Citation: D.H. v. Aviva General Insurance, 2020 ONLAT 19-012434/AABS

Released Date: 10/20/2020

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:

D.H.

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Neisha Moses, Paralegal

For the Respondent:

Kristofer Angle, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1D.H., a minor, (“applicant”) was involved in an automobile accident on October 7, 2017 (“accident”) and sought benefits from Aviva General Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was 15 years of age at the time of the accident.

2The applicant was denied benefits by the respondent and he submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The applicant submits that all of the disputed treatment plans are reasonable and necessary to treat his accident-related injuries and that his medical evidence establishes that the treatments will undeniably and unequivocally contribute to his recovery from the accident. Without them, he argues, his chronic pain cannot be alleviated and stabilized and, instead, he regresses into excruciating pain and is unable to function at his pre-accident level.

4The respondent’s position is that the disputed treatment plans are not reasonable and necessary, and the applicant has not met his burden of proof.

5The applicant has been removed from the Minor Injury Guideline (“MIG”).

ISSUES

6In the Tribunal’s case conference Order, the issues to be decided were:

i. Is the applicant entitled to a medical benefit in the amount of $203.40 for physiotherapy services, denied by the respondent April 2, 2019?

ii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for physiotherapy services, denied by the respondent August 13, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $4,230.27 for occupational therapy services, denied by the respondent August 13, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $220.00 for goods and services recommended by Action Physiotherapy, denied by the respondent August 13, 2019?

v. Is the applicant entitled to a medical benefit in the amount of $1,315.95 for physiotherapy services, denied by the respondent January 16, 2019?

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

vii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?²

RESULT

7I find that the applicant is not entitled to the three disputed treatment plans set out as issues ii, iii and v. Issues i, iv and vii are not in dispute at this hearing and are not determined by me. No interest is payable. The applicant’s application is dismissed.

LAW

8Sections 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 they seek is reasonable and necessary.³

ANALYSIS

Are the Three Disputed Treatment Plans Reasonable and Necessary?

9I find that the applicant is not entitled to the payment of the three disputed treatment plans because he has not established, on a balance of probabilities and with sufficient medical evidence, that any of them are reasonable and necessary.

Occupational Therapy Functional Assessment (“OTFA”) for $2,200.00⁴ and Occupational Therapy Services (“OT”) for $4,230.27

Goals

10In the applicant’s submission, he produced only the one page of the proposed treatment plan which contained only a breakdown of services. The respondent submits that, without the critical information relating to the applicant’s alleged injuries, limitations and specific goals of the treatment plan, the Tribunal is unable to consider the goals of the plan in order to determine its reasonableness and necessity and the result must be a dismissal of the applicant’s claim for this plan because he has failed to discharge his burden of proof. In reply, the applicant filed the missing pages of the treatment plan.

11While it can be considered unfair for the applicant to produce evidence in reply given that the respondent does not have an opportunity to make submissions on it, in this particular case I am prepared to allow the applicant to file as evidence in this hearing the rest of the pages of the treatment plan. It is apparent from the correspondence between the parties that the respondent received the treatment plan in its entirety and denied it, so the respondent is not taken by surprise by this evidence. As a result, I will consider this evidence.

12Both the OTFA and OT describe the applicant’s injuries from the accident as headache and sprain and strain of lumbar spine and proposes an assessment. The proposed services in the OT include $1835.44 of “training, motor and living skills”, provider travel time at $1,197.04, planning services of $399.04, documentation and support activity charges of $599.00 and programming supplies of $100.00 for a total of $4,230.27.

13I find that the goal in the OTFA, which is “completion of comprehensive occupational therapy functional assessment,” is not a goal but a statement of proposed services. Similarly, the goal in the OT is stated to be “OT Services to maximize functional restoration and address barriers impeding normal daily function” and the functional goal is “return to activities of normal living”. These functional goals are vague and contain no detail about the activities referred to. Even if these goals could be considered descriptive enough to be “goals”, I find that these goals are not reasonable and necessary for the following reasons.

14The weight of the medical evidence is that, post-accident, the applicant had little decrease in his activities of daily living. The applicant did not miss school at the time of the accident. Two days after the accident, the applicant consulted a nurse practitioner, Falakas Mehdawi, who assessed back pain. On May 1, 2018, the applicant complained to Andrea Skinner, nurse practitioner, of recurrent back pain since the accident. He described his back pain as intermittent and said he is able to play basketball. Ms. Skinner assessed mechanical back pain and noted that his back range of motion is normal, no pain associated, strength is 5/5 to LE and sensation intact. An x-ray revealed no acute injury.

15The OTFA is proposed in August 2019, some 22 months post-accident. The weight of the medical evidence is that, by that time, the applicant had substantially returned to his activities of daily living including attending school, playing basketball and attending a two-week overnight leadership camp.

16The applicant submits that post-accident his focus and concentration declined, he requires assistance to regain his ability to undertake his daily activities, lacks motivation, confidence, is experiencing depression. The applicant also submits that his performance in school worsened severely and he failed two subjects in school. However, the 2012 and 2019 reports of applicant’s psychologist Dr. Rowden do not support these submissions. In her 2012 pre-accident report, Dr. Rowden diagnosed ADHA and dysgraphia. In her 2019 post-accident report, there is no mention the accident and no suggestion that any effects from any accident-related injuries have affected the applicant’s academic performance or his psychological condition. Given Dr. Rowden’s pre-accident knowledge of the applicant’s psychological condition and her specialized knowledge, I find her diagnosis and reports more persuasive than those of other assessors and more persuasive than the applicant’s self-reporting. There is no evidence to the contrary from the applicant’s school given that applicant has failed to produce the education file from his school contrary to the Tribunal’s case conference Order made February 25, 2020.

17Also, in December 2018 respondent’s physiatrist, Dr. Kruger, opines that the applicant did not suffer an impairment as a direct result of the accident. Dr. Kruger’s opinion is consistent with and supported by that of Ms. Tandon, respondent’s occupational therapist, who reported that the applicant has the necessary physical tolerances (both functional range of motion and strength) to engage in his daily activities and tasks and also that “during the assessment Mr. [H.] demonstrated functional active range of motion and strength in all areas upon direct assessment and/or casual observation”. Given his specialized expertise, thorough assessment of the applicant and consistency with Ms. Tandon’s assessment, I accept his opinion. The applicant did not bring forward persuasive records or opinions to the contrary.

18Dr. Smith, applicant’s rehabilitation physician, in her September 2019 report also indicates that the applicant’s accident-related injuries have resolved. Dr. Smith notes:

I suspect that he sprained/strained soft tissues at the time of the accident and adopted this postural alignment to unload painful tissues. With passage of time, the acute injuries had resolved but he is now somewhat stuck and used to this new and poorly aligned set which I think is preventing him from further recovery.

19Lastly, neither the OTFA or the OT is unsigned by the proposed treatment providers, which raises doubt as to their commitment to the proposed treatments.

Are Goals Being Met to a Reasonable Degree?

20Having found that the goals of the OTFA and OT are not reasonable and necessary, I do not need to consider whether they are being met.

Physiotherapy Services for $2,200.00

Goals

21I find that the goals of the plans are not reasonable and necessary based on the totality of the medical evidence. This treatment plan proposes 20 sessions of various physical treatments including exercise, stimulation of back muscles, manipulation and $160.00 for documentation and support activity. The applicant’s injuries are described as whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs and sprain and strain of cervical, thoracic and lumbar spines with goals of pain reduction, increase in strength, increased range of motion and improvement of function, posture, conditioning and core stability and functional goals of return to activities of normal living and return to pre-accident work activities. The applicant did not work at the time of the accident. I find that the balance of the goals are inconsistent with the applicant’s injuries from the accident as described in the medical evidence and his recovery by October, 2018.

22As set out above, post-accident the applicant had very little decrease in his activities of daily living. He did not miss any school. By May 1, 2018, the applicant described his back pain as recurrent but also intermittent and said he was able to play basketball.

23The applicant submits he has chronic hip and spinal pain and also headaches as a result of the accident for which physiotherapy has been recommended. The applicant’s medical evidence is not persuasive on this for the following reasons.

24The patient information sheet dated January 8, 2018 from Action Physiotherapy Clinic is based on self-reporting by the applicant and is not medical evidence.

25The records of Mr. Falakas and his November, 2018 letter, the July, 2018 letter from Ruchi Bali, physiotherapist, the spinal joint assessment done at Action Physiotherapy in April, 2019, Danica McTavish’s May, 2019 letter and July, 2019 report and the record of Physiotherapy & Beyond do not establish the applicant’s position. None of these records are made by a physician. None of them contain a medical diagnosis or a medical prescription for physiotherapy. Although some records indicate that Cheryl Hewitt is the applicant’s family doctor, in the few records before me from Dr. Hewitt there is no recommendation for physiotherapy. Although Dr. Hewitt’s November 27, 2018 note records a reference to pain in “localized area from top of lateral hip to ankle and soreness over the thoracic spine midline and the para spinal msc”, also noted is good flexion, extension, lateral bending, good range of motion in legs and neck, no pain over the SI joint or low back or leg today.

26In March 2019 Mr. Falakas referred the applicant to Dr. Smith, a specialist in physical medicine and rehabilitation. The applicant relies on Dr. Smith’s opinion. Dr. Smith reported that the applicant’s MRI of his lumbar spine showed some facet change at bilateral L4-5 but no significant foraminal or central canal narrowing and no nerve root or spinal cord compromise. As set out in paragraph 18 above, Dr. Smith indicates that the applicant’s accident-related injuries have resolved and also recommends against continuing past treatment. Dr. Smith reports that the applicant has attended physio and other treatment at both Focus Physiotherapy and Action Physio and opines that: “I think he needs to change what he is doing if he wants to change the way he is feeling. He has plateaued out and is on his second round of therapy at a different facility…I have given him the name of another therapist. I have asked that facility to give me a call, so we can collaborate on a program…” This opinion does not support the applicant’s request for this disputed physiotherapy treatment plan.

27Dr. Smith’s opinion is corroborated by Dr. Kruger who opined in December 2018 report that this disputed treatment plan is not reasonable and necessary because he found no evidence of any neurological or radicular findings as a result of the accident. His opinion is, like Dr. Smith, that the applicant suffered soft tissue physical injuries. These medical opinions do not support the applicant’s submission that he suffers chronic pain as a result of the accident but to the contrary establish that any pain he still suffers is not accident-related.

Are Goals Being Met to a Reasonable Degree?

28Having found that the goals of the OTFA and OT are not reasonable and necessary, I do not need to consider whether they are being met. The evidence of Dr. Smith is clear that not only the applicant’s accident-related injuries resolved but that he has plateaued out on the physical therapy he has undergone with the result that the goals of the disputed physiotherapy treatment plan are not reasonable and necessary.

Overall Cost of All Three Disputed Treatment Plans

29I find that the overall cost of all three disputed treatment plans is also not reasonable and necessary given that the applicant has failed to establish that any of the three disputed treatment plans are reasonable and necessary.

30Considering the totality of the evidence, I find that the applicant has not provided sufficient medical evidence to meet his burden of proof that the three disputed treatment plans are reasonable and necessary.

Interest

31As no benefits are payable, no interest is payable.

ORDER

32For the reasons outlined above, I find that the applicant is not entitled to the three disputed treatment plans. Issues i, iv and vii are not in dispute at this hearing and are not determined by me. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The respondent advises that since the Tribunal’s case conference Order was made, the applicant has withdrawn issues i, iv and vii. The applicant did not argue otherwise in reply and the applicant only addressed issues ii, iii, v (“three disputed treatment plans”) and vi in his submissions. Therefore, I find these issues are not in dispute at this hearing and will not be determined by me.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
4. 4Although the Tribunal case conference Order refers to this treatment plan as being for physiotherapy services, the treatment plan indicates the proposed services are for Danica McTavish, an occupational therapist, to complete an assessment for $2,000.00 and documentation and support activity for $200.00.