Licence Appeal Tribunal
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:
A.S. Applicant
and
Wawanesa Mutual Insurance Company Respondent
DECISION
PANEL: Melody Maleki-Yazdi, Adjudicator
APPEARANCES: For the Applicant: Mitchell Kent, Paralegal For the Respondent: James Schmidt, Counsel
HEARD: In person on: June 18, 2019
OVERVIEW
1A.S. (“the applicant”) was injured in an automobile accident (“the accident”) on October 10, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when his claims for benefits were denied by the respondent.
ISSUES
2The following issues are in dispute for this hearing:
(i) Is the applicant entitled to receive medical benefits recommended by Midland Wellness Centre as follows:
(a) $503.72 for assistive devices in a treatment plan submitted on August 28, 2017, denied by the respondent on October 19, 2017; and
(b) $2,612.90 for chiropractic and physiotherapy treatment in a treatment plan submitted on September 18, 2017, denied by the respondent on November 2, 2017?
(ii) Is the applicant entitled to receive payments for the costs of examinations recommended by Midland Wellness Centre as follows:
(a) $1,995.33 for a psychological assessment recommended in a treatment plan submitted on October 19, 2017, denied by the respondent on January 3, 2018; and
(b) $2,034.00 for a chronic pain assessment recommended in a treatment plan submitted on July 17, 2017, denied by the respondent on September 6, 2017?
(iii) Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period of February 12, 2018 to date and ongoing?
(iv) Is the applicant entitled to attendant care benefits in the amount of $1,753.19 per month for the period of September 19, 2017 to date and ongoing?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is partially entitled to assistive devices recommended in a treatment plan submitted on August 28, 2017 and denied on October 19, 2017. The applicant is entitled to payment for the knee brace only.
4The applicant is entitled to $2,612.90 for chiropractic and physiotherapy treatment recommended in a treatment plan submitted on September 18, 2017 and denied on November 2, 2017.
5The applicant is entitled to the cost of examination in the amount of $1,995.33 for a psychological assessment recommended in a treatment plan submitted on October 19, 2017 and denied on January 3, 2018.
6The applicant is entitled to the cost of examination in the amount of $2,034.00 for a chronic pain assessment recommended in a treatment plan submitted on July 17, 2017 and denied on September 6, 2017.
7The applicant is not entitled to income replacement benefits.
8The applicant is not entitled to attendant care benefits.
9The applicant is entitled to interest on any overdue payments of benefits.
ANALYSIS
The applicant’s right wrist impairment
10The applicant submits that, as a result of the accident, he has impaired his lower back, right hip, right knee, hands and wrists.
11The respondent has raised the issue of causation regarding the applicant’s right wrist impairment. Its position is that the issues with the applicant’s right wrist predated this accident and that there is no causal link between the accident and the applicant’s right wrist issues. The applicant does not deny having had right wrist pain prior to the accident; however, he submits that his right wrist symptoms have been exacerbated as a result of the accident. Neither party made submissions on the appropriate test to be applied.
12For the reasons below, I find that on a “but for” test, on a balance of probabilities, the applicant’s right wrist impairment is not a result of the accident. The applicant’s pre-accident and post-accident right wrist symptoms are so similar that I cannot conclude that his current symptoms were caused by the accident. I came to this finding based on the medical evidence before me:
i. It is uncontested that the applicant had right wrist symptoms prior to the accident.
ii. The applicant testified at the hearing that, prior to the accident, he had substantial issues with his right wrist, and he got a cortisone injection. He stated that the strength in his grip is no longer there and he cannot bend his wrist back.
iii. Dr. Vasima Ali’s (the applicant’s family physician) clinical notes and records document that, prior to the accident, the applicant was referred to various plastic surgeons regarding his right wrist pain. Prior to the accident, on January 5, 2016, the applicant had a consultation with Dr. Allan Eckhaus (plastic surgeon), who indicated that the applicant developed pain in his wrist roughly two to three years ago. Dr. Eckhaus then referred the applicant to Dr. Herb Von Schroeder (plastic surgeon).
iv. On March 10, 2016, the applicant received a steroid injection from Dr. Michael Wendt, a colleague of Dr. Von Schroeder, for his right wrist. He presented with wrist pain in his right hand. Dr. Wendt noted that the applicant is playing soccer and therefore probably sustained several falls on that hand.
v. Following the accident, on May 25, 2017, the applicant had a follow up with Dr. Von Schroeder’s office. Regarding his right wrist, the doctor could not elicit a clear diagnosis and an MRI was requested. On August 17, 2017, the applicant was seen for a follow up and after a review of his MRI, Dr. Von Schroeder presented the applicant with two courses of action: (i) to continue managing the pain conservatively with anti-inflammatories, steroid injection and possibly splinting; or (ii) to have wrist surgery. The applicant received a steroid injection and filled out the paperwork for the surgery.
vi. Also on August 17, 2017, the applicant had an insurer’s examination (“IE”) with Dr. Eric Silver (general practitioner). In a report dated August 28, 2017, Dr. Silver indicated that the applicant reports a history of right hand pain prior to the accident, for which he had seen a specialist and had cortisone injections. Dr. Silver concluded that the applicant’s MRI of the right wrist showed significant abnormal findings, which are not consistent with the accident and it is therefore likely that these findings were not accident-related.
vii. On January 24, 2018, Dr. Michael Martin (orthopaedic surgeon) completed a material review following review of new documentation received at the time. Dr. Martin previously assessed the applicant on May 24, 2017 (report dated June 5, 2017). Dr. Martin concluded that there are well documented impairments affecting the right wrist that pre-dated the accident, however, the initial medical assessments following the accident did not document a significant problem in his right wrist. He concluded that imaging studies show changes that likely pre-dated the accident and do not show obvious evidence of recent trauma.
13Based on the evidence set out above, I conclude, on a balance of probabilities, that it is well documented that the applicant had right wrist symptoms prior to the accident as noted in Dr. Ali’s, Dr. Eckhaus’ and Dr. Von Schroeder’s clinical notes and records. After the accident, the applicant continues to have right wrist symptoms, but the evidence does not lead me to believe that the symptoms are any different than his symptoms prior to the accident.
14I find that the applicant has not established that his right wrist impairment was caused or exacerbated by the accident.
Is the treatment plan for assistive devices reasonable and necessary?
15The treatment plan for other assistive devices is partially reasonable and necessary, and the applicant is partially entitled to this treatment plan. The plan recommends a cervical pillow, long-handled bath scrubber, long-handled reacher, long reach toenail clipper, long-handled shoe horn, exercise equipment and a knee brace. I find that the applicant is entitled to payment for the knee brace only. The applicant is not entitled to payment for the cervical pillow, long-handled bath scrubber, long-handled reacher, long reach toenail clipper, long-handled shoe horn and exercise equipment.
16The treatment plan has the goals of pain reduction, increase in strength, increase range of motion and functional restoration. In testimony, the applicant indicated his need for a knee brace due to issues with his right knee. He testified that if he plans to do sports or go to work, he needs a brace or his right knee will get worse. In his submissions, the applicant indicates that the brace would stabilize and prevent him from using that specific body part. I find that the applicant is entitled to the knee brace because I accept that the applicant has a right knee impairment as a result of the accident.
17I do not find that the applicant is entitled to the other items in this treatment plan because the other items are not reasonable and necessary. The applicant submits that having a cervical pillow would take pressure off his spine while sleeping, that the long-handled bath scrubber, long-handled reacher, long reach toenail clipper and long-handled shoe horn would take the pressure from his back and hip when it comes to his daily living, and finally that the exercise equipment would allow him to alleviate some of the pain and injuries at home.
18An IE assessor, Dr. Eric Silver (family physician), assessed the applicant on August 17, 2017, and his report is dated August 28, 2017. The applicant reported that he is fully independent with personal care tasks, but that he has to use pacing techniques due to provocation of pain when dressing and that he experiences low back pain when bending forward to put on socks.
19Another IE assessor, Ms. Kathryn Blaney (occupational therapist), assessed the applicant for an in-home assessment on September 5, 2017, and her report is dated September 18, 2017. She also conducted a material review on October 5, 2017. The applicant reported to her that he was performing all applicable personal care activities independently. On assessment, he demonstrated the physical abilities to perform these activities with pacing and some modified approaches. It was her opinion that assistive devices were not presently required.
20During his testimony, the applicant did not indicate his need for any items listed in the treatment plan, other than the knee brace as discussed above.
21As a result of Ms. Blaney and Dr. Silver’s conclusions, in conjunction with the applicant’s own testimony, I do not find that the applicant requires the use of these other assistive devices to help him perform his personal care activities. Therefore, the applicant is only entitled to the knee brace and not to the other items listed in the treatment plan.
Is the treatment plan for chiropractic and physiotherapy treatment reasonable and necessary?
22The treatment plan for chiropractic and physiotherapy treatment is reasonable and necessary, and the applicant is entitled to this treatment plan. The goals of the treatment plan align with the proposed treatments and with the applicant’s level of impairment to provide pain reduction, increase in strength, increase in range of motion and functional restoration.
23The respondent submits that this treatment plan is not reasonable and necessary because Dr. Silver’s IE report dated August 28, 2017 concluded that the applicant’s accident-related injuries, with the exception of his right knee pain, are likely unrelated to the accident.
24Later in this decision, I have accepted that, as a result of the accident, the applicant experiences persistent and constant pain in his right knee and lower back regions. In his submissions, the applicant stated that physiotherapy provided temporary relief from the pain. I find that the proposed treatment plan for a combination of chiropractic and physiotherapy treatment would be beneficial in helping to relieve the applicant’s pain, improving his overall strength to his areas of impairment and increasing his level of function.
Is the psychological assessment reasonable and necessary?
25I find that the psychological assessment recommended by Dr. Nina Belyakova (psychologist) is reasonable and necessary, and the applicant is entitled to this treatment plan.
26The applicant was assessed by Ms. Geeta Srikanth (psychotherapist) on October 19, 2017, for an initial consult and she provisionally diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational as a result of the accident.
27Dr. Gary Challis (psychologist) conducted two IEs. One assessment was conducted on May 2, 2017, and the report is dated June 5, 2017, in relation to income replacement benefits. The other assessment was conducted on December 7, 2017, and the report is dated December 21, 2017, in relation to the proposed psychological assessment.
28Regarding the IE report dated June 5, 2017, Dr. Challis administered several psychological questionnaires. The applicant’s score on the Beck Depression Inventory-II was indicative of a mild level of depression. The applicant produced a valid profile on the Pain Patient Profile. Ultimately, Dr. Challis opined that the applicant did not suffer from any intrusive, disabling or impairing psychological symptoms as a result of the accident.
29Regarding the IE report dated December 21, 2017 (approximately six months after the first assessment), the applicant’s score on the Beck Depression Inventory-II was indicative of severe depression. Dr. Challis noted that caution should be taken in interpreting the responses on the measures because the applicant produced an invalid response profile on one of the measures (the Pain Patient Profile) and reported some measures as more severe than indicated as part of the prior assessment and as reported during the clinical interview. Dr. Challis ultimately concluded that the applicant did not present with an impairment and did not present with the list of symptoms to the degree as reported in the treatment plan.
30Dr. Challis’ two reports indicate that the applicant’s score on the Beck Depression Inventory-II was indicative of some level of depression. For the earlier IE conducted on May 2, 2017, the applicant’s score was indicative of a mild level of depression and he produced a valid profile on the Pain Patient Profile. For the later IE conducted on December 7, 2017, his score was indicative of a severe level of depression and he did not produce a valid profile on the Pain Patient Profile. I find that even if Dr. Challis was not able to assess the applicant’s level of depression during the later IE on December 7, 2017 due to an invalid profile, the IE conducted approximately seven months earlier on May 2, 2017 indicates that the applicant experiences at least some level of depression.
31Ms. Srikanth assessed the applicant on October 19, 2017, approximately five months after the applicant’s first IE with Dr. Challis where he found that the applicant experiences a mild level of depression. Ms. Srikanth concluded that the applicant’s psychological diagnoses include a depressed mood. Therefore, I find that neither of Dr. Challis’ reports provided contradictory evidence to Ms. Srikanth’s conclusion regarding the applicant’s depressed mood.
32Both the applicant and the respondent agree that a review of Dr. Ali’s (the applicant’s family physician) notes show very little supporting evidence of the applicant’s psychological issues. In addition to Dr. Challis’ IE report dated May 2, 2017 and Ms. Srikanth’s initial consult, evidence in support of the applicant’s psychological issues includes a letter from a physiatry consult with Dr. S.W. Joseph Wong (physiatrist) dated November 22, 2018, where he recommended that the applicant should be on a sleeping pill, anti-anxiety medication and pain medication for insomnia and stress.
33From the evidence before me, I find the applicant to be functionally impaired due to psychological reasons. My finding is supported by the applicant’s testimony and accounts of how the accident has affected his emotional and psychological well-being. In interviews with both Ms. Srikanth and Dr. Challis, the applicant discussed post-accident functional difficulties with his activities of daily living. The following are some of the psychological issues the applicant has experienced since the accident:
i. His sleep is disturbed because of his pain; and
ii. He feels disappointed and frustrated with his limitations.
34I find that the applicant has a psychological condition or impairment. The treatment plan for a psychological assessment is reasonable and necessary. The goals of Dr. Belyakova’s psychological assessment are pain reduction, return to pre-accident level of psychological functioning, return to activities of normal living and return to pre-accident work activities. These are reasonable and necessary objectives.
Is the chronic pain assessment reasonable and necessary?
35I find that the chronic pain assessment is reasonable and necessary, and the applicant is entitled to this treatment plan because I am convinced that he experiences persistent and constant pain in the right knee and lower back regions. Dr. Wong (physiatrist) examined the applicant on November 22, 2018 (approximately two years after the accident) and his diagnostic impression was that the applicant has myofascial injuries of the neck, upper back and lower back muscles and right knee sprain with quadriceps muscles tendinitis. His notes indicate that he explained to the applicant the concept of having a chronic pain problem. He recommended that the applicant should be on a sleeping pill, anti-anxiety medication and pain medication because without controlling the applicant’s insomnia and stress, he believed it would be difficult to help the applicant’s chronic pain problem. On February 27, 2019 (approximately two years and four months after the accident), the applicant had an appointment with Dr. Ali (family physician), during which he reported he experiences pain and locking of his right knee.
36The applicant testified about his difficulties with his right-hand pinky finger and how he is not able to bend it. Although the respondent did not raise the issue of causation regarding the right-hand pinky finger impairment, I find that it is established in the medical evidence that this impairment developed years after the accident and not as a result of the accident. On February 27, 2019, the applicant reported to Dr. Ali about his right little finger getting locked and swelling. There is no mention of this specific impairment in earlier notes. It is after this appointment that Dr. Ali referred the applicant to see Dr. Wong for an assessment of the finger. On March 1, 2019, Dr. Wong assessed the applicant’s finger and indicated that the applicant complained of pain located in the right hand, fifth digit, for the past few months.
37The applicant’s pain affects his life. The applicant testified that he cannot play soccer at full capacity because soccer requires the constant movement of the knees. He told Dr. Silver (family physician) on August 17, 2017 (report dated August 28, 2017) that he has not felt able to return to his prior intensity of playing soccer due to the provocation of back pain. The applicant told Dr. Challis (psychologist) during his assessment on December 7, 2017 (report dated December 21, 2017), that he cannot play soccer due to pain. The applicant also testified that he had to stop working in renovations because of pain and he was not able to complete tasks.
38The goals of the chronic pain assessment include: pain reduction, return to activities of normal living, return to pre-accident work activities, to obtain the necessary clinical information to formulate the most appropriate treatment plan in response to the present complaints and to prevent the injuries from becoming permanent. Given the applicant’s functional limitations which have occurred since the accident, the objective goals of this assessment are reasonable and necessary in improving the applicant’s level of functioning.
Pre-104-week income replacement benefits
39Pursuant to section 5 of the Schedule, the respondent is required to pay Income Replacement Benefits (“IRBs”) to the applicant if, as a result of and within 104 weeks after the accident, he suffers a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident.
40Although the applicant submits that he has occasionally worked in renovations over the years, I find that the applicant’s only employment in the 52 weeks prior to the accident was as a debt collector. The accident occurred on October 10, 2016. According to the applicant’s Application for Employment Insurance Benefits that was received by Service Canada electronically on February 16, 2016, his employment dates for debt collecting were from September 22, 2014 to January 19, 2016. The applicant testified that at the time of the accident, he was collecting Employment Insurance and that he did not work while collecting Employment Insurance. Therefore, I find that the applicant did not work in renovations in the 52 weeks prior to the accident.
41The applicant submits that he is entitled to IRBs because he has a substantial inability to perform the essential tasks of his pre-accident employment as a debt collector. As a debt collector, he is required to sit for long periods and use a keyboard. Due to the injuries to his lower back, right knee, hands and wrists, his back is aggravated, and it is difficult to use a keyboard.
42The respondent submits that the applicant does not meet the test for IRBs because it agrees with the opinion of its assessors, Dr. Michael Martin (orthopaedic surgeon), Dr. Challis (psychologist) and Ms. Debbie Westbrook (physiotherapist), who concluded that the applicant does not meet the pre-104-week IRB test.
43I find that the applicant does not have a substantial inability to perform the essential tasks of his pre-accident employment as a debt collector. I came to this finding based on the medical evidence before me.
44Prior to the accident, the applicant worked at least 40 hours a week as a debt collector. The applicant’s testimony and interviews with assessors indicate that his employment duties involved sitting at a desk, typing on a computer and making collections calls on a phone. The applicant testified that the role involved mostly sitting, but that he would get up every now and then. The applicant testified that he stopped working as a debt collector before the accident because his contract had ended.
45The applicant did not provide any expert reports in support of his claim for IRBs.
46The respondent relies on the three assessments conducted by Dr. Martin, Dr. Challis and Ms. Westbrook in support of why the applicant is not entitled to IRBs. The applicant was assessed by Dr. Martin for an orthopaedic surgeon’s report on May 24, 2017 (report dated June 5, 2017), by Dr. Challis for a psychologist’s report on May 2, 2017 (report dated June 5, 2017), and by Ms. Westbrook for a functional capacity evaluation on May 17, 2017 (report dated June 5, 2017). Dr. Martin subsequently completed a material review on January 24, 2018 following a review of new documentation received.
47Dr. Martin’s material review concluded that the applicant does not suffer a substantial inability to perform the essential tasks of his sedentary pre-accident work as a result of injuries sustained in the accident.
48Dr. Challis’ IE report concluded that, from a strictly psychological perspective, the applicant is not substantially disabled from performing the essential tasks of his pre-accident employment.
49Ms. Westbrook’s IE reported noted that the applicant’s last employment was as a collector and this is classified as at the sedentary level of physical demands. Ms. Westbrook noted that the applicant self-limited on 95% of the tasks and declined to attempt 17 out of the 20 tasks, and the endurance section. Ms. Westbrook concluded that she was unable to provide a valid or reliable opinion as to the applicant’s actual current physical abilities as a result. She opined that self-limitation on 95% of the tasks combined with the constant pain behaviours observed strongly suggests that psychosocial and/or motivational factors are affecting physical performance.
50I agree with the classification reached by Ms. Westbrook that the applicant’s job as a debt collector was a sedentary position. Further, the applicant’s evidence also supports that the debt collector job was not physically demanding and that the applicant is able to perform the essential tasks of his pre-accident employment despite his ongoing accident-related impairments with his lower back and right knee.
51Furthermore, the respondent submits that there is evidence that the applicant has worked since the accident in a physically demanding role in the construction industry. The applicant’s tax records indicate that he earned $3,706.40 in business income in 2018. The applicant testified that he worked in renovations for three to four months in 2018.
52I find that the applicant does not have a substantial inability to perform the essential tasks of his employment as a debt collector and is therefore not entitled to pre-104-week IRBs.
Post-104-week income replacement benefits
53I also find the applicant does not meet the more stringent post-104-week test for entitlement to IRBs. The statutory test to meet to be eligible for an IRB post 104 weeks is set out in section 6 of the Schedule which provides that for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
54I agree with the respondent that there has been no evidence submitted that the applicant cannot work in a sedentary job. The applicant testified that he is eager to return to work and that he is applying for jobs. He testified that he is trying to get back into more sedentary work. He is thinking of going back to school in the field of real estate. He testified that a knee brace would help him with his knee issues for any walking he would need to do. As noted above, I have awarded the applicant a knee brace.
55I find the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.
Attendant care benefits
56As per section 19 of the Schedule, a requirement for entitlement to attendant care benefits (“ACBs”) is that the expense is incurred. Pursuant to section 3(7)(e), three criteria must be met for an expense to be considered incurred:
(i) the insured person has received the goods or services to which the expense relates,
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
(iii) the person who provided the goods or services,
(a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
(b) sustained an economic loss as a result of providing the goods or services to the insured person;
57The applicant applied for ACBs by providing the respondent with an Assessment of Attendant Care Needs (Form 1) dated July 19, 2017 and completed by Ms. Pritibahen Patel (nurse).
58The respondent disputes that the applicant is entitled to any attendant care. The respondent relies on the Form 1 dated September 5, 2017, completed as a result of an in-home assessment by Ms. Kathryn Blaney (occupational therapist) which was commissioned by the respondent.
59The applicant has not provided any evidence that any ACBs were incurred and thus none are payable.
60Although the applicant has not incurred any ACBs, even if the applicant was to incur the benefit in the future, I still do not find him to be entitled to receive the benefit.
61The applicant submits that Ms. Patel recommended that the applicant receive ACBs for the following: feeding, washing dishes, cleaning, shaving, hair, toenails, dressing and undressing both the upper and lower body, bedding/clothing, hygiene tasks and exercises. The applicant submits that having a support worker would allow him to focus on recovering from his injuries.
62As noted earlier, I found that the applicant is entitled to a knee brace to help him with his right knee issues. However, the applicant has not demonstrated the need for a support worker. The applicant reported to Ms. Blaney and Dr. Silver (family physician) that he is fully independent with personal care tasks. During his assessment with Ms. Blaney, he demonstrated the physical abilities to perform these tasks with pacing and some modified approaches. The applicant’s testimony, in conjunction with evidence from Ms. Blaney and Dr. Silver (family physician), lead me to conclude that the applicant is not entitled to receive the benefit in the future even if he was to incur the benefit.
CONCLUSION
63The applicant is partially entitled to the treatment plan for assistive devices. The applicant is entitled to payment for the knee brace only.
64The applicant is entitled to the chiropractic and physiotherapy treatment in the amount of $2,612.90.
65The applicant is entitled to the psychological assessment in the amount of $1,995.33.
66The applicant is entitled to the chronic pain assessment in the amount of $2,034.00.
67The applicant is not entitled to income replacement benefits.
68The applicant is not entitled to attendant care benefits.
69The applicant is entitled to interest on any overdue payments of benefits.
Released: October 30, 2019
Melody Maleki-Yazdi