Tribunal File Number: 16-004272/AABS
Case Name: 16-004272 v Continental Casualty Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits.
Between:
P. J.
Applicant
and
Continental Casualty Insurance Company
Respondent
AMENDED DECISION
Adjudicator: Nicole Treksler
Appearances:
Applicant: P. J.
Counsel for the Applicant: Peter Pietraszek
Counsel for the Insurance Company: Erin Morgan
Written Hearing: May 11, 2017
I. Overview:
1The applicant was injured in an automobile accident on June 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2As a result of the accident, the applicant made claims for medical and rehabilitation benefits. The respondent denied her claims on the basis that the position that the applicant’s injuries are minor and she has exhausted the treatment cap of $3,500 under the Minor Injury Guideline (the “MIG”),
3Prior to the accident, the applicant had several pre-existing conditions, including:
Osteoarthritis in both knees;
Obesity and diabetes;
Abdominal pain;
High blood pressure; and
Back pain.
4Dr. Ushma Patel, Chiropractor, completed the applicant’s Disability Certificate dated September 1, 2015 and listed the following injuries resulting from the accident: sprain and strain of cervical spine; sprain and strain of thoracic spine; sprain and strain of lumbar spine; headaches, and sprain and strain involving (fibular) (tibial) collateral ligament of knee.
5Dr. Khal Efala, Orthopaedic Surgeon and Chronic Pain Specialist, wrote a chronic pain report dated December 5, 2016 and concluded that the applicant’s back pain was chronic, and she suffered from aggravated bilateral knee pain − both likely caused by the accident.
6The applicant submits that her injuries are not minor injuries as defined in subsection 3(1) of the Schedule and fall outside of the MIG due to her pre- existing conditions and chronic pain as a result of the accident. The applicant also asserts that her claims for medical and rehabilitation benefits are reasonable and necessary.
7The respondent’s position is that the applicant’s injuries are minor and that the disputed treatment plans are not reasonable and necessary based on the findings of the Insurer’s examinations (IEs).1
8The onus is on the applicant to show on a balance of probabilities that her injuries are not minor and that the treatment plans are reasonable and necessary.
II. Preliminary Issue:
i. Admissibility of Evidence- Applicant’s signed statement
9The respondent submits that the applicant’s signed statement should not be admitted into evidence because the Tribunal’s order dated February 23, 2017 only allowed for affidavits.
10I have read the Tribunal’s order and there is no language in the document to suggest that the Tribunal would only accept affidavits and that other documentary evidence would not be admitted.
11Furthermore, subsection 15(1) of the Statutory Powers and Procedures Act (SPPA) allows tribunals to admit at a hearing, document or other thing as evidence, even if the document was not proven under oath or affirmation. The applicant’s signed statement falls under subsection 15(1) of the SPPA and I find it to be relevant in this proceeding.
12I allow the applicant’s signed statement to be admitted into evidence.
ii. Treatment plans not signed
13The respondent submits that the treatment plans in dispute were not signed by the applicant and/or a regulated health professional as required by section 38(3) of the Schedule.
14The respondent acknowledges that it did not deny the treatment plans on the basis that they were not signed.
15The applicant does not deny that the treatment plans were unsigned, but argues that the respondent had an obligation under subsection 32(6) of the Schedule to notify the applicant within 10 business days if it has received an incomplete or unsigned application. Further, the respondent never raised this issue with the applicant until the hearing.
16I am of the view that the respondent cannot now rely on section 38(3) of the Schedule to request that the claims should be dismissed. The respondent should have enforced section 38(3) at the time the treatment plans were submitted. I find that the treatment plans are admissible as evidence and the matter is not dismissed.
III. Issues:
17The following are the issues identified in the Tribunal’s order dated February 23, 2017:2
Do the applicant’s injuries fall within the MIG?
Is the applicant entitled to a rehabilitation benefit in the amount $64.07 for a cortisone injection and a medical bracelet from Niagara Health System, as submitted on December 1, 2017 and denied on December 17, 2016?
Is the applicant entitled to a medical benefit in the amount $2,762.00 for multiple regions therapy by Centennial Rehab, as submitted on November 10, 2015 and denied on December 21, 2015?
Is the applicant entitled to a medical benefit in the amount $160.00 for massage therapy from Centennial Rehab, as submitted on December 7, 2015 and denied on December 21, 2015?
Is the applicant entitled to a medical benefit in the amount $2,260.00 for a chronic pain assessment by Dr. Efala, as submitted on October 10, 2016 and denied on November 23, 2016?
18The applicant also raised the issue of her entitlement to costs in her submissions.
IV. Result:
19I find that the applicant’s injuries cannot be treated under the MIG due to pre- existing injuries and a chronic pain diagnosis. I find that the treatment plans are reasonable and necessary, except for the cost of a medical bracelet.
20The applicant is not entitled to costs.
V. Analysis:
a) Are the applicant’s injuries minor as defined in section 3(1) of the Schedule?
21The Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. It limits treatment to $3,500.00.
22An insured who does not have minor injuries or whose injuries are minor but has shown compelling medical evidence that there is a pre-existing condition or other conditions that would prevent maximal recovery within the $3,500.00 amount, may access up to $50,000.00 of medical and rehabilitation benefits.
23The respondent relied on Drs. Bradbury’s, Taylor’s and Dessouki’s IE reports, which find that the applicant’s injuries are minor.
24The applicant indicates that her injuries are not minor due to her pre-existing conditions and diagnosis of chronic pain.
Pre-existing conditions
25The applicant has an extensive history of pre-existing conditions. The applicant submits that she has “pre-existing [….] conditions some of which were exacerbated by the accident, all of which have impacted her ability to recover.”
26The applicant provided a personal statement to the respondent on September 27, 2015:
From the accident, I sustained neck, mid back are sore and the muscles knot up. My right leg gets numb all the time. I have a lot of lower back pain from the accident. I relive the accident a lot and have flashbacks when I am at the intersection. When I go to sleep I envision it all the time.
27The applicant submits that she continues to require medical assessments and treatments of her accident related injuries, including:
Continued bilateral knee cortisone injections
Continued massage and physiotherapy to control back pain and numbness;
Continued abdominal pains, musculoskeletal and otherwise, requiring further assessment and treatment;
Continues to fight depression and anxiety exacerbated by her accident and related injuries, which also needs additional assessment; and
Continues to require prescribed medication for the above impairments.
28Regarding the applicant’s knees, the applicant had been receiving cortisone shots for the pain prior to the accident. After the accident, the applicant states that she has more pain in her knees, particularly the right knee, which has necessitated an increase in the number of cortisone shots. In the absence of any other evidence from the respondent, I conclude that the increase in the number of cortisone injections is a direct result of the applicant’s injuries as a result of the accident.
29Regarding the applicant’s back pain, the applicant’s back pain prior to the accident was a result of abdominal pain, obesity and “gouty” arthritis. According to the applicant’s ODSP file she had the following conditions:
Adnominal issues since 2004;
Co-morbid obesity and Stein Leventhal Syndrome; and,
Diabetes.
After the accident, the applicant was hospitalized on several occasions for abdominal pain.3 The applicant argues that she required post-accident surgery to repair a ventral hernia not present prior to the accident. She states she continues to suffer from abdominal pain, which continues to draw out her accident recovery. I agree.
30I note that the applicant’s need for medication has increased post-accident, specifically for neck spasms.
31The applicant submits that her anxiety and depression has increased since the accident, but has not provided any evidence, other than an OCF-3 signed by Dr. Patel, which indicates that she suffers from depressive episodes. The respondent relied on Dr. Bradbury’s psychological report, which indicates that the applicant denied pre-existing psychological issues and the presence of any significant accident related disorder or anxiety. I find that the applicant has not provided sufficient evidence to support her claim that she should be removed from the MIG on a psychological basis.
32The respondent argues that the applicant’s pre-existing injuries do not remove her claim from the MIG. The respondent relies on IEs from Drs. Taylor and Dessouki, but neither physician explains why they think that the applicant’s pre-existing injuries do not affect her ability to recover.
33In the absence of any persuasive evidence from the respondent, I find that the applicant’s increase in knee pain and use of cortisone injections, increase in medication intake and abdominal pain, indicate that the applicant is not able to recover under the MIG limit.
34As such, the applicant’s pre-existing injuries remove her from the MIG.
Chronic pain
35The applicant submits that she suffers from chronic back pain as a result of the accident. In the applicant’s personal statement, she indicates that “overall my back pain has increased since the accident, both in frequency and intensity. I receive immediate help form the therapy, and I need to continue to go to function as much as I can. I will occasionally end up crying myself to sleep due to the pain in my back.”
36The applicant relies on Dr. Efala’s, Orthopaedic Surgeon and Chronic Pain Specialist, report, dated December 5, 2016.
37Dr. Efala diagnosed the applicant with the following:
Post traumatic cervical spine dysfunction with musculo-ligamentous injury;
Chronic pain of the cervical spine;
Post traumatic lumbar spine dysfunction with musculo-ligamentous injury;
Chronic pain of the lumbar spine;
Bilateral knee osteoarthritis; and
Aggravation of bilateral knee pain.
38The respondent identified the following concerns with Dr. Efala’s report:
Dr. Efala identified the applicant by her driver's license. However, the applicant does not have a driver's license.
Dr. Efala noted that the applicant reported that neither police nor EMS attended the scene of the accident. In fact, police and EMS attended the scene of the accident and the applicant was assessed by paramedics.
Dr. Efala noted that the applicant went to the hospital from the scene of the accident. This is incorrect. The applicant's friend took her to the hospital several hours after the accident.
Dr. Efala noted that at the time of the assessment, the applicant was not taking any medication. As evidenced by the applicant's own submissions and her prescription history, the applicant was taking several medications as of December 2016.
39In find that the errors in Dr. Efala’s report to be administrative errors and do not impact the credibility of his diagnosis. I find that Dr. Efala’s finding of chronic pain is supported by Drs. Dessouki and Taylor’s reports. Well over 15 months after the accident, in Dr. Dessouki’s IE physiatrist report dated February 27, 2017, he indicated that the applicant had a significant reduction in range of motion in her lumbar spine and lower extremities. Dr. Dessouki diagnosed her with lumbar strain and grade two whiplash. Further, Dr. Taylor, General Practitioner, also diagnosed the applicant with lumbar strain and grade two whiplash in his IE report dated February 2, 2016.
40Both Drs. Taylor and Dessouki diagnosed the applicant with lumbar strain and grade two whiplash several months after the accident, but did not provide an adequate explanation as to why the applicant’s injuries have not resolved, which I identify as weaknesses in their respective reports. According to the MIG, the applicant’s injuries should have been resolved within 12 weeks, but she continues to suffer from a lot of pain.
41Dr. Dessouki considered Dr. Efala’s chronic report in his addendum report dated March 10, 2017 and indicated that his position remained unchanged about the applicant’s injuries. His position was based on diagnostic imaging that confirmed that there was no bony trauma and there was no evidence of physical conditions on examination that would place the applicant outside of the MIG.
42However, Dr. Dessouki did not comment on the quality of Dr. Efala’s report and why he did not agree with his diagnosis.
43The applicant’s back pain is also a pre-existing condition. The applicant claims that her back pain has gotten worse since the accident and this is supported by the applicant’s frequent visits to the hospital regarding abdominal pain, which was the cause of her back pain prior to the accident.
44The onus is on the applicant to show that she has chronic back pain. The applicant had back pain prior to the accident which got worse after the accident. In addition, she provided a report from Dr. Efala, Orthopaedic surgeon, indicating that her back pain has become chronic. Both Drs. Taylor and Dessouki identify soft tissue injuries that should have resolved within a couple of months of the accident and provide no explanation as to why the applicant continues to suffer from those injuries. In the absence of any persuasive evidence from the respondent, I accept Dr. Efala’s conclusions in his report.
45I find that the applicant has chronic pain and her injuries cannot be treated under the MIG.
b) Are the treatment plans reasonable and necessary?
46Under subsection 15(1) of the Schedule, the respondent shall pay for medical and rehabilitation benefits that are reasonable and necessary.
47I am of the view that the following treatment plans are reasonable and necessary based on my finding that the applicant’s injuries are non-minor and not treatable under the MIG and Dr. Efala’s chronic pain diagnosis:
medical benefit in the amount $2,762.00 for multiple regions therapy from Centennial Rehab;
medical benefit in the amount $160.00 for massage therapy from Centennial Rehab;
medical benefit in the amount $2,260.00 for a chronic pain assessment by Dr. Efala; and
Medical benefit for cortisone injection in the amount of $20.00
48Regarding the medical benefit for massage therapy and multiple regions therapy, both Drs. Taylor and Dessouki opined that the applicant did not have long term pain reduction as a result of her treatments. I am of the view that in the treatment of chronic pain, short term pain reduction is reasonable and necessary objective in treating this condition. Further, I determined that due to the applicant’s pre-existing injuries, the applicant’s injuries cannot be treated under the MIG and requires further treatment to address her accident related injuries.
49Given that I have accepted Dr. Efala’s chronic pain diagnosis, I find that Dr. Efala’s chronic pain assessment to be reasonable and necessary.
50I also find that the applicant is required to pay for the applicant’s cortisone injection given that her need for these injections increased significantly after the accident. However, the applicant did not explain why the respondent should pay for the medical bracelet and what the medical bracelet is for. As such, the respondent is not required to pay for the medical bracelet.
c) Costs
51The applicant is requesting costs because the respondent did not provide its log notes as ordered in the Tribunal’s Order.
52Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy.
53In order for a party to be 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. This is a high threshold. The respondent’s failure to provide log notes has not met this threshold.
54I find that the applicant is not entitled to costs in this matter.
VI. Order:
I order the following:
The applicant’s injuries are not minor injuries as defined in subsection 3(1) of the Schedule due to a chronic pain diagnosis and pre-existing conditions.
The applicant is entitled to a rehabilitation benefit in the amount $20.00 for a cortisone injection.
The applicant is not entitled to the cost of a medical bracelet in the amount of $44.07.
The applicant is entitled to a medical benefit in the amount $2,762.00 for multiple regions therapy.
The applicant is entitled to a medical benefit in the amount $160.00 for massage therapy.
The applicant is entitled to a medical benefit in the amount $2,260.00 for a chronic pain assessment by Dr. Efala.
Released: August 24, 2017
Nicole Treksler, Adjudicator
Footnotes
- The applicant was assessed by Dr. Cheryl Bradbury, psychologist on January 22, 2016; Dr. Steve Taylor, general physician, on February 2, 2016, and Dr. S. Dessouki, physiatrist on February 27, 2017 with an addendum report on March 10, 2017.
- The applicant initially sought non-earner benefits for the period of January 16, 2015 to date and ongoing, as submitted on June 21, 2016 and denied on December 1, 2016. However, the applicant withdrew this issue prior to the hearing.
- July 27, 2015, July 28, 2015, August 11, 2015, December 29, 2015.