Date: 2017-07-13

Tribunal File Number: 17-000208/AABS

Case Name: 17-000208 v The Personal 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:

J. H.

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

Counsel for the Applicant: Emily Foreman

Counsel for the Respondent: Shelby Chung

HEARD: Written Hearing: May 10, 2017

OVERVIEW:

1The applicant was injured in a motor vehicle accident on July 22, 2011 and she applied for accident benefits to The Personal Insurance Company (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied a claim for a medical benefit on the basis that it found that the applicant had reached maximum medical recovery and the treatment plan was not reasonable or necessary.

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on March 15, 2017, and the matter proceeded to this written hearing.

3The applicant submits that she continues to suffer physical impairments as a result of the accident and given the purposeful and remedial approach of the Schedule, the treatment plan is reasonable and necessary.

4The respondent contends that the applicant no longer suffers from a physical impairment as a result of the accident but has reached maximum medical recovery from her physiological conditions.

PROCEDURAL ISSUE:

5The respondent submits that the Tribunal should not accept the applicant’s submissions and evidence as they were not served within the deadline provided in the case conference adjudicator’s order dated March 15, 2017. According to the order, the applicant’s submissions were due on April 13, 2017, and the respondent did not receive them until April 17, 2017. The respondent submitted a courier receipt to show the applicant sent her submissions by overnight courier on April 13, 2017.

6The respondent cites Rule 9.4 of the Licence Appeal Tribunal Rules of Practice and Procedure which states that if a party fails to comply with the Tribunal’s rules and orders with respect to disclosure etc. they may not rely on that document or thing as evidence, without the consent of the Tribunal.

7If I were to exclude the applicant’s submissions and evidence, she would not be able to participate in this proceeding. While I acknowledge the importance of complying with the Tribunal’s orders, the applicant’s delay in serving her submissions on the respondent was a small infraction when compared to the remedy the respondent is seeking. Further, the respondent has failed to demonstrate how they were prejudiced in their late receipt of the applicant’s submissions.

8Therefore, I will allow the admission of the applicant’s submissions and evidence.

ISSUES IN DISPUTE:

9The following issue is in dispute before the Tribunal:

1. Is the applicant entitled to a medical benefit in the amount of $1,836.00 for a treatment plan (“OCF-18”) for physiotherapy recommended by Absolute Rehab Centre submitted on September 20, 2016?

RESULT:

10After reviewing the parties’ submissions and documentary evidence and for the reasons that follow, I find that the treatment plan for physiotherapy is neither reasonable nor necessary.

THE LAW, EVIDENCE AND ANALYSIS:

11Sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to or on behalf of an applicant so long as the applicant sustains impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of an accident.

12In order to determine whether the treatment plan is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment.

13The applicant’s accident related injuries were not placed in the Minor Injury Guideline which caps medical treatment at $3,500.00. Therefore, her entitlement to medical benefits increased up to a maximum of $50,000.00. To date, the applicant has incurred $14,156.88 in medical and rehabilitation benefits.

14The treatment plan (OCF-18) in issue before me dated September 20, 2016, was prepared by Mike McLeod, Physiotherapist with Absolute Rehab and listed the following accident related injuries: Whiplash associated disorder [WAD1], sprain and strain of the thoracic and lumbar spine and injury of muscle and tendon at hip and thigh level. The purpose and goals of the OCF-18 is to achieve pain reduction, increase in strength, return to activities of normal living, and return to pre-accident work.

Applicant’s Submissions and Evidence:

15The applicant relies on two reports to support her ongoing need for physiotherapy. The first being the In-home Occupational Therapy Assessment prepared by Lindsay Blackwell dated August 12, 2011, which recommended that the applicant receive ongoing physiotherapy. The second was a Chronic Pain Assessment prepared by Dr. Keith Sequeira dated December 14, 2012. No other clinical notes and records were submitted.

16In Dr. Sequeira’s report, he diagnosed the applicant with soft tissue injuries and chronic pain syndrome and found that the motor vehicle accident directly and materially contributed to that diagnosis. Dr. Sequeira states that the applicant has likely sustained permanent and serious physical impairments as a result of the accident. In conclusion, Dr. Sequeira supported that the applicant go for physiotherapy and potentially a chronic pain program should her symptomology not improve.

17The applicant argues that these medical reports constitute objective clinical findings of ongoing accident related impairments.

18The applicant contends that it is well established that insurance coverage provisions are to be interpreted broadly while coverage exclusions or restrictions are to be construed narrowly.

The Respondent’s Submissions and Evidence:

19The respondent relies on the insurer examination (“IE”) of Dr. Joshua Muhlstock, Physiatrist dated November 1, 2016, which found that the applicant has reached maximum medical recovery with respect to her physiological injuries caused by the accident.

20The respondent argues that the reports relied on by the applicant are outdated as they are over four years old. Further, that the diagnoses listed in the OCF-18 in dispute list soft tissue injuries and that the goals of the OCF-18 are contradictory. For example, Part 8 of the treatment plan states that the applicant’s accident related injuries do not have an impact on her daily activities or tasks of employment. Yet under Part 9 of the OCF-18, it states that the goals are to return her to activities of daily living and employment tasks.

21The respondent maintains that the evidence supports that the applicant has gone back to her activities of normal living and employment tasks can be found in the applicant’s testing and clinical interview with Dr. Muhlstock. Dr. Mulstock’s physical examination revealed that her cervical range of motion was normal in all planes and pain-free despite some tenderness in certain areas of the body. Dr. Mulstock found no objective clinical findings of any physical impairment and opined that her soft tissue injuries have healed as it has been five years since the accident and she has reached maximum medical recovery from a physiological perspective.

22The respondent further submits that Dr. Sequiera’s examination findings do not support his concluding diagnosis of chronic pain syndrome. For example, his findings as a result of his clinical examination of the applicant were unremarkable and he categorized the applicant’s physical impairment as being “of a soft tissue etiology". Further, Dr. Sequeira only felt a referral to a chronic pain program would be helpful if the applicant's symptomatology continued without improvement.

ANALYSIS/CONCLUSION:

23I do not find that the treatment plan for physiotherapy is reasonable and necessary for the following reasons:

24Firstly, I agree with the respondent that the applicant has relied on outdated medical assessments to support her entitlement to the benefit. The applicant has not met her onus to demonstrate through medical evidence that she has an “ongoing impairment” and that the OCF-18 is necessary to help get her back to her pre-accident state. The evidence submitted by the applicant supported that she had an impairment over four years ago not an “ongoing” impairment. What I found lacking in the applicant’s evidence was a current progress report from the treating clinic or clinical notes and records from her family doctor which support her ongoing need for treatment. A few assessments supporting the applicant’s need for physiotherapy over four years ago in my opinion is not sufficient.

25Secondly, as time passes, and an insured attends treatment it is expected that the injuries and symptoms will improve over time. It is unclear from the evidence whether the applicant attended for chronic pain treatment. Further, six years have passed since the accident, and the applicant has not met her onus to demonstrate that she has received any benefit from physiotherapy treatment at any point in the past.

26The respondent has insinuated that Dr. Sequeira’s diagnosis of chronic pain is unfounded. I have found that opinion to bear little weight as I agree with the applicant, that the respondent’s opinion is that of counsel and not a medical professional. However, in my view a diagnosis of chronic pain syndrome does not automatically entitle the applicant to unlimited treatment without adequately demonstrating that she suffers from an “ongoing” impairment. Had Dr. Sequeira’s report been more current it would have had greater influence.

27Thirdly, I found the respondent’s IE report more persuasive as it is more current, thorough and it made sense that the applicant has made improvements since five years have passed since the date of loss. Had the applicant provided a more recent report, I would have had a clearer picture of the applicant’s current physical condition.

28For the reasons set out above, I find that the treatment plan for physiotherapy is neither reasonable nor necessary.

ORDER

1. For the above-noted reasons this application is dismissed.