Tribunal File Number: 17-004679/AABS
Case Name: 17-004679 v RBC 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
RBC Insurance Company
Respondent
DECISION
ADJUDICATOR: Raj Sharda
APPEARANCES:
For the Applicant: Aicia Stuart, Counsel
For the Respondent: John D. Dean, Counsel
Held in writing: August 16th, 2018
OVERVIEW
1The applicant was involved in an automobile accident on December 11, 2007, ("the accident") and sought medical benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the "Schedule")1. The applicant was denied said medical benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").
2The parties participated in a case conference but were unable to resolve all the issues in dispute. Hence this matter proceeded to a hearing in writing.
3The applicant states he suffered injuries to his neck and lower back arising from the accident and these injuries remain impairments arising from the accident over 8 years post-accident.
4The respondent states that the applicant's injuries are not as a result of the accident and arise from post-accident events, namely a drug overdose and head trauma suffered by the applicant within a few days after the accident.
5The Tribunal must address the causation issue first and then whether the proposed treatment plans dated between 7 - 9 years after the accident are reasonable and necessary.
ISSUES IN DISPUTE AT THE HEARING
6The issues before the Tribunal are:
i. Is the applicant entitled to a medical benefit in the amount of $2,421.79 for physiotherapy services recommended by Accelerated Health and Wellness, submitted on May 6, 2015 and denied on July 23, 2015?
ii. Is the applicant entitled to a medical benefit in the amount of $2,199.26 for a chronic pain assessment recommended by Michael G. DeGroote Pain Clinic, submitted on June 2, 2016 and denied on September 12, 2016?
iii. Is the applicant entitled to a medical benefit in the amount of $12,080.00 for a chronic pain program recommended by Michael G. DeGroote Pain Clinic, submitted on February 8, 2017 and denied on March 2, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $4,920.00 for a physiatry assessment recommended by Dr. Kumbhare, submitted on February 28, 2017 and denied on March 2, 2017?
v. Is the applicant entitled to a medical benefit in the amount of $1,691.28 for physiotherapy services recommended by Accelerated Health and Wellness, submitted on February 16, 2016 and denied on March 9, 2016?
vi. Is the applicant entitled to interest on the overdue payment of benefits?
BACKGROUND
7The applicant was born December 29th, 1955 and was 52 at the time of the accident. He was taken by ambulance to the hospital and a hospital record states his injuries at that time were neck and back pain. The hospital record is relied upon by the applicant. In the days following the accident, the applicant suffered a drug overdose and a head injury arising from an assault.
8The applicant relies upon several medical assessments by his family doctor, chronic pain clinic and physiatrist which indicate that the applicant's injuries from the accident continue to be an impairment to the applicant and thus the medical and rehabilitation benefits requested are reasonable and necessary and should be approved.
9The respondent through its medical evidence states that the impairments in question do not arise from the accident, but arise from the subsequent drug overdose and more likely the head injury the applicant suffered as a result of the assault the applicant suffered.
10In addition, the respondent relies upon its Physiatrist, Dr. Oshidari's Insurance Examinations Reports. The first being a personal assessment and resulting report and the second report being Dr. Oshidari's findings based upon a paper review of the applicant's medical reports. Dr. Oshidari in these two reports concludes that any injuries from the accident should have resolved by the time of his assessment and as such the benefits requested were unreasonable and unnecessary.
RESULT
11I find that the neck and back impairments which the applicant continues to suffer from do arise from the accident.
12I also find that the chronic pain assessment (issue 6 (ii)) and chronic pain treatment plan (issue 6(iii)) are reasonable and necessary to enable the applicant to achieve his maximal recovery from his impairments which arise from the accident.
REASONS
The Applicable Law O. R. 403/96:
13The Schedule prescribes:
(i) Section 14 (1) states an insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.
(ii) Section 14 (2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for: (a) – (h) which state the nature of benefits available to the insured person.
(iii) Section 24(1) the insurer shall pay listed expenses incurred by or on behalf of an insured person, including reasonable fees charged by a member of a health profession or a social worker for the preparing of an application under section 38.2 for approval of an assessment and examination.
CAUSATION ISSUE
14Do any of the impairments currently experienced by the applicant arise from the accident?
15The applicant presented several medical reports and assessments. An ambulance report completed on the date of the accident, indicated the applicant had suffered head and back injuries as a result of the accident. The hospital x-ray report of the same date indicated a possible fracture at L3 as the L5 spinous process was displaced to the left of midline. However, a CT scan concluded that the Applicant did not have a fracture where the displacement of the spine was visible, as previously suspected. The applicant did however, suffer from extensive degenerative spinal disease between C3 – C7, which is the neck region of the spine.
16The applicant did suffer head trauma during an assault a few days after the accident however, this trauma was suffered in the front of the applicant's head and resulted in memory loss. As such, the respondent's claim that the head trauma was the cause of the neck and low back injuries and not the accident does not follow logic.
17The ambulance report, x-ray and CT scans from the hospital show that the applicant did suffer from a pre-existing extensive disc degenerative disease of the spine in the neck area. The x-ray showed a misalignment of the spine to the left but no fracture in the lower back. Both of these impairments were identified immediately after the accident. Therefore, the neck and lower back injuries were present immediately after the accident and remain at the time of the application after over 9 years. As such, a direct causation is established by this evidence between the neck and lower back impairments and the accident. Having established causation I will assess the medical and rehabilitation services requested to determine if those services are reasonable and necessary for the applicant.
ENTITLEMENT TO MEDICAL AND REHABILITATION BENEFITS
Medical Reports or Assessments replied upon by the Applicant
18As mentioned above the ambulance, x-ray and CT scans from the hospital reveal that the applicant did suffer from a pre-existing extensive disc degenerative disease of the spine in the neck area. The x-ray showed a misalignment of the spine to the left but no fracture in the lower back. Both of these impairments were identified immediately after the accident.
19The patient had received treatment for these injuries in 2010 and had returned back to work after the accident for a significant period of time.
20Despite his best efforts the applicant continues to suffer from neck and back pain in the same locations identified immediately post-accident. Since these impairments remain almost 7 -9 years after the accident they have become chronic in nature.
21In 2015, 2016 and 2017 the applicant has sought treatment for his neck and lower back pain, which treatments have been denied by the respondent and are the subject of this hearing.
Respondent's denial of the medical rehabilitation requested by the applicant
22The respondent's denial of the benefits requested are based upon two insurance examinations conducted by Dr. Oshidari. The first one Mr. Trowsdale attended and the report was issued on July 4th, 2015, and the second a paper review, the report was issued on December 28th, 2016.
July 4th, 2015 report
23Dr. Oshidari found that the applicant has no physical impairment as it related to the accident, but concludes that the applicant could benefit from a self-directed community Aquatic Therapy program.
24In addition, the applicant in response to Dr. Oshidari's questioning stated he continued to suffer from neck pain and back pain. However, Dr. Oshidari states that today when I asked him if there is any further discomfort and pain he reported no". These statements are in the Present Complaints and Symptoms section of this report.
25Within the report's Functional Status section the above the narrative of pain disclosed by the applicant, Dr. Oshidari states pain is not referenced. Dr. Oshidari then concludes "he (Mr. Trowsdale, the applicant) is able to perform his house chore duty, but he is not as good as before".
26Dr. Oshidari concluded that in his opinion the OCF 18 dated May 6th, 2015 proposed for non-complicated soft tissue injury approximately 8 years post-accident is not reasonable or necessary.
27Dr. Oshidari also indicates no pre-existing injury from a Physiatry perspective. Based on this conclusion, he opines that no additional treatment is needed for the applicant.
December 28th 2016 Report (paper review)
28Dr. Oshidari in this report states that the CT scan of the cervical spine dated December 11, 2007 shows extensive spinal disease but no evidence of spinal fracture or trauma. He also notes in relation to the lumbar spine the L3 spinous process is displaced to the left of midline.
29He concludes that "Based on review of documentation, there was some traumatic brain event due to the motor vehicle accident following some behaviour and drug seeking approach in the past". However, Dr. Oshidari then concludes that the treatment plan in dispute for multidisciplinary assessment is not reasonable and necessary.
30The respondent has relied upon both Dr. Oshidari's reports to deny the treatment plans and chronic pain assessment.
CONCLUSION
31Based upon the evidence above the tribunal concludes that the applicant was in a motor vehicle accident which resulted in the applicant suffering the impairments of neck and lower back pain which the applicant continues to suffer 7-9 years after the accident.
32The ambulance report and hospital records provided by the applicant showed impairments which resulted in neck and lower back pain arising from the accident. The CT scan immediately after the accident as acknowledged by Dr. Oshidari indicated extensive spinal disc disease in the neck area, which pre-exists the accident. The CT scan also shows a displacement of the lumbar spine at the L3 spinous process left of the midline.
33The extensive spinal disc disease is therefore pre-existing and the displacement is directly linked to the accident. It is therefore reasonable that the neck and lower back pain are impairments arising from the accident and still being suffered by the Applicant which over 9 years after the accident have become chronic in nature. This finding contradicts the respondent's assertion that these impairments are as a result of the drug overdose and assault suffered by the Applicant within days of the accident.
34Dr. Oshidari appears to acknowledge but then ignore the pre-existing extensive spinal disease and then either ignores the applicant's complaints or place a high regard to the applicant's failure in his estimation to convey facts about the overdoses and assault he suffered post-accident, in discounting the validity of the applicant's complaints.
35The tribunal finds based upon the applicant's medical evidence before it, which confirms that over 8 years after the accident the applicant continues to suffer neck and lower back pain which are respectively linked to the pre-existing extensive spinal disc disease and the displacement in the lower spine which are identified immediately after the accident and therefore these impairments are causally linked to the accident.
36As such, the chronic pain assessment and the chronic pain plan are reasonable and necessary to enable the applicant to achieve maximum recovery from the impairments caused by the accident.
37Based upon the determination that the chronic pain program and assessment would address any improvement in the applicant's impairments. The tribunal finds that the medical and rehabilitation benefits sought in paragraph 6 (i) (iv) and (v) would be duplicative and the applicant has not provided any evidence that such physiotherapy services after some many years post-accident would assist in pain relief. Therefore the tribunal finds that they are not reasonable and necessary as they would not address the chronic nature of the applicant's impairments and as such would not assist the applicant in achieving maximum recovery from the impairments.
38In regards to issue 6(iv), since benefits have been found to be payable, the applicant is entitled to all applicable interest pursuant to section 46 of the Schedule.
ORDER
39The Tribunal approves that benefits sought by the Applicant under paragraph 6, ii, and iii, and the applicable interest payable on these benefits as requested in issue 6(iv).
40The Tribunal is denying issues 6(i) and (iv) as outlined in his application.
Released: August 21, 2018
Raj Sharda, Adjudicator