R.P. v. Aviva Insurance, 2020 CanLII 37660

R.P. vs. Aviva Insurance, 2020 ONLAT 19-000501/AABS

Citation: R.P. vs. Aviva Insurance, 2020 ONLAT 19-000501/AABS

Released: 05/25/2020

Tribunal File Number: 19-000501/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:

R.P.

Applicant

and

Aviva Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Devika Maharaj

For the Respondent:

Emily M. Hill

HEARD:

By way of written submissions

OVERVIEW

1R.P. was injured in an accident on February 9, 2016 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The treatment plan in dispute was denied by Aviva on the basis that the treatment was not reasonable and necessary. R.P. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

a) Is the applicant entitled to receive a medical benefit in the amount of $1,071.41 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on April 27, 2017 denied by the respondent on June 22, 2017?

b) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that R.P. is entitled to the treatment plan in dispute as it is reasonable and necessary. Interest applies on overdue incurred benefits, pursuant to s. 51.

ANALYSIS

Is the chiropractic treatment plan 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. On a balance of probabilities, I find R.P. is entitled to the treatment plan as it is reasonable and necessary and incurred.

5The sole treatment plan in dispute was completed by Dr. Sugar, chiropractor at Revive Health Centre, and is dated April 27, 2017. The plan recommends eight sessions each of chiropractic treatment and supervised exercise to treat R.P.’s physical accident-related impairments, which are identified as injuries to his neck, shoulder and low back, causing lingering pain and affecting his range of motion. R.P. relies on the clinical notes of his family physician, Dr. Lazebnik, the report of Dr. Winston, sports medicine specialist, and an MRI and x-ray of his back as evidence that the treatment is reasonable and necessary.

6In response, Aviva submits that the treatment plan is not reasonable and necessary because R.P. has reached maximal medical recovery, that further facility-based treatment would not benefit him, and that R.P. failed to meet his burden to prove that the specific chiropractic treatment he seeks is required to treat his specific impairments when he has been taught a home-based program. It argues that R.P.’s degenerative back pain is mild, that there is no indication that it was exacerbated by the accident, that the MRI revealed only trivial changes and that R.P. has furnished no clinical records to prove the efficacy of three years worth of treatment. Aviva relies on the s. 44 report of Dr. Cayen dated June 21, 2017 and addendum dated February 3, 2020 that identified no impairments, recommended home-based exercise and stated that maximal medical recovery had been achieved.

7On the evidence, I find the treatment plan is reasonable and necessary. Contrary to Aviva’s argument, I find the treatment plan is quite detailed in how previous treatment has proven beneficial to R.P. in recovering from his pain and impairments. The additional comments section of the OCF-18 identifies the impairments that remained present on re-assessment while also identifying the impairments that had resolved as a result of the treatment R.P. has received to date, including his wrist, hand, ankle, foot, chest, ribs and sternum and left leg numbness. In my view, this suggests that the clinic was actively tailoring its treatment to the specific complaints as R.P. progressed. Given the period of time when the treatment plan was completed, being April 2017 (or 14 months after the accident), I also find the scope and duration of the plan to be reasonable, as it recommends eight sessions over an eight-week period. In my view, this represents a potential ramping down of treatment and monitored exercise in order to ease into home-based exercise as R.P.’s pain subsided.

8To be clear, the impairments identified in the OCF-18 are not particularly severe and the diagnostic reports reveal mild impairments. However, it is well-settled that pain reduction is a legitimate goal for treatment, and I find pain reduction is the primary goal of this plan in order to return R.P. to his pre-accident state. The plan itself is rather humble in terms of scope and cost to achieve this goal. I find the total amount of $1,071.41 claimed to be reasonable where pain remains one-year post-accident, given that R.P. is not subject to the MIG and that Aviva has paid well in excess of this amount of treatment to date. Further, on review of the medical documentation in evidence, R.P. consistently reports pain post-accident, with Dr. Lazebnik recommending physiotherapy in November 2016 for pain, that he continue facility-based treatment in July 2017 due to his lingering pain and recommending he continue physiotherapy after diagnosing chronic pain in October 2019. That Dr. Lazebnik and Dr. Winston both recommended that R.P. find a less-demanding occupation than his previous construction job also indicates, in my view, that his pain was functionally affecting his day-to-day and work activities at the time the plan was submitted. On this basis, I agree that it would be reasonable for R.P. to continue with his treatment at this time, which he did, as the treatment was allegedly incurred up to the amount proposed in the plan.

9While I am alive to Dr. Cayen’s opinion, I place limited weight on his February 2020 addendum report, which was authored four years after the accident and nearly three years after the submission of the OCF-18 in dispute. Given that R.P. incurred the treatment in 2017 when it was submitted, I do not find Dr. Cayen’s 2020 opinion that R.P.’s current physical state—after undergoing treatment and switching jobs in the three years since—renders treatment received in 2017 retroactively unreasonable and unnecessary to be very probative. In a similar vein, I prefer R.P.’s contemporaneous and consistent reports of pain to his family physician in 2016 and 2017, and the fact that he continued to attend for treatment in spite of Aviva’s denial over Dr. Cayen’s June 2017 opinion that R.P. “should have been taught a home-based exercise program for strengthening” and ultimate diagnosis of a trapezius and low back strain without impairment as reason that the treatment is not reasonable and necessary. On a balance of probabilities, I find enough consistent reports of pain during the period in dispute to justify further facility-based treatment as reasonable and necessary.

10Accordingly, I find the treatment plan in dispute is reasonable and necessary and payable with proof that it was incurred. As the benefit is overdue, it follows that interest is payable on incurred benefits under s. 51 of the Schedule.

CONCLUSION

11I find R.P. is entitled to payment for the treatment plan in dispute as it is reasonable and necessary. As the benefit is overdue, it follows that interest is payable on incurred benefits under s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10, as amended.