Nasirian v. Aviva Insurance Canada, 2022 CanLII 98068

Citation: Nasirian v. Aviva Insurance Canada, 2022 ONLAT 20-013340/AABS

Licence Appeal Tribunal File Number: 20-013340/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:

Nasrin Nasirian

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Loreto Scarola, Paralegal

For the Respondent: Christopher Lupis, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, Nasrin Nasirian, was involved in an automobile accident on December 7, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)¹ from Aviva Insurance Company, the respondent.

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The applicant was removed from the Minor Injury Guidelines (“MIG”) as a result of a psychological impairment identified in December of 2019.

ISSUES

4The following issues are to be decided:

(i) Is the applicant entitled to a medical benefit in the amount of $2,983.15 for chiropractic services recommended in a treatment plan (“OCF-18”) dated October 3, 2019 prepared by Spectrum Rehab Centre?

(ii) Is the respondent liable to pay an award under Regulation 664² because it unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5For the reasons outlined below, I find that the applicant has not met her onus to prove the treatment plan in dispute is reasonable and necessary pursuant to the Schedule. As such, she is not entitled to receive the medical benefits claimed.

6The respondent is not liable to pay an award pursuant to Regulation 664.

7The applicant is not entitled to any interest as there are no overdue payments.

ANALYSIS

8Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as 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 as a result of the accident.

Is the OCF-18 dated October 3, 2019 reasonable and necessary?

9For the reasons that follow, I find that the OCF-18 dated October 3, 2019 is not reasonable and necessary pursuant to the Schedule.

10The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating the benefits are reasonable and necessary on a balance of probabilities.³ To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

11In the OCF-18 completed by Ereen Michael, Physiotherapist, dated October 3, 2019, the applicant’s injuries are listed as sprain and strain of the lumbar spine, hip, other and unspecified parts of knee, shoulder joint and ankle, headache, nightmares, other sleep disorders, and Bipolar Affective Disorder, current episode mild or moderate depression. The OCF-18 indicates that the applicant reported that she has difficulty being in the same position for long periods of sitting, standing, walking and she has difficulty with tasks that include bending, lifting, carrying, as well as doing her chores such as cleaning and cooking. The applicant is not employed.

12The OCF-18 lists pain reduction, increased range of motion, increase in strength, as well as a return to activities of normal living as its stated goals. The physiotherapist recommends physiotherapy once to twice weekly as well as massage therapy for a period of ten weeks.

13The respondent submits that, prior to the OCF-18 dated October 3, 2019, two treatment plans were approved for physical therapy provided by Spectrum Rehab Centre. The applicant’s clinical and treatment records do not indicate whether she has benefitted from the physiotherapy. In the OCF-18 dated October 3, 2019, in the section that asks what the applicant’s improvement was at the end of the previous plan, the notation is “The patient still needs therapy.”⁴ It does not describe any progress or improvement from the previous treatment plan or whether the goals of the previous plans were met.

14The respondent submits that the applicant’s medical records do not support that she requires further physical treatment to assist her recovery and as such she has not met her burden of proving that a third treatment plan dated October 3, 2019 for physiotherapy is reasonable and necessary.

15The applicant met with her family physician Dr. Sherif Nessim on January 22, 2019 with complaints of knee joint pain and stiffness that started in December after the accident. She was assessed with “acute knee post MVA”⁵. Another visit occurred on February 22, 2019 where the applicant complained of knee joint pain and stiffness and aching pain in her lower back. She was assessed with lumbar strain⁶. A Disability Certificate that was completed on March 7, 2019 by the applicant’s physiotherapist (who completed the later disputed treatment plan) estimated the duration of the applicant’s disability to be 9 to 12 weeks. On March 11, 2019 the applicant advised her doctor that she had difficulty walking since the accident. The applicant attended Dr. Nessim’s office again on April 4, 2019 with complaints of knee pain and stiffness, as well as lower back pain. She advised the doctor that she had minimal physiotherapy as she was still waiting for insurance company approval. She was assessed with lumbar strain⁷.

16The last treatment plan that was partially approved was submitted on June 26, 2019. As such, I will focus my analysis on the medical records from this time period to October 3, 2019, and shortly thereafter, to determine whether the new treatment plan is reasonable and necessary.

17During a visit with Dr. Nessim on September 17, 2019 the applicant advised that her right knee was still sore as a result of the accident and she had been doing physiotherapy until the end of August. She still had soreness in the neck and back. She was assessed with lumbar strain. Her doctor advised her to continue physiotherapy⁸.

18Another visit occurred on December 17, 2019 where the applicant complained of an aching pain in her neck. She was assessed with myofascial strain of the cervical spine. The doctor indicated that the applicant would resume physiotherapy now that the insurance had approved it⁹. The applicant points out that the respondent actually denied this treatment and the applicant’s condition worsened because she did not have access to medical rehabilitation that was reasonable and necessary. The applicant submits that the doctor would not have noted that she would resume physiotherapy if it was not important or recommended. The respondent points out that although the doctor indicated that the physiotherapy would resume, he did not comment on any past progress or improvement as a result of the physiotherapy.

19In her submissions, the applicant makes reference to a fall injury that occurred in May of 2015 where she bruised her left shin and twisted her right leg. In a report dated November 15, 2018, Dr. Nessim indicated that it appeared she suffered from a soft tissue injury. The doctor made note that the discomfort had become chronic and that “full recovery from chronic injuries is far more guarded than that of acute injuries¹⁰.” The applicant submitted that this is important because she was already suffering from right-sided injuries that had become chronic prior to the collision. Her injuries were aggravated by the accident and continue to be chronic in nature. In his 2018 letter, Dr. Nessim indicated that he had referred the applicant to physiotherapy for the fall-related injuries, but she did not attend as she could not afford to go. By the time of the writing of the 2018 letter, Dr. Nessim advised that physiotherapy would still be a viable treatment but considering how much time had passed the chance for success with this treatment option would be guarded at best.¹¹

20During a psychiatric assessment by Dr. Susan Mackenzie, Psychiatrist, on September 19, 2019 to evaluate non-earner benefits, the applicant was diagnosed with adjustment disorder with depressed mood. During that assessment, the applicant advised Dr. Mackenzie that her family doctor told her she would have benefitted from more physiotherapy although the applicant felt these sessions were somewhat hopeless.¹²

21An Insurer’s Examination was conducted on October 12, 2020 by Vinita Tandon, Registered Occupational Therapist, for the purpose of considering a non-earner benefit. The applicant advised the assessor that she began therapy twice per week and that the sessions ended due to lack of coverage. Treatment consisted of exercise, stretches, passive modalities and massage and that she found the massage treatment helpful. The applicant reported to the assessor that she had the following physical complaints: right shoulder pain, low back pain, neck pain, left knee pain, and left sided head pain. The applicant denied improvement in her symptoms with respect to any of these physical complaints to date.¹³

22An Insurer’s Examination was conducted on December 16, 2019 by Dr. Ijaz Chaudhry, Physician. The purpose of the examination was to determine the reasonableness and necessity of the OCF-18 dated October 3, 2019.¹⁴ The applicant reported experiencing headaches, shoulder pain which improves with rest, massage and heat, a sore / achy neck which is relieved with massage and rest, sharp, burning, intermittent back pain which is alleviated with stretches, walking and massage.¹⁵ The applicant advised that she has difficulty performing household tasks however she is able to do them with pacing strategies. Her personal care activities were not affected.¹⁶

23Dr. Chaudhry conducted physical, neurological, shoulder, cervical, and lumbar spine examinations. He concluded that the applicant’s range of motion and strength testing presented normal findings across all joints. Tenderness was noted in the cervical spinous processes and the para cervical muscle. There was no tenderness in the lumbar spinous processes and para-lumbar muscles. The doctor found no evidence of any objective neurological or radicular pathology related to the accident.¹⁷

24Dr. Chaudhry reviewed diagnostic examinations including ultrasounds and x-rays of the applicant’s right knee and back from April 22, 2019, February 25, 2019, January 10, 2019 as well as some from 2015. He did not identify any underlying present or past medical issues that would inhibit or delay her recovery.

25Dr. Chaudhry was of the opinion that, strictly from a musculoskeletal perspective, the applicant suffered soft tissue injuries that would be consistent with “minor injuries” as defined by the Schedule. Dr. Chaudhry concluded that the OCF-18 dated October 3, 2019 is not reasonable and necessary. Even though some movements were painful, the applicant’s range of motion and strength testing presented normal findings across all joints.¹⁸

26Upon a review of the evidence, it is not clear whether the physiotherapy treatment received by the applicant provided any pain relief or otherwise improved her condition. Dr. Nessim’s medical notes make reference to neck, knee and back pain, but there is no mention of any improvement in the applicant’s condition as a result of the physiotherapy she had completed. The OCF-18 dated October 3, 2019 does not comment on any progress that has been made by the treatment, only indicating “the patient still needs therapy.” The applicant advised Vinita Tandon that she found massage treatment helpful however she also reported that she had right shoulder pain, low back pain, neck pain, left knee pain, and left sided head pain and that there was no improvement in her symptoms with respect to any of these physical complaints to date. The applicant also advised Dr. Susan Mackenzie that she felt the physiotherapy sessions were somewhat hopeless.

27I am not persuaded the OCF-18 dated October 3, 2019 is reasonable and necessary pursuant to the Schedule. There is a lack of evidence to demonstrate that there was improvement from the treatment. The OCF-18 lists pain reduction, increased range of motion, increase in strength, as well as a return to activities of normal living as its stated goals. The medical evidence did not support that these goals were being met. The applicant has not demonstrated that a third plan would help her meet these goals.

Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

28Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled together with interest on all amounts then owing to the insured (including unpaid interest) at a rate of 2 per cent per month, compounded monthly from the time the benefits first became payable under the Schedule.

29The respondent is not liable to pay an award pursuant to Regulation 664 as I find that it did not unreasonably withhold or delay payments to the applicant.

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

30No treatment plans are payable and owing, therefore the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION

31Taking all of the evidence into consideration, I find that the applicant has failed to show that the goals of the disputed treatment plan were being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. The applicant has not met her onus to prove, on a balance of probabilities, the reasonableness or necessity of the treatment plan in dispute.

32The respondent is not liable to pay an award pursuant to Regulation 664.

33The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.
2. 2R.R.O. 1990.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Written Submissions and Evidence of the Respondent, TAB 6.
5. 5Applicant’s Submissions, Clinical Notes and Records of Dr. Nessim, January 22, 2019, TAB 6.
6. 6Ibid.
7. 7Ibid.
8. 8Written Submissions and Evidence of the Respondent, Clinical Notes and Records of Dr. Nessim, September 17, 2019, TAB 7.
9. 9Ibid., December 17, 2019, TAB 9.
10. 10Applicant’s Submissions, Clinical Notes and Records of Dr. Nessim, TAB 6.
11. 11Ibid.
12. 12Written Submissions and Evidence of the Respondent, Section 44 Report dated January 21, 2020, TAB 12 at page 6.
13. 13Applicant’s Submissions, TAB 12.
14. 14Written Submissions and Evidence of the Respondent, Section 44 Report by Dr. Chaudhry dated January 21, 2020, TAB 11 at page 2.
15. 15Ibid. at page 6.
16. 16Ibid. at page 4.
17. 17Ibid. at page 8.
18. 18Ibid. at page 10.