Clear Linkage Between Accident and Worsening of Pre-existing Conditions Leads to Treatment Plan Approval - Youssef-Shebo and Aviva

March 17, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Youssef-Shebo and Aviva

Date of Decision: January 5, 2018
Heard Before: Adjudicator Jessica Kowalski

ENTITLEMENT TO TREATMENT PLANS: Some treatment plans are shown reasonable and necessary for recovery; clear linkage between accident and worsening of pre-existing conditions; applicant removed from MIG on psychological grounds                                                            

Nabil Youssef-Shebo was injured in a chain reaction-style collision as he slowed to a stop when his car was struck from behind by one car, which was then struck from behind by another car on June 28, 2013.  He applied for and received statutory accident benefits from Aviva but when the parties were unable to resolve their disputes through mediation Mr. Youssef-Shebo applied for arbitration at the FSCO.

Issues:

1. Is Mr. Youssef-Shebo entitled to payment for treatment proposed by Thistletown Rehabilitation:
   1. the unapproved balance of $1,388.00 for physical therapy recommended in a plan dated September 25, 2013, and which was partially approved in the amount of $1,269.00;
   2. $1,745.00 for physical therapy recommended in a plan dated November 11, 2013;
   3. $1,299.80 for physical therapy recommended in a plan dated February 12, 2014; and,
   4. $1,076.20 for physical therapy recommended in a plan dated June 18, 2014;
2. Is Mr. Youssef-Shebo entitled to $351.16, which represents the unapproved cost of a psychological evaluation submitted in the amount of $1,979.36 and partially approved in the amount of $1,628.20?
3. Is Mr. Youssef-Shebo entitled to interest on overdue benefits?
4. Is either party entitled to their expenses of this arbitration?

Result:

1. Aviva shall pay for the following treatment proposed by Thistletown Rehabilitation Centre:
   1. the unapproved balance of $1,388.00 for physical therapy recommended in a plan dated September 25, 2013, and which was partially approved in the amount of $1,269.00;
   2. $1,745.00 for physical therapy recommended in a plan dated November 11, 2013;
   3. $1,299.80 for physical therapy recommended in a plan dated February 12, 2014.
2. Mr. Youssef-Shebo is not entitled to payment of $1,076.20 for treatment recommended by Thistletown in the OCF-18 dated June 18, 2014.
3. Mr. Youssef-Shebo is not entitled to payment of $351.16, representing the outstanding amount billed by Injury Management & Medical Assessments for a psychological evaluation by Nicole McCance.
4. Mr. Youssef-Shebo is entitled to interest on overdue benefits, calculated in accordance with the Schedule.
5. Each party shall bear their own expenses of this arbitration.

Mr. Youssef-Shebo did not seek immediate medical treatment after the hospital, nor was he taken to hospital.  He testified that his main concern at the time was his young children in the car with him. He went to see his family doctor on July 3, 2013 complaining of neck and back pain following the accident.  His family doctor prescribed pain medication and recommended that Mr. Youssef-Shebo start physiotherapy.

There is no dispute that Mr. Youssef-Shebo had pre-existing conditions in his low back and right knee.  He says they were aggravated by the accident. He testified candidly about his pre-existing conditions.  The Adjudicator found him  to be a credible and co-operative witness.  Mr. Youssef-Shebo requires an interpreter and is not a sophisticated individual.  He could not recall what doctors he saw for what reason or their respective specialties, but there was no pattern of evasiveness or efforts to simply fill in the blanks in the case of appointments or assessments or physicians he could not remember.

Approximately three weeks before the accident, Mr. Youssef-Shebo had gone to see his family doctor because of pain in his lower back, right leg and right knee and had x-rays of the low back which showed mild degenerative disc disease, and the right knee showing bursitis and baker’s cysts. As a result, his family doctor referred Mr. Youssef-Shebo to a rheumatologist. Mr. Youssef-Shebo testified that he could function, and his pain was manageable.  However, after the accident his pain increased and he continued to complain of low back pain, neck pain and right knee pain.

Following his family doctor’s July 3, 2013 recommendation, Mr. Youssef-Shebo started attending physiotherapy at Thistletown.  That same day, a chiropractor at Thistletown, Dr. DH, completed a OCF-23 in accordance with the MIG.  The OCF-23 certified that, as a direct result of the accident, Mr. Youssef-Shebo sustained: injury to the muscle and tendon at the neck, sprain and strain of the thoracic spine, lumbar spine and the sacroiliac joint, as well as chronic post-traumatic headache. At Part 6, the OCF-23 noted Mr. Youssef-Shebo’s pre-existing condition as a right knee injury, that it had been aggravated in the accident, and that it could affect his ability to perform some of the active components of therapy.

Mr. Youssef-Shebo started treatment and continued to see His family doctor for post-accident pain complaints. On September 23, 2013, Thistletown submitted a treatment and assessment plan (OCF-18) recommending $1,388.00 in physical therapy.  Aviva approved this OCF-18, save for one treatment session, because it would have exceeded the $3,500.00 MIG treatment limit.  Aviva denied funding for further physical treatment.

On December 4, 2013, His family doctor referred Mr. Youssef-Shebo to an orthopaedic surgeon because of his ongoing complaints of low back pain. The extent of Mr. Youssef-Shebo’s injuries in the low back and right knee did not become known until an MRI of each in February 2014 which disclosed abnormal pathology:  The lumbar spine MRI showed multilevel disc disease with a bulge and protrusion in the lumbosacral spine.

The MRI of the right knee showed a complete tear of the anterior cruciate ligament (“ACL”).  The report of the right knee MRI dated February 18, 2014 described a flipped meniscal tear: a “Complex tearing of the medial meniscus with a flipped fragment lying medial to the posterior cruciate ligament and diminutive residual body and posterior horn.”  The MRI report also noted arthritic changes as well as knee effusion and a popliteal cyst.  Mr. Youssef-Shebo had surgery to repair the right knee.

Aviva ultimately removed Mr. Youssef-Shebo from the MIG, but for psychological reasons.

Aviva denied the disputed treatment plans following an insurer examination (IE) by chiropractor who opined in his reports that the proposed treatment was not reasonable or necessary and that Mr. Youssef-Shebo’s pain or impairments were not caused by the accident but were consequential of some other pathology, and that his current presentation may or may not be related to the pre-existing factors.

Mr. Youssef-Shebo was also assessed by his own expert, an orthopaedic surgeon.  The Surgeon opined that the accident exacerbated Mr. Youssef-Shebo’s pre-existing condition and that physical therapy was not only reasonable but recommended.  He opined that Mr. Youssef-Shebo’s post-accident condition in his right knee was severe and could not effectively be treated within the MIG.

The Adjudicator found based on the totality of the medical evidence that although Mr. Youssef-Shebo was suffering from an injury to his right knee and back prior to the accident, it is reasonable to conclude that the accident exacerbated his prior conditions, which would have precipitated his need for treatment closer to the accident date, and beyond that which an average person would receive within the MIG.

Accordingly, Mr. Youssef-Shebo is entitled to the treatment set out in the following September 25, 2013, November 11, 2013 and February 12, 2014 plans.   The June 18, 2014 plan is discussed below.

The Adjudicator was not persuaded that the fourth OCF-18 in dispute, dated June 18, 2014as it appears that from the clinic notes that the treatment was being incurred without a treatment plan, based on a note placed over a July 16, 2014 entry that states:  “URGENT!!! Youssef Shebo Nabil. Please do a treatment plan backdated to April 23, 2014 which should be TP5…”  suggesting that this treatment plan was made to reclaim lost treatment sessions pursuant to the Schedule rather than following an assessment of Mr. Youssef-Shebo’s condition and needs

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.