Released Date: 09/21/2020

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:

J.S.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION [AND ORDER]

PANEL:

Eleanor White, Vice Chair

APPEARANCES:

For the Applicant:

Victoria Gorbenko, Paralegal

For the Respondent:

Michael Silver, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION [AND/OR ORDER]

OVERVIEW

1The applicant was involved in an automobile accident on September 4, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties participated in a case conference but were unable to resolve all of the issues and proceeded to this written hearing on the following issues in dispute.

ISSUES TO BE DECIDED

3Is the applicant entitled to a medical benefit in the amount of $3,090.09 for chiropractic treatment, denied by the respondent on May 30, 2017?

4Is the applicant entitled to the cost of examination for a chronic pain assessment, denied by the respondent September 6, 2017?

5Is the applicant entitled to interest on any overdue benefit?

RESULT

6I find that the treatment plan for continued chiropractic treatment in the amount of $3,090.09 is not reasonable and necessary, as the physical injuries are predominantly minor in nature and the documented improvement resulting from the disputed treatment, has been both minimal and largely unchanging over the course of care, as self-reported and documented by the providers following their assessments.

7I find that the chronic pain assessment recommended in the amount of $2,000,00 in the disputed treatment plan is reasonable and necessary. It is consistent with the treatment provider’s recognition of the limitations of the treatment delivered up to that point and the persistence of his pain.

8Interest is owed only on the amount of the treatment plan for the chronic pain assessment, it indeed it was incurred.

ANALYSIS

Is the treatment plan for chiropractic services in the amount of $3,090.09 reasonable and necessary?

9The Schedule states that the insurer shall, except for policy monetary limits, pay for all reasonable and necessary expenses incurred by the insured person, provided by a list of regulated healthcare providers, which includes chiropractic services. As JS is no longer confined to the monetary limits of the Minor Injury Guideline, the insurer is liable to pay for proposed treatment being deemed reasonable and necessary. The term ‘reasonable and necessary’ is not defined in the legislation, however has been described in case law, as cited by the respondent.¹

10The cited decision described criteria for the term ‘reasonable and necessary’ as including the following; that the proposed treatment be relevant to the injuries sustained in the accident, that the plan specifies achievable goals with reasonable costs, respective of fee guidelines, and that the provider gauges expected success and describes any risks involved. All are ‘reasonable’ components of a standard to be applied in this matter.

11JS was widely reported as sustaining largely soft tissue injuries as a result of the accident, as reported in the initial OCF-1 and OCF-3 forms submitted by the applicant and his treatment providers. The initial OCF-3 dated November 4, 2016 described sprain/strain injuries at the level of the cervical and lumbar spine and sacro-iliac joint, a rash over one shoulder, juvenile osteochrondrosis of the patella, shoulder sprain and strain, and problems with sleep, weight loss, nervousness and fatigue, as reported by Dr. Alexander Yu, chiropractor at Life Point Medical.

12On April 26, 2017, concurrent with the disputed treatment plan for continued chiropractic care, Dr. Tam Pham and Dr. Alexander Yu, chiropractors at LifePoint Medical submitted an updated OCF-3. At that time, JS was still confined to the MIG limit for treatment. The updated form described a list of injuries almost identical to those of the original OCF-3, almost six months earlier. Apart from the omission of the rash on both shoulders and juvenile osteochondrosis of the patella, all injuries are repeated as occurring in the cervical and lumbar spine, with low back pain and shoulder sprain and strain with a new description of rotator cuff involvement. Again, issues of nervousness, fatigue and sleep disorder are noted.

13The treatment plan in dispute, dated April 26, 2017 described JS as being ‘severely affected’ in his ability for self-care, ‘highly affected’ in his ability to socially interact and continuing to have significant difficulty in his ability to both initiate and to maintain sleep. The goals of the plan were reduction of pain, increased range of motion, increase strength and return to activities of daily living as well as to explore the provision of home care to maximize his mobility and prevent re-injury. The chiropractor noted only mild improvement resulting from care up to this point and defined barriers to recovery as difficulties with sleeping, driving anxiety, loss of appetite and weight gain.

14In response to JS’ report of minimal improvement, subjective complaints of continuing pain in the lower back, right shoulder and neck, the treatment plan recommended 7 weeks of largely unchanged and passive interventions. The clinical records from Life Point Medical show very similar treatments being offered on a continuing basis; electrotherapy (IFC), heat, massage and spinal manipulation, with some strength and stretch exercises directed at ‘core strength’. Some exercises were assigned for home exercises, which JS stated he performed. In the facility’s clinical notes, JS’ subjective reports for each visit were mostly unchanging. There was no evidence of a rehabilitation program for the shoulder complaints. This plan was submitted prior to the imaging reports being available that showed only a minor impingement at the right shoulder upon abduction. The clinical notes of the massage therapist were also consistent in their report of stiffness and discomfort or pain in the right shoulder but temporary relief after each treatment was delivered from October 2016 through to the end of March 2017.

15JS raises the following in his submissions: the clinical notes of the family physician show continuing subjective reporting of headache, low back pain and shoulder pain, affecting sleep, anxiety levels and socialization, with consistently unremarkable objective findings. The doctor recommends continuing with therapy and psychotherapy and refers JS for imaging exams which produce only minor impingement in the shoulder. There is consistency between the family doctor, treatment providers, and assessors that JS is experiencing pain and limitations due to pain, with the major limitations being noted in the right shoulder and lower back.

16The respondent acknowledges the symptoms JS is continuing to report, and that he is compliant with his home exercise, and has attended facility-based treatment as instructed, but relies upon the report of Dr. Mark Goldberg, physiatrist, that finds after his initial in-person assessment for another disputed benefit, that JS has achieved maximal medical recovery with respect to his physical complaints and that the treatment plan is not reasonable and necessary. Interestingly, in his initial report, Dr. Goldberg reports that JS claims to have improved up to 50 % in some aspects of his presenting symptoms.

17Using our criteria for ‘reasonable and necessary’ when approving proposed treatment, it is undisputed that JS is experiencing subjective pain complaints through biomechanisms that are not easily demonstrated upon examination but is related to the accident. As Dr. Goldberg opines, the expected results are modest and tentative, and it is unrealistic to expect a different result by continuing to provide the same treatment.

18I find that both JS and the respondent are really on the same page; JS complains of still having pain and other psychological difficulties, with little evidence of objective findings, except for the shoulder impingement, and little improvement garnered from treatment up to the submission of the plan, apart from some relief of tension after massage on a temporary basis. The question is whether this particular treatment plan is reasonable and necessary, and I am not persuaded that this treatment plan would reach the goals stated in the OCF-18.. I do not find the proposed treatment plan reasonable and necessary and thus not payable.

Is the treatment plan for a chronic pain assessment in the amount of $2,000.00 reasonable and necessary?

19In reviewing the records of the one of JS’ physicians, Dr. Mikhail, as well as those of the treating chiropractors and massage therapists, one sees ongoing complaints of pain; headache and shoulder pain worse at night, stiffness of the right shoulder, inconsistent reporting of lower back pain and consistent and milder reporting of neck pain. The treatment delivered has been documented by the providers as largely unsuccessful and they have anticipated limited success with continuing care, giving a guarded prognosis, hence leading to the denial of a treatment plan disputed discussed above.

20The assessment by the Occupational Therapist, Mr. Duong, has revealed confirmation of right shoulder pain limiting some actions and both the applicant and the respondent’s psychological assessments render a DSM-5 diagnosis of significant depression, related to somatization, or more simply, to his experience of pain. The only physical sign or investigative result, evident to any doctor, treatment provider, assessor or diagnostic imaging reporter is a mild impingement of the right shoulder displayed by tenderness and some reduction in range of motion. Still, the pain experienced by JS has been recorded in the shoulder persisting from the date of loss up to the all submitted reports.

21The submissions from JS posits that he should be entitled to a chronic pain assessment as he has now been removed from the confines of treatment of the MIG, in order to explore the stated goal of long-range strategies to manage pain that may persist into the future and to increase his functionality and well-being.

22The respondent submits that JS did not submit any further treatment records after May 29, 2017 and that without further evidence that he was continuing to experience pain at the time of the submission of the OCF-18 for a chronic pain assessment on August 18, 2017, they are unable to approve the treatment plan. The respondent relies on the assessment on May 5, 2017 conducted by Dr. Goldstein for another benefit in which the applicant was heard to say his improvement (unspecified) was estimated at 50% which led the insurer to assume that his recovery would be complete by August 18, 2017. No assessment was conducted by the insurer on the basis of the proposal for a chronic pain assessment.

23I do not find the respondent’s denial of the plan to be persuasive. In the face of persistent report of pain, particularly from the right shoulder, and the lack of significant success of traditional therapy, the possibility of an alternative and perhaps successful form of treatment would be worthwhile for both parties. I find the treatment plan proposing a chronic pain assessment to be reasonable and necessary, thus payable.

ORDER

24I order the payment of the treatment plan for a chronic pain assessment in the amount of $2,000.00, submitted by Life Point Medical and denied on September 6, 2017, as it is determined to be reasonable and necessary and thus payable, with applicable interest if the plan was incurred.

25The payment of a treatment plan for continuing chiropractic care from LifePoint Medical in the amount of $3,090.90 has not been determined to be reasonable and necessary and is denied.

Footnotes

1. 117-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT)