Tribunal File Number: 17-006860/AABS

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:

[The Applicant]

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Colleen L. Burn, Counsel

For the Respondent: Sharon C. Dagan, Counsel

Written Hearing on: August 27, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on October 13, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule'').

2More specifically, he applied for a non-earner and rehabilitation benefit, but his claim was denied by the respondent. The applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.

ISSUES

3Is the applicant entitled to receive a weekly non-earner benefit denied on September 12, 2016 of $185.00 for the period of September 29, 2016 to-date and ongoing?

4Is the applicant entitled to a medical and rehabilitation benefit of $865.00 for Custom Orthotics recommended by Vikas Dhawan - Chiropractor in a treatment plan (OCF-18) submitted on February 24, 2017 and denied on March 15, 2017?

5Is the applicant entitled to a medical and rehabilitation benefit of $2,907.44 for ongoing chiropractic treatments recommended by Jason Elk Chiropractor in a treatment plan (OCF-18) submitted on February 24, 2017 and denied on March 15, 2017?

6Is the applicant entitled to a medical and rehabilitation benefit of $720.84 for massage therapy recommended by Nadia Sheerstyuk -Physiotherapist in an OCF-18 submitted on June 22, 2017 and denied on July 5, 2017?

RESULT

7Based on the totality of the evidence before me, I find that the applicant is not entitled to any of the claimed or disputed benefits.

ANALYSIS

1. Non-Earner Benefit

8The test for entitlement to a non-earner benefit is set out in section 12 (1) of the Schedule. The insured person must prove that he suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

9The applicant has submitted the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which outlines several criteria for the determination of entitlement to a non-earner benefit. These principles include:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

iv. The applicant must prove that his accident-related injuries continuously prevent him from engaging in substantially all of his pre-accident activities. This means that the disability or incapacity must be uninterrupted.

v. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

10I have noted these principles and used them to guide my analysis with respect to the applicant’s entitlement to a non-earner benefit.

11In support of his claim for a non-earner benefit, the applicant submits a report from Dr. Ken Reesor, Psychologist, dated June 18, 2018. Dr. Reesor’s report presents an overview of the applicant’s psychological treatment with him from 2003-2005, 2013-2015 and July 26, 2016 to the date of the report.

12Dr. Reesor states that the applicant was in a previous car accident in July of 2002, which brought the applicant to the doctor. He presented with the following:

a. pain disorder associated a general medical condition and psychological factors, chronic; mixed anxiety disorder NOS; dysthymic disorder; sexual disorder associated with chronic pain; and adjustment disorder with depressed feature, chronic.

13Dr. Reesor states that it was assumed in 2003 that the applicant was suffering from chronic pain. In 2005, the applicant was seeking the doctor’s assistance with a Canadian Pension Plan (CPP) Disability application, which had been previously unsuccessful.

14Dr. Reesor continues by stating that he stopped seeing the applicant from 2005 until 2013. However, he does opine that the applicant’s diagnostic presentation had been largely unchanged from prior to 2005. Dr. Reesor does not elaborate on how he came to this conclusion.

15There were some consultations from the period of October 2013 to October 7, 2015, or approximately one week prior to the applicant’s subject accident. These consultations were regarding a renewed CPP application and accommodations for the applicant’s citizenship and immigration English as a Second Language (ESL) testing. Dr. Reesor opines that the applicant’s health was “chronic and stable” and required no further ongoing psychological intervention.

16Dr. Reesor saw the applicant on July 6, 2016, or approximately nine months after the accident. Dr. Reesor states that the applicant reported that, since the accident, the applicant had been dealing with increased pain and pain behavior. As a result, he was dealing with reduced pain relief benefits from his medication.

17Dr. Reesor opines that as a result of the accident, the applicant’s pre-existing physical and psychological conditions were aggravated. Dr. Reesor details how the applicant’s condition affected him. For example, Dr. Reesor notes that, post-accident, the applicant reported the following:

a. He is unable to engage in any sexual activity because of chronic pain.

b. He has problems maintaining his personal hygiene because of chronic pain.

c. He is disabled in his drawing and tattoo work because of pain in his hands.

d. He is having pain that limits his ability to go on walks because of a fear of falling.

18Dr. Reesor notes that, post-accident, the applicant’s wife reports the following:

a. The applicant is doing less household and home maintenance.

b. The applicant has less contact with family and friends.

c. The applicant relies on his wife for all meal preparation and laundry.

d. The applicant walks their dog less.

e. The applicant avoids long distance drives.

f. The applicant avoids sexual activity due to pain.

19The respondent disputes this evidence by relying on the applicant’s General Practitioner, Dr. Aloke De. Dr. De’s Clinical Notes and Records (CNRs) from February 2014 to April 2014 note the applicant visiting the doctor related to follow up visits for the applicant’s chronic pain, depression, and various medication refills. I note the applicant’s visit on March 4, 2014, or one year and approximately seven months before the applicant’s accident. Dr. De notes:

a. c/o stress

b. has lots of forms to fill out

c. long standing issues

d. forms

e. done best we can

20On June 9, 2014, Dr. De noted that the applicant wanted to be referred back to rehab because of his neck and muscle pain. He notes that the applicant is frail and walks with a cane.

21The applicant’s reliance on his wife is noted several times in Dr. De’s CNRs. On July 23, 2014, Dr. De notes the following:

a. says he gets help from his wife to help with his adls²

22This is also noted on September 9, 2014:

a. note given to him as he gets a lot of assistance from his former partner

23The CNRs from Dr. De for the rest of 2014 mostly note issues with lower back pain, stress, and pain management.

24On February 4, 2015, the applicant visited Dr. De after returning from a trip to Lebanon. He reported that he felt “much better abroad” but that the pain and numbness was returning to his leg. Dr. De notes that the applicant is still walking with a cane, reporting a pain level of 7/10, has an abnormal gait and is poor-functioning, requiring lots of help.

25According to Dr. De’s notes, in May of 2015, the applicant was planning to visit Lebanon again and required approximately 7 weeks of medication for the trip.

26On July 30, 2015, the applicant returned to Canada and Dr. De noted that the applicant stated he had suffered from a flare-up of pain while abroad. He reports an increase of spasms in the muscles in his back. He was still walking with his cane.

27The applicant then returned to Dr. De after having cervical surgery in relation to his motor vehicle accident in 2002. On his visit to the Dr. De on August 11, 2015, the applicant stated his pain had increased and had increased his opioid use.

28The applicant contacted Dr. De two days later on August 13, 2015, requesting a letter for immigration in relation to his medical conditions, specifically requesting it include “memory loss, numbness of his hands, back pain, etc.”

29Dr. De wrote said letter, dated August 13, 2015, stating the applicant has chronic pain and had also recently undergone surgery related to spinal cord decompression. As a result, the applicant is on pain medication. Dr. De noted that the applicant is frail, can barely walk, uses a cane, and has frequent “pins and needles”, numbness, and burning pains in his hands, arms and legs. Dr. De noted that the applicant had issues with depression, socialization, concentration and memory.

30On August 17, 2015, the applicant visited Dr. De regarding his neck pain. Dr. De notes that there was “some tearfulness” due to recent stress and ongoing pain symptoms for several years.

31The applicant returned to Dr. De on August 27, 2015, when he expressed his fear of falling, which Dr. De notes as “long standing for 12 years”.

32I do not have CNRs from Dr. De beyond September 8, 2015. However, I do note that Dr. De at no point notes or mentions the applicant’s tattooing and/or drawing.

33Dr. De does note the following about the applicant in the pre-accident period:

a. He is in too much pain to engage in any sexual activity.

b. He relies on his wife for assistance with his Activities of Daily Living (ADLs).

c. He is having pain that limits his ability to go on walks and fears falling.

d. He relies on his wife for driving.

34The respondent also rebuts the evidence of Dr. Reesor by introducing his previous letter to the Social Services Tribunal (SST), dated March 17, 2014, or approximately one year and six months before the applicant’s 2015 accident.

35This letter, written to the SST to support the applicant’s application for CPP Disability, notes the following regarding the applicant’s medical status:

a. Consistent numbness and gradual deterioration of the applicant’s functioning.

b. The applicant’s prognosis was not hopeful.

c. The applicant required assistance with personal care, including toileting, bathing, dressing, transfers in and out of cars and beds, and stair climbing.

d. The applicant suffers from chronic cervical disc herniation, chronic low back pain and as a result lives with severe impairments.

e. The applicant has difficulty with physical activity, using public transport, maintain his hygiene/grooming and housekeeping.

f. There are no indications that there have been any changes to the applicant’s impairments, functioning, symptoms, restrictions and limitation to those assessed in 2005.

36There is an inconsistency between the letter written to the SST by Dr. Reesor and his report written in 2018.

37Based on this, I put little weight on the evidence presented by Dr. Reesor in his report of 2018. I find it is not supported by his own letter written in 2014, and is inconsistent with the CNRs of the applicant’s GP, Dr. De, during the same time period.

38The applicant did not present any direct evidence to demonstrate what his activities and life circumstances were before the accident; there is no direct comparison of what he could do before the accident and what he could not do after the accident. The applicant did not adduce any evidence as to what activities and life circumstances were important to him before the accident and how he is prevented from engaging in those activities as a result of his accident-related impairments.

39Based on the evidence before me, it would appear that the applicant was a recipient of disability support payments. He qualified for such payments because of his impairments and disabilities. The applicant must demonstrate that he is unable to engage in substantially of his pre-accident activities, which were limited.

40Pre-accident, the applicant was heavily relying on his wife for assistance with his ADLs, including transport, personal grooming, and hygiene. He had a fear of falling and was using a mobility device.

41Post-accident, the applicant continued to rely on his wife for assistance with his ADLs including transport, personal grooming, and hygiene. He still had a fear of falling and was using a mobility device.

42The applicant states that he can no longer go on walks or engage in his hobby of drawing and tattooing.

43There is not sufficient evidence about the applicant’s pre-accident and post- accident activities and life circumstances for me to make a finding that his accident-related injuries prevent him from engaging in substantially all of his pre-accident activities.

44Therefore, based on the totality of the evidence before me, I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life as the result of the accident.

2. Medical and Rehabilitation Benefits

45Section 14 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary.

a. Custom Orthotics

46I must now decide if the applicant is entitled to a medical and rehabilitation benefit in the amount of $865.00 for Custom Orthotics recommended by Vikas Dhawan – Chiropractor and Dr. Amanda Piribaurer – Podiatrist/Chiropractor, in a treatment plan submitted on February 24, 2017 and denied on March 15, 2017.

47The applicant relies on the OCF-18 mentioned above. The OCF-18 lists the injuries of the applicant being: muscle wasting/atrophy, whiplash associated disorder (WAD3) with complaints of neck pain with neurological signs, lumbar and other intervertebral disc disorders with radiculopathy, cervical disc disorder, other and unspecified injury of the sciatic nerve at hip and thigh level, injury of the perineal nerve at the lower leg, and injury of the nerves at the lower ankle.

48The goals of this OFC-18 are to reduce pain, increase range of motion, increase in strength and to return to pre-work activities.

49The applicant has not provided any medical evidence to demonstrate what condition or injury the custom orthotics are required for. He has failed to submit a prescription, report, or CNR describing what issue or injury the orthotics would be necessary for, and how they would assist with controlling abnormal motion in his foot.

50The respondent relies on an Insurance Examination (IE) conducted on May 9, 2017 by Dr. Jann Thulien, chiropractor. Dr. Thulien opines that the treatment plan is not reasonable or necessary, since the applicant did not suffer a lower limb impairment as a direct result of the accident and, therefore, does not require orthotics for an injury related to the subject accident.

51I also note that on July 10, 2014, Dr. De’s noted in the applicant’s CNRs, that the applicant had requested a “note for social services for orthotic shoes” 15 months before the accident.

52Therefore, based on the totality of the evidence before me, I find that the applicant has not proven on a balance of probabilities that custom orthotics are reasonable or necessary.

b. Chiropractic & Massage Treatment

53I must now decide if the applicant is entitled to benefits for chiropractic and massage treatment. Since these two treatment plans have similar goals and rely on similar evidence, I will analyse them together.

54The applicant relies on the OCF-18 completed for his ongoing chiropractic treatment, dated February 24, 2017, and submitted by Dr. Jason Elk, chiropractor of Apollo Physical Therapy Centres.

55The applicant also relies on the OCF-18 completed for this his massage treatment plan, dated June 22, 2017, and submitted by Nadia Sherstyuk, physiotherapist and Ursa Szathmary, Registered Massage Therapist (RMT), both of Apollo Physical Therapy Centres.

56The goals of both treatment plans are pain reduction, decrease restlessness, assistance in relaxation to promoting sense of tranquility to assist with mood, anxiety and depression and a return to activities of normal living.

57The applicant also relies on the report of Dr. Reesor regarding the material change in the applicant’s functioning after his subject accident.

58The respondent relies on its IEs conducted by Dr. Thulien. Dr. Thulien conducted two separate IEs related to the OCF-18s in question. The first IE was conducted on May 9, 2018 and then a Paper Review was issued on July 21, 2017.

59Dr. Thulien opines that both the treatment plan for massage therapy and chiropractic treatment are not reasonable and necessary. He bases this opinion on the fact that the applicant has received “considerable passive therapy including chiropractic treatment, physiotherapy, occupational therapy, massage therapy”.

60Dr. Thulien notes that the applicant had been approved for other passive therapy, including 24 sessions of chiropractic treatment with Dr. Elk, and 36 sessions of physiotherapy with Iman Al-Buhaisi, Physiotherapist.

61The doctor submits that the applicant has reached maximum medical recovery and further passive treatment will unlikely provide improvement and that any injury or impairment he is suffering from is related to his previous accident.

62Though the applicant argues that it is his intention to have the ongoing treatment assist him with returning to the level of function he enjoyed prior to the accident, he has not provided any medical evidence or testimony to support his argument or that these treatment plans are reasonable and necessary.

63Therefore, based on the evidence before me, I am not convinced that these treatment plans are not reasonable or necessary.

CONCLUSION

64For the reasons outlined above, I find that:

(i) The applicant is not entitled to a non-earner benefit.

(ii) The applicant is not entitled to a benefit for custom orthotics.

(iii) The applicant is not entitled to a benefit for ongoing chiropractic treatments.

(iv) The applicant is not entitled to a benefit for massage therapy

Footnotes

1. 1O. Reg. 34/10.
2. 2i.e. ADLS, meaning “activities of daily living”.