Licence Appeal Tribunal File Number: 22-010066/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:
Liam McDonnell
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jonathon Dick
APPEARANCES:
For the Applicant:
Laya Witty, Counsel
For the Respondent:
James Kolumbus, Counsel
HEARD: In Writing
OVERVIEW
1Liam McDonnell, the applicant, was involved in an automobile accident on June 12, 2020, 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, 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 $1,823.60 for chiropractic services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (‘plan’) dated February 22, 2022, and denied on April 18, 2022?
Is the applicant entitled to $2,635.40 for chiropractic services, proposed by Mackenzie Medical in a plan dated April 5, 2022, and denied April 18, 2022?
Is the applicant entitled to $1,850.24 for chiropractic services, proposed by Mackenzie Medical in a plan dated June 30, 2022, and denied August 8, 2022?
Is the applicant entitled to $2,229.50 for chiropractic services, proposed by Mackenzie Medical in a plan dated January 5, 2022, and denied March 1, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not established that any of the disputed treatment plans are reasonable and necessary. As there are no benefits owing, no interest is payable.
4The application is dismissed.
ANALYSIS
Test and burden of proof
5To receive payment for a treatment plan under sections 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. The parties concur that the onus of reasonableness and necessity of treatment is the applicant’s, who must establish that the treatment goals are reasonable and are being met to a reasonable degree.
6There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.
7In demonstrating the reasonableness and necessity of a benefit sought, 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 the goals are reasonable.
Were the applicant’s injuries and ongoing pain caused by the accident?
8The applicant submits that he sustained injuries to his left shoulder and neck because of the accident and continues to experience pain in these areas. The emergency report of St. Michael’s Hospital, dated the day of the accident, noted that the applicant sustained an upper extremity injury as a result of a motor vehicle accident, but that his shoulder was not fractured. The report of Dr. Zeeshan Waseem, physiatrist, dated August 2, 2023, noted that the applicant was suffering from a small rotator cuff tear of the left shoulder (not requiring surgery), left C6 radiculopathy, and chronic left shoulder and myofascial pain of the cervical spine.
9The respondent submits that the applicant’s pain might be caused by osteoarthritis and narrowing discs. Dr. Khalid A. Syed noted, in his report date October 13, 2020, that x-rays revealed osteoarthritis of the AC joint and severe osteoarthritis. An MRI of the cervical spine, dated January 31, 2021, revealed marked degenerative changes in the cervical spine resulting in narrowing of several discs.
10While the above-referenced diagnostic reports indicate that the applicant suffers from osteoarthritis and narrowing discs, some of which may have pre-dated the accident, the applicant had no physical limitations due to pain prior to the accident, a point which the respondent did not refute. Therefore, I am not persuaded that the accident-related injuries did not cause the applicant’s ongoing pain.
11I find that the accident caused the applicant’s injuries and that he has ongoing pain as a result.
Are the plans reasonable and necessary?
12Although the applicant has established that he sustained injuries because of the accident and has ongoing pain, he has not established that the treatment plans for chiropractic services are reasonable and necessary.
13The applicant submits that the goals for treatment as outlined in the treatment plans are as follows: pain reduction, increased range of motion and strength, and returning the applicant to activities of normal living. The applicant submits further that the treatment plans outline the various modalities that will help with his recovery and the method of evaluating and monitoring the progress.
14The respondent submits, however, that the applicant’s submissions only refer to the treatment plans themselves and they do not discuss or identify the goals of the proposed treatment plans, how the treatment plans will achieve those goals and how the identified goals would be evaluated.
15The applicant submits the independent examination report of Dr. Zeeshan Waseem, physiatrist, dated August 2, 2023. Dr. Waseem both examined the applicant and reviewed the documentation following the accident. While Dr. Waseem recommends treatments such as acupuncture, intramuscular stimulation, intermittent physical therapy and left shoulder scapular and rotator cuff stabilization exercises, he also states that relief from chiropractic and massage treatments only lasted one day.
16The applicant submits that he is struggling with daily activities and constant pain. The respondent submits the report of Dr. Michael Martin, orthopedic surgeon, issued on June 1, 2021, which states that the applicant has returned to normal activities, his shoulder pain has subsided, but his neck pain continues.
17The respondent submits the report of Dr, Gilbert Yee, orthopedic surgeon, dated August 5, 2022. Dr. Yee indicated that the applicant reached maximal medical recovery from treatment, given that the applicant only received relief from a couple hours to two days before the pain resumed. No further progress is expected from additional facility-based physical therapy and that self-directed therapy would be adequate, along with cortisone injections. Dr. Khalid A. Syed noted on July 19, 2023, that the pain had gone from the applicant’s shoulder and he achieved almost full function after 3 injections of lidocaine and PRP, although his neck pain remained unchanged.
18The respondent submits further that, according to the report of Dr. Michael Martin, dated April 8, 2021, the applicant returned to his personal care, housekeeping tasks, cooking, laundry, cleaning, walks up to three hours a day, exercises, lifts weights, and has regained arm strength, none of which is denied by the applicant. Dr. Martin states further that the treatment plans are not reasonable and necessary, as “there has been an adequate trial of such care without resolution of symptoms.”
19I am persuaded by the respondent’s evidence and find that the applicant’s goals of increased range of motion, strength and returning to activities of normal living have been achieved. Pain reduction related to his neck has not been achieved, but the applicant has not persuaded me that the proposed treatment plans will reasonably relieve his pain given that relief from chiropractic and massage therapies only lasts a couple hours to one day. Further, the applicant does not provide evidence from the family doctor, chiropractor, or massage therapist supporting the ongoing treatment as a means of pain relief. In addition, the applicant has not indicated how treatments to date have relieved his neck pain and how the goals of the treatment plans would be met to a reasonable degree.
20I find that the applicant has not met the required burden of proof and that the applicant’s proposed treatment plans are not reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.
ORDER
22I find that:
i. The applicant is not entitled to payment any of the four treatment plans, or interest.
ii. The application is dismissed.
Released: November 29, 2024
__________________________
Jonathon Dick
Adjudicator