Damiani v. Aviva Insurance Company, 2021 CanLII 11859

Citation: Damiani v. Aviva Insurance Company, 2021 CanLII 11859

Released: January 22, 2021

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:

Philippa Damiani

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Neisha Moses, Paralegal

For the Respondent:

Aimee Draper, Counsel

HEARD

By way of written submissions

OVERVIEW

1Philippa Damiani (“applicant”), was involved in an automobile accident on May 3, 2018(“accident”). The applicant sought benefits from Aviva Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent submits that the applicant is not entitled to the disputed treatment plans because they are not reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $5,425.09 for assistive devices recommended by IM-OT in a treatment plan (OCF-18) submitted on October 6, 2018, and denied on October 16, 2018?

ii. Is the applicant entitled to a medical benefit in the amount of $1,828.75 for chiropractic treatment recommended by Prime Healthcare in a treatment plan (OCF-18) submitted on March 28, 2019 and denied on April 10, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $1,848.50 for physiotherapy recommended by Iscope Concussion and Pain Centre in a treatment plan (OCF-18) submitted on March 28, 2019, and denied on April 10, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,771.50 for Botox treatment recommended in a treatment plan (OCF-18) submitted on January 30, 2019, and denied on February 14, 2019?

v. Is the applicant entitled to a cost of examination in the amount of $2,486.00, for a diagnostic nuclear imaging assessment recommended by Iscope Concussion and Pain Centre in a treatment plan (OCF-18) submitted on April 23, 2019, and denied on April 30, 2019?

vi. Is the applicant entitled to a medical expense in the amount of $1,519.85 for pilates submitted on an expense form (OCF-6) on June 6, 2019, and denied on June 12, 2019?

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

RESULT

4The applicant is not entitled to the five treatment plans for assistive devices for $5,425.09, chiropractic treatment for $1,828.75, physiotherapy for $1,848.50, Botox treatment for $1,771.50, cost of examination for diagnostic nuclear imaging assessment for $2,486.00. The applicant is not entitled to the pilates expense for $1,519.85. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

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 has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

Are the Disputed Treatment Plans Reasonable and Necessary?

Issue i – Assistive Devices for $5,425.09

6The applicant submits that she suffered injuries as a result of the accident including diagnosed traumatic brain injury, ongoing post-concussive syndrome, headaches and pain in her neck, shoulders and back. The applicant says she has restricted range of motion in the lumbar and cervical spine which impedes her ability to undertake simple and necessary tasks of daily living and cannot, for example, sit or stand. The restricted movement has resulted in severe instability when she walks and with other activities requiring any sort of motion.

7The applicant submits that this treatment plan by Stewart Sasha, applicant’s occupational therapist, which recommends 12 assistive devices is reasonable and necessary because she requires assistive devices as a result of her injuries from the accident. In addition to a documentation fee of $200.00, the devices proposed include a therapeutic mattress for $2,299.00, a recline lift chair for $1,699.00 and hand-held shower hose/head, bathtub seat, inner bath mat, outer foam bath mat, tub rail, back support, heat pad, hot/cold gel pack, cane and cervical pillow each of which items are less than $100.00 before tax. The goals of this treatment plan are to assist with managing the applicant’s activities of daily living, safe transfers and functional mobility.

8The respondent submits that Robert Campos, respondent’s occupational therapist opined that this treatment plan is not reasonable and necessary after assessing the applicant in December 2018.

9I find that the applicant is not entitled to the payment of $5,425.09 for any of the proposed assistive devices because the applicant has not provided sufficient evidence to meet her burden of proof that any of these devices are reasonable and necessary. Other than the disputed treatment plan itself, there is insufficient medical support for the use of these devices.

10Neither Dr. Seron, applicant’s family physician or Dr. Mehdiratta, applicant’s neurologist, recommend the use of any of these assistive devices. Dr. Mehdiratta noted that the applicant returned to work on modified duties and to driving in September 2018 some four months post-accident.

11The applicant relies on the functional ability evaluation report of Dr. Glenn Paul Uy II in the records of Prime Health Care. However, only excerpts of this report were put forward and not the whole report and it appears from the excerpts filed that a Tens unit and electric heat pad are the only devices recommended. The disputed treatment plan does not propose a Tens unit.

12To the contrary, Mr. Campos found that the applicant was able to sit for 90 minutes, walk for 40 minutes, lift and carry more than five pounds, transfers were independent and the applicant demonstrated the ability to climb stairs, kneel, crouch, squat, bend and reach. Mr. Campos opined that the applicant did not require assistive devices. I prefer the evidence of Mr. Campos. His complete report was filed. It shows Mr. Campos conducted a thorough assessment of the applicant.

Issues ii - Chiropractic Treatment for $1,828.75 and Issue iii - Physiotherapy for $1,848.50

13The applicant submits that the treatment plan of Dr. Chad Hefford, applicant’s chiropractor, submitted in March 2019, which recommends a total body assessment and total 24 sessions comprised of acupuncture, therapy and exercise is reasonable and necessary. The goals of this treatment plan include pain reduction, increase in strength and range of motion, restore full spine flexibility and return to activities of normal living.

14The applicant submits that the treatment plan of Himani Tuteja, applicant’s physiotherapist, submitted in March 2019 which recommends a total body assessment, document support and 12 sessions of physical rehabilitation is also reasonable and necessary. The goals of this treatment plan include pain reduction, increase in strength, vestibular/oculomotor control and return to pre-accident work activities.

15The respondent submits that the applicant was not demonstrating objective signs of improvement from either of these physical treatments and that Dr. Oshidari, its physiatrist, opined that the applicant had reached maximum medical recovery and did not require further facility based treatment in the April 11, 2019 report and the April 25, 2019 paper review report. The respondent also submits that the applicant has incurred only $662.02 of the chiropractic treatment and $499.25 of the physiotherapy treatment.

16I find that the applicant is not entitled to the payment of these two disputed treatment plans because she has not provided sufficient evidence to demonstrate that they are reasonable and necessary. These two disputed treatment plans were both submitted in March 2019, some ten months post-accident. Although the applicant submits that Dr. Dhanoa recommended the chiropractic sessions and stated that the applicant’s movement improved with physiotherapy, there is insufficient medical evidence to explain why the applicant failed to complete the full course of treatments and incur the full cost.

17Absent persuasive evidence to the contrary, the failure to complete both treatments tends to indicate the applicant may not have found these treatments sufficiently reasonable and necessary for her to continue. This would be consistent with Dr. Oshidari’s opinion that the disputed treatment plan for chiropractic services in the amount of $1,828.70 is not reasonable and necessary, that the applicant has reached maximum medical recovery and does not require further facility-based treatment some ten months post-accident. Given Dr. Oshidari’s specialized training and experience in physiatry and the fact that he reviewed the applicant’s medical condition in two reports, I prefer Dr. Oshidari’s opinion over those of Dr. Dhanoa and Dr. Glenn Paul UY II.

Issue iv - Botox Treatment for $1,771.50

18The applicant submits that the treatment plan of applicant’s physician, Dr. Rosso, which recommends assessment, preparation, document support and one session of Botox is reasonable and necessary. The goals of this treatment plan include pain reduction, increased range of motion, return to activities of normal living, return to modified work activities and return to pre-accident work activities. The applicant submits that Dr. Mehdriatta, an experienced neurologist, also recommends Botox treatment for her headaches.

19The respondent submits that Dr. Oshidari, opined that this treatment plan is not reasonable and necessary as only one medication was tried for a short period of time for her headache and another pharmacological agent should be tried before considering invasive treatment with Botox injection. Dr. Oshirdari recommended a neuropsychological assessment be arranged through the applicant’s family physician and that the applicant try different medication for headaches and aquatic therapy.

20I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. Dr. Rosso is a radiologist and does not appear to have any specialized training in therapeutic Botox injections. Further, although Dr. Mehdriatta also recommends this proposed treatment, there is no evidence before me that the applicant has received this treatment and incurred this cost. As a result, there is also no evidence before me that the treatment has been effective for the applicant and that the goal of this treatment plan is being met. The cost of this treatment plan is not reasonable and necessary.

Issue v - Diagnostic Nuclear Imaging Assessment for $2,486.00

21The applicant submits that the treatment plan of Dr. Mehdriatta which recommends a SPECT scan to diagnose the applicant’s brain injury is reasonable and necessary.

22The respondent submits that the applicant’s family physician previously referred the applicant to Dr. Mehdiratta for completion of a SPECT exam and therefore this treatment plan is not reasonable and necessary as it is a duplication.

23I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. Dr. Mehdriatta, the author of this disputed treatment plan does not acknowledge that the applicant had a SPECT scan in December 2018 at his request or sufficiently explain why a second scan should be done. Although Dr. Rosso also recommends further neuroimaging and suggests urgency, there is no evidence before me that the applicant has received this treatment and incurred this cost. As a result, there is also no evidence before me that the treatment has been effective for the applicant and that the goal of this treatment plan is being met. The cost of this treatment plan is not reasonable and necessary.

Issue vi – Pilates for $1,519.85

24The applicant submitted to the respondent an OCF-6, expense form, dated June 6, 2019 in the amount of $1,519.85 for pilates and submits that this expense is reasonable and necessary and has assisted with the applicant’s recovery.

25The respondent submits that all medical expenses must be submitted on an OCF-18, treatment plan, and must be approved prior to being incurred, neither of which the applicant did here. The respondent submits that it is not responsible for the payment of expenses not submitted in accordance with the Schedule, and that there is no contemporaneous objective medical evidence to support that this expense is reasonable and necessary as a result of the accident.

26I find that the applicant is not entitled to the payment of $1,519.85 for pilates because this proposed treatment was not recommended by a health practitioner in an OCF-18, treatment plan submitted before this cost was incurred as required by s. 38(2) of the Schedule. According to the information submitted by the applicant, she completed the pilates sessions in 2018 and 2019 with the last session in May 2019, before the OCF-6 was submitted to the respondent on June 6, 2019. The applicant did not seek prior approval. Further, the applicant has not provided sufficient contemporaneous objective medical evidence to meet her burden of proof that it is reasonable and necessary.

Interest

27As no benefits are payable, no interest is payable.

ORDER

28For the reasons outlined above, the applicant is not entitled to the five treatment plans for assistive devices for $5,425.09, chiropractic treatment for $1,828.75, physiotherapy for $1,848.50, Botox treatment for $1,771.50, cost of examination for diagnostic nuclear imaging assessment for $2,486.00. The applicant is not entitled to the pilates expense for $1,519.85. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).