Bowen v. Aviva Insurance Company, 2022 CanLII 8664

Citation: Bowen v. Aviva Insurance Company, 2022 CanLII 8664

Licence Appeal Tribunal File Number: 20-011934/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:

Keishana Bowen

Applicant

And

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Nancy Aquilina

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Lauren Kolarek, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on March 11, 2018 and sought medical benefits from the respondent, Aviva General Insurance (“Aviva”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to a medical benefit in the amount of $4,000.58 for chiropractic treatment, proposed by Dr. James Tran in a treatment plan (OCF-18) submitted on June 28, 2018?
2. Is the applicant entitled to a medical benefit in the amount of $3,636.20 for physiotherapy treatment, proposed by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on November 12, 2018?
3. Is the applicant entitled to interest on any overdue payment of benefits?

3In the Case Conference Report and Order of Adjudicator Grieves dated April 1, 2021, it was noted that the Minor Injury Guideline issue had resolved.

RESULT

4Based on the totality of the evidence and submissions before me, I find that:

a. The applicant is not entitled to $4,000.58 for chiropractic treatment by Dr. James Tran in a treatment plan submitted on June 28, 2018. b. The applicant is not entitled to $3,636.20 for physiotherapy treatment by Physio Fix and Fitness in a treatment plan submitted on November 12, 2018. c. As there is no benefit payable, no interest is payable.

ANALYSIS

Is the applicant entitled to chiropractic and physiotherapy treatment?

5For the following reasons, I find that the Treatment and Assessment Plans/OCF-18s submitted on June 28, 2018 and November 12, 2018 (“treatment plans”) are not reasonable and necessary and therefore, the applicant is not entitled to chiropractic and physiotherapy treatment and interest.

6In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 15 of the Schedule. The applicant bears the onus of proving entitlement on the basis that the treatment plans are reasonable and necessary.

7The applicant submits that, as a result of the accident, she has ongoing and consistent pain in her neck, back, knee, hip, and shoulders as reported throughout the records of the family physicians and treating medical practitioners. She relies upon the clinical notes and records of Dr. Vishay Dunraj and Dr. Janmeet Sandhu, family physicians, and progress reports of Dr. James Tran, chiropractor, and Dr. Thanushan Jeyapalan, chiropractor, to establish that she has not achieved maximum medical recovery and requires further physical treatment for pain management.

8In response, Aviva submits that the treatment plans are not reasonable and relies on Dr. Jacqueline Auguste, orthopaedic surgeon, dated October 4, 2018 who opines that the applicant has sustained lumbar and cervical strains and sprains and that she has reached maximum medical improvement.²

9The clinical notes and records of Dr. Dunraj and Dr. Sandhu, family physicians, note that the applicant sustained physical injuries including bilateral shoulder pain, back pain, and neck pain as a result of the accident that they describe as musculoskeletal soft tissue injuries throughout the records.³ An x-ray of the applicant’s spine and neck was completed a day following the accident, that was normal. On July 26, 2018, Dr. Dunraj completed a Disability Certificate (OCF-3) that cites her soft tissue injuries to be lumbar and cervical strain a few months following the accident.⁴

10The physical injuries as noted by the applicant’s family physician are consistent with the findings of the respondent’s orthopaedic surgeon, Dr. Auguste, who concludes that applicant has sustained strains and sprains. Further to this, Dr. Auguste reports that the applicant has full range of motion in her lumbar spine and neck and that the applicant reports no end range pain or stiffness during her assessment.

11The applicant submits that her family physicians, Dr. Dunraj and Dr. Sandhu, regularly note that she is experiencing chronic pain. After a review of the evidence, I find that the applicant’s self reports of pain to her family physicians on their own are not compelling evidence in support of chronic pain or chronic pain syndrome. In addition to this, the applicant does not direct me to an actual diagnosis of chronic pain by her family physicians or referrals to medical practitioners for a chronic pain diagnosis or treatment.

12Lastly, I am not persuaded that her ongoing pain is as a result of the accident to justify further physical treatment as several pain complaints are noted prior and following a surgery. Further to this, they are noted in conjunction with gynecological or gynaecological symptoms. The bulk of the pain complaints fall within weeks following the accident but appear to be related to other conditions following this.

13The progress report of chiropractors Dr. Tran dated June 28, 2018, and Dr. Thanushan Jeyapalan dated November 8, 2018, both conclude that the applicant’s prognosis is fair short-term but good long-term and, go on to attribute the applicant’s psychological yellow flags and job responsibilities to the applicant’s delayed recovery.⁵ The applicant does not point me to any further evidence that establishes that her job responsibilities have impacted her medical recovery. In addition, I give little weight to the chiropractors’ statements that the applicant’s psychological symptoms have delayed her recovery given that it is beyond the scope of practice of a chiropractor to opine on psychological impairments.

14I am provided a psychological report by Dr. Ana Bodnar dated May 21, 2019 and psychological progress reports of Dr. Knolly Hill dated August 25, 2020 and January 3, 2021 that note subjective complaints of pain that appear to form the basis for their findings. Specifically, within the reports, the applicant’s level of function is measured against her self-reports of pain.⁶ After considering this evidence along with the evidence weighed above, I find that the Treatment and Assessment Plans/OCF-18s submitted on June 28, 2018 and November 12, 2018 are not reasonable and necessary and, therefore, the applicant is not entitled to chiropractic and physiotherapy treatment and interest.

CONCLUSION

15For the reasons outlined above, I find the following:

a. The applicant is not entitled to $4,000.58 for chiropractic treatment by James Tran in a treatment plan submitted on June 28, 2018. b. The applicant is not entitled to $3,636.20 for physiotherapy treatment by Physio Fix and Fitness in a treatment plan submitted on November 12, 2018. c. As there is no benefit payable, no interest is payable.

Date of Issue: February 8, 2022

_________________________

Nancy Aquilina, Adjudicator

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Written Submissions of the Respondent at Tab 1, Dr. Auguste, Orthopaedic Surgery Assessment Report dated October 4, 2018
3. 3Written Submissions of the Applicant at Tab 3 and 7, Clinical Notes and Records of Dr. Dunraj and Dr. Sandhu
4. 4Written Submission of the Applicant at Tab 5, Dr. Dunraj, Disability Certificate dated July 26, 2018
5. 5Written Submission of the Applicant at Tab 4 and Tab 6, Dr. Tran, and Dr. Jeyapalan, Progress Reports dated June 28, 2018 and November 8, 2018
6. 6Written Submissions of the Applicant at Tab 8, 9, and 10, Dr. Bodnar and Dr. Hill, Psychological Assessment Report dated May 21, 2019, Psychological Progress Reports dated August 25, 2020 and January 3, 2021