Release date: 05/14/2021
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:
N.B.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Darshika Pathmanathan, Counsel
For the Respondent:
Maggie Morgan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on February 29, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied removed the applicant from the Minor Injury Guideline (“MIG”) based on psychological impairments but denied the benefits in dispute because they were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2While the applicability of the MIG and two psychological treatment plans were initially in dispute, the parties confirmed that those issues were resolved prior to the hearing. Accordingly, the remaining issues in dispute are as follows:
i. Is the applicant entitled to receive medical benefits recommended by Physio Fix and Fitness as follows:
a. $5,277.49 for chiropractic services in a treatment plan submitted on June 3, 2016 and denied on September 13, 2016?;
b. $5,175.78 for chiropractic services in a treatment plan submitted on August 19, 2016 and denied on September 20, 2016?;
c. $4,663.71 for chiropractic services in a treatment plan submitted on November 11, 2016 and denied on December 8, 2016?; and,
d. $3,631.85 for chiropractic services in a treatment plan submitted on February 9, 2017 and denied on February 23, 2017?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary or payable. No interest applies.
ANALYSIS
Are the chiropractic treatment plans reasonable and necessary?
4In order to receive payment for medical and rehabilitation 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 do so, the applicant should demonstrate that the goals as identified are reasonable, that the goals are being met to a reasonable degree and the cost of achieving the goals of treatment are reasonable taking into consideration both the degree of success and the availability of other treatment.
5As noted, there is no dispute that the applicant was removed from the MIG on the basis of psychological impairments sustained in the accident. However, removal from the MIG on psychological grounds does not automatically entitle the applicant to payment for rehabilitation services if his accident-related physical injuries are predominantly minor injuries or if the treatment is not reasonable and necessary.
6To this end, the applicant submits that all of the chiropractic treatment plans in dispute are reasonable and necessary because his recovery was affected by both his pre-existing lumbar spine conditions from a previous accident in 2011 and his degenerative arthritis. He relies on clinical notes from his family physician, Dr. Baird; an x-ray dated May 16, 2017; and a CT scan dated August 9, 2017. While the majority of his submissions focused on his psychological impairments, he submits that each treatment plan in dispute was completed after a patient self-evaluation and a physical examination and that the treatments are reasonable multidisciplinary methods to treat his injuries and pain.
7In response, Aviva submits that the applicant did not sustain any fractures, tears or dislocations, did not seek medical attention following the accident, did not miss any time from his employment and was diagnosed with strain injuries by Dr. Baird. It asserts that the x-ray and CT scan revealed degenerative changes consistent with his age and pre-accident records. Aviva submits that the proposed treatment is not reasonable and necessary because the goals of the treatment were identical, the applicant showed limited to no improvement and has not demonstrated the effectiveness of treatment. In denying the OCF-18s, Aviva relies on the s. 44 report and addendums of Dr. Khaled where the applicant was diagnosed with non-specific low back pain and a grade 2 whiplash of the neck without evidence of significant orthopaedic or neurological sequelae.
8I agree with Aviva.
9The physical impairments that are consistently identified in the treatment plans are all sprain and strain-type injuries: WAD2, strain and sprain of lumbar spine, of the sacroiliac joint, of the hip, thigh and knee. Other than his reports of pain, neither of the applicant’s submissions or the OCF-18s in evidence indicate why multiple, lengthy and rather costly multi-disciplinary treatment plans were needed to address these seemingly minor injuries. While I am alive to the applicant’s pre-existing impairments, his age and his degenerative issues, his submissions fall well-short of meeting his burden of proof to demonstrate why the specific treatment in dispute is reasonable and necessary to treat his accident-related impairments.
10Indeed, there is no discussion of the treatment goals of any of the OCF-18s in dispute. As Aviva submits, the treatment goals of every proposed treatment plan are identical, which in my view is problematic where the treatment notes in evidence did not indicate improvement despite the applicant attending two to three times per week. In turn, the applicant’s submissions do not discuss how the proposed goals were being met to a reasonable degree and they do not address the volume of treatment—being 21 sessions each of rehab, laser and massage therapy for the first two OCF-18s, 18 sessions each in the subsequent OCF-18 and 15 sessions in the final OCF-18—the costs of same or what purpose any of the devices (ergonomic mats, TheraBand, dumbbells, an Obusform, BioFreeze, etc.) recommended would serve. The additional comments section of each OCF-18 is unhelpful, as it merely lists the items described in the OCF-18 without support for how or why these items would be helpful to the applicant or how they were being tailored to his specific impairments and, ideally, his progress.
11With this in mind, in evidence is a progress report from Physio Fix dated June 3, 2016 that indicates that the applicant’s prognosis for recovery was “good” and recommended that he continue with rehabilitation three times per week for seven weeks. It appears that the first OCF-18 in dispute totalling $5,277.49 accompanied this report. However, I find the same clinic then continued to propose an additional $13,471.34 in treatment over the next year, citing identical goals for the applicant in every OCF-18 with limited indication of progress. Indeed, the next progress report in evidence, dated August 19, 2016, is nearly identical to the previous one dated June 3, 2016. The November 16, 2016 progress report is also identical, save for a recommendation of rehab three days per week for six weeks. In each of the treatment records in evidence, the applicant makes similar pain reports and by February 2017, he is still reporting low back pain at 9/10.
12While pain relief is a legitimate goal for treatment, it does not follow that all treatment is reasonable and necessary because an applicant reports subjective pain. I find the above facts problematic, as it is difficult to reconcile the applicant’s position that the treatment was reasonable and necessary to treat his pain from what appear to be minor injuries with the clear evidence that the services proposed by his clinic were not being tailored to his impairments and were not decreasing his pain over time. Indeed, it remains unclear why the same clinic continued to propose the same treatment and the same goals at a significant cost and why this approach was a reasonable and necessary one for what amounts to strain and sprain-type injuries and degenerative back pain. A more thorough analysis from the applicant on the goals of the treatment, how the goals were being met and why the goals were reasonable in both time and costs would have been assistive to both the Tribunal and to his case.
13As a result, I prefer the s. 44 opinions of Dr. Khaled who consistently found the treatment to be not reasonable and necessary. Where the applicant continued with his employment and daily activities post-accident, where his physical injuries were predominantly minor and where there is limited indication of progress or of a decrease in his pain, I find no reason to interfere with his determination that ongoing facility-based treatment was not reasonable and necessary to address the applicant’s impairments. As there is no discussion of the goals or of the costs of the treatments proposed, I find the applicant’s submissions and evidence have not demonstrated otherwise. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
14The applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary or payable. No interest applies.
Date of Issue: May 14, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.