Released Date: 10/26/2020

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:

[N. D.]

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Jeton Memeti

For the Respondent:

Maia K. Abbas

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on December 3, 2016, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The applicant was removed from the Minor Injury Guideline (“MIG”) on the basis of psychological impairment and has received treatment for same to date. Aviva denied the treatment plan in dispute here based on its determination that further facility-based treatment for the applicant’s physical impairments was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to a medical benefit in the amount of $2,298.20 for physiotherapy treatment recommended by West Queensway Health Centre in a treatment plan (OCF-18) submitted on March 1, 2017 and denied on February 26, 2019?

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

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

result

3The applicant has not demonstrated that the treatment plan for physiotherapy is reasonable and necessary under s. 15. As no benefits are due, it follows that interest and an award are not payable.

ANALYSIS

Is the physiotherapy treatment plan reasonable and necessary?

4Pursuant to s. 15 of the Schedule, it is the applicant’s burden to demonstrate that the specific treatment he seeks for his accident-related impairments are reasonable and necessary on a balance of probabilities. I find the applicant has failed to demonstrate that the treatment plan is reasonable and necessary.

5The applicant’s position is that the physiotherapy treatment plan—comprised of treatment for Hypertherm, electrotherapy, spinal manipulations, active therapy and a re-assessment—in the amount of $2,298.20 is reasonable and necessary because he has reduced range of motion and continues to experience pain at work and in his daily activities. The applicant submits that the facility-based therapy he previously underwent was helpful and, to this end, he relies on an OCF-3 and various clinical notes and records from his family physicians, Dr. Masud and Dr. Barth, his psychologist, Dr. Pilowsky, and a sleep report to demonstrate that further facility-based treatment is reasonable and necessary.

6In response, Aviva submits that all of the medical evidence indicates that the applicant sustained soft-tissue injuries as a result of the accident that do not warrant further facility-based treatment. In denying this claim, Aviva relies on the s. 44 opinion of Dr. Alikhan, who determined that further facility-based treatment was not reasonable and necessary in reports dated May 5, 2017 and February 26, 2019, respectively. Aviva further relies on diagnostic imaging results that revealed normal findings, the fact that the applicant continued to work in a full-time capacity and that he made irregular complaints of pain to his physicians. Aviva submits that the applicant has not made specific submissions on the treatment plan and argues that there is no objective evidence to support his claim that further passive modalities of treatment are reasonable and necessary.

7On the medical evidence, I agree with Aviva. The applicant’s standing outside of the MIG for his psychological impairments does not render physical treatment automatically reasonable and necessary. While I am alive to the applicant’s subjective reports of pain, I agree that there is limited medical evidence to support his claim that his physical impairments require ongoing facility-based treatment. I find the evidence suggests his physical impairments are predominantly soft-tissue in nature and he has not demonstrated why the specific treatment proposed is reasonable and necessary to treat his specific impairments as a result of the accident.

8Indeed, other than his self-reporting in physician notes, the applicant has not provided any medical evidence or opinion to rebut the s. 44 reports of Dr. Alikhan, who initially determined the treatment was not reasonable and necessary. On receipt of updated records and a second in-person assessment a year and a half later, Dr. Alikhan confirmed again that there was no objective medical evidence that would warrant additional therapy. The applicant’s updated documentation did not alter Dr. Alikhan’s opinion that the applicant’s physical impairments were largely soft-tissue in nature, a fact confirmed by the OCF-3, which lists whiplash and sprain and strain-type injuries. I found both of Dr. Alikhan’s reports to be thorough and his most recent report, which was based in part on a comparison of the applicant’s examination in 2017 against the one conducted in 2019, was authoritative and persuasive. For example, I found Dr. Alikhan’s 2019 analysis of what he described as the applicant’s “non-organic” range of motion presentation and inconsistent pain reporting based on the medical evidence to be a quite detailed and compelling medical opinion on a single treatment plan.

9On review, I also find the applicant’s self-reporting in Dr. Alikhan’s report is not particularly assistive to his claim, as he states that the facility-based therapy “never provided any sustained therapeutic benefit” for his low back pain and that the benefits of same had reached a plateau by the end of 2017. With regard to his right knee pain, the applicant reported that “nothing makes it better” and that massage only provided 10% relief. Further, Dr. Alikhan’s review of the applicant’s medical history ruled out any potential support for a deterioration in condition based on a pre-existing condition which led him to determine that the applicant had reached maximal medical improvement with respect to any physical injuries.

10With Dr. Alkihan’s reports in mind, I find limited support for further facility-based treatment in the remaining medical evidence. All of the diagnostic imaging reports—ultrasounds and x-rays of both shoulders, an x-ray of the lumbar spine, an x-ray of both knees—revealed normal findings and only degenerative changes in the cervical spine. The applicant’s complaints to his family physicians are sporadic and there are no specific recommendations for the slate of treatment proposed in the OCF-18 in dispute. While some of the Tribunal cases referenced by the applicant concerned chronic pain, his submissions do not specifically make this argument and, in any event, the Tribunal was not directed to a diagnosis of chronic pain in the medical documentation. Finally, while pain reduction can be a legitimate goal for treatment, it is the applicant’s burden to demonstrate how the treatment proposed will specifically address that goal. Merely relying on the OCF-18 itself, as the applicant has here, is not sufficient to meet his burden of proof to demonstrate that the specific treatment he seeks is reasonable and necessary.

11For these reasons, I find the applicant has not met his burden and, on the evidence, find no reason to interfere with Aviva’s determination, based on Dr. Alkihan’s s. 44 reports, that the OCF-18 is not reasonable and necessary. As no benefit is overdue, it follows that no interest is payable under s. 51.

Award

12The applicant also seeks an award under s.10 of O. Reg. 664, asserting that Aviva unreasonably withheld treatment that led to a worsening of his condition, did not produce its log notes, scheduled more assessments than is reasonable and stubbornly maintained its denials. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

13I find an award is not appropriate for several reasons: the applicant led no evidence that the denial of the OCF-18 led to a worsening of his condition; the Tribunal’s Case Conference Order did not order Aviva to produce its log notes so Aviva was not required to do so; Aviva only conducted two s. 44 assessments on this treatment plan, the latter of which was in response to updated documentation provided by the applicant; and, as discussed above, the applicant did not provide sufficient medical evidence to support further facility-based treatment. In any event, as no benefits are payable, it follows that the Tribunal cannot order an award under s.10.

CONCLUSION

14The applicant has not demonstrated that the treatment plan for physiotherapy is reasonable and necessary under s. 15. As no benefits are due, it follows that interest and an award are not payable.

Footnotes

1. 1O. Reg. 34/10, as amended.