Tribunal File Number: 17-007412/AABS
Case Name: 17-007412 v Certas Direct 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:
O. S.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Jessica Cavdar
APPEARANCES:
For the Applicant: Amanda Neves, Paralegal
For the Respondent: Katie Plante, Counsel
WRITTEN HEARING: May 14, 2018
OVERVIEW
1The applicant was involved in an automobile accident on August 29, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The respondent denied the benefits on the basis that the proposed treatment plan is not reasonable and necessary. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3The parties participated in a case conference but were unable to resolve the issues in dispute.
ISSUES
4The following issues must be determined by the Tribunal:
i. Is the applicant entitled to receive a medical benefit for $2,950.58 for chiropractic and physiotherapy services recommended by Dean G. Antoniazzi, chiropractor, of Regency Rehab Medical Services in a treatment plan submitted May 25, 2015 and denied by the respondent on November 18, 2015 (the “Treatment Plan”)?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5After reviewing the parties’ submissions and documentary evidence and for the reasons that follow, I find that the Treatment Plan for chiropractic services is neither reasonable nor necessary in the circumstances.
REASONABLE AND NECESSARY
6Under s.14 of the Schedule, an insurer must pay the medical and rehabilitation benefits under ss. 15 to 17 to an insured person who sustains an impairment as a result of an accident. Section 15(1) includes expenses for chiropractic treatment that is reasonable and necessary for the treatment of the insured person.
7The question before me is whether the applicant has established, on a balance of probabilities, that his requested chiropractic and physiotherapy Treatment Plan is reasonable and necessary as a result of the injuries he sustained in the August 29, 2013 motor vehicle accident.
THE PARTIES’ POSITIONS
8The applicant argues that he is entitled to the services recommended in the Treatment Plan, stating that it is reasonable and necessary for his circumstances because he continues to suffer from accident-related severe pain in his back, neck, and right shoulder. The applicant submits that the Treatment Plan would reduce pain and facilitate a return to activities of normal life.
9The respondent argues that the applicant is not entitled to the Treatment Plan because it is not reasonable and necessary. The respondent submits that this is because the applicant has already received appropriate treatment which allowed him to recover to his pre-accident state, and because he was able to fully resume his activities of daily living, including a heavy physical job and vigorous exercise training.
ANALYSIS
10I find that the applicant has not led sufficient evidence to link his proposed Treatment Plan to injuries sustained as a result of the August 29, 2013 automobile accident. This is because the applicant did not complain to any health care practitioner of back or neck pain from May 29, 2014 to May 14, 2015. However, he did go on to suffer a serious workplace injury on March 23, 2015. Notably, the Treatment Plan in question is dated May 25, 2015.
11Accordingly, the applicant has failed to establish, on a balance of probabilities, that the requested Treatment Plan for chiropractic services is reasonable or necessary to treat injuries he sustained in the August 2013 accident.
12To support his submission that the Treatment Plan in question is reasonable and necessary, the applicant relies on the medical treatment he sought post-accident.
i. The applicant began receiving treatment for the injuries he sustained in the accident beginning on the day of the accident, August 29, 2013 (at [a hospital], immediately following the accident, where he attended via ambulance). The applicant subsequently visited [a health rehabilitation centre] in September 2013, where the attendant chiropractor diagnosed him with cervical disc disorder with radiculopathy, low back pain, and pain in the thoracic spine. The applicant continued to receive chiropractic treatment at [a health rehabilitation centre] between September 2013 and July 2014, which provided him relief and facilitated his return to work.
ii. The applicant also attended at two family doctors beginning on September 10, 2013. He was referred for an ultrasound, conducted on September 19, 2013, which noted supraspinatus tendinosis, more marked on the right. One of the family doctors referred the applicant to pulmonologist, Dr. D. Kanawaty, whose January 24, 2014 polysomnography report stated that the applicant suffered from abbreviated sleep onset consistent with excessive sleepiness; moderate obstructive sleep apnea with desaturation and sleep fragmentation; and moderate periodic leg movement disorder during sleep.
iii. The applicant attended at the two family doctors several times between September 2013 and May 29, 2014. Dr. Tsai, one of the family doctors, noted in March 2014 that the applicant “...still has pain upper and lower back since the MVA, has nightmares, flashbacks, woke up with sweats, doing physio once a week. Numbness, tingling in fingertips.” Dr. Tsai referred the applicant to a neurologist, Dr. Serebrin. On May 29, 2014, Dr. Tsai recorded the applicant’s complaint of “...ongoing upper and mid back pain with right shoulder pain.”
iv. The applicant was referred to neurologist Dr. Serebrin, who noted in his clinical report from August 27, 2014 that he could not find any evidence of neurological disease in the applicant, and that the applicant’s random feelings of numbness and tingling in his right arm could be related to the use of power tools in his work.
13The applicant ceased to seek treatment after May 2014 (with the exception of the appointment with the neurologist in August of that year, to whom Dr. Tsai had referred the applicant in March 2014). The applicant continued to work a full-time physical job as a glazier at his full capacity, and he continued to engage in intense physical training with a view to becoming a police officer.
14An entire year passed before the applicant made a further report of back and shoulder pain (on May 14, 2015) and headache (on May 22, 2015).
15Unfortunately, the applicant’s 2015 doctor and chiropractor visits – and complaints of back/shoulder pain and headache – occurred less than two months after the applicant sustained a serious workplace injury on March 25, 2015: the applicant had been installing a large metal door header which fell from a height of approximately 11 feet onto the applicant's head and nasal ridge at work. The metal door header weighed approximately 20 pounds, according to the WSIB report in Dr. Tsai’s records dated June 19, 2015.
16An MRI was conducted of the applicant’s cervical spine following the workplace injury on March 25, 2015, which reported that “cervical spine alignment is maintained. Vertebral body and intervertebral disc heights are preserved. No prevertebral soft tissue swelling. The atlantoaxial articulation is well aligned. No fractures or dislocations…No acute abnormalities evident.”
17The WSIB report from June 19, 2015 indicates that “prior to the work-related injury of March 23, 2015, [the applicant] reports independence in all of his activities of daily living.” After the workplace injury, “the worker has resumed many of his daily activities; however, reported difficulty with face washing and shaving due to tenderness and pain at his nose.”
18The applicant reported to the WSIB assessor that prior to his 2015 work-related injury, he was employed on a full-time temporary basis and his essential duties included installation of commercial glass, lifting glass of various sizes, use of hand tools, and use of power tools. As of the June 19, 2015 WSIB report, the applicant had already returned to work on modified duties and regular hours following the work accident and reported that his job demands were similar to those of his pre-injury job duties.
19Importantly, the WSIB report makes no mention of the applicant’s August 29, 2013 motor vehicle accident or any injury sustained therein.
20The applicant has clearly suffered further injury and has been in pain as a result of his March 2015 workplace accident. Unfortunately, the medical records appear to confirm that the applicant had already recovered from the physical injuries he sustained in the August 29, 2013 automobile accident by the time of the workplace injury in March 2015. The applicant returned to his pre-accident employment duties and resumed his activities of daily living shortly after the accident. He was running and jogging regularly and working a physical job. He had no accident-related complaints after May 2014. Further physical complaints only arose a year later, shortly after a serious workplace injury. I was not presented with evidence of continuing impairment from the August 29, 2013 accident. Therefore, I do not find a connection between the proposed chiropractic treatment sought in the May 25, 2015 Treatment Plan and the injuries the applicant sustained in the August 29, 2013 accident.
21The applicant has not led sufficient evidence to link his proposed May 2015 chiropractic Treatment Plan to injuries sustained as a result of the August 29, 2013 automobile accident.
22For the reasons set out above, I find that the Treatment Plan for chiropractic services is neither reasonable nor necessary to treat impairment stemming from the August 29, 2013 motor vehicle accident.
ORDER
23For the above-noted reasons, this application is dismissed.
Released: August 28, 2018
_______________________
Jessica Cavdar
Adjudicator