16-002278 v Certas Home and Auto Insurance, 2017 CanLII 77359

Date: 2017-11-09

Tribunal File Number: 16-002278/AABS

Case Name: 16-002278 v Certas Home and Auto Insurance

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:

Applicant

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

For the Applicant: Paul Wilkins, counsel

For the Respondent: Suzanne Clarke, counsel

HEARD: Teleconference: March 8, 2017

Overview:

1The applicant was injured in a motor vehicle accident on December 13, 2013. Shortly after the accident, the applicant began to experience lower back, neck and shoulder pain as well as headaches. He did not seek medical treatment right away but instead chose to slow down at work and limit his family and social responsibilities.

2Two months post-accident, the pain persisted. The applicant then decided to go see his family doctor, Dr. Chan. Dr. Chan noted a neck strain and recommended physiotherapy. The applicant continued to work despite feeling pain.

3On December 20, 2014, Dr. Chan completed a disability certificate in which he diagnosed the applicant with a neck strain, lower back strain and a shoulder strain in connection with the motor vehicle accident. On December 15, 2014, the applicant began physiotherapy treatment at High Tech Physiotherapy. Treatment provided some short term relief but the pain persisted.

4The applicant sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The applicant was denied payment of the benefits by the respondent when he approached the monetary limit under the Minor Injury Guideline (the “MIG”).

5The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, RSO 1990 c I.8 dated August 15, 2016. The applicant seeks a determination from the Licence Appeal Tribunal (the “Tribunal”) that his injuries are outside the scope of the MIG and that he is entitled to payment for a number of treatment plans and a chronic pain assessment.

Issues in dispute:

6A case conference was held on November 28, 2016, and the resulting Order outlines the issues in dispute for the purposes of this hearing:

a. Do the applicant’s injuries fall outside of the Minor Injury Guideline?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,260.95 for physiotherapy services, as recommended by High Tech Physiotherapy in a treatment plan dated April 13, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $2,551.61 for physiotherapy services, as recommended by Revive Health Centre in a treatment plan dated May 14, 2015?

d. Is the applicant entitled to receive a medical benefit in the amount of $2,033.62 for physiotherapy services, as recommended by Revive Health Centre in a treatment plan dated May 14, 2015?

e. Is the applicant entitled to receive a medical benefit in the amount of $1,415.21 for chiropractic services, as recommended by Revive Health Centre in a treatment plan dated November 30, 2015?

f. Is the applicant entitled to the cost of an examination in the amount of $2,000.00 for a chronic pain assessment, as recommended by Revive Health Centre in a treatment plan dated June 20, 2016?

g. Is the applicant entitled to interest on any overdue payment of benefits?

Result:

7The applicant has met his onus of establishing on a balance of probabilities that his injuries fall outside the confines of the Minor Injury Guideline (“MIG”) due to his psychological impairment. The applicant is entitled to the cost of examination for a chronic pain assessment and the OCF-18’s dated April 13, 2015 and November 30, 2015 as they are reasonable and necessary. The applicant is also entitled to interest on these payments in accordance with section 51 of the Schedule. The applicant has not persuaded me that the OCF-18s dated May 14, 2015, are reasonable and necessary and is therefore not entitled to either of the medical benefits.

Discussion:

8The applicant bears the onus of establishing, on a balance of probabilities, that he falls outside the confines of the MIG and that he is entitled to the medical benefits in dispute.

Do the applicant’s injuries fall outside of the Minor Injury Guideline?

9The applicant asserts that both his physical and psychological injuries take him outside the confines of the MIG. I find that only his psychological impairments take him outside the confines of the MIG on the basis that he suffers from Somatic Symptom Disorder with severe depression and Posttraumatic Stress Disorder.

10My finding is based on the psychological report of Dr. J. Pilowsky (Psychologist). Dr. Pilowsky conducted a number of psychological tests including the Beck Depression Inventory – II; Beck Anxiety Inventory; Pain Patient Profile and the Miller Forensic Assessment of Symptoms Test. Dr. Pilowsky diagnosed the applicant with Somatic Symptom Disorder with severe depression and Posttraumatic Stress Disorder. I find Dr. Pilowsky’s results to be compelling and the conclusions drawn from those results reasonable.

11The respondent did not provide the Tribunal with any evidence to rebut Dr. Pilowsky’s report. In the alternative, the respondent submits that if the applicant does suffer from a psychological impairment, it was not caused by the subject motor vehicle accident. In support of this position, the respondent points out that the applicant did not complain of any psychological impairments to his family doctors and that a treatment plan for psychotherapy was not submitted by Dr. Pilowsky until January 20, 2017. More than 4 years after the accident. I am not persuaded by the respondent’s submission. Dr. Pilowsky’s report dated July 5, 2016 clearly outlines that the applicant’s psychological impairments are as a result of the subject motor vehicle accident and there’s no evidence to rebut that.

Physiotherapy and Chiropractic Treatment Plans

12Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary. The applicant bears the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary.

OCF-18 dated April 13, 2015 in the amount of $1,260.95 for physiotherapy services

13The treatment plan lists the applicant’s injuries as strain and sprain of the elbow, lumbar spine and shoulder joint and whiplash associated disorder (WAD) with complaint of neck pain, stiffness or tenderness only. The treatment plan proposes funding for physical rehabilitation, therapy, hyperthermy and documentation support activity. The treatment plan notes that the goals of treatment is to increase range of motion and strength in order to have the applicant return to pre-accident work activities.

14The applicant has persuaded me that the treatment plan has reasonable and necessary goals and methods for treating the applicant’s injuries. The applicant has been dealing with neck and back pain as a result of the motor vehicle accident. The medical evidence before me suggests that this pain was still present at the time this treatment plan was submitted. Dr. Feigelson, who conducted an insurer’s physiatry examination for the respondent on May 13, 2015, supports this proposition as he concluded that the applicant is suffering from myofascial and mechanical low back pain and neck stiffness as a result of the subject motor vehicle accident. As a result, I find the treatment plan to be reasonable and necessary.

OCF-18 dated May 14, 2015 in the amount of $2,551.61 for physiotherapy services

15The treatment plan lists the applicant’s injuries as radiculopathy of the cervicothoratic and lumbosacral region headache, injury of muscle and tendon at neck level and thorax level, injury of muscle and tendon of abdomen, lower back and pelvis, injury of tendon at shoulder and upper arm level and injury of muscle and tendon at forearm and lower leg level. The treatment plan proposes funding for a total body assessment, exercise of the back, shoulder and knee joint, stimulation of the back, mobilization and therapy and documentation support activity. The treatment plan notes that the goals of treatment is to reduce pain and increase range of motion so that the applicant can return to activities of normal living and to return to pre-accident function and status.

16The applicant has not persuaded me that this treatment plan is reasonable and necessary. The goals and methods for treating the applicant’s injuries in this treatment plan are similar to those listed in the April 13, 2015, treatment plan. In addition, this treatment plan was submitted approximately one month after the April 13, 2015, treatment plan. I am not convinced that the gap in time between the two treatment plans would be sufficient enough to allow the parties to properly appreciate whether the April 13, 2015, treatment plan would be effective in achieving its stated goals.

OCF-18 dated May 14, 2015 in the amount of $2,033.22 for physiotherapy services

17The treatment plan lists the applicant’s injuries as radiculopathy of the cervicothoratic and lumbosacral region headache, injury of muscle and tendon at neck level and thorax level, injury of muscle and tendon of abdomen, lower back and pelvis, injury of tendon at shoulder and upper arm level and injury of muscle and tendon at forearm and lower leg level. The treatment plan proposes funding for an initial chiropractic assessment, active chiro rehab, stimulation and mobilization, exercise of the back, shoulder and knee, massage therapy, electrode pads and the OCF-18 fee. The treatment plan notes that the goals of treatment is to reduce pain and increase range of motion so that the applicant can return to activities of normal living and to return to pre-accident function and status.

18The applicant has not persuaded me that this treatment plan is reasonable and necessary. This is the second treatment plan that was submitted on May 14, 2015. Again, the goals and methods for treating the applicant’s injuries in this treatment plan are similar to those listed in the April 13, 2015, treatment plan and that the gap in time between them is not sufficient enough to allow the parties to properly appreciate whether the April 13, 2015, treatment plan would be effective in achieving its stated goals.

OCF-18 dated November 30, 2015 in the amount of $1,415.21 for chiropractic services

19The treatment plan lists the applicant’s injuries as radiculopathy of the cervicothoratic and lumbosacral region, headache, injury of muscle and tendon at neck level and thorax level, injury of muscle and tendon of abdomen, lower back and pelvis, injury of tendon at shoulder and upper arm level and injury of muscle and tendon at forearm and lower leg level. The treatment plan proposes funding for active chiro rehab, stimulation of the muscles of the back, mobilization therapy and exercise of the back, shoulder joint and knee. The treatment plan notes that the goals of treatment is to reduce pain, increase range of motion and increase muscle strength and relaxation so that the applicant can return to pre-accident status and function.

20The applicant has persuaded me that the treatment plan has reasonable and necessary goals and methods for treating the applicant’s injuries. The respondent’s denial of this treatment plan is based, in part, on Dr. Feigelson’s Paper File Review Report dated January 4, 2016. In that report, Dr. Feigelson concluded that this treatment plan was not reasonable and necessary because its “type, intensity, frequency and duration…..is not consistent with the documented injury(ies)…” I prefer the evidence of the applicant. The medical evidence before me suggests that the applicant’s accident related pain experience was still present at the time this treatment plan was submitted. Further to this, Dr. Getahun, orthopaedic surgeon, conducted an orthopaedic assessment on May 18, 2016. After a review of relevant medical documents and a physical examination of the applicant, Dr. Getahun concluded that as a direct result of the subject motor vehicle accident, the applicant is suffering from chronic myofascial strain of the lumbar spine with left sided nerve root irritation. He further opined that the applicant’s lumbar spine injury has not recovered within the expected time and that his symptoms are compatible with the development of chronic pain in the lumbar spine. As a result, I find the treatment plan to be reasonable and necessary.

Chronic Pain Assessment

21The applicant claims entitlement to $2,000.00 for the cost of an examination for a chronic pain assessment. The Tribunal must determine whether, on a balance of probabilities, the evidence demonstrates that the assessment is reasonable and necessary.

22The applicant has persuaded me that the chronic pain assessment in question is reasonable and necessary. The respondent’s denial of this treatment plan is based, in part, on Dr. Feigelson’s Paper File Review Report dated December 30, 2016, wherein she concluded that the applicant’s lower back sprain and post-accident headaches had resolved. I disagree and prefer the evidence of the applicant. The medical evidence before me suggests that the applicant’s accident related pain experience was still present at the time this treatment plan was submitted. This is evidenced by the clinical notes and records from Kingsbridge Medical Centre, Dr. Getahun’s orthopaedic assessment and warrants further investigation when coupled with Dr. Pilowsky’s diagnosis.

Interest

23The applicant is entitled to interest for the cost of the OCF-18 dated April 13, 2015, OCF-18 dated November 30, 2015 and the chronic pain assessment. Interest is payable in accordance with section 51 of the Schedule.

Conclusion

24The psychological injury sustained as a result of the subject motor vehicle accident is not predominantly minor and, as a result, the applicant’s treatment is not subject to the MIG. The applicant is entitled to the cost of examination for a chronic pain assessment and the OCF-18’s submitted on April 13, 2015 and November 30, 2015 are reasonable and necessary. The applicant is also entitled to interest on these payments in accordance with section 51 of the Schedule.