Tribunal File Number: 16-003519/AABS
Case Name: 16-003519/AABS v State Farm Mutual Automobile Insurance
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:
A. M.
Applicant
and
State Farm Mutual Automobile Insurance
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
Counsel for the Applicant: Andrew Rudder
Counsel for the Respondent: Joseph Sullivan
HEARD: Written Hearing: August 8, 2017
Overview
1The applicant was injured in a motor vehicle accident on April 9, 2011. As a result of the motor vehicle accident, the applicant complained of temporomandibular joint (“TMJ”) pain.
2The applicant sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 20101 (the “Schedule”). In doing so, she submitted a Treatment and Assessment Plan dated April 9, 2013, in the amount of $1,750.00 for an adjustment to an existing myofascial appliance and a Treatment and Assessment Plan dated April 9, 2013, in the amount of $1,625.00 for an adjustment to natural dentition. Both treatment plans were recommended by Dr. Rajczak, dentist.
3On October 1, 2014, the respondent conducted a dental assessment in order to determine whether the April 9, 2013 treatment and assessment plans were reasonable and necessary. Based on the report generated from this assessment, the respondent concluded that the treatment plans were not reasonable and necessary.
4The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act,2 dated October 13, 2016. The applicant seeks a determination from the Licence Appeal Tribunal (the “Tribunal”) that the April 9, 2013 treatment plans are reasonable and necessary pursuant to s. 14 and s. 15 of the Schedule.
Issue
5Whether the April 9, 2013 treatment and assessment plans were reasonable and necessary pursuant to ss. 14 and 15 of the Schedule.
Result
6The applicant has not met her onus of establishing on a balance of probabilities that she is entitled to the treatment and assessment plans dated April 9, 2013, as I find that they are not reasonable and necessary.
Discussion
7Under s.14 of the Schedule, an insurer is liable to pay the medical and rehabilitation benefits under ss. 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15(1) includes, among other expenses, those for medical, chiropractic, psychological, occupational therapy and physiotherapy services, and also other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person. The same section specifies that the medical benefits must be reasonable and necessary expenses incurred as a result of the accident.
8The applicant suggests that the treatment and assessment plans in dispute are reasonable and necessary as Dr. Rajczak diagnosed the applicant with temporomandibular joint disorder. This causes pain and triggers headaches. The adjustments to the applicant’s bite guard and bite plate would help alleviate this pain which has been ongoing since the date of the motor vehicle accident.
9The applicant’s case is based entirely on counsel’s submissions, as no supporting medical evidence, such as clinical notes and records, medical reports, or even the treatment plans in dispute, was provided to the Tribunal. Submissions are not evidence. The purpose of submissions is to summarize the relevant facts and law and to provide a proposed analysis of the evidence which would assist the adjudicator in making a final determination on the issues in dispute. The applicant was contacted by the Tribunal on December 22, 2017 and January 2, 2018, in order to provide the applicant with another opportunity to submit the evidence she intended to rely on in support of her position that the April 9, 2013, treatment and assessment plans are reasonable and necessary. On January 2, 2018, the applicant submitted the clinical notes and records of Dr. Murdoch dating from January 2016 to December 2017. These clinical notes and records are not relevant to the issues in dispute and as a result, they do not assist me in determining whether the April 9, 2013, treatment and assessment plans are reasonable and necessary.
10In addition to this, the respondent conducted an insurer’s examination performed by Dr. Gusic, doctor of dental surgery. Dr. Gusic’s report, dated October 15, 2014, outlines that the applicant’s TMJ pain began after a previous motor vehicle accident in February 2007. The report explains that her existing pain has been exacerbated by the recent motor vehicle accident, despite having received a myofascial appliance and more than 20 sessions of adjustments to that appliance since its initial insertion after the 2007 accident. He also outlines that the applicant has had more than two years of active treatment of her TMJ symptoms. Dr. Gusic concluded that since the applicant has not reported any clinical or perceived improvement in her TMJ symptoms, despite having received extensive treatment over the course of more than 12 months, it is unlikely that she would receive any benefit from continued similar treatment. As a result, he opined that the treatment plans in question were not reasonable and necessary.
11Based on Dr. Gusic’s report, I find that the treatment and assessment plans dated April 9, 2013, are not reasonable and necessary as they are unlikely to improve the applicant’s TMJ pain which originated from a 2007 motor vehicle accident. Without any medical evidence from the applicant to the contrary, I find that the applicant has not met her onus in establishing on a balance of probabilities that the treatment plans dated August 9, 2013, are reasonable and necessary.
Released: January 9, 2018
Paul Gosio, Adjudicator