Licence Appeal Tribunal File Number: 21-000131/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:
Charlie Liu
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Jessica Cavdar
APPEARANCES:
For the Applicant:
Philip Kai Kwong Yeung, Paralegal
For the Respondent:
Bryan Chin, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on February 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied a benefit for chiropractic treatment by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Is the applicant entitled to a benefit in the amount of $3,810.08 for chiropractic treatment recommended by Total Recovery Rehab Centre, in a treatment plan dated November 27, 2019?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to payment for the treatment plan in dispute or interest as he has failed to meet his burden to demonstrate that it is reasonable and necessary as a result of the accident.
ANALYSIS
4To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. 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.
5The applicant submits that he has sustained an objective right toe injury as a result of the accident, along with ongoing complaints of lower back pain. He submits that he had reduced active plantar flexion of the right first toe compared to the left, along with sharp pain with end range plantar flexion movement, and tenderness to palpation at the dorsal right first proximal phalanx. He submits that he had right toe pain and reduced range of motion with lower back pain and headaches as a result of the accident, which cause functional limitations in his daily living. The applicant submits that physical therapy has provided pain relief and has improved his physical injuries. The goals of the proposed chiropractic treatment plan are increased range of motion, increase in strength and returning to activities of normal living and pre-accident work activities.
6The respondent submits that the treatment plan is not reasonable or necessary because the applicant has achieved maximum medical recovery from his accident-related physical injuries. The respondent also submits that the injuries described in the treatment plan are not the result of the subject accident and therefore not payable under the Schedule. The respondent submits that the 27 complaints in the treatment plan in dispute are completely different than the eight injuries described in the February 28, 2019 OCF-23.
7I agree with the respondent that the applicant has not met his evidentiary burden of proving that the toe injury he has complained of is a result of the subject accident. Specifically, I find that the applicant’s toe injury is not mentioned at all in the February 28, 2019 OCF-23 form or in other post-accident documentation. This OCF-23 is salient because it would have a contemporaneous description of the applicant’s impairments sustained as a result of the accident that occurred ten days prior. The disputed treatment plan is dated November 27, 2019, some nine months after both the OCF-23 and the index accident. While I do not rule out the possibility that an insured person’s accident-related impairments may develop after the immediate, acute phase of the accident, the applicant still has the burden to demonstrate that an impairment was caused by the accident, I find he has provided no objective evidence to link his right toe complaint to the accident, so I cannot find the treatment reasonable and necessary to treat this impairment.
8Similarly, I find the April 16, 2019 post-accident x-ray report from Dr. Girgis to be persuasive evidence that further treatment is not required. The note states:
“Findings: Bone density is normal. No evidence of fracture. Alignment is normal. No joint-centred process. No aggressive bone lesion. No soft tissue swelling. Opinion: Normal examination of the right great toe.”
9This is corroborated by the musculoskeletal assessment by Dr. Eric Silver, who determined that treatment plan’s stated goals are not reasonable or necessary. The report states that the applicant had pain-free, full range of motion of his cervical spine, thoracolumbar spine, and bilateral shoulders, as well as normal upper and lower extremity strength, which in my view shows that the treatment plan’s goal of returning to activities of normal living and increased range of motion are not reasonable or necessary.
10Further, while the applicant submits that he suffers from chronic pain in his lower back as a result of the accident, and that he requires the treatment as set out in this treatment plan to returning to activities of normal living, I note that the applicant reported to Dr. Silver that he exercises about three times per week, participating in both cardiovascular and weightlifting exercises. Additionally, I find that he stated that he is fully independent with personal care tasks and has resumed his usual cooking and housekeeping activities without limitation.
11Where the treatment plan in dispute consists of passive modalities that are the same as previously-approved treatment plans, I find that the plan’s goals of increased range of motion, increase in strength, and returning to activities of normal living and pre-accident work activities are not reasonable and necessary in the circumstances. The applicant’s self-reporting to Dr. Silver regarding his exercising and weightlifting, as well as full independence in conducting personal care and housekeeping tasks, indicate that the applicant has largely returned to activities of pre-accident living, obviating the need for treatment as outlined in the treatment plan.
12Accordingly, the applicant is not entitled to payment for the treatment plan in dispute as it is not reasonable and necessary as a result of the accident. As no benefits are payable, it follows that interest does not apply.
Released: March 6, 2023
Jessica Cavdar
Adjudicator