Released Date: 02/26/2021
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:
Atiba Ralph
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Arthur Semko, Paralegal
For the Respondent:
Sarah Fasih, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on October 8, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 While the applicant is not subject to the Minor Injury Guideline, Aviva denied the benefit in dispute on the basis that it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
a. Is the applicant entitled to $4,470.00 for physiotherapy treatment, recommended by Knead Wellness in a treatment plan (OCF-18) dated May 29, 2019?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the applicant entitled to an award under s. 10 of O. Reg. 664 due to Aviva unreasonably withholding or delaying the payment of benefits?
RESULT
3The applicant has not demonstrated that the treatment plan in dispute is reasonable and necessary or payable. He is not entitled to interest or an award.
ANALYSIS
Is the treatment plan reasonable and necessary?
4In order to be entitled to a medical benefit under s. 15 of the Schedule, the onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary. The treatment goals should be reasonable, the goals of treatment should be met to a reasonable degree and the overall costs of achieving the goals of treatment should be reasonable.
5The OCF-18 in dispute is dated May 29, 2019 and recommends treatment sessions for chiropractic (22), physiotherapy (22) and massage (14) totalling $4,470.00, plus $200 each for OCF completion and a reassessment. The goals of the plan include pain reduction, increased range of motion, increase in strength, a return to activities of normal living, recovery of muscular strength, agility, power, coordination and endurance. Notably, this OCF-18 followed a nearly identical treatment plan from the same clinic dated October 11, 2018 that was approved by Aviva and seemingly incurred by the applicant.
6The applicant submits the goals are reasonable for someone who sustained injuries in a car accident, and whose multiple previous injuries (including a previous accident in 2017 and a gun shot to the leg that required surgery in 2009) were exacerbated by the accident. The applicant further submits that his family physician, Dr. Ramzan, noted that physiotherapy is helping him because his condition has been so severe that his pain management was supplemented by narcotics. The applicant points to Dr. Ramzan’s letter where she agreed with the recommendations in the OCF-18 in dispute, and strongly recommended physiotherapy, massage therapy, and a proper rehabilitation program to help with ensuring maximal improvement in his condition. To this end, the applicant submits that the goals are being met to a reasonable degree. Finally, the applicant submits that the overall cost of the OCF-18 is within the FSCO guidelines, and thus it is reasonable because his documented improvement supports the degree of success that the plan has achieved.
7In response, Aviva submits that the applicant’s submissions do not address the reasonableness and necessity of the disputed treatment plan for injuries sustained in the accident, as the applicant has not produced compelling medical evidence to substantiate an ongoing accident-related impairment for which additional treatment would be reasonable and necessary. Further, Aviva raises a causation issue, arguing that the applicant has failed to establish, on a balance of probabilities, that his medical condition would not exist but for the accident.
8Aviva submits that the applicant’s only attendance with his family doctor in relation to the accident was on October 17, 2018, nine days following the accident, at which time, his complaints included low back pain, minimal neck pain, and sleep difficulties. As a result, Aviva alleges there is insufficient evidence of any accident-related aggravation of the applicant’s chronic pain symptoms, as the applicant did not return to his family doctor in relation to any accident-related injury or aggravation. It relies on the s. 44 assessment report of Dr. Levine, G.P., from January 15, 2020, which found no evidence of an ongoing impairment attributable to the accident and, after more than one-year post-accident, it was likely that the applicant had reached maximum medical recovery for the soft-tissue injuries sustained in the subject accident.
9I agree with Aviva. As noted, this OCF-18 follows an identical treatment plan that was incurred by the applicant. In this vein, I find the applicant did not meet his burden to demonstrate why an entire slate of identical treatment from the same provider at the same frequency and cost was reasonable and necessary if the previous treatment was achieving the stated goals, which the applicant submits it was. Indeed, after 22 weeks of treatment post-accident—and with no follow-up visits to his family physician in between—it would be reasonable to assume that there would be a ramp down in future treatment to account for the applicant’s progress as he approached maximal medical recovery from what appears to be relatively minor injuries sustained in the 2018 accident.
10On review of the OCF-18, this is not the case, as the clinic has recommended more of the same—including 22 more weeks of chiropractic and physiotherapy treatment and 14 of massage—despite the applicant claiming that treatment has been beneficial, and that he has made progress. While pain relief is a legitimate goal for treatment, it does not follow that Aviva is obligated to fund treatment simply to relieve pain if the applicant has achieved his maximal medical recovery. Indeed, it is rather apparent that the clinic simply copied the previously approved treatment plan without tailoring the proposed treatment to the applicant’s progress or identifying how it may lead to his maximal medical recovery. This calls into question whether the goals of treatment were being met to a reasonable degree and whether the overall costs of achieving the goals of treatment moving forward, at $4,470.00, is reasonable. The applicant’s submissions on this are somewhat generic.
11In my view, this also lends support to Dr. Levine’s opinion in his s. 44 report that the applicant “had likely reached maximal medical recovery, with ongoing pain likely to be more related to the pre-existing chronic lower back and right ankle pain than to the soft-tissue injuries sustained in the accident in October 2018.” Dr. Levine’s assessment found no objective clinical findings “indicative of significant residual musculoskeletal impairment” directly related to the 2018 accident, finding that “additional facility-based physical therapy is unlikely to result in significant additional improvement in the accident-related musculoskeletal injuries at this juncture in the claimant’s recovery and would not be considered reasonably required.” While the applicant points to Dr. Levine’s use of the word “likely” as grounds for support for the treatment plan, I am not persuaded that this renders the OCF-18 reasonable and necessary.
12While I accept that the applicant’s 2009 ankle surgery and pain may continue to hinder him, I agree with Aviva that the fact that these impairments continue to be exacerbated suggest that he has likely achieved his maximal medical recovery. On the medical evidence, it is difficult to find how the minor 2018 accident exacerbated impairments from 2009 and 2017 to the point where ongoing facility-based treatment of a similar nature is required. Dr. Ramzan’s October 17, 2018 post-accident clinical note does not mention that the applicant re-injured his ankle in the accident, only that he had neck/low back pain. There are then no additional notations in evidence until September 2019 where, while there is mention of ankle pain, it is not tied to the accident. There is no mention of back pain. While I accept that the applicant was being treated by the clinic during this time, with respect, the clinic’s treatment notes and recommendations are not objective medical evidence to support the treatment plan.
13Finally, I do not find Dr. Ramzan’s October 20, 2020 medical opinion letter to be particularly helpful to the applicant’s case, as it references the applicant’s 2009 surgery, his 2017 accident and a more recent August 2020 accident but does not actually address the 2018 accident or explain how his impairments were affected by that specific accident where there was only two visits to her office, as mentioned above. While she does address the OCF-18 in dispute retroactively, her opinion was made 15 months after the treatment plan was submitted and after the applicant had just been in a subsequent accident, so I attribute it limited weight. Confusingly, she states that she agrees with the “recommendations and limitations” described in Dr. Levine’s report, only to then state that due to the applicant’s most recent accident, being the one that occurred in August 2020, that “further rehabilitation is required due to the acute nature.”
14Accordingly, on a balance of probabilities, I find the applicant has not met his burden to prove that the treatment plan is reasonable and necessary. As no benefits are overdue, it follows that no interest is payable under s. 51.
Section 10 Award
15In submissions, the applicant sought a 50% award in the amount of $2,235.00 under s. 10 of O. Reg. 664, submitting that there is “excessive evidence supporting the disputed treatment plan” and that Aviva “mishandled his accident benefits claim.” Under s. 10, the Tribunal may award up to 50% of the total benefits claimed if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
16I find an award is not appropriate. The applicant’s submissions on his entitlement to a s. 10 award are confined to the above, which fall well-short of the specifics necessary to attract an award, let alone an award of 50%, which is the maximum amount the Tribunal can order and which would require concrete evidence that Aviva completely abrogated its duty to the applicant. There is no evidence to suggest that Aviva unreasonably withheld or delayed the payment of benefits. In any case, the applicant was not successful in meeting his substantive burden, so it follows that the Tribunal cannot order an award.
ORDER
17The applicant has not demonstrated that the treatment plan in dispute is reasonable and necessary or payable. He is not entitled to interest or an award.
Released: February 26, 2021
__________________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.