Citation: Paul v. Aviva Insurance Company, 2021 ONLAT 20-002254/AABS

Licence Appeal Tribunal File Number: 20-002254/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:

Uriah Paul

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Brendan T. Sheehan, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Uriah Paul, was involved in an automobile accident on July 31, 2018, and sought benefits from the respondent, Aviva Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent denied several of the applicant’s claims for medical benefits. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the applicant entitled to $2,680.38 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on February 5, 2019 and denied February 11, 2019?

b. Is the applicant entitled to $2,326.04 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on March 27, 2019 and denied April 8, 2019?

c. Is the applicant entitled to $1,971.70 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on May 14, 2019 and denied May 17, 2019?

d. Is the applicant entitled to $1,835.74 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on September 17, 2019 and denied September 26, 2019?

e. Is the applicant entitled to $1,702.34 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on January 8, 2020 and denied January 13, 2019?

f. Is the applicant entitled to $2,200.00 for a chronic pain assessment, recommended by Humber Civic Care Centre in a treatment plan submitted to the respondent on November 13, 2019 and denied November 15, 2019?

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

RESULT

4The applicant has demonstrated entitlement to the first two treatment plans for chiropractic services, submitted to the insurer of February 5, 2019 and March 27, 2019. The respondent is liable to pay $5,006.42 plus interest calculated in accordance with s. 51 of the Schedule. The applicant has not proven the remaining treatment plans for chiropractic services to be reasonable and necessary as a result of the accident. He has also failed to prove entitlement to the chronic pain assessment.

ANALYSIS

5To be eligible for the medical benefits he seeks in this application, the applicant bears the onus of establishing, on a balance of probabilities, that the expenses he claims are reasonable and necessary as a result of the accident.² This is the test for eligibility for medical benefits under s. 15 of the Schedule.

6The applicant claims that he is entitled to a total of $10,516.20 in chiropractic treatment, proposed in five treatment and assessment plans (OCF-18s) submitted to the respondent between February 2019 and January 2020. He also claims the cost of a Chronic Pain Assessment proposed in a treatment plan submitted November 13, 2019.

7The applicant sustained uncomplicated, soft tissue injuries in the accident. This is documented in the records of the walk-in clinic the applicant attended the day after the accident, where he was diagnosed with acute inflammation in both shoulders and prescribed anti-inflammatory drugs.

8The applicant did not see his family doctor, Dr. Banach, until December 5, 2018, over four months after the accident. Dr. Banach’s clinical note from this visit documents the applicant’s complaint of ongoing neck, back, and shoulder pain, but that his pain was “better overall”. He reported that he had begun attending physiotherapy one month earlier, when “someone told him to go do something” about his pain, and that his pain got worse if he didn’t attend physiotherapy. Dr. Banach diagnosed “msk back pain, neck pain, shoulder pain – chronic” and queried rotator cuff tendinitis. He referred the applicant to a physiatrist, counselled him to continue with physiotherapy, and prescribed Advil for pain.

9On January 28, 2019, the applicant attended a consultation with Dr. T. Han, a physical medicine specialist. Dr. Han opined that the applicant had suffered “no serious injuries nor any significant initial pain” in the accident. He noted that the applicant’s discomfort arose about one month after the accident, and that his pain was aggravated when performing his job duties in a warehouse. Dr. Han observed no obvious weakness, no “red flag symptoms”, and had “no specific reason to believe that [the applicant’s] pains are anything more than myofascial strain/spasm”. Nonetheless, Dr. Han recommended that the applicant continue with physiotherapy and referred him to a chronic pain specialist to consider injection therapy.

10The applicant attended the chronic pain clinic of Dr. G. Karmy from March to September 2019. Diagnostic imaging of his cervical spine in March 2019 was normal and showed no cause for his pain. Dr. Karmy noted that the applicant’s past treatments had yielded no long-term improvement in functionality. Dr. Karmy also noted that the applicant was struggling to perform at his physically demanding warehouse job. However, the applicant’s physical and neurological exam results were normal. Dr. Karmy diagnosed chronic mechanical neck and lower back pain, sacroiliac dysfunction, and chronic headaches. He prescribed Advil for pain.

11In May of 2019, the applicant was assessed by Dr. L. Weisleder, orthopedic surgeon, at the request of the respondent. Dr. Weisleder diagnosed uncomplicated soft tissue injuries resulting from the accident, including strains of the cervical, thoracic, and lumbar spine. Dr. Weisleder opined that the applicant had already been appropriately treated for those injuries, and that additional treatment was unlikely to be of additional benefit. Dr. Weisleder noted, however, that the applicant might benefit from nerve block injections through the chronic pain clinic.

12Although the applicant was investigated for vestibular vertigo by neurologist Dr. P. Ranalli in June of 2019, his neurological exam was normal, and there is no suggestion that the dizziness symptoms prompting the investigation, which arose in December 2018, were linked to the accident.

13The applicant underwent an MRI of the cervical spine on November 26, 2019, which revealed mild degenerative changes.

14The applicant was assessed by general practitioner Dr. P. Jugnundan in January 2020 at the respondent’s request. Dr. Jugnundan diagnosed soft tissue injuries arising form the accident: upper and low back left sided mechanical back pain with no neurological findings. Although Dr. Jugnundan noted that the applicant had already been assessed and treated at a chronic pain clinic, making the claimed chronic pain assessment duplicative an unnecessary, he did opine that the applicant was probably not at maximum medical recovery, as the outcome of a recent round of amitriptyline treatment was yet unknown.

15Dr. McCutcheon, a psychologist, assessed the applicant at the request of the respondent on January 30, 2020. In her clinical interview, the applicant reported that he received temporary relief from physiotherapy, and that although he did not feel disabled, he did feel physically limited.

Findings

16I am alive to the fact that Drs. Banach and Han recommended in December 2018 and January 2019 that the applicant continue with physiotherapy. The fact that these recommendations were made supports, in part, the reasonableness and necessity of the disputed treatment interventions. However, Dr. Karmy, the only chronic pain specialist to have given evidence in this hearing, noted that the applicant’s past treatment (consisting of physiotherapy) had yielded no long-term improvements. Instead, he recommended injection therapy, a different course of treatment.

17Additionally, Dr. Weisleder opined that by May 2019, the applicant’s injuries had already been appropriately treated and that further treatment would be unlikely to yield additional benefit. Considering the uncomplicated nature of the applicant’s soft tissue injuries, I find Dr. Weisleder’s opinion to be reasonable.

18The evidence suggests that the physiotherapy the applicant received for his accident-related injuries failed to yield anything more than temporary relief from discomfort. While pain relief can be a legitimate treatment goal, I must evaluate whether the disputed interventions were reasonable and necessary at the time they were proposed. Aside from the recommendations of Dr. Banach and Dr. Han in December 2018 and January 2019, there is no medical evidence in the record before me to support the necessity of ongoing physiotherapy.

19In addition, there is evidence that factors other than the accident, such as the physical demands of the applicant’s warehouse job and degenerative changes in his cervical spine, may have contributed to his pain symptoms. There is an apparent disconnect between the applicant’s observable accident-related injuries, which were minor and uncomplicated, and his residual pain, which he rated at the severe end of the pain scale. While there is evidence to suggest that other treatment measures such as injection therapy and amitriptyline may have aided the applicant well after the accident, I accept the opinions of Dr. Weisleder and Dr. Jugnundan that ongoing physical therapy close to a year or more after the accident would be unlikely to yield therapeutic benefit.

20In short, the balance of the evidence before me does not establish the reasonableness and necessity of physical therapy past May 6, 2019, the date of the applicant’s orthopedic surgery assessment with Dr. Weisleder. Beyond that date, no medical professional whose records are in evidence recommended that the applicant continue with this mode of treatment.

21Finally, I accept the opinion of Dr. Jugnundan that an additional chronic pain assessment would be duplicative, and therefore unnecessary, given that the applicant had already been assessed and treated at a chronic pain clinic at the time the assessment was proposed. The stated purpose of the proposed assessment, as set out in the OCF-18, was “to uncover the consequences resulting from the accident and the effect of the accident on the patient's physical ability and social limitations.” In addition, the assessment would “aid in establishing the current diagnosis, extent of the injuries, prognoses and recommendations for recovery.” I find that an additional assessment would be unlikely to add value in these respects. There appears to be little disagreement among the medical assessors as to the applicant’s accident-related diagnoses, and the applicant had already been evaluated and treated through a chronic pain facility. There are no recommendations for further assessment from the applicant’s treating or consulting physicians. For these reasons, I conclude that the disputed assessment is neither reasonable nor necessary as a result of the accident.

22The evidence supports the applicant’s entitlement to the first two treatment plans for chiropractic care. The applicant has not demonstrated that the remaining medical benefits, including the three remaining chiropractic care plans and the chronic pain assessment, are reasonable and necessary as a result of the accident.

CONCLUSION

23The applicant is entitled to $5,006.42 for chiropractic services as proposed in the treatment plans submitted to the insurer on February 5, 2019 and March 27, 2019. He is also entitled to interest on that amount calculated in accordance with s. 51 of the Schedule. He is not entitled to the remaining treatment plans for chiropractic care. He has not demonstrated entitlement to the chronic pain assessment.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance Co., 2015 ONSC 3635.