Citation: J.C. vs. Aviva Insurance Company, 2020 ONLAT 19-008611/AABS

Released Date: 06/23/2020

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:

John Coutsougeras

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

George A. Bougadis

Counsel

For the Respondent:

Margaret Louie

Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, John Coutsougeras (“applicant”), was involved in an accident on September 3, 2016 (“accident”) when the motorcycle he was driving was involved in an accident with a motor vehicle. At the time, the applicant was 53 years old. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent, Aviva Insurance Company (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent denied the applicant’s claim because it determined that both proposed treatment plans for chiropractic services (“the disputed treatment plans”) from Don Valley Health and Wellness (“Don Valley”) were not reasonable and necessary and the respondent’s s. 44 insurer examination (“IE”) did not recommend the treatment. The applicant’s position is the opposite. The applicant has applied to the Tribunal for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $2,400.46 for chiropractic services recommended by Don Valley Health and Wellness in a treatment plan (OCF-18) submitted on September 19, 2017 and denied on November 16, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $1,535.50 for chiropractic services recommended by Don Valley Health and Wellness in a treatment plan (OCF-18) submitted on May 24, 2018 and denied on May 31, 2018?

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

RESULT

4The applicant is entitled to both disputed treatment plans with interest.

LAW

5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.²

ANALYSIS

What Treatment is Proposed in the Disputed Treatment Plans?

6The two disputed treatment plans are described in the Tribunal’s case conference Order of December 5, 2019 as treatment plans for “chiropractic services”. The applicant in his submissions refers to the proposed treatment as “massage and chiropractic treatment”. The respondent in its submissions refers to the proposed treatment as “chiropractic treatment”.

7I find that the services outlined in the disputed treatment plans are for both chiropractic and massage therapy. The 2017 plan proposes supervised rehabilitation program, acknowledges the applicant is co-managed with a fracture clinic and proposes documentation, total body assessment and therapy. This disputed treatment plan notes that the “patient is a mechanic…and stands all day. By the end of the day his foot is swollen and painful. Ongoing neck, shoulder and low back pain with forward bending, carrying and lifting activities”. The 2018 disputed treatment plan notes that “[h]e presents with chronic swelling and pain at the end of the day because of the weight bearing required by his job. Since stopping therapy, he is progressively worsening and finds it difficult to weight bear, whereas before he was managing his symptoms better.” This plan proposes supervised rehabilitation program, acknowledges the applicant is co-managed with a fracture clinic and proposes documentation, therapy and exercise, multiple body sites. Each plan proposes 16 sessions with Dr. Gavris, chiropractor and 10 sessions with Ms. Hertzum-Larsen, massage therapist.

Are the Disputed Treatment Plans Reasonable and Necessary?

8The applicant submits that he found the treatment helpful and relies on various medical records, including the records of the fracture clinic, Don Valley and his family physician Dr. Polidoulis.

9The respondent submits that the applicant has not shown that the proposed treatments will have a rehabilitative purpose or lead to a reduction of pain; they have not been recommended by the applicant’s family physician or other treating physician; Dr. Catre at the fracture clinic stated the applicant is cured; and that in the IE reports Dr. Abuzgaya opines that the applicant would not benefit from further facility passive modalities of treatment, specifically chiropractic treatment. The respondent also submits that the applicant only saw his family physician three times after the accident and did not seek a referral to a specialist, nor was he referred to a specialist by his family doctor to assess his continued complaints allegedly arising from the accident. Lastly, the respondent submits that, at over 3.5 years post-accident, the efficacy of the proposed treatments is highly questionable with respect to its therapeutic effect.

10I find that the applicant is entitled to the payment of the two disputed treatment plans because he has established, on a balance of probabilities and with sufficient medical evidence, that they are reasonable and necessary.

11The records from the fracture clinic on September 8, 2016 show that the applicant’s right foot was fractured in the accident, and he had multiple soft tissue injuries and a sprain of his left knee. The applicant was in a cast until October 13, 2016, at which time the fracture clinic noted that “[h]e is going to wean out of the Aircast and start physiotherapy”. In November 2016, the fracture clinic noted that the applicant continues to have pain and swelling in his ankle and was “certainly swollen on exam. He has significant tenderness over the ATFL….He is certainly not reacting like a normal ankle sprain.”

12In 2017, around the time that the first disputed treatment plan was recommended, the progress report from Don Valley dated September 14, 2017 shows that the applicant is currently under active rehabilitative care and is improving and his progress is good. It is noted that the applicant is working full time while attending rehabilitation, he continues to have right ankle pain and swelling, he has low back pain with forward bending and lifting activities but overall has made improvements. A continuation of his therapy is recommended together with concurrent massage therapy.

13In January 2018, before the second disputed treatment plan was proposed, Dr. Polidoulis saw the applicant and recorded that “[h]e was having physiotherapy (twice weekly) and massage therapy (once per week) up until two months ago…physio consisted of TENS, home exercises but massage helped him the most.” After the second disputed treatment plan was denied, Dr. Polidoulis reported on July 11, 2019 that the applicant began physiotherapy, including TENS and heat blankets, massage, chiropractic treatments and home exercise, when his cast was removed, received these treatments weekly for over a year with benefit, especially from the massage therapy, and that, when his therapy was stopped, his condition deteriorated. These records taken together establish that the disputed treatment plans are reasonable and necessary.

14I find the respondent’s argument that the applicant has not shown the proposed treatments will have a rehabilitative purpose or lead to a reduction of pain unpersuasive. The records from Don Valley and Dr. Polidoulis show improvement and benefits. Dr. Polidoulis especially notes benefit from the massage therapy which is part of the proposed treatment in the two disputed treatment plans. Dr. Polidoulis’s determination that the applicant’s condition deteriorated when the therapy stopped is tantamount to a recommendation that the treatment be continued, expressed another way. When the applicant was discharged from the fracture clinic on February 2, 2017, Dr. Catre, the treating physician, noted right ankle swelling, soreness over the mid foot and dorsum, boggy swelling and posttraumatic damage as shown on an MRI. The fracture clinic noted “he did not have any problems in his foot at all prior to his accident on September 3, 2016. Therefore, this is all due to that accident.” Medication was prescribed. This establishes that, while the fracture clinic treatment may have ended, the applicant was still having ongoing issues which both Don Valley and Dr. Polidoulis have documented.

15The respondent’s argument that based on the IE reports dated November 1, 2017 and December 23, 2019 from respondent’s orthopaedic surgeon Dr. Abuzgaya, the applicant would not benefit from further facility passive modalities of treatment, specifically chiropractic treatment, is also not persuasive. Both proposed treatment plans include not only chiropractic treatment but also massage therapy as found above. I prefer the opinion of the applicant’s family physician over that of the respondent’s IE assessor and give Dr. Polidoulis’s opinions greater weight. Firstly, Dr. Abuzgaya assessed the applicant once for some 40 minutes regarding the 2017 treatment plan and again by paper review on December 23, 2019. By contrast, Dr. Polidoulis has been involved with the applicant’s care since the accident and has more wide-ranging knowledge of his medical condition over time. Dr. Polidoulis was copied contemporaneously with the fracture clinic records and was aware of the treatment he has received and how it has affected his healing as expressed in her notes and reports. Secondly, Dr. Abuzgaya notes in the report dated November 1, 2017 “swelling of both legs, but more on the right side than the left side” and records that the applicant reported that his major problem is currently with his right ankle. Yet, Dr. Abuzgaya opines that the applicant has reached maximum medical recovery without sufficient explanation of these issues. In his IE addendum report dated December 23, 2019, Dr. Abuzgaya changed his mind and stated “with regard to the right ankle, my opinion with regard to whether Mr. Coutsougeras has achieved maximal medical recovery has changed. In my opinion, Mr. Coutsougeras has not achieved maximal medical recovery. Given the finding of chrondral injury, I agree with Dr. Catre that Mr. Coutsougeras would benefit from a Depos-Medrol injection of the right ankle.” In spite of this, Dr. Abuzgaya opined that the proposed treatment “will not facilitate further functional recovery”. Thirdly, Dr. Abuzgaya’s report does not appear to include a consideration of the reasonableness and necessity of the 2018 disputed treatment plan. It is not listed as one of the documents he reviewed for this 2019 report.

16The respondent’s argument that the applicant only saw his family physician three times after the accident and did not seek nor was he given a referral to a specialist by his family doctor is also not persuasive. Many records from the fracture clinic were copied to Dr. Polidoulis indicating her continued involvement. The fact that the applicant saw Dr. Polidoulis infrequently during this time is consistent with his medical care being primarily in the hands of the fracture clinic.

17The respondent’s argument that, at over 3.5 years post-accident, the efficacy of the proposed treatment is highly questionable with respect to its therapeutic effect is also not persuasive. The first disputed treatment plan was proposed in September 2017, approximately one year after the accident. The second disputed treatment plan was proposed in May 2018, less than two years after the accident. The fact that it is now some 3.5 years after the accident results from the respondent’s decisions, not the applicant’s. I find that the treatments proposed were reasonable and necessary when proposed.

18Considering the totality of the evidence, I find that the applicant has provided sufficient medical evidence to meet his burden of proof that the disputed treatment plans are reasonable and necessary. The goals listed in the treatment plans are reasonable and necessary considering the applicant’s need to be able to work. The costs of the treatment plans appear to be in line with the Schedule and the respondent did not argue otherwise.

Interest

19Interest is payable in accordance with s. 51 of the Schedule.

ORDER

20For the reasons outlined above, I find that the applicant is entitled to both disputed treatment plans with interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)