Citation and File Number

Citation: Michael v. Aviva Insurance Company of Canada, 2023 ONLAT 20-014986/AABS

Licence Appeal Tribunal File Number: 20-014986/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.

Parties

Between:

Dinos Michael Applicant

and

Aviva Insurance Company of Canada Respondent

Decision

Adjudicator: Ulana Pahuta

Appearances:

For the Applicant: Nicholas Kapelos, Counsel

For the Respondent: Stanford Cummings, Counsel

Heard: By Way of Written Submissions

Background

1Dinos Michael, the applicant, was involved in an automobile accident on January 31, 2014, and sought benefits from Aviva Insurance Company of Canada, the respondent, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant had been involved in a prior automobile accident in 2002/2003 in which he sustained a number of injuries, including pain in his neck and shoulder.¹

3The applicant previously brought an application to the Tribunal, also for a denial of physiotherapy treatment in relation to the 2014 accident. In a decision dated November 1, 2019, D.M. v Aviva Insurance Canada², the Tribunal found that the physiotherapy treatment plan in dispute (“OCF-18”) was not reasonable and necessary. The applicant subsequently submitted a new OCF-18 for additional physiotherapy treatment, the denial of which is the issue in dispute in this written hearing.

Issues

4The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $1,812.52 for physiotherapy treatment, proposed by Rouge Valley Physiotherapy in an OCF-18 dated December 5, 2019?

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

Result

5I find that:

i. The applicant is not entitled to the treatment plan for physiotherapy services as he has not met his burden of proving that this treatment plan is reasonable and necessary; and

ii. Since no payment is owing for the benefits claimed, no interest is payable.

Analysis

Law

6Sections 14 and 15 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. The applicant bears the burden 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.

Is the OCF-18 for Physiotherapy Treatment Reasonable and Necessary?

7The applicant submits that as a result of the accident, he continues to suffer from numerous accident-related impairments, particularly chronic neck and back pain, warranting the need for physiotherapy treatment.

8The applicant further submits that he has been diagnosed with chronic pain symptoms by his family physician Dr. Bernard Farber, who noted chronic pain and headaches, among other injuries, in the Disability Certificate (“OCF-3”) dated March 21, 2017³, reports dated February 17, 2017⁴, December 13, 2019⁵ and June 18, 2021⁶ and throughout Dr. Farber’s clinical notes and records (“CNR”s) since the subject accident⁷. The applicant further submits that two pain specialists have diagnosed him with chronic myofascial pain - Dr. Rahul Pathak in June 2016⁸ and Dr. Gary Shapero in March 2017⁹.

9The applicant acknowledges that he suffered from pre-existing conditions at the time of the automobile accident, including pre-existing chronic neck and back pain.¹⁰ However, the applicant argues that the accident in question aggravated this condition such that he requires ongoing physiotherapy treatment. Further, the applicant submits that Dr. Tajedin Getahun, orthopaedic surgeon, in a report dated May 17, 2018 concluded that the applicant’s present chronic pain was likely due to the accident’s aggravation of pre-existing degenerative changes and chronic myofascial strain of the lumbosacral and cervical spine.¹¹

10In contrast, the respondent submits that the proposed physiotherapy treatment is not reasonable and necessary, since the applicant has not proven that the goals as outlined in the treatment plan are being met to a reasonable degree, or that the cost of these goals is reasonable. The respondent asserts that it is now more than eight years after the accident, and there is no evidence that further physiotherapy would be beneficial, particularly given that the applicant had self-reported to Dr. Shapero¹² and Dr. Farber¹³ that physical therapy had not helped.

11The respondent also relies on s.44 assessments, by Dr. Edwin Urovitz, orthopaedic surgeon, and Dr. Deborah Rabinovitch, physiatrist, both of whom found the applicant to have reached maximum medical improvement and that further physiotherapy was not reasonable and necessary.¹⁴ The respondent further submits that there are issues of causation, namely that the applicant had suffered from pre-existing chronic neck and back pain that was virtually indistinguishable from the present pain complaints post-accident.

12Upon review of the evidence and submissions of the parties, I find that the applicant has not provided sufficient medical evidence to establish that the proposed physiotherapy treatment is reasonable and necessary.

13With respect to the issue of causation, the respondent argues that the applicant’s present complaints, particularly with respect to chronic neck and back pain, arose well before the subject accident. However, I acknowledge that the applicant has led evidence from Dr. Farber and Dr. Getahun that while the applicant may have suffered from chronic pain previously, the accident exacerbated his chronic pain and degenerative disc disease. I also accept that the applicant’s family physician, Dr. Farber has recommended physiotherapy treatment a number of times, since the automobile accident.

14However, in order to establish that a treatment plan is reasonable and necessary, it is not sufficient to lead evidence that chronic pain was exacerbated by the accident, or that a doctor has recommended the treatment in dispute. Rather, the applicant must also adduce sufficient evidence that the goals of the treatment are being met to a reasonable degree and that the time and cost expended to achieve these goals is proportional to the benefit. Essentially, the applicant must meet his onus to prove that further physiotherapy treatment would be beneficial. I find that the applicant has not adduced sufficient medical evidence in this regard.

15The bulk of the applicant’s submissions relate to his numerous ongoing pain complaints. However, he has provided very limited evidence as to what benefit, if any, he has sustained from previous physiotherapy treatment or how ongoing physiotherapy would be beneficial.

16No records were submitted from the applicant’s treating physiotherapy clinic, other than one initial assessment report dated February 12, 2014, more than five years before the OCF-18 in dispute was submitted. The applicant appears to have attended physiotherapy in 2014 and again for a period in 2017, but no clinical notes were provided indicating how long the applicant attended, what treatment was provided and what progress the applicant had made.

17Both of the respondent’s IE assessors have found that the applicant has achieved maximum medical improvement, particularly given the length of time since the accident. With respect to the stated goals of the OCF-18, the applicant has not led evidence to establish that another session of physiotherapy, years after the previous sessions were completed, would lead to an improvement in strength, range of motion or a return to his ADL. The bulk of the applicant’s submissions relate to the need for physiotherapy treatment to alleviate his pain symptoms. However, the applicant has not led evidence to establish that physiotherapy has helped in that regard in the past.

18In fact, the medical evidence suggests that the applicant has found previous sessions of physiotherapy to be unhelpful in terms of pain reduction. When he attended physiotherapy in 2014, the concurrent CNR’s of Dr. Farber indicate that the applicant reported on March 18, 2014 – “physio 2-3 per wk. he is getting worse”¹⁵; on April 24, 2014 - that he was unable to attend physiotherapy “due to too much pain”¹⁶; and on July 4, 2014 - that he still has “neck/back/hand pain in spite of physio.”¹⁷ In 2017 when the applicant appeared to be attending physiotherapy for another period, he again reported to Dr. Farber on October 16, 2017 that he was doing physiotherapy twice per week and was “still not better”.¹⁸

19The applicant submits that the October 16, 2017 comment to Dr. Farber was misconstrued.¹⁹ However, he does not point me to any evidence, whether in the CNR’s of his family physician, the various expert reports or any treatment clinic records, where he reported that physiotherapy was helping him or where a treatment provider noted that physiotherapy was helping to alleviate the applicant’s symptoms. In his submissions the applicant states that prior physiotherapy assisted him in achieving pain relief. However, it is well-settled that submissions alone are not evidence.

20Finally, I note that in D.M. v. Aviva a previous, substantially similar treatment plan for physiotherapy was considered by this Tribunal and was found, in a decision dated November 1, 2019, not to have been reasonable and necessary. A month later, the applicant submitted a new treatment plan for physiotherapy, with the same stated goals.

21Although not binding upon me, I find the reasoning in D.M. v Aviva to be persuasive, namely that the applicant did not adduce sufficient medical evidence that further physiotherapy would be beneficial. The applicant argues that new evidence has been submitted since the decision was released, namely, his family physician Dr Farber provided a report recommending physiotherapy and massage as a result of injuries sustained in the accident. However, I do not find this additional report to be persuasive. As previously noted I acknowledge that at various points since the accident the applicant’s family doctor has recommended physiotherapy treatment. However, it still does not establish that further physiotherapy would be beneficial.

22As such, based on the totality of evidence, I find that the applicant has not met his onus to establish that the proposed treatment plan for physiotherapy is reasonable and necessary.

Conclusion

23For the reasons outlined above, I find that the applicant is not entitled to the treatment plan in dispute. No interest is payable. The application is dismissed.

Footnotes

1. 1Respondent’s Submissions, Tab C – Medical Report by Dr. Farber for CPP Disability Application dated March 21, 2010
2. 2D.M. v Aviva Insurance Canada, 2019 CanLII 110130 (ON LAT)
3. 3Applicant’s Submissions, Tab 8 – OCF-3 by Dr. Farber, dated March 21, 2017
4. 4Ibid.
5. 5Applicant’s Submissions, Tab 16, Letter from Dr. Farber dated December 13, 2019
6. 6Applicant’s Submissions, Tab 16, Letter from Dr. Farber dated June 18, 2021
7. 7Applicant’s Submissions, Tab 15, Clinical Notes and Records for Dr. Farber
8. 8Applicant’s Submissions, Tab 7 – Report of Dr. Pathak dated June 13, 2016
9. 9Applicant’s Submissions, Tab 9 – Consultation report of Dr. Shapero dated March 31, 2017
10. 10Applicant’s Reply Submissions at para. 7.
11. 11Applicant’s Submissions, Tab 13 – Report of Dr. Getahun, dated May 17, 2018
12. 12Respondent’s Submissions, Tab R – Report of Dr. Shapero dated March 31, 2017 p.2
13. 13Respondent’s Submissions, Tab S – CNRs of Dr. Farber, entry dated October 16, 2017
14. 14Respondent’s Submissions, Tab I – Report of Dr. Urovitz dated March 14, 2018; and Tab T – Report of Dr. Rabinovitch dated November 21, 2021
15. 15Applicant’s Submissions, Tab 15 – CNRs of Dr. Farber, entry dated March 18, 2014
16. 16Applicant’s Submissions, Tab 15 – CNRs of Dr. Farber, entry dated April 24, 2014
17. 17Applicant’s Submissions, Tab 15 – CNRs of Dr. Farber, entry dated July 4, 2014
18. 18Respondent’s Submissions, Tab S – CNR of Dr. Farber dated October 16, 2017
19. 19Applicant’s Reply Submissions, at para. 11