LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2016/12/01

Tribunal File Number: 16-000536/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:

L. W. Applicant

and

The Co-operators General Insurance Company Respondent

DECISION

Adjudicator: Chris Sewrattan

Written submissions by:

Counsel for the Applicant: Lauren Grimaldi Applicant

Counsel for the Respondent: David Raposo

HEARD: Written Hearing: October 5, 2016

Overview

1The applicant, L. W., was injured in two motor vehicle accidents. The first was on November 29, 2013 when she was rear ended by a bus. As a result of the accident, the applicant suffered a number of injuries, including depression and anxiety, a head injury which resulted in post-concussion symptoms, and disc herniation. The second accident was on June 19, 2015. The applicant was rear ended by a vehicle. The second accident aggravated the disc herniation caused by the first accident.

2The applicant applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2013 (the “Schedule”) for both accidents. The Co-Operators General Insurance Company (“Co-Operators”) paid for rehabilitation benefits initially. Since May 2014, however, Co-Operators has denied payment for six treatment plans (medical benefits) related to chiropractic and massage therapy treatment. The applicant’s disputed claims for medical benefits for both accidents are joined in the Application before the Tribunal.

Issues in Dispute:

3The applicant disputes Co-Operators denial of payment for the following benefits:

(1) $447.20 for chiropractic services for a treatment plan submitted on May 28, 2014;

(2) $560.00 for massage therapy for a treatment plan submitted on July 8, 2014;

(3) $451.24 for chiropractic services for a treatment plan submitted on September 9, 2015;

(4) $650.43 for ‘other goods and services of a medical nature’ (massage therapy) for a treatment plan submitted on October 22, 2015;

(5) $521.34 for ‘other goods and services of a medical nature’ (massage therapy) for a treatment plan submitted on October 1, 2015; and,

(6) $2,456.20 for chiropractic services for a treatment plan submitted on March 29, 2016.

Result:

4The applicant is entitled to payment for all six of the treatment plans for medical benefits set out above.

Discussion:

5The only issue before the Tribunal is whether each disputed treatment is reasonable and necessary. Co-Operators focused much of its submissions on the argument that the applicant’s injury is both minor and lacks objective evidence. It is unclear whether Co-Operators’ specific position is that the proposed treatment is not reasonable and necessary because the applicant’s injuries are minor; or that there is insufficient evidence to establish that the proposed treatment is reasonable and necessary for the specific minor injury that the applicant incurred. I need not speculate about the distinction as in either instance the analysis is the same.

6To determine the applicant’s entitlement to the disputed medical benefits, I must determine whether they are reasonable and necessary.

Are the benefits necessary?

7The applicant must prove on a balance of probabilities that each of the disputed medical benefits is reasonable and necessary. To achieve this end, the applicant provides a Prognosis Note dated February 26, 2015 from Dr. Fletcher, her chiropractor. Dr. Fletcher states that the applicant has radicular nerve pain around the thoracic spine and is experiencing a regression in her rehabilitation with decreased chiropractic care, acupuncture, and massage therapy. Dr. Fletcher comments that the applicant has achieved positive results with these three treatment regimens. Dr. Fletcher’s diagnosis of radicular nerve pain is uncontested on the evidence. His prognosis of regression without further treatment is contested by Dr. Khaled, on whom Co-Operators relies in its submissions.

8Co-Operators indirectly challenges the necessity of the medical benefits. It raises a causation issue, submitting that the applicant has failed to prove that she suffers from an impairment as a result of the accident that necessitates the disputed treatment. In support of this submission, Co-Operators relies on the October 14, 2015 report of Dr. Khaled. The report concludes that, from a physical perspective, the applicant has sustained uncomplicated soft tissue injuries warranting no further facility based treatment.

9I disagree with this submission. I am satisfied on a balance of probabilities the accidents caused a physical impairment which necessitates the six disputed treatment plans for medical benefits. On my review of the two MRI reports dated December 12, 2007 and April 26, 2014, and Dr. Fletcher’s clinical notes and Progress Note dated February 26, 2015, I find that the applicant suffers a chronic impairment to her thoracic spine. The clinical notes and records of Cobblestone Medicine and Rehabilitation Centre show that the injury which causes this impairment predates the applicant’s first motor vehicle accident in 2013, albeit in a lessor form. The injury substantially healed by the time of the first accident. However, the first accident exacerbated the injury, creating an impairment. That impairment was further aggravated by the second accident. This is evidenced in the clinical notes and records of Cobblestone Medicine and Rehab Centre, Dr. Fletcher’s Prognosis Note dated December 26, 2015, and Dr. Khaled’s most recent addendum to his 2015 report, which is dated June 8, 2016. Dr. Khaled’s June 8, 2016 addendum is the most recent medical comment on the applicant’s physical condition. In it Dr. Khaled notes that the applicant has some ongoing accident related pains; however, not at the level of chronic pain syndrome.

10Parenthetically, it is noted that the respondent did not raise ‘pre-existing condition’ or ‘material causation’ issues in relation to its causation submission. Rather, the causation submission rests on the assertion that the applicant does not currently suffer from an impairment requiring facility-based treatment.

11The chiropractic service and massage therapy sought by the applicant will, at best, achieve the goal of relieving pain to the applicant’s thoracic spine. This in turn will improve her function. Dr. Fletcher’s February 26, 2015 Progress Note suggests that in the past such pain reduction improved the applicant’s rehabilitation. This makes the chiropractic service and massage therapy necessary, in my view. I agree with Arbitrator Renahan in Wong and Allstate Insurance Co. of Canada, September 22, 2000, FSCO A99-000545 at pages 9-10, that care which relieves physical pain, and therefore improves function, is a “legitimate medical and rehabilitative goal.” Wong is not binding on me, but I find it persuasive and adopt its reasoning on this issue.

Are the benefits reasonable for the Applicant?

12The necessity of a benefit is not a blank cheque for treatment, regardless of whether its cost is within or outside of the Minor Injury Guideline. A benefit must be reasonable with respect to its goal, its ability to achieve that goal, and cost.

13I find that each of the six disputed treatment plans for medical benefits are reasonable treatment plans in light of the applicant’s physical impairment. As noted in Dr. Khaled’s June 8, 2016 addendum to his October 14, 2015 report, the applicant has ongoing accident related pain. It is not enough to constitute chronic pain syndrome, but it is pain nonetheless. The chiropractic and massage therapy proposed are reasonable methods to treat this pain. Their identical goal is to reduce pain thereby improving function. This is a reasonable goal in my view. I am convinced that each treatment plan will achieve that goal. Dr. Fletcher’s February 26, 2015 Progress Note shows that a decrease in chiropractic treatment, massage therapy, and acupuncture coincide with a regression in rehabilitation. It follows that an increase in treatment at this point will likely improve rehabilitation, or at least stop the regression. In either instance, the outcome is a reasonable expectation for necessary treatment. While there may be a ceiling to the effectiveness of the treatment, I am satisfied that the six treatment plans in dispute do not jointly or severally breach that ceiling. Furthermore, I do not find that the cost for any of the treatment plans to be excessive. They are in a range of reasonable fees.

14Dr. Khaled’s position that the applicant requires no further facility based treatment for her physical pain is rejected. Care which relieves physical pain, and therefore improves function, is a legitimate medical and rehabilitative goal in the applicant’s case. It appears that Dr. Khaled is of a different view or did not turn his mind to this treatment goal when he authored his report and addenda. Because of this, I am in disagreement with Dr. Khaled and believe that further facility based treatment is reasonable for the applicant.

Surveillance

15The applicant was seen performing a number of tasks. Among them, she was observed carrying a paint can and painting a large door without any outward sign of discomfort. The respondent invites me to weigh this evidence in assessing the credibility of the applicant’s argument. I have considered the video footage and pictures of this movement, and Facebook images entered into evidence that Co-Operators submits show the applicant’s ability to engage in physical activity is not impaired. To be clear, the impairment in question is the radicular nerve pain around the applicant’s thoracic spine. In my view, nothing turns on the surveillance and Facebook images. The media do not undermine the credibility of the applicant’s submission that she needs rehabilitation benefits to treat the impairment to her thoracic spine. If the media is given the highest weight it can carry, in my view, it shows that the applicant is able to perform movements that may not align with the pain she describes to her chiropractor, Dr. Fletcher. However the surveillance and Facebook images do not, and indeed cannot, capture the sensation of pain that the applicant feels when she performs these movements. The applicant made this counter-submission and I find it convincing. As a result, the surveillance and Facebook images do not diminish the credibility of the applicant or her argument. Her ability to prove her entitlement to each of the six rehabilitation benefits remains.

Conclusion:

16The Applicant is entitled to payment for all six of the treatment plans for medical benefits set out above.