Lagoudis v. Aviva Insurance Canada, 2022 CanLII 6780

Licence Appeal Tribunal

Citation: Lagoudis v. Aviva Insurance Canada, 2022 ONLAT 20-000893/AABS

Licence Appeal Tribunal File Number: 20-000893/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:

Nicos Lagoudis

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Nicos Lagoudis, Applicant

Rajesan Rajendran, Counsel

For the Respondent:

Aviva Insurance Canada

Rozlien Brikha, Counsel

HEARD: In Writing

January 20, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Nicos Lagoudis, was injured when he was involved in an altercation on February 8, 2014. The other person drove his vehicle into the applicant, hitting his knees and causing the applicant to fall against the vehicle and injure his right shoulder (“the accident”). The applicant sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for medical benefits were denied by the respondent, Aviva Insurance Canada.

2The respondent denied the applicant’s claims for chiropractic treatment. The applicant submits the chiropractic treatment is reasonable and necessary for him to engage in his activities of daily living because of his accident injuries.

3I find that the applicant is entitled to the medical benefits claimed.

ISSUES

4Upon confirmation of the parties,² the issues to be decided in the hearing are:

1. Is the applicant entitled to $960.00 ($2,142.81 less $1,182.81 approved by the respondent) for chiropractic and physiotherapy treatment from Health One Rehabilitation recommended by Dr. Nancy Hugh in a treatment plan (OCF-18) dated September 8, 2017?
2. Is the applicant entitled to $1,400.00 ($1,445.00 less $45.00 approved by the respondent) chiropractic and physiotherapy treatment from Health One Rehabilitation recommended by Dr. Nancy Hugh in a treatment plan (OCF-18) dated December 31, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is entitled to the chiropractic and physiotherapy treatment claimed in the disputed treatment plans, but at an hourly fee no greater than is allowed for chiropractors and physiotherapists under the Professional Service Guideline.

ANALYSIS

6Section 15 of the Schedule provides that an insurer shall pay benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant. The applicant bears the onus of proving on a balance of probabilities that the claimed chiropractic treatment is reasonable and necessary.

7The reasonableness and necessity of treatment must be held to an established proper standard. The standard requires that:

a. The treatment goals, as identified, are reasonable;

b. The treatment goals are being met to a reasonable degree; and

c. The overall costs of achieving these goals are reasonable.³

8I agree with the adjudicators who have found that pain management or reduction is a reasonable goal for a treatment plan.⁴ Treatment that relieves physical pain and, therefore, improves function is a legitimate medical and rehabilitative goal.⁵

9The respondent’s submissions appear to question the applicant’s injuries. The applicant sustained a right shoulder dislocation in 2011 from which he recovered well.⁶ The applicant submits that in the accident, he rolled onto the hood of the assaulter’s vehicle, striking his head and right shoulder. The video shows that the applicant did not strike his head or shoulder. He extended his hands down against the hood as he was struck and deflected off the side of the vehicle. However, the consensus medical opinion is that, as a result of the accident, the applicant sustained residual symptomatology related to myofascial strains of the cervical spine and right shoulder, a full thickness tear of his right rotator cuff and a possible labral tear.⁷

10The respondent submits that the treatment plans are not reasonable or necessary because, throughout the treatment plans in dispute, the treatment providers list the same exact seven injuries and make no remarks on the level of improvement of symptoms. The respondent submits that this demonstrates that the treatment goals are not being met to a reasonable degree. The applicant submits that the treatment plans will meet the goals.

11Dr. Hugh reported in her September 8, 2017 treatment plan that, since the accident, the applicant has been diagnosed with colitis/prostate infection, cardiovascular complications, hospitalization and heavy medication which prevents him from being able to take Tylenol 3 for pain. The goals of the treatment plan were pain reduction, increased strength, range of motion and to return the applicant to his activities of normal living and modified work activities.

12The goals in the December 31, 2019 treatment plan are almost the same as the first treatment plan with the exception that a return to modified duties at work was no longer a goal. This is understandable given that the applicant sold his mechanic’s shop in 2019.

13The applicant submits that the treatment plans are reasonable and necessary because the therapy program provides relief and improvement in his symptoms. The evidence supporting his submissions are comments he made to his treatment providers in 2014 and 2015 that are recorded in his treatment provider’s notes. By May 18, 2016, Dr. Samuel Soriano, orthopaedic surgeon, noted that heat, massage, inferential current treatment and exercise were discontinued because they were not helpful.⁸ Dr. Soriano’s comments imply that the treatment was no longer providing any pain relief. However, given that the applicant previously found some pain relief with treatment, I find it was reasonable for him to resume treatment in 2017.

14The respondent submits that the evidence of the applicant is important in determining whether the treatment in issue assists him.⁹ The applicant advised Dr. Yee that the treatment he received into 2017 provided brief relief of his headaches. The respondent submits that the applicant’s headaches were not caused by an accident, but by the applicant being punched in the face.

15The applicant submits that the respondent has no basis for alleging the headaches arise from being punched in the eye because there is no evidence of a causal connection. However, the only one who opined that the applicant’s headaches are accident related is Dr. Hugh, who diagnosed tension headaches. Dr. Hugh is a chiropractor and is not qualified to diagnose the cause of headaches. Given that no one else, including Dr. Getahun and the applicant’s family physician, Dr. Wayne Hsieh, gave an opinion that the applicant’s headaches were caused by the accident, I agree with the respondent’s submissions. Having said that, headaches are not the only injury the treatment plans are intended to address.

16The applicant submits that physiotherapy was assisting him with his recovery. However, because he was unable to attend further physiotherapy treatments, his accident injuries have not resolved, and they impair his ability to carry on a normal life. He relies on the report of Dr. Tajedin Getahun, orthopaedic surgeon, in support of his submissions. Dr. Getahun did not provide any opinion or comment that physiotherapy was assisting the applicant’s recovery. His opinion that the applicant’s prognosis is guarded due to his response to treatment implies that the applicant has not responded well to treatment. Dr. Getahun reported that the applicant is on multiple medications for his pain including Nabilone, Cymbalta, codeine and fish oil. He did not address whether the treatment provides any pain relief for the applicant.

17Dr. Getahun recommended physiotherapy and chiropractic treatment because without it, he does not anticipate any improvement. The respondent submits that this is a contradiction to his guarded prognosis. The applicant submits that Dr. Getahun’s report is not internally inconsistent. I agree for the following reasons. The goal of the treatment plans is not to cure the applicant, but to alleviate his pain symptomology and improve the strength and range of motion of his impacted areas, leading to improved functional capacity. Accordingly, it is possible for the injuries to be permanent in nature and still be receptive to relief through treatment.

18The respondent submits that Dr. Getahun’s recommendations should carry little weight because they post-date the treatment plan by two to four years. I agree with the applicant that a current report presents no issue in this case when the applicant has longstanding complaints of chronic pain. Dr. Getahun’s opinion is of some assistance as it confirms the applicant would benefit from the treatment despite the passage of time.

19The respondent relied on the insurance examination (“IE”) reports of Dr. Gilbert Yee, orthopaedic surgeon, dated January 5, 2018 and February 25, 2020 to deny the claims. Dr. Yee found that the recommended assistive devices in Dr. Hugh’s treatment plan dated September 9, 2017 were reasonable and necessary. However, he did not agree that three chiropractic treatment sessions and nine physiotherapy treatments were reasonable or necessary. Dr. Yee did not feel any further formal facility-based rehabilitation would provide any long-lasting clinical benefit. Also, the applicant did not report any significant sustained improvement with his prior rehabilitation program.

20Dr. Yee did not explain what “significant sustained improvement” is. Dr. Yee did not comment on whether the applicant receives any pain relief from the treatment in his February 25, 2020 report, other than to say the applicant did not have any significant relief from the treatment he had been receiving in the two months before his assessment. In the absence of any explanation of what “significant relief” is, Dr. Yee’s comment implies that the applicant receives some pain relief from the chiropractic and physiotherapy treatment recommended in the treatment plan.

21The applicant was initially prescribed Mobicox and Tylenol #3. Dr. Soriano, an orthopaedic surgeon who conducted an IE of the applicant in 2016, reported that the applicant became addicted to Tylenol #3 and stopped taking any medication around November 2015.¹⁰ Dr. Yee read Dr. Soriano’s report and therefore must have been aware of the applicant’s previous addiction to Tylenol#3. I find that formal facility-based rehabilitation is necessary when it assists in keeping an insured person off of addictive medication, especially when the insured person is an addict.

22The test in the Schedule is not “significant improvement or significant relief” as described by Dr. Yee. It is whether the goal of pain relief is reasonable. It is notable that the applicant was prescribed an opioid in 2020 for his shoulder injury, after the 2019 treatment plan was denied. I draw an inference from the timing of the prescription that the disputed treatment provided enough pain relief that the applicant was able to stay off opioids while he was undergoing treatment. Without the chiropractic and physiotherapy treatment, he required opioids for pain relief. When treatment can reduce the amount of pain medication a person takes, it is reasonable and necessary.

23I also note that when Dr. Yee saw the applicant in 2017, he could flex his neck forward to touch about four or five fingerbreadths from his chin to chest, extension was 20 degrees, rotation was 15 degrees and lateral flexion was 20 degrees. This was a reduction from when he was assessed by Dr. Soriano in 2016. I have no information on what the applicant’s cervical ranges of motion were when he restarted treatment in September 2017.

24When he examined the applicant in 2020, Dr. Yee reported that the applicant could touch three fingerbreadths from his chin to chest, extension was 30 degrees, rotation was 60 degrees and lateral flexion was 20 degrees. In other words, although the applicant reported that there was no significant improvement, there was an increased range of motion from Dr. Yee’s initial assessment in 2017, during which time the applicant underwent further treatment. It stands to reason that the applicant underwent improvement in ranges of motion from the two months of treatment he received prior to his assessment with Dr. Yee in 2020. Accordingly, I find that the two treatment plans were reasonable for the stated goals of improving the applicant’s ranges of motion.

25The respondent submits that the applicant has not proven that the costs of the treatment plans are reasonable. The fees charged per session on the 2019 plan are less than the 2017 plan. However, neither treatment plan allows one to determine the hourly fees recommended and whether those fees are in accordance with the Professional Service Guideline.¹¹ The treatment plans refer to the user manual coding guidelines at www.hcaiinfo. However, the manual provides no further enlightenment. Accordingly, I am unable to make a determination that the cost of the treatment is reasonable.

26For the reasons given, I find that the chiropractic and physiotherapy treatment plans in issue were reasonable and necessary, but at an hourly fee no greater than is allowed for chiropractors and physiotherapists under the Professional Service Guideline.

27The applicant is entitled to any interest that may be payable in accordance with the Schedule.

CONCLUSION

28I find that the applicant is entitled to the remaining chiropractic and physiotherapy treatment recommended by Dr. Nancy Hugh in the treatment plan dated September 8, 2017 and her treatment plan dated December 31, 2019 at an hourly fee no greater than is allowed for chiropractors and physiotherapists under the Professional Service Guideline.

29The applicant is entitled to interest on any overdue payments on the treatment plans in accordance with the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2The dates of the treatment plans were confirmed by the parties and are not as set out in the case conference Adjudicator’s Order.
3. 317-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), para.11
4. 416-001418 v Aviva Insurance Canada, 2017 CanLII 69243 (ON LAT), para. 16
5. 516-000536 v Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT) para.11 citing Wong and Allstate Insurance Co. of Canada (FSCO A99-000545. September 22, 2000)
6. 6Applicant’s submissions: Tab 6.1, report of Dr. Samuel Soriano, orthopaedic surgeon dated May 18, 2016, p.83
7. 7Applicant’s submissions: Tab 6.1, report of Dr. Samuel Soriano, orthopaedic surgeon dated May 18,2016, p.85; Tab 8, report of Dr. Gilbert Yee, orthopaedic surgeon dated January 5, 2018, p.127; Tab 12 , report of Dr. Tajedin Getahun, orthopaedic surgeon, dated April 8, 2021, p.233; Tab 4, OCF-3 Disability Certificate of Dr. Wayne Hsieh, physician, dated January 22, 2015
8. 8Applicant’s submissions: Tab.6.1, Dr. Soriano’s report dated May 18,2016, p. 82. Dr. Soriano conducted an insurer’s examination under s.44 of the Schedule (“IE”) at the respondent’s request.
9. 9D.P. and Chieftain Insurance, 2017 CanLII 147726 (ON LAT)
10. 10Applicant’s submissions: Tab 6.1 report of Dr. Soriano dated May 18, 2016, p.82
11. 11Superintendent’s Guideline No. 03/14