Licence Appeal Tribunal File Number: 22-003410/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:
Felina Banaag Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Maria Papadopoulos, Paralegal
For the Respondent: Maggie Morgan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Felina Banaag (the “Applicant”) was involved in an automobile accident on November 28, 2019, and sought benefits from Aviva Insurance Company of Canada (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:
Is the Applicant entitled to medical benefits proposed by Humber Civic Care Centre (“HCCC”) as follows: i. $2,818.80 for a chiropractic treatment plan, dated June 2, 2020; ii. $2,407.07 for a chiropractic treatment plan, dated October 22, 2020; iii. $2,161.33 for a chiropractic treatment plan, dated March 4, 2021; and iv. $3,294.62 for a chiropractic treatment plan, dated August 23, 2021?
Is the Applicant entitled to medical benefits proposed by Ontario Independent Assessment Centre as follows: i. $762.85 for a plan proposing a tablet and ancillary goods, dated February 8, 2021; ii. $2,134.45 for a plan proposing a mattress and assistive devices, dated June 17, 2021; iii. $2,200.00 for a chronic pain assessment plan, dated October 23, 2020; iv. $2,200.00 for an orthopaedic assessment plan, dated December 4, 2020; v. $2,200.00 for a physiatry assessment plan, dated March 23, 2021; vi. $1,400.00 for a functional abilities assessment plan, dated June 23, 2021; vii. $1,900.00 for an MRI of the cervical spine proposed in a plan dated September 1, 2021; and viii. $2,200.00 for an EMG assessment, proposed in a plan dated September 13, 2021?
Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary as a result of the accident. No interest is payable as no payments went overdue.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck from behind by another vehicle while slowing at a suburban intersection. No emergency services attended at the scene of the accident, and the Applicant drove herself home in a rental vehicle.
5She visited her family physician, Dr. D. Pankowski, a few days later, on December 2, 2019, with complaints of total body pain, particularly in the right knee and groin, as well as her neck. She was examined by Dr. Pankowski and exhibited normal gait, and normal range of motion (“ROM”) in her neck and back. Dr. Pankowski referred the Applicant for physiotherapy and chiropractic treatment and advised her to take Tylenol as needed. She took time off work immediately following the accident but was back working in a bread factory about two weeks following the accident.
6In addition to her soft tissue injuries, the Applicant developed psychological injuries following the accident. She treated these injuries through therapy.
7The Applicant has a medical history which includes low back and shoulder pain that pre-dates the subject accident. Imaging from April 2019 demonstrates that, prior to the accident, the Applicant had mild osteoarthritis of the right acromioclavicular joint, a partial tear in her subscapularis tendon, and supraspinatus tendinosis with a small partial thickness bursal surface tear.
8At issue is whether the Applicant is entitled to the physical treatment plans, assistive devices, and three assessments. The onus is on the Applicant to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary as a result of the accident.
ANALYSIS
Chiropractic treatment plans dated June 2 and October 22, 2020, and March 4 and august 23, 2021
9I find that these plans are not reasonable and necessary as a result of the accident.
10The Applicant submits that the goals of these treatment plans are to reduce pain, increase her ROM and strength, and return her to her activities of normal living. She submits that therapy which relieves physical pain and improves function is a legitimate medical goal and that she regularly told her healthcare practitioners that physical therapy provided some relief. She is critical of the insurer’s examination (“IE”) assessors and submits that their opinions should hold less weight because the assessors fail to explain why the Applicant’s injuries have yet to resolve.
11The Respondent submits that there is no evidence demonstrating the efficacy of the treatment the Applicant received to-date. It highlights that the Applicant never submitted clinical notes and records (“CNRs”) from HCCC to confirm that she benefits from the treatment and there is nothing in Dr. Pankowski’s CNRs to indicate that the Applicant benefitted from the various treatment modalities. It further submits that Dr. N. Harmantas assessed the Applicant and concluded that the plan dated June 2, 2020, was not reasonable and necessary for the soft tissue injuries as a result of the accident. Dr. J. Auguste, orthopaedic surgeon, also assessed the Applicant and concluded that the plan dated October 22, 2020, was not reasonable and necessary. The Respondent further highlights that the Applicant returned to work on a full-time basis, with no formal modifications. Dr. Auguste completed a paper review report, dated August 13, 2021, and concluded that the plan dated March 4, 2021, is not reasonable and necessary. The Respondent submits that the reports of Dr. Harmantas and Dr. Auguste are consistent with the contemporaneous records of Dr. Pankowski. It submits that the reports note that the Applicant returned to her pre-accident employment, was independent with her personal care tasks, and continued to drive.
12I agree with Dr. Harmantas and Dr. Auguste and find that the Applicant’s ongoing intermittent neck and back pain is a return to her baseline condition at the time of the accident. As documented in the September 3, 2020, report, Dr. Harmantas’ assessment of the Applicant revealed functional ROM throughout her body. According to Dr. Harmantas, the Applicant’s medical records did not contain any objective evidence of accident-related pathology above and beyond soft tissue injuries. Dr. Harmantas concluded that the plan dated June 2, 2020, proposing physiotherapy, chiropractic treatment, and massage therapy is not reasonable and necessary. Dr Auguste concluded that the Applicant exhibited no objective findings of any substantive impairments of a musculoskeletal, osseous, or neurological nature and concluded that her current mild ROM limitations were attributed to the degenerative changes that pre-date the accident.
13The Applicant suffered from shoulder and low back pain prior to the accident and her immediate complaints following the accident were dominated by right knee and groin pain. Knee and groin pain were her dominant complaints to Dr. Pankowski on December 2, 2019. The same complaints were made when attending at the hospital on December 17, 2019, and again to Dr. Panjowski the day after that. No neck pain complains are recorded during those visits. On February 10, 2020, the Applicant reported neck pain for the second time following the accident, and that complaint was made secondary to the purpose of the visit, which was unrelated to the accident. After the February 10, 2020, visit with Dr. Pankowski, the Applicant’s primary complaints were no longer related to her knee and groin, but instead related to neck, back, and shoulder pain, which I conclude are issues that pre-date the subject accident.
14The Respondent is not liable to pay for goods and services which address injuries that predate the accident, such as the Applicant’s neck, back and shoulder pain. Accordingly, the Respondent is not liable for the goods and services proposed in the treatment plans dated June 2 and October 22, 2020, and March 4 and august 23, 2021, as they are not reasonable and necessary.
$762.85 for a plan proposing a tablet and ancillary goods, dated February 8, 2021
15I find this treatment plan is not reasonable and necessary as a result of the accident.
16The Applicant did not address this plan specifically in her initial submissions, but in her reply submissions noted that the plan is reasonable and necessary in light of the recommendation of occupational therapist (“OT”) J. Amchislavsky, in a report dated March 1, 2021.
17I give less weight to the report of OT Amchislavsky, dated March 1, 2021, and prefer the report of OT S. Kigathasan, dated May 26, 2021. I find the report and opinion of OT Amchislavsky to be anomalous to the rest of the Applicant’s medical records. OT Amchislavsky assessed the Applicant on account of her being forgetful however, forgetfulness or other memory issues do not appear to be issues reflected in the other records, particularly that of Dr. Pankowski which, upon my review, revealed no complaints related to memory issues.
18In contrast, OT Kigathasan highlighted that the Applicant’s medical record does not indicate a brain injury or a concussion and that no cognitive symptoms were identified by Dr. J. Desai, neurologist, in the report dated April 28, 2021. OT Kigathasan concluded that the tablet and ancillary goods are not reasonable and necessary, and I agree. Further, I find the opinions of OT Kigathasan and Dr. Desai to be consistent with the opinion of I. Cauiro-Azzam, the Applicant’s social work assessor, who stated in the April 28, 2021, report that the Applicant did not appear to have significant cognitive impairment.
19Accordingly, I find the plan for a tablet and ancillary goods to be not reasonable and necessary.
$2,134.45 for a plan proposing a mattress and other goods, dated June 17, 2021
20I find that the Applicant has not demonstrated that a mattress and other goods are reasonable and necessary as a result of the accident.
21The Applicant submits that this plan is reasonable and necessary because Dr. V. Prigozhikh, neurologist, recommended a lumbar back support in her car, a lumbar brace to wear at work, a medium firm mattress, and cervical pillow for the Applicant. The goals of the plan are to reduce pain, increase ROM, and return the Applicant to her activities of normal living. The Respondent submits that the plan is not reasonable and necessary because the Applicant has already achieved most of the goals proposed in the plan. It further submits that the plan is not reasonable and necessary based on the opinion of Dr. J. Auguste, dated August 13, 2021.
22I find Dr. Prigozhikh’s report and recommendation to be unpersuasive in light of the other evidence. Dr. Prigozhikh’s specialty is neurology, yet the recommendation in the report for a back support, cervical pillow, and a mattress appears to be unrelated to any specific symptoms, and not for any neurological symptoms. For example, Dr. Prigozhikh advised that a cervical pillow would be helpful to reduce neck pain and improve sleep, but the report does not identify neck pain as a symptom that interrupts the Applicant’s sleep. In fact, I find it unclear in Dr. Prgozhikh’s report as to what source of pain interrupts the Applicant’s sleep and fail to see how the goods will provide a neurological benefit for the Applicant.
23I prefer the opinion of Dr. Auguste, who concluded that the mattress and other goods are not reasonable and necessary as a result of the accident. Dr. Auguste rightfully acknowledges the Applicant’s health status at the time of the accident as involving neck and shoulder pain with a slight reduction of ROM. Dr. Auguste attributed the Applicant’s presentation to degenerative changes that pre-date the accident.
24As a result, I conclude that the mattress and other goods are not reasonable and necessary as a result of the accident.
The chronic pain, orthopaedic, and physiatry assessments
25I find that these assessments are not reasonable and necessary as a result of the accident.
26The Applicant submits that the assessments are necessary to uncover the consequences resulting from the accident and the effect of the accident on her physical ability and social limitations. She submits that she was diagnosed with chronic pain by several physicians and that the chronic pain and physiatry assessments will help improve her function in light of her limitations and that she is not required to defer to OHIP-funded programs. The Respondent submits that the assessments are not reasonable and necessary according to Dr. Auguste, in a report dated August 13, 2021. It further submits that an OHIP-funded assessment with a chronic pain specialist, a physiatrist, or an orthopaedic surgeon would be available to the Applicant, had her family physician deemed it appropriate.
27I find that these assessments are not reasonable and necessary as a result of the accident. The Applicant is under the care of Dr. Pankowski, her family physician, who can refer her to specialists or make recommendations for additional consultations as required but has not done so. The Applicant exhibited functionality through her return to work at a bread factory, and her ability to complete her activities of daily living and self-care. I agree with Dr. Auguste’s opinion that the Applicant’s ongoing complaints are most-likely attributable to the degenerative changes in the Applicant’s neck, back, and shoulder that pre-date the accident.
28I find that the Applicant has not met her onus to demonstrate that these investigations and this assessment are reasonable and necessary as a result of the accident.
29The Applicant made no submissions on how or why the goods and services proposed in these plans are reasonable and necessary. In addition, I find nothing in the Applicant’s medical record that overwhelmingly demonstrates that an MRI and EMG are reasonable and necessary as a result of the accident. Likewise, there is no information to suggest that a functional abilities assessment is reasonable and necessary considering that the Applicant returned to work and is independent with her personal and self-care tasks. Accordingly, she has not met her onus and is not entitled to the functional abilities assessment, MRI, EMG, and any of the related services.
Interest
30Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is not entitled to payment for the treatment and assessment plans in dispute, it follows that no interest is payable.
CONCLUSION AND ORDER
31The Applicant has not met her onus to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary as a result of the accident. She is not entitled to the treatment and assessment plans, nor interest.
32The Application is dismissed.
Released: December 2, 2024
Brian Norris Adjudicator