17-008500 v Wawanesa Mutual Insurance Company, 2018 CanLII 110945

Date: 2018-08-28

Tribunal File Number: 17-008500/AABS

Case Name: 17-008500 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

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

Counsel for the Applicant: Joseph Filice

Counsel for the Respondent: Bianca Da Costa

Representative for the Respondent: Sophie Eng

HEARD: 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-Auto Accident Benefits Service (“the Tribunal”)

3The parties participated in a case conference but were unable to resolve the issues in dispute.

4With the consent of the parties, an in person hearing and a written hearing were scheduled for May 1, 2018.

ISSUES IN DISPUTE:

5The issues in dispute are as follows:

(a) Is the applicant entitled to receive a medical benefit of $1,300.51 for physiotherapy services recommended by Revive Health Centres in a treatment plan submitted on June 2, 2016, and denied on June 6, 2016?

(b) Is the applicant entitled to receive a medical benefit of $2,106.50 for a temporomandibular joint assessment recommended by Network Health Assessment Centre in a treatment plan submitted on August 3, 2016, and denied on September 30, 2016?

(c) Is the applicant entitled to receive a medical benefit of $1,536.25 for an in-home assessment recommended by Network Health Assessment Centre in a treatment plan submitted on October 3, 2016, and denied on October 5, 2016?

(d) Is the applicant entitled to receive $2,000 for a driver anxiety assessment, recommended by Network Health Assessment Centre in a treatment plan submitted on November 4, 2016, and denied on December 7, 2016?

(e) Is the applicant entitled to receive $1,869.25 for functional assessment recommended by Network Health Assessment Centre in a treatment plan submitted on January 27, 2017 and denied on June 16, 2017?

(f) f. Is the applicant entitled to receive a medical benefit of $1,185.92 for physiotherapy services recommended by Revive Health Centres in a treatment plan submitted on February 6, 2017, and denied on June 16, 2017?

(g) Is the applicant entitled to receive $5,456 for psychological services recommended by Network Health Assessment Centre in a treatment plan submitted on April 19, 2017 and denied on July 7, 2017?

(h) Is the applicant entitled to receive $2,000 for a psychological assessment recommended by Network Health Assessment Centre in a treatment plan submitted on August 3, 2015, and denied on September 29, 2016?

(i) Is the applicant entitled to receive a medical benefit of $514.00 for a radiographic examination and chiropractic services recommended by Stouffville Chiropractic Health in a treatment plan submitted on September 27, 2016, and denied on October 4, 2016?

(j) Is the applicant entitled to receive a medical benefit of $1,071.33 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on September 13, 2016, and denied on November 17, 2017?

(k) Is the applicant entitled to receive a medical benefit of $2,000.00 for a chronic pain assessment recommended by Revive Health Centres in a treatment plan submitted on August 22, 2017, and denied on November 17, 2017?

(l) Is the applicant entitled to an award under section 10 of Regulation 664, on the basis that the respondent unreasonably withheld or delayed the payment of benefits?

(m) Is the applicant entitled to interest for the overdue payment of benefits?

RESULT

6I find that the applicant is not entitled to her claims submitted for medical-rehabilitation benefits.

7I find that the applicant is not entitled to interest, as no benefits were owing.

8I find that the applicant is not entitled an award under section 10, Regulation 664.

BACKGROUND

9The applicant was the driver of an automobile and was involved in an accident on June 13, 2013. Her Mother and her daughter […] were passengers in the car at the time of the accident. The airbags deployed and there was about $6,800.00 dollars of damage done to the applicant’s car. Only the mother of the applicant needed medical treatment as a result of the accident on that day.

10At the time of the accident, the applicant had pre-existing medical conditions being: hypertension; periods of depression; fibromyalgia; congestive heart failure; a thyroid condition; rheumatism; diabetes. She also had a pacemaker and was seeing a psychiatrist Dr. S. Hasan since 2010. Her daughter […] was autistic and she had a problem coping with the care of the daughter.¹

11After the accident, the applicant continued to take trips to the Azores, trips within the province, organized her home move and continued to be responsible for the care and management of her daughter. The applicant continued to act as both a driver and a passenger in motor vehicles after the accident.²

MEDICAL

12On the day after the accident, the applicant sought medical treatment at [the hospital]. The applicant complained of neck pain and pain all over. The medical staff noted that [the applicant] presented with hematoma to her sternum and ecchymosis to her lower abdomen and leg.³

13The applicant saw her family doctor, Dr. Duchastel seven times from July 13, 2013, until April 29, 2016, complaining of pain to her joints shoulders, and ankles. She indicated to the doctor on May 15, 2015, that there was great improvement with treatment.

14The applicant switched her family doctor to Dr. Walters in 2017, seeing him twice on March 20, 2017, and June 8, 2017, complaining of left shoulder pain, neck, and back pain.

15The applicant continued to see her treating psychiatrist Dr. S. Hassan twice in 2013, once in 2015 and four times in 2016. Dr. Hassan noted in his clinical notes on July 11, 2016, that that the applicant’s back pain worsened and is now chronic and severe.⁴

16The applicant since the accident began treatment at Revive Health Centres for physiotherapy and attended on average twice per week in 2013-2015; once per month in 2016 and once per month from August 2017, to the present.

17The applicant attended Stouffville Chiropractic Health Centre for chiropractic treatment and between July 13, 2016, and January 9, 2017, attended the clinic approximately 18 times.⁵

18Dr. Jon Mills psychologist, in his psychological progress report dated April 12, 2017, noted that the applicant had improvements in her psychological functioning but had not regained her pre accident level.⁶

19In the Insurer Examination (IE) Report of Dr. Castiglione dated July 25, 2013, the applicant reported that she was independent in her personal care and light housekeeping tasks, but cannot do vacuuming, laundry, dishes or gardening. She reported that she has difficulty with child care in dealing with her autistic daughter.⁷

20Dr. Castiglione in his further report dated August 9, 2013, opines the [the applicant’s] pre-existing fibromyalgia will not impact her recovery.⁸

21Dr. Castiglione in the IE Report dated May 21, 2015, indicated that: “It is my opinion that the ongoing complaints are related to the pre-existing fibromyalgia and are not related to the subject MVA.”⁹

22Dr. Castiglione in the IE Report dated July 14, 2016, noted that: “this is my third assessment with [the applicant] and my opinion remains that her accident-related injuries, met the SABS definition of a minor injury and at this point have resolved.”¹⁰

23In the IE Report of Ms. Sarah Road, occupational therapist, dated September 9, 2013, the applicant indicated that she was currently independent with the majority of her personal care tasks and had the ability to complete all aspects of her personal care independently.

24The applicant already had an eight day hearing in 2017, after filing a claim at FSCO, on similar medical and rehabilitation benefit claims. Arbitrator Mongeon dismissed all of the claims as not reasonable and necessary.

PARTIES’ POSITIONS

25The applicant’s position is that the accident materially contributed to the applicant’s injuries and sequelae with the onset of new pains, the exacerbation or pre-existing pains, and the development of depressive symptomatology secondary to increasing pain, perceived limitations and difficulty coping with her autistic daughter whose development regressed following the accident.

26The applicant also disputes being categorized under the Minor Injury Guideline (MIG)¹¹, because her pre-existing Fibromyalia was a barrier to recovery. The applicant claims that all medical and rehabilitation benefits submitted for payment are therefore reasonable and necessary.

27The respondent’s position is that the applicant comes under MIG, that the claims submitted by the applicant did not relate to the accident, and even if they did, the claims are not reasonable and necessary.

ANALYSIS

28The onus is on the applicant to prove her entitlement to the benefits she claims.¹²

29Section 14 of the Schedule requires an insurer to pay benefits to an insured who sustains an impairment as a result of the accident. The applicant has to prove that any impairment is a result of the accident.

30Sections 15 and 16 of the Schedule further require all medical and rehabilitation benefits incurred, to be reasonable and necessary expenses, before an insurer is required to pay for them.

31I find that there is not enough medical evidence put before me by the applicant to take the applicant out of the MIG. The medical reports and the applicant’s post-accident activities clearly indicate that the injuries were minor.

32I find that there is not enough medical evidence put before me by the applicant to show that the accident aggravated pre-existing medical conditions which would prevent the applicant from achieving maximal recovery, if the applicant is subject to MIG.¹³

33Dr. Castiglione in his reports relates the applicant’s complaints to pre-existing fibromyalgia problems and not to the accident. He also states that the injuries come under the MIG, and have been resolved.

34Both Sarah Road and Dr. Castiglione in their reports indicate that the applicant advised them of the applicant’s independence for completing the majority of her personal care tasks.

35Arbitrator Mongeon’s findings, after an in- person hearing with the applicant testifying that: “the applicant continued to take trips to the Azores, trips within the province, organized her home move; continued to be responsible for the care and management of her daughter; continued to act as both a driver and a passenger in motor vehicles after the accident,” clearly support the report findings of Dr. Castiglione and Sarah Road of the applicant’s independence, and that the injuries are minor.

36I find, based on the unclear evidence before me, that I have difficulty in differentiating between the pre-existing medical issues that the applicant had before the accident and the post- accident medical injuries that may have resulted from the accident. Most of the post- accident injuries were the same pre- accident injuries that had nothing to do with the accident.

37I therefore find that the medical-rehabilitation claims submitted by the applicant are not necessary and reasonable.

38There was no evidence put before me before me to show that the respondent unreasonably withheld or delayed payments owing to the applicant.

ORDER

39Based on the above analysis, the applicant’s appeal is dismissed.

Footnotes

1. 1Reasons for decision Marcel D. Mongeon Arbitrator FSCO A14—02521 released October 18, 2017
2. 2Ibid paras 50, 118
3. 3Emergency Triad Record from [the hospital] dated June 14, 2013, Emergency Nursing Ambulatory Care Record dated June 14, 2013.
4. 4CNE of Dr. Hassan dated July11, 2016 p35-36
5. 5CNR of Stouffville dated May 27, 2016 at p 5-6
6. 6Psychological Progress report dated April 11, 2017 at p2
7. 7Insurer Hearing Brief Tab 20 c
8. 8IE Report of Dr. Castiglione dated August 9, 2013 p6
9. 9Insurer Hearing Brief Tab 20H
10. 10Insurer Hearing Brief Tab 20 H
11. 11Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
12. 12Scarlet v. Belair Insurance Company [2013] O.F.S.D. No:227 para 6.
13. 13Schedule sec 18 (2)