Licence Appeal Tribunal File Number: 21-004899/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:
Harvinder Singh Wazir
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
Bahador Khani, Counsel
For the Respondent:
Alexander V. Dos Reis, Counsel
HEARD: By way of written submissions
OVERVIEW
1Harvinder Singh Wazir (“the Applicant”) was involved in an automobile accident on September 20, 2020, and sought benefits from Aviva General Insurance Company (“the Respondent”) 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 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 $3,481.02 for chiropractic, massage therapy, acupuncture, assistive devices, and transportation, proposed by 101 Physio in a treatment plan dated October 7, 2020?
ii. Is the Applicant entitled to a medical benefit in the amount of $3,130.77, less $2,791.00 approved by the Respondent, for goods and services proposed by 101 Physio in a treatment plan dated February 18, 2021?
iii. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a chronic pain assessment, proposed by 101 Assessment Centre in a treatment plan submitted on July 5, 2021?
iv. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for an orthopaedic assessment, proposed by 101 Assessment Centre in a treatment plan dated August 5, 2021?
v. Is the Applicant entitled to a medical benefit in the amount of $2,865.92 for chiropractic, massage therapy and physiotherapy, proposed by 101 Physio in a treatment plan dated August 23, 2021?
vi. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to the benefits claimed, nor interest.
BACKGROUND
4The Applicant was the driver of a sedan which was struck from behind by a tractor-trailer on a major highway. The collision caused his vehicle to spin several times and strike the concrete barriers on the side of the highway. Ambulance attended at the scene of the accident, but the Applicant declined to be taken to the hospital.
5The Applicant met with Dr. R. Salim, family physician, four days after the accident and complained of shoulder and back pain, mild headache, and symptoms of anxiety. Dr. Salim examined the Applicant and found no neurological issues and full range of motion (“ROM”) throughout his body. Dr. Salim advised the Applicant to use Voltaren and Vimovo, engage in physiotherapy, and provided him with Ativan to relive stress.
6The Applicant met with Dr. Salim again on October 13, 2020, about four weeks after the accident, and complained of ongoing headaches with fatigue and loss of focus. He was prescribed amitriptyline and referred for a CT scan of the head on October 16, 2020. The results of the scan were unremarkable. The Applicant started massage therapy, active therapy, and chiropractic treatment around this time, and continued to do so until August 2021.
7During a telephone consultation with Dr. Salim on October 29, 2020, the Applicant complained of ongoing headaches and stress, with blurred vision and was referred to iScope Concussion and Pain Clinic (“iScope”). The Applicant participated in a video consultation with nurse practitioner, L. Johnson, with iScope, on January 14, 2021. He complained of issues such as daily headaches, neck and back pain, decreased memory and concentration, and intermittent dizziness. Nurse Johnson diagnosed the Applicant with a mild traumatic brain injury based on the history and according to the Ontario NeuroTrauma Foundation Guidelines, post-concussion syndrome, post-traumatic vestibulopathy, cervicogenic headaches, phonophobia, photophobia, and sleep and mood disturbances. Nurse Johnson referred the Applicant to concussion rehabilitation consisting of vestibular, ocular-motor, cervicogenic treatments, and occupational therapy as well as the Buffalo Concussion Treadmill Test, counselling, and advised to use naproxen as needed. There is no evidence to indicate that the Applicant met with nurse Johnson any time thereafter or engaged in any treatment or therapy with iScope.
ANALYSIS
8The onus is on the Applicant to demonstrate on a balance of probabilities that the treatment and assessment plans in dispute are reasonable and necessary as a result of the accident.
9I find that this treatment and assessment plan was properly denied pursuant to section 38(5) of the Schedule and is not subject to review pursuant to section 38(6).
10This is the first treatment and assessment plan submitted on the Applicant’s behalf, following the accident. The plan proposes 15 physical therapy sessions at the hourly rate of a chiropractor, which is slightly more than the rate of a physiotherapist. It also proposes 10 acupuncture sessions at the rate of $50.00 per session, and $300.00 in transportation fees. It also seeks funding for devices such as hot/cold gel packs, a back support, TENS unit, cervical pillow, “motion medicine”. It also seeks ancillary fees and services such as: $112.81 for Education, promoting health, and preventing disease; $145.50 for “therapy, multiple sites”; and $215.00 for a total body examination.
11The Respondent denied this plan on October 16, 2020. The Respondent determined that the Applicant sustained a predominantly minor injury, was subject to the minor injury guideline, and was pre-approved for treatment under the minor injury guideline and asked that the provider submit a treatment confirmation form.
12The Applicant’s predominant injury immediately following the accident was soft-tissue injuries. Shoulder pain, back pain, and headaches were his primary complaints, with psychological symptoms secondary. He provided no compelling evidence of a pre-existing medical condition which would preclude his recovery if subject to the MIG. Further, at that time, he provided no evidence demonstrating that he sustained an injury that is not captured in the minor injury definition, such as a concussion. As a result, it was incumbent on him to engage in treatment pursuant to the MIG and submit a treatment confirmation form instead of a treatment and assessment plan. Neither the Applicant nor his treatment provider submitted a treatment confirmation form.
13Section 38(5) of the Schedule permits the Respondent to refuse to accept a treatment and assessment plan that proposes goods and services outside of the MIG when an insured is entitled to goods and services within the MIG. Here, the Respondent refused to accept the treatment and assessment plan and, instead, advised the Applicant to submit a treatment confirmation form, pursuant to the MIG. The Respondent also advised that treatment pursuant to the MIG is pre-approved for up to $2,200.00 in treatment.
14Section 38(6) provides that such a refusal under section 38(5) is not subject to review. Thus, I see no reason to interfere with this denial.
15I find that the Applicant has not met his onus to demonstrate that he is entitled to the unapproved transportation expenses related to this plan.
16The Applicant submits that travel expenses, which are the part of the treatment plan denied by the Respondent, are reasonable and necessary because he suffers from vehicular anxiety and requires transportation to and from treatment. The Respondent contests that it is not liable to pay travel expenses for the first 50km of the trip, pursuant to section 3(1) of the Schedule, and a cursory internet search revealed that the Applicant lives approximately 17.6 kilometers from the treatment facility.
17I agree with the Respondent and find that the expenses are not authorized transportation expenses as outlined in section 3(1) of the Schedule and the Respondent is not liable to pay those costs pursuant to section 15(2)(c). Section 15(2)(c) provides that the Respondent is not liable to pay for transportation expenses other than authorized transportation expenses. Section 3(1)(b) provides that the Respondent is not liable to pay an authorized transportation expense for the first 50 km of a trip, unless the insured person suffers a catastrophic impairment as a result of the accident. Here, the Applicant did not sustain a catastrophic impairment.
18The Applicant has provided no opinion from an authorized medical professional that would render the transportation expenses to be reasonable and necessary. Indeed, the Applicant reported to assessors that he has not driven since the accident, or that he finds it difficult to drive since the accident, due to anxiety as a driver and passenger. However, despite the Applicant’s complaints during the assessment, Dr. P. Waxer, psychologist, never made any recommendations relating to vehicular anxiety in the February 18, 2021 report – the Applicant was not referred to any specific treatment such a driver’s rehabilitation, and it was never recommended that he avoid driving. Likewise, the progress report dated September 6, 2022 by Dr. K. Papazoglou, psychologist, again noted that the Applicant was experiencing vehicular anxiety, but made no recommendations for treatment or accommodations.
19Further, the Applicant’s family physician, Dr. Salim, referred the Applicant for psychotherapy following a visit on October 13, 2020, but it appears that the Applicant never engaged in the treatment. No other complaints of vehicular phobia were made to Dr. Salim. Likewise, the Applicant was assessed by Dr. J. Sethi, psychiatrist, for an insurer’s examination, and Dr. Sethi concluded in a report dated April 22, 2021, that the Applicant’s vehicular anxiety was subclinical.
20As a result, I conclude that the Applicant has not demonstrated that the unapproved fees, related to transportation expenses, are reasonable and necessary as a result of the accident.
21I find this treatment and assessment plan to be not reasonable and necessary as a result of the accident.
22This treatment and assessment plan seeks funding for a chronic pain assessment. The Applicant’s submissions fail to address why a chronic pain assessment is reasonable and necessary, but he highlights that he reported ongoing pain and experiences light and noise sensitivity. The Applicant is critical of the insurer’s examination report of Dr. M. Ko, physiatrist, dated August 5, 2021. He suggests that the report is contradictory in that the report finds that he continues to suffer form ongoing impairments but concludes that the assessment is not reasonable and necessary.
23The Respondent submits that the Applicant has failed to demonstrate that it is reasonably possible that he suffers from chronic pain syndrome. It submits that the Applicant does not meet the criteria for chronic pain syndrome and that none of the Applicant’s treating physicians indicated that he suffers from chronic pain or that a chronic pain assessment is reasonable.
24I agree with the Respondent and find that the Applicant has not met his onus to demonstrate that a chronic pain assessment is reasonable and necessary. As noted previously, the onus is on the Applicant to demonstrate that the treatment and assessment plan is reasonable and necessary, and he must provide evidence to support his claim. Instead of providing that evidence and submissions to support it, the Applicant’s submissions focus on what he perceives to be deficiencies with Dr. Ko’s report and other cases where a chronic pain assessment was approved. I find this unhelpful because it wrongly attempts to shift the burden from the Applicant to the Respondent – contrary to the principles outlined in Scarlett v. Belair Insurance, 2015 ONSC 3635.
25The Applicant has not demonstrated that he suffers form an ongoing functional impairment as a result of pain. Dr. Salim’s clinical notes and records (“CNRs”) include no evidence that suggests that the Applicant is functionally impaired due to pain. The examination conducted by Dr. Salim in the early stages following the accident showed no range of motion impairments. The CNRs from 101 Physio indicate that the Applicant remained functional following the accident, but for an inability to do heavy lifting. This is insufficient evidence for me to determine that it is reasonably possible the Applicant suffers from chronic pain and that a chronic pain assessment is reasonable and necessary.
26The Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). There is no evidence to suggest that the Applicant is dependent on or abusing prescription medication or other substances, he is not dependent on healthcare providers or family members, he provides no evidence that he has deconditioned due to disuse, there is no evidence that he has withdrawn from social milieu, and he has returned to work which suggests that he has returned to his pre-accident functioning.
27I prefer the opinion of Dr. Ko, who in the August 17, 2021 report concluded that the Applicant does not suffer from chronic pain and that a chronic pain assessment was not reasonable and necessary. The Applicant demonstrated full range of motion throughout his body during Dr. Ko’s assessment. Dr. Ko noted that the Applicant was not dependent on medical practitioners or medication, and that the examination revealed no evidence of structural musculoskeletal pathology or nerve impingement.
28Aside from the treatment plan itself, the Applicant is unable to direct me to any evidence that suggests he suffers from a chronic pain condition which warrants further investigation in the form of a chronic pain assessment. The Applicant consulted with Dr. Salim four times in the first two months following the accident. Since then, he has met with Dr. Salim twice due to accident-related pain complaints, and three times for issues unrelated to the accident. Overall, the evidence does not suggest that the Applicant suffers from an ongoing chronic pain condition.
29I find that the Applicant has not met his onus to demonstrate that these treatment and assessment plans are reasonable and necessary as a result of the accident.
30The plan dated August 5, 2021 seeks to conduct an orthopaedic assessment and the other plan, dated August 23, 2021, proposes further facility-based treatment. The goals of both plans are to reduce the Applicant’s pain, increase his strength and range of motion, and return him to his regular activities of normal living an work. The Applicant suggests that the orthopaedic assessment is reasonable and necessary as a result of the accident because the Applicant made ongoing pain complaints to his treatment providers at 101 Physio. With respect to the treatment plan, the Applicant submits that Dr. Salim’s CNRs make it clear that he would benefit from chiropractic treatment, massage therapy, and physiotherapy. He submits that Dr. Salim made multiple referrals for physiotherapy but directs me to no such recommendation contemporaneous with this treatment and assessment plan.
31The Respondent submits that the Applicant has failed to demonstrate his entitlement to this orthopaedic assessment. It submits that he made no pain complaints for his family physician for almost a full year prior to this treatment and assessment plan being authored and no expert has recommended that he engage in an orthopaedic assessment. It submits that the treatment plan proposes passive modalities and includes no physiotherapy. According to the Respondent, Dr. Salim only recommended physiotherapy, at a time that pre-dates this plan.
32I agree with the Respondent and conclude that an orthopaedic assessment and the facility-based treatment plan are not reasonable and necessary as a result of the accident.
33I find that the goals of these treatment and assessment plans to be not reasonable. While the plans seek to reduce pain, increase range of motion, and return the Applicant to his regular activities, there is no evidence that the Applicant has deficits in these areas. As noted previously, the evidence does not indicate that the Applicant is impaired by ongoing accident-related pain. Dr. Salim’s CNRs include no contemporaneous pain complaints or range of motion deficits. Similarly, Dr. Ko’s report dated August 17, 2021 concluded that the Applicant exhibited full range of motion throughout his body. The Applicant reported that he has returned to fulltime work duties and there is no evidence he is unable to complete his activities of normal living.
34Conducting an orthopaedic assessment, or continuing with ongoing facility-based treatment, to achieve goals that have already been met, is not reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to any of the benefits claimed, it follows that he is not entitled to interest.
CONCLUSION AND ORDER
36The Respondents refusal to accept the treatment plan dated October 7, 2020 is valid pursuant to section 38(5) of the Schedule and is not subject to review, pursuant to section 38(6).
37The Applicant is not entitled to the unapproved transportation expenses and tax proposed in the treatment plan dated February 18, 2021.
38The treatment and assessment plans dated February 18, 2021, July 5, 2021, and August 23, 2021 are not reasonable and necessary.
39No interest is payable.
40The Application is dismissed.
Released: October 13, 2023
__________________________
Brian Norris
Adjudicator