Released Date: 07/12/2021
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:
Vince Iuvara
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Vince Iuvara, Applicant
Piera A. Segreto, Counsel
For the Respondent:
Aviva General Insurance, Representative
Jessica Bacopolus, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on September 5, 2015 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
2The applicant sustained a scalp laceration, cervical strain, aggravation of left hip cuff tendinitis and post-traumatic concussion. The onus remains on the applicant to demonstrate that the claimed treatment is reasonable and necessary. He submitted two treatment plans for physiotherapy, as well as claims for payments, that were denied by the respondent 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
3The following issues are to be decided:
a. Is the applicant entitled to $3,027.40 for physiotherapy treatment, recommended by Physiomed Roytec in a treatment plan dated May 15, 2019?
b. Is the applicant entitled to $2,004.96 for physiotherapy treatment, recommended by Physiomed Roytec in a treatment plan dated December 9, 2019?
c. Is the applicant entitled to payments of $150.00, $27.05, $23.00 and $35.00 for various items (#4, 5, 6 and 7 in the Tribunal Application)?
d. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
e. Is the applicant entitled to interest on any overdue payment of benefits?
4In its submissions, the respondent agreed to issue payments for the $150.00 and $23.00 expenses. As such, the decision will focus on the remaining issues in dispute.
FINDING
5I find that the applicant is not entitled to payment for the disputed treatment plans or the remaining expenses, as he has not met his onus to prove that they are reasonable and necessary.
ANALYSIS
Are the treatment plans in the amount of $3,027.40 and $2,004.96 for physiotherapy reasonable and necessary?
6I find that the applicant is not entitled to payment for either disputed physiotherapy treatment plans as he has not met his onus to establish that they are reasonable and necessary.
7The applicant submits that the first treatment plan dated May 15, 2019 in the amount of $3,027.40, which includes physiotherapy, massage therapy and a low back brace, is reasonable and necessary to address ongoing neck and back pain. The treatment plan authored by William Nguyen indicated that the applicant’s avoidance beliefs are barriers to his recovery.
8The applicant submits that the second treatment plan dated December 9, 2019 in the amount of $2,004.96, which indicates similar plans and goals as the previous treatment plan, is reasonable and necessary, again, to address the neck and back injury. Chiropractor Dr. Tran indicates that an August 2017 neck MRI shows multi-level disc protrusions, and a history of lumbar disc herniation and osteoarthritis are noted to be barriers to recovery.
9The respondent argues that the medical evidence does not support that the treatment plans are reasonable and necessary. It relies on the following evidence for each treatment plan, respectively:
May 15, 2019 treatment plan
a. Mr. Nguyen did not indicate any level of efficacy of treatment received in a similar treatment plan over 21 sessions between October 29, 2018 and March 13, 2019;
b. The clinical notes and records of Physiomed Roytec indicate minimal, at best, improvement with the applicant’s back pain and notes a worsening of neck pain over the treatment period; and
c. In the July 23, 2019 s. 44 report of its assessor, Dr. Tepperman, he opined that the applicant suffered myofascial strain of his cervical paraspinal musculature and post-traumatic headaches as a result of the accident. Dr. Tepperman observed evidence of pain-focused behaviour and symptom magnification. Dr. Tepperman concluded that the applicant had achieved maximum medical recovery as there was no evidence of impairment. Dr. Tepperman further concluded that there was no clinically-based support for further facility-based treatment or the back brace.
December 9, 2019 treatment plan
a. The injuries under Part 6 of the treatment plan noted cervical disc disorder with radiculopathy, as well as other injuries, similar to the May 2019 treatment plan. The respondent submits that there are no other medical documents that indicate the applicant suffered from cervical radiculopathy as a result of the accident; and,
b. There are no updated clinical notes and records from Physiomed Ryotec after March 13, 2019 which reference the efficacy of previous treatment received since June 2019, which is similar to that proposed in the December 2019 treatment plan.
10I agree with the respondent that the applicant has not shown that the proposed treatment is reasonable and necessary.
11I am persuaded by the following:
a. The clinical notes and records of his family physician indicate two post-accident visits on September 15, 2015 and September 21, 2015 where he was diagnosed with various injuries as a result of the accident. Of note, there are no visits to the family physician for the remainder of 2015 or at all in 2016;
b. There is a hospital record dated May 29, 2017 which notes that the applicant suffered a head injury at work. Neurologist Dr. Licorish diagnosed the applicant with tension-type headaches and Neurologist Dr. Scott diagnosed him with tension-type headaches and medication overuse headaches. There is no evidence of any accident-related issues noted by either neurologist;
c. The next visit to the family physician in April 2017 contains no accident-related pain complaints;
d. On October 31, 2017, the applicant saw rheumatologist Dr. Leung, presenting with neck pain. The records of Dr. Leung note that the applicant tried massage therapy and chiropractic treatment but he felt these treatment modalities worsened his pain. Dr. Leung did not note any tenderness and was not able to reproduce any discomfort;
e. In the January 17, 2020 report of neurophysiologist/physiatrist Dr. Chen, the applicant presented with left hand discomfort (starting around December 2019), intermittent neck and left arm pain. I note that Dr. Chen’s report contains no mention of the subject accident. There is no evidence in the report that connects the present pain complaints to the accident; and
f. In the Minor Injury Treatment Discharge Report dated July 17, 2017, the applicant was discharged from treatment on July 17, 2017. The report notes that no additional intervention was required. It was indicated that the applicant reported improvement in his condition regarding his cervical and lumbar pain complaints and decided to forego further clinical therapy. It appears that the applicant last attended for treatment on June 5, 2017.
12On the evidence, the medical documentation insufficiently connects the applicant’s ongoing pain complaints to the subject accident. While there is a host of various medical documents, reports and records, what is missing is a definitive and clear progression between the initial injuries and the progressive documented post-accident decline. The medical evidence does not contain such a narrative.
13I find the treatment plans in dispute are not reasonable and necessary for the following reasons. First, the extensive lapse in treatment history from the family physician is not an indication that the applicant suffered ongoing accident-related pain symptomatology. Second, the applicant reported that similar treatment to that proposed in the treatment plans actually worsened the pain, and where improvement was noted, no further intervention was required. Lastly, not only was further treatment not required, the applicant himself decided to forego further clinical treatment.
14Accordingly, I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary to treat his injuries sustained as a result of the September 2015 accident. Consequently, I find the treatment plans are not reasonable and necessary.
15As there are no benefits overdue, it follows that no interest is payable under s. 51 of the Schedule.
Are the expense claims reasonable and necessary?
16The applicant seeks payment for a walking cane ($27.05) and the clinical notes and records of Dr. Morana ($35.00).
17The respondent submits that these remaining expenses are not payable or reasonable and necessary. I agree.
18There is no evidence before me of the expense claim for the walking cane. As the minimum requirement to show that an expense is reasonable and necessary is evidence that it was incurred, the omission of the expense claim demonstrates a clear failure to satisfy the onus that the expense is reasonable and necessary. Further, there is no evidence that the applicant suffered any mobility or gait challenges or that he suffered any mobility or gait difficulties as a result of the accident.
19Regarding the medical record expense for Dr. Morana, the applicant again has not pointed me to any evidence that this expense has been incurred and is payable, therefore, failing to meet his burden to establish reasonableness and necessity. I find there is no submissions or evidence to persuade me that the respondent is therefore required to remit payment for the expense.
20I find the expenses are not reasonable and necessary, and therefore are not payable.
CONCLUSION
21For the reasons set out above, I find the applicant is not entitled to payment for the treatment plans in dispute or the remaining expenses as they are not reasonable and necessary. As no benefits are overdue, no interest is payable.
Released: July 12, 2021
Derek Grant
Adjudicator