In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
L.Q.
Applicant
and
Aviva General Insurance
Respondent
Decision
Adjudicator: Nicole Treksler
Applicant: L.Q.
Representative of the Insurance Company: Ajay Shulka
Counsel for the Insurance Company: Kate Meyers
Mandarin Interpreter: C.Z.
Heard in-person: June 8, 2017
OVERVIEW
The applicant, L.Q. was injured in an automobile accident on February 10, 2007, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (the ''Schedule'').
The applicant is self-represented.
According to the applicant, she has the following conditions:
i. Whiplash;
ii. Fibromyalgia; and
iii. “Windy poison”
As a result of these diagnoses, the applicant submits that she requires treatment.
At the case conference on February 22, 2017, the adjudicator identified a treatment plan dated September 26, 2016 for $4,493.71 for chiropractic services. In addition to the treatment plan, the applicant indicated that the Tribunal has the jurisdiction to make the respondent pay for her pain and suffering and for all the out-of-pocket expenses she has incurred since the accident.
At the hearing, the applicant reasserted that I have the “power” to grant her compensation for her pain and suffering and all of her expenses that she has incurred after the accident.
I explained to the applicant that I only have the jurisdiction to hear evidence about the treatment plan for chiropractic services for $4,493.71 and that I do not have the jurisdiction to address her additional concerns.
The applicant indicated that she understood but did not agree with my position.
The respondent denied the treatment plan on the basis that Dr. Oleg Safir, an orthopaedic surgeon, opined that there was “no objective evidence of any functional musculoskeletal impairment as a result of the motor vehicle accident” in his report dated November 2, 2012.
The respondent acknowledges that Dr. Safir’s report examined a treatment plan for physiotherapy dated August 29, 2012 and that the report is dated. However, the respondent’s position is that I should give weight to the report because it refers to the applicant’s physical condition, which has not changed.
Further, the respondent submits that the onus is on the applicant, based on a balance of probabilities, to show that the treatment plan is reasonable and necessary.
ISSUES
- The following is the issue identified in the Tribunal’s order dated March 1, 2017:
i. Is the applicant entitled to a medical benefit in the amount of $4,493.71 for chiropractic treatment recommended by Georgia Palantaz in a treatment and assessment plan (OCF-18) dated September 26, 2016 and denied by the respondent on October 17, 2016.
RESULT
- The applicant is not entitled to payment of the treatment plan for chiropractic services in the amount of $4,493.71. The applicant failed to show that the treatment plan is reasonable and necessary.
ANALYSIS
a) Is the treatment plan reasonable and necessary?
LAW
Under section 14 of the Schedule, the test to determine entitlement to medical benefits is whether the treatment plan is reasonable and necessary.
I explained to the applicant that she must prove that she is entitled to the benefit and that she must provide evidence to support her claim. The applicant submitted a document brief. At the hearing, I went through each document with the applicant to determine its relevance.
I determined that the following documents may have some relevance to determine whether or not the treatment plan was reasonable and necessary:
i. Medical note from Dr. Jiun-An Lai, family physician, dated August 19, 2016;
ii. Ambulance Call Report dated March 24, 2009;
iii. Personal statement of the applicant regarding her “windy disease,” document not dated;
iv. Letter from Dr. S.W. Joseph Wong to the College of Physicians and Surgeons of Ontario dated January 20, 2016;
v. Treatment plan for chiropractic services in the amount of $4,493.71; and
vi. Dr. Oleg Safir’s orthopaedic report dated November 2, 2012.
- In order to be successful in her claim, I advised the applicant that she must show that:
i. her injuries were the result of the motor vehicle accident; and
ii. the treatment that she is seeking is reasonable and necessary to treat her injuries.
- Regarding whether the applicant’s injuries were a result of the accident, the applicant claims that she has three conditions: whiplash, fibromyalgia and “windy poison”.
Dr. Lai’s medical note
In Dr. Lai’s medical note, he states that the applicant experiences frequent episodes of fatigue, headache/dizziness, chest pain, neck/upper and lower back pain with radiation up to the arms and legs, excessive nose bleeds and extremity weakness. Dr. Lai indicates that the applicant’s motor vehicle accident in December 2002 and February 2007 have worsened her medical conditions. Dr. Lai does not make any reference to whiplash, fibromyalgia or windy poison in his letter.
The injuries that Dr. Lai identifies do not indicate how nor which accidents have contributed to her existing injuries. He did not establish a causal link between her injuries and the 2007 accident. In addition, he did not recommend any treatment for the applicant.
It would have been helpful if the applicant had submitted Dr. Lai’s clinical notes and records (CNRs) to have a record of the applicant’s complaints and injuries.
Dr. Wong’s letter
I did not find that Dr. Wong’s letter to be relevant in this case for the reasons that follow.
In Dr. Wong’s letter, he indicated that he believed that the applicant had fibromyalgia. Dr. Wong also did not prescribe any treatment other than medication to the applicant in order to treat her pain.
The applicant did not provide any of the CNRs of Dr. Wong or any other evidence setting out the applicant’s complaints and injuries. Based solely on Dr. Wong’s letter, I was not able to make a causal link between the fibromyalgia and the motor vehicle accidents in 2002 and 2007. Further, I was not able to determine how the treatment plan in dispute would address her injuries.
Applicant’s personal statement
The applicant submitted a personal statement about her “windy poison” along with photos. The applicant claimed that the 2007 accident caused her “windy poison”.
It was not clear to me what “windy poison” is. She indicated that the “windy poison” caused bruising all over her body. In her personal statement, she had pictures of her body with bruising on all her extremities. I asked who diagnosed her with “windy poison”. In the applicant’s testimony, she indicated that she self- diagnosed the disease with the assistance of a physician specialized in traditional Chinese orthopedics, Mr. J.Z.. Mr. J.Z. provided a written statement about the applicant’s injuries. He did not mention “windy poison”, but indicated that her injuries, including whiplash, were caused by the two car accidents. I gave no weight to Mr. J.Z.’s statement because I did not have any evidence of his credentials. Even if the applicant were able to verify Mr. J.Z.’s credentials, Mr. J.Z. did not persuade me that the applicant’s current claimed injuries were a direct result of her 2007 accident.
FINDINGS
Even though I believe the applicant has medical conditions, the applicant did not provide any persuasive evidence that her injuries, specifically “windy poison” and fibromyalgia, were caused or exacerbated by the 2007 accident.
In Dr. Safir’s 2012 report, he diagnosed the applicant with whiplash. As such, it was an injury that can be verified that was a direct result of the accident.
The applicant has not provided any evidence to support her position that the “windy poison” and fibromyalgia were a direct result of the accident. As such, the treatment plan is not reasonable and necessary because the applicant did not show that injuries were a result of the accident.
The applicant’s whiplash of 2012 is a direct result of the accident, but the applicant did not provide any objective medical opinion to support that the chiropractic treatment would improve or resolve her injuries.
The respondent relied on Dr. Safir’s 2012 orthopaedic assessment. I note that the assessment was dated and referred to another treatment plan, but it did indicate Dr. Safir’s diagnosis of the applicant’s whiplash. Dr. Safir concluded that any passive or active treatment would not improve her condition even back in 2012.
The onus is on the applicant to prove that the treatment plan was reasonable and necessary and she has not met that onus.
Therefore, the respondent is not required to pay for the treatment plan in dispute.
ORDER
I order the following:
- The applicant is not entitled to the treatment plan for chiropractic services in the amount of $4,493.71
Released: October 12, 2017
Nicole Treksler
Adjudicator