17-006369 v RBC General Insurance Company, 2018 CanLII 110918

Date: 2018-07-25

Tribunal File Number: 17-006369/AABS

Case Name: 17-006369 v RBC General Insurance Company

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

RBC General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Maureen Helt, Vice Chair

APPEARANCES:

Paralegal for the Applicant: Victoria Gorbenko

Counsel for the Respondent: Suzanne Clarke

Written Hearing on: April 9, 2018

OVERVIEW

1On May 16, 2015 the applicant was involved in an automobile accident and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent insurer declined to pay for certain treatment plans, stating that all of the applicant’s injuries fit within the definition of “minor injury” as set out in section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”) and further, that the applicant reached maximal medical recovery.

3Following a section 44 insurer examination, it was agreed by the parties that the applicant’s injuries fell outside of the MIG on the basis of a psychological impairment. Therefore, the only issues to determine are whether or not the four treatment plans in dispute for chiropractic services are reasonable and necessary.

PRELIMINARY ISSUE

4By way of letter dated March 31, 2018, the applicant informed the respondent and the Tribunal that it intended to challenge the admissibility of the insurer examination reports prepared by Dr. Boucher on the basis that an Acknowledgment of Expert’s Duty was not served as required by Rule 10.2 of the Tribunal’s Rules of Practice and Procedure (April 1, 2016) (Rules).

5The applicant also challenged the admissibility of Dr. Boucher’s Addendum report dated March 18, 2018, on the basis that no notice of insurer examination was sent to the applicant, as required by section 44(5) of the Schedule.

a. Request to exclude Dr. Boucher’s Reports for Lack of Acknowledgment of Expert Duties.

6I will not exclude the reports of Dr. Boucher on the basis of a lack of Acknowledgement form for the reasons that follow.

7By way of background, the applicant was referred for a section 44 insurer examination to HVE Healthcare Assessments for a Physician Assessment, to be conducted by Dr. Boucher. Dr. Boucher prepared an assessment report dated November 17, 2016. He also prepared a paper review report dated December 1, 2016 and an addendum report on March 18, 2018 (the “Reports”).

8The applicant objects to the admissibility of the Reports, as Rule 10.2 of the Tribunal’s Rules requires an expert witness to provide a signed statement acknowledging his or her duty to provide opinion evidence that is fair, objective and non-partisan. The applicant claims that no such acknowledgement was provided.

9The applicant also relies on the decision of the Ontario Divisional Court in Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316, [2012] O.J. No 3016 to support the proposition that opinion evidence may only be tendered through the evidence of a properly qualified witness.

10In its reply submission the applicant argues that if the Reports are excluded then the treatment plans must be found to be reasonable and necessary.

11The respondent, by way of letter dated April 6, 2018 (four days after the applicant’s reply submission was filed), provided a copy of an Acknowledgement form signed by Dr. Boucher and dated February 28, 2018 which the respondent states was delivered to the applicant. The applicant, by way of letter dated April 9, 2018 denies receiving it.

12The respondent also submitted that it provided a signed Acknowledgement form at Tab 15 of its responding submissions however, the form at Tab 15 is not signed by Dr. Boucher.

13It is not clear to me that a signed Acknowledgement form was served on the applicant. There is nothing on the record to confirm this fact. There was no fax confirmation form submitted verifying delivery of the Acknowledgement.

14In considering whether or not to exclude otherwise relevant evidence for a breach of the Rules I must take several factors into account. First, Rule 3.1 states that the Rules will be liberally interpreted and applied, and that they may be varied on the Tribunal’s own initiative to facilitate a fair process.

15In the Reports, Dr. Boucher confirms he is an expert in the field of Chronic Pain Management and Emergency Medicine. There is nothing to suggest that Dr. Boucher is not a qualified expert. Further, prior to its letter of March 31, 2018 the applicant did not challenge the qualifications of Dr. Boucher or the admissibility of the Reports on any other basis.

16While failure to provide a signed Acknowledgement form is troublesome, in this case, if the Reports were not admitted, the substantive prejudice that would fall on the respondent by the exclusion of relevant evidence does not facilitate a fair process. Therefore, the applicants request to exclude the Reports on the basis of lack of a signed Acknowledgement is denied.

b. Request to exclude Dr. Boucher’s Addendum Report

17I will exclude Dr. Boucher’s Addendum report dated March 18, 2018.

18The applicant challenged the admissibility of the Addendum report alleging that she did not receive a notice of examination (Notice), as required by section 44(5) of the Schedule.

19In its letter dated April 6, 2018, the respondent states that it provided the applicant with Notice regarding Dr. Boucher’s Addendum report and enclosed a copy of the Notice with its correspondence. The Notice is dated March 6, 2018 and is signed by the Litigation Specialist of the respondent and the applicant’s law firm of record was copied.

20In its responding letter dated April 9, 2018 the applicant confirmed its earlier position that no such Notice was served. There is nothing on the record to confirm that the Notice was actually provided to the applicant. There is no fax confirmation form.

21As with the Acknowledgement form, it is necessary for me to consider what prejudice would result to the applicant or the respondent if the Addendum report is either admitted or excluded.

22Section 44 of the Schedule provides an insurer with the right to obtain examinations. Insurer examinations are the only way the insurer can obtain its own medical opinions. These examinations allow the insurer to continually adjust the file and are necessary for the insurer to be able to fairly and effectively assess a claim for benefits.

23The respondent received new medical information from the applicant in February 2018 and it was this new medical information that was the subject matter of the Addendum report.

24The right to an examination however must be balanced with the right to notice of section 44 examinations to address concerns of unfair surprise and prejudice that can result at the hearing. In this case the Addendum report was provided after the applicant filed its submissions.

25It is not clear that the addendum report was prepared for the purpose of adjusting the file or otherwise.

26Therefore, in my view, while the applicant had an opportunity to respond in its reply I find the potential prejudice to the applicant of not having Notice outweighs that of any prejudice to the respondent in excluding the Addendum report. The addendum report is therefore excluded.

ISSUES

27The parties agree that the applicant suffered both physical and psychological injuries as a result of the motor vehicle accident. Both parties agree that the applicant’s psychological injuries remove her from the MIG. The only issues in dispute are whether the following claimed medical benefits are reasonable and necessary:

(i) Chiropractic services submitted by Dr. Yu of Mediwise Healthcare Clinic in the amount of $2,976.20 dated September 24, 2015 and denied by the respondent on October 6, 2015;

(ii) Chiropractic services submitted by Dr. Yu of Mediwise Healthcare Clinic in the amount of $1,458.92 dated November 3, 2015 and denied by the respondent on November 16, 2015;

(iii) Chiropractic services submitted by Dr. Yu of Mediwise Healthcare Clinic in the amount of $1,621.28 dated January 5, 2016 and denied by the respondent on January 19, 2016; and

(iv) Chiropractic services submitted by Dr. Yu of Mediwise Healthcare Clinic in the amount of $1,987.04 dated February 23, 2016 and denied by the respondent on March 8, 2016?

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

3. Is the applicant entitled to costs?

RESULT

28For the reasons set out below:

a. I find that the applicant is entitled to the medical benefits in the amount of $2,976.20 for chiropractic services set out in the treatment plan dated September 24, 2015 as the treatment is reasonable and necessary. As this benefit is payable, interest is also payable.

b. I find that the applicant is not entitled to the medical benefits for chiropractic services set out in the treatment plans dated November 3, 2015, January 5, 2016 and February 23, 2016 as there is little objective justification for the treatment. As such, they are not reasonable and necessary.

c. There is no entitlement to costs.

ANALYSIS

29Entitlement to medical benefits is determined under sections 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

30In this case the applicant submitted the four treatment plans completed by Dr. Yu as set out above, the clinical notes and records (CNRs) of her family doctor and the Mediwise Healthcare clinic.

31Dr. Yu, chiropractor with the Mediwise Healthcare Clinic described the applicant’s injuries as cervical sprain/strain; left shoulder impingement; left shoulder sprain/strain; restlessness and insomnia. All four treatment plans are for services which includes massage therapy, stretching exercises, TENS, heat therapy and exercises.

32The goals of all four treatment are pain reduction; increase in strength; increased range of motion. The functional goals are return to activities of normal living and return to pre-accident work activities.

33Dr. Yu notes that the applicant had decreased cervical range of motion and decreased left shoulder range of motion in the September 24, 2015 treatment plan. He also notes the applicant’s self-reported her overall improvement with the treatment to date at about 30 – 40 %. The respondent denied the September 24, 2015 treatment plan on the basis that the applicant’s injuries appeared minor and stated they needed to conduct a section 44 examination.

34When Dr. Boucher assessed the applicant, about six weeks after the treatment plan was submitted, he stated at page 11 of the report:

Since the accident, the claimant has undergone six months of passive therapy modalities. The claimant indicates that she has improved 50 % with respect to her injuries sustained in the accident. She now complains of neck and shoulder pain.

35Dr. Boucher concluded that the applicant sustained a minor injury which included a left/shoulder sprain/strain which he noted was consistent with the diagnosis in the September 24, 2018 treatment plan. He also concluded that the applicant had reached maximal medical recovery and therefore the treatment plan was not reasonable or necessary. The respondent relied on Dr. Boucher’s report to deny treatment.

36I disagree with the respondent’s denial of the treatment plan. In this case it is important to note that the examination of the applicant occurred after, or during, the treatment set out in the September 24, 2015 plan. At the time the applicant attended for Dr. Boucher’s examination she had already had the benefit of treatment from Dr. Yu and she continued to attend for treatment despite the plan being denied as she was receiving a positive response to treatment. Prior to Dr. Boucher’s report I find that there is nothing to contradict the applicant’s self-reports of pain and limitations in movement and of improvement, with treatment, up to that date. I therefore find that the provision of treatment as set out in the September 24, 2015 treatment plan to be reasonable and necessary. However, this finding marks a turning point in the care of this applicant. The remaining treatment plans in dispute are discussed below.

37These three treatment plans recommend further passive care, including chiropractic services, massage therapy, TENS and physical exercise. All three plans were denied on the basis of Dr. Boucher’s November 17^th^ report where he concluded the applicant reached maximal medical recovery.

38I find it difficult to ascertain the reasonableness of these proposed treatment plans as they were submitted either around the same time of Dr. Boucher’s examination or within a few months afterwards.

39In the treatment plans dated November 3, 2015, January 5 & February 23, 2016, Dr. Yu states that the applicant’s self-reports of overall improvement are in the range of 35-45%. This is only slightly above what was reported in September 24, 2015.

40The self-reports of pain in the neck and shoulder remain virtually unchanged in each of the three plans with the applicant reporting pain in the range of 6/10 for her neck and shoulder in the three plans. I find therefore that the plans do not establish that the treatment is helping the applicant move toward the goal of pain reduction. In fact, the level of pain appears static.

41With respect to mobility and range of motion Dr. Yu reports that on November 3, 2015 the applicant had 50 degrees left and right rotation (normal is 80 degrees). In both the January 5, 2016 and February 23, 2016 treatment plans the level of right and left rotation increased to 60 degrees. It is not clear to me that the ten degree increase in range of motion is a direct result of the treatment provided or from passive stretching exercises.

42Overall, based on the applicant’s reporting to Dr. Yu there does not appear to be any improvement in her perception of pain and little improvement in range of motion.

43I also find that the CNRs of the family doctor and Mediwise provide little, if any, justification for continuing with the course of treatment set out in the above plans. In reviewing the Mediwise CNRs it is evident the applicant attended regularly during the course of the four proposed treatment plans and that she continually reported pain and discomfort. The CNRs do not however speak to whether the treatment provided assistance to the applicant. I therefore find the CNRs fail to establish that the course of treatment is providing any improvement to the applicant.

44The CNRs of the family doctor also fail to support the applicant’s claim for continued treatment. Other than the applicant attending at his office a couple of days after the accident, when she was prescribed Tylenol for pain, the only other notes that refer to shoulder or neck pain are September 9, 2015 and March 24, 2016 despite the applicant attending almost monthly for other unrelated matters during this time period. As such, I find the CNR’s carry limited weight in the assessment of whether the treatment plans are reasonable and necessary.

45The applicant did not provide any other evidence to support her claim for medical benefits.

46In support of its denial, the respondent relied on the insurer examination and report of Dr. Boucher. In his report of November 17, 2015 he concluded: (at page 11)

Despite the claimant’s subjective reports of neck and left shoulder pain, during the physical examination I did not identify objective evidence of ongoing musculoskeletal, neurological or orthopaedic accident-related injury or impairment. [The applicant] had a normal physical examination.

47Dr. Boucher also stated there were no diagnostic tests which revealed any fractures or abnormalities as a result of the accident and in particular, an ultrasound of the applicant’s left shoulder, dated September 9, 2015 confirmed no abnormalities in her shoulder Dr. Boucher concluded that the applicant would not benefit from further facility based treatment and instead should be engaged in an independent exercise program.

48In addition, Dr. Boucher confirmed that the applicant’s functional goals of returning to activities of daily living and returning to work had been met. The Applicant confirmed that she only missed one day of work since the accident and that she remains independent in activities of daily living.

49Based on the totality of the evidence before me I find that the applicant has failed to establish the treatment plans dated November 3, 2015, January 5 & February 23, 2016 are reasonable and necessary.

COSTS

50The applicant has requested that the Tribunal order the respondent to pay for its costs in this matter. Under Rule 19.1 of the Rules, an award for costs is an exceptional remedy and only awarded where a party has acted in a manner that is unreasonable, frivolous, vexatious or in bad faith. There is no evidence of such conduct in this case. The request for costs is denied.

ORDER

51The applicant is entitled to receive a medical benefit pursuant to a treatment plan submitted by Dr. Yu, chiropractor, from Mediwise Healthcare Clinic for chiropractic services in the amount $2,976.20 dated September 24, 2015, plus applicable interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.