Citation: Christie v. Aviva Insurance Company, 2023 ONLAT 20-009558/AABS

Licence Appeal Tribunal File Number: 20-009558/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:

Shaiquan Christie

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Hueglin Hartwick

APPEARANCES:

For the Applicant:

Eddie Wiley, Counsel

For the Respondent:

Jessica Rogers, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant, Shaiquan Christie, was injured in an automobile accident on November 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹. As a result of his injuries – described as back and right-side body pain – he sought payment for chiropractic treatment for his accident-related impairments.

2The respondent, Aviva, initially denied the treatment plans on the basis that the applicant was in the Minor Injury Guideline (“MIG”), but it later removed him from the MIG. After conducting a second s. 44 examination, Aviva maintained its position chiropractic treatment was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is the applicant entitled to medical benefits of $1,384.70 for chiropractic services?

(ii) Is the applicant entitled to medical benefits of $3,696.50 for chiropractic services?

(iii) Is the applicant entitled to medical benefits of $1,977.05 for chiropractic services?

(iv) Is the applicant entitled to medical benefits of $1,384.70 for other goods and services/chiropractic services?

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

RESULT

4I find the applicant is entitled to the treatment plan of $1,977.05 for chiropractic services as it is reasonable and necessary pursuant to the Schedule. Interest applies pursuant to s. 51, if the expense has been incurred.

5I do not find the applicant is entitled to:

(i) $1,384.70 for chiropractic services;

(ii) $3,696.50 for chiropractic services; and

(iii) $1,384.70 for other goods and services/chiropractic services.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. To receive payment for a treatment and assessment plan under s.15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities the benefit is reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

Is a treatment plan for $1,384.70 for chiropractic services, dated February 24, 2020, reasonable and necessary?

7The applicant has not established, on a balance of probabilities, the treatment plan is reasonable and necessary pursuant to the Schedule.

8The applicant asserts the family physician Dr. Elahi, of First Choice MedCenter Inc., indicated in his clinical notes and records, dated February 20, 2020, the applicant should be attending physiotherapy, acupuncture, massage, aquatic exercises, home exercises and using heating packs. In support of his position, the applicant submits the s. 44 Insurer’s Examination (“IE”), used to deny the OCF-18 treatment plan, should be taken with a “grain of salt”. The IE assessor did not review Dr. Elahi’s records, she incorrectly states the applicant received ongoing treatment over 32 months and refers to uncited “literature” findings.²

9In response, Aviva submits the OCF-18 is not reasonable and necessary because of the IE assessment conducted by Dr. Tu (physician) on July 16, 2020. Aviva relies on the findings in the report that concluded the applicant had reached maximum medical recovery from his accident-related physical impairments and further clinic-based chiropractic treatment was not reasonable or necessary.³ The applicant was encouraged to continue with independent therapeutic exercises at home. In addition, Aviva submitted treatment was not payable as it was not incurred.

10I find the applicant has not demonstrated the OCF-18 is reasonable and necessary. While I agree with the applicant’s submission that it was Aviva’s obligation to provide clinical notes and records of the family physician to the IE assessor, Dr. Elahi’s records indicate the applicant did not see his physician between December 3, 2018 and February 20, 2020. This is a significant gap of contemporaneous complaints of pain for over a year prior to the submission of the OCF-18. In addition, the applicant has reported inconsistent health updates. He reported “some improvements” to Dr. Johnson who completed the OCF-18.⁴ Yet, he reported pain 8 to 9/10 to IE assessor Dr. Tu in July 2020.⁵

11It is inaccurate to state Dr. Elahi “indicated [the applicant] should be attending” physiotherapy etc. The applicant’s appointment at First Choice MedCenter Inc., on February 20, 2020, was with Dr. Habashi not Dr. Elahi, the applicant’s usual physician.⁶ The list of “recommended” modalities that the applicant refers to in his submission appear in the clinical notes and records along with other documented history notes that occur at the end of every entry. Neither Dr. Habashi nor Dr. Elahi made a referral for facility-based treatment at that appointment.

12Aviva referenced case law to support its position treatment must be incurred to be payable.⁷ Nonetheless, in Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, the Divisional Court held the Tribunal’s practice of approving treatment and permitting claimants to incur and submit treatment expenses is the only effective remedy to a denied OCF-18. It determined Aviva’s position in that case was untenable because an applicant is not required to incur treatment before disputing a denial. Accordingly, Aviva’s position on incurred treatment is not tenable.

13The absence of contemporaneous complaints of pain to the applicant’s family doctor, for over a year, render this treatment plan neither reasonable nor necessary pursuant to the Schedule.

Are treatment plans for $1,977.05, $3,696.50, and $1,384.70 for other goods and services/chiropractic services, dated on April 3, 2018, December 5, 2017 and June 5, 2018, reasonable and necessary?

14I find the treatment plan for $1,977.05 for 9 sessions of various treatment modalities (active and physical therapy, chiropractic and massage treatments) is reasonable and necessary.

15The applicant submits the treatment plans are payable because the clinical notes and records of Dr. Elahi demonstrate that the applicant consistently reported complaints as well as improvement when he was receiving treatment 2 to 3 times per week. In addition, the applicant submits Aviva’s s. 44 insurer’s examination report, conducted by Dr. Jugnundan, that was used to deny these OCF-18 treatment plans, should be taken with a “grain of salt” as he did not review the clinical notes and records of the applicant’s family physician and an addendum report was not provided after the records were available.

16In response, Aviva submits the OCF-18s are not reasonable and necessary because facility-based treatment showed “no evidence of a positive trend” and the expenses were not incurred.⁸ It properly denied the treatment plan on the basis of an IE assessment, conducted by Dr. Jugnundan on July 17, 2018, that finds all accident-related injuries are soft tissue in nature and no MVA-related musculoskeletal injury.⁹ In addition, Aviva submits Dr. Elahi’s clinical notes and records shows the applicant has a history of pre-accident chronic back pain and no change in prescriptions for managing his pain before and after the accident. The respondent asserts it is untrue the applicant had an occasional “flare up” of back pain particularly in the six-months prior to the subject accident. Rather, the applicant experienced on-going chronic back pain due to the motor vehicle accident in 2017 as evidenced in the contemporaneous notes of Dr. Elahi.¹⁰ I am persuaded by the applicant with regards to the treatment plan dated April 3, 2018.

17Case law supports medical treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function. The medical evidence before me supports that as of the date the OCF-18 was submitted the applicant still reported persistent mid and lower back pain. Contemporaneous and ongoing records of Dr. Elahi show improvement in early 2018, from 20% to 75% when treatment was 2 to 3 times per week.¹¹ The applicant reported consistent improvement until his treatment was reduced to one time per week in February 2018, in which he reported the first decreased improvement of 25% of his baseline. I am not persuaded by Aviva’s submission this decrease, which occurred the same time treatment was reduced, shows “no evidence of a positive trend”.¹²

18I am not satisfied the applicant has reached maximal medical recovery. It would be reasonable to fund a slate of treatments to determine if this has in fact occurred. I accept the applicant’s submission the IE assessments, conducted by Dr. Jugnundan and Dr. Tu, would have been more complete when determining what is reasonable and necessary, had the doctors benefited from reading Dr. Elahi’s clinical notes and records. Dr. Jugnundan’s report notes the applicant “reported a prior motor vehicle collision in 2012 with ongoing entire back pain. He stated that the current injury aggravated these symptoms however there is no documentation on file about this accident.”¹³ Had the assessors reviewed Dr. Elahi’s records, they may have understood the extend of the chronic back injury the applicant had largely recovered from months prior to the subject accident.

19Furthermore, the contemporaneous notes from the family physician could have assisted the IE assessors in determining the applicant’s accident related injuries. Dr. Jugnundan’s report, eight months post-accident, determined “all accident related injuries are soft tissue in nature in the absence of any musculoskeletal impairment.¹⁴ Whereas, Dr. Tu’s assessment, that was completed two and a half years post-accident, states “from a musculoskeletal perspective, [the applicant] has likely sustained a thoracic strain, lumbar strain and an acute exacerbation of his pre-existing chronic low back pain. He has sustained uncomplicated soft tissue injuries only as a direct result of the motor vehicle accident.”¹⁵ Without access to the applicant’s complete medical history, it is unclear the determination “ongoing forms of formal facility-based therapy…would not be of any significant added benefit than a self-directed home exercise program” was in fact accurate.¹⁶

20I find the applicant is not entitled to a treatment plan of $3,696.50 for 15 to 18 sessions of active and physical therapy, chiropractic and massage treatments as well as goods including a TENS machine, ice packs and heat packs.¹⁷ The applicant submits this treatment plan is reasonable because “the costs did not exceed the FSCO rates for which an insurer is liable. The plan included a multidisciplinary approach to the applicant's recovery as opposed to a single type of therapy… there is no reliable indications that as of the date of the treatment plan that [the applicant] had reached or was even close to reaching his maximum medical improvement.”¹⁸

21I am not persuaded by the applicant’s submissions this treatment plan is reasonable or necessary. What distinguishes this treatment plan, dated December 5, 2017 and submitted on April 12, 2018, from the other 2018 treatment plans before me is the addition of medical goods and the increase in treatment sessions. However, the applicant has not pointed me to specific evidence that demonstrates why the applicant should otherwise be entitled to this treatment.

22I find that the treatment plan for $1,384.70, for other goods and services/chiropractic services, dated June 5, 2018, is not reasonable and necessary pursuant to the Schedule. The applicant acknowledges this plan recommends the same treatments as the others in dispute and submits “had [the applicant] been able to continue on with the early and aggressive nature of the treatment recommended… he may have in fact recovered from the injuries he sustained in the accident.”¹⁹ I am not persuaded by the submissions of the applicant. No explanation is offered to justify why duplicate treatment plans would be reasonable and necessary. Likewise, there is an absence of specific evidence that justifies why this particular treatment plan is needed.

23Funding a slate of treatment will determine if the applicant has indeed reached maximal medical recovery for his impairment.

Interest

24Interest applies pursuant to s. 51, if the expense has been incurred.

ORDER

25For the reasons outlined above, I find the applicant is entitled to $1,977.05 and applicable interest.

26The applicant is not entitled to:

(i) $1,384.70 for chiropractic services;

(ii) $3,696.50 for chiropractic services;

(iii) $1,384.70 for other goods and services/chiropractic services; and

(iv) Interest on any overdue payment of benefits.

Released: January 17, 2023

__________________________

Janet Hueglin Hartwick

Adjudicator

Footnotes

1. 1O.Reg. 34/10 as amended.
2. 2IE Assessment Report of Dr. Tu (Physician) dated July 28, 2020, Applicant’s Written Submissions, page 244.
3. 3Ibid., page 243.
4. 4OCF-18 dated February 24, 2020 by Dr. Samuel Johnson, Applicant’s Written Submissions, page 183-193.
5. 5IE Assessment Report of Dr. Tu (Physician) dated July 28, 2020, Respondent’s Written Submissions, Tab I.
6. 6Applicant’s Written Submissions, page 5.
7. 7Qaderi v. Aviva Inc., [2018] O.F.S.C.D and 18-000506 v. Wawanesa Mutual Insurance Company, 2018 CanLII 133513.
8. 8Respondent’s Written Submissions, Tab A.
9. 9IE Assessment Report, Dr. Jugnundan (Physician) dated July 17, 2018, Respondent’s Written Submissions, Tab H.
10. 10Respondent’s Written Submissions, Tab A.
11. 11Clinical Notes and Records of Dr. Elahi, First Choice MedCenter Inc., Respondent’s Written Submissions, Tab G.
12. 12Respondent’s Written Submissions, Tab A.
13. 13IE Assessment Report, Dr. P Jugnundan (Physician), dated July 17, 2018, Applicant’s Written Submissions, page 235.
14. 14Ibid, page 236.
15. 15IE Assessment Report, Dr. S. Tu (Physician) dated July 28, 2020, Applicant’s Written Submissions, page 243.
16. 16IE Assessment Report, Dr. P Jugnundan (Physician) dated July 17, 2018, Applicant’s Written Submissions, page 236.
17. 17OCF-18 dated December 5, 2017, Dr. Laura Tummonds and Jinying Xu, Applicant’s Written Submissions, page 160-170.
18. 18Applicant’s Written Submissions, page 5.
19. 19Ibid.