Licence Appeal Tribunal File Number: 21-013273/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:
Yoganathan Krishnapillai
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Meleni David, Counsel
For the Respondent: Mark Rybnik, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Yoganathan Krishnapillai (“the applicant”) was involved in an automobile accident on May 18, 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 General Insurance Company (“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 in the amount of $1,297.23 for physiotherapy proposed by Divine Life Physio & Rehab Clinic in a treatment plan/OCF-18 (“plan”) dated September 18, 2019?
Is the applicant entitled to medical benefits in the amount of $2,693.75 for physiotherapy proposed by Divine Life Physio & Rehab Clinic in a plan dated December 16, 2019?
Is the applicant entitled to medical benefits in the amount of $2,200.00 for a chronic pain assessment proposed by Scarborough Physio & Rehab Clinic in a plan dated April 25, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the plans for physiotherapy, with interest.
4The applicant is not entitled to the plan for the chronic pain assessment.
ANALYSIS
5Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
6To receive payment for a treatment and assessment plan under 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 establish that the goals of treatment are reasonable, that the goals would be met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
The plans for physiotherapy are reasonable and necessary
7The applicant has met his burden to demonstrate that his accident-related impairments, including sprain and strain injuries to his neck shoulder, and spine, require further treatment in the form of physiotherapy. He relies on the clinical notes and records of his treatment providers and family physicians. There are multiple references to chronic pain in the clinical notes and records of his family doctors, and the doctors recommended that he continue to participate in physiotherapy. His doctors also made referrals to pain management clinics in September 2019 and March 2020.
8The respondent relies on a paper review insurer’s examination (“IE”) report prepared by Dr. Loritz (dated January 20, 2020) in which he concludes that the applicant’s soft tissue injuries fell within the MIG, he had three months of passive therapy, and the efficacy of treatment had reached a plateau. I am not persuaded by Dr. Loritz’s conclusions. Dr. Loritz had previously assessed the applicant in-person in the context of determining his entitlement to income replacement benefits (report dated September 20, 2019). During that assessment, the applicant reported continuous low back pain aggravated by bending and lifting, neck pain, bilateral knee pain and right thumb pain. He reported that he was unable to unable to complete the tasks of his prior employment as a chef, such as standing for long periods, carrying items, and preparing meals. The applicant’s reports to Dr. Loritz were more consistent with the other evidence, including the clinical notes and records of the family doctors.
9It is well settled that pain reduction is a reasonable goal of proposed treatment. Both of the plans for physiotherapy note pain reduction as a goal of treatment. There is no suggestion in the submissions that that goals of treatment would not be met to a reasonable degree, or that the cost of achieving the goals is not reasonable. The applicant’s subjective reports to the IE assessor and his own doctors are consistent, and the recommendation of the family doctor is for the same type of treatment for which he seeks.
10The physiotherapy treatment is intended to reduce pain, increase range of motion, increase strength, and facilitate a return to activities of normal living. I find that the goals are reasonable, and that the plans are reasonable and necessary.
The chronic pain assessment is not reasonable and necessary
11I find that the applicant has not established that the chronic pain assessment is not reasonable and necessary.
12The applicant was already referred to a chronic pain clinic by his family doctors. The applicant was referred to Dr. V. Dao and a multidisciplinary pain management team at the Poly Clinic on September 23, 2019 by his former family doctor. He reported aching pain in his neck and low back, worsened with bending, prolonged sitting, standing, or walking, as well as pain in his shoulders and right thumb. His activities were reportedly limited due to pain. Dr. Dao made various recommendations for treatment, including prescriptions for Arthrotec and Baclofen, active and passive physical therapy, injections, and lifestyle/diet guidance. The applicant was also referred to a second pain clinic, The Scarborough Pain and Migraine Clinic, by his new family doctor in March 2020.
13The applicant has already been evaluated for chronic pain and recommendations have been provided. I find that the that the proposed plan for a further chronic pain assessment referral is not reasonable and necessary.
Interest
14Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found the applicant entitled to the two plans for physiotherapy, it follows that interest is payable in accordance with the Schedule.
ORDER
15The applicant is entitled to the plans for physiotherapy, with interest.
16The applicant is not entitled to the plan for the chronic pain assessment, no interest is payable.
Released: January 3, 2024
Kate Grieves
Adjudicator