Citation: Singh vs. Aviva General Insurance, 2021 ONLAT 19-005398/AABS

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:

Jasraj Singh

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Kathleen Mertes, Counsel

HEARD

By way of written submissions

OVERVIEW

1Jasraj Singh (“applicant”), was involved in an automobile accident on August 7, 2017(“accident”). The applicant sought benefits from Aviva General Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 20 years old at the time of the accident. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was removed from the Minor Injury Guideline (“MIG”) on November 5, 2018 as a result of psychological impairment.

3The 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

4The issues to be decided in this hearing are:

i. Is the applicant entitled to receive a medical benefit in the amount of $2,346.68 for goods and services of a medical nature recommended by Complete Physiotherapy Centre in a treatment plan submitted February 21, 2018 and denied on March 5, 2018?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,846.67 for chiropractic treatment recommended by Complete Physiotherapy Centre in a treatment plan submitted July 19, 2018 and denied on July 26, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,785.60 for goods and services of a medical nature recommended by Complete Physiotherapy Centre in a treatment plan submitted September 11, 2018 and denied on September 25, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $3,176.61 for goods and services of a medical nature recommended by Complete Physiotherapy Centre in a treatment plan submitted April 5, 2019 and denied on April 10, 2019?

v. Is the applicant entitled to payment for the cost of examinations in the amount of $2,680.00 for an orthopaedic assessment recommended by Complete Rehab in a treatment plan submitted May 9, 2019 and denied on May 22, 2019?²

vi. Is the applicant entitled to payment for the cost of examinations in the amount of $2,460.00 for a chronic pain assessment recommended by Complete Rehab in a treatment plan submitted August 27, 2019 and denied on September 5, 2019?

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

RESULT

5The applicant is not entitled to the disputed treatment plans in issues i, ii, iii, iv or vi as the applicant has failed to prove that they are reasonable and necessary. Issue v was withdrawn at the hearing. No interest is payable.

LAW

6Sections 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.³

ANALYSIS

Are the Four Disputed Physical Therapy Treatment Plans Reasonable and Necessary?

7All four disputed treatment plans described in issues i, ii, iii and iv are made by Denesh Tamakulalla, applicant’s physiotherapist, and propose various physical therapies and services. Each treatment plan describes the applicant’s injuries from the accident as whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, sprain and strain of sacroiliac joint, of thoracic and lumbar spine, of shoulder joint, rotator cuff capsule, sprain and strain of other and unspecified parts of knee and ankle, unspecified, disorders of initiating and maintaining sleep (insomnias), nightmares, mixed anxiety and depressive disorder and irritability and anger. Each treatment plan has the same goals, specifically pain reduction, increased range of motion, increase in strength and “increase cardiovascular fitness levels, increase strength, endurance and flexibility, improve motor control of lumbopelvic and cervicothoracic muscles” with the $2,346.68 treatment plan having an additional functional goal of return to modified work activities.

8The applicant submits that all four disputed treatment plans are reasonable and necessary as the applicant reported ongoing injuries of his back and neck to Dr. Mohammed, respondent’s physician, at assessments on July 17, 2018 and August 9, 2018, more than one-year post-accident. Therefore, the applicant’s his complaints and injuries did not resolve, and the applicant has not reached maximum medical recovery.

9The respondent submits that the four disputed treatment plans are not reasonable and necessary. The respondent relies on the opinions of Dr. Mohammed.

10I find that the applicant is not entitled to any of these four disputed treatment plans because the applicant has not provided sufficient evidence to meet his burden of proof that any of them are reasonable and necessary. The following are my reasons.

11The records of the applicant’s family physician, Dr. Singh, do not consistently support the disputed treatment plans for physical therapies which were proposed in 2018 and 2019. Dr. Singh recommends physiotherapy on August 10, 2017 and on August 30, 2017, shortly after the accident. On October 10, 2017 Dr. Singh diagnoses muscular pain and November 27, 2017 diagnoses symptoms of “mild PT stress” but does not recommend physical therapies at either visit.

12In February 2018 the applicant saw Dr. Singh for right knee pain from playing basketball. A right knee x-ray was unremarkable, and Dr. Singh recommended that the applicant continue strengthening exercises. On November 16, 2018 and again on April 25, 2019 Dr. Singh notes that the applicant “…does not get time to go to physiotherapy but self-management exercises do help” which tends to indicate that the self-management exercises are helping.

13Dr. Singh recommends the applicant continue with self-management exercises in April 2019. Dr. Singh does not recommend any facility-based physical therapy after October 2017 until May 2019, more than one- and one-half years post-accident when he recommends physiotherapy for the applicant’s right knee. In September 2019 Dr. Singh notes recommends “…continue physical therapy – needs PT ongoing sx – insurance has paused his rx”.

14I prefer the evidence of Dr. Mohammed whose reports do not establish that the disputed treatment plans are reasonable and necessary but establish that they are not. Dr. Mohammed assessed the applicant in-person on July 17, 2018 specifically with respect to the earliest disputed treatment plan dated February 21, 2018 for $2,346.68 and by paper review August 9, 2018. Following the July, 2018 assessment Dr. Mohammed opined that from a musculoskeletal perspective, the applicant had sustained sprain/strain of the cervical spine (WADI) and lumbar spine along with a non-specific injury to the right knee which are uncomplicated soft-tissue injuries consistent with “minor injuries” as defined in the Schedule, apart from soft tissue injuries the applicant did not exhibit an impairment as a direct result of the accident and concluded that the proposed treatment plan was not reasonable and necessary. As part of the review, Dr. Mohammed reviewed three treatment plans, two of which are in dispute here.⁴ Following the paper review in August, 2018, Dr. Mohammed confirmed his previous opinion that the applicant suffered soft tissue injuries as a result of the accident and also opined that no further benefit is anticipated from facility-based therapy at this time. Given that Dr. Mohammed has assessed the applicant on two separate occasions specifically with respect to proposed facility-based physical therapy and specifically reviewed the two earliest disputed treatment plans for physical therapy, I prefer Dr. Mohammed’s evidence over that of Dr. Singh.

15The applicant’s submission that his self-reporting of ongoing injuries of his back and neck to Dr. Mohammed at the in-person assessment which was more than one-year post-accident establish the reasonableness and necessity of the four disputed treatment plans is not persuasive. Dr. Mohammed reports that he reached his conclusions based on a physical examination of the applicant and review of documentation despite the applicant’s subjective self-reporting.

16The applicant’s submissions that his complaints and injuries did not resolve, and he has not reached maximum medical recovery are also not persuasive. Although Dr. Mohammed does not use this language in his reports, his conclusion that there would be no further benefit from facility-based therapy at this time are at odds with these arguments.

17I am not satisfied that the goals of the four disputed physical therapy treatment plans are reasonable and necessary. The weight of the medical evidence indicates that the applicant has no significant accident-related ongoing injuries which would benefit from the physical therapies proposed. Further the November 16, 2018 and April 25, 2019 records of Dr. Singh noting that the applicant does not get time to go to physiotherapy tend to indicate the applicant, a post graduate student, may not consider the facility based physical therapies reasonable and necessary. The applicant has the burden of bringing forward persuasive medical evidence demonstrating that the goals of this treatment plan are reasonable and necessary as a result of injuries sustained in the accident, that the goals are being met to a reasonable degree and that the overall cost is reasonable and he has not satisfied that burden.

18As a result, I find these four disputed treatment plans are not reasonable or necessary.

Are the Treatment Plan for Chronic Pain Assessment Reasonable and Necessary?

19The applicant submits that the chronic pain assessment is reasonable and necessary in order to assess whether the applicant suffers from chronic pain syndrome. The applicant relies on the diagnosis of chronic pain by Dr. Siddiqui, his physician, of chronic pain and his pain complaints to Dr. Singh.

20The respondent submits that the applicant has not proven this cost is reasonable and necessary and relies on the report of Dr. Gelman, respondent’s physician.

21I find that the applicant is not entitled to the payment of the chronic pain assessment because he has not established, on a balance of probabilities that it was reasonable and necessary to assess whether the applicant suffers from chronic pain syndrome for the following reasons.

22According to Dr. Singh’s records, although there are some complaints of pain, there is no record of the pain being severe enough to be associated with chronic pain syndrome. To the contrary, Dr. Singh’s records show that the applicant was playing basketball some six months post-accident, was able to carry on with his post-graduate education, was too busy to attend physical therapy in 2018 and 2019 and was able to perform some physical exercises at home.

23Further, the applicant sought treatment from Dr. Singh for accident-related pain infrequently in the two years post-accident. Dr. Singh at no time diagnosed chronic pain syndrome or referred the applicant to a chronic pain physician for further investigation.

24The applicant’s chronic pain assessment completed by Dr. Siddiqui, the applicant’s physician, November 18, 2019 relies substantially on the self-reporting of the applicant. There is no indication in Dr. Siddiqui’s report that he was provided with or reviewed any of the applicant’s medical records as part of his assessment process. The clinical basis for Dr. Siddiqui’s opinion is not sufficiently explained and is not supported by the records of Dr. Singh. Further, Dr. Siddiqui does not diagnose the applicant with chronic pain syndrome but with “chronic myofascial pain” and sprain and strain type injuries as well as “non-restorative sleep, anxiety with posttraumatic stress and sciatica”. Dr. Siddiqui notes that the applicant takes one extra-strength Tylenol per day. For these reasons I give Dr. Siddiqui’s opinion little weight.

25This proposed treatment plan is two years post-accident. In the two years between the accident and this proposed treatment plan, the weight of the evidence, including the records of Dr. Singh, considered in totality, does not indicate that a chronic pain assessment is warranted.

26The applicant’s ability to carry on his activities, even if limited in some respects, is not consistent with the severe, debilitating pain associated with chronic pain syndrome. Little evidence has been put forward by the applicant that the proposed chronic pain assessment is warranted. This is the applicant’s burden to prove and I find on the evidence submitted by the applicant that he has failed to do so.

27The cases cited by the applicant are also unpersuasive as they are other Tribunal decisions which are not binding on me and, more importantly, specific to their medical facts.

Interest

28As no benefits are payable, no interest is payable.

ORDER

29For the reasons outlined above, the applicant is not entitled to the disputed treatment plans in issues i, ii, iii, iv or vi as the applicant has failed to prove that they are reasonable and necessary. Issue v was withdrawn at the hearing. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2This issue was withdrawn at para 14 of Applicants submissions.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
4. 4The treatment plans described in issues i and ii above.```