Released: January 28, 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:
Jennifer Maxwell
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Doha Tambal, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on October 6, 2016, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Aviva denied the benefit in dispute on the basis of its determination that the applicant had reached maximal medical recovery from her accident-related impairments and that further treatment 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 $2,065.00 for chiropractic treatment, recommended by Muhammad Siddique in a treatment plan (OCF-18) submitted on October 30, 2019, and denied on November 14, 2019?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the proposed treatment is reasonable and necessary or payable. As no benefits are overdue, no interest is payable.
ANALYSIS
Is the treatment plan reasonable and necessary?
4In order to receive payment for a rehabilitation benefit under the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary to treat her accident-related impairments. To do so, she must demonstrate that the goals of the plan are reasonable, that these goals are being met to a reasonable degree, and that the overall cost of achieving these goals is reasonable.
5The plan proposes $2,065.00 for 20 sessions of therapy at multiple body sites with the stated goals of pain reduction, increasing strength, range of motion, return to activities of normal living and pre-accident work activities. The injuries identified in the plan are the applicant’s arthritis, WADII, and injuries to the muscles and tendons of the rotator cuff. The applicant submits that pain relief is a legitimate goal for treatment and, due to the fact that her pain has not resolved, the length of time since the accident, and her limitations, that further treatment “will be beneficial in determining the exact nature of her syndrome.”
6I find that the applicant has not met her burden to prove that the treatment is reasonable and necessary because the applicant has not demonstrated that further facility-based treatment is beneficial or that her ongoing pain is as a result of the accident and not her well-documented struggle with rheumatoid arthritis. While I agree with the applicant that pain reduction can be a legitimate goal for treatment, with respect, I am not persuaded that her ongoing pain is as a result of the accident to justify payment for more physical treatment that she reported was no longer beneficial for seemingly minor injuries sustained over four years ago. Her submission that treatment is reasonable and necessary in order to determine “the exact nature of her syndrome” is vague and not, in my view, an appropriate goal for treatment. If we did not already know the exact nature of her syndrome—juvenile rheumatoid arthritis—this would be an appropriate goal for an assessment, however, that type of benefit is not in dispute.
7In any case, the clinical notes and records are not particularly helpful for the applicant. Dr. Cividino’s April 2017 note indicates that the applicant’s neck pain has “improved significantly” and with regards to physiotherapy, that she “does not feel that it is doing that much for her at this time.” His June 2018 note indicates that the applicant stopped participating in treatment entirely in favour of a swimming and medication regimen “because she derives more benefit from that.” Treatment notes from South Coast Physio indicate pain due to lifting water, swimming and gardening and taper off in 2017. A 2019 note from Dr. Takach indicates that her shoulder pain is a result of carrying a heavy briefcase. More recent notes from 2019 and 2020 related to pain complaints in the applicant’s hands, fingers, shoulder, neck, knee and hips do not link the applicant’s pain to the 2016 accident at all. Suffice to say, I find it is evident that this ongoing pain is related to the applicant’s rheumatoid arthritis.
8To this end, I would not give effect to her inference that she suffers from chronic pain as a result of the accident therefore justifying the treatment in dispute. First, the applicant did not direct me to an actual diagnosis of chronic pain or chronic pain syndrome. Second, her submissions do not engage with any of the criteria provided by the AMA Guides that would assist her in demonstrating that she suffers from chronic pain as a result of the accident and in the absence of a diagnosis. Third, I find that she has not demonstrated that her pain or “flare up” in Fall 2019 was as a result of the 2016 accident and not her rheumatoid arthritis, which clearly does affect her. In any case, her submissions do not adequately demonstrate how this specific treatment will address her specific impairments or why the cost of same is reasonable or why 20 sessions are required where she stopped treatment in 2018 because she was no longer deriving benefit from it.
9Indeed, I find this position is supported by the s. 44 Insurer’s Examination report of Dr. Kopyto, dated December 2, 2019. In his report, which formed the basis of Aviva’s denial of the treatment plan, Dr. Kopyto provided the opinion that the applicant had achieved maximal medical recovery from her accident-related impairments after being provided with adequate facility-based treatment to date, and that there is no ongoing impairment identified that would be considered to be directly attributable to the injuries the applicant sustained in the 2016 accident. At the assessment, the applicant reported that she derives benefit from her pain-relieving injections, from medication and from cannabis. Notably, the applicant did not report that physiotherapy was helpful and acknowledged discontinuing it. Contrary to the applicant’s claim that Dr. Kopyto did not consider her pre-existing condition in arriving at his determination, I note that in addition to a physical examination, Dr. Kopyto reviewed the clinical notes and records of both Dr. Takach and Dr. Cividino in assessing the applicant’s medical history, as I have done above. I find Dr. Kopyto’s report persuasive and I find no reason to interfere with his determination that further treatment is not reasonable and necessary.
ORDER
10The applicant is not entitled to payment for the treatment plan in dispute as she has not demonstrated that it is reasonable and necessary. As no benefits are overdue, it follows that no interest is payable.
Released: January 28, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.