Licence Appeal Tribunal Decision
Licence Appeal Tribunal File Number: 19-009474/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:
Douglas McCormick Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Vismay Merja, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Douglas McCormick, the applicant, was involved in an automobile accident on July 20, 2016, 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 Insurance Company of Canada, 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 a medical benefit in the amount of $270 for physiotherapy services recommended in a treatment plan ("OCF-18") dated April 18, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $710 for physiotherapy services recommended in an OCF-18 dated January 24, 2018?
iii. Is the applicant entitled to a medical benefit in the amount of $1170.70 for physiotherapy services recommended in an OCF-18 dated August 8, 2019?
iv. Is the applicant entitled to a medical benefit in the amount of $1216.26 for physiotherapy services recommended in an OCF-18 dated January 23, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to payment for the treatment plans in dispute, as he has not met his onus to prove that they are reasonable and necessary. As there is no benefit due, interest in not payable.
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.
The applicant has not established that the treatment plans for physiotherapy services are reasonable and necessary
5The applicant had submitted four OCF-18s for physiotherapy services. The respondent had partially approved the first two OCF-18s dated January 24, 2018 and April 18, 2018, approving the portions for active therapies and denying the portions of the plans that were for passive treatment modalities. The subsequent two OCF-18s dated August 8, 2019 and January 23, 2019 were denied in full by the respondent.
6The applicant submits that all of the OCF-18s are reasonable and necessary and that such treatment has been recommended by his physician. He further relies on a chronic pain assessment report of Dr. Getahun dated November 28, 2017, where Dr. Getahun diagnosed the applicant with chronic pain and recommended that the applicant attend a chronic pain program and physiotherapy treatment focussing on range of motion and strengthening of the cervical spine. The applicant also submits that the respondent's own s.44 psychiatric assessor, Dr. Liu, identified the connection between his physical and mental state and expressly noted that an improvement in the applicant's pain experience could provide relief in his emotional symptoms. Finally, the applicant contends that the Tribunal has consistently held that pain relief is a reasonable goal of continued treatment.
7The respondent denies that continued treatment is warranted. It relies on two insurer's examination ("IE") assessments in support of its position that further facility-based treatment is not reasonable and necessary. In the s. 44 chiropractic assessment report dated February 13, 2018, while Dr. Shawn Henderson had recommended a limited course of active therapy, which the respondent approved, he did not support the use of further passive strategies. Dr. Henderson noted that the applicant had been attending at physiotherapy treatment for over a year and a half, with no improvement in his accident-related complaints. The respondent's subsequent s. 44 orthopaedic assessor Dr. Yee, similarly, found that further formal facility-based treatment was not warranted, as the applicant had achieved maximum medical improvement for his myofascial strain/soft tissue injuries.
8I find that the applicant has not met his onus to prove that the OCF-18s in dispute are reasonable and necessary.
9While I accept that the applicant suffers from ongoing pain, and that pain relief is a legitimate goal of therapy, the applicant has not provided sufficient evidence that this treatment goal is being met to a reasonable degree with continued physiotherapy. The applicant has provided limited evidence that the physiotherapy treatment he had received to date, was helpful in alleviating his pain symptoms. The clinical notes and records ("CNRs") of the applicant's family physician Dr. Lazare submitted by the applicant, indicate only one entry on June 25, 2019, where the applicant reported that physiotherapy helps "occasionally".
10The bulk of the applicant's self-reporting indicates that he reported very minimal improvement in his pain complaints despite the extensive physiotherapy treatment he had received to date. The applicant reported to Dr. Yee that his pain complaints were unchanged since his prior assessment and that treatment provides him with a 30% reduction in his symptoms, for only one day. However, the applicant reported to Dr. Liu, that even with consistently attending physiotherapy treatment three times a week, he will only get "1-2 hours relief sometimes from therapy but his symptoms return to baseline after that point". This was similarly noted in the OCF-18 dated August 8, 2019, where it was stated that the applicant reported that he only felt better for a "few hours after therapy however, the pain returns after a few hours".
11The onus rests with the applicant to prove that the goals of treatment were being met to a reasonable degree. In my view, receiving only 1-2 hours of pain relief after almost three years of physiotherapy treatment is not evidence that the treatment goal of pain reduction was being met to a reasonable degree. Particularly when the applicant also reported that he only received such minimal pain relief "sometimes".
12The applicant did not submit any additional evidence to establish that the goal of pain relief, or any of the other treatment goals, were being met by ongoing physiotherapy treatment. Although the applicant had been attending physiotherapy treatment consistently for years, no records were provided from the treating clinic to establish the efficacy of such treatment. Nor did the applicant submit any progress reports or summaries from any treatment provider discussing his progress over the years. Without such evidence, I am unable to assess whether the applicant sustained any benefit from the proposed treatment.
13As such, I agree with the respondent that the applicant has failed to establish that the treatment goals, including pain relief, are being met with continued physiotherapy treatment.
14The applicant makes the further argument that as he is catastrophically impaired on the basis of his psychiatric condition, physical treatment is especially important as there is a link between his physical and emotional symptoms. While I do not dispute that the applicant's physical pain complaints affect his emotional health, the fact remains that the applicant did not provide sufficient evidence to establish that the proposed treatment effectively addresses his pain complaints.
ORDER
15The applicant has not demonstrated that the OCF-18s for physiotherapy treatment are reasonable and necessary under s. 15. As no benefits are due, no interest is payable. The application is dismissed.
Released: June 20, 2023
Ulana Pahuta Adjudicator