Release date: 2021/03/15
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:
Alan Ross McAdam
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Michael Lee, Counsel
For the Respondent:
Hyla Korn, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant was involved in a motorcycle accident on August 1, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 While the applicant has received treatment outside of the Minor Injury Guideline, Avia denied the benefits on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The parties agree that the following issues are in dispute:
a. Is the applicant entitled to receive a medical benefit in the amount of $2,773.48 ($3,787.16, less $1,013.68 approved by the respondent) for physiotherapy treatment, recommended by Newmarket Health and Wellness Centre in a treatment plan dated July 13, 2017, and denied by the respondent on November 2, 2017?
b. Is the applicant entitled to receive a medical benefit in the amount of $3,958.61 for physiotherapy treatment, recommended by Newmarket Health and Wellness Centre in a treatment plan dated May 5, 2019, and denied by the respondent on October 10, 2019?
c. Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant has not demonstrated that either treatment plan is reasonable and necessary or that interest applies.
ANALYSIS
Are the treatment plans reasonable and necessary?
4In order to receive payment for medical and rehabilitative benefits under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment he seeks is reasonable and necessary. To meet his burden, the applicant should demonstrate that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving these goals are reasonable.
5As a result of the accident, the applicant sustained a right scapula and glenoid fracture, multiple rib fractures, chronic pain in his neck, right shoulder and lower back and chronic headaches. While he attended treatment at Newmarket Health and Wellness in the three years post-accident and reported that treatment has been effective in reducing his pain, the applicant did not attend treatment between the months of October and April as he spends his winters in Florida. The applicant submits that the treatment plans are reasonable and necessary to assist with pain reduction, increase his range of motion and strength and to reduce or eliminate the effects of his disability from the accident. He submits that the Tribunal has consistently held that pain relief is a legitimate goal for treatment and that Aviva did not provide a valid denial for the first treatment plan.
6In response, Aviva submits that the applicant’s submissions do not address the reasonableness and necessity of the treatment plans for injuries sustained in the accident and he has therefore failed to establish that any of the treatment plans in dispute identify reasonable treatment goals that were being met to a reasonable degree and that the cost of achieving those goals were reasonable. Aviva points to the fact that the applicant did not require treatment for 5-6 months of the year in the three years post-accident, that he has not produced contemporaneous notes from his family physician to objectively justify ongoing treatment and that the “only people recommending ongoing treatment to the applicant were employed by Newmarket Health and Wellness Clinic.” Its denials were based on s. 44 Insurer’s Examinations (“IEs”) that determined the treatment plans were not reasonable and necessary.
$2,773.48 for physiotherapy treatment
7At issue is a $2,773.48 balance from a partially approved OCF-18. Aviva partially approved the treatment on the basis of a s. 44 IE Chiropractic Assessment report by Dr. Polyvos, dated September 15, 2017. Aviva approved eight 1-hour sessions of exercise and passive treatments supervised by the recommending Chiropractor at the FSCO approved rate of $112.81, totalling $902.48; Resistance Tubing with handles at $41.20; and OCF completion at $70.00. The balance pertains to a reassessment, a progress report, various exercise equipment and eight sessions each of massage, acupuncture and multi-disciplinary rehabilitation treatment.
8I agree with Aviva and find that the applicant has not demonstrated that the balance of the treatment plan is reasonable and necessary. While I agree with the applicant that pain relief is a legitimate goal for treatment and I see that he reported that the treatment he incurred was helpful, with respect, it is difficult to find that the treatments proposed are both reasonable and necessary where the applicant has seemingly only required treatment for his injuries for half of the year every year post-accident. Indeed, by his own admission, the applicant, who is an elderly gentleman, worked part-time and attended for treatment during the spring and summer months before going south to Florida, where he avoids the winters from October to April. The reports indicate that while in Florida, he did the stretching regimen that was taught to him by the clinic but there is no indication that he engages in the type or volume of facility-based treatment recommended in the treatment plan nor did he provide any indication that he incurred the cost of any of the home exercise equipment (a 10 lb. medicine ball, a foam roller, a speed rope) or that he brings these items with him to aid in his recovery. His submissions do not elaborate on why the unapproved items are reasonable and necessary or why it is reasonable to fund ongoing treatment when one of the barriers to recovery identified in the OCF-18—spending 5-6 months in Florida every year—is self-imposed.
9In a similar vein, his submissions do not directly engage with any of the unapproved items and treatments remaining from the OCF-18 to demonstrate why they are reasonable and necessary, as it is his burden to do. For instance, his submissions focus more on why it was improper for Aviva to rely on the s. 44 opinion of Dr. Polyvos in partially approving the plan than on his own burden to demonstrate why the plan should have been approved in its entirety. There is no discussion of the costs of the treatment or why it is reasonable for the OCF-18 to be broken down into individual treatments for chiropractic, massage and acupuncture treatment while also recommending eight sessions of exercise monitored at the chiropractor rate. In the clinical treatment notes that follow this OCF-18, the majority of the notes focus solely on physiotherapy exercises, heat and stretching.
10While I am alive to the goals of the plan, it is difficult to find that the treatment was necessary to return the applicant to his activities of daily living when he only receives treatment for half of the year. Indeed, due to his annual travels south, there are significant blind spots in the medical documentation from the clinic, the OHIP summary and in his family physician’s records that undermine his claim that ongoing treatment is necessary. Other than the clinic itself, there does not appear to be an objective recommendation for ongoing facility-based treatment. The applicant’s submissions do not provide insight into any functional struggles or accident-related pain he faces while he is away or how his daily activities are affected without the facility-based treatment he receives from May-October.
11For completion, and on the medical evidence before the Tribunal, I found the s. 44 report of Dr. Polyvos to be fair. There is no doubt that the applicant sustained fractures in his accident which are significant given his age. However, at one year post-accident, with no indication that the applicant was suffering from complications as a result of his fractures, with normal functional range of motion, with limited pain complaints, with no referrals from his family physician and with the applicant’s functional ability to travel to Florida and spend half of the year there without facility-based treatment, I do not find it unreasonable for Dr. Polyvos, also a chiropractor, to find that one final slate of facility-based treatment was reasonable to approve. Further, given the attendance records that reveal the applicant attended at the clinic once per week, the approved treatment covered the approximately two-month period prior to the applicant going south. In turn, I do not find that it was unreasonable for Aviva to rely on this determination in partially approving the OCF-18 in dispute. As the applicant has not demonstrated that the unapproved items are reasonable and necessary, I find they are not payable.
$3,958.61 for physiotherapy treatment
12Here, the applicant seeks $3,958.61 for an OCF-18 dated May 5, 2019 recommending physiotherapy, massage, acupuncture, aqua therapy and various aqua therapy equipment (goggles, swimming cap, ear and nose plugs, flip flops). The goals of the plan are listed as pain reduction, increase range of motion and strength and a return to pre-accident work activities. Aviva denied the treatment plan on the basis of the s. 44 orthopedic IE report of Dr. Dessouki, who determined that it was not reasonable and necessary because the applicant had reached maximal medical recovery, as there was no objective evidence of residual musculoskeletal impairment attributable to the accident and the applicant had functional range of motion in his spine and shoulder.
13I agree with Aviva and find that the applicant has not demonstrated that this specific treatment plan, submitted nearly three years post-accident, is reasonable and necessary to treat his accident-related impairments. While I am alive to the applicant’s submission that he incurred the treatment despite Aviva’s denial because he found it helpful, on the evidence, I find there is limited objective medical indication that the treatment proposed was necessary to reduce the applicants pain, increase his range of motion and return him to his pre-accident work activities, as the plan provides.
14For example, during the s. 44 orthopedic assessment with Dr. Dessouki, the applicant advised that at three years post-accident there was no change in his pre-accident and post-accident activities of daily living, that he had no difficulties with any of his activities and that he had retired, which calls into question the proposed goal of returning the applicant to his pre-accident work activities. Further, at the assessment, the applicant self-reported his neck and shoulder pain as 1/10 on the pain scale. While I again agree with the applicant that pain relief can be a legitimate goal for treatment, it does not follow that treatment is automatically reasonable and necessary for same if the pain is so minimal that it does not affect the applicant’s daily function.
15As above, the applicants self-reporting on his function and minimal pain is compounded by the lack of objective medical evidence to support his pain complaints. There are no contemporaneous visits to his family doctor with accident-related complaints or referrals for the treatment proposed, there is no evidence that he was treated by a medical practitioner or was undergoing treatment while he was in Florida in the three years post-accident and there are no prescriptions for pain medication in evidence since August 1, 2016. Indeed, as Aviva submits, the last time the applicant saw a medical practitioner for his accident-related injuries, other than the clinic proposing treatment, was on September 22, 2016. While this is not determinative on its own, given that there is no evidence of setbacks with his fractures or with ongoing musculoskeletal impairments and that he seemingly has no functional impairments that can be attributed to the accident, the evidence as a whole suggests that the treatment proposed is not reasonable or necessary.
16In any case, putting all of this aside, the applicant’s submissions do not specifically address any of the individual items in the OCF-18 or the costs of same to demonstrate why they are reasonable and necessary for achieving the goals at three years post-accident. While he submits that greater weight should be afforded to the clinic’s recommendations over the report of Dr. Dessouki because it “has a greater understanding of his accident-related injuries”, I note that the physical injuries identified at Part 6 of the OCF-18 in dispute are all sprain and strain-type injuries. On review of his report, these impairments are similar to those identified by Dr. Dessouki, so I fail to see how the clinic has a greater understanding of the applicant’s impairments that would justify ongoing facility-based treatment for accident-related impairments where Dr. Dessouki determined that he had reached maximal recovery from the same injuries. On the bulk of the evidence, I prefer the report of Dr. Dessouki.
17Accordingly, the applicant has not demonstrated that the treatment plan is reasonable and necessary and therefore it is not payable. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
18The applicant has not demonstrated entitlement to either of the treatment plans in dispute or interest. His application is dismissed.
Date of Issue: March 15, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.