C.T. v. RBC General Insurance Company
Tribunal File Number: 16-001142/AABS
Case Name: 16-001142 v RBC General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
C.T.
Applicant
and
RBC General Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances
Applicant: C.T.
Counsel for the Applicant: Allan Blott
Counsel for the Applicant: Cary N. Schneider
Written Hearing: January 30, 2017
I. Introduction/Overview:
The applicant, C.T., was injured in an automobile accident on February 24, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
The applicant made claims under a treatment plan for a digital motion x-ray exam and assessments recommended by Dr. John Baird and reimbursement of mileage to and from Rothbart Centre for Pain Care, an OHIP funded facility.
The respondent submits that the digital motion x-rays and assessments were not reasonable and necessary based on Dr. Alborz Oshidari’s physiatrist report dated November 17, 2015. Further, Dr. Farshid Tabloie’s Orthopedic Surgeon report dated June 20, 2014 to assess income replacement benefits did not indicate any deficiencies with the MRIs.
Regarding the reimbursement of mileage, the respondent asserts that the applicant has not submitted a treatment plan which is required in order to make a claim for transportation expenses as part of a claim for medical and rehabilitation expenses. Further, the respondent submits that it is not required under section 38 (2) of the Schedule to pay for transportation to OHIP funded therapy, where a treatment plan was not submitted.
The onus is on the applicant to prove on a balance of probabilities that the medical benefit for digital motion x-ray exam and assessments are reasonable and necessary. The applicant must show that the respondent is required to pay for this expense even though she did not submit a treatment and assessment plan as required under section 38(2) of the Schedule. If the applicant is able to prove that a treatment and assessment plan can be omitted in this matter, the applicant must then demonstrate the following:1
The treatment plan and the proposed costs are reasonable and necessary; and
The applicant’s impairment is not a predominantly a minor injury.
- I find that the applicant has not met his evidentiary burden and has not provided sufficient evidence to prove that the medical benefit for the digital x-ray exam and assessments are reasonable and necessary. Given that the applicant did not submit a treatment and assessment plan for the transportation expenses, as required under the Schedule, I find that the applicant is not entitled to be compensated for these expenses.
II. Issues:
a) Issues raised in the appeal and confirmed in the Case Conference Order dated October 18, 2016.
Is the applicant entitled to a medical benefit in the amount of $2,600 for a digital motion x-ray exam and assessments, treatment plan denied on October 2, 2015?
Is the applicant entitled to a reimbursement in the amount of $1,721.40 for mileage / transportation expenses, denied on October 15, 2015?
Is the applicant entitled to interest on overdue payments of benefits?
b) Issues raised in the respondent’s submissions.
- Is the respondent entitled to costs for this hearing?
III. Result:
The applicant is not entitled to the treatment plan recommended by Dr. Baird, as she was unable to prove that this treatment was reasonable and necessary.
The applicant is also not entitled to mileage as transportation costs must be associated with a treatment plan for a non-funded OHIP facility.
The applicant is not entitled to interest.
The respondent is not entitled to costs.
IV. Analysis:
a) Is the treatment plan for a digital x-ray and assessments reasonable and necessary?
The applicant’s position is that this treatment plan is reasonable and necessary because the findings of the digital x-ray exam would provide “a proper diagnosis and prognosis” as compared to MRIs, where in some situations false negatives are produced and the imaging is insufficient.
The respondent’s position is that the applicant has undergone several MRIs, ultrasound and x-rays, which did not show any abnormalities related to the accident. Further, there is no evidence that a digital x-ray exam is a better diagnostic tool than MRIs, ultrasounds and x-rays.
I note that much of the applicant’s case was based on counsel’s submissions without sufficient supporting evidence. I have reviewed the submissions from the parties and I find that the applicant has not provided sufficient evidence to support her position that the treatment plan is reasonable and necessary.
Submissions are not evidence. The purpose of submissions is to assist the adjudicator to decide the matter by advancing arguments supported by evidence.
The applicant has not supported her arguments with any objective medical evidence, such as reports, clinical notes and records, etc., to explain the need for a digital x-ray exam in this case and why the proposed private digital x-ray is required beyond traditional diagnostic imaging nor the specific deficiencies of the applicant’s MRIs, ultrasounds and x-rays that would require further testing and assessments.
In addition to the absence of evidence, the applicant failed to outline basic information in her submissions such as the nature of her injuries. In order to determine whether the treatment plan is reasonable and necessary, I need to know the nature of the applicant’s injuries and how this treatment plan will help to resolve those injuries.
The respondent conducted an insurer’s examination performed by Dr. Oshidari, Physiatrist. Dr. Oshidari concluded that the applicant did not have any spinal abnormalities and if there were any abnormalities, there would have been positive findings in the MRIs. He found that Dr. Baird’s treatment plan for assessments and digital x-ray not to be reasonable and necessary.
While the purpose of Dr. Tabloie’s orthopaedic report dated June 20, 2014 was to assess the applicant’s claim for IRBs, I found this report relevant in that Dr. Tabloie did not mention any deficiencies in the MRIs, and indicated that the MRI of the cervical, thoracic and lumbar spine revealed mild degenerative disc disease that is not related to the motor vehicle accident.
I find that the use of the digital x-ray machine not to reasonable and necessary.
In the alternative, if the x-ray is not approved, the applicant submits that I consider whether the assessments on their own are reasonable and necessary. The x-ray and the assessments formed part of the same treatment plan in question.
According to the applicant’s submissions, the assessments were described as follows:
“History, examination, Atlas Orthogonal X-Rays, radiographic analysis to determine alignment of vertebrae at the cranio-cervical junction. Reduction of misalignment will be performed with the Atlas Orthogonal Instrument and post adjustment x-ray will be used to confirm reduction of misalignment. DMX digital motion x-ray examination and full review of the MRI examination data with possible augmentation with proton density thinning sequences, thin axial and coronal sequences as indicated.”
Based on the above, I find that the digital x-rays are required in order to carry out these assessments. I have determined that the digital x-ray was not reasonable and necessary. I have not been provided with any evidence as to how Dr. Baird would effectively carry out his assessments without the use of the digital x-rays. Further, I am not persuaded how these assessments alone will help to resolve the applicant’s injuries.
I find that the assessments are not reasonable and necessary and the respondent is not required to fund the treatment plan.
b) Is the applicant entitled to transportation costs?
Under subsection 38 (2) of the Schedule, the applicant is required to submit a treatment plan in order to claim for transportation expenses. If a treatment plan is submitted, the applicant must then show that the expenses are reasonable and necessary and that she does not have a predominantly minor injury (subsection 38 (3) of the Schedule).
The applicant has not submitted any treatment plans regarding transportation costs, as the applicant attended an OHIP-funded facility.
I find that the applicant is not entitled to reimbursement of transportation costs, as the request for expenses was not submitted under a treatment plan.
c) Is the applicant entitled to interest?
- The applicant is not entitled to interest in this matter.
d) Is the respondent entitled to costs?
The respondent requests that the Tribunal order the applicant to pay for its costs in this matter. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy.
In order for a party to successful in receiving a cost award, there must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. There is no evidence of such conduct in this case.
I find that the respondent is not entitled to costs in this matter.
V. Order:
I order the following:
The applicant is not entitled to a medical benefit in the amount of $2,600 for a digital motion x-ray exam and assessments.
The applicant is not entitled to a reimbursement in the amount of $1,721.40 for mileage/transportation expenses.
The applicant is not entitled to interest on overdue payments of benefits.
The respondent is not entitled to costs for this hearing.
Released: May 3, 2017
Nicole Treksler, Adjudicator