Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-014573/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:
Jenive Waldron-Edwards
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Jane Conte, Counsel
For the Respondent: Jeffrey F. Pasternak, Counsel
HEARD: In writing
OVERVIEW
1Jenive Waldron-Edwards (the "applicant") was involved in an automobile accident on June 30, 2019, 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 Insurance Canada (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 $1,397.00 for chiropractic and physiotherapy treatment, proposed by Dusk Physiotherapy in a treatment plan ("plan") dated September 23, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $2,564.50 for chiropractic and massage therapy treatment, proposed by Dusk Physiotherapy in a plan dated December 9, 2019?
RESULT
3The applicant is not entitled to $1,397.00 for chiropractic and physiotherapy treatment, or $2,564.50 for chiropractic and massage therapy treatment. The applicant has not shown that these treatments are reasonable and necessary.
ANALYSIS
Page Limits
4The respondent submits that the applicant did not comply with the Tribunal's Motion Order of November 16, 2022. This order converted the matter from a video hearing to a written hearing and provided each party with 10 pages of submissions. The respondent submits that the applicant submitted 18 pages of submissions and the Tribunal should only consider the first 10 pages of submissions.
5The respondent submits that had the applicant required more pages, she ought to have filed a motion to increase her page limits.
6The applicant submits that should the Tribunal fail to consider all the pages of her submissions, she would be severely prejudiced, to a greater degree than the alleged prejudice to the respondent. Instead, the applicant submits that the respondent has failed to show that it would suffer any prejudice.
7Instead, the applicant submits that Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) (the "Rules") specifies that the Rules are to be interpreted liberally and applied to ensure fairness. The applicant also submits that Rule 3.1 allows the Tribunal to waive or vary its Rules, or at the request of a party. The applicant submits the Tribunal should permit the entirety of her submissions to be considered.
8The applicant relies on the matter of K. V. v Aviva General Insurance Company, 2020 CanLII 58825 (ON LAT), where the Tribunal allowed an applicant's late submissions to be considered based on Rule 3.1 and declined to strike the applicant's evidence.
9I will not consider the submissions from the applicant beyond page 10. I agree with the respondent and wonder why the applicant did not specifically request to extend the page limits via motion if she knew she could not respect the Tribunal's Motion Order. Moreover, the applicant did not explain why she failed to respect the Tribunal's Order and instead chose to focus on the alleged lack of prejudice the respondent would be subjected to.
10I disagree with the applicant's submissions regarding the prejudice she has caused the respondent. The applicant was afforded nearly double the space to argue her position, despite the respondent's ability to comply with the Motion Order. In this case, if the applicant were allowed to unilaterally alter or change the page limits, I would not be respecting Rule 3.1(a) and (b) by facilitating a fair process and a proportional resolution of the issue.
11I also did not find the matter of K. V. v Aviva General Insurance Company persuasive, as it spoke to the general application of waiving the Rules but did not speak to when one party was afforded nearly double the page limits in combination with a failure to respect the Tribunal's order. Instead, this decision dealt with deadlines, which is not the matter currently being discussed. Moreover, in K.V., the applicant was able to provide the insurance company and the Tribunal with reasons for the breach of the order, which was not the case before me. Therefore, I will only consider pages 1 to 10 of the applicant's submissions.
The applicant is not entitled to the chiropractic and massage services and the chiropractic and physiotherapy services
12The applicant submits that the treatment plans ("OCF-18"s) for chiropractic, massage and physiotherapy services are reasonable and necessary. The respondent disagrees.
13Since both disputed OCF-18s were authored by the same treatment provider, with similar modalities of treatment and goals, I will address both issues at once.
14To receive payment for a treatment and assessment plan under s.14, 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, 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 them are reasonable.
15The applicant submits that as a result of the accident, she has suffered neck and back pain as well as headaches, and chronic pain, and requires physical therapy to address these issues.
16The applicant relies on the clinical notes and records ("CNR"s) of the doctors at her primary care clinic. On July 1, 2019, or the day after the accident, Dr. Murtaza Khoja, physician, noted she had been in an accident and had had neck, upper back and shoulder stiffness, dizziness and nausea. On July 4, 2019, Dr. Omolayomi Akinremi, physician, noted that the applicant still had neck pain, stiffness and numbness in her right arm. The applicant underwent an X-ray on July 6, 2019, where multilevel, bilateral uncovertebral joint hypertrophy and degenerative facet disease were found and a patent, bilateral neural foramina.
17The applicant relies on the CNR of Dr. Kashif Chahal, physician, dated July 9, 2019, where the doctor confirmed she suffered a substantial inability to perform her activities of daily living ("ADL"s) because of her accident-related injuries. The applicant was prescribed Arthrotec. Dr. Chahal also suggested that the applicant needed a "PSW" and referred the applicant for physiotherapy.
18The applicant also relies on a CNR from Dr. Davar Nikneshan, neurologist, dated August 8, 2019, where she was diagnosed with post-concussive syndrome, chronic migraines and cervicogenic headaches, medication overuse headaches, and post-traumatic vestibulopathy. The applicant reported to Dr. Nikneshan that she had neck pain, numbness in her right arm with shooting pain, and low back pain with numbness in her right leg to her toes.
19The applicant continued returning to her family care clinic with complaints of neck and back pain, which was tender on examination, and dizziness.
20The applicant attended her family clinic on December 5, 2019, and was seen by Dr. Ali Ahmad, physician, to address her chronic pain, depression, insomnia, and hopelessness. The applicant returned to Dr. Ahmad on January 27, 2020, with more complaints of back and neck pain and tender muscles along her spine.
21The applicant also relies on the assessment of Dr. Nnamdi Ugwunze, psychiatrist, of February 14, 2020. The applicant reported experiencing depression, pain, sleep issues, nightmares and being dependent on Percocet. The applicant was diagnosed with general anxiety, depression, and adjustment disorder as a result of the accident.
22An x-ray was performed on February 21, 2020, which showed an anterior osteophyte formation, or bone spurs, along the applicant's spine and likely along her facet joints.
23The applicant was seen by Dr. Nikneshan on March 10, 2020, where the applicant reported dizziness when bending, decreased mood, irritability, ear pressure, sleep issues and decreased sense of smell. The doctor recommended the applicant continue neck physiotherapy, vestibular therapy, and vision therapy.
24The applicant continued to report her back pain in 2020 and was prescribed Flexeril and Naproxen for her pain and was recommended physical therapy by Dr. Ahmad on May 8, 2020. The applicant submits that Dr. Ahmad diagnosed her with chronic pain in her right shoulder on July 10, 2020.
25The applicant underwent further imaging on July 21, 2020, where an x-ray showed a narrowing of her C7-7-disc scape with bone spurs and encroachment on the applicant's intervertebral foramina. The applicant also had an ultrasound of her right shoulder, showing inflammation of her bicep and supraspinatus tendinopathy.
26The applicant relies on the CNR of Trillium Hospital's emergency department dated January 12, 2021, and submits she was diagnosed with chronic pain and migraines by Dr. Adam Rosanally, physician.
27The applicant was referred to Dr. Sukhinder Bhangu, physical medicine and rehabilitation specialist, by Dr. Ahmad for a chronic pain assessment. Dr. Bhangu assessed the applicant on August 25, 2020, and opined that the applicant suffered from myofascial periscapular/upper trapezial pain and myofascial gluteal/hamstring pain. Dr. Bhangu recommended that the applicant attend physiotherapy more often than twice a week, use heat pads, stretch at home in between treatment sessions and attend aqua therapy.
28The applicant also relies on the CNR of Dr. Bhangu dated May 27, 2021. Dr. Bhangu noted that the applicant still had back pain despite her physiotherapy treatment. Dr. Bhangu noted, "She has been doing physiotherapy and unfortunately it still appears as she's been primarily receiving passive care. She has only been given 2 exercises to complete". Dr. Bhangu provided the applicant with a referral for physiotherapy, chiropractic and massage therapy.
29The applicant also reported to Dr. Ahmad on April 1, 2021, that she was attending chiropractic treatment and saw improvements despite her pain. A magnetic resonance imaging ("MRI") was performed on the applicant's back on October 13, 2021, which showed disc and facet disease, a cord indentation and foraminal narrowing of the spine.
30The applicant relies on the CNRs from her physiotherapy clinic, dated July 10, 2019, until September 14, 2020. These CNRs show that the applicant reported her neck and back pain, but that therapy was helping improve such pain. However, the applicant also reported she "had a long way to go."
31The applicant also relies on the disputed OCF-18s, which were for exercise, physical treatment, a total body examination, documentation and a transcutaneous electrical nerve stimulation ("TENS") machine. The goals of these OCF-18s were to reduce pain, increase strength and range of motion, and decrease dizziness and fall risks.
32The applicant submits that based on the matter 16-003460 v The Dominion of Canada General Insurance Company, 2017 CanLII 46348 (ON LAT) that pain relief is a valid goal of an OCF-18. The applicant submits that based on this case, the proposed therapies assist the applicant with the goal of pain relief, and therefore, the disputed OCF-18s are reasonable and necessary.
33The respondent submits that the applicant has not met her evidentiary onus. The respondent submits that the applicant failed to reference or include copies of the disputed OCF-18s with her initial submissions. The respondent relies on 17-001309 v Aviva Insurance Canada, 2018 CanLII 13181 (ON LAT), where the Tribunal found that an insured person had not met their evidentiary onus by not submitting the disputed OCF-18 in evidence. The respondent submits that the applicant's application should be dismissed.
34The applicant did not comment on why she failed to reference or provide copies of the disputed OCF-18s and instead emailed them to the respondent and the Tribunal after the respondent's submissions had been received.
35The respondent also relies on the Insurer's Examination ("IE") of Dr. Michael Ko dated October 30, 2019. Dr. Ko commented that the OCF-18 in the amount of $1,397 was not reasonable and necessary. Dr. Ko noted that the applicant had participated in physiotherapy but still had pain and it did not appear that the treatment was helping the applicant with her pain. Dr. Ko found that the treatment was not reasonable and necessary from a physical perspective, as the applicant did not have any objective impairments.
36The respondent also relies on the Paper Review IE of Dr. Ko dated February 20, 2020. Dr. Ko was asked to comment on the OCF-18 in the amount of $2,564.50 and found that the treatment was not reasonable and necessary from a physical perspective and that the applicant had no evidence of an ongoing impairment.
37The respondent also relies on the IE of Dr. Brandon Kucher, neurologist, dated February 20, 2020, and also commented on the OCF-18 in the amount of $2,564.50 and opined the treatment was not reasonable and necessary, as the applicant had no neurological impairment.
38I chose to accept the disputed OCF-18s into evidence, despite the applicant's failure to provide these documents in her original submissions. I did not find the matter of 17-001309 v Aviva Insurance Canada persuasive, as it did not address a situation where the applicant later provided the required OCF-18s.
39I do note that the applicant ought to have explained to both the respondent and the Tribunal why she did not include these documents in her original submissions. However, when considering her submissions, which refer to the disputed OCF-18s, it appears that the applicant simply omitted these documents instead of deciding not to rely on them.
40Therefore, I will allow them into evidence based on the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) (the "Rules"). Rule 3.1 allows the Tribunal to interpret the Rules liberally and that they can be waive, varied or applied by the Tribunal by its own initiative. In this case, I will admit the omitted OCF-18s based on Rule 3.1.
41I find that the applicant is not entitled to the disputed OCF-18s, as she has not shown that these treatments are reasonable and necessary. I did not find the OCF-18s themselves persuasive that the disputed treatments were reasonable and necessary. Instead, I find that these treatments show that the applicant is requesting treatments for her injuries, what the goals, modalities, lengths of sessions and the total number of sessions being requested. Though I agree that these documents do show that the proposed treatments are reasonable, they do not show that they are necessary. I agree that the applicant's goal of trying to reduce her accident-related pain is a reasonable goal, but I do not agree that the document shows that the disputed OCF-18 is necessary to address her accident-related injuries.
42The applicant reported a subjective pain reduction from her chiropractic and physiotherapy treatment, which I agree is a valid treatment goal based on 16-003460 v The Dominion of Canada General Insurance Company. However, I require more information than simply subjective information on the goals of the OCF-18s, which speak to if the treatment is reasonable. Ideally, the applicant would provide contemporaneous medical evidence that comments on the disputed OCF-18s and if the OCF-18s are reasonable and necessary.
43I find the applicant provided ample evidence, including the CNRs of her primary care clinic and treatment providers, demonstrating that she has been complaining of neck, back, and shoulder pain, as well as dizziness and nausea since her accident. I also found that these CNRs show that the disputed treatments are reasonable. I also find that the applicant's physicians found that her pain had become chronic in nature and that she was experiencing degenerative changes in her spine, as shown in her July 6, 2019, and February 21, 2020, x-rays and the MRI of April 1, 2021.
44However, I note that the CNRs of the applicant's primary care providers do not comment on the necessity of the actual OCF-18s in dispute. Though there are recommendations that the applicant attend physiotherapy, none of these notes detail comment on the frequency and length of the sessions, or how many sessions the applicant requires.
45I also note that Dr. Nikneshan recommended that the applicant continue with neck physiotherapy vestibular physio and vision therapy, but again did not comment on the disputed OCF-18s.
46I reviewed the CNR of Trillium Hospital, which did not formally diagnose the applicant with chronic pain and migraines but rather, listed them in her past medical history.
47I also reviewed Dr. Bhangu's CNRs of August 25, 2020, and May 27, 2021, and noted that the doctor "wrote a note for a physiotherapy/massage/chiropractic program, to be taught a progressive home-based program of posture training, stretching and strengthening of the scapular stabilizing, cervical, rotator cuff, core, hip and hamstring musculature. She may also benefit from active-release therapy. She may also benefit from aqua therapy." This evidence does not comment on the disputed OCF-18s beyond them being reasonable. The doctor did not provide information regarding the frequency, length of treatment sessions and number of sessions recommended for the applicant.
48I preferred the evidence of Dr. Ko, who commented on the disputed OCF-18s and provided medical reasoning as to why the disputed treatments were not reasonable and necessary. Not only did Dr. Ko assess the applicant but assessed the applicant to address the disputed OCF-18.
49This position was supported by the evidence of Dr. Kucher, who also did not find the OCF-18 in the amount of $2,564.50 reasonable and necessary.
50Therefore, the applicant has not shown, based on a balance of probabilities that the OCF-18s in dispute are reasonable and necessary.
ORDER
51The applicant is not entitled to $1,397.00 for chiropractic and physiotherapy treatment.
52The applicant is not entitled to $2,564.50 for chiropractic and massage therapy treatment.
Released: October 17, 2023
Stephanie Kepman
Adjudicator