Licence Appeal Tribunal File Number: 20-003750/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:
Sung Keum Ha
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR: Ian Maedel
APPEARANCES:
For the Applicant: Stefan Juzkiw, Counsel
For the Respondent: Aimee Draper, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on January 29, 2016, and sought benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,254.07 for chiropractic services, proposed by Kingsbridge Rehab Centre in a treatment plan (“OCF-18”) dated April 1, 2019?
ii. Is the respondent liable to pay an award pursuant to s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the OCF-18 for chiropractic services is not reasonable and necessary pursuant to the Schedule. Given there are no overdue payments of benefits, no award, nor interest is payable.
ANALYSIS
4Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
5The applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18 is reasonable and necessary on a balance of probabilities (Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.) at paragraphs 20-24). To do so, the applicant should identify the goals of treatment, how the goals would be met through the requested services/items, and that the overall costs of achieving them are reasonable.
6The applicant submits he suffered numerous injuries as a result of the index accident, including ongoing pain to his right shoulder, permanent deformities in the cervical and lumbar spine, constant neck pain resulting in limited range of motion, and left knee pain. He notes that he has been removed from the Minor Injury Guideline and previous chiropractic treatment has been approved by the insurer in the past for the same accident-related injuries.
7The OCF-18 in dispute was prepared by Jae Lee, Chiropractor, and dated April 1, 2019. The proposed treatment includes 12 sessions of chiropractic manipulation, 12 sessions of exercise, and 6 sessions of massage therapy. It lists the treatment goals as pain reduction, increase in strength, increased range of motion, and return to activities of daily living.
8Treatment records from North York Physiotherapy Clinic do not support the applicant’s claims. The treatment invoices detail 19 visits in 2017. No additional records related to physiotherapy were submitted into evidence. Similarly, the applicant provided invoices from Kingsbridge Rehab Centre that detail 30 visits for chiropractic, active therapy and massage treatments between July 6, 2016 and January 25, 2020. Of this treatment, 20 visits were in 2016, zero in 2017, one in 2018, seven in 2019 and two in 2020. The applicant does not provide any explanation for the lack of treatment in 2017, nor any reason for the sporadic nature of his visits between 2018 and 2020.
9Dr. M. Ko, physical medicine and rehabilitation specialist, assessed the applicant and recommended only swimming and light cardiovascular exercise. Dr. Ko’s report dated August 2, 2017, noted the applicant’s complaints of pain in his neck and lower back post-accident. Dr. Ko found no structural pathology and diagnosed the applicant with chronic soft-tissue pain in the neck and lower back. However, he noted no additional follow-up or medical intervention was required.
10The applicant’s right shoulder issues are unrelated to the subject accident and are degenerative in nature. In an x-ray of his right shoulder conducted on June 11, 2018 moderate degenerative changes at the acromioclavicular joint were identified, and the radiologist concluded the applicant suffered from mild to moderate osteoarthritis. In a right shoulder ultrasound conducted June 13, 2018 degenerative changes were also noted, as well as tenosynovitis and bursitis.
11The applicant was treated by pain specialist, Dr. O. Visnjevac for his right shoulder pain. He diagnosed the applicant with arthralgia (joint stiffness) of the right shoulder and bursitis in the right subacromial, and subdeltoid. Dr. Visnjevac conducted an ultrasound-guided shoulder injection of pain medication directly into the applicant’s right shoulder on September 27, 2018. Dr. Visnjevac noted the applicant could return for further injections as required in three to six months, and recommended rotator cuff therapy. There were no further notations in the records provided, suggesting the applicant never returned for additional pain management.
12The applicant has degenerative changes in his back and neck which are not linked to the subject accident. The applicant underwent several diagnostics following the accident. In an x-ray conducted February 4, 2016, six days post-accident, degenerative disc disease was identified in his cervical spine and osteoarthritis was noted in both his cervical and lumbar spine. Dr. Y. Choi noted degenerative changes in the applicant’s cervical spine, but no major spinal stenosis. He recommended a conservative approach to treatment, including follow-up on an as-needed basis and home exercise. However, he did recommend a referral by his family physician to a pain specialist for chronic pain management. In a further x-ray of the lumbar spine conducted April 24, 2019, it was noted there was moderate sclerosis (hardening of the tissue) at the L5-S1 facet joints, in keeping with the previous diagnosis of osteoarthritis. However, neither Dr. Choi, nor the diagnostic imaging reports linked the degenerative changes of the spine to the index accident.
13While the applicant cites consistent reports of chronic pain to Dr. H.A. Kim, psychiatrist, between April and July 2019, the clinical notes and records do not include any diagnosis of chronic pain. Instead, Dr. Kim repeatedly refers to a psychological diagnosis of persistent depressive disorder. Under the category of medical diagnoses the notes consistently state “N/A”. Otherwise, I place no weight upon this psychological diagnosis regarding whether the physical treatment at issue is reasonable and necessary.
14There is no evidence to support the applicant’s claims weakness in his left extremities and knee pain are related to the accident. The applicant was referred to Dr. N. Kasravi, Neurologist, in regard to left leg weakness. To explore these “vague symptoms” linked to the accident, a Nerve Conduction Study and Electromyography (“EMG”) were conducted. However, the report dated June 3, 2016, noted the results of these studies were limited due to poor patient tolerance. Dr. Kasravi concluded there was no evidence of weakness or other neurologic abnormality. Similarly, an ultrasound of his left knee conducted April 23, 2018 noted fluid in the suprapatellar/infrapatellar space, but the applicant provided no diagnosis linking these symptoms to the index accident.
15Finally, I place little weight upon the applicant’s Occupational Therapy Assessment Report prepared by Marika Paquin, dated December 7, 2016. Following a physical assessment, the occupational therapist noted many symptoms of a potential brain injury and frustration due to the inability to complete activities of daily living. She recommended a “home-making benefit” and attendant care benefit, as well as two to three months of occupational therapy and physical therapy, assistive devices, and additional assessments. However, given the limited application to the specific treatment at issue in this dispute, and the time elapsed between this assessment and the treatment plan at issue, I place little weight upon the conclusions rendered in this report.
16The respondent submits the applicant was involved in a minor accident that resulted in only sprain/strain injuries to the applicant’s neck and lower back. It takes the position that diagnostic imaging illustrated only degenerative changes and no evidence of acute or traumatic accident-related injury.
17I find the two insurer’s examination (“IE”) reports persuasive in establishing the treatment at issue is not reasonable and necessary. In his report dated August 18, 2016, Dr. F. Loritz, general practitioner noted the applicant’s self-report that he had “plateaued” following more than six months of rehabilitative therapy. Dr. Loritz opined that the applicant sustained uncomplicated myofascial sprain/strain of the cervical spine (whiplash WAD1-2) and axial spine, and a possible contusive injury to his knee as a result of the accident. The second report provided by Dr. H.H. Benfayed, orthopaedic surgeon, dated June 15, 2017, diagnosed the applicant with cervical strain, lumbar strain, and soft tissue injuries to the shoulders and left knee. Dr. Benfayed noted no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the index accident.
18Both Drs. Loritz and Benfayed noted the applicant’s observed functional capacities were inconsistent with his demonstrated functional limitations during formal testing. Dr, Benfayed noted the applicant was self-limited in his movements upon examination, but upon casual observation, the applicant’s range of motion was functional and “much better”.
19I have credibility concerns regarding the applicant’s reported physical injuries. The applicant first demonstrated intolerance to the Nerve Conductive Study/EMG study in June 2016 by Dr. Kasravi who noted the applicant’s vague symptoms regarding his energy and strength. Furthermore, both of the IE assessors noted distinct inconsistencies between the applicant’s reported physical impairments and the limitations noted on examination.
20The applicant has also failed to provide an adequate explanation for the conspicuous gap in chiropractic treatment between 2016 and 2018. While the applicant consistently attended Kingsbridge Rehab Centre in 2016, he failed to attend in 2017, attended once in 2018, and sporadically in 2019 and 2020. Otherwise, this evidence does not speak to an ongoing requirement for accident-related chiropractic, active therapy, or massage therapy.
21The applicant has provided a significant clinical history from 2016 but has failed to demonstrate this particular treatment is reasonable and necessary. The record indicates a lack of referrals or follow-up treatment. Specifically, in 2017 Dr. Ko diagnosed soft-tissue pain linked to the accident, but he did not recommend any further medical intervention. Similarly, after receiving an injection into his shoulder by Dr. Visnjevac in 2018, there were no additional records related to interventional pain management. This lack of further facility-based treatment falls directly in line with the opinions provided by the respondent’s expert medical assessors. Otherwise, the diagnostic imagery between 2016 and 2019 primarily illustrated degenerative changes in the applicant’s shoulder and spine which were not causally linked to impairments suffered in the index accident.
22The psychological diagnosis provided by Dr. Kim has no relevance on the physical treatment at issue. Otherwise, I place no weight no weight upon the conclusions made by occupational therapist Paquin. I note that Ms. Paquin relied heavily on the applicant’s self-reporting, and the medical records do not illustrate an applicant who is too impaired to complete many of the activities of daily living. My concerns regarding the applicant’s credibility also weigh heavily when assessing this evidence.
23When I consider the totality of the evidence tendered, the applicant has not met his evidential burden on a balance of probabilities. I am unpersuaded that additional chiropractic treatment, active therapy, or massage therapy is reasonable and necessary pursuant to the Schedule.
Award and Interest
24Given that these benefits are not reasonable and necessary, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664. Thus, the claim for an award is denied.
25Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
26The application is dismissed, and I find that:
i. Additional chiropractic services in the amount of $2,254.07 are not reasonable and necessary pursuant to the Schedule;
ii. The respondent is not liable to pay an award pursuant to Regulation 664;
iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
Released: February 13, 2023
Ian Maedel
Vice-Chair