Licence Appeal Tribunal File Number: 23-005537/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:
John Pitters
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Todd Reybroek, Counsel
For the Respondent: Tresa Zacharia, Counsel
HEARD: By way of written submissions
OVERVIEW
1John Pitters, the applicant, was involved in an automobile accident on September 17, 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 the respondent, Aviva Insurance 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 $3,388.40 for physiotherapy and chiropractic services, proposed by Physio Care and Rehab in a treatment plan/OCF-18 (“plan”) dated March 9, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the plan is reasonable and necessary. Accordingly, no interest is payable.
4The application is dismissed.
ANALYSIS
5On September 17, 2019, the applicant’s car was struck head on by another vehicle in a secondary collision. He was 59 years old at the time.
The applicant is not entitled to the plan for physiotherapy and chiropractic services.
6I find that the plan is not reasonable and necessary, and therefore that the applicant is not entitled to the services proposed. The treatment and its goals are not supported by the evidence.
7To 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.
8The plan proposes a total body assessment by a physiotherapist, 15 counts of exercise for spinal vertebrae by a physiotherapist, and 15 counts of therapy for multiple body sites by a chiropractor. The plan lists the applicant’s injury and sequalae information as follows: low back pain, pain in thoracic spine, cervicalgia, WAD 2 with complaint of neck pain with musculoskeletal signs. The plan seeks to achieve the following goals: pain reduction, increased range of motion, and increase in strength, as well as the functional goal of returning to the activities of normal living. The plan notes that the applicant has an history of degenerative changes of the spine as reported by X-ray, and that, since the accident, the applicant has wrist and elbow complaints that lead to immense strain on his back and neck because he is unable to use his right hand for all the activities.
9The applicant’s position is that the physiotherapy and chiropractic services in the plan are reasonable and necessary medical expenses. The applicant submits that he suffered an injury to his neck and back in the accident, that his back pain is persistent, that his family doctor Dr. Daniel Lee recommended the treatment. Further, the applicant submits the plan in dispute is to treat his injury and sequalae with the goal of reducing his pain, among other things. The applicant states that he incurred the expenses.
10The respondent submits that the accident-related, minor injuries had resolved by April 2020, and that the applicant subsequently began experiencing back pain unrelated to the subject accident. In the alternative, the respondent submits that the applicant has received extensive facility-based treatment for the injuries, and had reached maximum medical improvement. The applicant relies on medical records and the section 44 / IE report and addendum of Dr. Michael Hanna, dated May 5, 2021 and June 22, 2021, respectively.
11The applicant relies on Dr. Lee’s clinical notes and records (“CNR”). The applicant submits that he visited Dr. Lee on September 18, 2019, the day after the accident, at which time he was assessed with neck and back sprain from the accident, recommended to start physiotherapy and massage therapy and prescribed cyclobenzaprine. The applicant began physical therapy the next day at Physiocare and Rehab, where he was assessed with cervical sprain/strain and lumbar sprain/strain. The applicant submits that he visited Dr. Lee on October 30, 2019 with continued complains of accident-related back pain. The CNR state he told Dr. Lee that he only improved 10% compared to four weeks prior, and that he was still seeing a physiotherapist twice a week. Dr. Lee ordered an X-ray of the applicant’s lumbar spine, which took place on October 31, 2019. The applicant submits that in the follow-up appointment on June 30, 2020, the applicant complained of worsening back and neck pain, that worsened with activities at work, and that Dr. Lee recommended that he continue physiotherapy and take a month off from work. The applicant submits that he then had an appointment with Dr. Lee on August 27, 2020, where it was noted that physiotherapy was helping with his ongoing neck and back pain. Dr. Lee recommended that he continue with physiotherapy. Then, on January 16, 2021, in the final appointment before the date of the plan, the CNR state that the applicant continued to complain of back pain.
12The CNR provided by the applicant show the applicant experienced an impairment as a result of the accident because Dr. Lee’s clinical notes and records dated September 18, 2019, the day after the accident, indicate the applicant has “neck and back sprain from the MVC” and is recommended physiotherapy and prescribed pain medication. This is consistent with the diagnosis by Physiocare and Rehab on September 19, 2019 and Dr. Hanna’s reports that indicate that, as a result of the accident, the applicant sustained myofascial sprain / strain of the cervical, thoracic and lumbar regions – R/O lumbar disc herniation.
13However, the respondent submits that the applicant’s back and neck pain related to the accident resolved by April 2020, before the date of the plan, which is March 9, 2021. In this regard, the respondent relies on evidence from the CNR of Dr. Lee that is not contained in the applicant’s submissions. The applicant provided no reply.
14The respondent provides evidence that the applicant visited Dr. Lee on October 2, 2019. The CNR from that visit state, “Post MVC pain: neck pain is almost resolved, back pain slowly improving, pt is doing PT”. The respondent also provides evidence from the CNR of Dr. Lee consisting of the results of the applicant’s lumbar spine X-ray on October 31, 2019, and a visit to Dr. Lee on April 8, 2020. The X-ray report shows no acute injury and some degenerative changes. In his visit to Dr. Lee on April 8, 2020, the CNR indicate that the applicant made various complaints, including about right wrist pain, but no complaints related to the accident, nor any complaints about his neck or back.
15The respondent also relies on the applicant’s statement in support of his application for short term disability benefits in connection with his leave from work, dated September 7, 2020. The applicant stated he was unsure if the subject accident had anything to do with current back pain as it was feeling better.
16The respondent’s evidence of Dr. Lee’s CNR also contains Dr. Lee’s attending physician’s statements in connection with the applicant’s application for short term disability benefits, dated September 3, 2020 and October 23, 2020. In both statements, Dr. Lee states that the primary diagnosis is carpal tunnel syndrome and mechanical low back pain from DDD. In the latter statement, Dr. Lee says that the applicant was gradually improving, and the plan was to gradually return to work starting in November. Dr. Lee also noted that the applicant’s hand pain has worsened for some reason, and he is having pain worse than the initial presentation when the pain first began. In encounter notes with the applicant for October 20, 2020, Dr. Lee records that the applicant’s back pain is improving. The applicant also had a consultation with Dr. Lee on January 12, 2021, where the chief complaint was hand pain and low back pain. The applicant also consulted Dr. Lee on February 3, 2021, about five weeks before the date of the plan, and was assessed for elbow pain and other complaints, but not back or neck pain.
17I find the specific treatment proposed in the plan is not reasonable and necessary to treat the accident-related impairments that the applicant was experiencing at the time of the plan according to the medical evidence contained in Dr. Lee’s CNR. The plan addresses pain in thoracic spine, cervicalgia, WAD 2 with complaint of neck pain with musculoskeletal signs, as well as low back pain. By the time the plan was proposed, the applicant was complaining primarily of hand and elbow pain, which no evidence has connected to the accident, and occasionally of low back pain. There is no mention of cervical / neck or thoracic spine injury and related impairments, which were part of the plan’s proposed treatment.
18I find that Dr. Hanna’s reports support my finding. He states that the applicant presented with back tenderness and was “remarkable for query lumbar disc herniation” and should have an MRI. Dr. Hanna indicates that while the applicant has ongoing symptomology, and, therefore, appears not to have reached maximal medical recovery, the proposed treatment in the plan is unlikely to add any long-term benefits for his accident-related injuries. I find Dr. Hanna’s report compelling because it was an in-person examination on April 21, 2021, and occurred within six weeks of the date of the plan. Therefore, the 15 counts of exercise for spinal vertebrae and 15 counts of therapy at multiple body sites by a chiropractor are not supported by the medical evidence, and therefore the expense is not reasonable.
19I also find that the treatment goals of the plan, which were pain reduction, increased range of motion, and increase in strength, as well as the functional goal of returning to the activities of normal living, to the extent related to the applicant’s accident-related impairments, are not supported by Dr. Lee’s CNR. In Dr. Lee’s statement dated October 23, 2020, he indicates that the applicant’s range of motion could not be assessed due to the assessment being done virtually, so he relied on the EMG report. Dr. Lee said the neurological findings show weakness present (otherwise normal), but Dr. Lee’s statement does not indicate if that weakness is back or wrist/hand related. Dr. Hanna’s examination of the applicant’s thoracic and lumbosacral spine on April 21, 2021 found that active range of motion testing was within functional limits. Dr. Hanna’s neurological and cervical spine examinations of the applicant did not have findings. As a result, I am not convinced that the treatment goals of the plan as outlined in the plan are necessary for the recovery of the applicant from the accident.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments of benefits are overdue, the applicant is not entitled to any interest.
ORDER
21For the above reasons, I find:
i. The applicant has not demonstrated that the plan is reasonable and necessary. Accordingly, no interest is payable.
ii. The application is dismissed.
Released: March 19, 2025
Rasha El Sissi
Adjudicator