar approved treatment was not incurred or withdrawn. As noted above, there is no evidence showing the applicant advised the respondent of her desire to exchange treatment plans prior to this hearing. Likewise, the applicant provides no evidence the approved treatment plan dated July 7, 2016 was withdrawn in exchange for the disputed treatment plan. The notes associated with the disputed treatment plan are devoid of any mention of the applicant’s proposed bargain to exchange plans. Furthermore, it is unclear as to whether I have jurisdiction over the approved treatment plan. Thus, I am unable to deem it withdrawn in exchange for the disputed treatment plan.
18While I have found the applicant is not entitled to the disputed treatment plan on the grounds that it was proposed in exchange of a previously approved treatment plan, the applicant may be entitled to the plan if it is found to be reasonable and necessary for her accident-related injuries.
Is the physiotherapy treatment plan reasonable and necessary?
19I find the applicant has not met her onus to prove the disputed treatment plan is reasonable and necessary.
20The applicant’s evidence predates and is mostly unsupportive of the disputed treatment plan. There are no accident-related complaints in Dr. Garay’s clinical notes and records (“CNRs”) after the recommendation for physiotherapy treatment on April 26, 2017. This recommendation coincides with the approval of the unconsumed treatment plan. Additionally, the applicant made no accident-related complaints to Dr. Garay during any of the nine visits following April 26, 2017, including during the October 19, 2017 routine assessment which she was noted to be “well”.
21The recommendation from Dr. D.H. Brooks and Dr. Cauchi also predate the recommended treatment plan. Dr. Brooks met the applicant once on April 18, 2017 and, after assessing her, diagnosed with cervical joint dysfunction, left C5-6 nerve root irritation with foraminal narrowing, left side supraspinatus and subscapularis tendinopathy, chronic biomechanical lumbar facet joint pain, chronic pain syndrome, and anxiety with depression. Dr. Brooks supported the approved and unconsumed treatment plan but made no other treatment recommendations. Similarly, Dr. Cauchi met the applicant on October 24, 2016, noted the applicant’s ongoing pain and was “in favour of more physiotherapy and massage on an intermittent basis.” Dr. Cauchi went on to qualify the recommendation by noting the applicant should “continue this treatment only if it was really helpful.” The assessment and recommendation are too far removed to support the disputed treatment plan.
22Of the most timely records, I prefer the insurer’s examination by Dr. V. Naumetz, orthopedic surgeon, dated March 13, 2018 over the letter from C. Mangot, physiotherapist, dated September 7, 2019. Dr. Naumetz was provided with a significant amount of the applicant’s medical records for review prior to the assessment, including Dr. Garay’s CNRs. Following a physical assessment of the applicant, Dr. Naumetz found only decreased range of motion in her left shoulder, which was attributed to pre-existing issues dating back to 2013. Physiotherapist Mangot’s letter refers to a November 7, 2017 assessment where it was noted the applicant had cervical pain and decreased range of motion in her left shoulder. Unlike Dr. Naumetz, physiotherapist Mangot’s opinion was presented about two years after the assessment occurred and did not include a review of the applicant’s past medical records.
INTEREST
23Pursuant to section 51, interest is only payable on overdue payments. I find no interest payable as no payments went overdue.
CONCLUSION
24Though the applicant claims the disputed treatment plan was submitted in exchange of a previously approved treatment plan, there is no evidence to support this. The previously approved treatment plan was not withdrawn, and the notes associated with the disputed treatment plan make no mention of the proposed bargain.
25Additionally, the applicant’s contemporaneous evidence does not meet her burden to prove the disputed treatment plan is reasonable and necessary.
26No interest is payable as no payments went overdue.
Released: May 1, 2020
Brian Norris
Adjudicator