Released Date: 05/29/2020
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:
V.C.
Applicant
And
Aviva Insurance Company of Canada
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Paralegal for the Applicant: Jeton Memeti
Counsel for the Respondent: Sophia Chaudri
Heard: By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on April 20, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was the seat belted driver of a vehicle that was making a left hand turn at an intersection when another vehicle proceeding through the intersection collided with the applicant’s vehicle. As a result of the accident, the applicant sustained physical injuries.
3The applicant applied for physical treatment that was denied by the respondent on the basis that the medical benefit was not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
4The following are the issues to be decided:
ii. Is the applicant entitled to a medical benefit in the amount of $3,744.32 for chiropractic treatment recommended by Chinguacousy Physiotherapy & Foot Clinic in a treatment plan submitted on January 9, 2019 and denied by the respondent on March 11, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under Ontario Regulation 664 for any unreasonably withheld or delayed payment of benefits?
RESULT
5The treatment plan is not reasonable and necessary and as there are no outstanding benefits the applicant is not entitled to interest nor an award.
ANALYSIS
Is the applicant entitled to the chiropractic treatment plan in dispute in the amount of $3,744.32?
7Based on the following, I find the medical benefit for chiropractic treatment is not reasonable and necessary.
8The applicant submits that she was removed from the MIG and requires this treatment to treat her injuries of neck pain, sprain and strain of the thoracic spine, shoulder joint as well as the fibular and tibial collateral ligament of the knees and low back. The applicant reports a 70% improvement. The goals of the treatment plan are pain reduction, increase in strength and range of motion as well as a return to activities of daily living.
9The applicant relies upon the following medical evidence in support of the treatment plan:
a. Clinical notes and records of Dr. Tsang from May 11, 2016 that indicate physiotherapy is helpful and the applicant reports a 70% improvement.
b. Disability Certificate (OCF-3) dated May 26, 2016 from Dr. Kam noting soft-tissue injuries of the applicant’s trapezius muscle, right shoulder and rotator cuff tendonitis and right elbow.
c. OCF-3 from Dr. Tsang dated July 4, 2017 with the same injuries as the May 26, 2016 OCF-3 and in addition, left knee pain and headaches.
d. Right shoulder ultrasound dated May 3, 2016 showing “ongoing selective with mild rotator cuff tendinitis without tear(sic).”
e. Psychological report dated October 27, 2016 with the applicant’s self-reports of headaches, neck, shoulder, arm, back and left knee pain.
f. Clinical notes and records of the psychologist, Dr. Pilowsky from December 2016 to June 2017.
10The applicant further submits that the accident triggered her pre-existing arthritis and back pain resulting in chronic pain and relies on the Tribunal case of S.L. v. Pembridge Insurance Company2 in support of her position that the appropriate causation test is the “material contribution” test because of these pre-existing conditions.
11The respondent submits the correct test is the “but for” test as set out by the Divisional Court in Sabadash v. State Farm et al.3 and the applicant has failed to establish that but for the accident, the applicant would not have right shoulder tendinitis and resultant pain.
12Other than a shoulder ultrasound report dated February 9, 2015, which opines that the applicant has a “Rotator cuff tendinopathy without tear”,4 I have not been directed to any evidence of pre-existing conditions the applicant may have been suffering from or any evidence in support that the applicant’s shoulder pain may still be an issue for the applicant at the time of the request for this treatment plan.
13In my view, this decision does not turn on the point of the applicant’s pre-existing conditions and therefore causation will not be addressed.
14In the respondent’s view, there is a three-part test to determine if a treatment plan is reasonable and necessary which is as follows:
a. The treatment goals as identified are reasonable;
b. The goals are being met to a reasonable degree; and
c. The overall costs (not just financial, but also investment of time, etc.) of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment.5
15According to the respondent, the applicant has failed to demonstrate that the three-part test has been met with respect to the treatment plan in dispute.
16The respondent further relies upon the insurer examination (“IE”) of Dawn Rodie, physiotherapist in her report dated March 1, 2019.
17In the physiotherapy report, Ms. Rodie opines that the treatment plan is not reasonable and necessary because of the following:
[The applicant] is approaching three years post motor vehicle accident and has received rehabilitation throughout this period of time. She has received direct physiotherapy, including exercise, prescription, hands-on mobilization, massage therapy, electrotherapy and chiropractic adjustments. [The applicant] describes some temporary benefit from this treatment, lasting up to one day but notes overall, her condition is remaining static.6
18Ms. Rodie goes onto opine that the applicant would benefit from an increase in her activities of daily living and her generalized activity level. In her opinion, the applicant is engaging in severe pain avoidance behaviour and is deconditioning over time, likely contributing to her ongoing symptom complex.7
19As a result of the report, the respondent submits that at the time of the treatment plan she was no longer improving as the treatment provided temporary relief for a day and her condition was remaining static. Because of that, the treatment plan neither reasonable nor necessary.
20The respondent further submits that the applicant has failed to produce any medical documentation from her primary care physician to support a finding that at three years post-accident, she continues to require therapy as a result of the accident. It is the respondent’s position that there are no clinical notes and records beyond May 26, 2016 and the medical documentation from Dr. Pilowsky, psychologist, were between two and three years prior to the submission of the treatment plan and in any event, the psychological documentation is irrelevant to the issue in dispute.
21The onus is on the applicant to prove on a balance of probabilities and in my view the applicant has not done so.
22The applicant has not presented compelling evidence in support of the treatment plan. A treatment plan on its own is not sufficient evidence. There must be contemporaneous evidence in support, and in this case, the applicant is relying on evidence shortly after the accident from 2016 and 2017 which is more than two years prior to the request for the treatment.
23Furthermore, I find that the three-part test as set out by the respondent above is helpful to determine whether the treatment plan is reasonable and necessary. To summarize, the three-part is as follows: One, are the goals reasonable? Two, are the goals being met to a reasonable degree? Three, are the overall costs of achieving the goals reasonable, taking into account the degree of success.
24In this case, the goals of the treatment plan are clear, to help reduce pain, increase strength and her range of motion. The second and third parts of the tests are where I find the applicant’s justification for the treatment to be problematic. The treatment plan notes the applicant has a 70% improvement but then goes on to state she has ongoing pain in her shoulder which has developed into a frozen shoulder and she has limited range of motion. The third part of the test also fails because in my view the cost of the treatment plan is unreasonable considering the applicant appears to show minimal if any improvement according to the treatment plan.8
25The respondent’s position is that the reports of the ongoing shoulder pain and frozen right shoulder suggest that the shoulder issue has not improved and is inconsistent with the applicant’s self-report of a 70% improvement. According to the respondent, the treatment plan also fails to provide any particulars or clarification as to which areas have reportedly improved and how.
26In my view, the notation of a 70% improvement was from the family doctor’s clinical notes and records shortly after the accident in May of 2016 and I have not been referred to any other contemporaneous evidence in support of the applicant’s shoulder issue that would require treatment. As noted above, the treatment plan itself is not sufficient and compelling evidence.
27As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that the treatment plan is reasonable and necessary.
ORDER
28The treatment plan is not reasonable and necessary and as there are no outstanding benefits the applicant is not entitled to interest nor an award.
Released: May 29, 2020
___________________________
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- 2017 CanLII 12600 (ON LAT)
- 2019 ONSC 1121
- Written Submissions of the Respondent at Tab B.
- V.R. and Aviva Insurance Company 2019 CanLII 40262 (ON LAT) at paras. 26 and 27.
- Written Submissions of the Respondent at Tab J, at page 5.
- Ibid at page 6.
- Applicant’s Written Submissions at Tab 2, page 7.