17-007244 v Motor Vehicle Accident Claims Fund (MVACF), 2018 CanLII 83521

Date: 2018-08-29

Tribunal File Number: 17-007244/AABS

Case Name: 17-007244 v Motor Vehicle Accident Claims Fund (MVACF)

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

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR:

APPEARANCES:

Sancia Pinto

For the Applicant:

Zenan Babb, Paralegal

For the Respondent:

Sharon Warden, Counsel

Written Hearing:

May 07, 2018

OVERVIEW

1The applicant was a pedestrian in an automobile accident on January 28, 2013 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for medical benefits for physical rehabilitation and chiropractic treatment from the respondent. The respondent denied payment of the benefits on the basis of the report following an Insurer Exam (“IE”) with Dr. Shafik Daramshi, who concluded that the treatment plans were not reasonable and necessary.²

3The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference and the matter proceeded to this written hearing.

ISSUES IN DISPUTE

4The issues to be decided by the Tribunal are:

(i) Is the applicant entitled to receive a medical benefit in the amount of $2,681.82 for physical rehabilitation that was recommended by Dr. Alexander Kipershlak [ ] in a Treatment dated November 5, 2016 and denied by the respondent on September 29, 2017?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $1,985.00 for chiropractic services that was recommended by Dr. Craig Rosenblatt [ ] in a Treatment dated December 1, 2016 and denied by the respondent on September 29, 2017?

(iii) Is the applicant entitled to interest on the overdue payment of benefits?

RESULTS

5The applicant has not met his onus to prove, on a balance of probabilities, the reasonableness or necessity of the treatment plans in dispute, and his appeal is dismissed.

6Accordingly, the applicant is not entitled to any interest on overdue payments of benefits.

ANALYSIS

Are the treatment plans for physical rehabilitation and chiropractic services submitted by Dr. Alexander Kipershlak and Dr. Craig Rosenblatt reasonable and necessary?

7I find that the treatment plans submitted by Dr. Kipershlak and Dr. Rosenblatt are not reasonable and necessary as there is no sufficient objective evidence provided by the applicant to support the entitlement to the disputed treatment plans.

8Section 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.

9Section 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. Thus, the applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

10The applicant submits that the treatment plan, dated November 5, 2016, for the provision of physical rehabilitation sessions and the treatment plan, dated December 1, 2016, for the provision of chiropractic interactive sessions, physical procedures and active rehabilitation sessions, are reasonable and necessary. The applicant submits that based on the opinion of the family doctor, Charmaine Ho, the psychological assessor, Dr. Cheryl Walker and the Chiropractor Dr. Craig Rosenblatt, the applicants pain as a result of this accident is characterized as chronic and that he requires treatment on an ongoing, lifelong basis in order to manage his current health issues.³

11The respondent submits that the treatment plans are not reasonable and necessary as it has been four years since the subject accident and the applicant has not sought any physical medical treatment in a long time. In addition, in the opinion of its medical assessor Dr. Daramshi, the applicant has reached maximum medical recovery for his accident-related injuries from any facility-based treatment, from a musculoskeletal perspective.⁴

12In the first treatment plan in dispute, completed by Dr. Alexander Kipershlak, Chiropractor, the plan indicates “pain reduction, increase in strength, increased range of motion, strengthening of related areas, increase endurance and return to activities of normal living” as the main goals. Dr. Kipershlak recommends 22 physical rehabilitation sessions.

13In the second treatment plan in dispute, completed by Dr. Rosenblatt, the plan indicates “pain reduction, increase in strength, increased range of motion, return to activities of normal living, assist in pain management provide education and improve functional tolerance and improve tolerance to activities of daily living, housekeeping duties and leisure activities” as the main goals. Dr. Rosenblatt recommends 12 chiropractic/interactive sessions, 12 physical procedures/modalities, 11 active rehabilitation sessions and eight massage therapy sessions.

14I find the respondent’s evidence more persuasive because there is inadequate objective medical evidence submitted by the applicant to refute the findings noted by Dr. Daramshi. In his report, Dr. Daramshi outlined the applicant’s current injuries at the time of the assessment as centralized low back pain and bilateral knee pain, and that the applicant is not on any medication for these injuries. The report indicated that all other injuries have resolved.

15Dr. Daramshi notes that the applicant had past therapy and treatment at Activa Rehabilitation and Active Works Therapy. The applicant reported receiving heat, TENS, massage therapy and traction. I do not have the benefit of the records from either clinic, and it is unclear of the improvement made over the course of care and what residual problems exist. In addition, Dr. Daramshi’s report further notes that the applicant did not find that the treatment was really helpful. Dr. Daramshi opined that, from a musculoskeletal perspective, the applicant had attained maximal medical recovery from any facility-based treatment. He recommended a home exercise program with increasing activities of daily living and resuming recreational activities.

16In his medical opinion, Dr. Daramshi found that the treatment plans dated November 5, 2016 and December 1, 2016 were not reasonable and necessary. The respondent denied both treatment plans based on the findings of Dr. Daramshi’s report.

17I find that there is insufficient objective medical evidence, such as a report of an assessment of the applicant by Dr. Kipershlak or Dr. Rosenblatt, to support the treatment plans in dispute. Although a proposed treatment plan provides some support for further treatment, it is not alone sufficient in the absence of additional objective evidence to support the need for further physical treatment.

18In support of his position, the applicant’s submissions highlight the OCF-3 dated December 7, 2017 prepared by Dr. Rosenblatt and the recommendation of the family doctor in February of 2013 for physiotherapy, which the applicant began in August of 2013. In addition, in March of 2013 the family doctor referred the applicant to a chronic pain program at [a clinic].⁵

19The applicant has not adduced sufficient medical evidence to show what his condition was at the time these treatment plans were proposed, other than the treatment plans themselves and the medical records referred to above to support his entitlement to the disputed treatment plans. In addition, I do not have the benefit of the records from any rehabilitation clinic or the chronic pain facility where the applicant received treatment to provide me with an understanding of the applicant’s condition around the time of the proposed treatment plans. It is also unclear if the applicant has been seeking treatment at the chronic pain facility where he was referred by his family doctor. The applicant did not point to any specific entries within Dr. Ho’s records that would support the need for ongoing facility-based physical rehabilitation for the time period of the proposed treatment plans.

20The onus is on the applicant to prove on a balance of probabilities that he is entitled to the benefit. I find that the applicant has not met his onus in explaining how the treatment plans in dispute are reasonable and necessary based on the medical evidence before me.

CONCLUSION

21The applicant is not entitled to the medical benefits claimed, consequently, no interest is owing. This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Report of Dr. Daramshi dated September 23, 2017.
3. 3Psychological Report Dated June 25, 2015 by Dr. Cheryl Walker and Disability Certificate Completed by Craig Rosenblatt of Active Therapy Works dated December 7, 2017
4. 4Report of Dr. Daramshi dated September 23, 2017 pg 9.
5. 5Golden Mile Walk in CNRs.