C.B. v. Aviva General Insurance Company, 2020 CanLII 69913

C.B. vs. Aviva General Insurance Company, 2020 ONLAT 18-012621/AABS

Citation: C.B. vs. Aviva General Insurance Company, 2020 ONLAT 18-012621/AABS

Released: September 2, 2020

Tribunal File Number: 18-012621/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:

C.B.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Dale Stuckless, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 13, 2017. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The parties resolved several outstanding issues during the case conference, leaving only one issue remaining for this hearing in writing: the applicant’s entitlement to chiropractic treatment as claimed in an OCF-18 submitted on February 21, 2019.

3The applicant claims that the respondent did not provide adequate medical reasons for its denial of the applicant’s claim, and that the treatment plan proposed is reasonable and necessary for her recovery.

4The respondent argues that the applicant’s injuries are pre-existing and were not worsened by the accident, and further that none of the applicant’s medical practitioners actually recommend further chiropractic treatment.

ISSUES

5The issues to be decided are:

i. Is the applicant entitled to a medical benefit for chiropractic treatment recommended in a treatment plan submitted February 21, 2019?

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

RESULT

6I find that the applicant is entitled to the claimed medical benefits. The evidence demonstrates that the accident exacerbated the applicant’s injuries, that the proposed treatment plan addresses those injuries, and that previous similar treatments have improved the applicant’s pain. The treatment plan is reasonable and necessary. The applicant’s appeal is granted.

BACKGROUND

7The applicant was involved in an accident on September 13, 2017. She was driving northbound on a street in Toronto when a southbound car turning left hit another car, pushing it into the applicant’s car. The applicant rear-ended the second car and the airbags deployed.

8Damage to the applicant’s car was extensive, and the applicant went to the hospital. She reported pain in her joints and lower back. The applicant was 50 years old at the time of the accident and was working as a personal support worker.

9The applicant went to her family physician approximately three weeks after the accident. Her family physician diagnosed her with a head injury, neck strain, and thoracic lumbar spasms. She followed up with her physician about her injuries on several occasions in 2017.

10The applicant applied for accident benefits on September 19, 2017.

11The applicant’s family physician cleared her for a modified return to work on September 17, 2018. The applicant reports that none of her employers have yet been able to accommodate such a request.

ANALYSIS

i. Is the applicant entitled to a medical benefit for chiropractic treatment as submitted on February 21, 2019?

12Having considered the evidence and submissions of the parties, I find that the applicant is entitled to the claimed medical benefits. The evidence demonstrates that the accident exacerbated the applicant’s injuries, that the proposed treatment plan addresses those injuries, and that previous similar treatments have improved the applicant’s pain. The treatment plan is reasonable and necessary.

13The applicant claims a single treatment plan (OCF-18) in the amount of $1,562.50 for chiropractic treatment. The treatment plan was submitted through the applicant’s chiropractor on February 21, 2019.

14On February 28, 2019 the respondent denied the applicant’s claim. The letter from the respondent stated that the respondent was unable to determine whether the treatments recommended in the treatment plan were reasonably required for the appellant’s injuries.

15The applicant argues that (a) the respondent did not provide adequate medical reasons for denying the applicant’s claim; and (b) that the proposed treatment plan is reasonable and necessary to improve the applicant’s outcomes.

16The respondent argues that there is insufficient evidence to prove that the applicant’s injuries are a result of the accident or were worsened by the accident and not simply the natural deterioration of pre-existing injuries.

17To succeed, the applicant must demonstrate that, on a balance of probabilities, the injuries sustained were as a result of the accident and the treatment in dispute is reasonable and necessary.¹ An applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.²

18With respect to the question of whether the accident caused the injuries, the Tribunal can also account for the accident worsening pre-existing conditions. In other words, but for the accident, would the applicant be in the condition she is currently in?

19The respondent argues that the Tribunal should only consider evidence prior to October 2018 because that is what was agreed to at the case conference. I disagree. First, contrary to the respondent’s assertions, nowhere in the case conference report or order does it state this limitation. Second, the order does state that the Tribunal may vary the order as required. Finally, it was open to the respondent to bring a motion to exclude evidence in advance of the hearing, yet it chose not to do so. I will consider all evidence properly before me.

20The evidence indicates that, prior to the accident, the applicant:

i. Complained of stress, anxiety, and depressive mood in 2015, and was diagnosed with anxiety disorder and depression at that time;

ii. Was diagnosed with right shoulder tendinitis and reduced right shoulder mobility in January 2016;

iii. Had an ultrasound of her right shoulder in December 2015 which indicated two partial tears;

iv. Was assessed in February 2016 as limited in her ability to lift, climb ladders, push/pull with her right arm, or participate in above shoulder activity, and was recommended a modified return to work;

v. Reported some improvement in her shoulder condition by June 2016;

vi. Underwent an additional ultrasound in June 2017 which was consistent with her previous ultrasound;

vii. Suffered a fall in June 2017 where she twisted her back and missed time off work;

viii. Complained in August 2017 of stiffness and pain in her lower spine.

21After the accident, on September 29, 2017, the applicant’s physician completed a disability certificate (OCF-3) indicating that the applicant had sustained myofascial ligament strain, paraspinal thoracic and lumbar sprain, and right shoulder sprain as a result of the accident. On July 13, 2018, the applicant underwent an x-ray of her cervical spine, which found moderate osteophytes with mild disc-space narrowing.

22Later in July 2018 she underwent another ultrasound of her right shoulder. This time the ultrasound showed three partial tears. Where previously there were only tears of the supraspinatus tendon there is now also a tear in the subscapularis tendon. There is no evidence of an intervening or confounding cause of the additional tear between the time of the accident and July 2018.

23The applicant regularly saw her chiropractor and physiotherapist between September 2017 and March 2019, sometimes seeing both providers at the same clinic on the same day. The notes from these visits often accord with each other with respect to whether or not the applicant is experiencing pain and stiffness and where, and whether or not she feels improvement at all.

24Of the approximately 100 visits to each provider that the applicant made, the respondent points to 11 instances of discrepant notes about the applicant’s condition. In each case the applicant saw the two providers on the same day and the notes reflect different reported pain experiences. For instance, a randomly selected example from December 5, 2017 indicates that the applicant reported to her chiropractor that pain and stiffness is getting better even for her shoulder, but reported to her physiotherapist that pain in her neck and upper back increased.

25The respondent argues that these inconsistencies call into question the legitimacy of the reported complaints to all of her different care providers. I agree that these inconsistencies mean that I cannot place as much weight on these specific reports as I may be able to were they consistent. I do not agree, however, that all of the reports are similarly tainted. Ninety percent of the reports to both providers are consistent with each other, and they report, to varying degrees, that the applicant experienced neck, shoulder, and back pain and stiffness.

26I do note that, despite having reviewed the applicant’s family physician’s notes, an assessment done by Dr. Kam described the applicant as having no prior history or pre-existing injuries. This is clearly not the case and Dr. Kam’s assessment of the applicant is not adequately informed. Even in the face of difficult to read notes, there is ample information to indicate a prior shoulder and back injury history. I put no weight on Dr. Kam’s report as a result.

27Nonetheless, I am satisfied that the applicant’s pre-existing injuries were exacerbated by the accident.

28The proposed treatment plan recommends eight sessions of chiropractic treatment, six sessions of physiotherapy, and five sessions of massage therapy, along with reporting. The total cost of the proposed treatment plan is $1,562.50. Though the treatment plan identifies injuries and sequelae that do not appear to be previously reported by the applicant, including sleep loss, dizziness, fatigue, injury of head, and postconcussional syndrome symptoms, the treatment plan itself is clearly focused on joint mobility and increasing the applicant’s range of motion while decreasing pain in those joints. The functional goal is to return to activities of normal living.

29The applicant relies on the ultrasound results of her right shoulder, Dr. Kam’s assessment, and the records from her physiotherapist and chiropractor to support her assertion that the proposed treatment plan is reasonable and necessary. I have already addressed Dr. Kam’s report, on which I do not rely, and the ultrasound reports, which indicate a further tear with no evidence of an intervening cause.

30With respect to the chiropractor and physiotherapist records, the respondent argues that the applicant has not experienced any significant improvement in the 1.5 years she has been receiving treatment. The respondent then, however, in the same paragraph admits that the applicant reports “some improvement [but] her pain reportedly continues to persist.” I find this to be a selective and incomplete view of the evidence. Taken as a whole, the records indicate that the applicant did, over the course of treatment, report more frequently that she feels better. Her pain persisting is not inconsistent with this report. Her pain levels or her pain frequency could reduce.

31Further, I find it difficult to believe that the applicant would continue to attend treatment, twice a week, for more than 18 months if she was not experiencing any improvement in her condition.

32The goal for the applicant is not to be pain free, as the respondent argues, but rather to return to normal daily activity. Prior to the accident, as I have found, the applicant was in some amount of pain from her shoulder and back injuries. If this treatment can assist in addressing the exacerbation of injuries in the accident, then the applicant can return to a still somewhat painful, but pre-accident level of activity.

33Therefore, I find that the applicant has satisfied her onus to demonstrate that the proposed treatment plan is reasonable and necessary in mitigating the applicant’s impairment. She is, as a result, entitled to the claimed benefit.

ii. Is the applicant entitled to interest on the claimed benefit?

34As I find that the applicant is entitled to the treatment plan claimed in this application, the applicant is entitled to interest for the overdue payment pursuant to section 51 of the Schedule.

CONCLUSION

35For the reasons above, I find that the applicant is entitled to the benefits claimed in her application, along with interest.

36The applicant’s appeal is granted.

Footnotes

1. 116-004348 v. Allstate Canada, 2018 CanLII 39464 (ON LAT).
2. 217-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT). 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.