Neutral Citation: 2016 ONFSCDRS 89

FSCO A13-007726

BETWEEN:

ASHOK BAHL Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: In person at ADR Chambers on January 18 & 19, 2016

Appearances: Mr. Davin Tamber, lawyer, participated for Mr. Ashok Bahl Mr. Shane LeRoux, licensed paralegal, participated for Mr. Ashok Bahl Ms. Mari Maimets, lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Ashok Bahl, was injured in a motor vehicle accident on May 16, 2011. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bahl applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this Hearing are:

Is Mr. Bahl entitled to receive $1,243.88 for a medical benefit for a treatment plan submitted on October 9, 2013 as submitted by Complete Rehab?
Is Mr. Bahl entitled to receive $2,486.00 for the cost of examinations for an orthopedic assessment, dated March 25, 2014?
Is Mr. Bahl entitled to interest for the overdue payment of benefits?
Which party is liable to pay the other party`s expenses in respect to this Arbitration?

Result:

The $1,243.88 treatment plan, dated October 9, 2013, as submitted by Complete Rehab was not reasonable or necessary and is dismissed.
The orthopedic assessment of $2,486.00, dated March 25, 2014, was not reasonable or necessary and is dismissed.
Mr. Bahl is not entitled to any interest as there are no overdue payments.
If the parties are unable to resolve this issue between them, they shall be able to raise this issue in accordance with the provisions of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Legislation and Case Law considered

Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, O. Reg. 34/10, sections 24, 25 and 38.

Background

The Applicant had a medical history prior to the accident and the undisputed evidence showed that the Applicant suffered a WSIB injury in 2006 where he sustained a right shoulder injury. The Applicant had a second incident at another employer’s premises, on or about March of 2011, where he slipped and fell. The Applicant had fallen so hard that he lost consciousness and complained almost immediately of lower back pain.

Decision

I shall first look at whether or not the treatment plan of $1,243.88, dated October 9, 2013, as submitted by Complete Rehab and the $2,486.00 orthopedic assessment, dated March 25, 2014, were reasonable and necessary.

The Statutory Accident Benefits Schedule, section 38(3), provides the frame work for the dispute in this Arbitration and reads as follows:

38 (3) A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional; and

(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and,

(Underlined for emphasis)

The uncontested evidence is that the Applicant did not pursue treatment between November 14, 2012 and March 24, 2014. The Applicant’s family doctor’s clinical notes and records show that he was not complaining about pain in his lower back or right shoulder during this time frame.

It became clear through the testimony of the Applicant that he forgot to tell every single assessor of his slip and fall which happened just 3 months before the accident.

There is no evidence that the Applicant sustained any head trauma in the car accident.

The Applicant was consistent about describing his back pain, characterizing it as occasional pain, when being questioned by opposing counsel.

The Applicant went back to work on or about March 2012, as a parts delivery person, where lifting was an important part of his job. The Applicant testified he would get help lifting if the parts were too heavy for him to lift. Unfortunately the Applicant did not specify what weight was too heavy or how often help was required.

It is also undisputed evidence that the Applicant received approval of a medical benefit consisting of 12 psychological sessions which were not used, despite the Applicant’s representative’s arguments that the Applicant suffered from chronic pain syndrome which requires a multipronged treatment plan of both physical and psychological treatment.

The Applicant’s testimony was that he was on a series of prescribed pain and sleeping aid drugs throughout the time frame of May 2011 to today; however, the Applicant was unable to produce any pharmacy records showing same, despite having a spouse who enjoys a health care benefit plan from her employer.

The Insurer’s witness, Dr. Paitich, the only expert medical witness to appear and give evidence at this Arbitration, testified to the accuracy of his report and the second paper review report which denied the reasonableness and necessity of both the treatment plan and the orthopedic assessment in dispute. Dr. Paitich opined that the Applicant fell into the 80% of “mechanical pain” patients who are unable to be diagnosed, but who are also able to be managed by short term passive treatment plans (massage and chiropractic) as well as facility based exercise plans, which then turn into self-directed exercises which are meant to help maintain the strengthening of the core muscle groups. Dr. Paitich clarified that chronic pain is defined generally when pain is experienced by an individual for more than three consecutive months.

Dr. Paitich opined that short term passive treatments should last no more than 6 months after the accident. Any further treatments would only give very short term relief and no real solution to the pain being experienced by the patient.

It is clear from the Applicant’s testimony and the evidence contained within the Examination Under Oath that the Applicant was given exercises and taught in a facility to do same at home. It is also clear that the Applicant chose to slowly stop the exercises over time while at home.

I agree with the Insurer’s argument that the burden of proof falls upon the Applicant to show a direct link of causation of any pain in late 2013 with that of the motor vehicle accident in May 2011. Further, the Insurer argues it is also the Applicant’s burden to show that the treatment plan for more passive treatments and an assessment for yet another orthopedic assessment were reasonable and necessary.

In my view, the Applicant failed to satisfy both burdens. There is no evidence of any pain prescriptions being filled and taken during the period of 2011-2014. The evidence shows no further treatment plans were submitted during the months from November 2012 and March 2014 where the Applicant did not complain to his own family doctor about any back pain or sleeping problems. There is no direct linkage between the pain in late 2013 and the motor vehicle accident, in light of the Applicant’s lifting duties at work. In my opinion this is a significant length of time where the Applicant appears to be pain free, which was uncontested by the Applicant’s own testimony.

In my view, the Applicant distorted all the assessments made on his behalf when he did not report the head and back trauma which occurred just 3 months prior to the accident. The Applicant further hurt his case when he failed to pursue the multipronged approach for his then claimed chronic pain syndrome and left unattended 12 sessions with a psychologist. It is reasonable to conclude that the psychological issues have resolved themselves since the accident.

There was no evidence presented by the Applicant as to why there was a reasonable necessity for another orthopedic assessment some three years after the accident. The first orthopedic assessment was done by Dr. Mark in response to the Applicant’s non-earner benefit claim and the second was performed by Dr. Paitich in response to the disputed treatment plan and orthopedic assessment.

Therefore, for the reasons above, I now find and order that the $1,243.88 treatment plan, dated October 9, 2013, as submitted by Complete Rehab and the $2,486.00 orthopedic assessment, dated March 25, 2014, were not reasonable or necessary and are dismissed.

As a result of the above findings, I now find and order that there is no interest owed to the Applicant for either of the proposed treatment plan or the orthopedic assessment.

EXPENSES:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an expense hearing before me in accordance with the provisions of the Dispute Resolution Practice Code.

March 21, 2016

Charles Matheson Arbitrator

Date

ARBITRATION ORDER

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

The $1,243.88 treatment plan, dated October 9, 2013, as submitted by Complete Rehab was not reasonable or necessary and is dismissed.
The orthopedic assessment of $2,486.00, dated March 25, 2014, was not reasonable or necessary and is dismissed.
Mr. Bahl is not entitled to any interest as there are no overdue payments.
If the parties are unable to resolve this issue between them, they shall be able to raise this issue in accordance with the provisions of the Dispute Resolution Practice Code.