Licence Appeal Tribunal File Number: 20-002208/AABS
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:
Elvira Sanchez Mora
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Cara Boddy, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on December 6, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied the benefits for a physiotherapy treatment by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to $3,927.98 for physiotherapy, recommended by Healthmax Etobicoke in a treatment plan (OCF-18) denied July 10, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the physiotherapy treatment plan for $3,927.98. Interest applies on any overdue benefits incurred, pursuant to s. 51.
ANALYSIS
4To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. In order to accomplish this, the applicant should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
5The applicant argues that the treatment plan is reasonable and necessary because it assists the applicant in dealing with her pain from the injuries sustained in the accident. The applicant relies on the neurological evaluation by Neurologist, Dr. Vincenco Basile, a physiatry assessment report by Physical Medicine and Rehabilitation Specialist, Dr. Alice Kam, the clinical notes and records of Neurologist, Dr. David Morgenthau as well as the information contained on the treatment plan from the Physiotherapist, Ms. Mary Jane Calzado.
6The respondent argues that the disputed treatment plan is not reasonable nor necessary as the applicant’s psychosomatic pain is psychological in nature and passive physical therapy will not reduce her experience of pain or improve function. The respondent relies on the clinical notes and records from Access Alliance and Psychologist, Dr. Ana Bodnar, the physician assessment report by Physician, Dr. L. Corrin, the physiatry assessment report by Physiatrist, Dr. John Heitzner, and the clinical notes and records by the family doctor, Dr. Eoin Christianson.
7The treatment plan in dispute is dated June 7, 2019, and was completed by physiotherapist, Mary Jane Calzado. The goals of the treatment were to reduce pain, increase strength, increase range of motion, improve gait pattern, improve overall function, and a return to activities of normal living. The injury and sequelae information portion of the treatment plan listed the following: cervical and lumbar radiculopathy, sleep disorders, post-traumatic headache, injury of muscle and tendon of neck, sprain/strain of thoracic and lumber spine, sacroillace joint, hip, shoulder joint, and rotator cuff syndrome. All injury and sequelae listed were described as chronic.
8The treatment plan recommended 20 sessions of physical rehabilitation, 10 sessions of massage therapy, 8 sessions of shockwave therapy, a pillow, exercise equipment (TheraBand), and cuff weights.
9The respondent denied the treatment plan on August 27, 2019, based on the August 16, 2019, Physiatrist’s Insurer Examination (“IE”) report of Dr. Heitzner. In the report, Dr. Heitzner concluded the applicant has not responded to facility-based treatment and opined that continuation of this type of treatment is unlikely to lead to any significant change in the applicant’s symptoms or improved function.
10I find that the applicant has proven on a balance of probabilities that the treatment plan for physiotherapy is reasonable and necessary for the following reasons:
i. On September 14, 2018, Dr. Basile reported that the applicant has not reached maximum medical improvement and while her prognosis for further recovery is guarded, it is dependent on receiving further treatment. He recommended physical therapy at the rate of two to three times per week in order to give the applicant maximum opportunity for improvement from the primary musculoskeletal/soft tissues injuries.1
ii. The respondent argues that the applicant’s own independent physiatry assessor, Dr. Kam, did not recommend further physical treatment. While I find that Dr. Kam did not explicitly recommend further physical treatment in the physiatry assessment report dated May 11, 2019, she recommended hydrotherapy be added to the applicant’s existing rehabilitation treatments.2 I find this to mean that Dr. Kam was in favour of the applicant continuing with physical treatment.
iii. More than two and half years after the accident on July 31, 2020, the applicant attended a neurological assessment with Dr. Morgenthau. In his report, Dr. Morgenthau recommended the applicant restart physiotherapy and acupuncture.
iv. I put more weight on the applicant’s treating practitioners’ recommendations than the IE Physiatry report of Dr. Heitzner. Dr. Heitzner completed the physiatry assessment on August 1, 2019. In his conclusion, he documented that the applicant has not responded to facility-based treatment and continuation of this type of treatment is unlikely to lead to any significant change in her symptom reduction or improved function. However, he noted that the applicant received a course of therapy with temporary results.3 In my view, the temporary results reported by Dr. Heitzner is consistent with the applicant getting some relief from her symptoms.
v. Over two and a half years, each time the applicant visited a medical professional, she stated that she finds physical treatment assists with her symptoms and each time her treating practitioners recommended she receive physical treatment.
vi. Even though her results may be temporary, I find the treatment plan, as well as the cost, to be reasonable and necessary as it will assist the applicant in managing the injuries sustained in the accident by helping to reduce her pain, increase strength, improve her gait pattern, and her overall functioning so that she can return to activities of normal living.
CONCLUSION AND ORDER
11The applicant is entitled to $3,927.98 for physiotherapy treatment plan. Interest is payable in accordance with s. 51.
Released: April 4, 2022
__________________________
Amanda Marshall
Adjudicator