Tribunal File Number: 17-005656/AABS
Case Name: 17-005656 v. Unifund Assurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.
Between:
V. D.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
Lauren Grimaldi, Counsel
For the Respondent:
Danielle Lecours, Counsel
HEARD in Writing on:
February 21, 2018
OVERVIEW
1V.D. (the “applicant”) was involved in a motor vehicle accident (MVA) on March 9, 2011. She applied for accident benefits to Unifund Assurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied her claim for certain medical benefits.
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference and the matter proceeded to this written hearing.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
(1) Is the applicant entitled to receive a medical benefit in the amount of $12,080 for chronic pain program pursuant to a Treatment and Assessment Plan (OCF18) completed by the Michael G. DeGroote Pain Clinic, submitted on May 10, 2016 and denied by the respondent on May 25, 2016?
(2) Is the applicant entitled to receive medical benefits in the amount of $3,161.73 ($3,570.73 less partially approved $409.00) for assistive devices pursuant to a Treatment and Assessment Plan (OCF18) completed by Performance Physiotherapy, submitted on May 1, 2017 and denied by the respondent on June 1, 2017?
RESULT
4For the reasons that follow, I find the following:
(a) The applicant is not entitled to a medical benefit for a chronic pain program in the amount of $12,080 pursuant to a Treatment and Assessment Plan (OCF18) completed by the Michael G. DeGroote Pain Clinic.
(b) The applicant not entitled to receive medical benefits in the amount of $3,161.73 for assistive devices pursuant to a Treatment and Assessment Plan (OCF18) completed by Performance Physiotherapy.
REASONS
5The applicant submits that she can, on a balance of probabilities, satisfy the Tribunal that the Treatment Plans in question are reasonably necessary. She argues that the respondent’s medical evidence acknowledges that she has impairments arising from the accident, including chronic pain, that her prognosis for recovery is guarded, and that she has functional limitations due to pain.
6The respondent submits that the applicant has reached maximum medical recovery from facility based treatment and therefore the cost of the disputed Treatment Plan dated May 10, 2016 for a chronic pain program, is neither reasonable nor necessary.
7The respondent further submits that there is no compelling medical evidence that supports the need for a chronic pain program or assistive devices as a direct result of injuries sustained in the motor vehicle accident.
8The onus is on the applicant to prove on a balance of probabilities that she is entitled to these benefits.
ANALYSIS
Background and Causation
9The applicant is a 37 year old woman with a history of low back pain that began in 2005 with no specific injury or precipitating factor. She eventually underwent two back surgeries in 2006 and 2007, and had pain relief as a result of the second surgery. She was involved in an MVA in 2010, which aggravated her low back pain and leg pain, and she also developed neck pain as a result. The applicant had not fully recovered from the 2010 MVA when she was involved in the subject MVA on March 9, 2011, which aggravated her previous symptoms and resulted in additional right shoulder pain.
10In an Insurer’s Examination (IE) report completed December 27, 2013, orthopaedic surgeon Dr. Newall, opined that the applicant aggravated her pre-existing low-back, neck and right shoulder pain as a direct result of the MVA. A similar diagnosis was also provided in an IE report completed by physiatrist Dr. Steven Baker on August 23, 2016. Dr. Baker opined that one of the applicant’s diagnoses was lumbar strain which was the worsening of her pre-existing chronic low back pain. I am therefore satisfied that based on the medical evidence before me, on a balance of probabilities the applicant’s pre-existing symptoms were aggravated by the MVA of March 9, 2011.
Issue 1: Chronic Pain Program
11The applicant is not entitled to the treatment plan for this chronic pain program.
12Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.
13The Michael G. DeGroote Pain Clinic Initial Assessment Summary dated May 3, 2016 noted that the applicant had multiple therapies for her chronic pain in the past and that she was interested in being admitted to the biopsychosocial treatment offered in the four-week Group Program of the Michael G. DeGroote Pain Clinic. Unfortunately it is unclear what these previous therapies for chronic pain consisted of or whether or not the applicant found them helpful. It was noted in the Initial Assessment Summary that the applicant would benefit from developing additional strategies to cope with her pain, including pacing and relaxation as well as a graduated exercise program. The applicant was recommended for admission to the Day Program and an OCF-18 was prepared and submitted for the proposed treatment. The OCF-18 indicates that the goal of the program is to: help the applicant learn how to pace more effectively; teach pain management coping strategies; increase function and quality of life; increase her activity involvement.
14The chronic pain program in dispute includes a number of modalities including daily group psycho-educational fitness, relaxation and hydrotherapy sessions, as well as weekly appointments and meetings with numerous health care professional to monitor progress.
15In support of her claim, the applicant submitted the OCF-18 dated May 11, 2016, prepared by occupational therapist Greg Luth at the Michael G. DeGroote Pain Clinic. The OCF-18 lists the following accident related impairments: chronic intractable pain, low back pain, other and unspecified injuries of the neck, other and unspecified injuries of the shoulder and upper arm. The applicant further submits that none of the medical examinations conducted at the request of the respondent have opined that she has "reached maximum medical recovery”. The applicant further submits that absent any medical evidence to that effect, it is not open to the respondent to take the position that this chronic pain program is not reasonable and necessary because the applicant has reached maximum medical recovery.
16The Respondent relies on the opinions of IE assessor Dr. Baker and Dr. Chan to support its position that this treatment plan was neither reasonable nor necessary. In the alternative the respondent states that the issue of funding for this chronic pain program is moot because the applicant had recently participated in an 8 week OHIP funded chronic pain program at the Michael G. DeGroote Pain Clinic.
17On the basis of the evidence before me, I conclude that the proposed chronic pain program is not reasonable and necessary. My reasons are:
18Although the applicant submitted a brochure outlining information related to the chronic pain program in dispute, the OCF-18 submitted did not indicate how it would be effective in helping the applicant more than all of the previous chronic pain services she had already received. The OCF-18 also did not indicate how the program would help the applicant reduce her pain and it was indicated that she did not have any barriers to recovery. Furthermore, in the spring of 2016 the applicant participated in an 8 week chronic pain program at the Michael G. DeGroote Pain Clinic with weekly attendance consisting 3 hour classes including education, relaxation and physiotherapy. The applicant told psychologist Dr. Alan Chan in an IE Psychological Assessment Report, completed August 23, 2016 that it was difficult to tolerate this program because many of the participants were quite woeful with regard to their pain problems and she had a hard time identifying with some of the other group members.
19I find the evidence of Dr. Steven Baker contained in the IE Physiatry Assessment Report completed on August 23, 2016 persuasive. Dr. Baker noted that the applicant was participating in self-directed exercise and physiotherapy as well as successfully undergoing soft-tissue injections and reporting excellent results. The applicant had continued to work while she received treatment and Dr. Baker concluded that from a musculoskeletal perspective, none of the components of this chronic pain program were required. Dr. Baker recommended that the applicant continue with her self-directed exercises either at home or at a fitness facility. In my view, the previous treatments alleviated the applicant’s symptoms to a degree which makes the proposed chronic pain program redundant or unnecessary.
20Dr. Chan’s report was thorough and included observations of the applicant, psychometric testing and a review of the available documentation. Dr. Chan’s opinion on the applicant’s lack of need for further psychological treatment was persuasive. Dr. Chan found that the treatment plan in dispute was not reasonable and necessary from a psychological perspective as the applicant does not meet diagnostic criteria for a Pain Disorder Associated with both Psychological Factors and a General Medical Condition. Dr. Chan further concluded that the applicant was not suffering from significant psychological difficulties as a result of her persistent pain and that she already presented as an “adaptive pain coper”.
21I reject the applicant position that absent any medical evidence that she has reached maximum medical recovery it is not open to the respondent to take the position that this chronic pain program is not reasonable and necessary for that reason. On October 14, 2014, neurologist Dr. Rothbart completed a report for the applicant. On page 33 of this report Dr. Rothbart noted that “To date V.D has received an extensive amount of passive and active therapies prior to and following her surgeries and following her accidents, and it has been 3-4 years since her last accident it is likely that she has reached her maximum medical recovery irrespective of future surgical opinions (third lumbar surgery).” It is clear that based on the applicant’s own medical assessor opinion, she had reached maximum medical recovery in October 2014.
22As the result of the forgoing analysis, I find that on a balance of probabilities, the chronic pain program sought by VD is not reasonable and necessary.
Issue 2: Assistive Devices
23The treatment plan in dispute was recommended by the applicant’s treating physiotherapist Brad Baslor in a Physiotherapy Progress Report dated May 23, 2017. Mr. Baslor noted “In light of reduced tolerances for sustained postures and reduced lifting and carrying tolerances we are recommending the Lordolock/Lumbotrain-size 6- back support by Bauerfiend to support the trunk during physical activity and during prolonged postures. We are also recommending that she be funded for a self-propelled lawnmower for lawn cutting and self-propelled snow blower for snow removal. This will allow her to continue to do these activities with less physical exertion and stress to her back”. An OCF 18 for the devices was submitted shortly thereafter noting that the goal for this Treatment Plan was to help improve the applicant’s tolerance for grass-cutting a snow removal independently.
24The respondent relies on the opinion of occupational therapist Heather Seiling contained in the IE In-Home assessment Report dated July 24, 2017 in support of its position that the proposed snow blower and lawn mower are not reasonable and necessary as a direct result of injuries sustained in the motor vehicle accident. This conclusion was based on Ms. Seiling’s observations of the applicant’s use of a battery powered lawn mower, the relatively small size of the applicant’s lawn, the light weight of the applicant’s current lawn mower and the applicant’s pre-MVA limitations. With respect the snow blower, Ms. Seiling noted that “there is no doubt that V.D would benefit from the use of a snow blower, based on the medical evidence, it is in question whether snow removal would have been a realistic and safe activity for applicant prior to the MVA”. Ms. Seiling noted that it was beyond the scope of her ability to determine causation of the applicant’s current complaints and limitations given her extensive medical history. Ms. Seiling therefore concluded that the snow blower was not reasonable and necessary.
25The respondent further relies on the Activities of Normal Life (OCF12) by the applicant on April 29, 2011. In this OCF-12 the applicant indicated that she was unable to perform "grass cutting, gardening and snow shovelling" before and after the accident.
26On the basis of the evidence before me, I conclude that the proposed assistive devises is not reasonable and necessary. My reasons are:
27The goal of all medical treatment, including assistive devices is to restore pre-accident levels of function or wellness, to the extent possible. The insurer is not required to fund treatment or assistive devices based on the applicant’s wants or needs to improve pre-accident functioning. According to the applicant’s own accounts to the Michael G. DeGroote Pain Clinic, she was unable to mow the lawn for the 6 years preceding May 2016.
28I am persuaded by Ms. Seiling’s evidence that these assistive devices are not reasonable and necessary. Ms. Seiling was able to observe the applicant perform the lawn mowing tasks sufficiently enough that she encouraged her to continue this task with pacing techniques. With respect to the snow blower, it would appear that the applicant has never participated in any prior snow removal prior to the In-Home Assessment. I am not persuaded that it was reasonable and necessary as a result of the MVA.
29In the OCF-12 submitted on April 29, 2011, the applicant indicated that she was unable to perform "grass cutting, gardening and snow shovelling" before and after the accident.
23Given the overwhelming evidence that the applicant was unable perform lawn care and snow removal tasks at the time of the MVA, I find that these assistive devices are not reasonable and necessary.
ORDER
30The applicant is not entitled to the proposed chronic pain program.
31The applicant is not entitled to proposed assistive devices.
Released: December 5, 2018
___________________________
Lyndra Griffith
Adjudicator