Licence Appeal Tribunal
Tribunal File Number: 17-004020/AABS
Case Name: 17-004020 v Wawanesa Mutual 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:
S.B.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
Applicant: S.B.
Counsel for the Applicant: Christopher D.J. Hacio
Counsel for the Respondent: David Scott
Counsel for the Respondent: Kathleen Commisso
HEARD, Oral Hearing: November 23, 2017
OVERVIEW:
1The applicant, S.B., was involved in an accident on August 23, 2013, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule"). The applicant's claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") to resolve the matter.
ISSUES IN DISPUTE:
2The issues to be decided at this hearing are:
(a) Is the applicant entitled to payments for the cost of examinations in the amount of $2,099.75 for an in-home/attendant care assessment, recommended by Partners in Rehab, as detailed in a treatment plan (OCF-18) dated May 26, 2017, denied by the respondent on June 5, 2017?
(b) Is the applicant entitled to receive a medical benefit in the amount of $755.00 for chiropractic services, recommended by Outback Chiropractic Clinic, as detailed in a treatment plan (OCF-18) dated June 20, 2017, denied by the respondent on July 19, 2017?
RESULT:
3Based on the totality of the evidence before me, I find that:
(a) The applicant is not entitled to payments for the cost of examinations in the amount of $2,099.75 for an in-home assessment, recommended by Partners in Rehab in an OCF-18 dated May 26, 2017.
(b) The applicant is not entitled to receive a medical benefit in the amount of $755.00 for chiropractic services, recommended by Outback Chiropractic Clinic in an OCF-18 dated June 20, 2017.
ANALYSIS:
Medical Benefits:
4I will begin by addressing the medical benefit in dispute.
5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident.
6The applicant bears the onus of proving on a balance of probabilities that the proposed treatment plans are reasonable and necessary.
7The treatment plan in dispute, dated June 20, 2017, completed by Dr. Gleeson, Chiropractor, lists the applicant's injuries as whiplash associated disorder [WAD2] with complaint and laceration of multiple muscles and tendons at shoulder.
8The treatment plan proposes funding for chiropractic treatment, specifically, spinal vertebrae manipulation, assessment (examination) and documentation, support activities. The OCF-18 also notes that the goals of treatment are pain reduction so that the applicant can return to her activities of normal living and return to her pre-accident work activities.
9At the hearing, the applicant testified that she continues to suffer from neck pain and left shoulder pain.
10Within the joint hearing brief submitted by the parties, the applicant included medical records, which were reviewed and considered in coming to this decision. I will be referring to specific medical records below.
11According to the applicant's testimony and documented medical records, prior to the accident, she suffered from multiple medical issues including, diabetes which was controlled, carpal tunnel in both hands, ulnar nerve entrapment, calcific tendinitis and pain in her left shoulder. The applicant testified that she was still experiencing difficulty with her left shoulder at the time of the accident and had not completed physiotherapy in this regard when the accident occurred. She further testified that at the time of the accident her shoulder was healing and her carpal tunnel was doing well.
12The applicant referred me to an x-ray report dated August 23, 2013 of the cervical and lumbar spine which did not reveal any fractures or breaks. I was further referred to an x-ray was performed on her left shoulder on September 6, 2013 which showed possible calcific tendinitis of the supraspinatus tendon.
13In addition, an MRI of the cervical spine was performed on October 7, 2013 which revealed no evidence of disc herniation, central spinal stenosis, nor nerve root compression. On October 13, 2013 an MRI of the left shoulder was performed and revealed moderate tendinopathy of the last centimeter of the supraspinatus tendon, no discrete tears and the rest were intact.
14These reports do not aid me in assessing the reasonableness and necessity of a treatment plan proposed years later.
15In December 2016, over three years after this subject accident, the applicant was involved in a slip and fall accident in the parking lot of her place of employment. She testified that she had slipped on ice and landed on her left side elbow and knee. The applicant tore her meniscus due to this incident and also developed tennis elbow due to the trauma and continues to deal with these two injuries
16The applicant submitted a letter from Dr. Clark, Orthopedic Surgeon, dated June 12, 2017. Dr. Clark notes that the applicant suffered from calcific tendinitis in her left shoulder at the time of the subject accident which was worsened by this accident. He says that she subsequently developed significant shoulder stiffness and was treated with cortisone injections and physiotherapy and had significant improvement of her shoulder range of motion. Dr. Clark writes that the underlying diagnosis is calcific tendinitis with frozen shoulder and that while the short term and long term prognosis is good, he believes she has likely plateaued at this time.
17Dr. Clark concludes by noting that he cannot rule out the need for surgery on her left shoulder however it is currently at a low probability as she has had significant improvement of her symptoms overall and there is a recurrence of frozen shoulder. He goes on to say that he would only go ahead with surgery if the non-operative management does not correct her pain or if there was evidence of a significant rotator cuff tear which requires repair. Dr. Clark mentions repeat x-rays and MRI are scheduled and after those results his answer may change.
18If indeed repeat x-rays and MRI's were performed, those results are not before me at this hearing. Dr. Clark does not mention the applicant's need for ongoing therapy and his view that the applicant has plateaued at this stage does not support the reasonableness and necessity of the treatment plan in dispute.
19A letter by Dr. Dan Gleeson, who completed the OCF-18 in issue, dated September 29, 2017, was submitted and referred to by the applicant. Dr. Gleeson writes that he believes the medical services listed in the OCF-18 are reasonable and necessary to treat the applicant's injuries and that prior to beginning treatment she had rated her pain as 8 /10 and while she was receiving treatment her pain levels dropped to 5-6/10. He goes on to say that after the denial of this OCF-18, she ceased treatments and re-started them in August 29, 2017, paying out of her own pocket, and her pain was back to 8/10 when she returned. Dr. Gleeson notes that after a month of returning to therapy her pain was reduced to 5-6/10 and endorses supportive treatment weekly or biweekly to maintain decreased pain and accompanying benefits in work and activities of daily living.
20I am not wholly convinced by this evidence. Other than the fact that it is authored by the treatment provider who completed the OCF-18, I have not found this to be persuasive when compared with the other medical evidence presented in this case, particularly that of the applicant's own Orthopedic Surgeons. I also do not have any supporting documents before me which show the progress with respect to the applicant's condition during therapy.
21A letter from Dr. Hoffman, Orthopaedic Surgeon, dated October 4, 2017 was also submitted. Within this letter Dr. Hoffman notes the applicant's complicated past medical history. He goes on to say her two current complains which appear to be residua from the subject accident are ongoing neck discomfort and ongoing left shoulder pain and dysfunction.
22Dr. Hoffman diagnosis the applicant with whiplash-associated disorder and an exacerbation of left rotator cuff tendinopathy, which has developed into frozen shoulder. He notes that the combination of this diagnosis, the presence of diabetes and the significant contusion to the shoulder has likely developed into adhesive capsulitis. Dr. Hoffman writes that although the applicant is symptomatic, he doesn't believe this will go on to be long term and will resolve in due course. With respect to the left shoulder, Dr. Hoffman notes that this is a different problem and that frozen shoulder with the concurrent presence of diabetes does not respond well to conservative therapy nor surgical intervention.
23In further response to the questions posed to him, Dr. Hoffman states that the applicant has had substantial amount of therapy for her shoulder and minimal for her neck, although he anticipates that her neck symptoms will gradually resolve in due time. He notes that ongoing treatment will consist of appropriate analgesics to control pain symptoms and he very much doubts that the range of movement would be in any way benefited from further therapy, such as the one suggested in the treatment plan in dispute.
24The respondent submitted a Chiropractic Paper Review, by Dr. Shane McCormack, Chiropractor, dated July 10, 2017, wherein Dr. McCormack notes that the applicant's pre-existing left shoulder issue was exacerbated by the subject accident and she also sustained a WAD 2 whiplash associated disorder. He goes on to say that based on minimal documents provided with respect to improvements with prior treatment plans, it doesn't appear that there has been measurable improvement in the claimant's condition over a long period of time and it appears that the applicant has reached a plateau in her recovery . Dr. McCormack ultimately found that the chiropractic treatment plan in issue was not reasonable and necessary.
25Some of the objective medical documents which were submitted for the purpose of this hearing gave me some understanding of the applicant's condition, treatments received and past medical history, however these records do not endorse chiropractic treatment, nor did they suggest that ongoing chiropractic therapy would be of benefit for the applicant's condition.
26There is simply not enough contemporaneous medical evidence submitted by the applicant to support her entitlement to the treatment plan in dispute. The applicant has not adduced sufficient medical evidence to show that this treatment would be beneficial for her condition. On the contrary, the applicant's own orthopedic surgeons, Dr. Hoffman, is of the view that conservative therapy would not be beneficial for the applicant's condition, particularly her shoulder condition and Dr. Clark, believes that she has plateaued.
27Although the proposed treatment plan, in it of itself, provides some support for further treatment along with the supporting letter by the author of the OCF-18, however, these alone are simply not sufficient. Objective medical evidence that support the applicant's potential benefit from such treatment, as proposed in the treatment plan in dispute, must also be present. I do not find that the applicant has submitted such evidence.
28The applicant submitted that due to the remote location she lives in, the medical services available are very limited. Many treatment providers pass through and do not remain long term. The applicant considers it fortunate to have a chiropractor who comes to town once a week. She submits that this should be taken into consideration when deciding whether the treatment is reasonable and necessary. Regardless of this unfortunate situation, the insufficient evidence does not support the necessity and reasonableness of this treatment and as such, the remote location of the applicant's dwelling and lack of consistent treatment providers is not given much weight.
29Based on the totality of the evidence before me, I find the applicant has not proven on a balance of probabilities the treatment plan in dispute is reasonable and necessary. Therefore, the treatment plan dated June 20, 2017, is not payable.
Cost of Examination:
30Section 25 of the Schedule establishes the insurer shall pay for reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:
i. approved by the insurer;
ii. deemed by this Regulation to be payable by the insurer; or
iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280 (1) of the Act.
31The applicant is seeking payment for the cost of examination of an In-Home Assessment in the amount of $2,099.75. The Treatment and Assessment Plan (OCF-18) was submitted to the respondent on May 26, 2017 and was denied it on June 5, 2017.
32The OCF-18, dated May 26, 2017, completed by Lori Knott, OT, lists the applicant's injuries as whiplash associated disorder with complaint of neck pain with musculoskeletal signs as well as laceration of multiple nervea at shoulder and upper arm level.
33In Part 8: Activity limitations of the OCF-18, the question asking if the applicant's impairments from the injuries identified within the form affect her ability to carry out activities of normal life is checked as "unknown". No activities are listed within the OCF-18 when asked to briefly describe the activities limited by the impairment and the impact on the applicant's ability to function.
34The goals of the assessment are listed as "Other- OT In-Home Functional Assessment" with the functional goal to have the applicant return to activities of normal living. No barriers to recovery were identified within the OCF-18.
35The applicant submitted a letter from Lori Knott, dated October 18, 2017. Ms. Knott notes that the OT in home functional assessment is proposed to better delineate any ongoing impairments resulting from the accident from impairments which were pre-existing or the result of the slip and fall in 2016. She goes on to say that it this is to be done in her home environment where her functional ability to complete her activities of daily living can be assessed.
36Ms. Knott writes that this will allow for the provision of education and strategies which may assist in maximizing the safety, independence and function of the applicant, within her home in addition to providing any recommendations which may support ongoing independence with activities of normal living and subsequently ongoing engagement in her employment position. Ms. Knott clarifies that there will be no attendant care needs considered or addressed within this assessment.
37The applicant testified at the oral hearing with respect to her activities of normal living. She submitted that she approached Partners in Rehab on the referral of her counsel as she felt she needed help to do her housekeeping chores and was hoping they can provide recommendation on how she can do them in her condition.
38The applicant testified that she can vacuum but it takes time, she cannot wash windows or climb a ladder to take down curtains to wash and she also cannot clean her cupboards. Her laundry is downstairs and has to go up and down the stairs to complete this task. She testified that cleaning her floors takes three times as long and stops often and depending on the pain on a specific week, her housekeeping may not get done. She cleans her bathrooms often, stating that sinks and toilet are not difficult, cooks for herself, takes her dogs out for walks, enjoys reading but hurts her neck and spends time with her family.
39With respect to hiring someone to help her with her housekeeping chores, the applicant testified that she has not hired anyone to help her with the interior of her home but has had to hire someone to plow her driveway and cut her grass after the accident. Her son assists with these tasks when he is in town, but this is not often. She testified that her neighbour and daughter also help her.
40In his letter of October 4, 2017, Dr. Hoffman writes that the applicant was responsible for her indoor household activities and continues to run her household. Within this letter, a question was posed, as to whether the applicant sustained an impairment as a result of the accident which results in a substantial inability to perform her housekeeping. In response, Dr. Hoffman writes that the applicant mentioned that she is able to continue with her indoor housekeeping activities and has been unable to do the outdoor maintenance and receives help to carry out outdoor tasks. He also notes that as the applicant's job is sedentary she can perform most of her duties and occasionally had to miss work due to discomfort.
41When referred to Dr. Hoffman's letter, at the hearing, where he writes that she continues to run her household, the applicant testified that it is not being done the way she used to do it. She testified that she is managing now.
42In her Occupational Therapy IE Paper Review, of June 10, 2017, Ms. Bromley, OT, writes that it is reasonable to expect that with her long history of carpal tunnel syndrome and ulnar never impingement and the receipt of occupational therapy, physiotherapy and chiropractic interventions that she has learned strategies regarding task modification, energy conservation and joint protection. Ms. Bromley notes that at this time there is no documentation to indicate why an in-home assessment is warranted, particularly specifically related to the accident and that the timing of the OCF-18 appears to be in relation to the slip and fall incident of December 1, 2016 and not with respect to the MVA of almost 4 years ago.
43I do not find that there is enough evidence to support the need for this in-home assessment. The applicant's self-reported difficulty with some of her housekeeping is not supported by medical documentation to show the need for her to receive assistance in learning strategies to perform them. The goals of this assessment remain unclear and there is no detailed reporting of any limitations in the applicant's daily functioning, this is the case even within the OCF-18 itself and the supporting letter from Ms. Knott.
44It is simply not sufficient to experience some difficulty in one's housekeeping and home maintenance tasks to warrant the need for an in-home assessment. Even if Ms. Bromley's assumption, that it is likely that the applicant would have received suggestions for strategies in performing her activities of normal living, is incorrect, based on the evidence before me, it has not been demonstrated that this assessment will be beneficial.
45I do not find that this assessment is the appropriate means in wherein to explore which impairments are related to the injuries from the subject accident versus which are as a result of the subsequent slip and fall or her pre-existing condition, as suggested by Ms. Knott within her letter of October 18, 2017. The onus remains on the applicant to prove that the need for this assessment is related to the subject accident.
46The applicant has not met her burden in proving on a balance of probabilities that this in-home assessment is reasonable and necessary, and as such the applicant is not entitled to payments for this cost of examination.
ORDER:
47The application is dismissed.
Released: July 10, 2018
___________________________
Meray Daoud
Adjudicator