S.L. v. Pembridge Insurance Company, 2017 CanLII 12600

16-000393 v Pembridge Insurance Company

Date: 2017-02-21 Tribunal File Number: 16-000393/AABS Case Name: 16-000393 v Pembridge Insurance Company

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:

S.L. Applicant

and

Pembridge Insurance Company Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Derek Grant

Parties: Counsel for S. L.: Frank McNally Counsel for Pembridge: Ravinder Chahal

Order made by: Derek Grant, Member, Licence Appeal Tribunal Written Hearing: September 23, 2016

I. Overview:

1S. L., was injured in an automobile accident on January 6, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2S. L. made claims for medical and rehabilitation benefits, specifically for chiropractic and physiotherapy services, a pain management program, infusions, an exercise program and the cost of an occupational therapy assessment.

3Pembridge, denied S. L.’s claims for medical and rehabilitation benefits based on insurer’s examinations and assessments which indicated that the treatment plans were not reasonable and necessary. ¹

4Pembridge has paid $18,085.35 in funding for medical and rehabilitation treatment to S. L., of which $14,772.35 was used for physical treatments. Pembridge’s position is that the S. L.’s injuries, including chronic pain, are not a result of the accident, but rather the result of her pre-existing conditions: lumbar back condition and arthritis. Pembridge submits that S. L. has reached the maximum recovery for her accident related injuries and any further treatment of this type will not improve her condition.

5The onus is on S. L. to show on a balance of probabilities that her claims are reasonable and necessary. For the reasons that follow, I find that all of the requested treatment is reasonable and necessary, except for the EEG assessment.

II. Issues in dispute:

6The following are the issues in dispute:

a) Is S. L. entitled to a medical benefit for a chiropractic treatment plan (OCF-18) dated May 25, 2015 by Apollo Physical Therapy Centres in the amount of $1,665.00?

b) Is S. L. entitled to a medical benefit for a physiotherapy treatment plan (OCF-18) dated June 25, 2015 by Apollo Physical Therapy Centres in the amount of $3,658.76?

c) Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) dated November 4, 2015 for an EEG assessment by Seekers Centre for Integrative Medicine in the amount of $1,998.35?

d) Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) dated January 6, 2016 for a pain management program by Seekers Centre for Integrative Medicine in the amount of $3,163.00?

e) Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) dated November 27, 2015 for “infusions” by Seekers Centre for Integrative Medicine in the amount of $3,275.58?

f) Is S. L. entitled to a rehabilitation benefit for a treatment plan (OCF-18) dated December 11, 2015 for an exercise program by Fleming Fitness in the amount of $2,931.02?

g) Is S. L. entitled to a treatment plan (OCF-18) dated June 2, 2015 for the cost of an occupational therapy assessment by Ferland and Associates, in the amount of $1,806.18?

h) Is S. L. entitled to interest for the overdue payment of benefits?

III. Result:

7I find on all evidence that:

• S. L. is entitled to all the requested medical and rehabilitation benefits as a result of her chronic pain diagnosis, except for the EEG assessment as there was no evidence of any brain injury.

IV. Evidence and Analysis:

Is S. L.’s impairment (chronic pain) a result of the accident?

8In order to decide what further treatment S. L. requires, it is necessary to determine the following:

• Did the accident cause the impairment that S. L. suffers?

• If the answer to above is yes, then the question is whether the treatment plans listed are reasonable and necessary for relief from chronic pain.

9S. L. has lower back pain, which she claims has become chronic. S. L. has arthritis which was asymptomatic. Following the accident, S. L.’s back pain worsened and Pembridge funded several treatment plans regarding resolving these injuries.

10Pembridge’s position, based on Dr. Sharma’s report, is that S. L.’s impairment and chronic pain were not caused by the accident but rather from her pre-existing arthritis.

11There are two generally accepted tests in the case law for determining entitlement to benefits – the “but for” test and the “material contribution test” to establish causation. The “but for” test is the default test for causation, but the more appropriate test in this case is “material contribution” because of the claim that the accident triggered pre-existing arthritis and back pain resulting in chronic pain.

12“Material” is defined by the Supreme Court of Canada as more than minimal. The Ontario Court of Appeal stated the definition of “materially contributed” as being “a contributing factor is material if it falls outside the de minimis range”².

13This means that S. L. must establish that it is more likely than not, that the injuries sustained in the accident were more than a minimal contribution to the impairment she claims she suffers.

14This is a difficult case. S. L. claims that the accident was the only intervening event and therefore must have been the cause of her current impairment. Although there was no medical evidence that specifically attributes her chronic pain to the accident; I do have medical reports and assessments that confirm S. L. suffers from chronic pain. Further, the family doctor confirmed, the arthritis was asymptomatic prior to the accident. This is also confirmed in an assessment by Dr. Stants, Chiropractor.

15Pembridge claims, based on Dr. Sharma’s opinion, that S. L.’s injuries are not the cause of her impairment, but rather her arthritis. Dr. Sharma has not provided any corroborative evidence or explanation to support his conclusion.

16There is medical evidence to support S. L. is suffering from chronic pain. The term “chronic pain” is used in the Physiatrist, Dr. Francois Racine’s September 27, 2013 report. He had examined S.L. and concluded that she had “chronic lower back pain in the presence of degenerative changes that have become a source of pain.” He noted that she continues to experience low back pain since the accident despite regular physiotherapy.

17S. L. relies on the report of Dr. Malempati, Orthopaedic Surgeon. He performed an independent assessment on September 30, 2015. Dr. Malempati recommended S. L. continue “…with a multidisciplinary program in order to prevent deconditioning and deterioration of her injuries.

18Dr. Malempati diagnosed S. L. with “chronic myofascial strain to the lumbar spine with exacerbation of pre-existing degenerative disc disease (lower back) and chronic myofascial strain to the cervical spine.”

19Dr. Malempati’s report contains numerous errors and inconsistencies. For example, S. L. is named as “Mr. Hodge”, and refers to S. L. as “him” at various points of the report. Dr. Malempati noted that S. L. attended Montfort Hospital multiple times, approximately every six months, while the hospital records provided do not support this. The report notes that S. L. was unable to return to work for 2 years after the accident, which is contradicted by S. L.’s submissions that she returned to work as early as February 2012. The report also makes several references to S. L.’s inability to perform housekeeping duties which are contradicted by S. L.’s statements to the Chiropractor Dr. Stants, Occupational Therapist Ron Wiltshire, Dr. Wilson, and Dr. Sharma.

20I have placed less weight on Dr. Malempati’s report because of these errors and inconsistencies. However, as it is the main report that S. L. relies upon, I have considered the medical findings stated in it only where those findings are supported by the reports submitted by other medical specialists, whom I find to be reliable.

21Several of Pembridge’s assessors also identified chronic pain issues. An examination by Dr. Gardiner, on behalf of the insurer, dated June 29, 2015, “diagnosed her with myofascial pain syndrome in cervical and lumbar spine. Dr. Gardiner said that "this lady has tried a number of different modalities for her myofascial pain syndrome which is chronic in nature”. The insurer examination of Dr. Wilson dated December 14, 2012, indicates “it is entirely possible that the insured will have at least some chronic, residual lower back impairment at the end of her active treatment phase. Medical experts for S. L., Dr. Nahas and Pembridge, Dr. Stants have also raised concerns about S. L.’s chronic pain issues.

22Considering the documentary evidence before me, there is sufficient evidence to support a finding that S. L. suffers from chronic pain. In my view this chronic pain is a result of the accident as S. L.’s conditions were mostly asymptomatic prior to the accident.

23S. L. has made claims for chiropractic and physiotherapy services, a pain management program, an electroencephalogram (EEG) assessment, infusions, an exercise program and the cost of an occupational therapy assessment. I find that further treatment is required to address S. L.’s chronic pain as set out in the reasons below.

Is S. L. entitled to a medical benefit for chiropractic and physiotherapy services?

24I find that further chiropractic and physiotherapy treatment would be beneficial to S. L. The clinical notes and records from Live Well indicated that S. L.’s symptoms were improving because of the chiropractic treatments. When the treatments were stopped, the pain returned. The clinical notes and records of Dr. Jean-Pierre Morissey, Family Physician, show an increase in her pain after S. L. discontinued the treatment due to a lack of funding from the insurer.

25Regarding physiotherapy treatment, Steve Savage, Physiotherapist, and Dr. Racine, Physiatrist, recommended physiotherapy treatments to address S. L.’s back pain. S. L. stopped receiving treatment as Pembridge was no longer willing to fund treatment. Approximately a year after she stopped receiving treatment, she had to go to the emergency room due to severe back pain.

26Pembridge disputes that the chiropractic and physiotherapy treatment are reasonable and necessary based on the s. 44 report of Dr. Sharma, Orthopaedic Surgeon, dated July 29, 2015. Dr. Sharma wrote “her symptoms in her lumbar are more likely due to the progression of arthritis and not continued symptoms from her accident related injuries.”

27In my view, Dr. Sharma’s report does not provide any objective medical evidence to establish that any pre-existing arthritis that S. L. had would have naturally progressed to that extent without material contribution from her accident-related injuries.

28I am persuaded that the accident materially contributed to her pre-existing condition that has now become chronic.

29With a diagnosis of chronic pain, I am of the view that further treatment is both reasonable and necessary as pain relief is a legitimate reason to continue therapy and S. L.’s position improved when she received treatment.

30I find that S. L. is entitled to the medical benefits of the May 25, 2015 chiropractic treatment plan and June 25, 2015 physiotherapy treatment plan.

Is S. L. entitled to an EEG Assessment?

31The claimed benefit, an electroencephalogram (EEG), is a test used to detect abnormalities related to electrical activity of the brain by tracking and recording brain wave patterns. Dr. Richard Nahas, Occupational Therapist, requested the EEG and Pembridge submit that the request appears to be for the purpose of determining whether S. L. has suffered a traumatic brain injury.

32Pembridge submits that there are very few complaints of headaches in S. L.’s medical reports, including those of her family physician Dr. Morrissey, in the years following her accident. There is no requisition for an EEG in Dr. Morrissey’s file. I note that S. L. has made no submissions suggesting she suffered any type of significant brain injury.

33Furthermore, the clinical notes and records S. L. relies on do not indicate a head injury of any kind, and the reports of Dr. Morrissey, Dr. Malempati, and Dr. Gardiner, all refer to lumbar injuries without mention of head injuries.

34An assessment done by Dr. Stants for Pembridge describes S. L.’s symptoms as “headaches (intermittent 3-4 times per week)” diagnosed as cariogenic or neck pain triggered headaches.

35S. L. suffered neck and lower back injuries, and the evidence of Drs. Wilson, Sharma, and Morrissey all confirm headaches that have symptoms generally associated with these types of physical injuries to the neck and lower back. The doctors’ reports show no symptoms that accompany the type of brain trauma the EEG is used to test for, such as dizziness, nausea, or neurological symptoms

36S. L.’s medical records, taken together with the reports submitted by Pembridge, indicate that S. L.’s headaches are not related to a traumatic brain injury. As such, I find that S. L. has not established that the EEG is either reasonable or necessary.

Is S. L. entitled to a Pain Management Program?

37I have established that S. L. suffers from chronic pain as a result of the accident.

38This treatment plan has the goal of helping S. L. with pain management, maintenance of her function and prevention of further deterioration of her condition. As such, I find that the treatment plan for the pain management program is reasonable and necessary.

Is S. L. entitled to Lidocaine Infusions?

39S. L. relied on a treatment plan recommended by Dr. Nahas, which details the purpose of the treatment by Lidocaine infusions for dealing with chronic pain. Dr. Nahas’ report points to the use of Lidocaine in many different long lasting chronic pain conditions. Speaking to the benefits of the treatment for S. L., Dr. Nahas states,

“At the Seekers Centre, the infusion is made more effective by adding magnesium and vitamin b12, which reduces muscle spasm and improves nerve function. The infusions are administered every 1 - 2 weeks, and lead to improved function, reduced pain and faster recovery after stress and physical exercise. This allows patients to reduce medication use and Increase activity at work and home”.

40I find that S. L. suffers from chronic pain as a result of the accident and as I indicated earlier, it is well accepted that pain relief is a legitimate goal of dealing with chronic pain, even if it does not promote recovery.

41As such, I find that S. L. is entitled to the medical benefit detailed in the treatment plan (OCF-18) dated November 27, 2015 for lidocaine infusions.

Is S. L. entitled to an exercise program?

42I find that S. L. is entitled to a rehabilitation benefit for an exercise program.

43The Schedule accommodates all reasonable and necessary costs caused by or for the insured person in undertaking exercises and measures that are sensible and essential with the end goal of decreasing the impacts of any inability coming about because of an accident or to encourage the individual's reintegration into his or her family.

44Dr. Wilson’s report dated December 14, 2012 states “[S. L.] attended treatment three times per week consisting of modalities, massage and exercise therapy. The treatments began and continued until May of 2012, at which time they were reduced to twice weekly for the months of May and June 2012. With symptoms persisting, the treatments were again increased to three times weekly from July to October 2012, then stopped abruptly due to insurance coverage issues”.

45In Dr. Wilson’s report, he indicates that S. L. reported not being able to exercise, cycle or participate in physical activities with her children. Dr. Wilson recommended an exercise program to help address her back injury, which were helpful to S. L.

46Pembridge funded previous exercise programs, but denied the most recent program based on Dr. Sharma’s report that S. L. had reached maximum recovery for her accident related injuries.

47I have established that S. L.’s back and neck pain were exacerbated by the accident and she has not recovered from these injuries, which have now become chronic. As such, I find that the exercise program is reasonable and necessary in order for S. L. to strengthen her back and neck, prevent further injury, and attempt to return to her pre-accident activities. I find that S. L. would benefit from a structured program --- a program that allows her to find a suitable and comfortable routine that she is able to perform without pain.

Is S. L. entitled to an Occupational Therapy Assessment?

48An occupational therapy treatment plan was submitted by Sebastien Ferland, Occupational Therapist, in June 2015 for an in-home assessment which would inform his treatment. Pembridge denied the assessment following an insurer’s medical examination (IME) by Ms. Mayer dated August 12, 2015. S. L. submits the occupational therapy (OT) treatment plan was denied as not reasonable and necessary even though Ms. Mayer stated that “it is the opinion of this therapist that she would benefit from OT for home and office ergonomic assessment and intervention to prevent injury and aggravating due to pain symptoms”. It is the submission of S. L. that Ms. Mayer is very clear in saying that there is a need for OT treatment, but treatment should be provided without an assessment.

49S. L. maintains that it is common practice for an occupational therapist to start with a broad assessment which helps inform their treatment and what specific areas they should focus on.

50Pembridge is relying on a report which indicates that S. L. requires treatment, and yet finds that an assessment to determine the appropriate type of treatment is not reasonable and necessary. I do not agree with this position.

51I find that the assessment is required in order to properly assess S. L.’s needs. As such, I find that the assessment is both reasonable and necessary.

Does the Surveillance video support Pembridge’s position that S. L. is not entitled to further medical and rehabilitation benefits?

52Pembridge relied on surveillance video to support its position that S. L. is not entitled to further funding for medical treatment of accident related injuries. The videos show S. L. going to and from her home; as well as Tim Horton’s, going to an event with her son in addition to and from what appears to be her place(s) of employment. At times she is shown as the driver of a vehicle, and also walking.

53My review and assessment of the surveillance video shows nothing more than seeing S. L. participate in various activities. At most, the surveillance video is inconclusive, and therefore, I do not place any weight on it for the purposes of determining the reasonableness and necessity of further treatment.

Is S. L. entitled to interest on overdue payments?

54I find that S. L. is entitled to interest on all applicable benefits.

V. Order:

55I order the following:

a) S. L. is entitled to a medical benefit for a chiropractic treatment plan (OCF-18) dated May 25, 2015 by Apollo Physical Therapy Centres in the amount of $1,665.00.

b) S. L. is entitled to a medical benefit for a physiotherapy treatment plan (OCF-18) dated June 25, 2015 by Apollo Physical Therapy Centres in the amount of $3,658.76.

c) S. L. is not entitled to a medical benefit for a treatment plan (OCF-18) dated November 4, 2015 for an EEG assessment by Seekers Centre for Integrative Medicine in the amount of $1,998.35.

d) S. L. is entitled to a medical benefit for a treatment plan (OCF-18) dated January 6, 2016 for a pain management program by Seekers Centre for Integrative Medicine in the amount of $3,163.00.

e) S. L. is entitled to a medical benefit for a treatment plan (OCF-18) dated November 27, 2015 for Lidocaine infusions by Seekers Centre for Integrative Medicine in the amount of $3,275.58.

f) S. L. is entitled to a rehabilitation benefit for a treatment plan (OCF-18) dated December 11, 2015 for an exercise program by Fleming Fitness in the amount of $2,931.02.

g) S. L. is entitled to a treatment plan (OCF-18) dated June 2, 2015 for the cost of an occupational therapy assessment by Ferland and Associates, in the amount of $1,806.18.

h) S. L. is entitled to interest on all applicable claimed benefits.

Footnotes

1. 1Assessments conducted by Dr. S. Sharma, Orthopaedic Surgeon, Mr. Ron Wiltshire, Occupational Therapist, Ms. Melanie Mayer, Occupational Therapist, Dr. Carlan Stants, Chiropractor, and Dr. Don Wilson, MD.
2. 2Monks v. ING Insurance Company of Canada, 2008 ONCA 269