Released Date: 10/22/2020
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:
M.A.A.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Ilia Estrah, Counsel
For the Respondent:
Aryeh Samuel, Counsel
Heard by Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1M.A.A. ("applicant") was involved in a motor vehicle accident on June 4, 2017 ("accident") and sought benefits from Aviva General Insurance Company ("respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 At the time of the accident, he was 21 years of age. He was also employed part-time at a security services company and attending [college]. The applicant was removed from the Minor Injury Guideline ("MIG") due to a diagnosis of vehicular anxiety.
2The respondent approved the applicant's 21 physical therapy sessions between June 8, 2017 and September 7, 2017 but denied the two disputed treatment plans which are the subject matter of this hearing. The applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal") for dispute resolution.
ISSUES
3The issues to be decided in this hearing are
i. Is the applicant entitled to receive a medical benefit in the amount of $3,948.91 for chiropractic treatment, recommended by Inline Rehabilitation Centre Inc. ("Inline"), in a treatment plan dated September 12, 2017, and denied by the respondent on September 25, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $3,191.25 for chiropractic treatment, recommended by Inline, in a treatment plan dated January 8, 2018, and denied by the respondent on January 22, 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, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation 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
6The applicant submits that both disputed treatment plans are reasonable and necessary for his recovery from his accident-related injuries of neck and upper back pain which he submits exacerbated his pre-accident conditions of debilitating migraines, bilateral shoulder pain and back pain. The applicant relies on Dr. Furqan, applicant's family doctor, and various medical records including the psychological status evaluation report of Snezana Djuric, psychometrist and Valery Kleiman, supervisor at Inline, dated June 22, 2017, the psychological assessment report of Sabrina Simmons, psychometrist and Valery Kleiman at Inline, dated October 12, 2017, the two disputed OCF-18 Treatment Plans and the report of Dr. Cobrin, respondent's psychologist dated October 12, 2017, and the report of Dr. Boulias, respondent's physiatrist dated November 2, 2017.
7The respondent submits that the applicant's evidence does not establish that the two disputed treatment plans are reasonable and necessary, the applicant's argument that he suffers from chronic pain is a red herring and there is no medical indication for further facility-based treatment. Further, the respondent relies on the report of Dr. Boulias and the report of Dr. Desai, respondent's neurologist.
Are the Chiropractic Treatment Plans for $3,948.91 and $3,191.25("Disputed Treatment Plans") Reasonable and Necessary?
8I find that the applicant is entitled to payment for both disputed treatment plans which include various physical therapies, massage therapy, functional exercise, acupuncture and manipulation as I find that the applicant's reports of his injuries from the accident and the pain he experiences are consistent and ongoing and therefore treatment is reasonable and necessary. Dr. Furqan's records are the most persuasive regarding this. On August 31, 2017, Dr. Furqan noted the accident and that the applicant had shoulder and lower back pain which got worse, that the applicant was sent for physio and that his pain improved, and that the applicant missed school and failed and as a result was on an academic suspension. Also filed is a letter dated August 31, 2017 from Inline Rehabilitation Centre confirming the applicant consulted Inline on June 8, 2017 and has been attending his weekly chiropractic, massage and physio appointments since then. On September 5, 2017, Dr. Furqan recorded that the applicant missed school due to the accident, was not able to complete part of his midterm exams and went to a local walk in clinic due to pain and stiffness in the neck, shoulders and back and that he was referred to physiotherapy which is still ongoing. On October 11, 2017, Dr. Furqan recorded the applicant's injuries from the accident including muscle aches, neck pain and shoulder pain and advised the applicant to try massage and arranged imaging revealed no significant injuries. According to Dr. Furqan's records, the applicant continued to experience pain into 2018.
9I agree with the respondent's submission that, although the applicant is no longer subject to the MIG, he still bears the onus of proving that the disputed treatment plans are reasonable and necessary as a result of the injuries caused by the accident. I find that he has met his onus based on the totality of the medical evidence.
10The respondent also submits that the applicant's argument that he suffers from chronic pain is a red herring because the MIG is not in dispute here and, even if the applicant were able to prove he suffers from chronic pain, which is denied, he must still prove that the treatment plans are reasonable and necessary. I agree with the respondent's submission and find that whether or not the applicant suffers from chronic pain is not determinative of whether the disputed treatment plans are reasonable and necessary. However, the records of Dr. Furqan contain repeated references to pain from the accident and include a 2018 referral to a Dr. Amin, a sports medicine physician, for pain.
11Although the respondent argues that because Dr. Furqan's referral letter refers to "chronic back pain and left shoulder pain for three years" this comment suggests that the applicant's pain does not result from the accident, this comment must be read in conjunction with Dr. Furqan's other records which contain repeated references to the accident and to the applicant experiencing pain as a result. The weight of Dr. Furqan's records is that the applicant experiences pain as a result of his injuries from the accident. Relief of pain has been accepted by the Tribunal as a legitimate goal of treatment3 and a reason why physical treatment plans may be reasonable and necessary. I find that in this case, the applicant experiences pain to an extent that alone would make the proposed treatment reasonable and necessary.
12Further, the applicant's reports to Dr. Furqan and others of feeling less pain coincide with the periods of time in which he is receiving physical therapy and the reports of feeling increased pain coincide with the period of time in which he is not receiving physical therapy which establishes that he is benefitting from the physical therapy indicating that it is reasonable and necessary.
13The respondent submits that there is no medical indication for further facility based treatment and points to Dr. Furqan's note of December 3, 2018 that the applicant has "not done physio properly yet". In reply, the applicant argues that this note refers to the applicant's prolonged absence from receiving physical therapy at that time, as opposed to the usefulness of the treatment itself as contended by the respondent.
14In the same note on December 3, 2018, Dr. Furqan, who knows the applicant best as his treating physician, recommends that the applicant "do regular physio". Based on the applicant's consultations with Dr. Furqan since the accident I find that the weight of Dr. Furqan's clinical records show he recommends physical treatment, contrary to the respondent's submission. Dr. Amin concurs that physical therapy should be tried as the first therapy for the applicant. Dr. Amin writes "I would advise this patient undergo a PT program. If he has already done PT and failed to improve, would consider a chronic pain referral."
15I find unpersuasive the respondent's submissions that I should prefer the evidence of the respondent's assessor Dr. Boulias, that the applicant sustained an uncomplicated soft tissue injury to his axial skeleton as a result of the accident, that there is no compelling evidence of a pre-existing medical condition that would prevent him from achieving maximum recovery within the MIG limits and that the $3,948.91 disputed treatment plan is not reasonable and necessary. I prefer the evidence of need for treatment in the records of Dr. Furqan over the opinion of Dr. Boulias and give less weight to the report of Dr. Boulias. As the applicant's family doctor and treating physician, Dr. Furqan is in a better position than Dr. Boulias to assess the applicant's physical injuries from the accident, the level of pain he experiences and to recommend treatment. The weight of Dr. Furqan's medical evidence, taken together with the applicant's other medical records filed, is sufficient to establish that the disputed treatment plans are reasonable and necessary.
16The respondent suggests that the findings of Dr. Desai, respondent's neurologist, are noteworthy in that from a neurological perspective, there were no impairments or disabilities identified and no findings of underlying radiculopathy, myelopathy or neuropathy. I find Dr. Desai's report to be of little relevance in determining whether the disputed treatment plans are reasonable and necessary and give this report little weight.
17Similarly, I find that the psychology assessment of the respondent's assessor Dr.Cobrin and the psychological reports of Inline to be of little relevance and given them little weight. At issue here is the applicant's proposed physical therapy, not treatment for any psychological issues arising from the accident.
18On review of the treatment plans, I find that goals listed including pain reduction, increase in strength and increased range of motion are all appropriate, reasonable and necessary goals for the applicant's treatment.
19I find that the applicant has experienced enough relief of pain and improvement as a result of the disputed treatment that it is reasonable and necessary to allow his treatment to be continued as set out in the two disputed treatment plans. All of the proposed therapy was to take place within one year of the accident. The September 2017 treatment plan indicates that the applicant has headache frequency improvement and VAS improvement. The January 2018 treatment plan indicates that the applicant's headaches resolved and range of motion has improved.
20I find that the overall cost of achieving these goals is also reasonable. The costs of the plans appear to be in line with the Schedule and the respondent did not argue otherwise.
Interest
21Interest is payable in accordance with s. 51 of the Schedule.
ORDER
22For the reasons outlined above, I find that the applicant is entitled to both disputed treatment plans with interest.
Released: October 22, 2020
__________________________
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
- See for example: 16-003921 v Certas Home and Auto Insurance Company, 2017 CarswellOnt. 14272 (ON LAT).