T.M. v. Wawanesa Mutual Insurance Company, 2018 CanLII 140342

Tribunal File Number: 17-001614/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:

T.M.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Chloe Lester

APPEARANCES:

Counsel for the Applicant: Christopher Hacio

Counsel for the Respondent: David Scott

Oral Hearing: October 23, 2017

Overview

1The applicant, TM, was injured in a motor vehicle accident on December 8, 2015. She applied for a number of benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”),¹ specifically chiropractic and massage therapy treatment plans.

2The respondent denied the treatment plans based on five (5) insurer’s examination reports authored by two (2) doctors.

3The applicant filed an application for dispute resolution to the Tribunal, which was received on March 17, 2017.

Issues in Dispute

4The issues in dispute are as follows:²

(i) Is the applicant entitled to payment in the amount of $1515.00 for massage therapy as set out in a treatment plan dated November 29, 2016 by Braun Family Chiropractic, denied by the respondent on December 23, 2016?

(ii) Is the applicant entitled to payment in the amount of $572.00 for chiropractic therapy as set out in a treatment plan dated October 14, 2016 by Braun Family Chiropractic, denied by the respondent on October 28, 2016?

(iii) Is the applicant entitled to interest on the overdue payment of benefits?

Results

5The applicant is entitled to both treatment plans and any interest that stems from them.

Analysis

Are the massage and chiropractic treatment plans reasonable and necessary?

6In accordance with s. 14 and 15 of the Schedule, in order for the applicant to be entitled to medical and rehabilitation benefits, the applicant must prove the injury stems from the car accident and the treatment is reasonable and necessary. There is no dispute between the parties the applicant sustained an injury from the car accident; the question is whether the treatment is reasonable and necessary.

7The applicant claims the treatment plans are reasonable and necessary as the therapies recommended reduces her pain from the injuries. She has tried various modalities to improve her condition, including active and passive therapies, but the chiropractic and massage therapy assist her with temporary relief, which enables her to function in her day to day life, especially when she receives the treatment twice per week. The applicant argues that the treatment plans are reasonable and necessary, as pain reduction is a reasonable treatment goal, the treatment goals are being met, and the cost is reasonable.

8The applicant relies on Grewal v. State Farm³ in asking the adjudicator to look at the totality of the evidence presented, to assess the weight and decide, on the balance of probabilities, whether the applicant has met her onus. She also relies on Pedisic v. State Farm⁴ to support her claim that passive treatment is reasonable and necessary when it provides relief of pain, is in combination with other modalities and allows her to maintain her current level of function.

9The respondent claims that the treatment plans are not reasonable and necessary, as the treatment is solely based on symptomatic relief rather than increased functionality, there is no objective information to support the treatment goal, the applicant’s self-reporting of symptomatic relief is based on her credibility which is in question and the evidence of the respondent should be preferred because it is based on objective information.

10The respondent relies on numerous decisions to support its position that the treatment plans are not reasonable and necessary:

(i) RBC v. PB⁵ to support that the applicant must show the treatment plans are reasonable and necessary both on an evidentiary and persuasive basis;

(ii) West v. Aviva⁶ for support that in order for prolonged chiropractic and massage to be considered reasonable and necessary, the treatment goals need to be reasonable and met with a reasonable degree, and overall costs;

(iii) SU v. Wawanesa⁷ to argue that the applicant has to show clinical evidence beyond the treatment plan to support necessity or efficacy of the proposed treatment;

(iv) AT and Aviva⁸ to support how the applicant must prove the treatment is reasonable and necessary to treat the injury from which they suffer, which includes reports, the credibility of the applicant and objective information; and

(v) LD and Aviva⁹ to argue how the applicant needs to provide sufficient submissions and evidence as to why the treatment is beneficial.

11The goals of both the chiropractic and massage treatment plans were to reduce pain, increase strength and increase range of motion, with the functional goals of returning to activities of normal living and pre-accident work activities. The progress would be re-assessed at some point during the treatment plan. The chiropractic treatment plan contained additional information which indicated that the applicant showed improvement. She is now able to perform moderate physical activities, her flare-ups have decreased in frequency and intensity but she is still experiencing daily pain. The treatment plan was recommended as the applicant reports, post-treatment, that she feels decreased symptoms, increased range of motion and functional abilities.¹⁰

12The respondent conducted five (5) insurer’s examinations: two (2) in-person, one (1) file review and two (2) addendums.¹¹ The report of Dr. McKee, GP, dated September 22, 2016 concluded that the applicant is in the Minor Injury Guideline (MIG)¹² but did not comment on the two treatment plans because of the applicant being in the MIG. Dr. Swain, chiropractor, wrote the additional four (4) reports. The in-person assessment commented on the chiropractic treatment plan, the file review assessment rendered an opinion on the massage treatment plan and the addendums were authored after a review of the chronic pain treatment program records, the MRI results and the rebuttal letter of Dr. Braun, the applicant’s chiropractor. Dr. Swain opined that the treatment plans were not reasonable and necessary, as the treatment plans were not geared towards functional restoration but towards symptom relief. He opines that the treatment plans are not reasonable and necessary because the symptomatic relief is not significant or for a prolonged period of time.

13The applicant testified during the hearing and I find her to be very credible as her testimony corroborates with the evidence produced. She reported that she has tried and continues to try various modalities that are recommended, including physiotherapy, chiropractic and massage therapy, medications, a chronic pain treatment program, and trigger point injections. She testified that she found the massage and chiropractic therapy beneficial when she attended twice per week, as it provided her temporary relief of her symptoms which allowed her to function in her daily life. She found her work attendance improved and she could participate in more household activities.

14Taking into account the case law presented by both the applicant and the respondent, I find the applicant has met her onus and the treatment plans are both reasonable and necessary.

15Pain relief, even on a temporary basis, is enough to qualify passive treatment as reasonable and necessary as long as it maintains or increases functionality. Functionality can have different meanings, for example, increasing or maintaining range of motion, activities of daily living, workplace tasks/attendance and/or the ability to sleep. Passive treatment does not necessarily always have to be combined with other modalities, as long as other modalities have been explored. The cost of the treatment needs to be taken into consideration with the likelihood of success.

16In this case, the applicant explored various modalities to improve the symptoms caused by the injuries sustained in the car accident. The treatment in question allowed her to maintain adequate workplace attendance, increase her ability to perform household chores and daily activities. The treatment was not only recommended by her treating chiropractor but also by her family doctor. Dr. Dubois reported to the applicant’s employer that the applicant is seeking appropriate treatment of chiropractic and massage therapies and is being referred to a chronic pain treatment program.¹³ The applicant was also consistent in her messaging to various doctors. During the chronic pain treatment program, the applicant reports that she cannot attend chiropractor and massage therapy as often as she finds beneficial, as she had exhausted her automobile medical limits.¹⁴ What I also find is compelling in support of the applicant’s submissions is the rebuttal letter provided by Dr. Braun.¹⁵ He reiterated that the goals of the treatment were successful in providing symptom relief and functional restoration, although temporary, as it allowed the applicant to perform her daily activities. The cost of the treatment plans are low at just over $2,000 for a 10-12 week period in order for the applicant to function in her daily life. I must stress the importance of producing the treatment plans as evidence in consideration of the goals, treatment and overall cost. All factors that need to be taken into consideration when assessing the reasonableness and necessity of a treatment plan.

17I find the respondent’s assessments unhelpful. Dr. McKee notes many of the observed pain symptoms yet does not comment on the reasonableness or necessity of the passive treatment. For example, the doctor noted that during questioning, the applicant would stand up and shift around in her seat. During the testing portion of the exam, she was asked to complete some tasks and they had to be modified because of her pain complaints. The applicant was observed slowly walking to and getting out of her chair. Tenderness and trigger points were noted on her spine and the range of motion testing showed discomfort and soreness. The assessor then opines that she would benefit from a graduated return to work program, a home-based exercise program, physiotherapy and core exercises, but does not comment on the treatment plans, which was the main purpose of the assessment.

18I put less weight on Dr. Swain’s report, as it focused on the concern that the therapies do not provide significant or prolonged symptomatic relief or functional restoration. The report failed to address whether the proposed treatment plan, which includes therapy services and frequency, coincides with the injuries sustained in the car accident, whether the treatment goals coincides with the proposed treatment and likelihood of success in relation to cost. All of these are factors that assist in determining whether a treatment plan is reasonable and necessary. During her testimony, the applicant explained that the quote from the report, where she states that she feels “a little better for a couple of hours”, was presented out of context. She claimed that the report only quoted part of what she explained to the doctor regarding her symptomatic relief. As I found the applicant credible during her testimony, I find the quote regarding the effectiveness of the treatment contrary to her testimony. This has also diminished the weight given to the report.

19The applicant has met their onus and proved that both treatment plans are reasonable and necessary.

Is the applicant entitled to interest?

20As I found the chiropractic and massage treatment plans to be reasonable and necessary, the applicant is entitled to interest on any overdue payment of benefits, pursuant to section 51.

Order

21I order the chiropractic and massage treatment plans are reasonable and necessary. The applicant is entitled to any interest that would stem from these benefits.

Released: February 27, 2018

______________________

Chloe Lester

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2In the applicant’s written submissions, she raises as issues in dispute legal costs and disbursements. At the hearing, the applicant withdrew those issues.
3. 3Grewal v. State Farm Mutual Automobile Insurance (FSCO A15-002540, May 8, 2017)
4. 4Pedisic v. State Farm Mutual Automobile Insurance (FSCO A04-002338 and A04-002339, January 23, 2009)
5. 5RBC v PB, 2017 CanLII 9816
6. 6West v. Aviva Canada Inc. (FSCO A09-002136, February 3, 2012)
7. 716-003333 v Wawanesa Mutual Insurance Company, 2017 CanLII 59508 (ON LAT)
8. 816-001934 v Aviva Insurance Canada, 2017 CanLII 69464 (ON LAT)
9. 916-003010 v Aviva Insurance Canada, 2017 CanLII 46346 (ON LAT)
10. 10Tab 3 pages 23-41
11. 11Tab 15-19
12. 12The Minor Injury Guideline (MIG) is a guideline that renders minor injuries resulting from a car accident subject to $3,500 worth of medical and rehabilitation treatment. When the $3,500 is exhausted the applicant would have to show the injuries are not minor to be eligible to apply for more medical treatment. As of the time of the hearing, the applicant was not subject to the MIG and therefore the monetary limit of $3,500 is not a concern.
13. 13Tab 7
14. 14Tab 10
15. 15Tab 13