C.S. v. Wawanesa Mutual Insurance Company, 2019 CanLII 122728

Citation: C.S. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-004665/AABS

Tribunal File Number: 18-004665/AABS

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.

Parties

Between:

C.S. Appellant

and

Wawanesa Mutual Insurance Company Respondent

Decision

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Appellant: Maria Makarova, Paralegal

For the Respondent: Erica Lewin, Counsel

Heard: In Writing on: July 8, 2019

OVERVIEW

1The applicant (“C.S.”) was involved in a motor vehicle accident (“the accident”) on November 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2C.S. applied for benefits from the respondent (“Wawanesa”) and applied to the Licence Appeal Tribunal (the “Tribunal”) for dispute resolution when his claims were denied.

3Wawanesa argues that all of C.S.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”)². C.S. disagrees.

4I must decide whether C.S.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine his entitlement to the medical benefits in dispute.

ISSUES TO BE DECIDED

5The issues in dispute are as follows:

(i) Did C.S. sustain predominantly minor injuries as defined under the Schedule?

(ii) Is the medical benefit in the amount of $2,116.75 for psychological services as recommended by Physio Fix and Fitness in a treatment plan (OCF-18) dated January 10, 2017 and denied on March 17, 2017, reasonable and necessary?

(iii) Is the medical benefit in the amount of $4,380.51 for chiropractic and massage services as recommended by Physio Fix and Fitness in a treatment plan (OCF-18) dated November 14, 2016 and denied on February 22, 2017, reasonable and necessary?

(iv) Is Wawanesa liable to pay C.S. an award under Regulation 664 because it unreasonably withheld or delayed payments to C.S.?

(v) Is C.S. entitled to interest on any overdue payment of benefits?

RESULT

6I find that:

a. C.S. suffers from chronic pain, which removes him from the MIG;

b. The treatment plan for psychological treatment is not reasonable and necessary;

c. The treatment plan for chiropractic treatment is not reasonable and necessary;

d. C.S. is not entitled to an award under Regulation 664; and

e. No interest is payable.

ANALYSIS AND REASONS

Medical History – Pre-accident

7C.S. has a medical history which includes insulin dependent diabetes, hypertension, and high cholesterol. C.S. denied any pre-existing history of psychological or psychiatric problems.

8Dr. Jawaid Mughal, Family Physician, diagnosed the claimant with frozen shoulder or adhesive capsulitis of the left shoulder in 2013. Dr. Mughal also noted diagnoses of severe macular edema and diabetes, diabetic nephropathy, and erectile dysfunction³.

9As a result of a March 9, 2016 accident, C.S. was diagnosed with several injuries, including: WAD II, sprain and strain of lumbar spine, pain in thoracic spine, dizziness, cervicogenic headaches, internal derangement of knee, sprain and strain to shoulder joint, rotator cuff capsule, and other parts of shoulder girdle;⁴ whiplash type injury of the cervical and lumbar spine.⁵

10C.S. underwent x-rays on March 10, 2016. The skull and lumbar spine examinations were negative, although mild degenerative disc disease was noted of the lumbar spine. Both knees demonstrated mild tricompartmental degenerative changes⁶. On May 30, 2016, the claimant underwent ultrasounds of his bilateral shoulders and knees, and soft tissue of the neck and upper back. These ultrasounds were also negative, but for small joint effusions of the knees⁷.

Medical History – Post-accident

11C.S. attended with Dr. Mughal on November 8, 2016, three days post-accident. He reported left shoulder and back pain, as well as left elbow tenderness. Dr. Mughal referred C.S. to Physio Fix and Fitness ("Physio Fix"). At the time of the subject accident, C.S. was receiving physiotherapy treatment from the March 2016 accident.

Diagnostic Imaging

12There are several diagnostic imaging reports relied upon by C.S. in his submissions. I find that the diagnostic imaging reports do not provide any objective medical evidence that establishes the treatment plans are reasonable and necessary. For example:

(i) A bilateral shoulder ultrasound dated May 1, 2018 noted mild bursitis bilaterally with no cuff tendon tear;

(ii) An x-ray of C.S.’s cervical spine dated September 15, 2018 exhibited straightening of the cervical lordosis, which was noted could be due to positioning or muscle spasm. The conclusion portion indicates that this diagnostic imaging was otherwise non acute; and

(iii) An MRI of the cervical spine on October 19, 2018 exhibited partial developmental fusion across the C2-3 disc space. A small central disc-osteophyte, small broad right paracentral disc-osteophyte, small left paracentral disc-osteophyte, and very small central disc protrusion were also noted.

13There is no medical evidence or opinion which provides a causal link between the diagnostic imaging findings and the accident. I find the diagnostic imaging does not assist C.S. in meeting his burden on a balance of probabilities that his accident-related injuries are outside the MIG.

The Treatment Plans

14Sections 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. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary⁸.

15C.S. has not provided me with persuasive medical evidence that establishes on balance that the treatment plans are reasonable and necessary. For instance:

(i) Under Part 9 of the psychology treatment plan dated January 10, 2017, Romeo Vitelli, Psychologist notes there are no barriers to recovery identified.

(ii) The treatment plan also included a note from a telephone clinical interview with C.S., performed by Giuseppe Parziale, under supervision of Mr. Vitelli. I place little weight on this report, as the conclusion was based on C.S.’s subjective complaints. The recommendation of a psychological assessment is not founded on a basis of conclusions obtained through objective testing.

(iii) The chiropractic/massage therapy treatment plan dated November 14, 2016 is not supported by any other medical evidence or recommendation from any of C.S.’s treating physician, or any other treatment provider.

(iv) C.S.’s subjective reporting of improvement from facility-based physical treatment, notes some relief was obtained from physiotherapy. Again, however, this does not establish that the subject chiropractic/massage therapy treatment plan is reasonable and necessary.

16In support of its position that the treatment plans are not reasonable and necessary and that C.S.’s injuries are predominantly minor, Wawanesa relies in part on its insurer assessors’ reports, which I will now discuss.

Section 44 Assessments – physical injuries

17Dr. Patrick Tansey, Orthopaedic Surgeon, prepared a Section 44 Report dated February 7, 2017 with regards to the MIG and the OCF-18 by Dr. Thirunavukkarasu, Chiropractor of Physio Fix recommending $4,380.51 in treatment.

18C.S. reported continued pain of his neck, shoulders, and upper back, which he attributed to his lack of access to physical therapy (which contradicts his reporting that he did not find therapy of assistance). C.S. also reported intermittent low back and bilateral knee pain, which he reported had improved by 50%. C.S. also reported headaches.

19C.S. reported being independent with personal care and helping his wife with shopping and other household activities, but doing less so now. Dr. Tansey concluded that from an orthopaedic point of view C.S. sustained uncomplicated myofascial strain type injuries from the subject accident, and aggravation of pre-existing myofascial strain type injuries. Dr. Tansey did not identify any specific impairment that would warrant treatment outside the MIG.

20Dr. Devlin, Physiatrist, concluded that C.S. has intermittent ongoing neck pain. Dr. Devlin noted limited range of motion in the cervical spine. Dr. Devlin opined that “his prognosis, with the length of time that has passed since the time of the collision, will likely continue”. Regarding C.S.’s shoulder pain, Dr. Devlin noted that this pain would likely continue. Dr. Devlin also concluded that C.S.’s knee pain also was likely to continue. Dr. Devlin recommended C.S. continue with home exercises and follow up with his family physician.

21I find the IE of Dr. Devlin to be persuasive because his conclusion is in line with the objective medical evidence of Dr. Nayyar Razvi provided by C.S. which I will discuss in due course.

C.S. does not suffer from any accident-related psychological impairment that would remove him from the MIG

22Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that C.S. suffers from a psychological impairment that would remove him from the application of the MIG. For instance,

(i) C.S. refers to the psychological screening report completed by Dr. Fahimeh Aghamohseni on November 25, 2018 at pages 8-9 of his submissions, for support that he requires treatment outside the MIG from a psychological perspective. By Dr. Aghamohseni's own admission, she spoke with C.S. only briefly as a pre-assessment interview. There were no tests administered or validity measures, and there is no evidence that Dr. Aghamohseni reviewed any clinical notes and records. The subjective reporting also appears to be at odds with reporting to the IE assessor, who conducted in person examinations.

23I put more weight on the insurer’s examination (IE) report of Psychologist Dr. Randy Silverman, than on the report completed by Dr. Aghamohseni. I place very little weight on Dr. Aghamohseni’s report as it does not provide me with evidence to show that C.S.’s reported psychological impairment(s) are anything other than symptoms or sequelae arising from the soft tissue injuries sustained in the accident. The report is based entirely on a series of questions asked of C.S. during the screening process. In essence, it is a self-report of C.S.’s symptoms and difficulties.

24Dr. Silverman prepared a Section 44 Report dated January 30, 2019, with regards to the recommended psychological treatment.

25C.S. admitted that the subject accident occurred within the broader context of the death of his parents, which was a difficult period of his life and contributed to his low mood. He acknowledged, that his mood had steadily improved and he had been moving forward. He reported that his sleep had improved. C.S. denied excessive guilt, feelings of worthlessness or hopelessness, generalized anxiety, or panic attacks. He reported that he had experienced recurrent anxiety dreams, but that same had largely resolved. C.S. reported that he had not received any psychiatric treatment.

26Dr. Silverman completed a several psychological tests and concluded that C.S.'s self-report was consistent with the objective psychometric test findings. Dr. Silverman opined that the evidence from the current examination indicated that C.S. was not currently experiencing clinically significant psychological distress. There was no diagnosable psychological disorder, or evidence of substantive accident-related psychological impairment. Dr. Silverman opined that the examination did not furnish a compelling rehabilitative rationale for a comprehensive mental health assessment that would require treatment outside the MIG.

27Dr. Silverman opined that “in the absence of a substantive accident-related impairment, a diagnosable psychological condition, deficient coping, or a pre-existing psychiatric disorder that has been compromising his [C.S.] psychological adjustment to the motor vehicle accident, the current examination findings did not furnish a compelling rehabilitative rationale for a comprehensive mental health assessment or chronic pain assessment for treatment planning purposes”.

28Dr. Silverman concluded that the psychological symptoms identified and described by C.S. were not supported by objective psychometric test findings, which yielded compelling evidence of symptom embellishment and sub-optimal effort and raised concerns regarding reliability and credibility. Given that C.S. did not convey a high level of motivation for participating in treatment or counselling, and in the absence of objectively reliable psychometric evidence, there was no compelling evidence to support the need for psychological intervention outside the MIG limits.

29C.S. has not provided medical evidence to demonstrate that he is unable to recover under the MIG as a result of his psychological symptoms. Therefore, he has not met the onus of establishing his entitlement to psychological treatment beyond the MIG limits.

Functionality - Chronic Pain Report

30C.S. submitted a report by Dr. Razvi (Family Medicine and Chronic Pain Specialist) dated December 17, 2018. At page 8 of Dr. Razvi's report, he assesses C.S.’s functionality in relation to his activities of daily living. Dr. Razvi notes mild to moderate limitations regarding C.S.’s participation in activities of daily living.

31Dr. Razvi ultimately diagnoses C.S. with chronic pain syndrome, cervicogenic headaches, zygapophyseal/myofascial pain of the cervical and lumbar spine, possible rotator cuff pathology, mood disorder (major depression), sleep apnea, general deconditioning, and depression. It was Dr. Razvi's conclusion that because C.S. is suffering from a chronic pain syndrome, he falls outside the MIG.

32Wawanesa notes that the diagnosis of depression is outside Dr. Razvi's area of expertise. No psychologist or psychiatrist has made this diagnosis. Further, C.S. has not undergone a sleep study or been diagnosed with sleep apnea. I agree, and place little weight on the psychological diagnoses provided by Dr. Razvi.

33Dr. Michael Devlin (Physiatrist) prepared a Section 44 Report dated January 30, 2019, with regards to Dr. Razvi's recommendation of a chronic pain assessment. C.S. reported that he did not feel clinic-based therapy offered him any benefit. C.S. reported that he had attended Physio Fix for three months and continued to perform a home exercise program.

34C.S. reported intermittent neck pain, occasional numbness of his left third digit, constant left shoulder pain, bilateral anterior knee pain (lasting for a few seconds), and headaches.

35Dr. Devlin concluded that C.S.’s history and documentation was in keeping with soft tissue injuries treatable within the MIG. With regards to the chronic pain assessment, Dr. Devlin noted that C.S. is taking minimal pain medications, independent with self-care, and is working full-time at his pre-accident employment. Dr. Devlin further noted that C.S. reported following up with his family physician on a monthly basis, yet there was no proposal of a chronic pain assessment indicated in the clinical notes. He opined that if C.S. wished to have further medical intervention with respect to his current pain complaints he would consult with his family physician.

36I find the report of Dr. Devlin to be contradictory. As noted in paragraph 8, Dr. Devlin concluded that C.S.’s pain will “likely continue” regarding his neck, shoulder and knee pain. Dr. Devlin’s report was provided over two years post-accident, and I find that the continuous pain complaints, along with the findings of Dr. Razvi, Dr. Devlin’s opinion confirms that C.S. suffers from a chronic pain condition as a result of both the March and November 2016 accidents.

37From a physical perspective, I cannot conclude that similarly documented, ongoing pain complaints, to the family physician, C.S.’s own assessor, and the IE assessor, are not indicative of a chronic pain condition, after such a lengthy post-accident period has passed. In addition, the treatment received to date has not relieved C.S. of his accident-related pain.

38I place more weight on the report of Drs. Razvi and Devlin, based on their similar findings that C.S. has ongoing pain, and will require further treatment to alleviate the pain. Despite this, I do not find that the recommendation for chiropractic treatment is reasonable and necessary in order to address C.S.’s chronic pain complaints.

39Aside from the treatment plan, I find no other evidence recommending, or in support of, further chiropractic or massage therapy treatment. A treatment plan, without any supportive persuasive evidence is not enough to establish that a treatment plan is reasonable or necessary.

SUMMARY

The treatment plans are not reasonable and necessary

40An objective medical basis for treatment, which supports the subjective evidence, that, in turn, supports the recommended treatment, is helpful. Where that objective medical evidence is lacking or not provided, more is required than numerous treatment plans which list near identical barriers to recovery and goals of the recommended treatment, over a two- or three-year post-accident period. C.S. has received mainly physiotherapy treatment, which he has reported to be of little benefit. This is key, given the fact the treatment plan in dispute is for chiropractic treatment that the medical evidence has shown to be of unsubstantiated benefit.

41From a psychological perspective, C.S. has failed to persuade me that the psychological treatment is reasonable and necessary. There is no objective psychological or psychiatric evidence in support of psychological treatment. As such, C.S. has not met his burden to establish entitlement to psychological treatment.

42C.S. submits that his pre-existing diagnosis of diabetes has slowed down his recovery. C.S. provides no supporting medical opinion for this submission, but for the handwritten initial assessment form and Treatment Confirmation Form prepared by Physio Fix which lists C.S.'s pre-existing hypertension, diabetes, and high cholesterol as "potential” barriers to recovery.

43Dr. Razvi concludes in his report that C.S. requires treatment outside of the MIG due to a diagnosis of chronic pain syndrome. I agree. However, C.S. has not provided any medical evidence that justifies psychological, chiropractic or massage therapy treatment.

44For the reasons above, I find the evidence has established that the treatment plans are not reasonable and necessary.

AWARD

45Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. C.S.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Wawanesa) has “unreasonably” withheld or delayed payments.

46C.S. contends that Wawanesa failed to review all the medical evidence in making its determinations which constitutes frivolous and vexatious behaviour. I disagree. C.S. did not provide me with any supporting evidence to show that Wawanesa completed an improper/incomplete review of the medical evidence. As such, I am not persuaded that Wawanesa acted frivolously or vexatiously.

47I have already found that C.S. is not entitled to the psychological/physical treatment plans, therefore Wawanesa cannot be found to have unreasonably withheld payment of these benefits.

48Wawanesa relied on the reports of its assessors as the basis for denying the treatment plans. They agreed with their assessors and doing so does not meet the threshold for an award.

49A differing of opinions regarding treatment does not establish the grounds for an award claim. The threshold for an award is high for good reason: to ensure that an insured is not unjustly awarded because an insurer ‘reasonably’ denied a claim. For example, where an insurer clearly went against the recommendation(s) of its assessor that were in favour of an insured, then an award would be warranted. This is not the case in the subject proceeding, as such, I find an award is not appropriate. C.S. has not satisfied his burden of proof to show that Wawanesa unreasonably withheld or delayed payments.

50There is no evidence before me that Wawanesa has established the threshold behavior required to justify an award claim under section 10. As a result, I find that Wawanesa has not unreasonably withheld or delayed payment for any benefit; therefore C.S. is not entitled to an award.

CONCLUSION

51C.S. has met the onus on him to prove his injuries are not predominantly minor. However, C.S. is not entitled to the treatment plans in dispute, therefore no interest is owing. C.S. is not entitled to an award. C.S.’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Clinical note by Dr. Mughal dated March 15, 2013 (Respondent Document Brief Tab 2)
4. 4Disability Certificate of Dr. Manoj Idnanl dated March 11, 2016, Applicant’s Submissions, tab 4, pg. 5.
5. 5Clinical Note by Dr. Mughal dated March l 5, 2016 (Respondent Document Brief, Tab 2).
6. 6Diagnostic Imaging Report dated March 10, 2016 (Document Brief, Tab 4)
7. 7Diagnostic Imaging Report dated May 30, 2016 (Document Brief, Tab 5)
8. 8Scarlett v. Belair, 2015 ONSC 3635