Citation: Pakulski v. Aviva General Insurance, 2023 ONLAT 20-015314/AABS

Licence Appeal Tribunal File Number: 20-015314/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:

Anthony Pakulski

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Anthony Pakulski, Applicant Dominik Gora, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Anthony Pakulski, the applicant, was involved in an automobile accident on February 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $5,115.56 for physical therapy, proposed by Sports Medicine Clinic, in a treatment plan denied on September 15, 2021?

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

RESULT

3I find that the applicant is entitled to the proposed treatment plan for physical therapy as it is reasonable and necessary.

4The respondent is liable to pay the applicant interest on overdue payments in accordance with s. 51 of the Schedule.

ANALYSIS

5In order for a medical or rehabilitation benefit to be payable under the Schedule, the applicant must demonstrate that it is reasonable and necessary. I find he has met his onus for the following reasons.

6In assessing whether a treatment plan is reasonable and necessary, the following factors as set out in Violi and General Accident Assurance Company of Canada (P99-00047, September 27, 2000), are helpful:

i. The treatment goals, as identified, are reasonable;

ii. These goals are being met to a reasonable degree; and

iii. The overall costs of achieving these goals is reasonable, taking into consideration both the degree of success and availability of other treatment alternatives.

7The treatment plan in dispute proposes 24 sessions of physiotherapy, 24 sessions of massage therapy, and 24 sessions of active rehabilitation, as well as three IFC pads. The goals of the treatment plan are listed as pain reduction, increase in strength, increased range of motion, and to improve overall level of function. The applicant submits that pain reduction and functional restoration is a reasonable and necessary goal, and that the cost of same is reasonable.

8The respondent submits that the treatment plan is not reasonable and necessary because of the nature of the applicant's injuries, the absence of an objective physical impairment, and the lack of effectiveness of similar past treatment.

9The applicant's family physician, Dr. Alison Hall, stated in a letter dated February 11, 2022 that the applicant was suffering from post-concussion headache and myofascial pain. Dr. Hall indicated that the applicant had seen improvement in his dizziness, balance issues, and right arm and hand weakness with physiotherapy. He also saw improvement in his neck and posterior head pain with massage therapy. Dr. Hall supported a multi-disciplinary approach, including but not limited to medications, physiotherapy, and massage therapy. The goals of this treatment were to decrease pain and increase functional abilities.

10The applicant was also assessed by Dr. Yasmin Nasirzadeh and Dr. Jared Peck at the psychiatry department of Mount Sinai Hospital in February 2019. He was diagnosed with major depressive disorder. They indicated that the applicant's symptoms have had an impact on his ability to engage in activities that would normally elevate his mood, and "it is important to optimize the treatment of his pain".

11Dr. Robert Yufe, neurologist, conducted a s. 44 assessment in January 2020 and diagnosed the applicant with chronic headache, chronic neck pain, and chronic right arm pain, as well as functional motor loss in his right hand. Although the respondent notes that Dr. Yufe opined that the applicant had achieved maximum medical improvement, he also indicated that the applicant "will need treatment for chronic pain."

12The applicant swore an affidavit on April 4, 2022, and was cross-examined by counsel for the respondent on May 13, 2022. The applicant's evidence is that he attends massage therapy once or twice a week on average. He has found physiotherapy and massage therapy very helpful in reducing his pain and increasing his range of motion. He has less pain and less limitations after treatment, which increases his daily functional abilities. He has paid for massage therapy out of pocket as this helps with his shoulder pain and range of motion. He is not able to incur all of the recommended treatment out of pocket. He still has difficulty lifting at or above shoulder level, and prolonged movement is painful. When his treatments stop, his pain flares up. He still has ongoing functional impairments and has difficulty cleaning his house, cutting grass, shoveling snow, and clearing leaves out of his yard. He has had to pay people to complete housekeeping and home maintenance tasks for him.

13The respondent relies on the s. 44 report of Dr. Alborz Oshidari, physiatrist, dated September 14, 2021. Dr. Oshidari noted during his physical examination that the applicant had reduced range of motion of the cervical spine and pain in his neck and upper back. He had reduced range of motion in his lumbar spine with discomfort and pain. Dr. Oshidari states: "based by [sic] assessment today considering it did not reveal any physical or structural abnormality and in response to treatment received in the past, I found the treatment plan submitted by Dr. Marciniak is not reasonable or necessary." He does not indicate what might be causing the applicant's pain or limited range of motion, nor does he suggest any treatment alternatives. He does not concur or disagree with the previous diagnoses of chronic pain, or the recommendation for chronic pain treatment made by Dr. Yufe. It is not clear what treatment response Dr. Oshidari is referring to as he does not delve into this area in his report. He only states that the applicant has received some treatment but does not speak to its effectiveness. Given the omissions and lack of thoroughness in Dr. Oshidari's report, I accordingly assign it less weight.

14The respondent also states that there is a "significant gap in the applicant's medical records", between February 2020 and February 2022. It does appear that the applicant's family physician did not make specific recommendations for physical treatment during that time. However, it cannot be said that the applicant did not have any pain or functional limitations during that time either; the printout from the applicant's extended health care provider indicates that he attended massage therapy and physiotherapy 23 times throughout 2021. The applicant's pain and physical limitations were also noted by Dr. Oshidari in September 2021.

15It is well-settled that pain relief is a legitimate goal for treatment. I accept that the applicant continues to have pain and functional limitations post-accident, and that these symptoms are alleviated with physical therapy, allowing him to complete more of his activities of daily living. In applying the Violi factors, I find that the treatment goals of pain relief and functional restoration are reasonable, and that the applicant has been able to greatly alleviate his pain and improve his functioning through physical therapy. With respect to the cost of the treatment, in my view, 24 sessions each of physiotherapy, massage therapy, and active rehabilitation over the course of 12 weeks (in addition to three IFC pads) is reasonable, especially since Dr. Hall recommended a multidisciplinary approach to meet the treatment goals.

16I therefore find that on a balance of probabilities, it would be reasonable to fund this treatment plan in order to meet the goals of pain relief and functional restoration.

ORDER

17The applicant is entitled to $5,115.56 for physical therapy, proposed by Sports Medicine Clinic, in the treatment plan denied on September 15, 2021.

18The applicant is entitled to interest on overdue payments in accordance with s. 51 of the Schedule.