S.G. v. Aviva Insurance Canada, 2020 CanLII 37587

Citation: S.G. vs. Aviva Insurance Canada, 2020 ONLAT 18-012513/AABS

Released Date: 05/01/2020 File Number: 18-012513/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.G.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Susan Mather

APPEARANCES:

For the Applicant:

Naphtali Silverman, Counsel

For the Respondent:

Sophia Chaudri, Counsel

HEARD

BY WAY OF WRITTEN SUBMISSIONS

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on September 14, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She was denied certain benefits for physical therapy services, occupational therapy services and assistive devices by the respondent (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Following a case conference and a motion hearing, the parties agreed that the application be heard in writing and the in-person hearing was cancelled. Three treatment and assessment plans (treatment plans) remain in dispute.

ISSUES

3The issues to be decided by me are as follows:

a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,730.11 for assistive devices recommended by Joanne Romas in a treatment plan denied on December 9, 2018?

b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,915.51 for occupational therapy services recommended by Joanne Romas in a treatment plan denied on December 9, 2018?

c. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,369.03 for assistive devices recommended by Joanne Romas in a treatment plan denied on December 9, 2018?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons provided below I find that the applicant is not entitled to any of the goods and services proposed in the treatment plans that are in dispute. The application is dismissed.

THE TEST

5Aviva must pay medical and rehabilitation benefits to the applicant related to the injuries she sustained in the accident.¹ To succeed in her claim, the applicant must prove on the balance of probabilities that the goods and services proposed in the treatment plans are reasonable and necessary for the injuries she sustained in the accident. ²

6The applicant submits that the three treatment plans that propose counselling by an occupational therapist and assistive devices for the home and work place are reasonable and necessary to help her deal with her serious and permanent impairments. She wants to continue to make efforts to improve her condition, manage her pain, manage her part-time employment and improve the quality of life and daily functioning. She submits that pain reduction is a legitimate goal of a treatment plan for assistive devices.

7Aviva submits that the injuries the applicant relies on to substantiate her claim for benefits are not a direct result of the accident and that the treatment plans in dispute are neither reasonable or necessary.

APPLICANT’ S INJURIES

8Before I can determine if the treatment plans are reasonable and necessary, I must determine if the applicant remained impaired by injuries sustained in the accident at the time the treatment plans were submitted for approval. The plans were proposed in the fall of 2018, over two years after the accident.

9Aviva argues that the injuries the applicant seeks the treatment plans for are not injuries resulting from the accident.

10The applicant relies on various medical reports, including Aviva’s Independent Examinations (“IEs”), to demonstrate that her injuries are in fact as a result of the accident.

11For the reasons provided below I am satisfied on the balance of probabilities that two years after the accident the applicant was still suffering impairment from the injuries she received in the accident.

12The applicant submits that the IEs confirm that she was still suffering impairment from the injuries she sustained in the accident at the time of the IEs.

IE Report – Dr. Rusen – July 27, 2018

13The IE report of Dr. J. Rusen, Orthopaedic Surgeon finds the most appropriate accident related musculoskeletal diagnosis for the applicant would include: ³

• WAD 3 cervical spine strain with exacerbation of pre-existing degenerative disc disease and cervical spondylosis

• Soft tissue strain/sprain bilateral shoulders

• Soft tissue strain/sprain right wrist

• Contusion left forearm

• Soft tissue strain sprain right thoracic spine

• Soft tissue strain/strain lumbar spine with exacerbation of underlying degenerative disease

• Impaction fracture right anterior tibial plafond

• Soft tissue strain/sprain bilateral ankles

• Chest contusion

14Aviva argues that the applicant’s pre-existing degenerative disc disease (“DDD”) is the cause of the applicant’s impairments. Dr. Rusen’s report acknowledges the applicant’s pre-existing DDD. He states, however, that the pre-existing condition probably resulted in a clinically significant exacerbation with ongoing impairment and disability. He further states that the pre-existing condition would delay healing from the accident-related injuries. Dr. Rusen also finds that the other pre-accident medical conditions that were reported would not affect recovery from the accident related orthopaedic injuries.⁴

15In my view there is no doubt from Dr. Rusen’s report that the applicant sustained injuries in the accident and has ongoing impairments from the injuries. Dr. Rusen’s report was prepared to provide an opinion of treatment plans proposing more physical therapy. The treatment plans he reviews are not before me at this hearing. Dr. Rusen did not address the treatment plans that are in issue.

IE Report – Dr. Ranalli – November 6, 2018

16Neurologist, Dr. Paul Ranalli conducted an IE for Aviva in November 2018 in order to provide an opinion on the disputed treatment plans. Dr. Ranalli diagnosed the applicant with: “flexion-extension strain force injury to cervical and axial soft tissues (Whiplash Associated Disorder, Grade 2); multiple soft tissue strains and contusions.” ⁵

17Dr. Ranalli “suspected” that the applicant sustained enough cervical strain/sprain(whiplash) injury to aggravate her pre-existing cervical (DDD), exacerbating the degenerative changes that appeared to be partly compromising cervical nerve roots of the C5-C6 and C6-C7 levels. He also found that the applicant appeared to have developed a secondary syndrome of “medication overuse” (“MOS”) that was contributing to the applicant’s on-going pain.

18Dr. Ranalli provided the opinion that he found no good evidence for a significant head injury or concussion in this case. The only evidence of a head Injury in the documents before me is a clinical note and record (“CNR”) of the applicant’s family doctor made on February 14, 2018 which records “sunglasses into head getting into car (2 days ago)”. The family doctor assessed the applicant with a mild head injury and photophobia possibly due to a migraine. ⁶

19I have no other medical evidence of the applicant experiencing a head injury in the accident or any visual disturbances. The medical records before me from the first 18 months after the accident are minimal. The applicant did not consult or rely on her family doctor to treat her injuries or prescribe her medication. According to the CNRs of her family doctor, she relied on a walk-in clinic to renew her medications. ⁷

20There is a reference in the Physiotherapy assessment of Tina Rabbior to the applicant being diagnosed with vertigo and migraine headaches following the collision. I am unable to find these diagnoses in the medical records I have been provided with.⁸

CNRs - Dr. Sartarian – September 20, 2016 and May 11, 2017

21Dr. J. Sartarian, an orthopaedic surgeon at Scarborough General Hospital, followed the applicant’s care following the accident. The main issues were the exacerbation of the applicant’s DDD in the cervical and lumbar spine⁹. In May 2017 he referred the applicant to a Dr. Fazl a neurologist who recommended the applicant undergo cervical spine surgery.¹⁰ The applicant declined to undergo the surgery because of the risks associated with it. I have not been provided with CNRs of Dr. Sartarian beyond May 11, 2017.

CNRs – Tina Rabbior – May 17, 2018 and November 21, 2018

22The applicant also relies on the report of Tina Rabbior, a registered physiotherapist, to establish the applicants continuing impairments from the accident.¹¹ The applicant was referred to Ms. Rabbior by her lawyer.

23Ms. Rabbior prescribed a physiotherapy treatment program to improve the applicant’s functional limitations in all aspects of her life. The therapy was focussed on:

1. Soft tissue release to trigger points in neck and shoulder musculature

2. Postural re-education

3. Stretches to neck and shoulders

4. Cervical spine active range of motion

5. Pain Education and management

6. Balance exercise education

7. Education in home exercise program.

24In my view the proposals of Ms. Rabbior support my conclusion that the applicant was still suffering some impairments from the accident in May 2018. Ms. Rabbior provided a Progress Report which states that the applicant still had ongoing impairments arising from the accident in November of 2018.^{12 13}

Conclusion

25Based on the evidence reviewed above I am satisfied on the balance of probabilities that the applicant was still experiencing pain and musculoskeletal issues caused by the exacerbation of her pre-existing DDD. I am satisfied that the exacerbation of her pre-existing DDD was causing her ongoing pain and range of motion issues. I am not satisfied that she suffered visual disturbances, mild cognitive disorder and problems related to a head injury or concussion from the accident because of the evidence that she sustained a head injury in February 2018 and the lack of medical evidence confirming these issues prior to February 2018.

26I must consider the treatment plans individually to determine if they are reasonable and necessary to treat the applicant’s ongoing pain and movement issues arising out the exacerbation of the DDD as a result of the accident.

27This plan proposes eight two-hour sessions of “therapy, cognition and learning” over 26 weeks plus travel time, mileage and documentation and therapy supplies. ¹⁴

28The stated goal of the plan is pain reduction and functional restoration. The functional goal is to return the applicant to activities of daily living. I have reviewed the details of the proposed plan listed in the additional comments section, and I am not satisfied that the applicant has shown on the balance of probabilities that the treatment sessions proposed are reasonable and necessary for the following reasons:

a. At the time of this treatment plan, occupational therapist Joanne Romas also proposed a treatment plan for assistive devices including a long-handled shoe horn, a free-standing blow dryer and a lift/massage chair. For the reasons provided below I do not find the treatment plan proposing the assistive devices be reasonable and necessary. For that reason, the proposed review and implementation of the assistive devices is not reasonable and necessary.

b. There is no evidence before me that the applicant was not coping with her activities of daily living two years post accident. There is nothing in the documentation I have reviewed to support a finding that the applicant needed assistance in scheduling activities, meals and safety drills.

c. There is no evidence that the applicant suffered any psychological issues as a result of the accident.

d. The treatment plan refers to a July 2, 2018 functional assessment which is not included in the documentary evidence before me. The only functional assessment before me is the IE report of Robert Campos, an occupational therapist.

e. Mr. Campos found that the applicant did not have cognition and learning issues and for that reason found that treatment sessions proposed for cognition and learning were not reasonable or necessary.¹⁵

29This plan proposes a free-standing hair dryer holder ($57.99) a long-handled metal shoe horn ($11.00) and a lift/ massage Chair ($3000). It also provides for delivery of the items and documentation. I have no evidence that the applicant has incurred the expense of any of these items.

30The goal of the plan is pain reduction and functional restoration. The functional goals are to return the applicant to pre-accident work activities and to return her to modified work activities. Barriers to recovery are identified as chronicity of the applicant’s condition and lack of occupational therapy treatment.

31For the reasons provided below I am not satisfied on the balance of probabilities that the devices proposed in this treatment plan are reasonable and necessary.

a. I fail to see the connection between the applicant’s request for a hair dryer, a long metal shoe horn, a list/massage chair and her ability to return to work. There is no evidence to show that the lack of these devices has interfered with her ability to return to work or do modified work.

b. These devices were proposed over two years after the accident. I would have expected the applicant to have sought assistance at an earlier date if these devices were truly necessary.

c. The only occupational therapy assessment included in the documentary evidence is the IE report of Mr. Campos who provided the opinion that the treatment plan is not reasonable and necessary.

d. In Mr. Campo’s opinion the applicant is able to perform her self-care activities and does not require assistive devices. His opinion is based on his objective measure, informal and formal observation of the applicant’s functional abilities mobility, range of motion, strength as well as psychological functioning and his review of the documentation.

e. While there is evidence that the applicant was still experiencing impairments from injuries sustained in the accident, I am unable to find any evidence other than the treatment plan itself to support the finding that these particular devices are reasonable and necessary. There is no mention of the need for these devices in any of the other health care practitioner’s reports before me.

32This treatment plan proposes devices for the applicant’s office and home office.

33The goals of this treatment plan are pain reduction and functional restoration, while the functional goals are returning to activities of normal living. There is no mention of the applicant’s ability to return to work, which I would have expected to be the goal of the treatment plan.

34The devices proposed by the plan are as follows:

Monitor Riser (2@ $49.95)

Landline Headset (2@ $139.99)

Wheeled brief case ($179.99)

Wireless Key board (2@ $54.99)

Wireless Mouse (2@ $79.99)

Nuance Dragon Software ($299.89)

Ergonomic Chairs (2@$799.00)

Mouse wrist rest (2@$24.81)

Key board wrist rest (2 @ $26.99)

Documentation ($200)

35The applicant is an insurance broker who was self-employed at the time of the accident. According to the IE report of Ms. Rabbior, her job entailed frequent computer and written work, use of the telephone, speaking with her clients and driving.

36In May 2018 the applicant reported to Ms. Rabbior that she was working two to three hours per week. She told the physiotherapist that she was unable to type or use a mouse due to pain in her arms. She reported being able to write for a total of approximately three minutes. ¹⁶

37In July 2018 the applicant reported to Dr. Rusen that she was working less than 10 hours per week due to pain. She described her job duties as being mostly desk based involving computer work, telephone calls and meetings as well as completing applications with individuals. She reported that she had difficulty holding up the telephone as well as difficulty typing, writing and sitting for prolonged periods of time.

38In October 2018 she reported to Dr. Ranalli that she was working only about 15% of the time and her capacity to work was limited by her pain.

39In November 2018 the applicant told Mr. Campos that she took 6 to 8 months off from work following the accident and then returned to work 2 hours per week. She reported that she had gradually increased her work hours and was working up to 30 hours per week. She reported that she works five days per week, including 4 hours per day at her office and 1-2 hours per day from her home. She is responsible for typing e-mails, applications, getting quotes, driving to meet clients, contacting partners and clients and delegating tasks to her secretary. She reported her secretary helps to carry things at times.

40I am not satisfied on the balance of probabilities that this plan is reasonable and necessary for the following reasons:

a) The applicant has returned to work at least 30 hours per week apparently without the benefit of any of these assistive devices.

b) The only evidence that the applicant has provided as to her functional capability is the physiotherapy assessment of Ms. Rabbior¹⁷ and the treatment plan itself. Ms. Rabbior provides no recommendation for assistive devices. The treatment plan lists the devices and refers to an ergonomics report which is not included in the documentation before me. Without any evidence as to the appropriateness of the devices recommended in the treatment plan to alleviate for the applicant’s ongoing pain and musculoskeletal issues, I am unable to find that the devices are reasonable and necessary. For example, while the applicant told Ms. Rabbior in May 2018 that she had difficulty using a mouse, I have no evidence that the wireless mouse proposed in the treatment plan would be easier for the applicant to use than a regular mouse.

41In her submissions the applicant mistakenly attributes the comments apparently made by occupational therapist Joanne Romas in an in-home functional assessment report to Mr. Campos.¹⁸ She did not recognize that the whole comment found on page 13 of Mr. Campos’s report is in quotation marks. ¹⁹

42For the reasons provided above I am not satisfied on the balance of probabilities that any of the three treatment plans before me are reasonable and necessary.

43In making the finding that the treatment plans are not reasonable and necessary I have given little weight to the IE report of Dr. Ranalli. Dr. Ranailli provides the opinion that from a neurological perspective none of the treatment plans are not reasonable or necessary. He does not, however, give any consideration to whether the applicant had any functional disability from her pain issues which would be alleviated by the assistive devices.

44I have also given little or nor weight to the fact that the applicant declined the cervical spine surgery recommended by Dr. Fazl in 2017. I am of the view that the applicant’s decision to decline the surgery because of the risks involved is not a reason to deny her reasonable and necessary assistive devices.

45The applicant argues that Mr. Campos did not find a single recommended assistive device to be reasonable and necessary despite the diagnoses of the IE doctors. In my view, a diagnosis does not determine if an assistive device is reasonable and necessary. A functional assessment is required. There is no evidence to show that the assistive devices sought by the applicant are reasonable and necessary two years after the accident.

INTEREST

46Having found that the treatment plans before me are not reasonable and necessary it follows that there is no interest owing to the applicant on any overdue benefits. I also note that I have no evidence that any of the treatment plans in issue were incurred by the applicant.

47For the reasons provided above I order:

1. The application is dismissed.

Footnotes

1. 1S. 14 of the Schedule.
2. 2S. 15 and 16 of the Schedule.
3. 3Tab 13 applicant’s written submissions, IE Report of Dr. Rusen dated July 27, 2018.
4. 4Tab M, Aviva’s written submissions, page 68 Report dated July 27, 2018.
5. 5Tab 14, applicant’s submissions, IE report of Dr. Ranalli, neurologist dated November 6, 2018
6. 6Tab L, respondent’s written submissions, CNRs of family doctor.
7. 7Tab L, respondent’s written submissions, December 18, 2017 CNR of family doctor
8. 8Tab 5, applicant’s documents, Physiotherapy Initial Assessment Report of Tina Rabbior dated May 17, 2018
9. 9Tab 1 and Tab 3, applicant’s documents, CNRs of Dr. Satarian dated September 20, 2016 and May 11, 2017
10. 10Tab 4, applicant’s documents, June 27, 2017 reporting letter of Dr.Fazl
11. 11Tab 5, applicant’s documents, Initial Assessment Report of Tina Rabbior dated May 17, 2018.
12. 12Tab 6 applicant’s documents, Progress Report of Tina Rabbior, dated November 21, 2018.
13. 13I have no evidence to confirm whether the physiotherapy proposed by Ms. Rappior was ever approved by Aviva.
14. 14Tab 8, applicant’s submissions.
15. 15Tab 5, applicant’s submissions, IE Report of Robert Campos dated November 6, 2018, page 24.
16. 16Tab applicant’s documents page 5
17. 17Tab 5, applicant’s documents
18. 18The report referred to by Mr. Campos is not in evidence.
19. 19Paragraph 32, applicant’s submissions.