Release date: 05/11/2021
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:
Rajiv Modi
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Melanie A. Sousa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an accident on July 18, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva 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 issues in dispute are as follows:
i. Is the applicant entitled to a medical benefit in the amount of $3,581.88 for physiotherapy recommended by Therapy Point in a treatment plan (OCF-18) submitted on October 24, 2017, and denied on December 20, 2017?
ii. Is the applicant entitled to a medical benefit in the amount of $2,286.40 for physiotherapy recommended by Anjan Acharya in a treatment plan (OCF-18) submitted on February 6, 2018, and denied on March 28, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that either treatment plan in dispute is reasonable and necessary or payable. No interest applies.
ANALYSIS
Are the treatment plans reasonable and necessary?
4To receive payment for medical benefits under the Schedule, the applicant bears the burden of proving on a balance of probabilities that the benefits he seeks are reasonable and necessary and incurred. To do so, he should demonstrate that the goals of treatment are reasonable, that the goals are being met to a reasonable degree and that the cost of achieving those goals is reasonable.
5The applicant submits that the treatment plans are reasonable and necessary because he suffers from chronic pain in his neck, shoulder and back. He submits that he actively complained about his injuries, underwent treatment and has been prescribed medication for his pain. The applicant submits that pain relief is a legitimate goal for treatment and that the accident aggravated his pre-existing condition. Finally, he points to his pelvic fracture from an accident six months earlier as evidence that the subject accident was a “material contribution” that triggered his pre-existing condition, which required that he get more facility-based treatment.
6In response, Aviva raises causation and credibility issues and submits that the applicant has fallen short of meeting his burden of proof. It points to the fact that applicant was in a more serious accident six months before on January 25, 2017 where he suffered a fractured pelvis and reported pain in his neck, back, elbows, knees, hips, left shoulder and right ankle. In contrast, Aviva submits that the subject accident happened while the applicant was working in Ohio, when a car backed into his tractor trailer, which was parked at the time. He declined any medical treatment and drove back to Ontario the same day.
7Aviva further submits that the first OCF-18 is duplicative and redundant, as it was meant to cover treatment for a period of time which ended up being covered and paid for under an OCF-23 before the applicant switched clinics. In addition, Aviva submits that the Therapy Point clinic no longer exists, so the dispute over the OCF-18 is moot. With regard to the second OCF-18, Aviva submits that his impairments are not a result of the subject accident where he sustained no injuries. To this end, Aviva relies on the s. 44 reports of Ms. Rodie and Dr. Alikhan, who both determined that he had achieved maximal medical recovery and that further treatment was not reasonable and necessary.
$3,581.88 for physiotherapy recommended by Therapy Point
8I find the applicant has not demonstrated that this treatment plan is reasonable and necessary or incurred, and it is therefore not payable.
9Problematically, the applicant did not file reply submissions to rebut any of Aviva’s assertions. On review of the evidence and correspondence between the parties, it appears that this issue should have been withdrawn prior to the hearing, as the treatment was covered by Aviva under an OCF-23 prior to the applicant switching clinics. Further, correspondence from the applicant’s representatives confirmed that Therapy Point no longer exists and that the applicant is not a patient of the new clinic called Total Care Rehab. There is no evidence of an outstanding balance. Accordingly, where the treatment and items proposed were funded by Aviva and where the proposing clinic no longer exists, it follows that no amount of the OCF-18 is payable because the treatment is clearly duplicative and redundant.
$2,286.40 for physiotherapy
10I find the applicant has not demonstrated that this treatment plan is reasonable and necessary or incurred, and it is therefore not payable.
11The applicant’s position on this treatment plan is somewhat confusing. At first, he cites his “long history of Chronic pain in his neck, shoulder and back”; he then submits that it necessary to “determine the nature of Jennifer’s pain following the accident and possible treatments”. This is then followed by a case law to support his assertion that pain relief is a legitimate goal for treatment and that his previous fracture was a “material contribution” that triggered his pre-existing condition in the subject accident, thus satisfying the causation test. Finally, he asserts that he suffers from “substantial physical injuries which have aggravated his pre-existing condition of Rheumatoid Arthritis.”
12There is a dearth of medical evidence to support the applicant’s claims during this period. Ultrasound and x-rays of the left shoulder revealed mild tendinosis, no fracture and an otherwise unremarkable study. I note that there is only one entry for accident-related pain in the clinical notes and records of Dr. Khan between January 11, 2018 and June 7, 2019, falling on March 14, 2018. Here, Dr. Khan notes that he can refer the applicant to a pain clinic but there is no evidence that this was followed-up on. Dr. Khan does not indicate that more physiotherapy was required even though the applicant’s last day of treatment was January 23, 2018.
13While I agree that pain relief is a legitimate goal for treatment, the OCF-18 and the applicant’s submissions are both silent on how the proposed treatment would be tailored to the applicant’s specific impairments or how treatment would account for his alleged chronic pain and aggravated arthritis. Rather, there is no discussion of the disputed OCF-18 at all, its goals, how they would be achieved and why the cost to do so is reasonable. More problematic is the causation issue, where there is evidence that the applicant has been making similar complaints since well before the subject accident and there is limited indication that he sustained an impairment of significance as a result of the subject accident. Indeed, there are reports of back pain, shoulder pain and neck pain in the notes of Dr. Khan in the months before the July 18, 2017 accident. The applicant’s submissions on causation amount to a single paragraph that does not cite to a medical opinion.
14Putting this aside, submissions and an OCF-18 are not a stand-ins for medical evidence. Aviva relies on two s. 44 examination reports, from physiotherapist Ms. Rodie in March 2018 and from physician Dr. Alikhan in June 2018. These reports support its position that the applicant had achieved maximal medical recovery from injuries he sustained in the subject accident and that there was no reliable, objective evidence of musculoskeletal impairment as a result of the accident. On the evidence, I find no reason to interfere with these determinations. Where the treatment has also not been incurred, I find the applicant has not demonstrated that it is reasonable and necessary or payable. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
15The applicant has not demonstrated that either treatment plan in dispute is reasonable and necessary or payable. No interest applies.
Released: May 11, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.