I.S. v. Allstate Insurance Company of Canada, 2019 CanLII 101539

Tribunal File Number: 18-005895/AABS

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:

I.S.

Appellant(s)

and

Allstate Insurance Company of Canada

Respondent

DECISION

PANEL:

Sancia Pinto

Appearances:

For the Appellant:

Geoffrey Bogo, Counsel

For the Respondent:

Andrew E. Franklin, Counsel

HEARD:

In Writing: April 15, 2019

OVERVIEW

1The applicant was involved in an automobile accident on July 29, 2015 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, chiropractic and massage therapy treatment. The respondent denied payment of the benefits following an Insurer Examination ("IE") with Dr. Patrick Tansey ("the respondent's orthopedic surgeon").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.

4In the applicant's submissions, the applicant indicated that a claim for attendant care benefits is not being advanced as listed in the Case Conference Order of Adjudicator Leslie. For this reason, the following claim has been withdrawn by the applicant and will not proceed to hearing:

i. Attendant care benefits in the amount of $1,589.15 monthly for services recommended by Allmed Assessment Centre in a treatment plan submitted September 15, 2015 and denied by the respondent on January 4, 2016.

5Accordingly, I will determine only those issues that remain in dispute.

PRELIMINARY ISSUE

I. New Issue

6In her written submissions, the applicant seeks to add as an issue in dispute to this written hearing her entitlement to medical benefits for 10 invoices totaling $5,432.34 from Om Sai Physiotherapy Clinic Inc. in support of incurred treatment. From my review of the invoices and documents submitted by the parties, it appears that only one invoice in the amount of $872.82 references the disputed treatment plan dated June 16, 2016 that was part of the Case Conference Order of Adjudicator Leslie. The remaining 9 invoices do not reference or attach any corresponding treatment plans. The respondent has not consented to adding the 9 invoices to the issues in dispute. I will refer to the issue of the 9 invoices that the applicant raised for the first time in her submissions as the "new issue". I must therefore decide the following:

i. Whether the proposed new issue, namely, the 9 invoices for incurred medical rehabilitation treatment from Om Sai Physiotherapy Clinic Inc. should be added as an issue for determination in this hearing?

7The applicant seeks an Order that the respondent pay the outstanding incurred amount with her physiotherapy clinic.

8The respondent submits that the applicant never sought the respondent's consent and that consent is not given to change the issues in dispute for this hearing. The respondent further submits that the applicant did not seek permission from the Tribunal and that the new issue should not be considered.

9From my review of the OCF-21 invoices, the dates of service for the incurred treatment occurred prior to the case conference before Adjudicator Leslie. The applicant did not provide any explanation as to why the new issue was not raised at the case conference on November 15, 2018 or by a way of motion to the Tribunal to add the new issue in advance of the scheduled written hearing. It is further unclear why the applicant did not write to the respondent to request consent to add this matter to the issues in dispute for this hearing. In addition, the applicant did not submit any reply submissions on its position to the respondent's submissions on her attempt to raise the new issue at this late stage.

10A breach of the Tribunal's Order is something that should not be overlooked, especially since no explanation has been provided. Considering the purpose of the Schedule to provide accident benefits to individuals while balancing the parties' rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the applicant.

11The applicant raising the new issue for the first time as part of their submissions at the written hearing violates the Case Conference Order. In these circumstances, I find that it is unfair to the respondent who had a fairly short time to consider and respond to the new issue and evidence. I find that it would be procedurally unfair to require the respondent to defend against an issue that is being raised for the first time in the applicants written submissions at the hearing stage. In its written submissions, the respondent has not provided a substantive defence to this new issue and I find that allowing the new issue to proceed would prejudice the respondent.

12If any party wishes to have new issues and evidence added, it should be done before the hearing to allow the other party the chance to test that evidence and respond accordingly. It affords the other party the chance to challenge the issue or concede the issue before the hearing. This will ensure just results and provides for procedural fairness. At this juncture, the applicant cannot expect to add a new issue and evidence to a proceeding without proper notice and consent of the respondent or the permission of the Tribunal.

13For the reasons outlined above, I will not allow the new issue to form part of the hearing before me.

ISSUES IN DISPUTE

14The issues to be decided by the Tribunal are:

i. Is the applicant entitled to receive medical benefits in the amount of $2,642.70 for physiotherapy, chiropractic and massage therapy services recommended by Om Sai Physiotherapy Clinic Inc. in a treatment plan dated June 16, 2016, and denied by the respondent on July 5, 2016?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

15The applicant has not met her onus to prove, on a balance of probabilities, the reasonableness or necessity of the treatment plan in dispute. She is not entitled to receive the medical benefits claimed.

16Accordingly, the applicant is not entitled to any interest as there are no overdue payments.

ANALYSIS

i. Is the applicant entitled to receive medical benefits in the amount of $2,642.70 for physiotherapy, chiropractic and massage therapy services recommended by Om Sai Physiotherapy Clinic Inc. in a treatment plan dated June 16, 2016, and denied by the respondent on July 5, 2016?

17I find that the treatment plan submitted by Hamidreza Izadi, ("the applicant's Physiotherapist") at Om Sai Physiotherapy Clinic Inc. is not reasonable and necessary as there is insufficient objective evidence provided by the applicant to support her entitlement to the disputed treatment plan.

18Section 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. Section 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.³

19The treatment plan in dispute lists pain reduction, increased range of motion, a return to activities of normal living, a return to modified work activities and a return to pre-accident work activities as its goals. The rehabilitation treatment consists of 13 sessions of physiotherapy, 5 sessions of chiropractic treatment, 10 sessions of massage therapy and a total body assessment.

20As a result of the accident, the applicant sustained a fractured nasal bone along with cracked ribs, a cracked left forearm, and lacerations. The applicant underwent surgery for her nasal fracture. She began facility-based treatment, which included exercises, physiotherapy, massage therapy and chiropractic treatment.

21The applicant submits that the accident aggravated her pre-existing back condition. She submits that Dr. Floricia ("the applicant's rheumatologist") had referred her to Dr. Duncan ("the applicant's neurosurgeon") who found that her back condition resulted in a chronic pain condition.⁴

22To establish her claim for the disputed treatment plan, the applicant submits the following evidence:

I. The clinical notes and records of Dr. Sikander ("the applicant's family doctor"), which includes diagnostic imaging and entries that confirm that the applicant had pre-existing back pain and was seeing a rheumatologist before the accident.

II. The clinical notes and records of the applicant's rheumatologist indicating that the applicant was diagnosed with back pain due to lumbosciatica with possible S1-disc herniation before the accident. The records further note that the applicant was attending physiotherapy and using a lumbar support device. After the accident, she was referred to a neurosurgeon and recommended to continue with physiotherapy.

III. The medical records of Om Sai Physiotherapy Clinic, which the applicant submits shows that the treatment was causing improvement in her functional ability. She was receiving physiotherapy, massage therapy, chiropractic treatment and a strength training exercise program with indication of improvements in her condition.

IV. The report from the applicant's neurosurgeon who notes an identified disc bulge and her three-year history of lower back pain that began in 2013 before the subject accident.

V. The Disability Certificate of Dr. Ekhtiari, treating chiropractor, who diagnosed the applicant with lumbago with sciatica, whiplash grade 2.⁵

VI. The report of Dr. West ("the applicant's neurosurgeon") wherein he diagnosed the applicant with myofascial strains of the lumbar and cervical spine. He recommended physiotherapy, chiropractic treatment including ultrasound and active exercise with muscle strengthening.⁶

23To rebut the applicant's claim, the respondent relies on the following:

I. The medical opinion of Dr. Tansey ("the respondent's orthopedic surgeon"), who examined the applicant twice and concluded that the applicant achieved maximum medical recovery and did not require facility-based treatment.

II. The respondent submits that the applicant's rheumatologist recommends a continuation with physiotherapy treatment but fails to address the reasonableness and necessity of the disputed treatment plan in dispute. The applicant's rheumatologist does not recommend or address the need for chiropractic treatment and massage therapy. Her last recommendation to continue with physiotherapy in her assessment on May 10, 2016 does not specify the duration or length of treatment. Her assessments from July 2016 to September 2017 do not recommend any physiotherapy.

III. The applicant's family doctor's clinical note dated December 1, 2015 indicates that the Applicant was attending physiotherapy but that she was not getting better. The records of the applicant's family doctor fail to provide any direction on the nature and number of physiotherapy treatments required, if any.

IV. In the report of the applicant's neurosurgeon, there are no noted recommendations for chiropractic treatment, physiotherapy and massage therapy. In addition, there are no reports from any health practitioners at the Om Sai Clinic or the applicant's physiotherapist who prepared the treatment plan in dispute.

24The respondent's submissions further question the strength of the applicant's evidence. The respondent submits that the report of the applicant's orthopedic surgeon is outdated as it was completed more than six months before the disputed treatment plan. In addition, the respondent questions Dr. West's recommendation for continued physiotherapy given the family doctor's records of December 1, 2015 indicating that the Applicant's pain was not improving with continued physiotherapy. I note that the above assertions are not contested by the applicant.

25Based on the evidence before me, I find that the applicant has failed to meet her onus to prove entitlement to the disputed treatment plan for the following reasons:

I. The applicant did not point to any persuasive entries within the family doctor's or the rheumatologist's records to support the need for ongoing facility-based physical rehabilitation for the period of the proposed treatment plans. These doctors did not have the benefit of reviewing the treatment plan in dispute. I accord the applicant's family doctor's and rheumatologist's medical records relatively light weight in determining this issue because it does not help me assess the specific treatments outlined in the disputed treatment plan.

II. I attribute minimal weight to the applicant's orthopedic surgeon's report as he did not have the benefit of reviewing the applicant's medical history including the medical records of the applicant's family doctor or rheumatologist. The only records reviewed by the applicant's orthopedic surgeon were the attendant care reports. In addition, the assessment was completed serval months before the submission of the disputed treatment plan, so he was not able to review the treatment plan. He also did not have an opportunity to assess the applicant's condition at the time the treatment plan was proposed.

III. I prefer the reports of the respondent's orthopedic surgeon. He assessed the applicant on February 1, 2016 and August 16, 2016 including a material review of additional medical documents on April 4, 2016. The respondent's orthopedic surgeon considered and reviewed the applicant's medical records including the MRI and x-ray of the lumbar spine. In addition, during the February 1, 2016 assessment, he had the benefit of examining the applicant, where he found no specific residual impairment that would warrant further facility-based treatment.

IV. The respondent's orthopedic surgeon assessment of the applicant on August 16, 2016 further assessed the reasonableness and necessity of the June 16, 2016 disputed treatment plan. Based on his examination of the applicant, he found no abnormality with the back, with no loss of lumbar lordosis, no muscle spasm, and a good range of motion with no neurological abnormality. In addition, from his review of the medical records including the details of the treatment plan in dispute, he concluded at the time that the treatment plan at this stage over a year following the accident is not reasonable or necessary. He recommended home based exercises to assist with the aggravation of her pre-existing low back pain. In addition, he is the only assessor to review and consider the June 16, 2016 treatment plan in his report, including the applicant's medical history and records.

V. I find the respondent's orthopedic surgeon's report persuasive in its finding that the applicant has reached maximal medical recover for her accident-related injuries from any facility-based treatment. I further agree with the medical opinion of the respondent's orthopedic surgeon that it is unlikely that the applicant will obtain further functional improvement from the recommended treatments as listed in the treatment plan dated June 16, 2016.

VI. My review of the medical records from the applicant's treating family doctor, rheumatologist and the medical providers from the rehabilitation facility show some improvement in pain when treatment first began. Around the time of the disputed treatment plan, the medical records indicate that passive and active treatment provided to the applicant was hardly effective in reducing pain, improving functionality or increasing strength. I further note that the applicant's family doctor and the rheumatologist do not recommend any chiropractic or massage therapy.

26It has been almost a year since the accident and the date of the disputed treatment plan. The medical records submitted by the applicant including from her family doctor and rheumatologist show very limited improvement in her recovery from her back problems. The records from the applicant's rehabilitation clinic including the details noted in part 9 of the disputed treatment plan indicate that the facility-based treatment provided to date has shown very little improvement in her condition.

27Furthermore, the applicant's neurosurgeon in his report recommended that the applicant participate in an active exercise program as well as other activities including walking, swimming or aquafit and yoga or tai chi.⁷ He did not recommend any physiotherapy, chiropractic treatment or massage therapy.

28The onus is on the applicant to prove on a balance of probabilities that she is entitled to the benefits claimed. I find that the applicant has not met her onus in showing how the treatment plan in dispute is reasonable and necessary based on the medical evidence before me.

CONCLUSION

29The applicant is not entitled to the medical benefits claimed. No interest is owing as there are no payments overdue. This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Report of Dr. Patrick Tansey dated February 1, 2016.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 4Report of Dr. Duncan dated January 11, 2017.
5. 5Disability Certificate of Dr. Ekhtiari dated August 26, 2015.
6. 6Report of Dr. Michael West dated January 6, 2016.
7. 7Supra note 4.