J. R. v. Certas Home and Auto Insurance Company, 2017 CanLII 59503

Licence Appeal Tribunal

Date: 2017-08-15 Tribunal File Number: 16-003921/AABS Case Name: 16-003921 v Certas Home and Auto 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. R. Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION

ADJUDICATOR: Cezary Paluch, Member

APPEARANCES: For the Applicant: Thomas R. Su, Counsel For the Respondent: Stefania C. Sdao, Counsel

Written Hearing: May 15, 2017

OVERVIEW:

1The applicant, JR, was injured in an automotive accident on July 12, 2013 and sought benefits from the respondent, Certas Home and Auto Insurance Company (“Certas”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at a case conference held on March 2, 2017, and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal. A review of those documents forms the basis of this decision.

BENEFITS IN DISPUTE:

4The benefits in dispute are:

i. Is the applicant entitled to payment in the amount of $9,464.40 in respect of chronic pain treatment including documentation, exercise, therapy, education, acupuncture, mental health therapy, assessment as recommended by All Health Medical Centre in a treatment plan dated January 30, 2015, and denied by the respondent on May 22, 2015?

ii. Is the applicant entitled to the payment in the amount of $1,312.63 for physiotherapy treatment as recommended by CBI Physiotherapy Clinic in a treatment plan dated September 8, 2015, and denied by the respondent on September 24, 2015?

iii. Is the applicant entitled to the payment for a chronic pain assessment in the amount of $1,800.00?

iv. Is the applicant entitled to interest for any overdue payment of benefits?

RESULT:

5Based on the totality of evidence before me, I find that:

i. The applicant is not entitled to a treatment plan for chronic pain treatment in the amount of $9,464.40.

ii. The applicant is not entitled to a treatment plan for physiotherapy treatment in the amount of $1,312.63.

iii. The applicant’s failure to submit a Treatment and Assessment Plan (OCF-18) disentitles him to payment for a chronic pain assessment in the amount of $1,800.00.

iv. The applicant is not entitled to interest.

LAW:

6Sections 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.

ISSUE TO BE DETERMINED:

7The only issue in dispute with respect to the two treatment plans is whether they are reasonable and necessary. Findings of impairment or causation issues have not been raised by the respondent and they are not contested in this hearing.

EVIDENCE AND ANALYSIS:

Issues 1 & 2: Are the treatment plans of January 30, 2015 for chronic pain treatment and September 8, 2015 for physiotherapy services reasonable and necessary?

8The applicant seeks payment for medical and rehabilitation benefits for physical rehabilitation and chronic pain treatment recommended by All Health Medical Centre and CBI Physiotherapy Clinic.

9It is well accepted that relief of pain is itself a legitimate goal of treatment, even if the pain relief is not designed to promote recovery or lead to lasting improvement.¹ From the medical evidence in this case², relief of and managing pain and maintaining current level of functioning appears to be the primary goal of the disputed treatment plans. However, the proposed treatment must still be “reasonable and necessary.”

Taking the medical evidence as a whole, I find that there is a lack of information and insufficient evidence to conclude that the two treatment plans are reasonable and necessary from which the applicant suffers.

10I find that the medical evidence before me supports the conclusion that the applicant has made significant progress in his recovery and reached maximum medical improvement.

11Dr. Muhlstock’s, a physiatrist, first report dated February 26, 2014, described the applicant with the following symptoms as at date of the report:

• constant neck pain
• right shoulder pain
• constant low back pain

12Dr. Muhlstock opined that the applicant sustained soft tissues injuries to the cervical spine, WAD I or WAD II at most, and possibly the thoracolumbar spine and right shoulder girdle. The prognosis was excellent given that all injuries sustained in the accident have essentially resolved with no objective findings of any ongoing physical impairment related to the accident. The applicant has reached pre-injury status and maximum medical improvement.

13The applicant was seen again by Dr. Muhlstock on April 7, 2015, who noted that the applicant reported that he was working full time hours now, demonstrated normal strength, it has been 21 months since the accident and the clinical examination was devoid of objective findings of ongoing accident related physical impairments.

14As a result of this assessment, Dr. Muhlstock’s second report dated April 21, 2015, described the applicant with the following symptoms as at the date of the report:

• fatigue/poor sleep exhaustion with headaches
• neck pain with intermittent numbness
• mild back pain
• constant low back pain aggravated with prolonged sitting

15However, Dr. Muhlstock found no evidence of swelling or inflammation and that there were no objective findings of any physical impairment. He found that “all injuries have resolved and achieved maximum medical recovery”. He specifically addressed the issue of whether the recommended treatment plan dated January 30, 2015 was appropriate for and consistent with the severity of the injury: “All soft tissues have resolved, and no further formal treatment is warranted or necessary as a result of any injuries sustained in the accident.”

16The insurer also required the applicant to be assessed by Dr. R. Hines, a psychiatrist. Dr. Hines’s provided a report dated April 24, 2015 which assessment focused both on whether the applicant was able to return to his pre-accident activity levels and on whether the value of the treatment plan dated January 30, 2015 was appropriate.

17Dr. Hines found that the applicant’s previously diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident had been treated appropriately with medication and counseling, was in full remission, and the applicant was capable of returning to his pre-loss activity levels. He concluded that from a psychiatric perspective, the applicant had reached maximum medical improvement and pre-injury status, and did not require any additional psychological treatment.

18Certas, relying on both Dr. Muhlstock’s and Dr. Hines’ reports, informed the applicant on May 22, 2015 that the treatment plan dated January 30, 2015 was not reasonable and necessary because the applicant had “reached pre-injury and maximum medical benefit”. Similarly, with respect to the second treatment plan dated September 8 2015, Certas informed the applicant on September 24, 2015 that based on Dr. Muhlstock’s two reports that the injuries have resolved and further rehabilitation was not reasonable or necessary.

19In contrast to the evidence of Dr. Muhlstock and Dr. Hines, the applicant’s medical reports predate the treatment plans and do not link how the proposed treatment will achieve the applicant’s goal of alleviating his pain, anxiety, and increasing his strength and range of motion. I find they have limited weight with respect to the reasonableness and necessity of the treatment plans.

20For example, Dr. Tavazani who is an orthopaedic surgeon, prepared a report in November 2014. Therefore, it does not in any way address the proposed treatment plans that were created in 2015.

21The Chronic Pain Examination Report of Dr. Zatzman, a family physician, and Dr. Husnani, a chiropractor, is dated January 30, 2015. This is the same date as the first treatment plan and pre-dates the second treatment plan of September 8, 2015. Although, this report recommends that it would be prudent for the applicant to receive “appropriate treatment for his post-traumatic symptoms” there is no specific proposal for this treatment and the report does not reference either of the treatment plans. As such, I am unable to determine if the proposed treatment plans would in fact alleviate the applicant’s pain, increase strength and range of motion. Will the chiropractic massage, physiotherapy, or acupuncture, sought by the applicant achieve the goal of relieving his headaches or pain to his back and neck thereby improve function? If so, this could make the treatment plans necessary but there is no evidence indicating this to be the case.

22With respect, the very general language used by the doctors in their report that the chronic pain symptoms “may be mitigated, though not resolved through his participation on an interdisciplinary treatment program”, in my view, is indeterminate and uncertain. It is not specific enough. It does not address if there is a ceiling for effectiveness through the recommended interdisciplinary treatment program. More is required to allow the applicant to meet his evidentiary burden.

23The applicant bears the onus of proving his entitlement to a specific benefit that he is claiming on a balance of probabilities.³ In this case, the applicant simply submits that he is entitled to this treatment plan for the purpose of reducing pain or eliminating the effects of the applicant’s injuries and to facilitate the applicant’s re-integration into the labour market. He also submits that the medical evidence supports that the assessment is reasonable and necessary. However, he has not stated what specific medical evidence he is relying upon that comes to this conclusion. I do not find his submissions or evidence to be persuasive. He has not addressed whether the assessment is reasonable and necessary.

24For example, in the applicant’s submissions there is one medical note from CBI Physiotherapy Clinic dated August 8, 2015, but I found this note very difficult to read as it is in someone’s own handwriting and the applicant has not indicated how it ties in with the proposed treatment plans. This note is not signed. I place very little weight on this document.

25As another example of the lack of precision in the applicant’s medical evidence relating the proposed treatment to the accident, there is a 2 page letter from M. Street and Dr. J. Eastwood dated March 25, 2017, that does confirm that the applicant sought treatment for a second time in November 2016 due to reoccurrence of psychological distress (hopelessness, lack of pleasure in life, anger, frustration, panic, re-experiencing the accident while driving) and physical symptoms (lower back pain, headaches, fatigue, mobility difficulties), and stress at home and work. However, it not does not in any way connect these symptoms with the accident or mention how the proposed treatment plans are reasonable and necessary. This document is not a comprehensive medical report or assessment. Section 15 of the Schedule specifically states that medical benefits shall be paid “as a result of the accident.” Dr. Eastwood in his letter mentions that the applicant is experiencing stress at home and work but I am not convinced on a balance of probabilities that this is a result of the accident. I find this evidence also insufficient.

26Therefore, for the above reasons, I have found the two treatment plans of January 30, 2015 and September 8, 2015 are not reasonable or necessary.

Issue 3: Cost of a chronic pain assessment

27I find the applicant is not entitled to receive payment for the cost of a chronic pain assessment because section 38(2) of the Schedule requires the applicant to submit a Treatment and Assessment Plan to the respondent before treatment to receive a medical or rehabilitation benefit that is payable outside of the Minor Injury Guideline.

28I find the applicant is not entitled to the cost of a chronic pain assessment because the applicant failed to submit a treatment and assessment plan. The failure to submit a Treatment and Assessment Plan (OCF-18) disentitles him to payment for the chronic pain assessment.

Issue 4: Interest

29Given my decision in finding that there are no benefits owing, the applicant’s request for interest is denied.

COSTS

30The respondent’s request for cost is denied. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure costs are an exceptional remedy. I find the respondent has not provided sufficient evidence to show that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding.

31The claim for costs is dismissed.

CONCLUSION and ORDER

32For the reasons outlined above, the application is dismissed.

Footnotes

1. 1See General Accident Assurance Co. of Canada and Violi (FSCO P99-00047, September 27, 2000).
2. 2According to the OCF-19 dated January 30, 2015, submitted by N. Husnani, DC, the applicant suffers from: injury of muscle and tendon at neck level; muscle strain shoulder region; pelvic region and thigh; chronic post traumatic headaches; mild anxiety and depressive disorder; disorders of initiating and maintaining sleep; sprain and strain of thoracic spine joint; dislocation; sprain and strain of joints and ligaments of lumbar spine and pelvis; irritability and anger; nervousness; malaise and fatigue.
3. 3P. B. v RBC Insurance Company, 2017 CanLII 9816 (ON LAT) at para. 9.