Licence Appeal Tribunal File Number: 22-000786/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:
Patience Fremah Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
VICE-CHAIR: Christopher Climo
APPEARANCES:
For the Applicant: David Carranza, Paralegal
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Patience Fremah, the applicant, was involved in an automobile accident on October 9, 2017, 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 the respondent, Aviva Insurance Company of Canada, 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 $3,821.15 for physiotherapy treatment proposed by Newmarket Health and Wellness Centre in a treatment plan/OCF-18 dated June 28, 2021?
ii. Is the applicant entitled to $2,460.00 for a neurological assessment proposed by Excel Medical Diagnostics Inc. in a treatment plan/OCF 18 dated April 28, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. the applicant is not entitled to the treatment plans in dispute, or interest.
ii. the application is dismissed.
ANALYSIS
The Treatment Plans
4To receive payment for a treatment and assessment plan under s. 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.
The applicant is not entitled to $3,821.15 for physiotherapy treatment proposed by Newmarket Health and Wellness Centre in a treatment plan/OCF-18 dated June 28, 2021
5The applicant submits that the denial by the respondent dated August 4, 2021 (and again in denials dated August 27, 2021 and October 7, 2021) on the OCF 18 for $3,821.15 fails to comply with the strict notice requirements under section 38(8) of the Schedule. I do not agree with the applicant’s submissions that there is any violation of the notice requirements under section 38(8) for the reasons which follow.
6The applicant submits that contrary to s. 38(8) of the Schedule the respondent failed to provide their medical reasons and all other reasons for the denial that allowed the applicant to make an informed decision as to whether to accept or dispute the decision. The applicant submits that under s. 38(11)(2) the respondent should pay for all goods and services described in the treatment plan. The applicant cites two Tribunal decisions on this point Syrovy v. Aviva Insurance Company, 2021 CanLII 2051 (ON LAT) (“Syrovy”) and Pirzada v. Aviva Insurance Company of Canada, 2022 CanLII 35810 (ON LAT) (“Pirzada”).
7The respondent submits that it did provide sufficient medical reasons and all other reasons pursuant to s. 38(8) in the denials. The respondent cites two Tribunal decisions on this point Gordon-Tennant v. Aviva General Insurance, 2021 CanLII 45660 (ON LAT) (“Tennant”), and 18-001369 v. Economical Mutual Insurance Company, 2019 CanLII 22217 (ON LAT) (“P.G.”).
8The only denial that is relevant is the one dated August 4, 2021, as the subsequent denials were simply to reschedule the s. 44 examination at the request of the applicant. The applicant focuses on the statement from the respondent that “we are unable to determine whether the recommendations made on your OCF-18 are reasonable and necessary for the injuries you sustained, and we are not able to pay your benefit at this time”. I note that under Medical Reason on the denial it states that “the patient does not appear to show objective signs of improvement despite continuing treatment” and requires a s. 44 examination.
9I am not bound by previous Tribunal decisions, and I do not find the two decisions referenced by the applicant to be persuasive. In Syrovy the respondent simply stated that there was no compelling medical evidence and did not request a s. 44 examination, which is not the fact pattern before me. Pirzada is more on point in that the respondent denied the benefit using similar language to the fact pattern before me. However, there is no evidence in Pirzada that the respondent subsequently requested a s. 44 examination.
10I find that the respondent’s denial letter provided sufficient detail as required under s. 38(8). At the time of the denial, the accident had occurred 3 years and 10 months prior. The applicant had returned to work in October 2018. Her own family doctor had noted in March 2019 that physiotherapy was not helping and recommended home exercise including stretching and strengthening. The respondent stated that they were unable to pay the benefit “at this time” and requested a s. 44 examination, which is their right under s. 38(10). The respondent’s medical reasons and all other reasons were clear and sufficient to allow the applicant to make an informed decision to either accept or dispute the decision.
11The applicant submits that the goals of treatment, which are pain reduction, increasing strength and range of motion, and a return to the activities of normal living and pre-accident work, are attainable, aimed to assist in her recovery and the cost of achieving them with the implementation of this treatment plan is reasonable. The applicant argues that the treatment plan is therefore reasonable and necessary.
12In support of their position, the applicant relies on the treatment plan of Mr. Farhankhan Pathan, physiotherapist, which noted injuries to neck, thorax, abdomen, back and hip and chronic pain, dizziness, and giddiness. The applicant also relies on the clinical notes and records of their family doctor, Dr. Asim Hoca, including a referral in July 2021 for physiotherapy and chiropractic treatment due to hip pain and acute chronic lumbar strain. The applicant also relies on the report of Dr. Deborah Rabinovitch, the physiatrist who conducted the Nov 2021 s. 44 examination which noted “mechanical back pain with possible bilateral greater trochanteric syndrome which may be contributed to by iliotibial band tightness”.
13The respondent submits that the treatment plan is not reasonable and necessary as the applicant has achieved maximum medical improvement and should engage in core strengthening and iliotibial band stretching exercises.
14In support of their position, the respondent relies upon the s. 44 report of Dr. Rabinovitch, which does diagnose the applicant with back pain, but noted normal muscle bulk, tone, strength and gait, active range of motion of the lumbar spine as full, hip range of motion as normal and an ultrasound imaging of the hips and lumbar spine as normal. The applicant also relies on the applicant’s self report of being independent with respect to activities of normal living (such as self care, household chores, caregiving for children and driving) and returning to work as a nurse on a full-time basis.
15I am not persuaded by the treatment plan of Mr. Pathan, which indicates that the injuries were as a direct result of the accident. It is clear from the records of the family doctor that there were prior complaints of back and hip pain as far back as 2015. There is a referral from Dr. Hoca on July 22, 2021 for physiotherapy and chiropractic treatment, but it is not supported by any clinical notes and records that would explain why it diverges from his conclusion on March 20, 2019 that “physiotherapy and pain medication is not helping” or the May 15, 2019 recommendation of home exercise including stretching and strengthening.
16I give little weight to Mr. Pathan’s evidence that the injuries identified, namely difficulty with prolonged standing, sitting, driving, bending, lifting, pulling and pushing, affect the applicant’s ability to carry out tasks of employment and normal life and that there is no modification of work. The applicant reported to Dr. Rabinovitch in November 2021 that she was working 40+ hours per week as a Registered Practical Nurse at St. Elizabeth and that she “avoided any dialysis patients due to the requirement for heavy lifting”. The applicant also reported that she i) was independent with self care; ii) returned to performing all pre-accident household chores with assistance as required from her mother; iii) was performing all her care giving duties albeit with pain; and iv) continues to drive without any reported difficulty. The applicant works fulltime, so assistance as required from her mother with household chores does not strike me as unusual. As to the pain during care giving duties, the applicant had reported back and hip pain well before the accident. I find that Mr. Pathan’s evidence is inconsistent with the facts.
17While pain reduction, increase in strength and increased range of motion are all legitimate medical and rehabilitative goals, the functional goals that the treatment plan seeks to achieve, namely a return to activities of normal living and pre-accident work activities, have been achieved. The records of Dr. Hoca are consistent with those of the s.44 report from Dr. Rabinovitch, both as to the diagnosis of the impairment and the recommended action to be taken, namely strengthening and stretching exercises.
18I find that the applicant has failed to meet her burden to show that the treatment plan is reasonable and necessary.
The applicant is not entitled to $2,460.00 for a neurological assessment proposed by Excel Medical Diagnostics Inc. in a treatment plan/OCF 18 dated April 28, 2022.
19The applicant submits that the goals of the assessment are providing a diagnosis of impairment and injuries, to assess for pre-existing conditions, assess ability to return to normal activities of life and provide direction as to any treatment required. The applicant submits that the neurological assessment is necessary to determine the applicant’s neurological status with respect to her limitations, objective and subjective findings, which would provide supporting information as to the resolution of neurological complaints and issues.
20In support of their position, the applicant relies upon a s. 25 report dated June 22, 2022 from Dr. Vincenzo Basile, neurologist, which diagnoses the applicant with neck pain, lower back pain, post concussive syndrome and post traumatic headaches as a direct result of the accident. The applicant submits that the respondent failed to address the report and did not request a report from their own experts. The applicant also relies on complaints of headaches, dizziness and light-headedness to Dr. Marchuck and Dr. Viet Dao (both in April 2019).
21The respondent submits that a neurology assessment 5 years post-accident with no head injury or any complaint of neurological symptoms immediately following the accident is not reasonable and necessary.
22In support of their position, the respondent submits that that no weight should be given to Dr. Basile’s report as he does not have an accurate representation of the applicant’s medical history. The respondent submits that Dr. Basile stated the applicant was not able to continue with work for 12 months after the accident, but failed to note the applicant was 32 weeks pregnant at the time and went on maternity leave. The respondent also submits that Dr. Basile stated that the applicant’s past medical condition was unremarkable and had no significant complaints of neck pain, back pain or headaches, which is contradicted by the records of the family doctors which discuss hip and back pain as far back as 2015 and a past history of migraine headaches in April 2019.
23I assign little weight to Dr. Basile’s s. 25 report. There is no record that he reviewed any of the applicant’s past medical records. He appears to have accepted the self-reported “unremarkable” prior medical history of the applicant and used it to draw conclusions as to the cause of the injuries he diagnosed. There were clearly prior issues with hip and back pain and migraines in the records of the family doctors. Dr. Basile was aware that the applicant was 32 weeks pregnant at the time of the accident but does not appear to have explored the issue of whether maternity leave explained some or all of the 12-month absence from work.
24I find that the applicant’s medical history is supportive of the respondent’s position that there is no reasonable basis to believe that the applicant sustained injuries in the accident which may require a neurological assessment. There is agreement that the applicant did not hit her head in the accident nor lose consciousness in the accident. There are no reports of dizziness and light-headedness in the records of the family doctors, and in fact the applicant denies any such symptoms in July 2018, August 2018 and May 2019. The first mention of headaches in the records of the family doctors was in April 2019 but on a subsequent visit in May 2019 the applicant denies any headache symptoms.
25I concur that the respondent did not appear to request a report of their own experts after receiving the s. 25 report of Dr. Basile in August 2022. I do not accept the conclusion that the respondent therefore failed to address the report and ignored it. The respondent had already denied the benefit on May 13, 2022, based on medical evidence in their possession which was fully explained in the Explanation of Benefits Statement. I find it more likely that the respondent did not find any information in the report to change their denial of May 13th, which is consistent with my own conclusions above.
26I find that the applicant has failed to meet her burden to show that the assessment, is reasonable and necessary.
Interest
27As there are no benefits owing, no interest is payable.
ORDER
28For the reasons outlined above, I find that:
i. The applicant is not entitled to the disputed treatment plans nor interest.
ii. The application is dismissed.
Released: February 14, 2024
__________________________
Christopher Climo Vice-Chair