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:
J. D.
Appellant(s)
and
Certas Home and Auto Insurance Company
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Robert Lamot, Counsel
For the Respondent:
Odette Fraser, Counsel
HEARD:
In Writing on: August 20, 2018
OVERVIEW
1The applicant ["J.D."] was injured in an automobile accident on January 6, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent ("Certas").
2J.D. made a claim for a medical benefit for chiropractic treatment and massage therapy (including an assessment) 1. Certas denied the benefit on the basis of an insurer's examination ("IE") which found that the treatment plan was not reasonable and necessary 2.
3As a result of the accident, J.D. sustained injuries to his neck, right shoulder, right elbow and lower back. It should be noted that prior to the January 6, 2012 accident, J.D. was noted to have a physical condition that resulted in chronic neck and lower back pain3. J.D. submits he still requires treatment for his more recent accident-related injuries because his recovery from these injuries has been prolonged by his pre-existing injuries. J.D. also claims his chronic pain was exacerbated by the subject accident.
4The onus is on J.D., based on a balance of probabilities, to prove that he is entitled to the benefit in dispute on the basis that the treatment is reasonable and necessary as a result of the accident.
ISSUES IN DISPUTE
5Is the chiropractic care and massage therapy treatment in the amount $1,521.24 that J.D. is claiming, reasonable and necessary, as recommended by Islington Village Health, in a treatment plan dated October 21, 2015, and denied on January 25, 2016?
6Is J.D. entitled to interest on any overdue payment of benefits?
RESULT
7J.D. is not entitled to the treatment plan in dispute; accordingly, J.D. is not entitled to interest on any overdue payments.
REASONABLE AND NECESSARY
8Under section 14 of the Schedule, an insurer must pay the medical and rehabilitation benefits under sections 15 to 17 to an insured person who sustains an impairment as a result of an accident. Section 15 includes expenses for treatment that is reasonable and necessary for the treatment of the insured person.
9The question before me is whether J.D. has established, on a balance of probabilities, that his requested Treatment Plan is reasonable and necessary.
Parties' Positions
10J.D. argued that the treatment plan is reasonable and necessary because his pre-accident symptoms and chronic pain resulted in a need for continued chiropractic care and massage therapy, due to pain that has been progressively worsening, to achieve recovery from his injuries.
11Certas submitted the treatment plan is not reasonable and necessary because, in the opinion of its medical assessor, Physiatrist Dr. Hosseini, any further facility-based treatment will not improve J.D.'s condition.
12Certas further submitted that J.D. has not provided an explanation from any treatment provider as to the extent to which he was still experiencing an aggravation of symptoms almost four years post-accident compared to the pre-accident symptoms. In addition, Certas maintains that J.D. has not provided an explanation as to how the proposed treatment was intended to aid in the relief or resolution of those symptoms.
Chronic Pain
13J.D. relied on the clinical notes and records of the Rothbart Centre for Pain Management as part of his medical evidence to support further treatment. The Rothbart treatment was initiated three years post-accident for approximately one month. It's unclear from the Rothbart records what the cause of JD's pain was. The January 6, 2015 'Patient Referral Form' from Rothbart does not mention any motor vehicle accident. A January 20, 2015 note stated J.D., "cannot identify any precipitating factor or traumatic event for current pain complaints". As a part of the January 20th entry, an assessment form with a section that refers to whether the visit is due to a motor vehicle accident, is crossed out in its entirety.
14I find that the treatment and any recommendations provided by Rothbart cannot be established to have been made for any symptoms or injuries that are accident-related. J.D. suffered from chronic pain pre-accident and has not established that his pre-existing chronic pain has been further exacerbated by the subject accident. His pre-and post-accident complaints are consistent, raising doubts about the role of the accident in his ongoing pain complaints. Further, he did not provide any evidence that he was receiving specific treatment pre-accident which then increased after.
Analysis and Reasons
15In the disputed treatment plan, Dr. Natalie Larga, Chiropractor, indicated "pain reduction, increase in strength, increased range of motion, return to activities of normal living" as the main goals. However, J.D. has not provided objective evidence to support the need for further chiropractic care and massage therapy treatment.
16J.D. provided clinical notes and records from Dr. Beshay, Family Physician. At an October 10, 2012 visit, it's noted that J.D. saw a pain specialist who was of "limited help" and J.D. had therapy but "did not complete it". In his January 2016 report, Dr. Hosseini notes that J.D. indicated that treatment is "not providing him with relief of his symptoms and J.D. subsequently discontinued treatment". I cannot determine that further chiropractic and massage therapy treatment is reasonable and necessary when J.D.'s self-reporting says the treatment was not helpful in the past. Despite this, the very same treatment is once again being requested, without any explanation of how this request would be any different than the past.
17J.D. directed me to the clinical notes and records of Dr. Chang, Orthopaedic Surgeon. In his notes, Dr. Chang recommends physiotherapy on a November 9, 2013 visit. Dr. Chang also recommends J.D. start with taking medication for pain relief. Dr. Chang additionally recommends a home-based muscle strengthening program and stretching exercise program.
18J.D. relied on diagnostic imaging reports 4 in support of his need for treatment. The X-ray done by Dr. Chang showed normal results, with mild to moderate arthrosis. The MRI 5 report from Dr. Beshay showed degenerative changes. Neither of these reports establishes that further chiropractic treatment would be reasonable or necessary. On the contrary, the imaging reports further confirm that J.D. has minor injuries.
19Follow up with Dr. Chang on August 21, 2015, resulted in a recommendation for physiotherapy. Again during the August 2015 visit, Dr. Chang provided J.D. a handout for home exercises. Both Dr. Chang and Dr. Hosseini recommended medication, home-based self-exercise and muscle relaxants. J.D. has not directed me to any evidence that shows he has followed the recommendations from either of the Doctors.
20I do not find that further chiropractic care is reasonable and necessary, when the recommendations from J.D.'s own treating health practitioners do not support chiropractic care. Outside of the disputed treatment plan, there is no recommendation for massage therapy. Further, J.D.'s self-reporting doesn't justify that further chiropractic care or massage therapy would helpful for his symptoms.
21A treatment plan for a medical benefit, contradicted by the insured's self-reporting, and treatment providers recommending different treatment modalities, is not enough to establish entitlement. In this case, J.D. has provided a treatment plan, and no other recommendations for chiropractic care and massage therapy.
22As a result, I find J.D. has not met his onus in explaining how this treatment plan meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan reasonable and necessary.
CONCLUSION
23For the above noted reasons, J.D.'s application is dismissed.
Released: April 8, 2019
Derek Grant
Adjudicator