16-001539 v Wawanesa Mutual Insurance Company, 2017 CanLII 82039

16-001539 v Wawanesa Mutual Insurance Company

Date: 2017-11-15 Tribunal File Number: 16-001539/AABS Case Name: 16-001539 v Wawanesa Mutual 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:

Applicant

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

For the Applicant: Rajiv Kapoor, Counsel For the Respondent: Kathleen O'Hara, Counsel

HEARD IN WRITING: February 7, 2017

Overview:

1The applicant was injured in a motor vehicle accident on December 11, 2014. She was a seat belted passenger of a vehicle when she was rear ended while stopped at a stop sign.

2As a result of the accident, the applicant suffered both physical and psychological impairments. Her physical impairments include pain in her neck, shoulder and lower back, headaches and left knee and left toe pain. Her psychological impairments have resulted in her experiencing depressive and anxious symptomology relating to her ongoing pain as well as anxiety with respect to travelling in a vehicle.

3In order to address both her physical and psychological impairments, the applicant sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”) and to date, the insurer has approved and paid for benefits in the amount of $10, 806.74.

4The applicant submitted additional treatment plans which the insurer denied on the basis that the further treatment is not reasonable and necessary. The applicant’s challenge to those denials forms the basis of this application.

Issues in Dispute:

5There is some disagreement as to how the issues in dispute should be properly characterized. After reviewing the case conference Order of adjudicator Terence Hunter as well as the submissions and evidence of both the applicant and respondent, it is clear that the parties are in agreement that the applicant sustained an impairment within the meaning of the Schedule as a result of the accident.

6The parties are also in agreement that the applicant’s injuries do not fall within the Minor Injury Guideline. The insurer’s own psychological assessment completed by Dr. P. Kelly on April 7, 2015, concludes that the applicant has significant psychological symptoms and that “her diagnostic conditions are not subsumed under the Minor Injury Guideline definition as defined by the [Schedule].” Furthermore, to date, the insurer has approved and paid for benefits in the amount of $10,806.74, well above the Minor Injury Guideline limits on medical and rehabilitation benefits.

7Given those agreements, the remaining issues in dispute that I must decide on are properly characterized as follows:

a. Is the applicant entitled to receive a medical benefit in the amount of $3,658.50 for an orthopaedic assessment, recommended by Dr. Taj Getahun of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated July 2, 2015, and denied by the respondent on July 20, 2015?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,672.11 for a functional abilities evaluation, recommended by Dr. Amanda Louca of the Toronto Medical Centre in a Treatment and Assessment Plan (OCF-18) dated May 21, 2015, and denied by the respondent on June 5, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $2,152.00 for a functional abilities evaluation, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated June 10, 2015, and denied by the respondent on June 30, 2015?

d. Is the applicant entitled to receive a medical benefit in the amount of $5,450.00 for in-home sessions of exercise and mobilization and manipulation provided by a physiotherapist, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated March 24, 2016, and denied by the respondent on June 9, 2016?

e. Is the applicant entitled to receive a medical benefit in the amount of $2,347.27 for various assistive devices, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated June 15, 2015, and denied by the respondent on June 30, 2015?

f. Is the applicant entitled to receive a medical benefit in the amount of $5,450.00 for in-home sessions of exercise and mobilization and manipulation, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated October 29, 2015, and denied by the respondent on November 4, 2015?

g. Is the applicant entitled to receive a medical benefit in the amount of $4,706.23 for psychological services, recommended by Dr. Mehdi Lotfalizadeh of Assess Medical Diagnostics Inc. in a Treatment and Assessment Plan (OCF-18) dated April 8, 2016, and denied by the respondent on June 9, 2016?

h. Is the applicant entitled to receive a medical benefit in the amount of $3,183.60 for exercise acupuncture and massage therapy sessions, recommended by Health Pro Wellness in a Treatment and Assessment Plan (OCF-18) dated October 15, 2015, and denied by the respondent on December 31, 2015?

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

Result: The applicant has not met her onus of establishing on a balance of probabilities that the treatment plans in dispute are reasonable and necessary, and as a result, no interest is payable.

Discussion:

Are the disputed treatment plans reasonable and necessary?

8Approval of each of the treatment plans in dispute turn on whether the particular treatment plan is reasonable and necessary considering the evidentiary record. It is the applicant who bears the onus to establish, on a balance of probabilities, that the treatments plans in dispute are reasonable and necessary.

9The applicant failed to provide a persuasive analysis as to why each individual treatment plan was reasonable and necessary. The applicant, in its submissions, merely reproduced the particulars of the treatment plan in question and the identified goals. It then submitted that the applicant should be entitled to the medical benefit on the basis that it is “reasonable and necessary to the circumstances of the claimant” and that the medical evidence is demonstrative of this without directing me to any additional supporting evidence beyond the subject treatment plan itself.

10I acknowledge that a treatment plan, signed and submitted by a medical practitioner, attests to the fact that the treatment plan is reasonable and necessary. In this case, however, I do not find that reading each disputed treatment plan in question alone, without a persuasive analysis as to why it is reasonable and necessary, as convincing. The applicant’s submissions then, do not establish, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary.

11In addition, with respect to the treatment plans addressing the physical rehabilitation of the applicant, the respondent relies on the insurer’s section 44 examination conducted by Dr. Gharsaa (orthopaedic surgeon), Dr. Rajwani (chiropractor), Dr. McCutcheon (psychologist) and Ms. Thawer (physiotherapist) to come to the conclusion that these treatment plans are not reasonable and necessary.

12Dr. Gharsaa concluded that the applicant’s physical injuries were soft tissue in nature as the examination “failed to identify any radiculopathy, musculoskeletal pathology or any signs of ongoing musculoskeletal traumatic related impairment.”

13Dr. Rajwani concluded that the examination failed to reveal any signs of musculoskeletal findings. He also concluded that the applicant sustained uncomplicated soft tissue injuries and that no further facility based care was warranted.

14Ms. Thawer concluded that the applicant’s examination did not reveal any significant and consistently reproducible evidence of ongoing physical injury or impairment.

15In the absence of a persuasive analysis as to why any of the individual treatment plans are reasonable and necessary, I prefer the submissions and evidence put forward by the respondent.

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

16Since I have concluded that the treatment plans in dispute are not reasonable and necessary, then the applicant is not entitled to any interest.

Order:

17After considering the evidence, pursuant to the authority vested in the Tribunal under s.280 (2) of the Act, I order that the treatment plans in dispute are not reasonable and necessary and no interest is payable.