Licence Appeal Tribunal File Number: 21-001852/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:
Leena Pakitharan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
David J Levy, Counsel
For the Respondent:
Eric Grossman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Leena Pakitharan, the applicant, was involved in an automobile accident on October 18, 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 Company, 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 $2,575.22 for chiropractic treatment and massage therapy, proposed by Downsview Health Inc. in a treatment plan dated October 26, 2018?
ii. Is the applicant entitled to $2,847.20 for chiropractic treatment and massage therapy, proposed by Health Pro Wellness in a treatment plan dated February 21, 2019?
iii. Is the applicant entitled to $351.58 ($2,197.29 less $1,845.71 approved) for psychological services, proposed by Health Pro Wellness in a treatment plan dated June 13, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $2,575.22 for treatment proposed by Downsview Health Inc. in the treatment plan dated October 26, 2018, plus interest if incurred.
4The applicant is not entitled to the following:
i. $2,847.20 proposed by Health Pro Wellness in a treatment plan dated February 21, 2019.
ii. $351.58 proposed by Health Pro Wellness in a treatment plan dated June 13, 2019.
ANALYSIS
5To 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.
Chiropractic Treatment and Massage Therapy
6The applicant submits that she received physical therapy on the advice of her doctor and psychologist, and believes that without the treatment she would not have been able to return to work. She submits that this therapy strengthened her right shoulder and back, increased her flexibility and mobility, and helped reduce her pain symptoms, which was a major cause of her depression and emotional distress. She points out that the treatment plans were denied because the respondent believed her injuries to be predominantly psychological, but she argues that her physical and psychological impairments are intertwined such that physical therapy was essential to her recovery.
7The respondent submits that the applicant relies on the OCF-18s themselves and her own subjective reports, but no explanation has been provided as to how they are reasonable and necessary and how the treatment is causally connected to the accident.
8The applicant states that she sustained the following injuries as a result of the accident: partial thickness supraspinatus tear of her right shoulder, carpal tunnel syndrome, whiplash associated disorder which aggravated and exacerbated underlying degenerative disc disease and degenerative spondylolisthesis of the lumbar spine, and psychological impairments. I have reviewed the medical records before me in detail, and it appears that the applicant’s right shoulder was being investigated for a supraspinatus tear approximately one week prior to the accident. She was also being treated for carpal tunnel syndrome, and was advised that she needed surgery prior to the accident.
9The applicant first visited her family physician, Dr. Myat, after the accident on October 19, 2018, due to back and neck pain. She had limited range of motion in her neck. Dr. Myat diagnosed musculoskeletal neck strain, and recommended that she use ice and heat, take Tylenol or Advil, and adjust the way she sleeps. She attended Dr. Myat’s office again on October 30, 2018, complaining of ongoing pain in her neck and shoulders (the left more than the right) after the accident. The physician she saw that day recommended medication and physiotherapy. At her next visit on February 20, 2019, she complained of lower back pain, and Dr. Myat diagnosed musculoskeletal back strain. He recommended ice, heat, changes to her sleep, and regular back exercise. He sent the applicant for an x-ray, which showed degenerative disc disease of her upper lumbar spine. The applicant visited Dr. Myat again for her lower back pain on October 19, 2019. She described the pain as on and off, and that it was 4/10 in severity. Dr. Myat continued to recommend ice, heat, exercise, and changes to sleep posture.
10The applicant did not return to Dr. Myat for issues with her back until June 17, 2020, and that was because she injured herself by lifting something. She had pain in her lower back for three days as a result, which she described as 3/10 in severity. I find it likely that the applicant’s accident-related lower back strain had resolved prior to this visit. If she only went to see Dr. Myat when she had 3/10 pain after lifting something heavy, it stands to reason that she was not experiencing even this relatively low level of pain in her lower back for quite some time.
11The applicant was subsequently referred for physiotherapy for her lumbar degenerative disc disease, osteoarthritis, and spondylolisthesis in August and September 2020. Again, I find it likely that at that point, the applicant’s accident-related sprains/strains had resolved past the point of requiring facility-based treatment. No physician has suggested that the accident aggravated the applicant’s pre-existing degenerative disc disease, osteoarthritis, or spondylolisthesis, especially not to the point where she needed further physical therapy almost two years after the accident.
12I note that physical therapy was recommended as a result of accident-related injuries only once, in October 2018. The applicant had been referred for massage or physiotherapy as a result of unrelated issues before and after the accident. It stands to reason that if Dr. Myat believed that further facility-based therapy was warranted for her accident-related difficulties, he would have made that recommendation.
13The respondent relies on the s. 44 assessment of Dr. Alan Kruger, family physician, from August 23, 2019. He diagnosed the applicant with cervical, lumbar, and right shoulder sprain/strain. He opined that the treatment plans in dispute are not reasonable and necessary, as her injuries are considered to be “minor injuries” as defined by the Schedule, and thus her rehabilitation falls within the Minor Injury Guideline (“MIG”) monetary limit (she was subsequently removed from the MIG due to her psychological impairments). I find Dr. Kruger’s report to be of limited assistance as he did not provide any opinion on whether facility-based treatment was warranted at all.
14It does appear that the applicant sustained sprain/strain-type injuries to her neck, shoulders, and lower back in the accident, and that physical therapy was recommended by a physician in October 2018. I find that, at the time the first treatment plan in dispute was submitted on October 26, 2018, facility-based treatment was warranted.
15However, I also find that the applicant has not proven on a balance of probabilities that the second treatment plan in dispute was reasonable and necessary at the time it was submitted (February 2019).
16It is not enough for the applicant to simply state that physical therapy assisted her. Submissions are not evidence. The only records of facility-based therapy the applicant received are from five visits at Health-Pro between February and March 2019, despite those notes indicating that she had attended Downsview Health for treatment until January 2019. It is difficult to assess whether any progress was made with treatment just by reviewing these scant notes. Although she states that therapy assisted her in returning to work, she has not provided any evidence of her work duties, or whether treatment reduced her pain such that she was able to work. In fact, neither of the treatment plans list a return to work as a treatment goal.
17The applicant’s only complaints to her family physician around the time the second treatment plan was submitted were to her lower back, however her complaints to her chiropractor and massage therapist largely pertained to her right shoulder and neck. Based on the records before me, it does not appear that the applicant’s low back was being treated past February 21, 2019, which is when the second treatment plan was submitted. If the applicant was only complaining to Dr. Myat for lower back pain at that point, but she was not even being treated for it during her massage and chiropractic sessions, I find it hard to conclude that treatment for the applicant’s back pain was reasonable and necessary.
18There is also a lack of corroborating evidence of other accident-related complaints in Dr. Myat’s records past October 30, 2018. The applicant had significant underlying right shoulder issues, which were being investigated just over a week before the accident. The applicant has not provided any evidence to link her shoulder symptoms in February 2019 to the accident, and they could have just as easily been related to her pre-existing conditions.
19Ultimately, I find that the applicant has failed to produce sufficient evidence to meet her burden of proof that the second treatment plan in dispute was reasonable and necessary at the time it was submitted.
Psychological Treatment
20The applicant does not make any submissions with respect to the denied portion of the treatment plan for psychological services. The respondent submits that the denied amount of $351.58 pertains to “planning/preparation/brokerage” which is repetitive, as the OCF-18 already includes the maximum fee allowable of $200 for “documentation support activity for claim form”. The respondent argues that the applicant has failed to explain why additional planning and preparation services are required beyond the $200. The applicant declined to provide any submissions in reply.
21I agree with the respondent that the applicant has not provided any evidence or explanation as to how the additional fees are reasonable and necessary. I find that portion of the treatment plan to not be payable.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is applicable on the approved treatment plan, if incurred.
ORDER
23The applicant is entitled to $2,575.22 for treatment proposed by Downsview Health Inc. in the treatment plan dated October 26, 2018, plus interest pursuant to s. 51 of the Schedule if incurred.
24The applicant is not entitled to the following:
i. $2,847.20 proposed by Health Pro Wellness in a treatment plan dated February 21, 2019.
ii. $351.58 proposed by Health Pro Wellness in a treatment plan dated June 13, 2019.
Released: June 7, 2023
__________________________
Rachel Levitsky
Adjudicator