17-001083 v Wawanesa Mutual Insurance Company, 2017 CanLII 87545

Date: 2017-12-15

Tribunal File Number: 17-001083/AABS

Case Name: 17-001083 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: Eleanor White

APPEARANCES:

For the Applicant: Rajiv Kapoor, paralegal

For the Respondent: Kathleen O'Hara, counsel

HEARD: Written Hearing: June 14, 2017

OVERVIEW

1The applicant, [the applicant], was involved in an automobile accident on December 11, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2[The applicant] applied to the respondent for medical benefits for assistive devices, and for both treatment and assessment of his injuries. The applicant’s injuries arising from the accident were considered predominantly minor, as defined in the Schedule, and he received treatment outside the Minor Injury Guideline (MIG) because of his pre-accident medical history. The respondent determined that the various benefits included in [the applicant]’s appeal to the Tribunal were not reasonable and necessary.

3The respondent found the information provided by [the applicant] was inconsistent and lacked credibility and because of this, the applicant’s claims for medical benefits were investigated and subsequently not approved. [The applicant] did not agree with the respondent’s position and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues and proceeded to this Hearing.

ISSUES IN DISPUTE

1. Is the applicant entitled to a medical benefit in the amount of $1,819.32 for other assistive devices recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc., in a treatment plan dated January 5, 2016, denied by the respondent on January 18, 2016?

2. Is the applicant entitled to a medical benefit in the amount of $1,914.51 for other assistive devices recommended by Dr. Amanda Louca of Toronto Medical Centre, in a treatment plan dated June 15, 2015, denied by the respondent on June 30, 2015?

3. Is the applicant entitled to a medical benefit in the amount of $5,450.00 for other assistive devices recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc., in a treatment plan dated October 29, 2015, denied by the respondent on November 4, 2015?

4. Is the applicant entitled to receive a medical benefit in the amount of $3,067.20 for chiropractic services recommended by Dr. Aliya Salayeva Heath-Pro Wellness in a treatment plan dated October 15, 2015, denied by the respondent on November 4, 2015?

5. Is the applicant entitled to a medical benefit in the amount of $2,486.49 for psychological services recommended by Dr. Mehdi Lotfalizadeh of Assess Medical Diagnostics Inc., in a treatment plan dated May 16, 2016, denied by the respondent on June 9, 2016?

6. Is the applicant entitled to receive medical benefits in the amount of $5,450.00 for in-home physiotherapy services, recommended by Dr. Mitesh Rajodiyah from Assess Medical Diagnostics Inc., in a treatment plan dated March 24, 2016, denied by the respondent on June 9, 2016?

7. Is the applicant entitled to receive medical benefits in the amount of $3,427.53 for in-home physiotherapy services, recommended by Dr. Mitesh Rajodiyah from Assess Medical Diagnostics Inc., in a treatment plan dated August 25, 2016, denied by the respondent on August 30, 2016?

8. Is the applicant entitled to payments for the cost of examinations in the amount of $3,658.50 for an orthopedic assessment, performed by Dr. Taj Getahun, Assess Medical Diagnostics Inc. dated on June 30, 2015, denied by the respondent on July 20, 2015?

9. Is the applicant entitled to interest on the overdue amounts?

RESULTS

4I find that none of the Treatment Plans are reasonable and necessary. As no benefits are outstanding, I find no interest is payable. The appeal is dismissed.

FACTS

5On December 11, 2014, the applicant was involved in a rear-end motor vehicle accident while stopped at a stop sign. His wife was also in the car. No police or emergency personnel were summoned. He drove his wife to work, then drove to the collision centre and finally had the car towed to a body shop. He did not seek immediate medical attention. He returned to his job at a pizza store on the following day and continued to work on a regular basis.

6The applicant sought medical benefits from the respondent and was approved for $11,018.48 in physical and psychological services. The Insurer Examination (IE) psychological assessor, Dr. McCutcheon,² assessed the applicant, who denied any pre-existing psychological issues, and found the applicant’s symptoms significant and compelling enough to recommend exclusion from the confines of the MIG policy limit. The respondent did so.

7After the applicant incurred multiple treatment plans for physical and psychological services, the respondent denied further treatment plans. The applicant attended various IEs and the respondent maintained its denial of these benefits. As a result, the applicant appealed the denial to the Tribunal.

THE LAW

8Under section 14 of the Schedule, an insurer is liable to pay the medical and rehabilitation benefits under sections 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15(1) includes, among other expenses, those for medical, chiropractic, psychological, occupational therapy and physiotherapy services, and also other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person. The same section specifies that the medical benefits must be reasonable and necessary expenses incurred as a result of the accident. In viewing the issues in dispute, I must decide if the services are reasonable and necessary and whether or not the service has been incurred as a result of the accident.

ANALYSIS

9The respondent raises the applicant’s credibility as an issue. I do not find credibility to be an impediment in determining the issues in dispute. The evidence was clear and consistent in that largely, the injuries arising from the accident were predominantly soft tissue in nature and quite likely related to older injuries in the lumbar spine. Before reviewing the Treatment Plans in dispute, I will begin my analysis with an examination of the accident and its effect on the applicant.

Mechanism of the accident

10The respondent decided to investigate the mechanism of the accident. It references the report from Impact Forensics³ that declared the accident involved a rear-end impact at a low rate of speed (between 5 and 10 Km/hour), and that some of the reported damage of the vehicle was not related to the accident. Understanding the degree of impact provides me with some information about the type of injury one commonly sees as a result of the accident. In this case, one would expect the nature of the injury to be commensurate with a low-speed, low-impact collision.

Injuries arising from the accident

11In assessing whether or not the treatment plan is reasonable and necessary, the first thing I considered is the service provider’s description of the applicant’s accident-related injuries. On June 15, 2015, Dr. Amanda Louca, a chiropractor, of Toronto Medical Centre submitted a Treatment Plan in which she listed the following injuries as resulting from the accident: cervical spine vertebral subluxation and radiculopathy concurrent with her diagnosis of a WAD 1 injury; lumbar and sacral vertebral subluxation and radiculopathy concurrent with a sprain/strain injury of the lumbar and the sacral spine and sacroiliac joints, as well as non-organic sleep disorders, nervousness and post-traumatic stress disorder, the latter diagnosis of which is not within her scope of practice as a chiropractor.

12This set of injuries appeared in Dr. Taj Getahun’s (orthopaedic surgeon) Treatment Plan for an orthopaedic assessment submitted June 30, 2015 and again in Dr. Justin Guy’s (chiropractor) plan for assistive devices submitted January 5, 2016. I find this set of injuries problematic. The two major diagnoses logically arising from this type of automobile accident include sprain/strain injury of the lumbar and sacral region of the spine and WAD 1, a minor whiplash classification. A WAD 1 injury is generally described⁴ as a neck “whiplash” including only pain, tenderness and/or stiffness, but not including any neurological symptoms or signs such as radiculopathies or altered reflexes and also not including altered ranges of motion. Here the doctors are referring to a WAD 1 combined with vertebral subluxation in all parts of the spine and multiple levels of radicular nerve symptoms, or “radiculopathies.” The earliest treatment plan is signed by Dr. Amanda Louca, who also diagnosed the applicant with post-traumatic stress disorder and a psychological condition, diagnoses falling outside the scope of her practice.

Inconsistency of the historian in presenting pre- and post- accident status

13In their diagnoses of the applicant’s injuries, the doctors assert that they are unaware of any pre-existing conditions. Additionally, the applicant denied any pre-accident psychological medications, treatments or issues during his IE psychological assessment.

14Dr. McCutcheon made his diagnosis of the applicant based on his examination findings of the applicant’s current status and thus found it relevant to the accident. This allowed the applicant to be removed from the confines of the MIG. It is evident in reading all of the submissions, including the applicant’s family doctor’s clinical notes,⁵ that although the psychological presentation may have been part of the applicant’s presentation to Dr. McCutcheon, the problems were present long before the accident. If disclosed, the same result may have occurred, allowing the applicant to be removed from the MIG due to pre-existing conditions. However, the discrepancy changes the discussion surrounding causation and does not present a consistent record of the history of the applicant’s issues.

Dr. Amanda Louca, Toronto Medical Centre: $1,914.51

15The Treatment Plan dated June 15, 2015 submitted by Dr. Amanda Louca of Toronto Medical Centre recommends assistive devices, including a wide range of devices that are often bundled together. In this case, the cost of the items in the kit is $1,914.54. The kit contains three types of pillows; an orthopaedic, a cervical and a body pillow; as well as a back roll, mattress topper, Swiffer Wetjet, long-handled dust mop, shoe horn and bath scrubber, two types of ergonomic mats, an ergonomic computer keyboard and mouse, exercise ball, hot/cold gel pack, pain relief gel, and a light-weight vacuum.

16The respondent referred this plan, among others, to Dr. Gharsaa, an orthopaedic surgeon, for an IE under section 44 of the Schedule. Dr. Gharsaa had previously assessed the applicant in-person on March 15, 2015 but conducted a paper review in this case. Dr. Gharsaa noted evidence of only soft tissue injuries. The applicant advised him that he did not participate in any housekeeping duties before or after the accident. Dr. Gharsaa advised him to continue with his home exercise program as the applicant indicated his treatments were only minimally helpful in a very limited and temporary manner.

17I have been given no evidence of the applicant’s need for computer equipment, for either his personal or business needs. The applicant has also denied a need for any housekeeping tools. There has been no evidence provided to indicate his sleeping accommodations require improvement. His sleep problems were described in the Treatment Plan as being non-organic, which generally refers to psychological reasons. If indeed his sleep problems were due to an inadequate mattress or pillow, the applicant is required to show need for the items specifically related to the injury and whether the items are indeed helpful and have reduced his sleep difficulties.

18The applicant has submitted that he should not be denied this benefit as it is “reasonable and necessary for his circumstances in that he continues to suffer from consistent ongoing pain”⁶ and denial would be “detrimental to his overall and long-term health”. The applicant does not provide any evidence as to the necessity of these particular items, nor draw my attention to any opinion offered by Dr. Louca in her proposal for these goods.

19The applicant has in no way met his onus of proving this benefit to be reasonable and necessary for his recovery from any injuries directly related to the accident.

Dr. Justin Guy, Assess Medical Diagnostics: $1,819.32

20Dr. Guy, chiropractor at Assess Medical Diagnostics, recommended other assistive devices in his Treatment Plan dated January 5, 2016, including a digital EMS (muscle stimulator), an over-door traction kit, exercise equipment and a hand-held massager. There were no specific recommendations for the type of exercise equipment included with the other devices. Dr. Guy did not explain the benefits of these items and why they were both reasonable and necessary for the applicant.

21The respondent sent this plan to Dr. M. Rajwani (chiropractor) for an IE paper review. Dr. Rajwani had previously seen the applicant in person to conduct an assessment on another matter. Dr. Rajwani found the Treatment Plan to be not reasonable and necessary for various reasons. Dr. Rajwani had spoken with the applicant previously⁷, when the applicant informed him that the facility-based treatment was only helpful for a very short period of time and that he was pursuing an exercise program on his own in his condo gym and pool. He was swimming four to five times per week. There was no finding of radiculopathy by Dr. Rajwani or Dr. Gharsaa in the documents provided for the assessment and the need for a traction kit was not established. A good weight-training and cardio program was seen as more beneficial than any EMS or TENS⁸ type of machine and a hand-held massager was thought to be entirely passive and of minimal use. Dr. Rajwani did not find the Treatment Plan for $1,819.32 to be reasonable and necessary. As I am presented with no evidence of the details of the equipment being provided and also no evidence of the efficacy of the equipment for this applicant, I agree with the respondent and find this plan to be not reasonable and necessary.

Dr. Justin Guy, Assess Medical Diagnostics: $5,450.00

22Dr. Guy recommended a Treatment Plan in the amount of $5,450.00, dated October 29, 2015. He cited the same set of injuries as in previous plans and recommended further in-home treatment for the applicant, including multiple sessions of therapy, manipulation, mobilization and exercise at “multiple body sites”, as well as planning, servicing, transportation and documentation costs for the above. There is no explanation as to why the services are to be provided in the applicant’s home, which necessitates higher fees and travel costs.

23Again, the applicant submits that the evidence of the necessity for the plan is the applicant’s “consistent ongoing pain,” despite 10 months of facility-based care and the applicant’s reported statement that he found the treatment to date minimally helpful, and so pursued his own exercise program.

24This plan was reviewed by Dr. Rajwani who found the treatment recommendations to be not reasonable and necessary, as no basis was provided for in-home treatment and the excessive fees. I agree and do not find the treatment plan to be reasonable and necessary.

Dr. Aliya Salayevo, Toronto Medical Centre: $3,067.20

25Another treatment plan, dated October 15, 2015 was submitted by Dr. Aliya Salayevo, chiropractor from Toronto Medical Centre, recommending similar care. In this plan, the chiropractor noted an almost identical injury list and recommended 20 sessions of exercise, 10 sessions of acupuncture and six sessions of multiple body therapy and massage therapy, in the amount of $3,067.20. This plan was sent along with the plan from Dr. Guy, of October 29, 2015 to Dr. Rajwani for a section 44 IE assessment as noted.

26Again, Dr. Rajwani found no reason to extend facility-based care. The applicant has had quite a bit of therapy and his predominant problem seems to be the pre-existing, disc-related pain in the lower back and extending into the leg. This problem has been documented in the family doctor’s notes as long-standing, and unrelated to the automobile accident of December 11, 2014. The treatment to date has been only minimally successful and the applicant is pursuing an independent exercise program. Based on the family doctor’s notes, the applicant has been counselled to consider a surgical answer for his disc problems. Again, in his submissions, he argues only that he is entitled to have this benefit and it will be harmful for him should the care be denied. That statement on its own is insufficient to persuade me that this particular treatment plan is reasonable and necessary.

Dr. Mitesh Rajodiyah, Assess Medical Diagnostics Inc.: 1) $5,450.00 2) $3,427.52

27Dr. Rajodiyah submitted two treatment plans to the respondent. The first was dated March 24, 2016 in the amount of $5,450, recommending eight sessions of physiotherapy be provided in the applicant’s home over a period of eight weeks. Again, there were costs for multiple sessions of therapy, mobilization, exercise and administrative and travel expenses, with no explanation of the reason for home-based treatment.

28The denial of the plan arose from the section 44 IE assessment conducted by Abbey Thawer, physiotherapist, on June 28, 2016. She found no compelling reason for the continuation of therapy that had been found unhelpful by the applicant, particularly after extensive facility-based treatment. She also found the fees excessive and found no explanation for home-based care.

29Based on this IE, the respondent again denied a second plan dated August 25, 2016 from the same provider in the amount of $3,427.52, again recommending in-home physiotherapy treatment. The applicant has not supported the submission with any compelling argument to justify the continuation of care, the necessity of home-based care and the excessive fees in the treatment plans. I cannot find any reason to justify this treatment; therefore I find this treatment plan is not reasonable and necessary.

Dr. Mehdi Lotfalizadeh, psychological treatment: $2,486.49

30Dr. Lotfalizadeh submitted a treatment plan dated May 16, 2016 in the amount of $4,706.23. The plan recommended 12 one and one-half hour sessions of psychological services. The insurer set up a section 44 IE within a multi- disciplinary assessment and the applicant was assessed on July 26, 2016 by Dr. McCutcheon, psychologist.

31Dr. McCutcheon found that the recommended services were partially reasonable and necessary, based on the applicant’s presentation of his difficulties. The assessor recommended that 12 one hour sessions were sufficient and adjusted the fee to the recommended professional service fee guidelines, approving treatment in the amount of $2,219.74. The difference between the submitted treatment plan and the amended recommendation of the IE assessor is $2,486.49, for which the applicant is claiming in his application to the Tribunal.

32The argument of Dr. McCutcheon is reasonable with respect to amount of care and the professional fee applied and I agree that this approval, although partial, is in keeping with the fee guidelines and the services are not compromised. Therefore, I find the applicant is not entitled to the balance of the treatment plan because it is not reasonable and necessary.

Cost of Examination for Orthopaedic Assessment: $3,658.50

33Dr. T. Getahun, Orthopaedic Surgeon, submitted a treatment plan recommending an orthopaedic assessment of the applicant, dated June 30, 2015. This plan was denied by the insurer because of a prior assessment conducted by Dr. Gharsaa.

34Dr. Gharsaa assessed the applicant on March 30, 2015 for a related issue and again on June 29, 2015 for review of an attendant care issue. In his account of his history with lower back pain, the applicant stated that he had minimal problems with his lower back, other than an episode in 2012, but no significant difficulty. He reported that that since the accident he had pain in the lower back and also radiating down his left leg. Dr. Gharsaa’s examination findings included elicited pain in the lower back and sacroiliac joint on the left with some pain upon performing a straight left leg raise, into the left buttock. Dr. Gharsaa could not attest to any signs of radiculopathy. His recommendations included a self-directed core strengthening program and resumption of daily activities to avoid further deconditioning. Based on Dr. Gharsaa’s report, the plan was denied.

35The applicant’s reporting of his pre-accident condition as being quite insignificant was not helpful. Even without knowledge of prior history, as was noted in the family doctors clinical record, Dr. Gharsaa did not recommend continued facility-based treatment or an invasive procedure but instead recommended self-directed core strengthening. I find I agree with Dr. Gharsaa based on his two assessments of the applicant and that the best validation of that recommendation is the applicant’s own story. He has repeatedly stated that treatment has been largely unhelpful in a lasting manner and prefers to follow his own swimming and gym routines for core strengthening. I do not find the treatment plan recommending an orthopaedic assessment to be reasonable and necessary.

ORDER

38Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that the appeal is dismissed

Footnotes

1. 1O. Reg. 34/10.
2. 2IE psychological assessment of July 26, 2016, Dr. K. McCutcheon, North York Rehabilitation Centre Corp.
3. 3Correspondence of May 12, 2015 from Michael Jenkins, Impact Forensics: Respondent’s written submissions.
4. 4Quebec Task Force; Guidelines for the Management of Whiplash Associated Disorders, 2001, p. 14
5. 5Dr. Ziad Behiya, CNR December 19, 2013.
6. 6Applicant’s written submissions, at para. 16.
7. 7IE assessment, Dr. M. Rajwani, December 7, 2015, p.3 Summary of Medical Treatments/Services.
8. 8EMS Electro-Muscle Stimulator, TENS – Transcutaneous Electrical Nerve Stimulator.