Devcic v. Aviva Insurance Company of Canada
Licence Appeal Tribunal File Number: 21-006899/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.
Parties
Between:
Bianca Devcic
Applicant
and
Aviva Insurance Company of Canada
Respondent
Decision
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Bianca Devcic, Applicant Laura Dickson, Counsel
For the Respondent: Aviva Insurance Company of Canada Melanie Sousa, Counsel
HEARD: By way of written submissions
OVERVIEW
1Bianca Devcic, the applicant, was involved in an automobile accident on May 10, 2017, 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, Insurer, 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 $2,847.60 ($3,972.60 less $1,125.00 approved) for a gym membership and personal training, proposed by Westmount Physiotherapy and Rehabilitation in a Treatment and Assessment Plan/ OCF-18, dated on March 19, 2019?
ii. Is the applicant entitled to $859.06 for physiotherapy services and massage therapy services, proposed by Westmount Physiotherapy and Rehabilitation in a Treatment Plan/ OCF-18, dated on April 10, 2019?
iii. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
i. The treatment plan proposing approval in the amount of $3,972.60, is neither reasonable nor necessary pursuant to the Schedule.
ii. The physiotherapy treatment plan in the amount of $859.06 is neither a reasonable nor a necessary expense pursuant to the Schedule.
iii. The applicant is not entitled to interest since there is no overdue payment of benefits.
iv. The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
ANALYSIS
3Sections 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an applicant so long as the impairment is sustained as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident. Treatment plans by themselves do not prove that the proposed treatment is reasonable and necessary. There should be supportive objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment.
4Following the accident, the applicant went to her family physician Dr. Frank Goebel on May 15, 2017, reporting headaches, pain in her back and neck radiating down both arms and into the left anterior thigh. The applicant commented to Dr. Goebel that she had returned to school the same day as the accident. She had full range of motion on examination by Dr. Goebel but pain on forward flexion and lateral flexion rotation. Dr. Goebel advised the applicant to take Advil or Robaxacet, and to continue with the physiotherapy she recently started on May 11, 2017. The applicant did not return to a new and different family doctor, Dr. Chamika Perera, until January 15, 2018, eight months after the accident, reporting neck and back pain as a result of the accident. Although she had a good range of motion in her neck, she described pain on flexion which her physician recommended would be improved with exercise and rehabilitation. The applicant attended physiotherapy and rehabilitation at Westmount Physiotherapy and Rehabilitation in the year 2017, 2018 and in 2019.
5The OCF-18 proposed by Jordan Fratoni, Physiotherapist, of Westmount Physiotherapy & Rehabilitation identified the applicant’s injuries as whiplash associated disorder [WAD2] with complaints of neck pain with musculoskeletal signs, sprain, and strain of lumbar spine. The goals of treatment are pain reduction, increased strength, increased range of motion, in addition to the applicant returning to the activities of normal life. There is a note that the patient has improved with regard to lumbar spine pain, regarding school-related activities and recreational activities. It is further noted that the patient reports persistent pain and tightness as well as discomfort during work as a hair stylist; when she experiences a period of prolonged sitting at school; and following recreational activities. The treatment plan proposes a one-year gym membership, in addition to 52 sessions of personal training, and a documentation support activity, over a twelve-week period at a total cost of $3972.60, including applicable taxation.
6The applicant submits that pain reduction and strengthening are legitimate goals for treatment. The applicant refers to the Tribunal decision: 16-000960 v. Northridge Personal Insurance Corporation, 2017 CanLII 19189 (ON LAT), where the Tribunal stated at paragraph 29: “The Applicant continues to have pain, and the pain inhibits her daily activities. The Applicant’s pain also interferes with the applicant’s psychological well-being…The plan proposes treatment that is reasonable and necessary.”
7The applicant refers to the attendance records from Crunch Fitness where she attended 12 sessions in a bootcamp following the partial approval, which the respondent states is different than personal training sessions.
8The respondent submits that the applicant has not met her burden of proving that the treatment proposed is reasonable and necessary with the addition of 42 sessions of personal training beyond the one-year gym membership and ten personal training sessions approved. The respondent submits that the evidence does not support the need for the 42 additional personal training sessions. The respondent points out that during the assessment, the applicant reported that prior to the accident she functioned normally at school and was driving. At the time of the assessment, she reported being active with the activities of daily living, attending school full-time as normal, and driving.
9In the explanation of benefits, dated June 3, 2019, the respondent describes that following the Insurer’s Examination report of Dr. Mohamed Khaled dated May 30, 2019, the respondent determined to partially approve the gym membership and ten personal training sessions as opposed to 52 sessions of personal training. The respondent stated that there was no objective evidence supporting any ongoing permanent impairment or that the applicant required further facility-based therapies, rather that Dr. Khaled recommended having examined the applicant and following a thorough review of medical documentation, that independent active rehabilitation was most appropriate to address the applicant’s ongoing reports of accident-related impairment.
10An x-ray taken on January 15, 2018, of the applicant’s cervical, thoracic and lumbar spine, revealed no evidence of any previous fracture radiographically detected. Upon physical examination Dr. Khaled found no objective evidence of any permanent ongoing accident-related impairment. Dr. Khaled opined that the insured would be best served by an independent exercise program as opposed to any facility-based treatment two years following the accident. Dr. Khaled opined that the applicant was at or near maximal medical improvement and that what the applicant self describes experiencing is uncomplicated soft tissue injury without evidence of significant orthopaedic or neurological sequela.
11Dr. Khaled opines that the applicant has had a prolonged course of facility- based therapies with limited symptomatic improvement. He determined a one-year gym membership would be reasonable together with ten personal training sessions, as opposed to the 52 personal training sessions proposed in the treatment plan dated March 19, 2019, which Dr. Khaled found to be excessive. Dr. Khaled considered that the one-year membership at a cost of $377.00; a $70.00 documentation fee; and the ten personal training sessions totalling $600.00 would be a reasonable and necessary expense, at a total approved cost of $1047.00.
12I agree with Dr. Khaled’s determination relating to the partial approval of the treatment plan because it is based on what will support the applicant’s independent active rehabilitation. As stated, there is no objective evidence of any ongoing permanent accident related musculoskeletal, neurological, or orthopaedic impairment which the applicant is experiencing, therefore the treatment plan is not reasonable and necessary. Dr. Khaled considered what treatment would be best to address the applicant’s reported issues two years following the accident and I accept his expert opinion in favour of the partial approval of the treatment plan, considering that the applicant self describes experiencing uncomplicated soft tissue injury without evidence of significant orthopaedic or neurological sequela. By reason of Dr. Khaled’s expert opinion in his IE assessment dated May 30, 2019, which is to the effect that based on the applicant’s physical condition two years following the accident, and the results of diagnostic tests and physical examination, the partial approval of the treatment plan dated March 19, 2019, is reasonable and necessary.
13The OCF-18 proposed by Jordan Fratoni, Physiotherapist, and Ashley Bielby, Massage Therapist, of Westmount Physiotherapy & Rehabilitation identified the applicant’s injuries as whiplash associated disorder [WAD2] with complaints of neck pain with musculoskeletal signs, sprain and strain of the lumbar spine. The goals of treatment are pain reduction, increased strength, increased range of motion, in addition to the applicant returning to the activities of normal living. There is a note that the patient has her improved range of motion, and her headache intensity has decreased as a result of previous treatment. The treatment plan proposes six weeks of therapy of multiple body sites as well as documentation support activity at a total cost of $859.06.
14The applicant submits that the goals of the treatment plan are in accordance with 18-005087 v. Aviva Insurance, 2019 CanLII 101466 (ON LAT), where ongoing benefit from massage therapy for pain treatment is determined reasonable and necessary.
15In the explanation of benefits, dated June 3, 2019, the respondent describes that following the Insurer’s Examination report of Dr. Mohamed Khaled dated May 30, 2019, the respondent determined that the physiotherapy and massage services proposed in the treatment plan dated April 10, 2019, were not a reasonable and necessary since there is no objective evidence of any ongoing permanent accident-related impairment requiring soft-tissue facility-based therapies two years following the accident and that the applicant should be transitioned to independent active rehabilitation.
16As stated, in his report dated May 30, 2019, Dr. Mohamed Khaled found no objective evidence of any permanent ongoing accident-related impairment affecting the applicant following a review of diagnostic results and comprehensive medical documentation. He opined directly that the applicant would be best served by an independent exercise program as opposed to any facility-based treatment two years following the accident. He opined what the applicant was experiencing is uncomplicated soft tissue injury without evidence of significant orthopaedic or neurological sequela. Dr Khaled opined that the prolonged course of facility-based therapies, the applicant had undergone, had limited symptomatic improvement. He opined that the treatment dated April 10, 2019, in the amount of $859.06 submitted by Jordan Fratoni, Physiotherapist, for massage therapist services is not required or reasonable and necessary when there is no objective evidence of any ongoing permanent accident-related musculoskeletal, neurological, or orthopaedic impairment.
17I agree with the results of Dr. Mohamed Khaled’s IE report and opinion relating to the treatment plan dated April 10, 2019, in the amount of $859.06, for 12 sessions of therapy of multiple body sites and ancillary costs not being payable by the respondent, since the treatment plan proposed is neither reasonable nor necessary.
Interest
18As I have found that the applicant is not entitled to the two treatment plans, beyond what was approved by the respondent in the explanation of benefits dated June 3, 2019, in relation to the partial approval of the treatment plan dated March 19, 2019, in the amount of $2847.60 ($3972.60 less $1,125.00 approved), the applicant is not entitled to interest on any overdue payment in accordance with section 51 of the Schedule.
Award
19The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer, unreasonably withheld or delayed the payment of benefits. The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
Order
i. The treatment plan proposing approval in the amount of $3972.60, in its entirety, as opposed to the partial approval by the respondent of $2847.60 ($3972.60 less $1,125.00 approved), is neither reasonable nor necessary pursuant to the Schedule.
ii. The physiotherapy treatment plan in the amount of $859.06 is neither a reasonable nor a necessary expense pursuant to the Schedule.
iii. The applicant is not entitled to interest since there is no overdue payment of benefits.
iv. The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
Released: June 29, 2023
Janet Rowsell Adjudicator