[Applicant] v. TD Insurance, 2018 CanLII 8082

Licence Appeal Tribunal

Date: 2018-01-26

Tribunal File Number: 17-003356/AABS

Case Name: 17-003356/AABS v TD 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:

[Applicant]

Applicant

and

TD Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Lisa Holland, Counsel for the Applicant

Yulia Barsky, Counsel for the Respondent

HEARD in Writing on December 6, 2017

OVERVIEW

1[Applicant] (“the applicant”) was involved in an automobile accident on March 25, 2016 (“the accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is the applicant entitled to payment of medical benefits covering the following medication expenses, recommended by Dr. Elizabeth Tham:

   a. $198.64 for a medication expense, as detailed in an expense form dated October 6, 2016, denied by the respondent on October 26, 2016;

   b. $180.80 for a medication expense, as detailed in an expense form dated October 12, 2016, denied by the respondent on October 26, 2016;

   c. $198.64 for a medication expense, as detailed in an expense form dated November 4, 2016, denied by the respondent on October 26, 2016;

   d. $451.72 for a medication expense, as detailed in an expense form dated December 20, 2016, 2016, denied by the respondent on October 26, 2016;

   e. $996.13 for a medication expense, as detailed in an expense form dated February 1, 2017, denied by the respondent on October 26, 2016;

   f. $1,836.75 for a medication expense, as detailed in an expense form dated May 10, 2017, denied by the respondent on October 26, 2016;

   g. $191.39 for a medication expense, as detailed in an expense form dated May 15, 2017, denied by the respondent on October 26, 2016?

2. Is the applicant entitled to receive a medical benefit in the amount of $1,759.99 for a facility-based exercise program recommended by Dr. Darren Jagessar, chiropractor, in a treatment plan dated December 17, 2016, denied by the respondent on January 19, 2017?

FINDINGS

4The applicant is entitled to the disputed benefits for medications, and his appeal on that issue is allowed.

5The applicant has not met his onus to prove that the disputed treatment plan is reasonable and necessary, and his appeal on that issue is denied.

REASONS

6Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident.

7Section 15 of the Schedule provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.²

8If I find that the injuries for which the applicant seeks medical benefits for treatment, including medications, were not sustained as a result of the accident, I will not need to determine whether the disputed treatment plans are reasonable and necessary.

Causation: Was the applicant’s impairment sustained as the result of the accident? Were his medical expenses incurred as a result of the accident?

9The respondent has raised the issue of causation: it denies the applicant’s claim based on its contention that the conditions for which the applicant seeks benefits were not caused by the accident, but rather existed before the accident.

10The parties agree that the applicant has a significant pre-accident medical history for which he has received medical treatment, which include lower lumbar and cervical spinal injuries, headaches or migraines, erectile dysfunction (“ED”), sleep disruption and psychological issues, including depression and anxiety.

11The parties agree that the applicant has been involved in at least two previous MVAs in 2013 and 2015, in which he sustained injuries consistent with the description above in paragraph 10.

12The respondent also cites an additional MVA in “2007 or 2008” and workplace accidents in 2005 and April 2017 as contributors to the applicant’s current medical condition: these events and their potential impact on his condition are undisputed by the applicant.

13The applicant contends that he is entitled to benefits because the noted existing conditions were aggravated and exacerbated by the accident. In support of his argument, his evidence includes:

i. a Disability Certificate from Dr. Elizabeth Tham, his family physician, dated June 9, 2016, indicating injuries to the neck, back, right knee, and left shoulder, plus increased headaches, ED, and adjustment disorder as results of the accident;

ii. a letter and a treatment plan from Dr. Tham, both dated November 11, 2016, noting that his headaches and neck and back pain were worse and increasing since the accident, with consequences such as an increasing inability to do physical work and elevated stress;

iii. a Disability Certificate from Dr. Darren Jagessar, chiropractor, dated June 17, 2016, noting the same injuries plus radiculopathy, myalgia and sleep disruption again as results of the accident;

iv. the insurer’s examination (“IE”) report by Dr. Zachary Bain, chiropractor, dated March 8, 2017, describing sprain/strain of his back and neck (WAD II inclusive of headache) due to the accident and indicating that his accident-related injuries “overlie pre-existing chronic headache, neck pain and back pain”.

14The applicant also notes that the respondent has approved three treatment plans from Dr. Jagessar dated January 3, April 5 and July 22, 2017, and a psychological treatment plan dated April 18, 2017 from Dr. Irma Valentin. He argues that this proves that the respondent has, in fact, already accepted that the accident is a cause of his current medical conditions. He argues that denying medical benefits now would be inconsistent with the respondent’s own previous determination.

15The respondent contends that the applicant’s injuries, as described above in paragraphs 11-13, arose from other MVAs and workplace accidents, and indicates that they are the cause of the applicant’s current medical conditions.

16The respondent argues that its evidence shows that the applicant was in essentially the same condition before the accident as after, and that as a result, the applicant sustained no impairment and incurred no medical expenses as a result of the accident. To support that argument it submits:

i. numerous pre-accident clinical notes and records (“CNRs”) from Dr. Tham detailing the applicant’s injuries, pain and psychological difficulties and the treatment and medications provided for them—which indicate that the applicant was experiencing the same medical issues, seeking essentially the same treatments and getting the same results as he did before the accident, with the exception of medical marijuana;

ii. a post-accident CNR from Dr. Tham dated October 1, 2017 indicating that the applicant had no new complaints and was prescribed no new medications as a result of the accident.

17The respondent submits that the applicant's medical record demonstrates that on the balance of probabilities the applicant would have required all medications (the costs of which are claimed in this proceeding) even if the subject accident had not occurred.

18In considering my decision on this issue, I kept in mind that:

i. “scientific precision is not necessary” to a conclude that causation has been established on a balance of probabilities;³

ii. “scientific reconstruction evidence” is not a necessary condition of finding causation;⁴ and,

iii. a cause meeting the legal test need not be the major cause of the injury or harm giving rise to a claim.⁵

19I find that, on a balance of probabilities, the applicant’s injuries were caused by the accident, because:

i. The applicant’s health services providers expressly indicate the accident as a cause of his current medical condition, and point clearly to aggravation and deterioration of his condition as a result of the accident.

ii. The respondent’s IE assessor’s indication that accident-related injuries “overlie” pre-existing injuries supports the conclusion of causation by the accident.

iii. Similarities in pre- and post-accident injuries, symptoms and treatment plans do not lead me to a conclusion that the applicant’s condition is solely attributable to pre-existing conditions.

iv. The respondent makes no persuasive argument that the applicant’s pre-accident chronicity precludes causation by the accident of the applicant’s current state.

20My finding that the applicant has established causation means that I will determine the issue of whether the medical benefits claimed are reasonable and necessary.

Issue 1: Medication Expenses

21The applicant’s appeal of the respondent’s denial of medical expenses is granted, because:

i. The applicant’s need for the claimed medications is uncontested by the respondent and is well-document by his attending physician and others.

ii. The efficacy of the claimed medications is unchallenged, and there is an objective set out of reducing narcotic dependence and side-effects with the use of medical marijuana.

iii. There is no suggestion that the claimed costs are unreasonable or undocumented.

Issue 2: Treatment Plan

22The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. Approval of multiple treatment plans is not an “all or nothing” proposition.

23The applicant does not make a strong argument for the necessity of the disputed treatment plan, which consists of a gym membership and personal trainer (facility-based exercise program). The applicant’s evidence does not persuade me that the claimed treatment plan is reasonable and necessary.

24I reject the applicant’s contention that because the respondent has approved other treatment plans from the same service provider for chiropractic, acupuncture and exercise therapies, it is acting unreasonably to deny this one. He offers no legal or logical basis for such a conclusion. Furthermore, the elements of the disputed treatment plan strike me as quite distinct from those of the plans approved by the respondent.

25The respondent relies on the IE by Dr. Bain dated March 8, 2017. Dr. Bain concluded that the disputed treatment plan was not reasonable or necessary because:

i. The exercise regimen recommended by the applicant does not need to be carried out in a gym setting.

ii. The applicant had indicated that he had a treadmill and weights at home, along with instruction on home exercise, and was in fact following a home exercise program.

26I find the IE report by Dr. Bain a persuasive rebuttal to the applicant’s claim; accordingly, the appeal is denied.

Interest

27Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

28Interest is payable on the amount claimed by the applicant for costs of medications in accordance with the Schedule.

CONCLUSIONS

29The applicant is entitled to be paid medical benefits to cover the disputed costs of medications. His appeal on this issue is allowed. Interest is payable on the amount claimed by the applicant for costs of medications.

30The applicant has not proven his entitlement to the treatment plan for a facility-based exercise program. His appeal on this issue is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Clements v Clements, 2012 SCC 32, 2012, 2 S.C.R. 181 at p.183
4. 4Ibid.
5. 5State Farm Insurance v. Sabadash, 2017, FSCO Appeal Order P16-00029.