A. R. v. Wawanesa Mutual Insurance Company, 2018 CanLII 2308

Licence Appeal Tribunal

Date: 2018-01-16

Tribunal File Number: 17-000149/AABS

Case Name: 17-000149/AABS v Wawanesa Mutual Insurance Company

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. R.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

Adjudicator: Aggrey Msosa

Appearances:

Applicant: A. R.

Paralegal for the Applicant: Frank Mercurio

Representative for the Respondent: Sophie Eng

Counsel for the Respondent: Kathleen O’Hara

Written hearing: July 27, 2017

REASONS FOR DECISION AND ORDER

Overview

1A. R. (the “applicant”) was involved in a motor vehicle accident on October 11, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The respondent denied two treatment and assessment plans (OCF-18s) for orthopedic assessments submitted on behalf of the applicant by Dr. Khal Efala on July 24, 2015 and Dr. West on January 27, 2017, respectively.

3The applicant appealed the denial of the treatment and assessment plans to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the Tribunal).

4At the case conference, the parties were unable to resolve the issues in dispute and a written hearing was ordered.

Issues

5The issues to be decided are as follows:

a) Is the applicant entitled to payment for the cost of an orthopaedic examination in the amount of $2,149.73 as set out in a treatment and assessment plan by Dr. Khal Efala of Healthcare Assessment Centre dated July 24, 2015 and denied by the respondent on August 18, 2015?

b) Is the applicant entitled to payment for the cost of an orthopaedic examination by Dr. West in the amount of $2,200 as set out in a treatment and assessment plan dated January 27, 2017 and denied by the respondent on February 15, 2017 and March 6, 2017?

Results

6I find that the applicant is not entitled to the proposed treatment plans.

ANALYSIS

7I find that the neither treatment plans are reasonable and necessary.

8Section 25(1)3. of the Schedule provides that an insurer shall pay reasonable fees for an examination or assessment.

9Neither party included a copy of the treatment plans in dispute. The parties were directed in the case conference report and order to include all evidence in support of their positions in accordance with the timetable as set out in the order.

10In the absence of these treatment plans, I am unable to determine the objectives and goals, nor the proposed treatment, if listed, of the treatment plans. The only medical evidence submitted by the applicant are two orthopedic medical assessment reports by the orthopedic surgeons, Dr. Fred Langer, dated May 20, 2016; and by Dr. Michael West dated February 1, 2017.

11In Dr. Langer’s report which purportedly addresses the treatment plan by Dr. Efala, he opines that “the MVA of October 11, 2012 resulted in spinal injuries causing painful spinal impairments, worsening pre-existing spine discomfort causing mechanical spine pain, headaches and resulting in insomnia and significant emotional distress” as well as “mechanical neck and back pain, chronic pain disorder and carpal tunnel syndrome”. I note that the report does not address the type of treatment the applicant requires to address those issues.

12Dr. West’s report indicates that the applicant sustained “myofascial strain lumbosacral spine, cervical spine, right shoulder muscular ligamentous strain with post traumatic painful arc syndrome, post traumatic cervicogenic headaches, post-traumatic insomnia and fatigue, anxiety and stress with depressive episodes and, chronic pain syndrome. He recommended various future treatments, including psychological assessment, physiotherapy/ chiropractic treatment and assistive devices.

13Given that I do not have the treatment plans, I do not know whether the reports support the proposed objectives and/or goals requested in the treatment plans. What I had before me were the end products – the two assessment reports. What I did not have was the initial request for those assessments made to the insurer in the form of the OCF-18s. I find that without these treatment plans the applicant has not connected the evidentiary dots from the request to the outcome to prove that the assessments were reasonable and necessary.

14In response to the treatment plans submitted by Dr. Efala and to Dr. Langer’s report, the respondent conducted a medical examination pursuant to s.44 of the Schedule. The examining physician, Dr. Castiglione, MD, addressed whether the disputed OCF 18 dated August 10, 2015 was reasonable and necessary in his report dated August 28, 2015. Dr. Castiglione diagnosed the applicant as having suffered soft tissue injuries to her cervical and lumbar spine at the time of the accident. He opined that “there was no need for an orthopedic assessment” as the applicant’s injuries were soft tissue in nature.

15A documentary assessment pursuant to s. 44 (insurer examination) was conducted by Dr. Sapyls, an orthopedic surgeon, in response to Dr. West’s report. Dr. Sapyls opined that the treatment plan in the amount of $2,200 was not reasonable and necessary on a musculoskeletal basis as the applicant was under the care of her family doctor as well as a physiatrist, Dr. Prutis. The applicant has documented degenerative changes confirmed by MRI and therefore further diagnostic clarity is not required. I prefer the opinions of Dr. Castiglione and Dr. Sapyls in respect of whether the proposed treatment plans were reasonable and necessary.

16The applicant has the onus to prove why the two treatment plans for orthopedic assessments are reasonable and necessary. The applicant submits the treatment plan for an orthopedic assessment recommended by Dr. Efala is reasonable and necessary because the most recent reports addressing the applicant’s disability at the time were over three years old and she needed the assessment in order for the respondent to reconsider their position to deny the applicant IRB benefits after she had been approved for CPP disability benefits. The respondent refused to reconsider the denial of the applicant’s IRB claim when the applicant submitted approved CPP disability benefits as proof of the applicant’s ongoing impairments.

17The applicant submits the request for the orthopedic proposed by Dr. Efala was in response to the respondent denying income replacement benefits. I also note from the applicants submission that the reason the applicant submitted the subsequent orthopedic treatment plan dated January 27, 2017 was to request the insurer to reconsider their position to reinstate the applicants IRB claim. The applicant submitted to the insurer a copy of the applicants approved CPP application for disability benefits to bolster the applicants case. It is not clear whether the applicants CPP disability claim was based on the applicants impairments as a result of the motor vehicle accident or due to other medical issues; the applicant failed to submit the entire CPP application to the Tribunal and only submitted the approval showing the dollar amounts she would be receiving per month. When the insurer refused to reconsider reinstating the IRB claim, the applicant submitted a request for an orthopedic assessment to support her ongoing litigation with the insurer at FSCO on the IRB issue. The IRB claim was dismissed by FSCO.

18The respondent submits the treatment plan is not reasonable and necessary because the applicant was diagnosed with soft tissue injuries resulting from the subject accident and that the proposed treatment plan was submitted three years after the subject accident. The respondent states that the applicant has never been diagnosed with orthopedic injuries which would necessitate an orthopedic assessment. There is no evidence before the Tribunal as to the reasons for the application for CPP Disability benefits. The letter from Service Canada approving CPP disability benefits has no bearing on whether the two proposed orthopedic assessments are reasonable and necessary.

19I find the treatment plan recommended by Dr. Efala is not reasonable and necessary and the applicant has not met her onus. I find the applicant has not provided any evidence as to why this treatment plan is reasonable and necessary given there has been no diagnosis of orthopedic injuries. She has not provided the treatment plans setting out the goals and purpose of the assessment. Further, she has not shown how the CPP claim was related to her accident impairments and the need for the orthopedic assessment. Finally, I prefer the opinions of Dr. Castiglione and Dr. Sapyls.

20The applicant submits the treatment plan for an orthopedic assessment recommended by Dr. West is reasonable and necessary in order to address the report by Dr. Saplys dated November 18, 2016 which found that the applicant sustained an exacerbation of pre-existing degenerative changes in her cervical and lumbar spine and that the applicant’s carpal tunnel surgery was unrelated to the motor vehicle accident. The applicant disagrees with Dr. Saplys’s opinion and proceeded with the assessment by Dr. West as she felt that report was necessary for the arbitration hearing of February 15, 16 and 17, 2017 at FSCO.

21The applicant submits that the assessment by Dr. West was necessary in order to address the report from Dr. Saplys as noted above which was specifically to address the applicant’s ongoing arbitration at FSCO in relation to IRB benefits denied by the respondent. While I agree that the purpose of the SABS is to provide medical and rehabilitation benefits to applicants, in many instances a section, 25 assessments are necessary to determine whether someone is entitled to these benefits and also to compensate or aid the injured party in their daily life. In this case the assessment had no medical or rehabilitation value to the applicant given that the applicant did not sustain any orthopedic injuries in the motor vehicle accident. I have not been provided any evidence by the applicant to indicate that the assessment plan is reasonable and necessary. As noted earlier, the applicant failed to submit the treatment and assessment plan to the Tribunal and I was not able to determine the goals and what issues the plan was intended to address.

22The applicant also submits that the assessment plans were necessary because the most recent reports addressing the applicant`s disability were over three years old. The applicant does not explain, in my opinion, why the applicant waited three years for the July 24, 2015 assessment and five years to seek the January 27, 2017 orthopedic assessment. This lengthy delay is particular given that the applicant’s submission that she continues to suffer from symptoms of the injuries sustained in the accident of 2012. I note from the medical reports of Dr. Guerriero, Chiropractor, submitted by the insurer dated December 11, 2012 and November 25, 2014 that the applicant was assessed and found to have not suffered orthopedic injuries as a result of the motor vehicle accident of October 11, 2012. I have not been provided any evidence by the applicant that disputes this finding.

23The December 11, 2012 assessment found that the applicant had symptoms of carpal tunnel syndrome particularly on the right which Dr. Guerriero opined was not related to the motor vehicle accident. This is contrary to Dr. Wests and Dr. Langer’s medical reports that suggest the applicants carpal tunnel syndrome is related to the accident. I have given Dr. Guerriero`s medical report more weight because the applicant was examined two months after the accidents and already had developed symptoms of carpel tunnel syndrome which, according to Dr. Guerriero, could not have developed as a result of the accident.

24The respondent submits the treatment plan submitted by Dr. West is not reasonable and necessary because the applicant has failed to provide any evidence that her condition had changed since Dr. Castiglione’s assessment dated August 28, 2015. The applicant did not suffer any orthopedic injuries as a result of the accident and that the proposed assessment was not reasonable and necessary at the time it was proposed which was five years after the accident.

25The applicant has not provided the treatment plan in question and has not provided any evidence that there has been a diagnosis of orthopedic injuries. On this basis and in conjunction with the respondent’s medical evidence I find that the applicant has not shown that the assessment was reasonable and necessary.

CONCLUSION

26In conclusion, the onus is on the applicant to prove, on a balance of probabilities, that the treatment plans for the orthopaedic assessments are reasonable and necessary for her treatment or rehabilitation. She has not done so and the appeal is dismissed.