V.F. v. Aviva Insurance Company of Canada, 2020 CanLII 51275

Citation: V.F. vs Aviva Insurance Company of Canada, 2020 ONLAT 19-004249/AABS

Released: July 22, 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.F]

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Claudette Leslie

APPEARANCES:

For the Applicant: Joshua D. Shields for Frank Calcagni, counsel for the Applicant

For the Respondent: Cara L. Boddy, counsel for Aviva Insurance Company of Canada

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on January 6, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2The applicant was denied certain benefits by the respondent insurer, Aviva Insurance Company of Canada. The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on September 16, 2019, and consequently the matter proceeded to a hearing in writing.

ISSUES

3The following are the issues to be decided:

(i) Is the applicant entitled to receive a medical benefit in the amount of $6,103.09 for physiotherapy services recommended by Eramoso Physiotherapy in a treatment plan submitted on July 27, 2018, and denied by the respondent on September 25, 2018?

(ii) Is the applicant entitled to interest on any overdue payment of the benefit?

RESULT

4Based on the relevant evidence considered, I find that, on a balance of probabilities, the disputed treatment plan is not reasonable and necessary. Thus, no interest is payable in accordance with s. 51 of the Schedule.

PRELIMINARY

5As a preliminary issue, the respondent submitted that the applicant did not include the treatment plan in question as part of her evidence/initial submissions. It argues that it is well established, including by way of case law, that procedural fairness requires that the evidence being relied upon must be disclosed to the respondent, at first instance as opposed to as part of later, reply submissions, to allow a fair opportunity to respond appropriately.

6I agree that providing the OCF-18 in question as part of her evidence for consideration is of vital importance and is in the interest of procedural fairness. At the same time, I gather that this is not a question of whether the treatment plan in question was submitted to the insurer for its consideration, as it was denied as submitted, initially, on July 18, 2018, and then subsequently after the insurer conducted its Insurer Examination (IE). However, I find no merit in the respondent’s preliminary claim that the applicant erred by failing to submit the treatment plan in her evidence, and that the application ought to be dismissed as a result. I find, and the applicant confirms, that the treatment plan was/is included in the applicant’s evidence exhibits before me. I have reviewed and considered it in my determinations below.

BACKGROUND

7The applicant was driving through an intersection on a green light when her vehicle collided, in a T-bone fashion, with a vehicle that had failed to stop on a red light. An ambulance took her to hospital where she complained of left knee pain as well as right shoulder pain. A hematoma below the left knee was noted. A bone scan of her chest was conducted at the hospital, revealing a fractured right rib. She was advised to follow up with a physician, which she did.

8Her family physician advised to apply ice to painful areas, relax and continue with the physiotherapy treatment she had been receiving at the same clinic she had been attending prior to the accident. After the accident, she continued to attend for physiotherapy/massage treatment at the clinic twice per week, at most. The applicant reports that she continued to experience pain in her neck, lower back and left leg, as well as headaches. Up to the denial of the treatment plan in question, the applicant reports that she had continued to receive similar, insurer-approved, pre-accident treatment at the clinic; and she has continued to do so even after the denial by the insurer.

THE LAW, EVIDENCE AND ANALYSIS

Issue: Whether the applicant is entitled to the physiotherapy services recommended by Eramosa Physiotherapy.

9The applicant submits that for years she had been attending Eramosa Physiotherapy, on an as needed basis. Prior to the accident, she had been receiving treatment from Physiotherapist, Johnathan Park, to manage pre-existing, chronic back pain. As a result of the accident, her back pain was exacerbated and she developed, shoulder and neck pain and headaches. Her impairments, as noted in the treatment plan (OCF-18) and to some extent in other documents submitted, are identified as: low back pain, lumbar and other intervertebral disc disorders with radiculopathy, Whiplash Associated Disorder (WAD2) with complaint of neck pain with musculoskeletal signs.

10Sections 14 and 15 of the Schedule provide that the insurer shall pay for all reasonable and necessary medical and rehabilitation benefits an insured person incurred, as a result of accident impairments. The onus to prove entitlement, albeit, on a balance of probabilities, rests with the applicant. The Schedule does not define the term “reasonable and necessary”. While case law, including as submitted in this case, provides useful factors and examples for consideration, “reasonable and necessary” must be determined on a case by case basis.

11With this in mind, I have considered the arguments and relevant evidence submitted by both parties. For the reasons that follow, I find the treatment proposed by long-standing Physiotherapist, Jonathan Park of Eramosa Physiotherapy Clinic in this plan for physiotherapy and massage services, is not reasonable and necessary.

The treatment proposed in the plan:

12This plan dated July 27, 2018 was completed 3 years and 6 months after the accident occurred. In the plan, Physiotherapist Park confirms that the applicant was receiving physiotherapy and massage treatment at the time, including prior to the accident, for unrelated, lumbar surgery, recurring history of pain in her lower back and left leg. He identifies barriers to her recovery to include neurological symptoms, which he indicates can be overcome with on-going, 24-week (approximately 6 months) treatment consisting of an additional 48 physiotherapy and 20 massage sessions.

13The goals of the proposed treatment plan were identified as: 1) pain reduction, increase range of motion and increased strength, and 2) overall, return to activities of normal living. Progress regarding pain reduction will be measured by way of VAS RMQ and return to activities of normal living by way of objective testing.

14The applicant states that the ongoing physiotherapy/massage treatment provides relief of her ongoing pain; and that’s why despite the insurer’s denial, she has continued to attend the clinic for treatment. For this reason, and in keeping with the OCF-18 of her long-standing treating physiotherapist, various medical records and the assessment of Physiatrist, Dr. Dinesh Kumbhare, she claims that the treatment plan is reasonable and necessary. The insurer takes the opposite view. It argues that evidence of the applicant’s many years of pre-and-post accident treatment and its outcome, as well as on the basis of the assessment it commissioned on September 7, 2018, more than three years post-accident, the treatment proposed is not reasonable and necessary. I have considered the parties submissions, in turn.

15Firstly, medical records submitted by the applicant show that, as a result of the accident, she had fractured a right rib, and at the time of the accident she experienced chest and left knee pain a lot of bruising of the left knee, and a flare up of her pre-existing back pain, as well as neck pain. The ambulance paramedics observed that she had a hematoma below her left knee and although she was able to “weigh bear”. At [the Hospital] where she was taken, a bone scan of the chest was conducted due to her complaints of left knee and right shoulder pain complaints. It revealed a fractured a right rib.

16Clinical Notes and Records (“CNRs”) from January 15, 2015 to September 2, 2015, confirm that the applicant consulted and/or followed up with her family physician, Dr. Huang, on multiple occasions following the accident: January, February, April and May 2015, for example, due to continued complaints of persistent back, left leg and or chest pain. Dr. Huang subsequently ordered X-rays and referred the applicant to Neurosurgeon, Dr. Murty, for a bone scan/MRI.

17A June 7, 2015 MRI of her lumbar spine revealed certain disks were slightly narrowed, “recurrent, larger left L4-5 lateral foraminal disk herniation with significant mass effect on the exiting left L4 nerve…” An EMG ordered by Dr. Murty of July 29, 2015 indicates that the applicant underwent diagnostics primarily because of flare up of back-pain after the accident. The EMG conducted revealed “old chronic L4/5 changes but no significant new changes”. Dr. Murty indicates that the applicant reported she felt her flare ups had improved. He opined that she was actually getting better.

18In his September 7, 2018 assessment, IE assessor, Physiatrist, Steven Baker indicates that the applicant reported headaches, sharp/pinching neck pain as well as constant lower back pain. He adduced that at that time, three and a half years of treatment since the accident, she reported approximately 40-50% improvement on her low back pain. He concluded that she had sustained Level 2- Whiplash Associated Disorder (WAD2) and lumbar strain. The applicant argues that the assessor’s findings that she had achieved maximum recovery of her accident related injuries, was baseless as she continued to experience pain, and that the on-going, pre-accident treatment she had been receiving for the period of 2006 and 2014, showed a gradual reduction in her pain symptoms.

19The applicant further points out that the recommendations by her long-standing physiotherapist for more/continued physiotherapy/massage treatment is supported by conclusions drawn by Physiatrist, Dr. D. Kumbhare. The applicant requested an objective assessment from Dr. Kumbhare, which was conducted on October 3, 2019, more than 4 years post-accident. The assessment involved a detailed physical examination, of the applicant’s complaints of on-going, lower back pain, neck pain which the applicant reported as being a gnawing pain with stiffness, headaches, depression/anxiety and stress, and driver/passenger anxiety.

20According to the physiatrist’s report, during the examination, the applicant “grimaced” and reported pain in her left, upper trapezius. There was also tenderness in other regions, including buttock and “lumbar spinous processes.” The doctor reported that on the pain measuring test scale the applicant fell within the 69th percentile.

21Dr. Kumbhare concludes that the applicant was at moderate risk for the development of chronicity. The doctor’s findings at that point were as follows: WAD2, “sprain/strain of the lumbar spine, sprain/strain of the left shin, sprain/strain of the right shoulder(resolved), and right 4th rib fracture(resolved); which has led to chronic lower back and neck pain, reduced grip strength, psychological distress and limitation in conduction activities of daily living. (specified).” He recommends a possible updated MRI of her lumbar spine and further treatment to include an interdisciplinary, multidimensional chronic pain program to include: “education, pain coping strategies to ultimately self-manage responses to pain, injection therapy, a graded exercise program to address deconditioning(grip), a component of behaviour activation and psychological counselling.” There are no comments from Dr. Kumbhare regarding the treatment plan in question including whether he found the proposed treatment to be reasonable and necessary, within the scope of his recommendation.

22Of note, with regards to the concept of change in general, based on the applicant’s answers to questions posed, Dr. Kumbhare among other things, surmises that the applicant’s tendency is to “avoid or resist it.” “You gain comfort from and enjoy doing the same things at the same time, you don’t particularly like surprises, and you feel uneasy when something comes in the way of your daily routine,” the doctor reports.

23On the other hand, the insurer does not deny the fact that the applicant had pre-existing back pain due to a herniated disk condition which led to a surgical procedure in 2009, and that there were complications following surgery. By way of example, it points to an April 2012 encounter with her family physician, more than 3 years after said surgery, indicating she was experiencing on-going back pain and stiffness, difficulty walking, and that she had to pause when walking. However, the respondent argues that the evidence, including the IE assessor’s findings, establishes that the treatment plan in question is not reasonable and necessary. It contends that its denial of the treatment plan in question was justified. The evidence, including as set out below, it points out, indicates she had been receiving the treatment proposed for at least 3 years before the accident occurred, and for more than 3 years after the accident, without any likely indication of how further, similar treatment would be useful.

24In a different 2015 treatment plan, the applicant’s treating physiotherapist indicates that the back pain and left leg pain existed prior to the collision, had gotten worse after, especially with prolonged “sitting, overuse, standing bending, twisting, lifting” and climbing stairs, and that the pain, she had been experiencing since the accident was “variable”. At that time the applicant indicated that medication, rest physiotherapy and repositioning helped to alleviate pain symptoms.

25An EMG and nerve conduction investigation of the same year revealed “old chronic L4/5 changes but no significant new changes”, and that the applicant reported, while she had experienced flare-ups, she felt she had improved. The physiotherapist opined that “she is actually getting better. Conservative management with [sic] continuing exercise is the route to take.”

26As well, documentation submitted indicates that prior to the submission of the treatment plan in question, the applicant had visited / received the treatment proposed in the plan at Eramoso Physiotherapy 374 times. Notwithstanding and from her own accounting, she continued to experience back pain. The clinic’s records/charts from June 2012 to 2018 indicate that she visited 1.5 to 2 times per week for treatment. The applicant claims an accurate reflection is in fact 1.8 to 2.2 times per week. The indication according to the insurer is that there was not much change in the frequency of her attendance at the clinic for treatment before and after the accident.

27It is the insurer’s position that in keeping with IE assessor Baker’s September 2018 findings the applicant has achieved maximum medical recovery of any impairments she sustained as a result of the accident, and there is no need for further treatment, of the kind proposed in the plan, especially since she has received the same type of treatment for 3.5 years after the accident. While the physiatrist affirms that the applicant continued to experience neck, lower back and left leg pain, as well as headaches, he notes that she also indicated various levels of improvement in those areas, including 75% in her neck and no improvement in her headaches to date.

28The assessor diagnosed the accident related injuries as WAD2 and lumbar strain. He denies that the plan is reasonable and necessary and that she should instead “be encouraged to perform self-directed home-based exercises as instructed by a therapist’” He recommends that she be provided with exercise equipment to use at home, including a theraball, resistance bands and dumbbells.

29It is also the respondent’s position that the applicant appeared to remain functional and engage in all of her significant daily, social activities. By way of example, the insurer points out that approximately a year after the accident in early 2016 the applicant sought clearance from her family doctor to participate in scuba diving activities and again in November of 2017.

30Further considerations, according to the respondent, should include arbitral decisions, such as the 2007 decision of Pierre re RBC General Insurance Co. submitted. The decision established that pain relief can be a valid treatment goal, provided it does not foster among other things, dependency. The insurer suggests that this may be the case here, as, other than her general assertion that continued physiotherapy and massage treatments are necessary and reasonable, the applicant provides no explanation as to how or why, and especially after the many years of such treatment, 24 more weeks of same is reasonable and necessary to address any lingering accident-related injuries/pain symptoms. The insurer asserts, as indicated by IE assessor Baker, no further facility-based treatment is reasonable and necessary after 3.5 years post-accident.

31On review, the evidence and the OCF-18 in question, indicates the following:

(i) The applicant had been receiving physiotherapy and massage treatment at Eramosa Physiotherapy clinic for several years prior to the accident, to address lower back pain.

(ii) She continued to receive the same treatment, at the clinic at a slightly increased frequency each week, to address additional neck, shoulder pain, and headaches, post-accident.

(iii) The insurer approved the on-going treatment for 3.5 years, ultimately denying the clinic’s latest treatment plan in question after conducting an IE assessment.

(iv) The applicant reported experiencing some pain in her neck, lower back and left leg with a 40% - 50% improvement in her low back pain, at the time of the assessment close to 4 years after the accident. It is the IE assessor’s conclusion that she does not require further facility-based treatment but should instead look to self-directed treatment.

(v) The applicant’s independent assessment on October 3, 2019 (more than 4 years after the accident) conducted by Dr. Kumbhare, noted as an expert in physical rehabilitation medicine, found that the applicant had lingering, post-accident pain symptoms, even at that point. He recommends a treatment regimen to include “injection therapy, graded exercise program, and assessment by a physiotherapist…physical therapy to include stretching of the paracervical shoulder girdle and paralumbar muscles, cardo aerobic conditioning core strengthening.” While on the surface, the treatment plan recommended by Dr. Kumbhare seemingly to some extent may include physiotherapy and massage type treatment, there is no indication that his recommendations were in consideration or in response to the denied treatment plan.

Is the plan reasonable and necessary?

32In other words, is the treatment useful and essential/needed for the applicant to achieve the required outcome of: pain reduction, increased range of motion and strength and generally to return her to activities of normal living? I find the evidence provided does not support such an outcome. First, I find no compelling evidence to support a finding that the applicant’s normal living was incapacitated by impairment sustained in the accident. While I accept that the applicant may, more than 3 years after the accident and while receiving physiotherapy and massage treatment, continue to have some pain, the situation is complicated by the fact that she had pre-accident, long-standing back pain. It is therefore difficult to determine whether 3.5 years of treatment had resolved the pain conditions caused by the accident.

33Notwithstanding, in my view, given that even after continuous treatment over such an extended period of time and treatment, and without any specifics as to how more of the same treatment for a 6-month period will achieve the required goals, I am not led to believe that the treatment recommended by the applicant’s long-standing treating physiotherapist at this point in her recovery, or lack thereof, is useful and essential.

34Other than recommending several additional months and a slight increase in the weekly frequency of the proposed treatment, there is no analysis as to why more physiotherapy and massage treatment is required to address any specific residual, accident-related injuries. It is especially the case here where after many years of physiotherapy and massage treatment, the applicant subjectively reports 40-50% improvement or continued pain in some areas, 75% improvement in her neck and no improvement in her headaches to date.

35Undoubtedly, as the applicant submits, the treatment in question has become a necessary part of her life for dealing with her ongoing pain. Notwithstanding, it also raises the valid question, as indicated in arbitral decisions, of whether the prolonged treatment reflects a sign of reasonableness/necessity for continued similar treatment, or whether it reflects a sign of dependency, as the respondent implies.

36On the evidence, I find the treatment plan in question is not reasonable and necessary. The fact that the IE assessor recommended that she pursue self-directed activities, which to a large extent is later echoed later in the applicant’s physiatrist’s recommendation for a more comprehensive treatment, in my view further supports the finding that the continuing the same treatment, is not reasonable and necessary.

37Interest: Having determined that the treatment plan is not reasonable and necessary, or payable by the respondent, it follows that no interest is due under s. 51 of the Schedule.

CONCLUSION/ORDER

38I order that:

(i) The applicant is not entitled to payment for physiotherapy treatment in the amount of $6,103.09 submitted on July 27, 2018. Therefore, no interest is due.

(ii) The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.