D.C. v. Aviva Insurance Company of Canada, 2020 CanLII 37671

Citation: D.C. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-005232/AABS

Released: May 21, 2020

Tribunal File Number: 19-005232/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:

D.C.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Nicholas Mester

For the Respondent:

Paul Irish

HEARD:

By way of written submissions

OVERVIEW

1D.C. was injured in an automobile accident on June 25, 2016. D.C. sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The treatment plans in dispute were denied by Aviva on the basis that the treatment was not reasonable and necessary. D.C. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

1. Is the applicant entitled to receive a medical benefit in the amount of $537.42 for chiropractic treatment, recommended by Active Rehabilitation in a treatment plan dated November 10, 2016, denied by the respondent on April 22, 2019?
2. Is the applicant entitled to receive a medical benefit in the amount of $2,516.95 for chiropractic and massage treatment, recommended by Active Rehabilitation in a treatment plan dated December 15, 2016, denied by the respondent on April 25, 2019?
3. Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that D.C. is not entitled to payment for either of the chiropractic treatment plans as they are not reasonable and necessary. On the facts and evidence, I find an award is not appropriate.

ANALYSIS

Are the treatment plans in dispute 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. In submissions, D.C. addresses the treatment plans in tandem because they are largely identical, save for additional sessions in the second plan and the inclusion of massage.

5In the treatment plans, D.C.’s impairments are identified as an injury of nerves at shoulder and upper level, sprain and strain of cervical and lumbar spine, irritability and anger, nonorganic sleep disorders, adjustment disorders and contusion of shoulder, upper arm and elbow. In submissions, D.C. complains of left neck, arm and shoulder pain in addition to low back pain, and states that he has developed numbness and tingling in his left hand, forearm and thumb as a well as a degenerative disc disease. While the treatment plans in dispute were completed by Dr. Stea, chiropractor, in November and December 2016, the OCF-18s were not submitted in HCAI until April 2019.

$537.42 for chiropractic treatment

$2,516.95 for chiropractic and massage treatment

6D.C. submits that he has a bona fine need for the treatment and that he was regularly attending treatment until June 2019, when his private insurance exceeded its limits. He submits that the treatment plans are reasonable and necessary based on the stated goals of pain reduction, increasing his strength and range of motion, and returning to activities of daily living. D.C. argues that he continued to experience pain six months after the accident and, as a result, his injuries are chronic in nature. He asserts that Aviva’s assessor disregarded his degenerative disc disease in arriving at her conclusion that further facility-based treatment was not needed. He reports current difficulties with lifting and moving heavy objects, driving long distances and sitting for long periods.

7In response, Aviva states that D.C. has submitted no compelling medical evidence to support further chiropractic treatment. It submits that the fact the treatment plans were “inexplicably” submitted 2.5 years after they were completed supports its determination that further passive, facility-based treatment is not reasonable and necessary at this stage in recovery. Further, it submits that the treatment plans identify no barriers to recovery, and states that the clinical notes and records related to the accident are extremely sparse, as D.C. does not have a regular physician. After D.C.’s initial visit to the clinic, Aviva asserts that the records only show four more accident-related visits, spread out over nearly 2.5 years (being February 1, 2017, February 8, 2017, May 25, 2018, and November 9, 2018). In addition, Aviva submits that there is no evidence D.C. has seen any physician for his accident-related injuries since his last visit on November 9, 2018 and that D.C. has not provided any records evidencing that he has been continuing treatment since December 2016, as alleged.

8To this end, Aviva relies on the uncontroverted s. 44 report of Dr. Kopansky-Giles, chiropractor, who determined that, as a result of the accident, D.C. sustained uncomplicated soft tissue injuries to his neck/shoulder, low back, and a contusion to his left elbow. In the report, Dr. Kopansky-Giles found evidence of general physical de-conditioning in the neck and back, which she found was likely secondary to lack of participation in physical exercise since the accident. In the report, Dr. Kopansky-Giles goes on to state that D.C. had reached maximum medical improvement with respect to his accident-related neck/shoulder and lumbar spine injuries, and notes that these areas were “objectively resolved.” With respect to D.C.’s left elbow, Dr. Kopansky-Giles reported that while he continued to report numbness in the distribution of the ulnar nerve on the left side, D.C. had full functional use of the left arm, forearm, and hand and that he maintained good strength, mobility, and coordination, with only residual loss of sensation.

9Dr. Kopansky-Giles ultimately concluded that the treatment plans were not reasonable and necessary, and that no further facility-based treatment was required. Notably, instead of chiropractic treatment, Dr. Kopansky-Giles recommended that D.C. be provided with three-to-four sessions of personal instruction (kinesiologist) in progressive strengthening and conditioning exercises of his neck and back over a period of two months. Aviva indicated that the two treatment plans in dispute were not reasonable and necessary but agreed to fund Dr. Kopansky-Giles’ recommendation. It submits that, to date, D.C. has not requested or submitted any treatment plan pertaining to the recommendation.

10On review of submissions and the medical evidence, I agree with Aviva. While I agree with D.C. that pain reduction, increase in strength and range of motion are legitimate goals for treatment, I find there is no diagnosis of chronic pain and limited evidence of same from a medical professional anywhere in the file and limited evidence to support the other goals. Further, while the November 2018 clinical note from Dr. Akinremi does state that D.C. should continue with physiotherapy, stretching, using Voltaren Gel and heat, I find there are no objective recommendations that he seek chiropractic treatment or massage specifically, which are the treatments identified in the OCF-18s and the treatments he must demonstrate are specifically reasonable and necessary here.

11More problematic, in my view, is the lack of continuous or corroborating medical records over the 2.5 years referencing his accident-related impairments or recommending treatment for same. I agree with Aviva that the lack of clinical notes, combined with the fact that the treatment plans in dispute were submitted 2.5 years after their creation, calls into question the urgency and need for the treatment proposed. In my view, D.C.’s submissions do not meet his burden to prove why the specific treatment is reasonable and necessary 2.5 years later.

12Moreover, in the absence of objective medical evidence to support the treatment plans, I assign significant weight to the report of Dr. Kopansky-Giles, who determined that the OCF-18s were not reasonable and necessary. On review of the report, I find her analysis to be fair and well-supported by the limited documentation in evidence, despite D.C.’s claim that she did not take his disc degeneration into account. Additionally, although she did not support the treatment plans in dispute here, I find the fact that she recommended treatment that was more appropriate, in her professional opinion, to specifically address D.C.’s impairments to be evidence that she meaningfully engaged with D.C.’s file and considered his complaints. For these reasons, I find no reason to interfere with Aviva’s determinations that were based on her report.

13Accordingly, I find D.C. is not entitled to payment for either of the chiropractic treatment plans as they are not reasonable and necessary. As no benefits are overdue, no interest is payable under s. 51.

Award

14D.C. also claims entitlement to an award under s. 10 of Ontario Regulation 664 on the basis that Dr. Kopansky-Giles failed to conduct a thorough assessment of him and a comprehensive review of his file, which resulted in Aviva denying the treatment plans and delaying his recovery. He submits that his chronic pain and degenerative disc disease were evident in his medical file and that Aviva failed to consider it objectively. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which D.C. is entitled if the Tribunal finds that Aviva has unreasonably withheld or delayed payments because of its conduct.

15On the facts and evidence before me, I find an award is not appropriate. Contrary to D.C.’s submissions, I found Dr. Kopansky-Giles’ report to be fair and that she summarized the available medical records. On review, I find no indication that she failed to conduct a proper assessment of D.C. or evidence that Aviva unreasonably denied or delayed treatment based on her report.

CONCLUSION

16I find that D.C. is not entitled to either of the chiropractic treatment plans in dispute as they are not reasonable and necessary. I decline to order an award.

Footnotes

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