Ralph Abella v. Aviva General Insurance, 2022 CanLII 73097

Citation: Abella v. Aviva General Insurance, 2022 ONLAT 20-008268/AABS

Licence Appeal Tribunal File Number: 20-008268/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:

Ralph Abella

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Lawrence H. Calenti, Counsel

For the Respondent: April Snow, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on July 15, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“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

2The disputed claims in this hearing are:

a. Is the applicant entitled to chiropractic, massage and physiotherapy treatment recommended by North Toronto Rehabilitation and Physiotherapy Centre (“NTR”) in the following treatment plans (“OCF-18”): i. OCF-18 for $1,577.00 denied on June 25, 2020? ii. OCF-18 for $1,272.36 denied on July 24, 2020? iii. OCF-18 for $1,129.55 denied on August 31, 2020? iv. OCF-18 for $986.74 denied on September 24, 2020? v. OCF-18 for $873.93 denied on November 30, 2020? vi. OCF-18 for $1,272.36 denied on December 18, 2020?

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

RESULT

3I find the applicant is not entitled to payment for the six OCF-18s in dispute, as he has not met his onus to prove that they are reasonable and necessary. As no benefits are owing, no interest is payable.

ANALYSIS

Are the Treatment Plans Reasonable and Necessary?

4Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident.

5The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, 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.

6As all six OCF-18s have similar modalities, goals and address similar issues, I will address them all at once. Collectively, the OCF-18s in dispute proposed an additional 71 sessions of treatment, comprising 44 chiropractic, 20 massage and 7 physiotherapy sessions.

7The applicant submits that he had a bona fide need for the proposed treatment, as he continued to experience ongoing back, shoulder, neck and left wrist/thumb pain. As a result of the accident, the applicant sustained an injury to the left ulnar collateral ligament of the thumb² requiring two casts and a splint.

8The applicant further asserts that in addition to the thumb ligament injury, he has suffered strains to his shoulder, cervical, and lumbar spine, which have contributed to his chronic pain. He submits his family physician, Dr. R. Tan’s clinical notes and records and reports³ as evidence.

9The applicant also relies on the treatment records from North Toronto Rehabilitation and Physiotherapy Centre (“NTR”) and the medical report from his chiropractor Dr. I. Kai⁴, to establish his injuries and ongoing chronic pain. The applicant submits that the treatment he received from August 2018 to January 2021 was instrumental to his pain management, return to work, and returning to most of his activities of daily living. As such he asserts that the OCF-18s in dispute were reasonable and necessary as the pain relief improved or maintained his level of function.

10In response, the respondent states that the OCF-18s are not reasonable and necessary, as the goals of treatment had long been reached prior to the submission of the disputed treatment plans.

11The respondent further submits that the applicant had already received an excessive amount of therapy for soft tissue injuries – specifically, the applicant had already received 106 sessions of passive physical therapy and had been paid over $14,000.00 in medical benefits⁵.

12The respondent relies on the two s.44 Insurer’s Examinations (“IEs”) conducted by its orthopaedic surgeon Dr. L. M. Weisleder. In his September 7, 2019 IE Report, Dr. Weisleder noted that the applicant had achieved maximum medical improvement with regard to the soft tissue injuries to his neck and back, but not with respect to the injury to his left thumb⁶.

13Upon reassessment on December 5, 2020, Dr. Weisleder noted that testing revealed increased range of motion in most areas and opined that the applicant had now achieved maximum medical improvement in all areas. He felt that no further ongoing treatment was recommended⁷. The respondent further asserts that the evidence provided by the applicant, namely the clinical notes and records (“CNRs”) and reports from his family doctor and chiropractor, do not indicate ongoing, functionally limiting chronic pain.

14On review of the submissions and the medical evidence, I agree with the respondent. I am sympathetic to the applicant’s subjective reports of pain. However, the applicant has led limited medical evidence to establish that his ongoing physical impairments require the ongoing facility-based treatment proposed in the six OCF-18s.

Proposed Treatment for Left Hand/Thumb Injury

15The applicant proposes treatment for his back, neck, shoulders and left hand. Although the OCF-18s all propose treatment for the totality of the applicant’s symptoms, given the fact that there have been different diagnoses for the left hand versus the back, neck and shoulder injuries, I will assess the injuries separately.

16The applicant sustained an injury to the left ulnar collateral ligament of the thumb, as a result of the accident. Initially, it was believed that the applicant had suffered a partial Ulnar Collateral Ligament (‘UCL’) tear and was treated with four months of immobilization, by way of two consecutive casts and a splint. However, a subsequent MRI in February 2019, showed thickening of the UCL but no obvious T2 signal/tear or fracture fragment. This was suggestive of a strain rather than a fracture or tear⁸.

17As a result of pain and functional limitations, the applicant’s family doctor referred him to Dr. A. Golger, plastic surgeon, who concurred with the diagnosis of tendinitis and ulnar collateral ligament strain. In his June 25, 2019 letter, Dr. Golger noted that this type of injury can have a chronic pain component and recommended specific treatment modalities, namely: a trial of corticosteroid injections and a referral to a hand therapist for more focal treatment with anti-inflammatory modalities, as well as deep friction massage and desensitization⁹.

18Based on the submissions and evidence provided by the applicant, it does not appear that the applicant followed the specific treatment recommendations of Dr. Golger. The applicant noted in his submissions that he tried one steroid injection, but did not repeat it, as it only provided two weeks of pain relief. There is no evidence that the applicant saw Dr. Golger again or followed through with the referral to the hand therapist Dr. Golger had recommended.

19The applicant attended at NTR from August 2018 to January 13, 2021 for rehabilitative treatment. All of the six OCF-18s in dispute were from NTR and proposed a similar combination of treatment services. It appears that the bulk of the proposed treatment was not for the applicant’s hand, but for the soft-tissue strains to the neck and back, namely 44 chiropractic, 20 massage therapy and 7 physiotherapy sessions.

20The treatment records from NTR indicate that the type of limited treatment provided for the applicant’s left hand, was for “wax” and periodically, “laser” treatment¹⁰. It does not appear that any of Dr. Golger’s recommendations were being implemented by NTR. Although the six OCF-18s prepared by Dr. Kai list concurrent treatment being “(follow-ups with his family physician and specialists as needed, in light of ligament tear in left thumb”¹¹, there is no evidence that the applicant followed-up with any hand specialists after the June 2019 visit with Dr. Golger.

21From the evidence provided by the applicant, it appears that the treatment provided by NTR for his left-hand injuries was ineffective. In the July 24, 2020 OCF-18, Dr. Kai noted that the applicant claimed that his hand was improving with sessions of physiotherapy in regaining functional range of motion. However, the subsequent OCF-18s submitted contradict this alleged improvement. In the August 31, 2020 OCF-18, Dr. Kai recorded that the applicant continued to experience pain in his left wrist and was unable to perform any lifting or twisting activities with his left hand. In the November 30, 2020 OCF-18, Dr. Kai reports that “grip strength is still quite weak on reassessment, further therapy is needed to regain strength...”¹²

22This lack of progress over two years of treatment was similarly noted in the s.44 IE re-assessment conducted in December 2020. In the interview with Dr. Weisleder, the applicant reported that he had persistent left-hand pain and that his left thumb pain had actually “increased since last review” [in September 2019]¹³.

23As a result, it is difficult to see how the facility-based treatment proposed in the six disputed OCF-18s would be effective treatment for the applicant’s tendinitis and ulnar collateral ligament strain. The evidence submitted indicates that: (i) the applicant self reported that his thumb pain had increased from September 2019 to December 2020 (while he was receiving the treatment proposed by NTR); (ii) the treatment provider (Dr. Kai) did not note functional improvements in the applicant’s hand as recently as November 2020; and (iii) the bulk of the proposed treatment in dispute was not for the applicant’s hand, but his back and neck.

24The respondent conducted two s. 44 assessments. In the September 16, 2019 IE report, Dr. Weisleder noted that the applicant had not yet received maximum medical recovery with regard to the injury in his left thumb. In the subsequent December 16, 2020 IE reassessment, Dr. Weisleder noted that the applicant was no longer under Dr. Golger’s care, and had reviewed the MRI and ultrasound of the applicant’s thumb showing a strain rather than a UCL tear. At this point, Dr. Weisleder noted that the applicant had reached maximum medical improvement in all areas, including the thumb, and recommended that no further treatment was required¹⁴.

25The applicant submits that the letters of his family doctor noting his pain and recommending physical therapy are compelling evidence of the necessity of the proposed OCF-18s. While I accept that the applicant has experienced pain in his left wrist/thumb post-accident and that some treatment may be warranted, he has not established that the specific treatment provided by NTR in the six OCF-18s is effective management of this pain or impairments.

26Three of the treatment goals specified in the six OCF-18s were: pain reduction, increase in strength and increased range of motion. However, over the six-month period covered by the OCF-18s (while the applicant was incurring the treatment in question from NTR) it does not appear that these goals were met to a reasonable degree. In addition, it is difficult to see how the cost and time expended to achieve these goals is proportional to the benefit, given that alternate specific treatment recommendations had been provided by the applicant’s specialist, Dr. Golger, and did not appear to be implemented as part of the proposed treatment plans.

Proposed Treatment for Back, Neck and Shoulder Pain

27The applicant submits that in addition to his left hand/thumb pain, he suffers ongoing pain to his neck, back and shoulders. The applicant reported pain to his family doctor, Dr. Tan, one-month post-accident and received a referral for rehabilitation therapy. The applicant began chiropractic, massage and physiotherapy treatment with Dr. Kai at NTR in August 2018 and continued until January 13, 2021.

28The applicant has not led any objective medical evidence to establish that he suffered anything other than soft tissue injuries to his neck, shoulders and back.

29On September 28, 2018, Dr. Tan diagnosed the applicant with “whiplash injury”¹⁵ and in the two s. 44 IE assessments, Dr. Weisleder found that in addition to the thumb injury, the applicant sustained a cervical strain, thoracic and lumbar strain. X-rays of the applicant’s shoulders conducted immediately after the accident and in August 2020 were normal¹⁶.

30Although the applicant submits that his treatment records from Dr. Kai and Dr. Tan establish his ongoing chronic pain, I do not find the evidence sufficient in this regard. Dr. Kai, the applicant’s treatment provider at NTR, had provided correspondence dated January 24, 2021, stating that the applicant had suffered pain since July 2018, making it chronic in nature¹⁷. However, a diagnosis of chronic pain would be outside of Dr. Kai’s area of expertise, as a chiropractor.

31In addition, the family physician, Dr. Tan provided two letters in support of the applicant: (i) a responding letter to applicant’s counsel faxed October 31, 2019, where he agreed that the applicant had complained of pain for more than six months to a year; and (ii) a letter dated February 16, 2021, where Dr. Tan states that the applicant continues to complain of upper back, shoulder, neck and left wrist pain.

32I am not persuaded the letters of Dr. Tan. Firstly, while both of Dr. Tan’s letters are supportive of ongoing treatment, they appear to stress that ongoing treatment is required for the applicant’s left wrist and hand. In the letter dated Feb 16, 2021, Dr. Tan states in his concluding sentence that “due to his on-going left wrist pain, a physical therapy is essential to ensure a safe and effective recovery”¹⁸.

33Similarly, in the October 7, 2019 letter, when responding to applicant counsel’s question of whether the applicant should continue with his treatment with NTR, Dr. Tan replied in the affirmative, noting, “please refer to plastic surgeon’s Dr. Golger’s suggestions.”¹⁹ These previously discussed recommendations from Dr Golger were solely with respect to the left thumb injury.

34Secondly, while in his letters Dr. Tan notes the applicant’s self-reports of pain, he does not diagnose, test, or assess the applicant for chronic pain. While a formal diagnosis of chronic pain or a report of a specialist is not mandatory to establish chronic pain, the applicant must demonstrate a functional impairment as a result of his pain.

35In the present matter, the applicant was able to return to work on a modified basis, within one week of the accident. The applicant noted in his submissions that by June 2019, he had returned to full-time work. Similarly, Dr. Kai noted in his letter dated January 24, 2021, that the applicant is able to perform most, if not all, of his activities of daily living. Dr. Tan corroborated that the applicant remained independent with his activities of daily living in his letter dated February 16, 2021.

36Finally, the CNRs from NTR and Dr. Tan do not document an ongoing pattern of debilitating and severe chronic pain affecting functionality. While the applicant attended at NTR on a regular basis, there are more than 20 entries where the applicant complains only of “stiffness” or “tightness” in the back, neck or shoulders, rather than pain²⁰.

37Similarly, the CNRs of Dr. Tan indicate that the applicant only attended at Dr. Tan’s office twice in 2019; Once in April 2019 where he did not appear to refer to any back, neck or shoulder pain and once in October 2019 with complaints of neck and back pain. In 2020, the applicant’s pain complaints to Dr. Tan would vary, at times complaining of pain in his shoulder and neck, but on different visits, only his lower back or wrist. On other visits he had no pain complaints at all. Further, the applicant does not submit evidence indicating that he had to take prescription medication to manage pain.

38Both s. 44 IE Reports found that the applicant had sustained only a strain to his neck, upper back and lower back. Testing indicated an increased range of motion in the cervical spine, right and left shoulder flexion in the period between the two IE Reports. The applicant reported that he was working full-time and was independent in his self-care tasks. Dr. Weisleder concluded that the applicant had been appropriately treated for injuries sustained from the accident and that no ongoing treatment is required.

39The applicant’s self-reporting that he felt better after therapy although the pain would return, is insufficient to establish that a proposed treatment is reasonable and necessary. There is little evidence as to how this proposed treatment would achieve its goals, or evidence establishing that the proposed treatment is reasonable and necessary as a result of the injuries suffered in the accident. While pain relief is a legitimate goal for treatment, the treatment plans in question were submitted over two years post-accident. The applicant has not led sufficient objective evidence of physical injury to his neck, shoulders or back outside of soft-tissue injuries that would warrant further passive facility-based treatment.

40As a result, I find that the applicant has not met his burden of proof to establish that the additional treatments proposed in the six OCF-18s are reasonable and necessary pursuant to the Schedule.

Interest

41Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

42As no benefits are overdue, no interest is payable under s.51.

CONCLUSION AND ORDER

43For the reasons outlined above, I find that the applicant is not entitled to the six disputed treatment plans claimed. No award is made. No interest is payable. The application is dismissed.

Footnotes

1. 1O. Reg.34/10, as amended.
2. 2Applicant’s Submissions, Tab 4, MRI dated February 25, 2019.
3. 3Applicant’s Submissions, Tab 6, letter from Dr. Romeo Tan faxed October 31, 2019.
4. 4Applicant’s Submissions, Tab 7, medical report, Dr. Ian Kai, dated January 24, 2021.
5. 5Respondent’s Submissions, at p. 9 par 50 and Tabs 3HH and 3U.
6. 6Respondent’s Submissions, Tab P, Section 44 report of Dr. Weisleder dated September 16, 2019.
7. 7Respondent’s Submissions, Tab CC, Section 44 report of Dr. Weisleder dated December 16, 2020.
8. 8Applicant’s Submissions, Tab 4, MRI dated February 25, 2019.
9. 9Applicant’s Submissions, Tab 8, letter from Dr. Golger dated June 25, 2019.
10. 10Respondent’s Submissions, Tab 3HH pp. 15-24 and 40-48.
11. 11Applicant’s Submissions, Tab 1, Six OCF-18s.
12. 12Ibid.
13. 13Respondent’s Submissions, Tab CC, Section 44 report of Dr. Weisleder dated December 16, 2020, p.7.
14. 14Respondent’s Submissions, Tab CC, Section 44 report of Dr. Weisleder dated December 16, 2020, p.9,10.
15. 15Respondent’s Submissions, Tab H – CNR of Dr. Tan dated September 28, 2018.
16. 16Respondent’s Submissions, Tabs 3B and 3X
17. 17Applicant’s Submissions, Tab 7, medical report, Dr. Ian Kai, dated January 24, 2021.
18. 18Applicant’s Submissions, Tab 8, letter from Dr. Tan, dated February 16, 2021.
19. 19Applicant’s Submissions, Tab 6, letter from Dr. Tan, faxed October 31, 2019.
20. 20NTR Clinical Notes and Records, entry dates for: October 10, 2018, January 20, 2019 February 7, 14, and 21, 2019, March 20, 27, 2019, April 11, 2019, May 8 and 31, 2019, June 4 and 24, 2019 December 9, 2019, January 27, 2020, February 24, 2020, June 11, 2020, August 13 and 31 2020, September 9, 2020, October 14, 2020 and November 11, 2020.