ONLAT 17-008502/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:
KW
Appellant(s)
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher A. Ferguson
APPEARANCES:
For the Applicant:
R. Amanda Neves, paralegal
For the Respondent:
Katie Plante, counsel
HEARD
Written Hearing on: September 10, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant, "KW", was injured in an automobile accident on August 29, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 ("the 'Schedule'").
2KW claimed medical benefits from the respondent ("Certas"), and then applied to the Licence Appeal Tribunal ("the Tribunal") when Certas denied those benefits.
ISSUES IN DISPUTE
3The issues before the Tribunal are:
i. Is KW entitled to a medical benefit in the amount of $2,950.58 for chiropractic treatment and physiotherapy recommended by Regency Rehabilitation and Wellness in a treatment plan ("OCF-18") submitted December 3, 2015 and denied by Certas on December 3, 2015?
ii. Is KW entitled to a medical benefit in the amount of $2,339.34 for chiropractic treatment and physiotherapy recommended by Regency Rehabilitation and Wellness in an OCF-18 submitted December 1, 2016 and denied by Certas on December 14, 2016?
iii. Is KW entitled to be paid interest on overdue payments from Certas?
FINDINGS
4KW has not proven her entitlement to either disputed treatment plan. Accordingly, the appeal is denied and the issue of interest on overdue payments is moot.
REASONS
5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
6KW submits that the disputed treatment plans are reasonable and necessary, and supports her contention with the following evidence:
i. An s.25 independent medical examination by Dr. C.B. Karabatsos, orthopedic surgeon, dated October 27, 2017 opined that KW had chronic pain resulting from the accident and recommended a number of treatments to address her pain complaints, including chiropractic and physiotherapy treatments on an "ongoing, supportive and as-needed basis".
ii. A psychological assessment report by Dr. Judith Pilowsky, dated February 27, 2018, diagnosed KW with somatic symptom disorder with predominant pain (persistent/moderate) and recommended that KW participate in a chronic pain program.
iii. Medical evidence in the form of letters and the OCF-18s authored by Dr. Dean Antoniazzi, chiropractor, attesting to KW's ongoing pain and its effect on her activities of daily living (ADLs).
iv. Precedents in which other adjudicators have identified pain relief as a valid goal of treatment (and therefore reasonable and necessary). I address these cases below.
7Certas submits that KW's physical injuries are "uncomplicated soft tissue" injuries for which she has failed to prove that further physical treatment is required or reasonable and necessary.
8Certas supports its position with the following:
i. Its insurer's examination (IE) report dated February 7, 2014 by Dr. Fathi Abuzgaya, orthopedic surgeon, indicated that KW had reached maximum medical recovery (MMR) from her injuries and displayed no objective signs of ongoing impairment from accident-related injuries.
ii. A second IE report by Dr. Abuzgaya dated November 25, 2015 diagnosed sprains and strains, found no musculoskeletal impairments attributable to the accident and a functional range of motion in KW's neck, shoulders, lumbar spine and wrists, and opined that, since passive modalities of treatment had not helped KW in the previous two years, additional passive modalities would not be useful.
iii. Its insurer's examination (IE) report dated August 8, 2017 by Dr. Fathi Abuzgaya, orthopedic surgeon, indicated that KW had reached MMR from her injuries and displayed no objective signs of ongoing impairment from accident-related injuries, and opined that the proposed treatment plan was not reasonable and necessary.
9Certas goes on to argue that KW has failed to establish her entitlement to either treatment plan based on the following:
i. The independent s. 25 medical examination by Dr. C.B. Karabatsos, mentioned above, found that KW had reached MMR with respect to typical rehabilitative care but that she should continue her self-directed exercise program.
ii. KW has failed to provide any clinical updates from treating practitioners, including the OCF-18 authors, to establish that treatments have been effective in reducing her pain or impairment. Certas contends that evidence of efficacy is needed to meet the onus on KW to prove that the claimed benefits are reasonable and necessary.
iii. KW is employed full-time and has an active lifestyle, including daily treadmill and light weight workouts that are inconsistent with claims of chronic pain. Certas also argues that this signifies a return to pre-accident function, a goal stated in both OCF-18s as a return to normal activities of daily living.
10I have determined that KW has failed to prove that the disputed treatments plans are reasonable and necessary at this time for the following reasons:
i. The evidence from all of the medical assessors is that KW has reached MMR with respect to her physical injuries. This means that the stated goal of restoring pre-accident ADLs is not achievable which makes it unreasonable to fund.
ii. The evidence attached to both submissions is that KW has returned to a high degree of pre-accident function with respect to employment, housework, child care, and gym-based exercise. Coupled with evidence that she has reached MMR, I find that this renders the goals of her OCF-18s of a return to ADLs unreasonable because they have been achieved to the extent possible.
iii. I agree with KW's argument that pain relief is a valid treatment goal, and this assertion is not disputed by Certas. However, in the cases cited by KW in support of her claim, adjudicators expressly linked pain relief to improved function, and the disputed treatment plans were shown likely to produce results.3 I find that KW's evidence does not meet this standard:
(a) It appears from my reading of the medical assessments submitted by both parties that KW's pain complaints have not abated significantly over the years between Dr. Abuzgaya's February 2014 IE report and Dr. Karabatsos's October 2017 report, despite physiotherapy and chiropractic treatment. This is evidence that the proposed treatment modalities have reached the end of their efficacy.
(b) KW's failure to provide any clinical updates from treating practitioners to establish objective progress or effectiveness of treatment leaves me with no evidence to refute Certas's contention that the proposed treatments will not be effective in reducing her pain or impairment because she has reached MMR. She does not meet the onus on her to prove that the claimed benefits are reasonable and necessary.
iv. KW's evidence of psychological impairments which may form part of a chronic pain condition, and the recommendations for a chronic pain program are unpersuasive because they do not expressly support the specific therapies included in her OCF-18s. In the same vein, the disputed OCF-18s are not clear on whether or how the recommended treatments fit into the broader chronic pain management approaches suggested by psychologists such as Dr. Pilowsky.
v. While Dr. Karabatsos endorses physiotherapy, chiropractic and massage treatments "on an ongoing, supportive and as-needed basis" to avoid further deterioration in her condition, I find his conclusion insufficient to justify the disputed OCF-18s because it doesn't reconcile the apparent ineffectiveness of such therapies and because it is included in a list of a wide range of therapies, leading me to find that unless linked to other suggested modalities in a comprehensive plan, the OCF-18s are not reasonable and necessary as stand-alone plans.
11KW's appeal of Certas's decision to refuse her claims is denied. There being no overdue benefit payments, the issue of interest is moot.
CONCLUSIONS
12KW's appeal of Certas's decision to refuse her claims is denied. There being no overdue benefit payments, the issue of interest is moot.
Released: December 13, 2018
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Scarlett v. Belair, 2015 ONSC 3635
- Namely LW and the Cooperators General Insurance Company ("LW") 2016 CanLII 93133 (ON LAT) and Wong v. Allstate Insurance Company of Canada, 2000 CarswellOnt 3496. In LW, the applicant had medical evidence that the type of treatment she sought (which included chiropractic) had produced positive results in the past, and that a decrease in these treatments had produce regression of her condition and function. In Wong, ongoing treatment had enabled the applicant to increase her hours at work. For the reasons noted, these cases are distinguishable from the case before me.