Caputo v. Aviva Gen. Ins. Co., 2021 CanLII 90548

Citation: Caputo v. Aviva Gen. Ins. Co., 2021 ONLAT 20-001066/AABS

Release date: 09/21/2021

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.

Parties

Between:

Lisa Caputo

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Sana Jaffery, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on June 1, 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 in dispute 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:

a. Is the applicant entitled to $1,779.07 for chiropractic treatment recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted on July 3, 2019 and denied on August 21, 2019?

b. Is the applicant entitled to $2,460.00 for a chronic pain assessment recommended in a treatment plan (OCF-18) submitted on July 3, 2019 and denied on August 21, 2019?

c. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated that the OCF-18s are reasonable and necessary or payable. No interest applies as no benefits are overdue.

ANALYSIS

Are the treatment and assessment plans reasonable and necessary?

4To receive payment for the OCF-18s under the Schedule, the applicant bears the burden of proving on a balance of probabilities that the treatment and assessment plans are reasonable and necessary as a result of the accident. To meet this burden, the applicant should identify the goals of the plans, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit. I find the applicant has not met her burden for either plan and is therefore not entitled to payment or interest on same.

5The applicant submits that her accident-related injuries, primarily pain in her back and neck, as well as psychological symptoms, have become chronic in nature and make the treatment proposed reasonable and necessary. The applicant relies on an OCF-3 dated November 1, 2017 that identified her injuries as sprain and strain of the cervical, lumbar and thoracic spine, sprain and strain of her shoulder joint, insomnia, stress and headaches. She has undergone rehabilitation and participated in psychological counselling through Complete Rehab Centre. She also relies on an MRI from October 14, 2018, various clinical notes and treatment records, as well as a chronic pain report by Dr. Karmy and an orthopaedic report by Dr. Bhargava.

6Aviva relies primarily on the s. 44 report and addendum of Dr. Walters, which found no evidence of any objective musculoskeletal impairment or chronic pain condition. Aviva also raises causation concerns, submitting that the applicant’s physical and psychological impairments pre-date the accident, meaning the treatments proposed are not reasonable and necessary.

Physiotherapy in the amount of $1,779.07

7This treatment plan dated July 3, 2019 recommends 14 sessions of chiropractic treatment, six sessions of massage and $200 for the completion of the OCF-18. The goals of the plan are pain reduction, increase strength and range of motion and a return to normal activities. To support the reasonableness and necessity of the plan, the applicant’s submissions point to her June 4, 2017 visit to Peel Memorial Hospital where she complained of back, shoulder and neck pain and the October 14, 2018 MRI that revealed persistent pain and tenderness at T4-T5. From this evidence, she submits that she has not reached maximum medical recovery and that her condition has deteriorated over time, warranting further treatment. Aviva denied the OCF-18 on the basis of Dr. Walter’s s. 44 report.

8I agree with Aviva and find the applicant has not demonstrated that this OCF-18 is reasonable and necessary. Her submissions do not engage with the goals of the plan, do not address how additional chiropractic and massage treatment will meet those goals and do not address the cost. While I am alive to the MRI report finding pain and tenderness, Dr. Patel characterized it is “unremarkable”, so it is unclear how further treatment would address symptoms that have been consistently reported as sprain and strain injuries. Indeed, the applicant’s own OCF-3 and the OCF-18 itself identify the physical impairments as sprain and strain injuries. While pain relief is a legitimate goal for treatment, at over two-years post accident, I agree with Dr. Walters that where there is no objective injury, it is unlikely that the applicant would benefit from further passive treatment for what appears to be soft-tissue injuries.

9Further, where the applicant reported to Dr. Walters that she had returned to playing softball, was riding her recumbent bike, had returned to work, demonstrated full functional range of motion in her back and shoulders and was not taking any pain medication, it is difficult to accept that the treatment proposed is reasonable and necessary to achieve the stated goals. Finally, the applicant’s physician, Dr. Langer, has recommended an active approach to therapy with aerobic exercise and weights, rather than passive treatment, as far back as 2017, and the applicant self-reported that injections had helped with her pain. Accordingly, and in the absence of more fulsome submissions from the applicant, I find the treatment plan is not reasonable and necessary or payable.

Chronic Pain Assessment in the amount of $2,460.00

10This OCF-18 dated July 3, 2019 proposed funding for a chronic pain assessment in order to evaluate the applicant’s physical status, offer a diagnosis on same and provide an opinion on causation in relation to the accident. The report of Dr. Patel from October 2018 indicates that the applicant was keen to try nerve blocks and, after a series of injections, the applicant reported immediate improvement. Meanwhile, the chronic pain report of Dr. Karmy dated August 26, 2019 identified a laundry list of symptoms and diagnoses with “chronic” modifiers, as well as post-traumatic fibromyalgia, a mild traumatic brain injury, osteoarthritis and chronic pain.

11I found Dr. Karmy’s report to be disproportionate to the bulk of the medical evidence and, indeed, the applicant’s own self-reporting and the report of Dr. Patel from one year prior. I agree with Dr. Walter’s report that his findings were more in line with the records from the applicant’s physician, Dr. Langer, where the applicant reported improvement from her pain injections, was back to playing and coaching softball and reported no functional difficulties at work and the findings of Dr. Bhargava. Many of the impairments identified by Dr. Karmy cannot reasonably be tethered to the June 2017 accident, which consistently revealed soft-tissue impairments. In my view, Dr. Karmy’s report actually raises additional causation issues that the applicant’s submissions do not squarely address, which calls into question the sincerity of the goal of providing an opinion on causation.

12In any event, the applicant’s submissions did not engage with the reasonable and necessary criteria to explain why a second chronic pain assessment was needed in July 2019 after Dr. Patel provided a report in October 2018 (following Dr. Bhargava’s recommendation) that indicated the applicant was feeling relief from her injections and where there is limited evidence in Dr. Langer’s notes of a deterioration in the applicant’s condition. For these reasons, I prefer the report and findings of Dr. Walters as it is more in line with the bulk of the medical evidence. Accordingly, I find no reason to interfere with Aviva’s determination that the OCF-18 in dispute is not reasonable and necessary.

13As no benefits are overdue, it follows that no interest is payable under s. 51.

ORDER

14The applicant is not entitled to either of the treatment plans in dispute or interest, as she has not met her burden of demonstrating that they are reasonable and necessary as a result of the accident.

Footnotes

1. 1O. Reg. 34/10, as amended.