Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-004052/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:
James Wilson Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
ADJUDICATOR: Teresa Walsh
APPEARANCES:
For the Applicant: Maria Papadopoulos, Paralegal
For the Respondent: Kristofer B. Angle, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1James Wilson, the applicant, was injured in an accident on March 9, 2018, and sought medical benefits from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the benefits in dispute on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,496.85 for chiropractic and physiotherapy services proposed by Dr. Aliya Salayeva of Brampton Civic Care Centre in a treatment plan/OCF-18 (“plan”) submitted on September 14, 2020?
ii. Is the applicant entitled to $1,700.00 for a brain SPECT scan assessment proposed by Ontario Independent Assessment Centre in a plan submitted on November 11, 2019?
iii. Is the applicant entitled to $3,600.00 for an MRI assessment proposed by Ontario Independent Assessment Centre in a plan submitted on November 22, 2019?
iv. Is the applicant entitled to $2,200.00 for an EMG assessment proposed by Ontario Independent Assessment Centre in a plan submitted on September 15, 2020?
v. Is the applicant entitled to $707.20 for cognitive devices proposed by Ontario Independent Assessment Centre in a plan submitted on September 30, 2020?
vi. Is the applicant entitled to $2,993.83 for occupational therapy services proposed by Ontario Independent Assessment Centre in a plan submitted on November 2, 2020?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant acknowledged that the MRI assessment listed as issue iii. in the preceding paragraph is no longer in dispute as it was completed in 2021 and paid for under the Ontario Health Insurance Plan (“OHIP”). Accordingly, that issue will not be addressed as part of my decision in this matter.
RESULT
5The applicant has not established that the five remaining disputed plans are reasonable and necessary. As there are no benefits owing, no interest is payable. The application is dismissed.
ANALYSIS
Applicant’s onus to establish a treatment plan is reasonable and necessary
6To receive payment from an insurer for a medical benefit sought under sections 14 and 15 of the Schedule, an applicant must establish on a balance of probabilities that he has suffered an impairment from the accident and that the medical benefit is a reasonable and necessary expense as a result of the accident.
7There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.
8In demonstrating the reasonableness and necessity of a benefit sought, 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 the goals are reasonable.
Chiropractic/physiotherapy and occupational therapy plans are not reasonable and necessary
9These plans are described at subparagraphs [3]i. and [3]vi. above. The applicant has not established that either of these plans is reasonable and necessary.
10The treatment goals of both plans include pain reduction, increase strength, and increase range of motion (presumably in the applicant’s neck, left shoulder and back, being the affected areas). No specific details are provided in the plans as to how these goals are to be achieved or evaluated.
11When these plans were submitted to the respondent, the applicant had already been receiving ongoing treatment similar to that proposed, for approximately 17 months. The treatment included massage manipulation, use of a TENS machine, physiotherapy, active stretching and exercise therapy as well as instructions on home exercise and stretching programs. In the medical records and assessment reports relied on by both parties, the applicant consistently described the ongoing treatment as providing “temporary relief” for his pain.
12The applicant relies on the report of Dr. Michael Gofeld, a pain medicine specialist, in support of these plans. Dr. Gofeld examined the applicant and provided a report on his behalf in January 2000. In Dr. Gofeld’s view, the applicant suffered from chronic pain likely related to the accident. Dr. Gofeld recommended, among other things, further individualized occupational therapy and chiropractic treatment, physiotherapy and personal training sessions.
13At the same time, Dr. Gofeld acknowledged that the applicant’s prognosis for spontaneous recovery was “guarded”. He noted that the applicant’s elevated levels of depression, anxiety, post-traumatic stress symptoms and positive screening for “catastrophizing” were predictors for poorer outcomes.
14The respondent relies on the reports of its family medicine assessor, Dr. Seung-Jun Lee, in denying the plans are reasonable and necessary. Dr. Lee first saw and examined the applicant in November 2020, more than two and a half years post-accident.
15When asked by Dr. Lee whether the post-accident treatments he had received for his neck, left shoulder and back pain were of benefit, the applicant stated that he thought he had improved “about 3 per cent … and that he had reached a plateau” in his recovery.
16Based on observations of the applicant before and during a 25-minute history taking, Dr. Lee noted no indications of laboured movement, use of assistive devices or noticeable expressed discomfort. According to Dr. Lee, the applicant was “able to move with sufficient ease from sitting to standing position and vice versa”. The applicant’s cervical, thoracic and lumbar spine demonstrated normal curvature. There were no abnormal findings in terms of the applicant’s muscle bulk in his back and shoulders. The applicant did report discomfort with digital palpation of his neck, left shoulder and lower back.
17In Dr. Lee’s opinion, the applicant sustained soft tissue injuries including whiplash associated disorders, left shoulder sprain/strain, and lumbar myofascial sprain/strain. Dr. Lee concluded that the applicant had achieved maximum medical improvement as a result of the accident. On that basis, Dr. Lee stated that the plan for chiropractic and physiotherapy services, described at subparagraph [3]i. above, was neither reasonable nor necessary.
18In December 2020, Dr. Lee conducted a paper review of medical records and reports, and referenced his earlier examination of the applicant, in assessing the plan for occupational therapy services described in subparagraph [3]vi. above. In Dr. Lee’s opinion, the plan was neither reasonable nor necessary, as he did not identify any accident-related musculoskeletal impairments that would necessitate the proposed services.
19X-rays, ultrasounds and MRI scans of the applicant’s neck and spine taken between March 15, 2018 and August 25, 2021, showed degenerative changes. Left shoulder imaging done during this period demonstrated normal findings. None of the family physicians seen by the applicant post-accident have indicated in their records a link between the imaging results and any accident-related complaints.
20Further, in post-accident medical records provided, it is noted that the applicant sought treatment on a number of occasions for back and other upper extremity injuries and complaints unrelated to the accident.
21In summary, given that:
i. the applicant has already received significant, ongoing treatment for pain management and increasing strength and range of motion in affected areas;
ii. the applicant has consistently described the treatment as providing only temporary relief and minimal improvement; and
iii. there is no medical evidence that further, similar treatment such as proposed in the two plans is likely to provide greater and lasting benefit,
iv. I find the disputed plans have not been established as being reasonable and necessary.
Brain SPECT scan plan and EMG assessment plan are not reasonable and necessary
22These plans are described at subparagraphs [3]ii. and [3]iv. above. The applicant has not established that either of these plans is reasonable and necessary.
23For the brain SPECT scan, the plan states that the treatment goals will be identified once the scan report is available. For the EMG assessment, the treatment goals are: pain reduction, increase in strength, increase range of motion, and return to activities of normal living.
24Nowhere in the applicant’s submissions does he refer to medical evidence, including an opinion of a treating physician or assessor, in support of these plans being reasonable and necessary. Rather, the applicant argues that the plans are reasonable and necessary given that they “were not completed by OHIP”.
25In turn, the respondent relies on s. 47(2) of the Schedule in arguing that it is not obligated to pay for the brain SPECT scan or the EMG assessment, as both are available through OHIP based on a referral from the applicant’s family doctor. However, other than its bare assertion, the respondent has not provided any actual evidence that the scan and assessment are indeed OHIP-insured services obtainable via a family physician’s referral.
26In my view, whether the brain SPECT scan and the EMG assessment are available through OHIP is a secondary question, which need only be addressed if the applicant meets his burden in establishing the reasonableness and necessity of these plans. As discussed below, the applicant has not done so.
27While nowhere in his submissions does the applicant reference a treating physician or assessor who recommended these plans, the plans themselves refer to neurologist Dr. Vincenzo Basile as the recommending assessor. Dr. Basile examined the applicant and provided his findings and recommendations in a June 3, 2019 report.
28The history provided by Dr. Basile in his report included that the applicant:
i. took no medications prior to the accident;
ii. had a past surgical history significant for left knee arthroscopy and surgery;
iii. at the time of the accident, was a passenger in a vehicle that was stopped or just starting to move after a stop light change when it was rear-ended by a car travelling 80 km/hour;
iv. did not brace himself before the collision;
v. hit his head and lost consciousness as a result of the collision;
vi. had experienced, post-accident, radicular electrical shock-like sensations shooting down the left arm with neck flexion and/or extension, along with numbness, tingling and pins and needle sensations in digits 1-3 of his left hand, and generalized left arm weakness; and
vii. demonstrated “some features of post-concussive syndrome”, including balance impairment, vertigo, retrograde amnesia, trouble controlling emotions, an inability to focus and blurriness of vision.
29On the basis of the history obtained and examination carried out, Dr. Basile opined that the applicant met the American Academy of Neurology criteria for post-concussive syndrome, which is consistent with a traumatic brain injury. Among other elements of a proposed work-up and treatment for the applicant, Dr. Basile recommended that a brain SPECT scan be performed to look for deficits typically seen in post-traumatic brain injuries.
30Without specifically recommending it, Dr. Basile also referenced EMG testing for the applicant’s left upper and lower extremities to rule out cervical and lumbosacral radiculopathy.
31In his report, Dr. Basile did not reference any medical records for the applicant pre-dating or following the accident. Further, Dr. Basile did not refer to any accident-related police or hospital records. Had Dr. Basile sought independent, objective supporting evidence for the information in his report set out at paragraph [28] above, he would have noted that the applicant:
i. regularly took prescription medication including opioids pre-accident, and was described by some family doctors as exhibiting drug-seeking behaviour;
ii. had right knee, not left knee, arthroscopy and surgery prior to the accident;
iii. was noted to suffer from chronic pain before the accident;
iv. had produced no document in this dispute relating to the accident itself, including any document addressing the approximate speed of the vehicle that rear-ended the vehicle in which the applicant was a passenger;
v. was quoted in family doctors’ records as well as in reports of assessors relied on by both parties, as saying he braced himself before the collision;
vi. could not recall hitting his head or losing consciousness in the collision; and
vii. was not quoted, in family doctors’ records or in assessors’ reports relied on by both parties, as experiencing the radicular electric shock sensations or many of the post-concussive syndrome features noted by Dr. Basile.
32As Dr. Basile’s descriptions of the applicant’s medical history and accident-related details are either incorrect or unsupported based on independent, objective evidence, I afford little weight to his report findings and treatment recommendations regarding the brain SPECT scan and the EMG assessment plans.
33Accordingly, I find that the applicant has not met his burden in establishing that these plans are reasonable and necessary.
Cognitive devices plan is not reasonable and necessary
34This plan is referenced at subparagraph [3]v. above. The specific cognitive devices in issue are described in the plan itself, being an android computer tablet and a two-year online subscription to a program called “Luminosity”, which provides cognitive training (including for memory, attention and problem solving). The applicant has not established that the plan is reasonable and necessary.
35The treatment goals included in this plan are: pain reduction, increase in strength, increase in range of motion, and return to activities of normal living and modified work activities. It is questionable whether all of these goals are related to cognitive function. On a separate sheet, the plan provides further information on Luminosity, without any indication as to how this program is likely to assist with the plan goals or how goals are to be evaluated.
36In his submissions, the applicant refers to a psychological assessment he underwent in May 2019 as being supportive of the plan for cognitive devices. The assessment report does briefly reference the applicant’s description of short-term memory deterioration and difficulty concentrating since the accident. However, this assessment was focused on the applicant’s depression and anxiety. None of the assessment report recommendations refer to the cognitive devices plan or any other proposed cognitive-related devices or treatments.
37The respondent relies on its two assessors, neurologist Dr. Nagib Yahmad and psychologist Dr. Debra Mandel, in disputing the reasonableness and necessity of the cognitive devices plan. Dr. Yahmad’s view is that the plan is unnecessary as the applicant did not sustain any accident-related impairment from a “strict physical neurological perspective” and further, did not report any memory or other cognitive problems during the assessment. At the same time, Dr. Yahmad acknowledged that memory and cognitive issues should be deferred to an appropriate specialist as these issues are outside his area of expertise. Dr. Mandel found that while cognitive therapy from a psychologist would likely provide benefit to the applicant for his depression and anxiety, the proposed plan was not reasonable or necessary as the applicant advised that using a computer strained his eyes and caused increased irritability.
38The applicant argues that the findings and views of Dr. Yahmad and Dr. Mandel are contradictory and should not be afforded any weight. I disagree. Each of these assessors summarized available medical records and reports, examined the applicant and applied their knowledge and training within their field of expertise, to find that, for different reasons, the cognitive devices plan was not reasonable and necessary.
39Considering the totality of evidence, there are no medical records, reports or other evidence before me demonstrating that the cognitive devices plan will likely benefit the applicant’s recovery from accident-related injuries. Therefore, I find this plan is not reasonable and necessary.
Interest
40As there are no benefits owing for treatment plans, no interest is payable.
ORDER
41For the reasons outlined above, I find that:
i. The applicant is not entitled to any of the benefits sought in the five remaining treatment plans, or interest.
ii. The application is dismissed.
Released: July 26, 2023
Teresa Walsh Adjudicator