Licence Appeal Tribunal
Released Date: 08/06/2020
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:
I.D.F.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Hermia Leung
For the Respondent:
A. Kelvin W. Brown
HEARD:
Via written submissions
OVERVIEW
1I.D.F. was injured in an accident on November 23, 2017 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva denied the benefits on the basis that they were not reasonable and necessary. I.D.F. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
(i) Is the applicant entitled to receive a medical benefit in the amount of $2,124.77 for physiotherapy treatment, recommended by Complete Care Physio Brampton in a treatment plan which was denied by the respondent on January 21, 2019?
(ii) Is the applicant entitled to receive a medical benefit in the amount of $1,524.04 for physiotherapy treatment, recommended by Complete Care Physio Brampton in a treatment plan which was denied by the respondent on May 2, 2019?
(iii) Is the applicant entitled to receive a medical benefit in the amount of $2,170.00 for other goods and services, recommended by MedCentra Inc. in a treatment plan which was denied by the respondent on July 12, 2019?
(iv) Is the applicant entitled to receive a medical benefit in the amount of $1,524.04 for physiotherapy treatment, recommended by Complete Care Physio Brampton in a treatment plan which was denied by the respondent on July 15, 2019?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find I.D.F. is entitled to the treatment plan in the amount of $2,124.77 for physiotherapy as it is reasonable and necessary. I find he is entitled to partial payment in the amount of $1,370 for the CBD Oil treatment plan as that portion is reasonable and necessary. Interest applies on overdue, incurred benefits pursuant to s. 51.
4I find I.D.F. is not entitled to the remaining treatment plans as they are not reasonable and necessary.
ANALYSIS
5I.D.F. submits that he suffers from chronic back pain that was aggravated as a result of the accident and that it requires constant treatment. He argues that without treatment and medication, his condition regresses and his daily activities and function are reduced. Under s. 15 of the Schedule, I.D.F. must demonstrate that the treatment plans and medication in dispute are reasonable and necessary to treat his specific accident-related impairments.
$2,124.77 for physiotherapy treatment
$1,524.04 for physiotherapy treatment
$1,524.04 for physiotherapy treatment
6All three of the disputed treatment plans for physiotherapy and massage were submitted by Complete Care Physio. The goals of the treatment are largely the same: reducing pain, increasing strength and endurance and returning I.D.F. to his pre-accident level of activities. The latter treatment plans recommend fewer sessions of physiotherapy in lieu of more massage treatment. Aviva denied the treatment plans on the basis of a s. 44 examination and report by Dr. Ko, physiatrist, dated January 18, 2019. The report determined that further treatment was not reasonable and necessary because I.D.F. showed no signs of ongoing functional impairment, that he was able to carry on normal activities and that a physical examination revealed no physical issues.
7The Tribunal has found, and the parties agree, that pain reduction is a legitimate goal for treatment where it also provides some functional relief. I find I.D.F.’s reports of pain are consistent throughout the clinical file and his back-pain flare ups are documented in the records of his family physician, Dr. Gopinath, who diagnosed chronic pain. I agree with I.D.F. that the contemporaneous records show that he experienced flare ups in the early months of 2019 following Aviva’s denial of physiotherapy and that there are no flare ups, or at least no notations for flare ups, in the period of time where he was undergoing treatment. In my view, this timeline provides support for his contention that the cessation of treatment led to regression and an increase in pain, which is described as 8/10 on the subjective pain scale and can rise to 10/10. Notably, in January 2019, Dr. Gopinath recommended that I.D.F. continue with physiotherapy to reduce his pain and follow up with the pain clinic.
8Aviva points to the fact that I.D.F. did not miss any time from work, continues to work full-time and has provided limited evidence to demonstrate functional impairment justifying further treatment. It relies on the s. 44 report of Dr. Ko, discussed above, and the s. 44 report of Dr. Boynton, orthopaedic surgeon, dated December 2019, where both assessments revealed no clear functional impairment and determined that I.D.F. had reached maximum medical improvement. The Pain Care Clinic’s consultation report from November 2018, completed on referral from Dr. Gopinath, confirms that there is limited indication of accident-related functional impairment and the report recommends pain relief medication, the potential use of nerve block treatment and stresses the importance of stretching, aqua therapy and yoga. I note that this report was prepared prior to the termination of I.D.F.’s physiotherapy and massage.
9On the evidence, I.D.F. has not incurred any of the disputed treatment, but submits that all three treatment plans are reasonable and necessary in order to help manage his pain. I disagree, partially. Although I afford slightly more weight to the s. 44 reports provided by Aviva, given that I.D.F. experienced flare ups once Aviva denied further treatment, I find that it would be reasonable to permit him to undergo one more slate of physiotherapy and massage treatment in order to address his lingering pain. Indeed, while I.D.F.’s submissions do not detail his alleged functional impairments at nearly three years post-accident, I find it concerning that he continues to have pain from what were, by all accounts, sprain and strain-type injuries as a result of the accident. I am not convinced that this is all a result of poor posture or poor muscle activation, as Dr. Boynton suggests.
10While I do not find it reasonable to approve three additional treatment plans, I do find it reasonable and necessary to approve one more treatment plan to address his chronic pain. If I.D.F. continues to have pain following 16 additional sessions of physiotherapy, I would then agree with Aviva and its assessors that it is likely he has achieved maximal medical recovery from facility-based treatment and that alternative modalities should be explored.
11Accordingly, as the treatment plan in the amount of $2,124.77 was the first treatment plan in time, I find I.D.F. is entitled to payment for this treatment once incurred as it is reasonable and necessary and supported by the recommendation of his family physician at the time it was submitted and denied. I find the goals of the plan are rather humble and achievable and the cost of same is not exorbitant where I.D.F. received some benefit previously.
12In turn, however, I find the remaining treatment plans in the identical amounts of $1,525.04 are not reasonable and necessary. Where I.D.F. has not incurred these treatments, I find it would be unreasonable and unnecessary to approve future treatment before he has undergone the first slate of treatment to determine whether continuing is beneficial or whether the goals of same can be met.
$2,170.00 for CBD oil
13I.D.F. submits that the treatment plan submitted by Dr. Goel recommended an oil high in CBD content specifically for its anti-inflammatory and muscle relaxation properties. I.D.F. argues that he has previously tried using Naproxen, an anti-inflammatory drug, and Flexeril, a muscle relaxant, prior to being prescribed CBD oil. He submits that these pain medications did not provide him with adequate pain relief, necessitating a prescription for CBD oil, which he has used previously for his condition, albeit at a higher dosage.
14Aviva submits that the treatment plan is unclear in what it is recommending and that I.D.F. did not provide compelling evidence that he has tried alternative pain medication prior to being prescribed cannabis. Based on Dr. Ko’s report, it argues that I.D.F. should try self-directed exercise before moving on to an expensive prescription. I agree with I.D.F. that the medical records demonstrate that other pain-relief medicines have already been prescribed and have been shown to be ineffective, as he continues to experience pain and flare ups despite taking Naproxen and Flexeril. Contrary to Aviva’s submission, I find the treatment plan is clear on what is being prescribed, as the additional comments section states that I.D.F. has previously used CBD oil-based therapy and recommends a dosage of “0.25 ml 20-25 mg/ml dosing” which would not apply to dried cannabis. In any event, the report from Spark Cannabis dated April 24, 2019 confirms that CBD oil was prescribed.
15I find the proposed CBD oil treatment to be partially reasonable and necessary to help reduce I.D.F.’s chronic pain and where it has been effective for him previously. I would, however, agree with Aviva that the items listed as “assessment” and “prescription” are not reasonable and necessary expenses under s. 38(2), as it is clear that these items were provided by Dr. Goel in April 2019 prior to the submission of the treatment plan. I.D.F. does not provide submissions on why a second assessment and prescription would be needed and therefore I find it is not reasonable and necessary to fund same. Accordingly, I find I.D.F. is entitled to payment in the amount of $1,370 for the CBD oil treatment plan as it is reasonable and necessary to reduce his pain.
Interest
16Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51 once the benefits are incurred.
CONCLUSION
17I.D.F. is entitled to the treatment plan in the amount of $2,124.77 for physiotherapy as it is reasonable and necessary. He is entitled to partial payment in the amount of $1,370 for the CBD Oil treatment plan as that portion is reasonable and necessary. Interest applies on overdue, incurred benefits pursuant to s. 51.
18I find I.D.F. is not entitled to the remaining treatment plans as they are not reasonable and necessary.
Released: August 6, 2020
__________________________
Jesse A. Boyce
Adjudicator