Citation: Yokhanna v. Aviva General Insurance, 2023 ONLAT 21-001263/AABS

Licence Appeal Tribunal File Number: 21-001263/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:

Muna Yokhanna

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

Christine McKenna, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Muna Yokhanna, the Applicant, was involved in an automobile accident on August 14, 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 Aviva General Insurance, the Respondent, 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 $3,948.91 for physiotherapy services proposed by In Line Rehabilitation in a treatment plan/OCF-18 (“plan”) dated January 3, 2019?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for a TMJ assessment proposed by A & B Medical Assessments in a plan dated March 5, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for an orthopedic assessment proposed by A & B Medical Assessments in a plan dated March 5, 2021?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

3A claim for non-earner benefits was withdrawn by the Applicant in advance of the hearing. Prior to the hearing the Respondent agreed to approve and pay for a psychological assessment and a chronic pain assessment, which were previously in dispute, therefore I need not address those issues.

RESULT

4The Applicant is not entitled to the plans for physiotherapy, a TMJ assessment, or an orthopedic assessment. Given that no benefits are outstanding, no interest is owed.

BACKGROUND

5The Applicant’s pre-accident medical history is remarkable for hypothyroidism, hypertension, high cholesterol, and anemia. She also suffered from headaches. Her pre-accident medical records document at least 8 visits to the emergency room in the two years prior to the accident due to vertigo, headaches, and abdominal pain.

6The Applicant also suffered from back pain pre-accident. She had a history of hospital visits prior to the accident for a herniated disc and pain radiating to her leg. There are multiple pre-accident imaging reports including an MRI of the lumbar spine from August 2016 which revealed a mild posterior disc bulge with stenosis at L5-S1 and multilevel disc disease. She had eleven consultations with orthopedic surgeons between 2015 and 2017.

7On the day of the accident, the Applicant was a seat-belted passenger in a vehicle that was rear-ended by another vehicle reportedly travelling at 50km/hour. The Applicant submits that the vehicle was written off, however no evidence was provided in support of those submissions, such as a property damage file. The ambulance call report indicates that the Applicant did not hit her head or lose consciousness and the airbags did not deploy. The report notes that the vehicle was minimally damaged, the rear bumper was dented but there was no intrusion.

8The Applicant was transported to hospital where she complained of neck, shoulder, chest and back pain. She was examined, diagnosed with musculoskeletal pain, given Toradol and Tylenol and discharged.

9A few days post-accident, on August 20, 2018, the Applicant saw her family physician, Dr. Mikhail, and complained of pain in her neck and back. Mild tenderness and limited range of motion was noted on examination. The Applicant was prescribed Baclofen and Naproxen and recommended to attend physiotherapy. An ultrasound of her left shoulder dated August 21, 2018 revealed tendinosis. X-rays of her spine the same date showed disc space narrowing and suspected spondylolisthesis at L5, with disc spacing maintained throughout. The Applicant saw Dr. Mikhail on September 28 and October 26, 2018 for ongoing pain in her leg and back. She was again prescribed Baclofen and Naproxen and advised to continue with physiotherapy. Further x-rays of her spine dated October 18, 2018 were similar to the August imaging, with mild multilevel degenerative changes.

10The Applicant began attending treatment at Inline Rehabilitation Centre. A disability certificate was completed by Dr. Csumrik, chiropractor, dated September 13, 2018, which indicates that her injuries included headache, sprain/strain of the spine, shoulder and SI joint, nervousness, PTSD and other sleep disorder.

ANALYSIS

11Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an insured person so long as the insured person sustains an impairment as a result of an accident, and the medical benefit is a “reasonable and necessary” expense incurred as a result of the accident.

12The Applicant bears the onus of proving entitlement to the proposed treatment by proving the OCF-18s are reasonable and necessary on a balance of probabilities.

The treatment plan for physiotherapy is not reasonable or necessary

13I find the Applicant has not discharged her burden to establish that the plan for physiotherapy is reasonable and necessary.

14The Applicant attended an Insurer’s Examination with Dr. Naumetz, orthopedic surgeon. According to the report dated January 31, 2019, the Applicant reported attending treatment at Inline once a week, but that the treatment had not made her feel better, in fact, sometimes she experienced more pain afterwards.

15The Applicant was referred to Dr. McGonigal, an orthopedic surgeon (whom she had also seen prior to the accident) for acute chronic low back pain. Dr. McGonigal’s report dated January 2, 2019, indicates the Applicant had a six-year history of low back pain. Dr. McGonigal reviewed the prior imaging and based on his examination, found at most mild sciatic irritation on the left. He arranged an MRI to ensure there wasn’t any significant degree of impingement. The MRI was completed and Dr. McGonigal had a follow up consultation. The report from that consultation, February 13, 2019, indicates the Applicant was somewhat pain focused, and she reported that her symptoms were somewhat better since she discontinued physiotherapy.

16The Applicant was referred to Dr. Nguyen at Releva Chronic Pain Centre by an ER physician in February 2019 and by Dr. Kwok, orthopaedic surgeon, in April 2019. According to the chronic pain report of Dr. Nguyen dated April 23, 2019, the Applicant reported that previous physiotherapy, chiropractic treatment, and massage therapy provided no benefit. Dr. Nguyen opined that the Applicant was a good candidate for nerve blocks, and she continued to receive regular injections. Dr. Nguyen’s notes indicate that the injections provided stable pain control and overall relief. The Applicant reported that injections and her medication were the only things that helped her pain.

17The evidence does not support that further physiotherapy is reasonable or necessary. By the Applicant’s own reports, it didn’t make her feel better, and sometimes caused more pain. She reported feeling better after stopping physiotherapy. Further, the only treatment that reportedly helped her pain was the nerve block injections. While pain relief is a reasonable goal set out in the treatment plan, the evidence does not support that this treatment would reasonably achieve that goal.

18For these reasons, I find that the Applicant has failed to establish, on a balance of probabilities, that the treatment plan for further physiotherapy is reasonable and necessary.

The TMJ assessment is not reasonable or necessary

19I find that the Applicant has failed to establish on a balance of probabilities that a TMJ assessment is reasonable and necessary.

20The treatment plan, dated March 5, 2021, indicates that the applicant experienced clicking or popping sounds from her jaw, difficulty opening and closing her mouth, difficulty chewing, pain in her face, jaw, neck, and headaches, etc. and submitted the request for a TMJ assessment. The Applicant underwent the assessment with Dr. Treger on April 8, 2021 and submits that she is entitled to the cost of the assessment. Dr. Treger diagnosed the Applicant with anterior disc displacement without reduction on the left and right sides, and jaw pain.

21The respondent submits that there was no evidence to suggest that the Applicant suffered injuries in the subject accident that necessitated a TMJ assessment. I agree.

22Other than the treatment plan and report completed almost two and a half years post accident, there is no evidence to support that the Applicant sustained injuries that would require a TMJ assessment. The airbags did not deploy, nor is there any evidence that she struck her head or face in the accident. The ambulance call report specifically notes that she denied striking her head. The disability certificate does not identify any facial or jaw injuries or pain. The clinical notes and records of the family doctor do not identify any complaints of jaw pain. Other than Dr. Treger’s plan and the subsequent assessment, the Applicant has not pointed to any other evidence where such symptoms were mentioned.

23I place weight on the Insurer’s Examination with Dr. Ouanounou, dentist, dated May 10, 2021. The Applicant reported that one year after the accident, she began experiencing occasional jaw pain, aggravated by chewing hard or fibrous foods, and intermittent clicking when opening or closing her mouth. Upon examination, Dr. Ouanounou found no tenderness or clicking, her mandibular range of motion was normal, there was no indication of any inflammation, and concluded that the examination was unremarkable.

24When comparing the dental assessments of Dr. Ouanounou and Dr. Treger, I prefer the evidence of Dr. Ouanounou. Dr. Treger’s conclusions were based on the Applicant’s self reports and is not corroborated by any other medical evidence. Dr. Treger did not review any other documentation. Dr. Ouanounou had the benefit of reviewing voluminous additional documentation, including the ambulance call report, and the clinical notes and records of the family doctor, none of which identify any jaw related complaints.

25As a result, I find that the Applicant has not met her burden of proof to establish that she sustained a jaw impairment as a result of the accident, or that the TMJ assessment was reasonable and necessary pursuant to the Schedule.

The orthopedic assessment is not reasonable and necessary

26I find that the Applicant has failed to establish on a balance of probabilities that the plan for an orthopedic assessment is reasonable and necessary.

27The treatment plan dated March 5, 2021 proposed an orthopedic assessment with Dr. T. Getahun, with the stated goals to determine the most appropriate form of treatment for her condition, and to determine the possible causes of her symptoms and the extent to which they interfere with her normal activities.

28Another orthopaedic assessment would be a duplication of services already preformed. The Applicant had already undergone multiple musculoskeletal assessments, which had outlined her accident-related injuries and impairments in extensive detail (Dr. Naumetz in January 2019, twice with Dr. McGonigal in January and February 2019, and Dr. Kwok in April 2019). The assessors had already determined the appropriate course of treatment. She was referred to Dr. Nguyen at the chronic pain clinic where she underwent regular injections that were reportedly helpful, along with her medication. In my view, there is simply no need for another orthopaedic assessment given the assessments already conducted.

29I find that the stated goals of the plan had already been met prior to its submission. The Applicant had been treated at the pain clinic for two years at the time the assessment was proposed. The records from the pain clinic suggest that she had achieved some pain control and relief, and some improved function by 2020. The Applicant had directed me to no evidence demonstrating that another orthopaedic assessment is reasonable and necessary.

30The findings in the orthopaedic assessment report demonstrate that the assessment was not reasonable and necessary. In his report dated April 2, 2021 Dr. Getahun’s diagnosis of chronic myofascial strain, left shoulder strain and chronic pain syndrome. This should come as no surprise given that diagnosis was already made by the doctors two years prior. The report also largely mirrors the diagnosis and recommendations of the s. 25 chronic pain assessment by Dr. Abounaja, which the Respondent approved.

31I find that the Applicant has not proven on a balance of probabilities that the orthopedic assessment was reasonable or necessary based on the evidence before me.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are owed, no interest is payable.

ORDER

33The Applicant is not entitled to the plans for physiotherapy, a TMJ assessment or an orthopedic assessment. Given that no benefits are overdue, no interest is payable.

34The Application is dismissed.