Licence Appeal Tribunal
Tribunal File Number: 17-005887/AABS
Case Name: 17-005887 v Wawanesa Mutual 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 (by her litigation guardian)
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Applicant by her litigation guardian
Counsel for the Applicant: Joseph Filice
Counsel for the For the Respondent: Bianca Da Cost
Representative for the Respondent: Sophie Eng
Written Hearing and In Person Hearing: May 1, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 13, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010. (“the Schedule”).
2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal- (the “Tribunal”).
ISSUES IN DISPUTE
3The issues in dispute are as follows:
(a) Is the applicant entitled to receive a rehabilitation benefit in the amount of $718.00 for chiropractic services, submitted in a treatment plan by Revive Health Centres on June 2, 2016 and denied on June 6, 2016?
(b) Is the applicant entitled to receive a medical benefit in the amount of $2000.00 for other goods and services of a medical nature submitted in a treatment plan by Network Health Assessment Centre on June 16, 2016, and denied on June 28, 2016?
(c) Is the applicant entitled to receive a rehabilitation benefit in the amount of $718.66 for chiropractic services, submitted in a treatment plan by Revive Health Centres on September 28, 2016 and denied on September 30, 2016?
(d) Is the applicant entitled to receive a rehabilitation benefit in the amount of $944.28 for chiropractic services, submitted in a treatment plan by Revive Health Centres on January 11, 2017, and denied on January 17, 2017?
(e) Is the applicant entitled to receive a rehabilitation benefit in the amount of $831.47 for chiropractic services, submitted in a treatment plan by Revive Health Centres on June 22, 2017 and denied on July 10, 2017?
(f) Is the applicant entitled to a medical benefit in the amount of $514.00 for radiographic exam and chiropractic treatments recommended in a treatment plan submitted by [the] Chiropractic Health on September 27, 2016 and denied on October 4, 2016?
(g) Is the respondent liable to pay an award under Regulation 664, Automobile Insurance1 (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?
(h) Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
4The applicant’s claims for medical/rehabilitation benefits are dismissed.
5The applicant’s claim for interest is dismissed as there are not any overdue payments owing.
6The applicant’s claim for an award under section 10 of Regulation 664 is dismissed as there is no evidence that the respondent unreasonably withheld or delayed the payment of benefits
BACKGROUND
7The applicant was a passenger in a car driven by her Mother involved in an accident on June 13, 2013.
8The applicant did not need medical treatment on the day of the accident. The applicant was autistic.
9The applicant filed an application for arbitration at FSCO to deal with non –earner benefits, cost of examination benefits and various medical-rehabilitation benefits.
10A hearing was held on July 10-13, 17, 2017 that considered several similar physiotherapy treatment plans and found them not to be reasonable or necessary.
11The applicant was diagnosed with non-verbal autism in 1988. She engages in self injurious behaviours and at times is self-injurious to her head. The care and supervision of the applicant is mostly looked after by her mother.
MEDICAL REPORTS
12The insurer’s Multidisciplinary Assessment report dated February 24, 2014, by Dr. Bently and Ms. Sharon Mills (OT) opines “that the observations of the applicant did not demonstrate any obvious neuromusculoskeletal dysfunction”. 2
13In the Insurer Examination (IE) Report dated June 16, 2016, Dr. Castiglione stated that: “from a physical perspective, the applicant was diagnosed with uncomplicated soft tissue sprain/strain type injuries and as per the multitude of independent assessments already on file, despite the limitations of any physical examination, there was no convincing evidence of any neuromusculoskeletal impairment that was attributable to the accident.” 3
Respondent Evidence
14The Chiropractic Assessment of Dr. M. Rajwani, chiropractor), dated July 19, 2016, ( supported by his report of April 4, 2018) noted:
“As noted, I have reviewed the Treatment Plan completed by Dr. Sugar dated May 24, 2016 recommending further exercise. It is my opinion that this Treatment and Assessment Plan is not reasonable and necessary for accident-related impairments. The claimant has had a sufficient course of care and any ongoing care, in my opinion, would not be accident related. She may require ongoing intervention for non –accident related symptoms that occur as a result of her severe autism. However, in my opinion, the Treatment and Assessment Plan would not be reasonable and necessary.”
Applicant Evidence
15The applicant’s family doctor Dr. Duchastel, noted throughout nine visits by the applicant from June 27, 2013, to March 1, 2016 that the applicant complained of pain in her neck, head and left ear; that the applicant is cutting her hair on the left parietal area of her head; is overeating and is more emotional; self- inflicts wounds to her head; and has trouble sleeping. 4
16The applicant saw Dr. Hassan, psychiatrist four times from August 12, 2014, to January 28, 2016. His reports from A and his reports state the same findings of Dr. Duchastel.
17The applicant had the assistance of personal support workers four times in 2013 and once in 2015 from Community Care Access. Their reports indicate that the applicant is bedwetting, oversleeping, crying and tends to have anti- social behaviour. 5
18The applicant attended at Revive Health Centres from 2013-2015 for physiotherapy once per week, and once per month between 2016 and the present to deal with her neck, shoulder and back pain. The applicant also supplemented her physiotherapy at [the] Chiropractic Health Centre between August 2, 2016 and September 12, 2016, 16 times
ANALYSIS
19The onus is on the applicant to show that the benefits she claims are reasonable and necessary. Section 14 of the Schedule requires any impairment to be as a result of the accident. Section 15 and 16 of the Schedule further requires all medical and rehabilitation benefits incurred to be reasonable and necessary before an insurer is required to pay for them.
20The applicant’s major claims before me are for chiropractic services. The applicant has been getting treatment for the neck, back and shoulder pain for four years on a regular basis. One could reasonably conclude that she has reached maximum medical benefits and that further facility based care is neither reasonable nor necessary.
21The evidence that the applicant has submitted, does not speak to the benefits of ongoing chiropractic services, four years post-accident, and as such, the applicant has not met her onus.
22Dr. Castiglione stated in his June 16, 2016 report “that there was no convincing evidence of any neuromusculoskeletal impairment that was attributable to the accident.” This finding makes it clear that any current problems the applicant has with neck, shoulder and back pain, are not as a result of the accident.
23In the Chiropractic Assessment of Dr. M. Rajwani (Chiropractor) dated July 19, 2016, he noted that further care would not be related to any impairment resulting from an accident.
24I find on the evidence that the applicant has not proven on a balance of probability that her continuing medical issues are a result of the accident.
25I also find that the applicant has not proven that the medical rehabilitation claims sought are reasonable and necessary.
26I find that the applicant is not entitled to interest on overdue payments as there are no payments owing.
27I find that the applicant is not entitled to an award under section 10 of Regulation 664.
Released: July 17, 2018
Robert Watt, Adjudicator
Footnotes
- R.R.O. 1990, Reg. 664
- Insurer’s Hearing Brief Tab 20E
- Ibid tab 20e
- CNR’S of Dr. Duchastel dated June 27, 2013 to April 24, 2014
- Progress notes from CCAC dated June 30, 2013; September 23, 2013;October 18, 2013; November 19, 2013;April 15, 2015