S. S. v. RBC Insurance Company, 2017 CanLII 59500

DECISION

Tribunal File Number: 17-000782/AABS Case Name: 17-000782 v RBC Insurance Company Date: 2017-09-01

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

RBC Insurance Company (Respondent)

ADJUDICATOR: Thérèse Reilly

APPEARANCES: For the Applicant: Balraj Brag, Licenced Paralegal For the Respondent: Samantha Mason, Counsel

Heard In Writing: June 7, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in a motor vehicle accident on February 27, 2016. He submitted a treatment plan for physiotherapy treatment which was denied by the respondent as not reasonable and necessary. The applicant appealed to the Licence Appeal Tribunal (“the Tribunal”) for a ruling that he is entitled to payment of the treatment plan in dispute pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010¹ (“the Schedule”).

2The applicant’s position is that the recommended treatment plan for physiotherapy is reasonable and necessary. He relies on medical evidence that, he submits, supports his position that he requires continued facility based treatment in the form of physiotherapy to achieve maximum recovery.

3The respondent’s denial is based on its position that the applicant’s physical injuries are minor and subject to the restrictions on recovery of $3,500 as specified in the Minor Injury Guideline (the “MIG”). Although the respondent removed the applicant from the MIG due to the applicant’s psychological impairment, the applicant has not proven the treatment plan is reasonable and necessary. It also maintains there is no connection between the psychological impairment and the physical ailments and that one impacts the other.

4The respondent submits that the applicant is therefore not entitled to payment for the disputed treatment plan, interest thereon or an award in accordance with section 10 of Regulation 664, Automobile Insurance (“Regulation 664”).²

5Evidence was presented in writing by both parties consisting of written submissions with medical reports and records.

ISSUES

6The parties agreed that the issues in dispute are:

(i) Is the applicant entitled to receive a payment for a medical benefit for a treatment plan for physiotherapy dated September 17, 2016 in the amount of $1,591.56 recommended by Complete Rehab Centre and denied by the Respondent on November 15, 2016?

(ii) Is the applicant entitled to an award pursuant to section 10 of Regulation 664?

(iii) Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

7The applicant is not entitled to payment for a medical benefit for a recommended treatment plan for physiotherapy dated September 17, 2016 in the amount of $1,591.56.

8The applicant is not entitled to an award pursuant to section 10 of Regulation 664.

9As there are no overdue payments, the applicant is not entitled to interest.

THE APPLICANT’S MEDICAL EVIDENCE

10In his submissions, the applicant outlines that immediately after the February 27, 2016 accident, emergency services took him to the Brampton Civic Hospital with complaints of pain to his neck, left side of his head and lower back. An ultra sound taken at the hospital reported that the “chest muscle over the heart was pushed but nothing was broken.” He was discharged from the hospital and prescribed pain medication. The applicant went to the Complete Rehabilitation Centre for physiotherapy treatment.

11In support of his position that the treatment plan in dispute is reasonable and necessary, the applicant relies on the medical evidence of Dr. Rahim Jessa, his treating chiropractor, from the Complete Rehabilitation Centre consisting of a Disability Certificate (“OCF- 3”) dated September 17, 2016 and a Minor Injury Discharge Report (“OCF- 24”) dated August 8, 2016.

12The applicant relies on the following:

(i) In the OCF- 24, Dr. Jessa advised that the applicant continues to note pain and dysfunction and requires continued care.³ The respondent sent the applicant to an Insurer’s Examination (“IE”).⁴

(ii) In the OCF- 3, Dr. Jessa states the applicant continues to require facility based care.⁵ On the same day, Dr. Jessa submitted the disputed treatment plan to the respondent.

Family Doctor’s Notes

13The applicant saw his family doctor, Dr. Jaspaul Dulku, on numerous occasions both before and after the accident. The clinical notes and records of the family doctor (“the Notes”) were submitted as evidence to support his position that the treatment in dispute is reasonable and necessary.⁶

14From a review of the Notes, the applicant saw his family doctor pre-accident on January 22, 2016 and February 3, 2016 for anxiety and non-accident related issues.⁷ His doctor advised him to continue with regular follow up visits.

15The applicant saw his family doctor for numerous visits between March 2016 and April 2017. Most of these were for issues not related to the accident. The only Notes that refer to the accident are the Notes of March 25, 2016. Further, only the Notes of April 26, 2017 refer to pain complaints to the lower back, head or neck. The April 26, 2017 Notes indicate the applicant’s back pain does not radiate but worsens with bending. On this day, his family doctor recommended physiotherapy and massage.⁸ I also note that on March 25, 2016 and April 26, 2017, the family doctor states the applicant “appears well in general.”

16The respondent, in its written submissions, refers to the Notes of April 26, 2017 and notation that the applicant suffers from “acute back pain”. From its perspective, the word “acute” refers to a new pain complaint and therefore raises a causation issue on whether the “acute” back pain is related to the accident. The respondent maintains it is not.⁹

Dr. Auguste’s Report

17To support its position that the treatment plan is not reasonable and necessary, the respondent relies primarily on the IE completed by Dr. Jacqueline Auguste, an orthopaedic surgeon on January 18, 2017. In her report dated January 20, 2017, Dr. Auguste concluded that the treatment plan was not reasonable and necessary.

18Dr. Auguste, in her report, advises that the applicant’s only reported symptom at the time of the examination was a headache. The clinical examination of his neck and head was unremarkable. The examination revealed full range of motion with no muscle tension or end range stiffness in the head and neck or lumbar spine. There were "no substantive musculoligamentous, osseous or neurologic impairments on clinical testing."¹⁰

19From an orthopaedic perspective, the applicant had reached maximum medical recovery. She found no accident related diagnoses other than myofascial strain/sprains that had resolved. The report concluded:

There is no compelling clinical evidence that supports the need for the OCF-18 in dispute requesting $1,546.02 in treatment modalities and associate administration.¹¹

Dr. Pilowsky’s Psychological Assessment Report

20A further reason the applicant is seeking payment of the disputed treatment plan is his assertion that his physical pain is having a direct impact on his psychological progress and that these two conditions are intertwined.¹² He claims the respondent refuses to see a connection and direct relationship between the psychological assessment and the physical ailments.

21He relies on the assessment report dated August 2, 2016 prepared by Dr. Judith Pilowsky which was completed following a psychological assessment commissioned to assess any psychological impairment of the applicant as a result of the accident. The assessment was completed on August 2, 2016.

22Dr. Pilowsky diagnosed the applicant with Post Traumatic Stress Disorder and Major Depressive Disorder. Although the purpose of the report was to investigate psychological impairments, the applicant asserts importance to the fact that the “issue of pain was a constant theme in the report.”¹³

23Dr. Pilowsky discussed the applicant’s pain complaints to his neck, back and head which he described to her as “constant and strong.”¹⁴ She recommended the applicant be referred for a chronic pain management program.¹⁵

24I also note that Dr. Pilowsky found the applicant was in a prior motor vehicle accident, but his injuries from that accident had resolved. More importantly, from a reading of his pre-motor vehicle accident report and evaluation, she notes the applicant had no prior psychological issues prior to the accident. This is a key point as I find from the Notes of the family doctor that the applicant had prior psychological issues.

25The respondent concedes that the applicant has a psychological impairment as a result of the accident but takes the position that the treatment plan is not reasonable and necessary. It does not accept the view that the psychological and physical conditions are intertwined or that one has a direct impact on the other.¹⁶ Relying on J.C. and Certas Direct Insurance Company¹⁷, the respondent denies that there is a sufficient connection between the psychological impairment and the physical ailments necessitating the specific treatment in dispute.

26The respondent submits that although the applicant was taken out of the MIG and approved for treatment out of the MIG, that decision was based solely on the applicant’s need for psychological treatment and not for further physical intervention. The respondent maintains the applicant provided no evidence that the physical injuries are other than minor.¹⁸

27The respondent maintains the applicant cannot rely on the discussion regarding pain complaints by Dr. Pilowsky’s to support the applicant’s position that he requires further physical treatment on basis that she is a psychologist and her discussion on physical issues is beyond her scope of expertise.¹⁹

28Further, the applicant returned to work on a full time basis two days after the accident. This, in the respondent’s view, raises a question about the extent of the physical injuries claimed by the applicant and the accident in question.²⁰

THE LAW

29Section 18(1) of the Schedule limits recovery for a medical or rehabilitation benefit to a person “who sustains an impairment that is predominately a minor injury” to $3,500 minus any amounts paid in respect of an insured person under the MIG.

30Minor Injury is defined in section 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.

31If the applicant establishes that MIG does not apply, the applicant must still prove on a balance of probability that the medical benefit beyond the $3,500 limit is reasonable and necessary.²¹

ANALYSIS AND FINDINGS

32I find that the respondent removed the applicant from the MIG based on the extent of his psychological impairment. As such, the issue of MIG is not relevant.

33I find the applicant did not prove the treatment plan is reasonable and necessary.

34I accept the family doctor recommended physiotherapy treatment, but this was not until April 2017, many months after the assessment by Dr. Pilowsky and Dr. Auguste. I agree with the respondent that the Notes of the family doctor make no reference to pain complaints (other than the April 26, 2017 Notes). On this basis, I further find the description of the applicant’s pain by the applicant to Dr. Pilowsky to be questionable.

35The reference in the April 26, 2017 Notes to “acute” back pain may suggest that this could be a new pain complaint. This is not conclusive. The family doctor stated it was an “episode” suggesting it was a one-time isolated event. Dr. Auguste’s finding in January 2017 that all pain complaints had resolved suggests this could be a new complaint.

36Dr. Auguste, in January 2017, had also concluded the applicant’s injuries had resolved and the applicant had reached maximum recovery.

37I find Dr. Auguste’s report the most persuasive. It is the most recent in time. Dr. Auguste confirmed the applicant’s only pain in January 2017 was a headache. More importantly, Dr. Auguste’s report stated that “all his physical ailments had resolved” and the applicant had reached maximum recovery.

38Based on a review of the totality of the medical evidence, I provide greater weight to the evidence of Dr. Auguste who completed the clinical examination of the applicant to determine if the disputed treatment plan was reasonable and necessary. The clinical examination revealed no unresolved complaints of pain to the back, neck or head, other than the headaches which was not viewed as being due to the accident.

39Despite the statements in the OCF-3 about the applicant being unable to return to work, I accept, as outlined by the respondent, that the applicant returned to work within two days of the accident.

40The respondent questioned the applicant’s reliance on the report by Dr. Pilowsky and her advice about the applicant’s physical ailments on the basis that this is beyond her expertise. I do not accept this. Psychologists often deal with issues of pain, coping mechanisms and their effect on psychological health, as well as provide a review of physical functioning, as discussed by Dr. Pilowsky. I do, however, have doubts about the discussions about the pain complaints in her report.

41I find that 1) Dr. Pilowsky’s conclusion that the applicant had no prior psychological issues; and 2) the description of pain complaints by the applicant are not consistent with the Notes of the family doctor and the report of Dr. Auguste.

42In completing her report, Dr. Pilowsky stated she reviewed the Notes of the family doctor, from September 2015 to the date of her report (August 2, 2016) and the OHIP summary from February 27, 2013 to April 18, 2016, as well as the pre-accident lifestyle activities questionnaire completed by the applicant.²² The Notes indicate the applicant saw a doctor at a clinic before the accident on January 22, 2016 for sadness and depression and was prescribed Zoloft. He saw his family doctor on February 3, 2016 and on several occasions throughout the months following the accident for anxiety and non-accident related issues. The Notes contradict Dr. Pilowsky’s statement that the applicant had no prior psychological issue.

43With respect to the physical pain complaints, on January 20, 2017 Dr. Auguste reported that the applicant’s only reported symptom at the time of the examination on January 17, 2017 was a headache. From an orthopaedic perspective, the applicant had reached maximum medical recovery. She found no accident related diagnoses other than myofascial strain/sprains that had resolved.

44The reference in Dr. Pilowsky’s report describing the applicant’s pain as strong and constant is not supported by the Notes of the family doctor. During his visits to his family doctor before and after the accident up until April 26, 2017, the applicant’s main complaints involved anxiety. Moreover, the reference to acute back pain complaint to the family doctor arises after Dr. Pilowsky’s report is completed. It is not until April 26, 2017 that the Notes refer to the acute back pain complaint.

45Dr. Auguste’s conclusions also do not support the applicant’s position that his physical ailment had a direct impact on the psychological impairment. I make a similar finding in regards to the Notes of the family doctor which identify non-accident related issues and anxiety complaints by the applicant. These Notes contain no discussion about these complaints impacting his physical ailments. The applicant also did not present evidence on this point. As such, there is not sufficient evidence to find a connection between the two ailments and the impact of one on the other.

46I conclude the disputed treatment plan is not reasonable and necessary. The applicant is not entitled to any payment for the treatment plan.

AWARD

47Although the applicant made a claim for an award under section 10 of regulation 664, as no benefit is payable, the applicant is not entitled to an award under section 10 of Regulation 664.

INTEREST

48As no benefit is payable, no interest is payable.

49In conclusion, I find:

(i) The applicant is not entitled to payment for a medical benefit for a treatment plan for physiotherapy dated September 17, 2016 in the amount of $1,591.56.

(ii) The applicant is not entitled to an award pursuant to section 10 of Regulation 664.

(iii) The applicant is not entitled to interest.

Released: September 1, 2017

Thérèse Reilly, Adjudicator

Footnotes

1. 1Ontario Reg. 34/10.
2. 2R.R.O. 1990, Reg. 664.
3. 3Written submissions of the applicant, at 7.
4. 4Ibid., at 8 and 13.
5. 5Ibid., at 12.
6. 6Ibid., at 16 and 17.
7. 7Written submissions of the respondent, at 13.
8. 8Written submissions of the applicant, at 15.
9. 9Written submissions of the respondent, at 12.
10. 10Written submissions of the respondent, at 4 and 5.
11. 11Ibid.
12. 12Ibid. at 11.
13. 13Ibid.
14. 14Dr. Pilowsky’s report, Pages 3, 4. Written submissions of the applicant, at 10.
15. 15Written submissions of the applicant, at 9 and 10.
16. 16Written submissions of the respondent, at 14.
17. 1716-000940/AABS (LAT).
18. 18Written submissions of the respondent, at 9.
19. 19Ibid, at 14.
20. 20Ibid, at 16.
21. 21Ibid., at 7.
22. 22Dr. Pilowsky’s Psychological Report, Page 2 – 3.