Tribunal File Number: 16-004348/AABS
Case Name: 16-004348 v Allstate Canada
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:
Applicant
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Eleanor White
APPEARANCES:
For the Applicant: Catherine Raver, counsel
For the Respondent: Caroline Meyer, counsel
HEARD: in writing, August 3, 2017
OVERVIEW
1The applicant was involved in a motor vehicle accident on March 10, 2014. She subsequently applied for a number of automobile accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010[1] (the ‘Schedule’). Allstate Canada denied payment of some of the benefits. The applicant has appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for the payment of those benefits.
2The applicant is one whom both parties acknowledge has ongoing pain, however the issue in this case is a request for the continuation of passive, facility based care which I find in this case is not reasonable and necessary.
Issues in Dispute:
3The following treatment plans are in dispute before the Tribunal as they were not deemed reasonable and necessary by the insurer:
Is the applicant entitled to a medical benefit in the amount of $3,276.55 for chiropractic and other services as submitted by Dr. Freier, chiropractor of Spinetec Healthcare Solutions, denied on July 15, 2015?
Is the applicant entitled to a medical benefit in the amount of $5,128.30 for chiropractic and other services as submitted by Dr. Paton, chiropractor of Spinetec Healthcare Solutions, denied on July 15, 2015?
Challenge to expert witness and objection to late disclosure
4In a letter dated July 19, 2017, also copied to the applicant, the respondent challenges the affidavits of both Dr. Paton and Dr. Chettimada, pursuant to Rule 10 of the Tribunal. These matters were discussed before me in person on August 3, 2017. This date had been reserved for oral testimony as part of ‘hybrid’ hearing consisting of both written and oral evidence, as set out by Adjudicator Paluch in his Case conference report of March 6, 2017.
5After hearing submissions of the parties regarding the qualification of Drs. Chettimada and Paton as expert witnesses, and the admissibility of their affidavits, the documents would be accepted as opinion evidence and go to weight with respect to the applicant’s position. The parties agreed to go forward as a hearing in writing only, with no testimony and no cross examination of either the applicant or the affiants.
6The parties used the time allotted for oral testimony of the applicant and of the family doctor on August 3, 2017 to offer submissions regarding the respondent’s challenge to the (late) submission of affidavit evidence from the applicant’s family doctor and that of Dr. J. Paton, treating chiropractor. The parties agreed that the submitted affidavits would be allowed, but as opinion evidence, and would go to weight, as neither the family doctor nor the chiropractor were considered expert witnesses before the Tribunal. As part of the agreement, the parties consented to proceed as a written hearing only and no testimony was heard from either the applicant or her family doctor.
RESULT
7The applicant did not meet her onus in establishing the reasonableness or necessity of the treatment plans in dispute and is thus not entitled to the proposed recommendations.
ANALYSIS
8All evidence submitted by the parties is documentary evidence. I have reviewed and considered all of the evidence submitted and referred to those relevant to my decision.
9The applicant has been involved in previous accidents, the most recent being July 20, 2013. The applicant sought medical benefits for treatment of injuries sustained in that accident, including treatment plans for services including physical therapy, massage and acupuncture. She was still under care at Spinetec when she was again injured in this indexed motor vehicle accident on March 10, 2014. Treatment for the July 2013 accident continued concurrently with treatment for the March, 2014 accident. This last accident involved two impacts, one from the front as she collided with the vehicle in front of her and the second, when she was side-swiped whilst waiting for the emergency services in her vehicle.
10The applicant had a pre-accident history of neck, shoulder and back complaints documented prior to the July 20, 2013 accident, as evidenced in her family doctor’s notes1 and in those from other treating facilities, as seen in treating notes from KW Urgent Care.2 The treatment plans in dispute were denied on the basis they were found to be not reasonable and necessary.
The Law
11Under section 14 and 15 of the Schedule, the insurer is liable to pay for medical benefits that are reasonable and necessary and to or on behalf of an insured person who sustains an impairment as a result of an accident. The applicant bears the onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
12The disputed treatment plan dated April 3, 2015, recommended treatment provided by Dr. Freier, chiropractor, as well as care provided by an acupuncturist and a naturopath. The injuries for which the therapy was assigned included back pain, WAD 2 disorder, shoulder pain, contusion of the hip joint, tension-type headaches, sprain and strain of the thoracic and of the cervical spine and chest pain. The goals of the treatment included a reduction in pain, and an increase in strength and range of motion. Dr. Freier acknowledges that previous treatment in the Spinetec clinic included physiotherapy and massage.
13The recommendations for care do not include an evaluation of the previous year of care provided by the physiotherapist and the massage therapist. There is no discussion of the improvement made over the course of care and what residual problems exist, nor the relevance of his recommended care to the current status of his patient. The chiropractor lists the types of tests he will utilize to determine the status of the applicant, ‘Oswestry’, for low back assessment; ‘Visual Analogue Scale’ and pain diagrams for the applicant’s description of areas and degree of pain, and the Neck Disability Index; but does not report on any past indicators of improvement or lack thereof as a result of treatment.
14The clinical notes of the physiotherapist for the period after the March 11, 2014 accident indicate only the type of treatment and how the applicant is reporting her symptoms. The treatment seems very consistent – application of heat and a TENS unit with some massage therapy. The notes indicate the applicant’s continuing report of headache, upper back, shoulder and neck pain and generally no report of improvement, either subjectively or objectively.
15In the April, 2015 treatment plan Dr. Freier has introduced naturopathy as a recommended therapy but does not state why this is reasonable or necessary for the applicant. There are no directly contemporaneous clinical notes from other providers but within the time from the accident to the hearing, we have various opinions, assessments, affidavits as well as reports that collectively opine that the applicant has had consistent and quite frequent care, whether continuing care from the indexed accident or the accident preceding it.
16In October 2014, Dr. Fikry, from K-W Urgent Care, states that the applicant would benefit from a chronic pain program. On November 19, 2014, Dr. Judith Pilowsky reports that the applicant requires psychotherapy and a chronic pain program due to her Somatic Symptom Disorder with Predominant Pain and secondary depression due to the accident of March 11, 2014. Dr. Chettimada supported his patient in her application for short-term disability benefits available from her employer after the accident, in his attending physician report; in which he reported back strain, decreased sleep, back and neck pain, anterior chest pain and acute stress disorder. In a later time period, Dr. Chettimada attests in his May 30, 2017 affidavit that his patient would benefit from further treatment from either physiotherapy or chiropractic and would benefit from a chronic pain program. Dr. Paton, in his affidavit speaks primarily to the dangers of discontinuing treatment, fearful of his patient’s regression in the absence of care. Even the applicant, in her affidavit on May 26, 2017 speaks only to financial need for her outstanding bills for treatment and in no way addresses the benefits of past or continuing care.
17The applicant has expressed her lack of improvement quite consistently. Dr. Pilowsky includes in her report that the applicant is not noticing any improvement in her symptoms. The clinical notes and records from the physiotherapist at Spinetec, Mr. A. Farooqui consistently reported the same symptoms on all treatment dates. This is important as one reviews the report of the section 44 assessor, Dr. Paul Mathew, which formed the basis for denial of the treatment plans in dispute before the Tribunal.
18The respondent’s position is supported by the report of Dr. Paul Mathew, orthopaedic surgeon, section 44 IE assessor. The respondent does not find either treatment plan reasonable and necessary based on his findings. Dr. Mathew is clear in that he finds pain and tenderness in paraspinal muscles throughout the cervical, thoracic and lumbar spine, and the shoulders. He is able to elicit mildly positive test results for orthopaedic tests of the shoulders. Dr. Mathew acknowledges the multiplicity of accidents and their effect but finds that the subjective report of pain is greater than the objective findings of impairment. Dr. Mathew found that the applicant had reached maximal medical recovery with respect to her injuries arising from the accident. The question before me is whether this treatment plan can address her ongoing complaints of pain in a helpful manner, thus rendering the plan reasonable and necessary.
19The applicant admitted to the IE assessor that she found she found very little help from all of the care she had undergone up to that time. She reported feeling no better by the time she got home. Perhaps in response to specific questions, she agreed that she may have to deal with this ongoing pain for quite some time.
20The self-reporting of inadequate benefit of the treatment to date within the framework of an IE assessment would perhaps on its own not be fully persuasive but when supported by other reporters, including section 25 assessors and most tellingly, in the clinical notes and records of service providers; provides a picture of care that has run its course and should be reconsidered. All parties have supported a chronic pain program for this applicant.
21In light of all these reports, I do not find the continuation of passive, facility based care as represented in this treatment plan to be reasonable and necessary.
22In October, 2015, the applicant is assessed by another chiropractor working in the Spinetec clinic; Dr. Joseph Paton. The resulting treatment plan arises 19 months after the accident. I am not informed as to whether the applicant is still being treated in regards to the earlier accident. Dr. Paton reports the impairments as headaches, muscle strain, and sprain and strain of cervical, lumbar spine and sacro-iliac joints. He also points out that the applicant cannot perform her pre-accident job activities. I am otherwise informed that the applicant has returned to her employment, with modifications in May, 2014. His recommendations for treatment, totalling $5,128.30 include the services of physiotherapist for exercise, an acupuncturist, massage therapist and his own chiropractic services. This is not described as a chronic pain program.
23In his affidavit of July 14, 2017, Dr. Paton disagrees with Dr. Mathew in that he feels the applicant has not yet reached maximal medical recovery and would benefit from recommended treatment. Dr. Paton’s proposed treatment is aimed at alleviating pain and allowing a further return to daily activities and work activities. He does not argue from a point of view of measured outcomes or consideration of the success or lack thereof resulting from the totality of her treatment to date. He does not adequately support the importance of any treatment by utilising past clinical notes indicating successful relief of symptoms or significant improvement in daily life due to treatment received or the measured consequences of withdrawal of treatment.
24I do not find any evidence that the applicant has benefitted substantially from the many months of treatment. She has returned to work, albeit with modifications, she has admitted chronic pain and has presented a self-report of relatively unchanged symptoms throughout her care. I am not persuaded that this course of facility based, largely passive treatment is reasonable and necessary.
25So many opinions from treating practitioners in this case have recommended a chronic pain program, however this has not been effectively facilitated by either the applicant or the respondent to date. This seems to be an avenue of discussion between the parties in support of the applicant.
CONCLUSION
26The applicant has not met her onus in this matter and has not persuaded me to find either of the two treatment plans in dispute to be reasonable and necessary for the applicant as a result of injuries sustained in the March 11, 2014 accident.
27I order the appeal to be dismissed.
Released: March 16, 2018
________________________
Eleanor White, Adjudicator