17-005427 v Wawanesa Mutual Insurance Company
Tribunal File Number: 17-005427/AABS
Case Name: 17-005427 v Wawanesa Mutual Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the applicant: Michael Ferrante
Counsel for Wawanesa: James Schmidt
Heard In-Writing: March 5, 2018
OVERVIEW
1The applicant was involved in a motor vehicle accident on April 7, 2016. The applicant applied for a number of automobile accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). Wawanesa Mutual Insurance Company ("Wawanesa") denied payment for some of the benefits. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for payment of those benefits.
ISSUES IN DISPUTE
2The following issues are in dispute before the Tribunal:
- Is the applicant entitled to receive an income replacement benefit (IRB) in the amount of $274.73 per week from May 27, 2017 to the date of this hearing?
- Is the applicant entitled to receive a $2,289.83 payment for chiropractic services, submitted by Active Mobility Rehab in a Treatment Plan dated April 11, 2016?
- Is the applicant entitled to receive a $2,075.54 payment for chiropractic services, submitted by Active Mobility Rehab in a Treatment Plan dated July 10, 2017?
- Is the applicant entitled to receive a $1,504.68 payment for psychological services, submitted by Active Mobility Rehab in a Treatment Plan dated September 22, 2016?
- Is the applicant entitled to receive a $600 payment for custom orthotics, submitted in a Treatment Plan dated March 16, 2017?
- Is the applicant entitled to interest on overdue benefits?
RESULT
3The applicant is not entitled to payment for any of the disputed benefits.
4The applicant is not entitled to an IRB because he has not proven that from May 27, 2017 to the date of the hearing he suffers a substantial inability to perform the essential tasks of his pre-accident employment.
5The applicant is not entitled to payment for the two chiropractic services in dispute because he has not shown why either of the Treatment Plans is reasonable and necessary.
6The applicant is not entitled to payment for the balance of psychological service because the service is a duplication at the time of this hearing.
7The applicant is not entitled to payment for custom orthotics because he incurred the expense before submitting a Treatment Plan. Payment is not required under s. 38(2) of the Schedule.
8The applicant is not entitled to interest because there are no outstanding payments.
DISCUSSION
1. The applicant is not entitled to an income replacement benefit from May 27, 2017 to the date of the hearing
9The applicant is not entitled to an IRB because he has not proven that from May 27, 2017 to the date of the hearing he suffers a substantial inability to perform the essential tasks of his pre-accident employment. The test for entitlement to payment of an IRB is set out in s. 5(1) of the Schedule. In the applicant's circumstance, s. 5(1) provides that he is entitled to an IRB only if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment.
10By way of background, the applicant was working as a carpenter at the time of the accident. Prior to that, and within a year of the accident, the applicant worked at a fitness supplement store.
11Wawanesa paid the applicant an IRB from April 2016 until the end of May 2017. Wawanesa concedes that the applicant met the IRB test during this time because of a report from two doctors, Dr. Lindal and Dr. Sadet. In a report dated September 8, 2016, Doctors Lindal and Sadet described how the applicant suffered from a substantial inability to perform the essential tasks of his pre-accident employment due to psychological issues.
12Wawanesa discontinued IRB payment after the applicant was assessed by experts commissioned by Wawanesa to examine the applicant. In respective reports, all dated May 19, 2017, Dr. Rodriguez-Elizalde (orthopaedic surgeon), Dr. Silverman (psychologist), and Ms. Westbrook (physiotherapist), suggested that the applicant no longer suffers from psychological issues that substantially disenable him from performing the essential tasks of his pre-accident employment. Dr. Rodriguez-Elizalde diagnosed the applicant with uncomplicated soft tissue injuries. Dr. Silverman concluded that the applicant continued to suffer from Adjustment Disorder with Mixed Anxiety and Depressed Mood, but his condition was improving because of life adjustments and counselling. Ms. Westbrook conducted a functional abilities evaluation on the applicant and found that he met the physical requirements to complete a full eight-hour work shift.
13The analysis of Dr. Silverman provides a cogent basis to suggest that the applicant's psychological condition may have improved since the time of Doctors Lindal and Sadet's September 2016 report. It could be that the applicant no longer meets the test for an IRB because his psychological condition has improved over time. In making this observation, I acknowledge that Dr. Rodriguez-Elizalde and Ms. Westbrook do not have the expertise required to provide an opinion on the applicant's psychological condition. I consider their reports only for information about the applicant's physical condition.
14If the applicant wants to receive an IRB after May 2017, the law requires him to prove that between May 27, 2017 and the date of the hearing it is more likely than not that the applicant continued to suffer a substantial inability to perform the essential tasks of his pre-accident employment.
15The applicant's evidence toward this end is significantly lacking. The applicant points two pieces of evidence as proof of his continuing IRB entitlement:
- A recommendation from Dr. Silverman (the psychologist retained by Wawanesa) that the applicant receive 12 further sessions of counselling.
- The applicant's emotional difficulty describing his accident impairment during an Examination Under Oath.
I acknowledge that each of these pieces of evidence could suggest that the applicant continues to suffer from a psychological impairment. However, the evidence says very little about the applicant's inability to perform the essential tasks of his pre-accident employment. The applicant also points to the report of Doctors Lindal and Sadet. The report is unable to address the extent to which his psychological condition improved by May 2017. Without more proof that after May 2017 the applicant was substantially unable to perform the essential tasks of his pre-accident employment, I am unable to conclude that the applicant is entitled to an IRB during the disputed time period.
2. The applicant is not entitled to payment for the chiropractic services in dispute
16The applicant is not entitled to payment for the chiropractic services in dispute because he has not shown why either of the Treatment Plans is reasonable and necessary. The onus is on the applicant to prove that the service requested under each Treatment Plan is reasonable and necessary. The applicant's submissions do not link the goals of the disputed Treatment Plans to the applicant's injuries. Instead, the applicant's submissions are focused on the basis of Wawanesa's decision to deny payment for each Treatment Plan.1 The difficulty with this submission is that even if Wawanesa is wrong to have denied payment for the Treatment Plans, in this hearing the applicant has to prove that he is right.
17I have attempted to infer the reasonableness and necessity of the disputed Treatment Plans from the evidence. In a Disability Certificate completed on April 20, 2016, Dr. Stea diagnosed the applicant with chronic lower back pain, and injuries to the cervical spine, lumbar spine, shoulder girdle, as well as panic, fear, adjustment disorder. The diagnosis of a chronic injury in on April 20, 2016 is suspect because it comes just two-weeks after the accident. There is some indication in the evidence that the applicant suffers from chronic lower back pain from a previous accident in 1999. This might explain Dr. Stea's relatively early diagnosis of a chronic injury. In any event, there is no indication of the extent to which the subject accident aggravated the applicant's chronic lower back pain. Wawanesa is only required to pay for treatment for an injury that was caused by the accident.
18The evidence also discloses records from Dr. Vasquez, the applicant's treating physician. Dr. Vasquez documents the applicant's response to prior chiropractic treatment.
19Dr. Stea and Dr. Vasquez' respective documents are not enough for me to conclude that either of the Treatment Plans for chiropractic services is reasonable and necessary. The lack of evidence is particularly concerning because Wawanesa already approved of treatment under the Minor Injury Guideline identical to that provided in the April 11, 2016 Treatment Plan. The applicant must show that it is reasonable and necessary that additional chiropractic, massage, and physiotherapy services are provided on top of the service already received.
20I also take into account Dr. Rodriguez-Elizalde's orthopaedic report, in which she diagnosed the applicant with soft tissue injuries only.
3. The psychological service is a duplication
21The applicant is not entitled to payment for the balance of psychological service because the service is a duplication at the time of this hearing. On October 5, 2016, Wawanesa approved 12 of the 15 one-hour treatment sessions requested in the disputed Treatment Plan. The 3 outstanding sessions are the balance of psychological services that are disputed in this hearing.
22On December 19, 2016, Wawanesa approved a separate Treatment Plan for 10 more one-hour treatment sessions. This was just over two months after Wawanesa denied the 3 treatment sessions in dispute.
23At the time of this hearing, the 3 treatment sessions in dispute are covered within the 10 additional treatment sessions approved on December 19, 2016.
4. Section 38(2) prevents payment for the custom orthotics
24The applicant is not entitled to payment for custom orthotics because he incurred the expense before submitting a Treatment Plan. Section 38(2) of the Schedule requires the applicant to submit a Treatment Plan to Wawanesa before incurring the expense.
25The applicant submitted an Expense Claim Form (OCF-6) instead of a Treatment Plan (OCF-18) before incurring the expense. He submits that the Schedule is consumer protection legislation that should not be used to deny a benefit for what is, seemingly, an innocent error.
26I am sympathetic to the applicant's submission. However, the law does not provide me with an ability to look past s. 38(2) in this instance. There are four exceptions under s. 38(2), and none apply in this case.
5. Miscellaneous arguments
27The parties provided submissions on whether the benefits were properly incurred and whether adverse inferences ought to be drawn due to failed productions. I do not need to decide these issues given my conclusions on the disputed issues.
6. Interest
28As there are no outstanding payments, the applicant is not entitled to interest.
CONCLUSION
29The applicant is not entitled to payment for any of the issues in dispute.
Released: 01/06/2018
__________________
Chris Sewrattan
Adjudicator