Released Date: 07/22/2021
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:
Kiranpreet K. Chohan
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Kiranpreet K. Chohan, Applicant
Daniella Cohen, Paralegal
For the Respondent:
Aviva General Insurance
Nabila Majidzadeh, Counsel
HEARD:
By Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was involved in an automobile accident on June 14, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')1. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2I have been asked to decide the following issues:
i. Is the applicant entitled to a medical benefit in the amount of $3,948.91 for physiotherapy recommended by Inline Rehabilitation Centre in a treatment plan (OCF-18) submitted on December 28, 2017, and denied on March 12, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $1,315.02 for chiropractic treatment recommended by Inline Rehabilitation Centre in a treatment plan (OCF-18) submitted on March 28, 2018, and denied on April 28, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the physiotherapy and chiropractic treatment plans in dispute. As a result, no interest is payable.
ANALYSIS
Physiotherapy and Chiropractic Treatment: Issues i and ii
4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
5The first treatment plan dated December 27, 2017, authored by Dr. Farhan Khandwalla, chiropractor, noted that the applicant had the following activity limitations: difficulty with activities entailing bending, lifting, carrying, overhead activities, prolonged postures and activities entailing strength and endurance. The goals of the treatment plan were to decrease pain and increase strength and range of motion to return the applicant to the normal activities of daily living and pre-accident work activities. Dr. Khandwalla recommended physical rehabilitation, exercise and massage therapy.
6The second treatment plan dated March 28, 2018, authored by Dr. Joseph Csumrik, chiropractor, is identical as far as the activity limitations and goals. Dr. Csumrik recommended an in-home exercise program, an exercise ball, an exercise mat, a resistance exercise tubing 11 PCS set, and comprehensive therapy.
7The applicant submitted that the treatment plans in dispute are reasonable and necessary because of the goals contemplated in the treatments themselves. It is stated that “as in 16-003921, the goals of the physical plans are legitimate and achievable. The Applicant submits that this, in tandem with her consistent reports of pain following the collision, should render the treatment plans reasonable and necessary.”
8The respondent submits that the contemporaneous records of Dr. Lai in 2017 and 2018, do not support the need for the treatment proposed in the Treatment Plans in dispute. The respondent relies on the insurer examination (“IE”) of Dr. Naumetz dated February 15, 2018, who concluded that the applicant had reached maximum medical recovery.
9I find that the applicant has not met the onus on her to prove her entitlement to the disputed medical benefits for the following reasons.
Clinical Notes and Records (“CNRs”) from Dr. Lai
10I find that the CNRs from Dr. Lai do not support that the applicant suffers from any ongoing physical impairment that requires physiotherapy or chiropractic treatment. The applicant saw Dr. Lai on September 20, 2017, which is approximately four months after the subject accident. Dr. Lai noted “ROM, neck and back myofascial strain, L knee strain, no tear, PCOS?” Dr. Lai recommended that she continue physiotherapy and recommended an x-ray and ultrasound of the left knee.
11The applicant met with Dr. Lai on October 3, 2017 and October 17, 2017 for issues unrelated to the accident. There are no accident related complaints documented during these visits. However, on both occasions, Dr. Lai noted that the applicant did not undergo the x-ray and ultrasound for the left knee. At the October 17, 2017 visit, the applicant advised Dr. Lai that she would have them completed after returning from her trip. Based on my review of the evidence, the applicant did not undergo the x-ray and ultrasound of her left knee.
12The applicant attended the clinic again on September 17, 2019. Dr. Lai noted that the applicant is not doing cardio due to knee pain. Dr. Lai did not make any findings regarding the origin of her knee pain in the CNRs dated September 17, 2019.
13The applicant submitted that she continues to mitigate her injuries by attending her family physician, taking medications, and going to specialists. In fact, it is stated in the submissions that she saw Dr. Lai on a regular basis. This is not true. As noted above, there were only four visits with Dr. Lai from September 20, 2017 to September 17, 2019. Only one visit documented accident-related complaints.
14Furthermore, there is a significant gap of 23 months between the October 17, 2017 and the September 17, 2019 visit. She did not provide an explanation for the gap between the visits with Dr. Lai. If the applicant was experiencing issues, it begs the question why she did not see Dr. Lai during that time period for further treatment or for a referral to a specialist. If the applicant was continuing to experience knee pain as it has been alleged, I would expected that she would have visited Dr. Lai on a more consistent basis.
15The applicant has not provided any specialist reports. Based on my review of Dr. Lai’s CNRs, the applicant was not referred to any specialists. The applicant has not provided information or reports from the specialists that she has claimed to have seen for her injuries.
16The applicant did not undergo an x-ray and ultrasound of the left knee as recommended by Dr. Lai. She did not provide any reasonable explanation for not doing so. If the applicant’s left knee pain was an ongoing issue, I would have expected that she would have undergone the diagnostic imaging for her left knee. This would have assisted in determining what the underlying cause of her pain was and whether she needed to be referred to a specialist. The fact that this did not happen leads me to believe that her pain-related complaints are not as serious as she purports them to be.
17The applicant submitted that she reported her ongoing knee pain and inability to work out to her family physician in September 2019 and this suggests that her pain symptomology was ongoing. As such, physical rehabilitation treatment was necessary. I am not persuaded by this argument. The note merely states that the applicant is not doing cardio due to knee pain. It is unclear as to whether the knee pain is from the accident or from something else.
18Moreover, there is nothing in Dr. Lai’s CNRs that supports ongoing pain from October 2017 to September 2019. Furthermore, Dr. Lai did not recommend physical rehabilitation at the September 2019 visit. If physical rehabilitation was necessary, then why was it not recommended by Dr. Lai at this visit? The applicant has not submitted any evidence that supports this assertion.
Disability Certificate (‘OCF-3’) and CNRs from Inline Rehabilitation Inc.
19The OCF-3 dated June 28, 2017 authored by Dr. Nana Barnes, chiropractor, notes that the applicant sustained the following injuries: nausea, headache, sprain and strain of cervical spine, thoracic spine, lumbar spine, shoulder join, sacroiliac joint, ribs, sternum, contusion of knee, wrist and hand, other sleep disorders, malaise and fatigue and radiculopathy. Under part 6 of the OCF-3, the disability period was anticipated to last from 9 to 12 weeks. The applicant should have recovered within this timeframe. If Dr. Barnes felt that her recovery would have taken more than 12 weeks, I would have anticipated that this would have been specified in the OCF-3. The OCF-3 does not assist the applicant in establishing entitlement to additional treatment.
20I do not find that the notes from Inline Rehabilitation Inc. to be helpful in determining whether the treatment plans are reasonable and necessary. Many of the notes are illegible. It is difficult to ascertain whether the treatment alleviated her pain and improved her strength and range of motion. As such, I find them to be unclear and unsupportive. Moreover, the applicant does not direct the Tribunal to any specific references to evidence, which supports her entitlement to the treatment plans in dispute. The applicant must direct the adjudicator to the relevant evidence in support of her case and explicitly explain why she meets the test based on this evidence. She has failed to do so.
Psychological-related evidence
21In support of her case, the applicant has submitted various psychological screenings, assessments and an article from the Canadian Mental Health Association. I assign less weight to the article from the Canadian Mental Health Association. While medical articles can provide some useful information, they are not a substitute for a medical opinion from a medical practitioner with respect to the applicant’s specific conditions.
22The psychological screenings and assessments from Dr. Prudovsky, Dr. Kleiman and Dr. Syed document the applicant’s self-reporting of her pain-related complaints. However, I am assigning less weight to these reports because they were in relation to the need for psychological treatment, which was approved and is not an issue before the Tribunal. Moreover, these reports do not address why the treatment plans that are in dispute are reasonable and necessary.
23The applicant is relying on a statement made by Dr. Syed in support of her case. Dr. Syed noted that the applicant’s pre-existing history of depression and anxiety increased her vulnerability to recover from the injuries sustained in the subject accident. The applicant submitted that “this means it would take the Applicant more time to recover than a person without any prior injuries.”
24While I recognize that her psychological impairments might impact her ability to recover, the applicant has not submitted any evidence that substantiates this statement. There is no evidence that shows that her pre-existing psychological impairments have delayed her from reaching maximal medical recovery for her physical impairments as a result of the accident.
Orthopaedic Surgery Assessment Report
25The applicant met with Dr. Naumetz, orthopaedic surgeon, on February 2, 2018. Dr. Naumetz did not find any physical abnormalities. He stated that “there were no positive physical findings that I could find in the left knee”. He diagnosed her with WAD II sprain/strain of the cervical spine and a bruise or contusion over the right clavicle. He concluded that the applicant had recovered from her injuries.
26Dr. Naumetz was of the view that the OCF-18 in the amount of $3,948.91 was not reasonable and necessary because the applicant had a normal physical examination and had recovered from her physical soft tissue injuries from the accident. An addendum report was completed by Dr. Naumetz on March 13, 2018. Dr. Naumetz found that the documents that were submitted did not provide any new information regarding the accident which would cause him to change his opinion.
27I prefer Dr. Naumetz’s report because he reviewed the applicant’s medical history and conducted a series of tests, which showed that there were no physical abnormalities. The applicant had normal range of motion and was able to do the various movements. Her injuries were minor, and she has essentially recovered from them. The applicant did not submit any medical evidence or expert opinion to refute Dr. Naumetz’s findings.
CONCLUSION
28Based on the above, I find that the applicant has not provided compelling evidence that further chiropractic treatment and physiotherapy is reasonable and necessary. Therefore, the applicant is not entitled to these medical benefits.
INTEREST
29Having determined that no benefits are payable, I do not need to consider if interest is payable.
ORDER
30For the reasons provided above, I order that the application be dismissed.
Released: July 22, 2021
Tavlin Kaur
Adjudicator