Date: 2017-12-14

Tribunal File Number: 16-002947/AABS

Case Name: 16-002947 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:

R.P.

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Eleanor White

APPEARANCES:

For the Applicant: Matthew Wasserman, counsel

For the Respondent: Louise Kanary, counsel

HEARD: Written Hearing: May 17, 2017

BACKGROUND

1R.P., the applicant, was rear-ended while stopped in a line of traffic near Fairview Mall, in Toronto ON. Upon being struck, he was immediately aware of pain in his right shoulder and in his feet and ankles. Following the accident he sought benefits pursuant to the Statutory Accident Benefits Schedule - effective September 1, 2010 (the ''Schedule'').

2Upon being denied certain benefits the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the ‘Tribunal’). This dispute has proceeded to a written hearing.

3Wawanesa, the respondent, has acknowledged that the applicant’s injuries are not designated as minor injuries and thus not subject to the limits of the Minor Injury Guideline. It has denied the claims in dispute because it finds them to be not reasonable and necessary as a result of the reports arising from its section 44 examinations.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

a. Is the applicant eligible for attendant care in the amount of $1,200.04 per month for the period of July 26, 2016 to date and ongoing?

b. Is the applicant entitled to receive a medical benefit in the amount of $500.00 ($1,521.88 less $1,021.88 – partially approved) for chiropractic services, recommended by Physiocore and Sports Rehab in a treatment plan dated December 24, 2015, denied by the Respondent on January 8, 2016?

c. Is the applicant entitled to receive a medical benefit in the amount of $1,087.64 for chiropractic services, recommended by Physiocore and Sports Rehab in a treatment plan dated May 9, 2016, denied by the Respondent on May 19, 2016?

d. Is the applicant entitled to payments for the cost of examinations in the amount of $1,300.58 for an in-home assessment, recommended by Spinegroup Med Rehab in a treatment plan dated February 10, 2016, denied by the Respondent on February 25, 2016?

e. Is the applicant entitled to payments for the cost of examinations in the amount of $303.90 ($2,000.00 less $1,696.10 – partially approved) for a psychological assessment, recommended by Spinegroup Med Rehab in a treatment plan dated April 1, 2016, denied by the Respondent on June 20, 2016?

f. Is the applicant entitled to the expense for prescription medicine, Vimovo, in the amount of $43.83?

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

h. The respondent has raised the question of costs based on the conduct of the applicant in their preparation of written submissions.

RESULT

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

(a) The applicant is not entitled to attendant care for the period stated of July 26, 2016 to date and ongoing,

(b) The applicant is not entitled to the medical benefit in the amount of $500.00, ($1,521.88 less $1,021.88 – partially approved) for chiropractic services, recommended by Physiocore and Sports Rehab in a treatment plan dated December 24, 2015, denied by the Respondent on January 8, 2016,

(c) The applicant is not entitled to receive a medical benefit in the amount of $1,087.64 for chiropractic services, recommended by Physiocore and Sports Rehab in a treatment plan dated May 9, 2016,

(d) The applicant is not entitled to payments for the cost of examinations in the amount of $1,300.58 for an in-home assessment, recommended by Spinegroup Med Rehab in a treatment plan dated February 10, 2016,

(e) The applicant is not entitled to $303.90 ($2,000.00 less $1,696.10 – partially approved) for a psychological assessment, recommended by Spinegroup Med Rehab in a treatment plan dated April 1, 2016,

(f) The applicant is not entitled to the expense for prescription medicine, Vimovo, in the amount of $43.83,

(g) As I found the applicant is not entitled to any of the benefits claimed, there is no interest due on overdue payments of benefits.

(h) I find that costs are not awarded to the respondent.

ANALYSIS

6The only evidence submitted by the parties is documentary evidence. I have considered all of the documents submitted and summarized the ones I find relevant to my determination below.

1. Entitlement to Attendant Care Benefits

7Attendant care benefits are available to an applicant whose injuries are not defined as minor, under section 19 of the Schedule. The applicant’s injuries are not classified as ‘minor injuries’ as described in the Schedule and as such he may have been eligible for attendant care benefits taking account of the following:

• subject to the submission of an “Assessment of Attendant Care Needs” (Form 1) under s. 42 of the Schedule;

• the allowable amount payable shall not exceed $3,000 per month up to a maximum of $36,000 or the time limitation of 104 weeks post-accident unless optional benefits have been purchased; and

• that it is incurred by or on behalf of the applicant.

8The applicant has undergone various examinations, on the request of both the insurer, in a s. 44 Insurer’s Examination (IE) and also independently, to support his own appeal for the benefit of attendant care. The assessors, both independent and IE, have all reported some limitation in the applicant’s mobility and usage of his right arm due to pain in the right shoulder.

9The applicant lived, at this time, in a two-storey home on his own. In his submissions, he stated he was limited in his ability to perform some activities within and outside of his home, primarily with respect to housekeeping and home maintenance. When asked about his independence with his personal care, the applicant stated that he was able to manage his personal care with occasional assistance. The type of assistance that the applicant has indicated he needs is some aspects of housekeeping and snow shovelling which is also a housekeeping benefit. The benefit of housekeeping and home maintenance is only accessible to those whose injuries are designated catastrophic. The applicant has not sustained catastrophic impairment.

10In addition, the applicant admits that he cannot provide any evidence of having actually incurred any expense for attendant care. The applicant does make a request that the Tribunal find him to be eligible for attendant care past the denial date of July 26, 2016. I note that the submissions indicate a continuing problem with the right shoulder, however, I have no treatment plan, denied or otherwise for any time period beyond this date, for which to make a determination of reasonability and necessity. As delineated in s. 280 (1) of the Insurance Act, this Tribunal can only determine the entitlement of an applicant to a statutory accident benefit or the amount of the benefit to which the applicant is found to be entitled. The accident occurred on January 14, 2015 and the benefit of attendant care is available to him for a period of 10 years after that date. Up until the date of the hearing, no evidence has been submitted by the applicant to indicate he has incurred any expense for the purpose of procuring attendant care. In fact, the applicant has stated so in his written submissions.

11Although the applicant has requested that I make a decision on the reasonability or the necessity of attendant care, it is without effect as he cannot prove the care was incurred for the period in question

2. Entitlement to Medical Benefits

(a) Treatment Plan of December 24, 2015 from Physiocore and Sports Rehab

12The applicant asks that the respondent pay the balance of a partially approved treatment plan dated December 24, 2015, submitted by Dr. Feng Li, chiropractor of Physiocore and Sports Rehab. The unpaid balance of $500.00 was the amount invoiced for custom orthotics to assist the applicant with his left foot pain. The applicant’s submissions do not inform me if he did incur the expense of ordering the custom orthotics.

13I know from applicant’s submissions, on page 3 under “Background and Pre-accident Health” and from various IE reports that the applicant was a very active man, who enjoyed dance, coached boxing, walked and cycled. As related in his submissions, the applicant had stated that when his vehicle was struck from behind he felt pain in his feet and ankles. However, the applicant has a history of intermittent foot pain. The applicant complained of Achilles tendon pain in his foot after repeated long walks on sand during a vacation in Hawaii and after dance classes on April 30, 2014. This was noted in the clinical notes and records of Athlete’s Care Sports Medicine Centre, written by Bahram Jam, a therapist at that time.

14The Insurer’s Examination report from Dr. G. Maestrelli, orthopaedic surgeon dated May 19, 2016 related the applicant’s satisfaction with the resolution of his foot and leg pains with the use of gel orthotics in his shoes. We are not informed if these were custom orthotics or the gel insoles available “off the rack”. His only stated problems in that examination were with his chronic shoulder issues.

15I reviewed the Treatment Plan (OCF 18) from Dr. Feng Li and the only mention of foot issues in this plan are briefly recorded in Part 8 of the Treatment Plan, entitled Activity Limitations. Here, Dr. Li reports that “… dance classes given up due to his shoulder pain and ROM limitations as well as pain in his left foot.” There is no indication of an examination of the foot or gait that would justify the prescription of a custom made orthotic at a cost of $500.00. I was not directed to any information as to the purpose of the device, just those few words and an inclusion of an amount in Part 12 – Proposed Goods and Services requiring the approval of the Insurer.

16An imaging report from Dixie X-Ray, dated February 25, 2015 reported a normal exam of the feet, with joint spaces well maintained, no arthritic changes and no fractures. I am not directed to any medical evidence regarding the nature of the foot pain, and what the orthotic is supposed to do to help the applicant.

17I find there is no reason to approve the payment of this unpaid balance of the Treatment Plan of December 24, 2015.

(b) Treatment Plan of May 9, 2016 from Physiocore and Sports Rehab

18The second Treatment Plan in dispute is one submitted again by Dr. Feng Li, chiropractor of Physiocore and Sports Rehab. The treatment plan recommends the applicant receive over a 6 week period, 2 chiropractic treatments, 4 massage treatments and 4 sessions of exercise with the physiotherapist to further treat his shoulder pain and range of motion issues. This treatment is recommended 16 months after the car accident.

19On May 19, 2016 Dr. Maestrelli assessed the applicant in-person and provided a report on the applicant’s need for further treatment as recommended in this plan in dispute. Dr. Maestrelli acknowledged pre-existing shoulder problems including a history of pain, tendonitis, frozen shoulder, all of which could have been exacerbated by the motor vehicle accident. Dr. Maestrelli opined that the injuries sustained in the accident were limited to soft tissue strains, that there were no traumatic tendon tears related to the accident. He stated that the pre-existing conditions “would not prejudice the recovery from the soft tissue strain injuries.” Dr. Maestrelli included the applicant’s self-reports that the therapy was helpful and he was noting improvements to both range of motion and pain. He noted the applicant’s improvement in foot pain and also his continued use of Naproxen, on a ‘as-needed’ basis.

20Dr. Maestrelli states that the applicant’s pre-existing injuries, have led to degenerative changes in the right shoulder and that this is the cause of the applicant’s continued symptoms. Dr. Maestrelli further finds that the effects of the soft tissue injuries caused by the accident are somewhat isolated. He finds they temporarily amplified the pre-existing AC joint pain, but their recovery is “not prejudiced” by the pre-existing degenerative changes. So, the new soft tissue injuries could exacerbate the pre-existing injuries, but could resolve, unaffected by the older conditions and leave the pre-existing situation somewhat unchanged.

21The applicant argues in his submissions, that the earlier Insurer’s Examination report from Dr. Dharamshi had a more pragmatic point of view. He found that the pre-existing conditions would disallow full or maximal medical recovery from the injuries arising from the accident within the limitations of the $3,500.00 medical benefits in the Minor Injury Guideline (MIG). The applicant was consequently excluded from the MIG.

22The question before me is whether the proposed plan is reasonable and necessary. The plan allows for passive and active, however minimal, facility-based treatment. I consider the treatment portion of the plan to be very passive and relatively infrequent, aimed more to provide preventative or maintenance care. Given the applicant’s enjoyment and past participation in dance, boxing and cycling, provision of a home exercise regime seems to be more reasonable than four exercise sessions in a treatment facility over a period of six weeks. I find the treatment plan to be neither reasonable nor necessary.

(c) Medication Expense, Vimovo

23The use of Naproxen, a non-steroidal anti-inflammatory drug (NSAID), has been mentioned in the file as helpful for pain relief on an ‘as-needed’ basis. As the applicant explained in his submissions, Vimovo is a form of Naproxen with the addition of another element to protect the stomach from the drug itself. The invoice in dispute shows only one filling of this prescription from this pharmacy on January 29, 2016.

24From the applicant’s submissions I find very little indication of his use of medications for pain. There is a notation from the Athlete’s Care Sports Medicine Centre that the applicant found the use of NSAIDS helpful for his heel and shoulder pain. Both shoulder pain and heel pain have been recorded in the family doctor’s clinical notes but I was unable to read anything other than the use of Tylenol on occasion. I do not have evidence before me of the pattern or duration of NSAID usage prior to or after the accident. As a result, it is difficult to link the use medication usage to either the pre- or post-accident injuries. I do not have adequate evidence before me of prescription history to find it reasonable to allow the expense of the NSAID for the relief of pain solely associated with the injuries arising from the accident.

3. Entitlement to payment for the Cost of Examinations

(a) Assessment of Attendant Care Needs – OCF 18 dated February 10, 2016

25The final two substantive issues to discuss involve the cost of examinations. The first assessment in dispute is one submitted by Spinegroup Med Rehab for an in-home assessment to determine attendant care needs. This plan was submitted on February 10, 2016, 13 months after the accident. In Part 12 of the Treatment Plan, Dr. C. D’Alstofo, chiropractor, listed the issues of concern as dressing, bathing and house-cleaning. As the applicant is neither catastrophically impaired nor does he have optional benefits coverage, the only remaining issues of concern are dressing and bathing needs.

26Dr. S. Dharamshi, physician and sports rehab specialist conducted a paper review on March 2, 2016 at the request of the insurer to comment on the reasonability and necessity of this proposed assessment. He referred back to his in-person assessment of the applicant on October 19, 2015 (almost 4 months before the request). Dr. Dharamshi reported that the applicant, in person, had reported he had returned to work 2 weeks after the accident, driving and handling personal care and dressing with some assistance. He did report difficulty with activities involving housekeeping and home maintenance; benefits not available to him within his policy benefits. Dr. Dharamshi found the treatment plan to be unnecessary and the fee to be excessive.

27The respondent assessed the applicant in person on July 4, 2016. Erin Sesel, OT conducted the in-home assessment and found that the applicant, although still somewhat limited with decreased range of motion and pain, was motivated to accomplish most tasks on his own. She found no need for attendant care.

28The applicant has attended other orthopaedic specialists through his family doctor. He obviously has some decisions to make regarding his right shoulder and how best to manage his continuing pre-accident shoulder issues. Attendant care is reserved for those who cannot perform self-care activities. Through his own admission to Dr. Dharamshi and Dr. Maestrelli, the issue of attendant care does not seem to apply to this applicant and I find the assessment in dispute submitted by Spinegroup Med Rehab, dated February 10, 2016 to be neither reasonable nor necessary.

(b) Assessment of Psychological Needs (unpaid balance of $303.90)

29The Treatment and Assessment Plan submitted April 1, 2016 by Dr. C. D’Astolfo, chiropractor for psychological assessment was invoiced at the maximum allowed amount for psychological services under the Professional Services Guideline ($2,000) for an estimated 13.5 hours of professional time.

30Dr. Paul Kelly, psychologist, conducted an insurer’s examination of the applicant and concurred with the need for psychological services. One referral question addressed the fee billed in the Treatment Plan for psychological assessment. Dr. Kelly opined that the assessments could be completed within 10 hours of clinician’s professional time. This would alter the invoiced amount, when the fee for completion of the HCAI invoice was completed to $1696.10, a difference of $303.90.

31In the absence of any explanation by the appropriate service provider (the psychologist) for an account of time spent in preparing for and conducting the psychological assessment, I find the argument put forward by Dr. P. Kelly to be valid. The invoicing of professional services should be reflective of accurate timekeeping and not a default to the maximum allowed. I find the applicant is not entitled to the unpaid portion of the amount billed in the Treatment Plan dated April 1, 2016, submitted by Spinegroup Med Rehab for psychological assessment.

4. Is the Applicant entitled to Interest for Unpaid Benefits?

32As no claims for unpaid benefits were granted, there is no interest to be paid.

COSTS

33The respondent has requested, pursuant to Rule 19 that the applicant be ordered to pay costs, because of the applicant’s disregard of page limits ordered by Adjudicator Anwar in his Order of February 13, 2017. Adjudicator Anwar ordered in paragraph [17]:

“All submissions and affidavit evidence must be double spaced, single sided and 12 point Arial or Times New Roman font.”

The respondent argued that the licence taken by the applicant was prejudicial as it had adhered to the ordered limitation on submissions.

34Although I must caution the applicant for his disregard of the adjudicator’s direction, in this case I do not find the behaviour to exceed the bar for an award of costs as described in the Tribunal’s R. 19, which states that the party in question has acted unreasonably, frivolously, vexatiously, or in bad faith, in this one occurrence.