A.M. vs. Aviva Insurance Company, 2020 ONLAT 18-004430/AABS
Citation: A.M. vs. Aviva Insurance Company, 2020 ONLAT 18-004430/AABS Released: May 11, 2020 Tribunal File Number: 18-004430/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.M. Applicant
and
Aviva Insurance Company Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Adrian A. Nicolini
For the Respondent: Laura C. Meschino
HEARD: By way of written submissions
OVERVIEW
1A.M. was injured in an accident on February 9, 2015 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”). A.M. applied for medical and rehabilitation benefits that were denied by Aviva because it determined his injuries were predominately minor and subject to the Minor Injury Guideline (“MIG”). A.M. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500 limit in the Minor Injury Guideline?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,874.05 for physiotherapy treatment, recommended by Lapsley Physiotherapy Clinic in a treatment plan dated September 6, 2017, and denied by the respondent on October 25, 2017 and February 7, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,800.00 for chiropractic treatment, recommended by Toronto Healthcare Rehab Clinic in a treatment plan dated October 19, 2016 and denied by the respondent on November 17, 2016 and January 12, 2017?
iv. Is the applicant entitled to receive a medical benefit in the amount of $228.00 for out of pocket physiotherapy treatment, submitted in an OCF-6 dated June 15, 2016 and denied by the respondent on June 28, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that A.M. sustained accident-related impairments that warrant treatment beyond the MIG. I find the treatment plan in the amount of $2,800 for physiotherapy is reasonable and necessary with applicable interest.
4I find A.M. is not entitled to the remaining benefits in dispute as they are not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
5The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, although an applicant may escape the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG of if they prove that psychological impairments or chronic pain prevent cause functional impairment that requires treatment outside of the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find the medical evidence indicates, on a balance of probabilities, that A.M.’s impairments warrant removal from the MIG.
6As a result of the accident, A.M. submits that he suffers from chronic discogenic issues in his neck and low back, as well as a torn meniscus in his left knee and that these injuries are evidenced in the medical records and the multiple restrictions that arise from them are ongoing. He submits that he has attempted to improve his physical symptoms through physiotherapy, chiropractic treatment and medications (including Tylenol 3 and Cymbalta), but due to Aviva’s denials, he has been unsuccessful in treating his injuries. In addition to his physical impairments, A.M. submits that he suffers from psychological impairments, identified as a major depressive disorder, PTSD, nightmares and memory issues as a result of the collision. Further, A.M. states that there is a diagnosis of chronic pain which is consistently reported in the post-accident medical records. To support his case that his injuries are not predominantly minor, A.M. relies on the clinical notes of his family physician, Dr. Bahrami and his rheumatologist, Dr. Kanji, the reports of Dr. Panjwani, psychiatrist, and Dr. Cayen, orthopaedic surgeon and various medical imaging results, including a CT scan of his lumbar spine, an ultrasound of his left knee and an MRI of his cervical spine.
7In response, Aviva submits that A.M.’s accident-related impairments are predominantly minor injuries that are properly within the MIG. It relies on the s. 44 reports of Dr. Mula, physician, who diagnosed myofascial strains of the neck, left shoulder, lumbosacral, left knee and tension headaches. It further relies on the s. 44 report of Dr. Lam, physician, who examined A.M. in relation to new medical documentation submitted. In his report, Dr. Lam confirms the strain diagnoses of Dr. Mula, and opines that A.M.’s back issues and meniscal tear are pre-existing degenerative findings and not accident-related. Aviva submits that both reports confirm soft-tissue injuries that do not prevent maximal recovery under the MIG. In addition, Aviva submits that A.M. has not provided compelling evidence to meet his burden of proving that a pre-existing condition, chronic pain or an ongoing psychological impairment warrant removal from the MIG.
8On the evidence, I find the majority of the physical injuries documented in the medical records fall within the definition of “minor injury” under the Schedule, as they are listed as strain-type injuries. However, I find it difficult to ignore the MRI indicating a meniscal tear in A.M.’s left knee, which is the same knee that he consistently reports as causing him pain post-accident, which is confirmed in the notes of all of his family physician, his rheumatologist, his psychiatrist and his orthopaedic surgeon. Indeed, I struggle to reconcile Aviva’s submission that A.M.’s reliance on the MRI should be discounted because “diagnostic imaging alone cannot speak to causation, or even to impairment or disability” with its own reliance on the s. 44 findings of Dr. Lam who, after reviewing the same diagnostic report, was able to confirm definitively that the knee tear is a pre-existing degenerative issue and not accident-related. While this may be true, I find his opinion stands in contrast to the opinion of Dr. Cayen, who found that A.M.’s back pain and knee pain were exacerbated by the accident and ignores the fact that the objective diagnostic findings corroborate A.M.’s consistent pain complaints and reports of decreased function. While I agree with Aviva that the notes on which A.M. rely are somewhat dated, I find that the volume and consistency of his knee pain complaints post-accident, combined with the objective MRI diagnosis of a meniscal tear, suggests on a balance of probabilities that the knee injury is not a “minor injury” as defined by Schedule.
9In a similar vein, and for completion, I find it difficult to ignore the uncontroverted psychological diagnosis from psychiatrist Dr. Panjwani that A.M. suffers from major depressive disorder, chronic pain disorder, PTSD and anxiety symptoms. Despite not offering a competing psychological opinion, Aviva submits that there is no compelling evidence of a psychological impairment, noting that A.M. only saw Dr. Panjwani three times in 2015 because he did not find the treatment helpful and that there are no subsequent follow ups for referrals or treatment. Aviva also argues in submissions that A.M. does not meet the definition for chronic pain based on the AMA Guides. Regardless of how many times A.M. saw Dr. Panjwani or whether he found treatment to be beneficial, I find the diagnosis remains unopposed for the purposes of determining whether accident-related impairments fall within the MIG. Further, I agree with A.M. that Aviva’s submissions on chronic pain under the AMA Guides are not based on any medical opinion or a competing diagnosis. In the absence of a competing opinion, I have no basis to interfere with Dr. Panjwani’s diagnosis that A.M.’s psychological impairments are connected to his chronic pain and therefore his impairments fall outside of the MIG.
Are the treatment plans reasonable and necessary?
10Having determined that A.M.’s accident-related impairments warrant treatment beyond the MIG, an analysis of whether the various treatment plans in dispute are reasonable and necessary is required. Under s. 15, an insurer is liable to pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of the accident. The applicant bears the onus of proof.
11While I find evidence that A.M.’s accident-related impairments justify treatment beyond the MIG, his submissions on why the treatment plans he seeks are reasonable and necessary are somewhat lacking. Indeed, in submissions, A.M. argues that because Aviva’s reasons for denial were based on the belief that his impairments were subject to the MIG, that subsequent removal from the MIG renders all treatment reasonable and necessary. This is incorrect, as it is well established that the applicant bears the burden of proving that the treatment they seek is reasonable and necessary, regardless of whether MIG status formed the basis for the denial. Here, while I find that A.M.’s submissions on the issue of MIG and interest were thorough and helpful, I agree with Aviva that his submissions and analysis on the reasonableness and necessity of the treatment plans is disproportionately scant.
12Indeed, while A.M. submits that he always attended for treatment, his submissions on the actual OCF-18’s and OCF-6 in dispute consists of a statement that “chiropractic treatment and physiotherapy was beneficial and necessary in his attempt to increase his strength and range of motion, resolve and reduce pain so he could return to his activities of normal living as well as to get to a position whereby he could attempt to perform the essential tasks of his employment.” A.M. references his impairments and speaks of a “vicious circle” that led to his psychological symptoms and pain as a result of Aviva’s denials, but does not actually meaningfully engage in an analysis of why the specific treatment he has requested is reasonable and necessary to treat the specific impairments he has successfully claimed remove him from the MIG.
13However, on review of the OCF-18 dated October 19, 2016 in the amount of $2,800, I find the treatment plan itself to be quite thorough. It identifies reasonable goals for treatment like pain reduction and specifically addresses the MRI of the knee tear. Further, it identifies the list of pain complaints that were affecting A.M. at the time of submission, it specifically identifies the evaluation methods that will be used and the many barriers to recovery and recommends seven strategies to help overcome the barriers to recovery. I find the additional comments section also meaningfully references all of the diagnoses elsewhere in the medical documentation and corroborates A.M.’s consistent reporting. I also find the explanation for the delay in submitting the OCF-18—due to waiting for multiple diagnostic and specialist reports—indicates effort on the clinic’s part to tie the recommended treatment to the specific impairments. I find the duration of the plan, being 42 sessions over 52 weeks, provides a reasonable but gradual timeline for potential recovery and the cost associated with same is reasonable and in line with industry and Guideline rates. Accordingly, given A.M.’s removal from the MIG and the period when this plan was submitted, I find this particular treatment plan to be reasonable and necessary.
14With regards to the OCF-18 dated September 6, 2017 in the amount of $2,874.05, I cannot find that it is reasonable and necessary. Without substantive submissions from A.M. as to why the OCF-18 is reasonable and necessary, I find the treatment plan is considerably less detailed on its face, does not specifically tie treatment to A.M.’s accident-related impairments and does not provide a roadmap or strategy for recovery. Further, I find it was submitted nearly a year after the other treatment plan recommending similar treatment, but it does not explain why acupuncture is needed or why the treatment timeline is so truncated at eight weeks. While I understand the OCF-18 was completed by a different clinic that may not be able to speak to his progress in the year post-accident, I find it would have been helpful for A.M. to address how he had progressed and responded to previous treatment in order to justify more of the same moving forward at a slightly higher cost.
15Finally, with regards to the OCF-6 claim of $228.00 for out of pocket physiotherapy treatment, dated June 15, 2016, Aviva takes the position that A.M. failed to comply with the Tribunal’s order at the case conference to produce his collateral benefits file to substantiate whether he was indemnified by his provider, SunLife, pursuant to s. 47(2) and that his submissions do not address why this payment for treatment is reasonable and necessary. In reply, A.M. submits that he complied with the order and produced the file on February 1, 2019, ahead of the Tribunal’s deadline, although neither proof of compliance or the actual file is in evidence before the Tribunal, which supports Aviva’s defence under s. 47(2). In any event, while I do not draw a negative inference from this as requested by Aviva, for reasons identical to those above, it is difficult to find the expenses in the OCF-6 reasonable and necessary without analysis from A.M. when all that is before the Tribunal is an invoice from Lapsley Physiotherapy without particulars or a breakdown of what the expenses entailed.
16For these reasons, I find the treatment plan in the amount of $2,800 for physiotherapy is reasonable and necessary with interest payable on overdue incurred benefits pursuant to s. 51 of the Schedule. I find the treatment plan in the amount of $2,874.05 and the expenses for $228 are not reasonable and necessary.
CONCLUSION
17I find A.M. sustained accident-related impairments that require treatment beyond the MIG. The treatment plan in the amount of $2,800 for physiotherapy is reasonable and necessary, with applicable interest. I find A.M. is not entitled to the remaining benefits in dispute as they are not reasonable and necessary.
Released: May 11, 2020
Jesse A. Boyce Adjudicator