Release date: 08/20/2021
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:
Maharanie C. Rai-Roopnarine
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Ilona Agivaeva, Counsel
For the Respondent:
Kristofer B. Angle, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Maharanie Cindy Rai-Roopnarine, (“the Applicant”), was involved in an automobile accident on March 1, 2018 and sought benefits from Aviva General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Respondent refused to pay for certain medical benefits and the Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.
ISSUES IN DISPUTE
2The issues in dispute were identified and agreed to as follows:
a. Is the applicant entitled to a medical benefit in the amount of $2,893.91 for chiropractic treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated January 10, 2019?
b. Is the applicant entitled to a medical benefit in the amount of $1,950.00 for an MRI recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated October 10, 2018?
c. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for an orthopaedic assessment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated September 29, 2018?
d. Is the applicant entitled to a medical benefit in the amount of $2,893.91 for chiropractic treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated September 27, 2018?
e. Is the applicant entitled to a medical benefit in the amount of $2,366.41 for chiropractic treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated October 29, 2018?
f. Is the applicant entitled to a medical benefit in the amount of $2,630.16 for chiropractic treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated November 28, 2018?
g. Is the applicant entitled to a medical benefit in the amount of $2,366.41 for physiotherapy treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated February 20, 2019?
h. Is the applicant entitled to a medical benefit in the amount of $2,630.16 for physiotherapy treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated April 8, 2019?
i. Is the applicant entitled to interest on overdue payment of benefits?
RESULT
3The treatment and assessment plans proposing various therapies and dated January 10, 2019, September 27, 2018, October 29, 2018, November 28, 2018, February 20, 2019 and April 8, 2019, are all reasonable and necessary for the Applicant’s accident-related injuries.
4The treatment and assessment plans proposing an MRI and an orthopaedic assessment, dated October 10, 2018, September 29, 2018, are not reasonable and necessary for the Applicant’s accident-related injuries.
PRELIMINARY ISSUE
5The Applicant, in her reply submissions, submits that some of the Respondent’s references are overly broad, fail to make pinpoint reference to the evidence, and were over the ordered page limit. She infers that I should disregard the extra pages and related submissions and evidence because of this. I found no reason to seek a response from the Respondent on this issue because, as briefly explained below, it was unnecessary.
6The records are relevant and will not be omitted from the hearing. The records address the Applicant’s pre-existing and post-accident health condition, which is the underlying subject of this hearing. In addition, I find that the Respondent made sufficient reference to the evidence. It referred to specific dates of events and page numbers which I used to navigate the evidence. Lastly, the Respondent’s submissions were two, single-sentence paragraphs over the limit. This is a very minor abuse of the page limit and does not rise to the level required to warrant that submissions be struck. Index or cover pages are not included in the submission page count.
BACKGROUND
7The Applicant was the back-seat passenger of a vehicle which was struck on the front end while stopped at a four-way stop in a suburban neighbourhood. No airbags deployed, but police and ambulance arrived at the scene and the Applicant was transported by ambulance to the hospital. There, she complained of a headache but denied neck and back pain. She was examined and diagnosed with a concussion, given some pain medication, and discharged home after about an hour.
8The Applicant went to her family physician, Dr. F. Martino, the next day and complained of back and chest pain and anxiety. She reported that her body was turned to another back-seat passenger at the time of the accident, which she believed contributed to her injury. Dr. Martino identified a possible mild head injury and also diagnosed the Applicant with soft tissue injuries and contusions. She was referred to physiotherapy for her accident-related injuries. During the follow-up visit about three weeks later, the Applicant complained of left-sided neck and scapular pain and intermittent tinnitus, but records show that Dr. Martino made no specific recommendations during that visit.
9The Applicant engaged in chiropractic and massage therapy treatment at Inline Rehabilitation starting March 7, 2018 and started psychotherapy on July 26, 2018. Records show that the Applicant continued with those treatments through to March 2020, incurring a total of $37,203.53 in fees with the facility. To-date, the respondent has paid $22,861.99, leaving an unpaid balance of $14,341.54.
CAUSATION
10The Applicant submits that she was experiencing depression at the time of the accident but denies any other pre-existing conditions. The Respondent submits that this is overwhelmingly contradicted by the evidence. The Applicant made reply submissions but provided no explanation for the contradiction between her submission and the evidence. I agree with the Respondent for the following reasons.
11The Applicant has a significant health history. She was involved in a motor vehicle accident in 2009 which resulted in lingering soft-tissue injuries which included referrals to various medical specialists and culminated in a November 2017 diagnosis of chronic pain syndrome involving her neck and shoulders, especially the right side. Her range of motion was limited by her chronic pain—Dr. Martino noted on November 20, 2017 that the Applicant’s upper extremity movement was limited by pain beyond 90 degrees of flexion and extension. Earlier that year, in May, Dr. Martino referred the Applicant for a CT scan due to recurring migraine headaches. The imaging was negative, but her headaches persisted. She was diagnosed with right rotator cuff tendonitis and degenerative changes and disc bulges at C5-C6 about one month prior to the subject accident.
12Around the time of the accident, the Applicant was off work and on long-term disability due to depression and post-traumatic stress disorder related to a separate and unrelated traumatic event.
13The Applicant’s health history is significant because the accident-related injuries that she reports are nearly identical to her pre-accident health issues. Her accident claims forms from the subject accident list sprain and strain injuries of the neck, back, and shoulders, nervousness, post-traumatic stress disorder, sleep disorders, and chronic post-traumatic headaches.
14Upon review of the submissions and medical records, I find that the Applicant sustained a torn rotator cuff as a result of the accident. The Applicant was diagnosed with a partial thickness tear of the rotator cuff in her right shoulder following an ultrasound examination on September 15, 2018. While the Applicant was diagnosed with tendonitis in the same shoulder shortly before the accident, there is no evidence of a partial thickness tear. The tear remained present in another ultrasound on February 6, 2019, and, was no longer visible by the ultrasound examination on August 7, 2019.
15There is no evidence of a tear in the Applicant’s shoulder prior to the accident. While she had pain, her family physician diagnosed it as tendonitis and never referred her for further investigation. It was only after the subject accident that the tear appeared in any diagnostic imaging. As previously noted, the Applicant reported that her trunk was twisted towards the other back-seat passenger at the time of the accident, and this may have contributed to her shoulder injury. In any event, there is no suggestion that the Applicant had another traumatic incident which could upset the causal connection between the accident and her shoulder injury.
16I find Dr. Jaroszynski’s February 11, 2019 Insurer’s Examination (“IE”) report to be unpersuasive. Dr. Jaroszynski assessed the Applicant and noted that she had restricted range of motion in her right shoulder but concluded that no further facility-based treatment was required because her pain was due to degenerative changes in the shoulder. However, the September 15, 2018 right shoulder ultrasound shows that the Applicant suffered a partially torn rotator cuff. While I recognise that tears may also occur as a result of degenerative changes, the resolution of the injury following ongoing therapy suggests that the therapy was reasonable and necessary, contrary to Dr. Jaroszynski’s opinion.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
17I find that all the disputed treatment plans are reasonable and necessary for the Applicant’s accident-related injuries. She sustained a torn rotator cuff as a result of the accident and the treatment plans are contemporaneous with her recovery period. Her shoulder injury, as well as any lingering aches and pains, were treated through the various therapies outlined in the disputed treatment plans. They provided her with pain relief and, eventually, led to a full resolution of her rotator cuff tear.
18However, I find that the assessments proposed are not reasonable and necessary for the Applicant’s accident-related injuries, because she requires no further investigation into her symptoms. As noted above, her shoulder pain was as a result of a torn rotator cuff that was identified via an OHIP-funded ultrasound on September 15, 2018. Considering this, the OCF-18 dated October 10, 2018, proposing an MRI, and the OCF-18 dated September 29, 2018, proposing an orthopaedic assessment, are unnecessary.
INCURRED
19The Respondent submits that, even if the disputed treatment plans were found to be reasonable and necessary, the Applicant is required to prove that the expenses were incurred in order to be awarded medical benefits. I disagree.
20The Respondent conflates entitlement to a benefit with its obligation to pay a benefit. An insured is at liberty to appeal to the Tribunal to seek a finding that certain medical benefits are reasonable and necessary. Following that, if the appeal is successful, the Applicant may incur the benefits if not done so already, and the Respondent is liable to pay the associated costs once properly invoiced, subject to funding limits and deductions for factors like collateral benefit payments.
21Here, certain medical benefits are reasonable and necessary. Thus, the benefits are payable once incurred and properly invoiced, subject to deductions for payments made or owed by the Applicant’s extended health carrier.
22Despite the above, I acknowledge that there is evidence that the Applicant incurred some of the services listed in the OCF-18 dated November 28, 2018, prior to it being submitted. I agree with the respondent that it is not liable to pay for goods and services incurred before the submission of a treatment plan, pursuant to section 38(2) of the Schedule. Therefore, any goods and services incurred by the Applicant prior to the submission of the treatment plan are not payable.
INTEREST
23The Applicant is entitled to interest on overdue payments, pursuant to section 51 of the Schedule.
CONCLUSION AND ORDER
24The Applicant had extensive documented pre-existing health issues at the time of the accident, including right shoulder tendonitis. However, imaging shows that she sustained a rotator cuff tear and I conclude it was as a result of the subject accident.
25I find that the disputed treatment plans are reasonable and necessary for the Applicant’s accident-related injuries. She may incur the goods and services if not done so already, and the Respondent is liable to pay for it once properly invoiced, plus any applicable interest. However, the Respondent is not liable to pay for treatment incurred prior to the submission of the related treatment plan, pursuant to section 38(2) of the Schedule.
26The MRI and orthopaedic assessment are not reasonable and necessary for the Applicant’s accident-related injuries.
Date of Issue: August 20, 2021
Brian Norris, Adjudicator