Tribunal File Number: 17-003297/AABS
Case Name: 17-003297 v Certas Direct 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
Z.A.
Applicant
and
Certas Direct Insurance
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for the Applicant: Charles E. Gluckstein
Counsel for the Respondent: Janet Young
HEARD in Writing: November 23, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, Z.A., was injured in a motor vehicle accident on September 3, 2016. The applicant was the driver. He was rear-ended while stopped at a red light. He exited his vehicle and exchanged information with the other driver. He applied to the respondent, Certas Direct Insurance, for insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant was involved in a previous motor vehicle accident on August 29, 2010. The applicant was deemed to be catastrophically impaired as a result of his previous accident and his accident benefit claim was settled.
3As of March 21, 2017, the applicant has received $5,159.55 for medical, rehabilitation and attendant care benefits, with $59,850.45 remaining under the policy for the accident in question. In particular, the respondent approved and the applicant received physiotherapy treatments, osteopathy treatments and medical marijuana (classified as medical goods).
4The respondent denied other benefits claimed by the applicant. The applicant submitted an application to the Licence Appeal Tribunal (the Tribunal).
5A case conference was held by the Tribunal on July 18, 2017. The Tribunal ordered a written hearing.
ISSUES
6Based on the order of the Tribunal dated August 14, 2017, the following are the issues to be decided:
a) Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from March 3, 2017 to date and ongoing, denied by the respondent on January 6, 2017?
b) Is the applicant entitled to receive a medical benefit in the amount of $2,288.25 for medical cannabis, recommended by Tilray, in a treatment plan submitted on December 15, 2016, denied by the respondent on December 20, 2016?
c) Is the applicant entitled to receive a medical benefit in the amount of $3,253.20 for osteopathy, recommended by East Toronto Osteopathy, in a treatment plan submitted on January 17, 2017, denied by the respondent on March 9, 2017?
d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant is not entitled to the non-earner benefit. I find the applicant is entitled to the medical benefits claimed, and the interest on any overdue payment of benefits.
THE LAW AND ANALYSIS
Issue 1: Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week f from March 3, 2017 to date and ongoing, denied by the respondent on January 6, 2017?
8To be eligible for non-earner benefits, the person must suffer from an impairment as a result of the accident that continuously prevents the person from engaging in substantially all the activities in which the person ordinarily engaged before the accident.
9I find the applicant has not submitted sufficient evidence to support his claim.
10I first consider the main piece of evidence submitted by the applicant in claiming non-earner benefits, namely the Disability Certificate dated September 30, 2016 prepared by Allen Gilchrist, an Occupational Therapist (OT), about three weeks after the accident. Mr. Gilchrist noted in the Certificate that the applicant is “unable to continue with his regular routine of walking and swimming he completed to manage his health from previous MVA as well as difficulty completing ADLs and IADLs”. The applicant reported that in the month before the September 3, 2016 accident, he was independent with showering, cooking, cleaning, doing laundry and he had returned to driving. Since the second accident, the applicant reported that he had not walked or swam, had tried physiotherapy and massage twice and tried cooking a couple of times but gave up due to pain. The injuries noted in the Disability Certificate include low back strain/sprain and bilateral hip pain with numbness down right leg. The estimated duration for the disability is noted as more than 12 weeks because “pre-existing vulnerabilities due to impairments from a previous MVA presents a real and substantial risk of activity limitations persisting beyond 12 weeks.” Apart from this visit, the applicant did not see Mr. Gilchrist again.
11I also consider the other medical evidence submitted by the applicant in support of his claim for a non-earner’s benefit is a letter dated July 7, 2017 by Dr. Betty Choi-Fung, his family physician. Dr. Choi-Fung’s report is reproduced in its entirety as follows:
Due to medical condition from MVA 2016 Sept, this patient is unable to do normal activities or chores. I can be reached at the above number for verification.
12Weighing against the applicant’s evidence are the reports prepared by two insurer examinations, one by Dr. Raymond Zabieliauskas, a physiatrist, and an in-home assessment by Ms. Susanna Pui Shan Au, an OT.
13Dr. Zabieliauskas completed an assessment on December 12, 2016 which addressed the non-earner benefit. During the examination, the applicant reported to Dr. Zabieliauskas that Dr. Choi-Fung has not referred him for any radiological investigations or specialist appointments since the accident of September 3, 2016. The applicant also reported that he continued to experience some dizziness and occasional headaches, but ongoing pain across the tops of his shoulders and upper back. He also reported that he continued to be independent with his personal toileting and showering, but was only involved in doing simple housekeeping. His primary goal is to help look after his elderly father. The applicant makes sandwiches for himself and his father and orders in dinner for the two of them.
14Dr. Zabieliauskas conducted a physical examination and found good ranges of motion and no palpable muscle spasms, although some tenderness was reported. Dr. Zabieliauskas opined that the applicant was involved in a materially minor accident. Any soft tissue injuries or strains would have healed in the ensuing two to three months. While not discounting the applicant’s experience with residual pain, Dr. Zabieliauskas opined that the applicant’s current symptoms are benign and are not suggestive of any ongoing physical impairment.
15In her report dated December 15, 2016, OT Susanna Pui Shan Au noted that the applicant was using Oxycocet 5 mg, four tablets a day and 2 grams of medical marijuana per day. The applicant reported many of the symptoms from the first accident being re-aggravated, including pain and stiffness in his cervical region, upper back, mid-back and lower back, and down into his hips. Prior to the September 3, 2016 accident, the applicant had returned to all activities of daily livings except return to work. He reported he is still going to the Woodbine racetrack, but instead of six hours at a time as he managed before the accident, he can only tolerate a maximum of 1 ½ to 2 hours of poker due to his back pain.
16Ms. Au reported that the applicant continues to grocery shop but only gets light and small items; he does laundry but struggles and has a helper coming in once every few weeks to assist with housecleaning. He has reduced the frequency of driving. Her report described observing the applicant putting groceries on the top shelf of the fridge, walking around in his apartment without any assistive device and sitting for at least 50 minutes with no apparent issue. Ms. Au opined that there was insufficient medical information to support any significant functional limitations and/or physical restrictions as a direct result of the accident of September 3, 2016 to render the applicant as suffering from a complete inability to carry on a normal life.
17Citing Heath v. Economical Mutual Insurance Company,1 the applicant submitted that the Tribunal must consider whether the applicant is engaging in his post-accident activities on a qualitative basis, rather than simply going through the motions. The applicant submitted that, prior to the September 3, 2016 accident, the applicant was receiving physiotherapy, occupational therapy and psychological treatment for the injuries from the previous accident and was able to return to performing all of his activities of daily living except for returning to work. The applicant submitted that he continues to perform some of his personal care tasks, despite aggravations of pain and symptoms. His symptoms related to the previous accident are now being re-aggravated by the subject accident.
18While I accept that the applicant’s abilities to carry out his daily living have undoubtedly been affected by the September 3, 2016 accident, I find, based on the insurer examination reports, that the applicant is able to perform a number of self-care activities and daily living activities, including preparing simple meals, doing laundry and washing dishes with a counter top dishwasher. He was observed retrieving light objects from the top shelves of the refrigerator. He has learned modified methods and had modified setup/appliances to accommodate for his limitations related to the previous accident, and he continues to use these modified setup/appliances. Also, the applicant still pursues activities outside of his home, such as going to the racetrack, albeit less frequently and for a more limited time period.
19The applicant has not provided other documentation or functional assessment reports to support his claim that he is “simply going through motions” when he carries out his daily activities.
20Given the lack of sufficient evidence to support his claim, I therefore find the applicant not eligible to receive a non-earner benefit.
Issue 2: Is the applicant entitled to receive a medical benefit in the amount of $2,288.25 for medical service of medical cannabis, recommended by Tilray, in a treatment plan submitted on December 15, 2016, denied by the respondent on December 20, 2016?
21Subsection 15(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.
22The applicant’s family physician prescribed medical marijuana to the applicant. The respondent approved and paid a claim of $717.55, but denied the rest of the claims.
23The applicant was using a number of pain medications for his previous motor vehicle accident on August 29, 2010. He had also used medical marijuana in the past to assist with his previous injuries. According to the applicant, his conditions had improved over time prior to the September 3, 2016 accident, and he was able to stop the use of all medications prior to that date. However, since the accident, the applicant is using Oxycocet and medical marijuana. The applicant reported to Ms. Au during the insurer’s examination that many of the symptoms he had experienced related to the previous accident, which later resolved, and were re-aggravated by the 2016 accident.
24The respondent relied on the report by Dr. Zabieliauskas, dated March 2, 2017, based on a paper review of the treatment plan and stating that there is no residual impairment and no medication required. The respondent pointed out that the applicant did not provide any notes and records from Dr. Choi-Fung to support the claim for medical marijuana, despite having stated his intention to do so during the case conference hearing.
25I note that the letter dated July 7, 2017 from Dr. Choi-Fung also did not mention why she has prescribed medical marijuana for the applicant. There is, however, a letter dated December 31, 2016 from Dr. Choi-Fung noting that “vaporized medical marijuana, 4g/day required for pain sustained from MVA.”
26I note also that the in-home assessment by OT Ms. Au did note “some pain behaviours during bed transfer” and that the applicant “refrained from performing trunk forward flexion and utilized modified posture for reaching to lower areas due to reported back pain.”
27While the evidence in support of this claim is limited, I do find that the applicant’s claim for medical marijuana is both reasonable and necessary in light of his ongoing pain as a result of the 2016 accident. The applicant’s conditions from the previous accident improved in part due to the prescription of medical marijuana, and his family physician has prescribed the same treatment to help alleviate his pain. In view of all the information before me, I see no reason to question the medical need for this prescription. As such, I find in favour of the applicant.
Issue 3: Is the applicant entitled to receive a medical benefit in the amount of $3253.20 for osteopathy, recommended by East Toronto Osteopathy, in a treatment plan submitted on January 17, 2017, denied by the respondent on March 9, 2017?
Applicant’s Submission and Evidence
28This claim consists of two components: the first is the applicant’s claim for a treadmill based on a recommendation by the osteopath to allow him to exercise at home. The second is based on a recommendation by the applicant’s family physician for a vaporizer.
29The applicant was seen by Pascale Marchand at East Toronto Osteopathy. In a treatment plan dated January 23, 2017, Ms. Marchand listed the following complaints, injuries and sequelae, as the direct result of the September 3, 2016 accident:
Whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs
Sprain and strain of shoulder joint
Sprain and strain of lumbar spine
Sprain and strain of ribs and sternum
Sprain and strain of hip
Depressive episode
30In the same treatment plan, Ms. Marchand identified the goals that the treatment plan seeks to achieve, including pain reduction, increase in strength, increased range of motion, and the functional goal of returning to activities of normal living.
31Further, Ms. Marchand indicated in a letter dated January 7, 2017, the applicant’s need for a treadmill:
[The applicant] has been attending the East Toronto Osteopathy Clinic. Since his MVA of September 3, 2016, his physical and mental conditions have decreased. He is presently receiving osteopathic treatments, however he requires to do exercises to built [sic] up his general strength, his cardiovascular and improve his health. Due to episodes of anxiety, [the applicant] has difficulty to be in a fitness club and prefers exercising at home.
It is my clinical opinion that [the applicant] would benefit from a treadmill.
32With respect to the vaporizer, the applicant relied on a letter dated January 10, 2017 from Dr. Choi-Fung which noted that a “vaporizer [is] required for health reason”. She also noted in another letter on the same date that the applicant requires “treadmill machine for exercise – very beneficial for the injury he sustains in [the accident].”
Respondent’s Submission and Evidence
33The treatment plan of Ms. Marchand was assessed by Dr. Zabieliauskas by way of a paper review. His report, dated March 2, 2017, indicates that, in his opinion, the applicant has reached maximum medical recovery and that the accident he was involved in was a minor one and that there is no residual impairment at this time.
Analysis
34I find, for the reasons set out below, that the applicant’s claim for medical benefits is reasonable and necessary.
35As noted in my analysis with respect to the applicant’s claim for non-earner benefits, I accept that the applicant still suffers from residual impairments as a result of the accident. The insurer’s examinations, in particular the examination by the OT Ms. Au, supports the applicant’s claim that he still suffers from pain in certain parts of his body and the resulting limitations on his abilities. The report by Ms. Marchand sets out clearly the goals for obtaining a treadmill, and the reasons why the applicant has chosen to do his exercise at home, as opposed to in a gym. When compared to the opinion of Dr. Zabieliauskas, which is based on his paper review of the treatment plan, I give more weight to Ms. Marchand’s opinion, as the applicant has been attending her clinic for treatment. As such, I accept that she is in a better position to determine the reasonableness and necessity of the said treatment plan.
36With respect to the vaporizer, I find the information is very limited. Dr. Choi-Fung’s one-line explanation that it is required for health reasons is unhelpful. However, I find that the vaporizer is related to the prescription of the medical marijuana, as the doctor’s prescription noted “vaporized medical marijuana”. As I have found the prescription for medical marijuana to be reasonable and necessary, I also allow the claim for the vaporizer.
Issue 4: Is the applicant entitled to interest on any overdue payment of benefits?
37Given my finding on the issues with respect to the medical benefits, I find that the applicant is entitled to interest on any overdue payment of benefits pursuant to s.51 of the Schedule.
ORDER
38The Tribunal finds the applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from March 3, 2017 to date and ongoing, denied by the respondent on January 6, 2017.
39The Tribunal finds the applicant is entitled to receive:
a. a medical benefit in the amount of $2,288.25 for medical service of medical cannabis, recommended by Tilray, in a treatment plan submitted on December 15, 2016, denied by the respondent on December 20, 2016;
b. a medical benefit in the amount of $3,253.20 for osteopathy, recommended by East Toronto Osteopathy, in a treatment plan submitted on January 17, 2017, denied by the respondent on March 9, 2017;
c. Interest on the overdue payment of benefit.
Released: March 12, 2018
___________________________
Avvy Go, Adjudicator
Footnotes
- Health v. Economical Mutual Insurance Company, 2009 ONCA 391.