Licence Appeal Tribunal
Tribunal File Number: 16-000691/AABS
Case Name: 16-000691 v Unifund Assurance 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:
E. S.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
Adjudicator: J.H. Bass
Appearances: Natasha Russell, Licensed Paralegal, for the Applicant Ahmad Khan, Counsel for the Respondent
Heard in writing on: November 10, 2016
OVERVIEW
[1]. The applicant E.S. was involved in an automobile accident on June 1, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
[2]. Unifund paid for various treatments for the applicant but in June 2016 declined to pay for the two items in dispute, on the basis that they are not reasonable and necessary.
[3]. The applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
[4]. The following are the two issues to be decided:
Is the applicant entitled to physiotherapy services in the amount of $2,357.50 to be provided by the Mackenzie Medical Rehabilitation Centre, set out in the OCF-18 dated May 3, 2016?
Is the applicant entitled to the chronic pain treatment programme in the amount of $13,755.06 by All Health Medical Centre set out in the OCF-18 dated May 10, 2016?
DECISION
[5]. Taking the medical evidence as a whole, I find that the treatment plans are not reasonable or necessary.
BACKGROUND
[6]. E.S. is 62 years old and is married with children. He had been working full time as a technician since 1976.
[7]. The accident occurred on June 1, 2015. The applicant was the seat-belted driver and sole occupant of a 1999 BMW. He was proceeding on his right of way when another vehicle made an improper left turn, causing the collision. There was extensive damage to the front and driver’s side of the vehicle, which was a write-off. Airbags deployed, and the collapsing front of the car pushed against the applicant’s feet.
[8]. Emergency personnel arrived at the scene and the applicant was examined and taken to hospital by ambulance. After treatment of contusions and abrasions the applicant was told to go home and return in the morning to see a specialist. The next morning, the applicant returned to see Dr. Martin Heller, a foot specialist at the hospital, and a CT scan revealed a fracture in his right foot. The applicant was put in a cast for about seven weeks, and required crutches to walk. He received follow-up care at the fracture clinic until his cast was removed, and received treatment from Dr. Christopher Jyu, his family doctor, for pain in his neck, back and foot, including taking anti-inflammatories.
[9]. After the accident the applicant started physiotherapy at Mackenzie Medical Rehab, starting on June 8, 2015, and attended as long as the treatments were funded by the insurer. Treatment consisted of massage, TENS, exercise, stretching, and heat therapy. He also attended 12 sessions of psychological treatment with Dr. Judith Pilowsky, consisting of talk therapy, breathing exercises and relaxation techniques.
[10]. The applicant returned to work in October 2015 and retired in August 2016.
Details of the Proposed Treatment Plans
[11]. The Treatment Plan of May 3, 2016 (Mackenzie Medical) proposes the following:
Chiropractic Manipulation
Chiropractic Therapy
Exercise
Massage therapy
Total body chiropractic assessment
The Treatment Plan of May 10, 2016 (All-Health Medical Centre) proposes:
Physical rehabilitation (including IFC, TENS, Micro-current, Laser, stretching and Ultrasound)
Education promoting health
Mental health and addictions therapy
Total body assessment
Documentation support
EVIDENCE
[12]. The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted. The key documents in this matter are the medical reports submitted by the parties.
Applicant’s Submissions
[13]. The applicant submits that the medical reports of Dr. Judith Pilowsky, Dr. Darrell Ogilvie Harris and Dr. Inese Robertus indicate the presence of chronic pain syndrome, and that this would be ameliorated by both the proposed treatment plans.
Respondent’s Submissions
[14]. The respondent submits that the findings of orthopaedic surgeon Dr. E.P. Urovitz, who examined the applicant on June 6, 2016, indicate no “residual accident related musculoskeletal impairment,” so that a facility-based treatment plan like that of May 3 is not medically necessary. Dr. Urovitz’s report concludes that the applicant’s “prognosis is considered to be satisfactory”.
[15]. Further, the Insurer Examination by the psychologist Dr. Douglas Saunders found that the applicant’s clinical profile was within normal limits, and that he displayed transient to mild depressive symptoms, which do not meet clinical criteria for impairment. The tests that Dr Saunders administered included:
a. A Personality Assessment Inventory, indicating the applicant’s profile was “entirely within normal limits”,
b. The Carroll Depression Rating Scale, indicating transient to mild depressive symptoms,
c. The Multi-Dimensional Anxiety Questionnaire, indicating transient anxiety symptoms.
ANALYSIS
[16]. Taking the medical evidence as a whole, I find that the applicant has made significant progress in his recovery, and that the treatment plans are not reasonable or necessary.
[17]. There are two reports by the applicant’s psychologist, Dr. Pilowsky – one dated September 28, 2015, and one dated February 16, 2016. The difference between the two reports is notable. In September, Dr. Pilowsky found the applicant to display “moderate depression” and “moderate anxiety”. By February 2016 Dr. Pilowsky found only “minimal depression” and “mild anxiety”. Further, Dr. Pilowsky notes in February that the applicant’s neck pain is less and his right knee has recovered.
[18]. The report by Dr. Inese Robertus of May 10, 2016 states that the applicant has shown “very minimal improvement since the accident” and recommends chronic pain therapy over the next 5 years, to address “post-traumatic stress symptoms”. However, this finding is inconsistent with the progress reported by Dr. Pilowsky in February, indicating minimal depression and mild anxiety, and with the information in the family doctor’s records. In addition, in the applicant’s written submissions to the Tribunal, it is conceded that by August 2016, the applicant agreed with Dr. Pilowsky that he would try to manage his treatments on his own, indicating that he was making progress in his recovery.
[19]. Also notable are the Clinical Notes and Records from the applicant’s family doctor, Dr. Jyu, whom the applicant visits regularly every few months. These notes indicate that by April 28, 2016, the applicant was meeting the goal of 150 minutes per week of exercise on the treadmill, in spite of this causing some pain and swelling. Dr. Jyu has been prescribing Indomethacin, a non-steroidal anti-inflammatory drug.
[20]. Although the March 15 report of the applicant’s orthopaedic surgeon Dr. Ogilvie-Harris recommended a chronic pain programme, his report notes a minimal disability (lowest 30th percentile), and “mild pain-related functional limitations”. This was only 9 months after the accident - I note that Dr. Ogilvie-Harris referred to spine pain at 6 out of 10, but that by the time Dr. Urovitz examined the applicant in June, the back pain had resolved.
[21]. The treatment plan of May 3 is composed of passive treatments including physical therapy and chiropractic manipulation, but I do not find on the balance of probabilities that the applicant has established that this will assist his recovery more than the home exercise plan under the supervision of the family doctor. The applicant is already able to follow an exercise regime of 150 minutes per week on the treadmill, with no prescription medication, only an over the counter anti-inflammatory. This is also the case for the physical rehabilitation component of the treatment plan of May 10 (the largest item in that plan).
[22]. The other components of the May 10 treatment plan are based on the applicant’s alleged psychological problems. However, I find the report of Dr. Saunders more persuasive in finding that the applicant has only mild psychological problems. The results of a Carroll Depression Rating Scale showed “transient to mild depressive symptoms”, not meeting the criteria for impairment. This is corroborated by Dr. Pilowsky’s report showing reduction in depressive symptoms.
CONCLUSION
[23]. For the reasons outlined above, I find that the two proposed treatment plans are not reasonable or medically necessary.
Released: January 13, 2017
J.H. Bass, Adjudicator