A.G. v. Aviva Insurance Canada
Released Date: 05/01/2020 File Number: 19-000187/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.G.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Nathan Ferguson
APPEARANCES:
For the Applicant: [A.G.], Applicant Anna Korolkova, Paralegal
For the Respondent: Aviva Insurance Canada, Choose an item. Nabila Majidzadeh, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on September 26, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant sought medical benefits (and interest) from the respondent that were denied on the basis that the requested treatment plans were not reasonable or necessary.
2The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the “Tribunal”) to resolve this dispute.
3I find that the disputed treatment plans are not reasonable or necessary on a balance of probabilities, and that the applicant is therefore not entitled to the benefits or interest on any overdue payment.
ISSUES
4The issues in dispute are as follows:
i. Is the Applicant entitled to a medical benefit in the amount of $1,705.67 for chiropractic, physiotherapy and massage services, recommended by Toronto Healthcare in a Treatment Plan submitted December 15, 2016 and denied on May 30, 2017?
ii. Is the Applicant entitled to a medical benefit in the amount of $1,329.25 for chiropractic, physiotherapy and massage services, recommended by Toronto Healthcare in a Treatment Plan submitted on March 2, 2017 and denied May 30, 2017?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
Disputed Treatment Plans (Issues i and ii):
5The applicant argues that the treatment plans in dispute for chiropractic, physiotherapy and massage services are reasonable and necessary. This is addressed directly by the applicant in her written submissions at paragraphs 25-27. The applicant argues: “she suffers from chronic pain, and as such, her treatments are reasonable and necessary… [she] suffers from chronic pain as well as from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle) and would benefit from further physical therapy to improve and/or manage her pain.”
6The applicant bears the onus to show that the disputed treatment is reasonable and necessary on a balance of probabilities. In this instance, I find that the applicant has not met the onus on her for the following reasons.
Dr. Khokhar’s Notes
7The treatment plans in dispute were submitted in December 2016 and March 2017 respectively. The applicant’s family physician, Dr. Khokhar, referenced the applicant’s pain as “becoming chronic” in a note dated January 9, 2017 and described her conditions as including “chronic pain” on February 22, 2017 and again on April 22, 2017.
8However, no testing to assess chronic pain, or description of the reasons for this diagnosis was provided by the family physician or any other source before the applicant was assessed on April 10, 2019 by Dr. Jacobs. Dr. Jacobs diagnosed the applicant with chronic pain and retroactively opined “the treatment that has been provided to date has been appropriate.” That is, no practitioner prepared any evidence contemporaneously with the treatment plans that assessed the applicant for chronic pain. This is not to suggest that the applicant does not have pain which is chronic or that her diagnosis is determinative.
9In fact, the applicant was removed from the Minor Injury Guideline in 2017, well before any assessment for chronic pain was completed. While the applicant’s written submissions argue that removal from the Minor Injury Guideline is justified by the presence of chronic pain in addition to other diagnoses, the applicability of the Minor Injury Guideline is not at issue in this hearing. There is no dispute that the applicant ought to be confined to the monetary limits outlined in the Minor Injury Guideline. Additionally, I find that a diagnosis (or several diagnoses) in isolation is not sufficient to demonstrate a treatment plan is reasonable and necessary.
10Dr. Khokhar outlines the applicant’s function near the date of the treatment plans submitted with the benefit of directly observing the applicant at that time in the clinical notes and records provided. On September 28, 2016, Dr. Khokhar states that she has “good range of motion, almost normal” but she “moved carefully” and was “tender”. Then in an October 6, 2016 note, Dr. Khokhar considered her range of motion “fairly normal” despite stiffness and tenderness. In the November 17, 2016 note, the applicant is described as “doing better” and again having “[fairly] normal [range of motion]”. This was very similar to the note dated January 9, 2017. In the November 30, 2017 note, Dr. Khokhar stated: “I have no reason to give [the applicant] time off work.”
11At a February 1, 2017 visit with Dr. Khokhar, the applicant was described as having “ongoing issues with neck and shoulder pain despite regular physio[therapy]”. She was referred to a physiatrist and the referral note reiterated: “She has been attending physio a since the accident and it has not help[ed] much.” On the basis of her own reporting, I find that physiotherapy was not providing significant relief and the applicant’s issues were ongoing despite regular access to this treatment.
Dr. Singh’s Assessment
12Dr. Singh’s April 3, 2017 report concluded that the applicant has improved approximately 70% and that she is “continuing to improve, but very, very gradually”. Stretching, exercise and cortisone injections were recommended. The assessment does not appear to suggest that ongoing physical therapy will be of significant benefit. The emphasis in this report appears to be cortisone injections.
Dr. Abuzgaya’s Assessment
13The respondent arranged an assessment of the applicant performed by an orthopedic surgeon, Dr. Abuzgaya. The resulting report dated March 22, 2017 states: “[A,G,] reported a very minimal improvement with pain and range of motion from the treatments she has received… On today’s examination, [A.G.] had functional range of motion of her cervical spine, and shoulders. Overall, there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the subject accident.”
14In a later report dated June 14, 2017, Dr Abuzgaya was asked to consider whether any other treatment was warranted and concluded: “I have no other recommendations for ongoing treatment. From an orthopaedic perspective, [A.G.] has reached maximum medical recovery”.
Duration of Similar Treatment
15The applicant attended physiotherapy and similar treatment as that proposed in the disputed treatment plans for a lengthy period of time. She regained considerable function as, by November 2017, Dr. Khokhar could not recommend time off work. By March 2017, Dr. Singh and Dr. Abuzgaya considered her range of motion 70% of normal or better and any improvement minimal and slow.
16The applicant has not submitted any evidence of re-injury, any other condition that has impacted her recovery or evidence that this type of passive treatment is likely to provide any significant benefit in future. In fact, the applicant’s family physician considered the benefits minimal at all times noting that she never received significant benefit from this type of treatment. While the above analysis largely focuses on physiotherapy, there is no evidence before me that the results of massage therapy or other such passive treatments provide any alternate or more beneficial results.
17In light of all the medical opinion evidence, particularly the evidence of Drs. Singh, Abuzgaya and Khorkhan, I find on a balance of probabilities that the applicant has likely reached maximal medical recovery for her physical injuries. If she were to attend the treatment in dispute, the applicant’s treating practitioners appear to agree that any improvement would be negligible at best. As such, I am not persuaded that these treatments are reasonable and necessary.
18It follows that I find that the applicant is not entitled to the disputed treatment plans.
INTEREST
19Having determined no benefits are payable, there is no entitlement to interest on any overdue payment.
ORDER
20The application is dismissed.
Released: May 1, 2020
Nathan Ferguson Adjudicator