Neutral Citation: 2005 ONFSCDRS 76

FSCO A04-000733

BETWEEN:

BLASKO NOVAKOVIC

Applicant

and

COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT

Insurer

REASONS FOR DECISION

Before:

Denise Ashby

Heard:

Monday, December 13, Tuesday, December 14, Wednesday, December 15 and Thursday, December 16, 2004, in Hamilton, Ontario.

Resumed by teleconference on Friday, May 6, 2005.

Appearances:

H. Wayne Gardner for Mr. Novakovic

Pradeep B. Pachai for Coseco Insurance Co./HB Group/Direct Protect

Issues:

The Applicant, Blasko Novakovic, was injured in a motor vehicle accident on March 24, 1998. He applied for, but was denied, medical benefits from Coseco Insurance Co./HB Group/Direct Protect ("Coseco"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Novakovic applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing of both the preliminary issue and the claim for medical benefits were heard together. The parties agreed that the decision with respect to the preliminary issue would be issued first. On February 22, 2005, the preliminary issue decision which found that Mr. Novakovic was entitled to proceed to arbitration was released.

At the hearing, Mr. Novakovic withdrew his claims for an assistive device pursuant to section 14 of the Schedule and a special award pursuant to subsection 282(10) of the Insurance Act.

The remaining issues at the hearing are:

Is Mr. Novakovic entitled to the following medical benefits:

(a) chiropractic treatment provided by Back to Work ² as recommended in a Treatment Plan dated October 28, 2003;

(b) physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated October 28, 2003;

(d) physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated November 28, 2003; and

(e) psychological treatment provided by Kaplan and Kaplan, as recommended in Treatment Plan dated April 8, 2004, pursuant to section 14 of the Schedule?

Is Coseco liable to pay Mr. Novakovic's expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act?
Is Mr. Novakovic liable to pay Coseco's expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act?
Is Mr. Novakovic entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Novakovic is:

(a) entitled to chiropractic treatment provided by Back to Work as recommended in a Treatment Plan dated October 28, 2003;

(b) not entitled to physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated October 28, 2003;

(c) not entitled to chiropractic treatment provided by Back to Work as recommended in a Treatment Plan dated November 28, 2003;

(d) not entitled to physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated November 28, 2003; and

(e) entitled to psychological treatment provided by Kaplan and Kaplan, as recommended in Treatment Plan dated April 8, 2004; pursuant to section 14 of the Schedule;

Coseco is liable to pay Mr. Novakovic's expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act.
Mr. Novakovic is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

Background

On March 24, 1998, Mr. Novakovic, age 14 years, was struck by a car while crossing King Street East in Stoney Creek. He was taken by ambulance to the Hamilton Health Sciences Hospital. The Hamilton Health Sciences Corporation records and the ambulance call report indicate that Mr. Novakovic presented with pain in his low lumbar back, upper legs, back of neck and occipital skull area.³ The report of x-rays taken of his cervical spine dated March 24, 1998 indicates no fractures.

EVIDENCE AND ANALYSIS:

There is no dispute that Mr. Novakovic was involved in an "accident" on March 24, 1998. However, Coseco submits that the symptoms complained of by Mr. Novakovic are not impairments and were not caused by the accident as required by section 14 of the Schedule.

Both Mr. Novakovic and Ms Ljubica Novakovic, his mother, testified at the hearing in an honest and forthright manner. I found them to be credible. However, Mr. Novakovic's evidence was vague and subject to lapses in memory which I attribute to his cognitive deficits, which are described below.

Impairment

Section 2(1) of the Schedule defines impairment as: "a loss or abnormality of a psychological, physiological or anatomical structure or function."

The evidence of both Mr. Novakovic and his mother depict a significant change in Mr. Novakovic's behaviour and activities post-accident. They testified that prior to the accident, he was reasonably healthy, active in sports and other school activities. Following the accident his participation in school, social and employment activities was significantly restricted. Mr. Novakovic itemized numerous jobs that he has left after a short period of time due to pain. He attributes his sporadic and marginal employment to his chronic pain.

Dr. Ronald Kaplan was the only witness to provide expert evidence regarding the psychological and neurological impact of the accident. Dr. Kaplan diagnosed Mr. Novakovic as suffering from chronic pain and depression associated with feelings of inadequacy. As well, he was of the opinion that the medical records support a diagnosis of mild traumatic brain injury. In Dr. Kaplan's view, the cognitive deficits, identified in the psychometric testing, were significantly contributed to by the pain and associated sleep deprivation. Two tests were administered which assist in identifying symptom magnification. The results raised questions about the validity of the testing. However, in Dr. Kaplan's opinion, the consistent evidence of Mr. Novakovic's problems with attention, memory, information processing and multi-tasking suggest that the testing can be relied upon with respect to identification of cognitive impairment. It is the severity of the impairment which cannot be determined.⁴

I accept Mr. Novakovic's evidence that he has had to leave jobs after a short period of time due to pain in his lower back, right leg and headaches. I find that on a balance of probabilities Mr. Novakovic has suffered a loss of physical function as a consequence of the chronic pain he experiences and has cognitive deficits. Consequently, his condition meets the definition of impairment found in the Schedule.

Causality

Mr. Novakovic did not notify Coseco of the accident or his potential claim until October 17, 2002, more than four years following the accident. The treatment which is the subject of this hearing was provided some five to six years after the accident. Also, Mr. Novakovic was involved in a second accident on July 31, 2003. Both the lapse of time between the accident and the treatment and the second accident raise issues of causality and remoteness. These issues were considered in Correia and TTC Insurance ⁵ where the arbitrator found:

Remoteness questions can arise where there is no dispute that the insured person was involved in an "accident," but the insurer disputes the extent of its responsibility for the consequences of the accident. In many FSCO cases, the insured person initially sustained a relatively minor soft tissue injury, but then developed complications... FSCO adjudicators have found entitlement where the accident significantly or materially contributed to the insured person's disability (in the case of weekly benefits) or impairment (for other types of benefits). The significant or material contribution test is consistent with common law principles of causation.

I adopt the reasoning in Correia and find that Mr. Novakovic must establish that the accident significantly or materially contributed to his impairment in order to sustain his claim for medical benefits.

From the date of the accident to the present, Mr. Novakovic has consistently complained of pain in his right leg, particularly weakness in his right knee, lower back pain and headaches. Mr. Novakovic testified that he was injured while working at Fortinos, a grocery store. The WSIB, Worker's Report of Injury/Disease dated December 8, 1999, notes: "Employee thought that it was nothing - Got hit by car last summer and has some pain all the time."⁶

Dr. Ratka Timarac, Mr. Novakovic's family doctor, testified that Mr. Novakovic became her patient in January 2000. Previously, Mr. Novakovic had been treated by his pediatrician, Dr. Rovis. On December 3, 2001, Dr. Timarac diagnosed a lumbar sacral strain. She rated the decreased range of motion as grade 1 or 75% of normal. Mr. Novakovic's visits on July 9, October 1 and October 29, 2002 were also for back pain which she continued to rate as grade 1.⁷

Dr. Timarac stated that she was surprised that Mr. Novakovic did not inform her of the motor vehicle accident, which occurred in March 1998, until October 29, 2002. Notwithstanding this, she signed the Disability Certificate on December 13, 2002.⁸ She testified that, to her knowledge, there was no intervening event between the motor vehicle accident of March 24, 1998 and her examination of Mr. Novakovic in October 2002. Therefore, in her opinion, the motor vehicle accident of March 24, 1998 was the cause of the lumbar sacral strain and headache described in the certificate. Dr. Timarac testified that in her experience, chronic pain patients frequently become worse over time and have more frequent complaints.

Dr. Timarac's clinical notes on November 13, 2002 are the first indication that Mr. Novakovic complained of headaches.⁹ On April 29, 2003, he consulted Dr. Timarac with respect to more severe headaches. The headaches were focused in the frontal or occipital region and caused Mr. Novakovic's vision to blur. Dr. Timarac testified that the intensity noted on this occasion was greater than previous complaints of headache. As well, Mr. Novakovic reported falling down. As a result of these symptoms, Dr. Timarac referred him to Dr. Susan E. (Fawcett) Goodwin, a neurologist. Dr. Goodwin, in her reporting letter dated September 12, 2003,¹⁰ did not dispute Mr. Novakovic's history of the headaches having their onset immediately after the motor vehicle accident in March 1998.

Dr. Timarac testified that Mr. Novakovic consulted her on August 1, 2003 regarding a motor vehicle accident the previous day. He described a sore left shoulder and headache. Dr. Timarac observed that the shoulder injury was new and in her opinion this accident exacerbated the headaches Mr. Novakovic had previously reported.¹¹ This second accident did not alter Dr. Timarac's opinion that the accident on March 24, 1998 was the cause of the pain in the lower back, right leg and the headaches.

Dr. Katarina Rovis, Mr. Novakovic's former pediatrician, testified that while in her opinion there were no motor vehicle accident related symptoms after September 15, 1998, she could not state absolutely that the present symptoms described by Mr. Novakovic were not caused by the accident on March 24, 1998. She also testified that post-concussion headaches can occur months even years after trauma.

Dr. Ronald Kaplan, psychologist, testified that in his opinion, the musculoskeletal injuries caused by the accident of March 24, 1998 were the genesis of the pain history and the depression which was evident in his assessment of Mr. Novakovic.

On the basis of the foregoing, I find the accident of March 24, 1998 significantly and materially contributed to the chronic pain in Mr. Novakovic's lower back and right leg, including the knee, the headaches and the depression.

Reasonable and Necessary

As well as meeting the causality test, Mr. Novakovic must prove, on a balance of probabilities, the treatment that he claimed was a reasonable and necessary expense incurred by him or on his behalf.¹²

This test has been amplified in General Accident and Violi, a claim pursuant to the SABS-1994, in which Director's Delegate Draper set out three tests which must be met before prolonged treatment can be deemed reasonable and necessary:

the treatment goals, as identified, are reasonable;
these goals are being met to a reasonable degree; and
the overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.¹³

This reasoning was applied in Rashid and State Farm,¹⁴ relating to a claim for medical benefits pursuant to Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996. Although, the Treatment Plans submitted by Back to Work and Kaplan and Kaplan did not necessarily recommend prolonged or lengthy treatment, I am of the view the Violi tests are helpful in analysing entitlement to treatment that is being sought years after the initial treatment relating to the accident has been completed.

Treatment provided by Back to Work

Mr. Novakovic has a very limited recollection of the therapy he has received since the accident including that which is relevant to his claim for benefits.

Mr. Novakovic testified that the physiotherapy he received immediately following the accident at Queenston Physiotherapy was helpful but the massage was less helpful. The diagnosis was severe myalgia. Dr. Rovis' referral also noted the March accident under relevant information."¹⁵The assessment form indicates that Mr. Novakovic complained of leg pain which was "sometimes in knee."¹⁶ He was discharged to a home exercise program which he continues to do. As well, he has self-medicated with Tylenol, cold packs and other non-prescription pain medication which his mother has regularly purchased to assist him in dealing with the pain. He has also supported his knee with a tensor bandage which his mother bought.

Mr. Novakovic acknowledged receiving chiropractic treatment and physiotherapy in 2003 and 2004 from both Queenston Physiotherapy and Back to Work. Although he described recent physiotherapy as helpful there was no suggestion that the treatment provided greater relief than his home exercise program. Rather, he credits the arthroscopic surgery and subsequent injections by Dr. J.A. Pyper, an orthopaedic surgeon, together with the brace recommended by Dr. Pyper, as providing some improvement in the right knee. Mr. Novakovic testified that the lower back has not significantly improved since the accident.

Dr. Timothy McKee, a chiropractor and the Clinic Director at Back to Work, testified at the hearing. His evidence did not assist in determining entitlement to treatment provided by Back to Work. He could not relate the treatment recommended in the two treatment plans to the treatment described in the invoices or relate the treatment to the accident on March 24, 1998. Further, Dr. McKee was unable to distinguish the treatment which related to the 1998 accident from treatment relating to the accident on July 31, 2003. As a consequence, I have relied on the documentary evidence in determining this issue.

On October 28, 2003, Mr. Novakovic commenced treatment at Back to Work. Dr. Karmensita Maskarel, a chiropractor, prepared the Treatment Plan of that date in which she diagnosed Mr. Novakovic as having: chronic whiplash associated disorder Gr. II; chronic lumbar spine; chronic right knee sprain and chronic right shoulder sprain/strain. The Treatment Plan recommended 8 weeks of treatment at a cost of $4,120.00. It provided for 3 weekly sessions of active rehabilitation, education and physiotherapy for the 8 week period; 5 weeks of twice weekly chiropractic treatment and 3 weeks of weekly chiropractic treatments. The goals set out in the Treatment Plan were to reduce pain; improve pain-free ROM; increase flexibility; reduce muscle spasm; improve muscle strength of (illegible); and improve patient's endurance.¹⁷

The second Treatment Plan was signed by Dr. Z. Nazarali, chiropractor, on November 28, 2003. Dr. Nazarali noted that the pain in the right shoulder and neck had diminished with the previous treatment. He recommended 20 further sessions each of manipulation and mobilization; manual therapy; and physical rehabilitation. The goals of treatment were similar to the first treatment plan with the addition of return to activities of normal living and return to pre-accident work activities. The cost of the recommended treatment was $3,200.00.¹⁸

There are four invoices designating Dr. Nazarali as the treatment provider.¹⁹ A fifth invoice sets out charges for Dr. Maskarel's treatment of the shoulder on October 28, 2003 at a cost of $584.50.²⁰ A letter dated July 14, 2004 from Back to Work to Mr. Novakovic's counsel reported the outstanding balance to be $6,324.00.²¹

The treatments of the lower back and right knee relate to impairments which I have found were caused by the accident. However, Dr. Maskarel's treatment of the shoulder is disallowed pursuant to my finding that the shoulder injury was unrelated to the accident on March 24, 1998. Therefore, the cost of the remaining treatment is $5,739.50, calculated as the balance outstanding on July 14, 2004, less the invoiced amount of Dr. Maskarel's treatment.

Prior to being treated by Back to Work, Mr. Novakovic's back and knee were treated by Queenston Physiotherapy & Rehabilitation from June 30, 2003 to October 23, 2003.²² Its discharge report dated November 10, 2003 stated:

Blasko reported some improvement in strength, but continued to experience pain and difficulties with his knee giving out...However, he reported no significant improvement in the low back pain, still experiencing difficulties sleeping at night.²³

Mr. Novakovic's history indicates that he received physiotherapy within six months of the accident. He testified that this treatment and the home exercise program, which he continues to do, were helpful. There was a treatment gap of approximately five years between the initial post-accident treatment and his attendance at Queenston Physiotherapy & Rehabilitation in June 2003. The discharge note from that facility is consistent with Mr. Novakovic's evidence that the physiotherapy and home exercise helps strengthen his legs but does not prevent his knee from giving out and does not reduce pain in either the knee or his lower back. Mr. Novakovic testified that the most significant improvement in his knee resulted from Dr. Pyper's treatment.

Physiotherapy had been helpful five years previously. A further course of physiotherapy could be construed as a reasonable means to determine whether it could alleviate the present chronic symptoms. However, the discharge note of Queenston Physiotherapy & Rehabilitation in November 2003 is evidence that the treatment was not significantly more effective than Mr. Novakovic's home exercise program. Therefore, I find Back to Work's goals of returning Mr. Novakovic to pre-accident functioning and pain reduction through physiotherapy, active therapy and education were unreasonable, unsuccessful and represented an unreasonable expenditure of time and money.

Mr. Novakovic had not had previous chiropractic treatment. The application of a new modality to determine whether it might relieve chronic pain and increase functionality are reasonable goals, in the absence of evidence that such treatment could do harm. The Treatment Plan of October 28, 2003 recommends chiropractic treatment to "spinal and extremities" for 13 sessions at a total cost of $520.00. This limited course of chiropractic treatment would be a reasonable test period to determine its effectiveness in achieving the stated goals and would be a reasonable expenditure of time and money. Therefore, I find that the chiropractic treatment recommended in the Treatment Plan dated October 28, 2003 is both reasonable and necessary.

The Treatment Plan of November 28, 2003 notes that there has been improvement in the shoulder and neck. These improvements do not relate to impairments caused by the accident. There is no reference to a reduction of pain or increased functionality in either the lower back or right knee. Therefore, I infer that there were no signs that the initial course of chiropractic treatment had either ameliorated the pain or increased functionality in the lower back and right knee. Therefore, I find that a further course of chiropractic treatment was not reasonable or necessary.

Psychological Treatment

Dr. Kaplan conducted the psychological assessment of Mr. Novakovic. However, since the assessment, he has been seeing Dr. I. Trofimova, Dr. Kaplan's associate. Dr. Kaplan communicates regularly with Dr. Trofimova regarding Mr. Novakovic's progress. Consequently, he was prepared to testify to his progress.

Dr. Kaplan expressed the opinion that the chronic nature of Mr. Novakovic's psychological disability will require a longer period of treatment. Therefore, the initial Treatment Plan for psychological services, dated April 8, 2004,²⁴ provided for 6 months of treatment at a cost of $9,702.50, inclusive of related services such as re-evaluative psychological testing and clinical support activities. The treatment goals were: improve his ability to cope with pain; reduce his level of psychological distress from pain; improve his sleep pattern; learn ways to assert himself as appropriate in order to assist his ability to self-manage his pain more effectively and improve his ability to manage emotional distress. The functional goals were: improve his ability to obtain restorative sleep; improve his memory and concentration and improve his overall functioning.

Mr. Novakovic testified that the treatment provided by Kaplan and Kaplan has been helpful in dealing with his fears and depression. This improvement has been noted by his therapist. I accept Dr. Kaplan's opinion that the chronic nature of Mr. Novakovic's psychological disability requires a longer period of treatment. Therefore, the goals are being achieved to a reasonable degree given the chronic nature of his disability.

There was no evidence that there were treatment alternatives which might be more cost effective than the cost set out in the Treatment Plan.

I therefore conclude that the treatment recommended by Dr. Ronald Kaplan, in his treatment plan dated April 8, 2004, is both reasonable and necessary.

EXPENSES:

I exercise my discretion to award Mr. Novakovic his expenses incurred in this hearing. If the parties are unable to agree on the quantum of his expenses, they may make an application pursuant to the Dispute Resolution Practice Code following the release of my decision with respect to the issue of benefits.

June 1, 2005

Denise Ashby Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 76

FSCO A04-000733

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BLASKO NOVAKOVIC

Applicant

and

COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Coseco shall:

(a) pay Mr. Novakovic a medical benefit for chiropractic treatment provided by Back to Work as recommended in a Treatment Plan dated October 28, 2003, the sum of $520.00;

(b) not pay Mr. Novakovic a medical benefit for physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated October 28, 2003;

(c) not pay Mr. Novakovic a medical benefit for chiropractic treatment provided by Back to Work as recommended in a Treatment Plan dated November 28, 2003;

(d) not pay Mr. Novakovic a medical benefit for physiotherapy, active therapy and education provided by Back to Work as recommended in a Treatment Plan dated November 28, 2003; and

(e) shall pay Mr. Novakovic for psychological treatment provided by Kaplan and Kaplan, as recommended in Treatment Plan dated April 8, 2004, the sum of $9,702.50, pursuant to section 14 of the Schedule;

Coseco is liable to pay Mr. Novakovic's expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act.
Mr. Novakovic is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.