S. S. v. Northbridge Personal Insurance Corporation, 2017 CanLII 19189

Licence Appeal Tribunal

Date: 2017-03-14

Tribunal File Number: 16-000960/AABS

Case Name: 16-000960 v Northbridge Personal Insurance Corporation

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. S.

Applicant

and

Northbridge Personal Insurance Corporation

Respondent

DECISION

Adjudicator: Jeanie Theoharis

Written Submissions By:

Counsel for the Applicant: Mark Irish

Counsel for the Respondent: Belvin Shores

Heard in writing: November 18, 2016

Overview

1. S.S. (the “Applicant”) was injured in an automobile accident on August 28, 2015. The automobile was insured by Northbridge Personal Insurance Corporation (the “Respondent”).

2. The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, (the “Schedule”).

3. The parties were unable to resolve their dispute at a case conference held on September 19, 2016, and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal by November 14, 2016. A review of those documents forms the basis of this decision.

Background

4. The Applicant was injured as a result of the accident. Since that time, the Applicant submitted and the Respondent approved approximately $27,164.23 of medical and rehabilitation benefits. Of this amount, $19,877.27 has been incurred by the Applicant for treatment including, massage therapy, chiropractic, physiotherapy, assistive devices, TMJ treatment and psychological treatment. The Applicant currently has six treatment plans for medical benefits which have been denied by the Respondent and are the subject of this application.

5. The Applicant submits that her injuries continue to require treatment. The Applicant submits that the treatment recommended by her treating health practitioners should be approved to permit her the opportunity to recover from the injuries sustained in the motor vehicle accident.

6. The Respondent submits that the injuries sustained from the motor vehicle accident have been addressed. The Respondent further submits that the treatment plans are to treat the Applicant’s ailments that she had prior to the accident, and/or were not caused by the accident. As such, the Respondent denied the treatment plans because they were not reasonable or necessary.

Benefits in Dispute

7. The benefits in dispute are:

(i) Is the Applicant entitled to receive a medical benefit for chiropractic services recommended by Dr. Curtis Seeley, chiropractor, from Koch & Associates Spine Centre in the amount of $2,487.00, in a treatment plan dated September 18, 2015?

(ii) Is the Applicant entitled to receive a medical benefit for physiotherapy services recommended by Dr. Roberta Koch, chiropractor, from Koch & Associates Spine Centre in the amount of $2,439.10, in a treatment plan dated December 8, 2015?

(iii) Is the Applicant entitled to receive a medical benefit for up to five splints and other dental services recommend by Dr. Victor Schacher, dentist, in the amount of $2,950.00, in a treatment plan dated February 24, 2016? (This treatment was originally for $3,950.00 and was partially approved in the amount of $1,000.00. The remaining amount of $2,950.00 is the balance in dispute)

(iv) Is the Applicant entitled to receive a medical benefit for physiotherapy services recommended by Dr. Roberta Koch, chiropractor, from Koch & Associates Spine Centre in the amount of $1,449.10, in a treatment plan dated February 25, 2016?

(v) Is the Applicant entitled to receive a medical benefit for psychological services recommended by Dr. Ronald Kaplan, psychologist, from Kaplan Psychologists for $5,201.22, in a treatment plan dated April 19, 2016? (The treatment plan was originally for $6,598.11, and was partially approved for $1,396.89. The remaining amount of $5,201.22 is the balance in dispute.)

(vi) Is the Applicant entitled to receive a medical benefit for active release treatment recommended by Dr. Roger Singh, chiropractor, from Koch & Associates Spine Centre and also recommended by Alessandra Speziale, massage therapist, from Koch and Associates Spine Centre in the amount of $979.05, in a treatment plan dated April 26, 2016?

(vii) Is the Applicant entitled to interest for the overdue payment regarding the claimed benefits?

Result

8. Based on a review of the evidence presented, I find that the Applicant is entitled to the following:

i. $2,487.00 for chiropractic treatment;

ii. $2,439.10 for physiotherapy services;

iii. $2,950.00 for dental splints and dental services;

iv. $1,449.10 for physiotherapy services;

v. $1,396.89 for psychological services, as was previously approved;

vi. $979.05 for active release treatment; and

vii. Interest on the outstanding benefits.

EVIDENCE AND ANALYSIS

Law

9. Sections 14 and 15 of the Schedule requires the respondent to pay for medical benefits to or on behalf of the applicant so long as:

i. The applicant sustains an impairment as a result of the accident; and

ii. The medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

Background

10. The Applicant was in an automobile accident on August 28, 2015. On August 31, 2015, the Applicant attended at the Stonechurch Family Health Centre to see Dr. Henry Siu, her family physician. At the appointment, she informed her physician that she was involved in a car accident, her face hit the vehicle’s centre console, and she did not lose consciousness. She was sent for an x-ray of her left foot/ankle, and advised to stay off work until September 8, 2015.

11. The parties agree that the Applicant sustained impairment to her left foot because of the accident.

12. The Applicant submits that in addition to her left foot injury, she also injured her jaw, shoulder and back.

13. The Applicant seeks to obtain medical benefits. The treatments include dental, chiropractic, psychological, and physiotherapy services. It is not contested that these are medical benefits. The Applicant submits that the treatments are reasonable and necessary to treat her accident related injuries.

14. The Respondent submits that the Applicant’s jaw, back and shoulder impairments were not as a result of the accident, and alternatively, that the treatments are not reasonable and necessary.

Issue to be Determined

15. The first issue to be determined is whether the Applicant’s injuries resulted from the accident?

16. If the answer to issue one is yes, then I must determine if each treatment plan is reasonable and necessary.

Analysis

17. The Applicant has the burden of proof to establish that the treatment plans are reasonable and necessary to treat the Applicant’s accident-related injuries.

(i) Are the Applicant’s injuries a result of the accident?

18. The Applicant submits that she sustained back, shoulder, jaw and foot injuries as a result of the accident. The Respondent submits that the Applicant’s injury to her shoulder and back are not as a result of the accident and that the Applicant had back and shoulder pain prior to the accident. I find that the Applicant’s injuries to her shoulder and back were as a result of the accident.

19. The Applicant’s pre-accident clinical notes and records from 2013 indicate that the Applicant did have some occasional physiotherapy and chiropractic care to address back pain and to help the Applicant strengthen her core back muscles. She attended two physiotherapy sessions to address an “achy” and “stiff” shoulder. Although the Applicant’s family doctor noted “chronic back pain” there is no further indication that other testing was conducted to establish a diagnosis of chronic back pain that her back or shoulder pain persisted beyond 2013, or that treatment continued.

20. The Applicant’s post-accident medical records indicate that the Applicant after the accident she sustained impairments to her shoulder and back. There is ample evidence to show that the Applicant’s shoulder and back injuries resulted from the accident. Three days after the accident, the Applicant advised her family doctor that she had shoulder pain; and in a treatment plan dated, September 18, 2015, it states the Applicant complained of “pain in the lumbar spine along with numbness and tingling in both legs to the feet” and “pain and weakness in the right shoulder.” Also, a radiologist report, dated October 21, 2015, resulting from an ultrasound of the Applicant’s right shoulder concluded that the Applicant had a “partial thickness tear at the footplate of the supraspinatus tendon.” Moreover, the Applicant, on February 25, 2016, also consulted with Dr. Matthew Denkers, orthopaedic surgeon. Dr. Denkers noted in his report that the Applicant was “referred with right shoulder pain, traumatic in onset, … when she was a belted passenger involved in a motor vehicle collision, struck head-on in the driver’s side front corner.”

21. I am satisfied that the Applicant’s back and shoulder injuries are a result of the accident. The impairment is significantly different than the “achy” and “stiff” feeling the Applicant felt on her shoulder and back prior to the accident. Having found the injuries resulted from the accident, the next step in the analysis is to determine whether the treatment plans are reasonable and necessary.

(ii) Are the treatment plans reasonable and necessary?

22. The treatment plans for chiropractic, physiotherapy, and active release treatment were similar in their notation regarding the Applicant’s injuries sustained due to the accident, the goals of treatment, and the barriers to recovery.

23. The treatment plans indicate that the Applicant sustained the following injuries as a direct result of the accident: WAD3 with a complaint of neck pain with neurological signs, injury to the ankle and foot /fracture of cuneiform bone, sprain and strain of ribs, sternum and lumbar spine, disc disorder with radiculopathy, rotator cuff syndrome, sprain and strain of the thoracic spine and knee, temporomandibular joint (TMJ) disorders, concussion, chronic post-traumatic headache, anxiety disorder, and nonorganic sleep disorders. The goals of the treatment included to reduce pain, increase in strength and increased range of motion. A barrier to recovery was noted as the Applicant’s psycho-social complications.

First Treatment Plan: Is the Applicant entitled to receive a medical benefit for chiropractic services recommended by Dr. Curtis Seeley, chiropractor, from Koch & Associates Spine Centre for $2,487.00, in a treatment plan dated September 18, 2015?

24. Dr. Curtis Seeley, chiropractor, at Koch and Associates Spine Centre, completed the treatment plan, dated September 18, 2015. He noted that Dr. Sui, MD, referred the Applicant to an Occupational Therapist, psychologist and Dr. V. Schacher, TMJ specialist. The treatment plan proposed 24 sessions of physical rehabilitation to be provided by Dr. Seeley, chiropractor.

25. On December 7, 2015, the Respondent denied the treatment plan relying on an insurer’s examination report by Dr. Greg Jaroszynski, orthopaedic surgeon, dated November 27, 2015. The Respondent, relying on the report, informed the Applicant that the denial was based on the report’s conclusion that the treatment was not reasonable and necessary, and that further treatment is not needed because there will be no impact on resolution of the Applicant’s residual symptoms/impairments with further treatment.

26. I find the treatment plan to be reasonable and necessary. The Applicant’s injuries are not minor injuries. The Applicant continues to be in pain, and the pain associated with her impairments inhibits her daily activities. Dr. Jaroszynski opined that the Applicant continues to report significant symptoms and she is on her way to recovery, and suggests that she would be best to return to normal life activities. However, with the presence of pain, the Applicant is unable to return to normal life activities. She expressed to Dr. Jaroszynski that she is unable to attend to her prior work duties due to pain, and that the pain increases when she engages in daily activities. One of the goals of treatment is to reduce pain so that she is able to engage in daily activities. I find that the treatment is reasonable and necessary to address the Applicant’s impairments.

Second Treatment Plan: Is the Applicant entitled to receive a medical benefit for physiotherapy services recommended by Dr. Roberta Koch, chiropractor, from Koch & Associates Spine Centre for $2,439.10, in a treatment plan dated December 8, 2015?

27. Dr. Roberta Koch, a chiropractor at Koch and Associates Spine Centre, completed the treatment plan, dated December 8, 2015. She evaluated the Applicant and opined that the Applicant had not yet reached maximum medical recovery nor has she reached pre-accident status. In addition to the psycho-social barrier noted above, Dr. Koch was also of the opinion that further barriers included evidence of radiculopathy, and foot fracture. She recommended that the Applicant continue physical therapy directed at the impairments. She also noted that Dr. Sui, MD, referred the Applicant to an Occupational Therapist, psychologist and TMJ specialist. The treatment plan proposed 24 sessions of physical rehabilitation to be provided by Karen Day, physiotherapist.

28. On March 25, 2016, the Respondent denied the treatment plan stating that the treatment was not reasonable and necessary. The Respondent relied on an addendum report authored by Dr. Greg Jaroszynski, orthopaedic surgeon, dated January 12, 2016, to support their denial.

29. I find the treatment plan to be reasonable and necessary. The plan proposes treatment to reduce pain, increase strength and increase range of motion. The medical evidence indicates that the Applicant continues to have pain, and the pain inhibits her daily activities. The Applicant’s pain also interferes with the Applicant’s psychological well-being. Moreover, she indicates feeling weakness in her legs when she tries to perform a squat, and a goal of treatment was to increase strength. The plan proposes treatment that will reduce pain, increase strength and range of motion. The treatment is reasonable and necessary.

Third Treatment Plan: Is the Applicant entitled to receive a medical benefit for up to five splints and other dental services recommend by Dr. Victor Schacher, dentist, for $2,950.00, in a treatment plan dated February 24, 2016? (This treatment plan was originally for $3,950.00 and $1,000.00 was partially approved. The remaining amount of $2,950.00 is the balance in dispute)

30. The treatment plan, dated February 24, 2016, was completed by Dr. Victor Schacher, dentist and also a temporomandibular joint (TMJ) specialist. Upon examining the Applicant, Dr. Schacher determined that the Applicant sustained a TMJ disorder injury. He recommended splint treatment to reduce pain, increased range of motion and decrease headaches. The treatment plan included “all splints (up to 5), all adjustments, all adjustment appoints., all lab fees, and diagnostic records and consultations. Multiple splints are required and it would not be helpful for the patient’s progress to stop treatment when a new splint is required while awaiting additional approvals.”

31. On March 7, 2016, the Respondent denied the treatment plan stating that supporting/compelling documentation has not been provided to warrant that this type of treatment is required. The explanation of benefits also noted that a dental insurer’s examination was scheduled for March 21, 2016.

32. On April 15, 2016, the Respondent partially approved the treatment plan which proposed splint therapy. The Respondent noted in the explanation of benefits that the treatment was “partially reasonable and necessary in the amount of approximately $1,000.00 including 1 splint, all adjustment appointments, all lab fees, and diagnostic records and consultation.” They also relied on an insurer’s examination dental report from Dr. Eli Shem-Tov dated April 1, 2016.

33. Upon review of the medical reports I find that the proposed treatment recommended by Dr. Schacher is reasonable and necessary. Dr. Schacher is a specialist in TMJ injuries. Both doctors acknowledge that some form of splint therapy is required. Dr. Schacher determined that the Applicant’s injury may require up to 5 splints, and that her progress would be impeded if new splints were delayed pending approval. As such, I find that Dr. Schacher’s treatment to provide up to 5 splints with uninterrupted treatment delays is reasonable and necessary to ensure that the Applicant’s injuries resolve.

Fourth Treatment Plan: Is the Applicant entitled to receive a medical benefit for physiotherapy services recommended by Dr. Roberta Koch, chiropractor, from Koch & Associates Spine Centre in the amount of $1,449.10, in a treatment plan dated February 25, 2016?

34. Dr. Roberta Koch, a chiropractor at Koch and Associates Spine Centre, completed the treatment plan, dated February 25, 2016. She evaluated the Applicant and opined that the Applicant required temporomandibular rehabilitation for her TMJ disorder as recommended by Dr. Schacher. In addition to the psycho-social barrier noted above, Dr. Koch was also of the opinion that further barriers included evidence of radiculopathy, and foot fracture. She recommended that the Applicant receive physical management, including myofascial release for TMJ joint and soft tissue disorder as diagnosed by Dr. Schacher. The treatment plan proposed 18 sessions of therapy to multiple body sites to be provided by Dr. Roger Singh, chiropractor.

35. On April 15, 2016, the Respondent denied the treatment plan stating that the treatment was not reasonable and necessary. The Respondent relied on an insurer’s examination report by Dr. Eli Shem-Tov dated April 1, 2016, to support their denial of this treatment plan.

36. I accept Dr. Schacher’s opinion over that of Dr. Shem-Tov. Dr. Schacher is a certified specialist in orthodontics and a TMJ specialist, whereas Dr. Shem-Tov is not. Dr. Schacher opined that a chiropractor is able to adjust and treat the musculoskeletal structures near and around the TMJ joint, such that it would allow for proper movement. I find this treatment plan is reasonable and necessary to treat the Applicant’s accident related impairment.

Fifth Treatment Plan: Is the Applicant entitled to receive a medical benefit for psychological services recommended by Dr. Ronald Kaplan, psychologist, from Kaplan Psychologists in the amount of $5,201.22, in a treatment plan dated April 19, 2016? (The treatment plan was originally for $6,598.11, and was partially approved in the amount of $1,396.89. The remaining amount of $5,201.22 is the balance in dispute.)

37. Dr. Ronald Kaplan, psychologist at Kaplan Psychologists, completed the treatment plan, dated April 19, 2016. Dr. Kaplan notes that the Applicant sustained the following injuries as a direct result of the accident: post-traumatic stress disorder, unhappiness, chronic pain, malaise and fatigue, symptoms and signs involving cognitive functions and awareness, physical and mental strain related to work, limitation of activity due to disability. The goals of the treatment aim “to restore function, provide symptom relief and reduce impairments.” He also indicates that the treatment “will continue to focus on resuming activities of normal living and pre-accident work activities, where possible.” His evaluation of the Application indicates that the Applicant’s “progress over this brief treatment plan has been the development of awareness of and increased openness in addressing the effects of the MVA on her psychological and physical well-being and the impact on her functional abilities. She now requires sessions to continue progress, and to address specific intervention for her diagnosed conditions.” The treatment plan proposed 20 sessions of mental health therapy, one session to test for mental health and addictions, educational material and support activity documentation. He anticipated that the program would take 7-10 months to complete.

38. On May 12, 2016, the Respondent partially approved the treatment plan for $1,396.89, which included 6 one-hour counselling sessions, and a two-hour progress report. The Respondent relied on a report authored by Dr. Hannah Rockman, psychologist, dated May 11, 2016, to support their position.

39. Both doctors agree that the Applicant requires treatment. The doctors disagree as to the number of treatment sessions that are required.

40. I find that Dr. Hannah Rockman’s recommendation of 6 one-hour counselling sessions at a total cost of $1,396.89 to be reasonable and necessary. I further find Dr. Kaplan’s request for a total of 20 sessions at 1.5 hours each in duration to be excessive.

41. The Respondent, in a prior treatment plan, previously approved 8 one-hour counselling sessions for the Applicant’s treatment. Since that time, the Applicant has only attended 4 of the sessions. The Applicant was then approved a further 6 one-hour counselling sessions, and now seeks the remaining 14 sessions from the April 19, 2016 treatment plan which the Respondent did not approve. Upon reading the reports, there is no indication that the Applicant has exhibited a significant change in her symptoms that would require a further 14 sessions. The Applicant acknowledged that she is getting better, in that her symptoms are resolving, and her feelings of anxiousness and fearful thoughts about her mother are decreasing. The one contributing factor that seems to limit the Applicant’s activities the most, such as walking, socializing, sleep, is the fact that she continues to have pain. I agree with Dr. Hannah Rockman’s recommendation that she appears to be on her way to recovery. The Applicant’s request for the remaining 14 counselling sessions in the amount of $5,201.22 is not reasonable and necessary.

Sixth Treatment Plan: Is the Applicant entitled to receive a medical benefit for active release treatment recommended by Dr. Roger Singh, chiropractor, from Koch & Associates Spine Centre and by Alessandra Speziale, massage therapist, from Koch and Associates Spine Centre in the amount of $979.05, in a treatment plan dated April 26, 2016?

42. The treatment plan, dated April 26, 2016, was completed by Dr. Roger Singh, chiropractor, and by Alessandra Speziale, massage therapist, at Koch and Associates Spine Centre. Ms. Speziale evaluated the Applicant and opined that the Applicant’s “range of motion has increased and pain has decreased, however, pain is still present, subjective and objective improvements have been noted.” The barriers to recovery were the Applicant’s psycho-social complications, evidence of radiculopathy and foot fracture. It is recommended that the massage therapy would assist with the Applicant’s pain, reduce trigger points and adhesions that have developed as a result of the injury and compensatory movement, and will also help with relaxation and reducing stress and anxiety. Moreover, the health practitioners indicated that the Applicant was receiving concurrent treatment from Dr. Sui, MD, an Occupational Therapist, psychologist at Kaplan, and Dr. Schacher. The treatment plan proposed 12 sessions of massage therapy to be provided by Alessandra Speziale, massage therapist.

43. On May 3, 2016, the Respondent denied the treatment plan stating that the treatment was not reasonable and necessary. The Respondent relied on reports and addendum report authored by Dr. Greg Jaroszynski, orthopaedic surgeon, dated November 27, 2015, January 12, 2016, and March 16, 2016, respectively, to support the denial of this treatment plan. The explanation of benefits also noted that “Dr. Jaroszynski is of the opinion that you [the Applicant] would not benefit from any further facility-based treatment. For this reason, a sec. 44 Insurer’s Examination will not be required.”

44. I find the treatment plan is reasonable and necessary. Dr. Greg Jarozynski did not meet with the Applicant when addressing the issues in the March 16, 2016, addendum report, nor does the addendum report specifically address this treatment plan. The Respondent relies on Dr. Jarozynski’s prior assertions that the Applicant does not need further facility based treatment to address her musculoskeletal injuries. However, her treating health practitioners have continued to assess the Applicant’s recovery, and based on their most current assessments opine that treatment is necessary to alleviate the Applicant’s impairments. The Applicant has seen a psychologist and the psychological reports note that the pain she feels inhibits her ability to conduct daily activities, go to work, and sleep. A goal of this treatment plan is to assist with the Applicant’s pain and to increase strength and range of motion. The fulfilment of these goals are reasonable and necessary to assist the Applicant in overcoming her accident related impairments.

Interest

Is the Applicant entitled to interest for overdue payment regarding the claimed benefits?

45. Section 51 of the Insurance Act states:

46. (1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue until it is paid, at the rate of 1 per cent per month, compounded monthly.

46. The benefits claimed in the following treatment plans are overdue and interest is payable in accordance with s. 51 of the Schedule:

i. $2,487.00 for chiropractic treatment;

ii. $2,439.10 for physiotherapy services;

iii. $2,950.00 for dental splints and dental services;

iv. $1,449.10 for physiotherapy services;

v. $979.05 for active release treatment.

47. The Respondent partially approved a treatment plan dated April 19, 2016, seeking psychological services. Interest is not owing to the Applicant for this treatment plan because the treatment claimed by the Applicant was found to be excessive. As such, the benefit is not overdue.

ORDER

After considering the evidence, pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders that:

48. The Applicant’s injuries resulted from the motor vehicle accident.

49. The following treatment plans are reasonable and necessary:

i. $2,487.00 for chiropractic treatment;

ii. $2,439.10 for physiotherapy services;

iii. $2,950.00 for dental splints and dental services;

iv. $1,449.10 for physiotherapy services; and

v. $979.05 for active release treatment.

50. The April 19, 2016, treatment plan for the remaining 14 of 20 sessions for psychological services in the amount of $5,201.22 is not reasonable and necessary.

51. The Applicant is entitled to interest in accordance with s. 51 of the Schedule.

Released: March 14, 2017

______________________________

Jeanie Theoharis,

Adjudicator