Tribunal File Number: 17-005380/AABS
Case Name: 17-005380 v RBC 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:
N.A.
Applicant
and
RBC Insurance Company
Respondent
DECISION
ADJUDICATOR: Melody Maleki-Yazdi
APPEARANCES:
For the Applicant: Kalin Stoykov, Counsel
For the Respondent: Pamela Brownlee, Counsel
Heard in Writing: March 6, 2018
OVERVIEW
1N.A. (“the applicant”) was involved in an automobile accident on October 25, 2016 and sought and received benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent, however, refused to pay for two of the treatment plans requested by the applicant. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of that dispute.
3A case conference held on December 1, 2017 failed to fully resolve the issues disputed by the parties. As a result, a written hearing was ordered to be conducted in this matter, which is now before me. This decision is based upon my review of the parties’ evidence and written submissions.
4For the reasons that follow, while I agree that the applicant does have dental-related impairments, I find that the applicant has not established that those impairments were sustained as a result of the accident.
ISSUES
5The following are the issues to be decided:
- Is the applicant entitled to receive medical benefits recommended by Curity Dental Care as follows:
a. $1,600.00 for a treatment plan submitted December 21, 2016, denied April 11, 2017; and/or
b. $2,710.00 for a treatment plan submitted December 21, 2016, denied January 11, 2017?
RESULT
6Based on the evidence before me, I find that:
The applicant is not entitled to receive medical benefits in the amount of $1,600.00, recommended by Curity Dental Care in a treatment plan submitted December 21, 2016, denied on April 11, 2017; and
The applicant is not entitled to receive medical benefits in the amount of $2,710.00, recommended by Curity Dental Care in a treatment plan submitted December 21, 2016, denied on January 11, 2017.
REASONS
Issues 1(a) and (b): Entitlement to Medical Benefits
7The applicant is seeking $1,600.00 for dental treatment recommended by Dr. Earl Magder, dentist, on December 21, 2016. The full treatment plan lists (a) documentation support for claim form, (b) assessment (examination) total body, and (c) test temporomandibular (TMJ) joint.
8The applicant is also seeking $2,710.00 for additional dental treatment recommended by Dr. Magder on December 21, 2016. The full treatment plan lists (a) daytime oral orthotic, (b) nighttime oral orthotic, (c) 6 adjustment appointments, and (d) documentation support for claim form.
9In both treatment plans, Dr. Magder describes the applicant’s injury and sequelae information as temporomandibular joint (TMJ) disorders, sprain and strain of jaw, and headache.
10Pursuant to section 14 of the Schedule, an insurer is liable to pay the medical and rehabilitation benefits under sections 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15(1) sets out that the medical benefits must be reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 15 specifies that medical benefits include dental services.
Causation: Was the applicant’s impairment sustained as a result of the accident?
11A key issue I must decide is whether the applicant’s impairment, for which she seeks treatment, was sustained as a result of the accident. If I find that the impairment was sustained as a result of the accident, then I must also determine whether the disputed treatment plans are reasonable and necessary.
12In support, the applicant states that although she had pre-accident nocturnal teeth clenching for which she had a mouth guard, her post-accident impairments are significantly different from her pre-accident condition. Those differences are highlighted by the various clinical notes, records and referrals to specialists. The applicant submits that she continues to live in pain and is limited in many of her necessary daily activities, such as chewing and eating.
13In response, the respondent relies on the report and addendum report of the Insurer’s Examiner’s (“IE”) dentist, Dr. Eli Shem-Tov. The respondent submits that if the applicant is found to have sustained an impairment to her temporomandibular joints, it was not sustained as a result of the subject accident.
14The respondent submits that the “but for” test is the appropriate test for determining causation. The respondent cites the decision, State Farm Mutual Automobile Insurance Company v. Daniel Sabadash2, where Director’s Delegate Evans discussed the relevant case law in detail and concluded:
“In conclusion, the Supreme Court has reaffirmed that the primary causation test is the ‘but for’ test, and the Ontario Court of Appeal accepted that in Blake3. A proper understanding of Athey4 shows that it is not true that an adjudicator can simply choose between the ‘but for’ test and a material contribution to risk test. Rather, the ‘but for’ test is paramount. Any de minimis consideration is only relevant once the ‘but for’ test has been passed”.5
15The respondent submits that the onus to satisfy the causation requirement is upon the applicant. The respondent submits that the applicant has provided no expert opinion on the causation issue.
16The applicant did not make any submissions on the appropriate test to be applied.
17I have considered the submissions of the respondent with respect to the causation test to be applied. While I am not bound by the decision that the respondent cited, I find the discussion of the causation test useful in analyzing the issue before me.
18For the reasons below, I find that on either the “but for” test or the “material contribution” test, on a balance of probabilities, the applicant’s impairment is not as a result of the accident. The clinical notes and records of Dr. Magder (dentist) both pre-accident and post-accident, as well as the post-accident clinical notes and records of Dr. Michael Goldberg (periodontics specialist), Dr. Marwan Hameed (dentist) and Dr. Shem-Tov (IE dentist), reveal that the applicant’s pre-accident and post-accident TMJ symptoms are so similar that I cannot conclude that her current symptoms were caused by the accident. I came to this finding based on the medical evidence before me:
i. I find that the applicant had TMJ-related symptoms prior to the accident. I do not agree with the applicant that her post-accident impairments are significantly different than her pre-accident nocturnal teeth clenching, for which she had a night guard.
ii. Dr. Magder’s clinical notes and records document that more than four months before the accident, on June 10, 2016, the applicant was suffering from pain involving her right TMJ and temporal region, for which he had prescribed medication and a professionally fabricated night guard.
iii. The applicant told the IE dentist, Dr. Shem-Tov, about her long-time habit of clenching her teeth and that prior to the accident she received approval from her health benefits insurer to obtain a night guard.
iv. The clinical notes and records of Dr. Mari Marinosyan, a walk-in clinic physician the applicant saw on October 26, 2016, the day following the accident, also supported that the TMJ symptoms are not accident-related. Dr. Marinosyan only notes that the applicant has developed pain on her left side (specifically leg pain and shoulder/upper back pain after a few hours) and has been having a headache, but does not mention that the applicant described any jaw or teeth pain, or injury.
v. The applicant had an appointment on November 10, 2016 – about two weeks after the accident – to see Dr. Jacqueline Ringnalda, her family doctor, and the doctor’s notations include that the applicant presented with a left-sided headache and swelling of her left cheek. I note that the applicant did not describe the swelling of her left cheek at the October 26, 2016 appointment with Dr. Marinosyan at the walk-in clinic the day following the accident.
vi. On a referral by Dr. Marinosyan, the applicant was examined by Dr. Goldberg, a periodontics specialist, on February 28, 2017. In a report dated March 14, 2017, Dr. Goldberg records that the applicant told him she wears dental night guards to address a chronic clenching problem over the past few years. Dr. Goldberg opined that it appears that the applicant is suffering from signs and symptoms associated with a TMJ disorder and that there may also be non-reducing disc displacement present. He suggested the use of medication, ordered a MRI and scheduled a follow-up to discuss bite plate therapy and/or physiotherapy, as well as the possibility of a surgical consult pending the outcome of the MRI. I have been provided with the MRI results, dated May 7, 2017, which indicate that the applicant has “borderline anteriorly subluxed TMJ meniscus, medially on the left side and laterally on the right side. There is normal range of motion bilaterally with reduction. No irregularities of the condylar head, articular eminences or the glenoid fossae.” There is no evidence before me about whether there was a follow-up appointment with Dr. Goldberg.
vii. The applicant also visited Dr. Hameed, a dentist, in support of her claim. Dr. Hameed examined the applicant on October 5, 2017. It appears that he was not provided with information about the applicant’s pre-accident teeth clenching or that she uses a night guard, because his report does not set out these details in the “medical history” section. Dr. Hameed diagnosed the applicant with anterior disc displacement without reduction on the right TMJ, temporal and masseter tendinitis on the right side and chronic adult gingivitis. The proposed treatment he recommended included a maxillary intra oral stabilization appliance (night guard), 4 adjustment appointments, 12 units of periodontal hygiene therapy, referral to her family physician to discuss muscle relaxants and possible physiotherapy, and re-evaluations to assess the improvement of range of motion. I note that Dr. Hameed prescribed a night guard as treatment for the applicant’s TMJ symptoms, but the applicant already had a night guard and was using it, information unknown to the dentist.
19Based on the evidence set out above, I conclude on a balance of probabilities that it is well documented that the applicant had TMJ symptoms prior to the accident as noted in Dr. Magder’s clinical notes and records. After the accident, the applicant continues to have TMJ symptoms, but the evidence does not lead me to believe that the symptoms are any different than her symptoms prior to the accident. In fact, initial self-reporting did not mention TMJ symptoms and the later reporting of the symptoms is not worse. Likewise, medical opinions upon which the applicant relies that opine that the TMJ symptoms are accident-related, do not appear to have considered the applicant’s pre-accident dental records.
20Given my finding that the applicant has not established that her TMJ impairments were caused by the accident, it is not necessary for me to determine the issue of whether the medical benefits claimed are reasonable and necessary.
CONCLUSION
21For the reasons above, the application is dismissed.
Released: May 23, 2018
___________________
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- FSCO P16-00029, September 18, 2017 [State Farm].
- Blake v Dominion of Canada General Insurance Company, 2015 ONCA 165 [Blake].
- Athey v Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458 [Athey].
- State Farm, supra note 2 at 11.