YK v. Wawanesa Mutual Insurance Company, 2019 CanLII 63374

YK vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-003971/AABS

Citation: YK vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-003971/AABS

Date: June 4, 2019

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:

YK

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Jordan Knape-Cascagnette, Paralegal

For the Respondent: Daniel Savoie, Counsel

HEARD in Writing: December 31, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant, “YK”, was involved in an automobile accident on January 7, 2016, (“the accident”) 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”) when the respondent, Wawanesa Mutual Insurance (“Wawanesa”), denied his claim for benefits.

2YK was the driver of a vehicle that was struck on the passenger side in a broadside collision.

3YK was involved in a subsequent motor vehicle accident in May, 2016.

DISPUTED BENEFITS

4The issues before me are as follows:

1. Is YK entitled to a medical benefit in the amount of $1,891.41 for physiotherapy, recommended by Toronto Medical Centre in a treatment plan (“OCF-18”) submitted on February 24, 2016, and denied on July 8, 2016?
2. Is YK entitled to a medical benefit in the amount of $71.81 ($1,371.81 less the partially approved amount of $1,300.00) for physiotherapy recommended by Toronto Medical Centre in an OCF-18 submitted on June 15, 2016, and denied on June 22, 2016?
3. Is YK entitled to a medical benefit in the amount of $1,230.81 for physiotherapy treatment recommended by Toronto Medical Centre in an OCF-18 submitted on July 6, 2016, and denied on July 18, 2016?
4. Is YK entitled to payment for the costs of examination (CoE) in the amount of $2,104.00 for an orthopaedic assessment, recommended by Toronto Medical Centre in an OCF-18 submitted on December 4, 2017, and denied on February 1, 2018?
5. Is YK entitled to payment for the CoE in the amount of $1,131.44 for an attendant care assessment (ACA), recommended by Toronto Medical Centre in a treatment plan submitted on February 24, 2016, and denied on July 8, 2016?
6. Is YK entitled to payment for the CoE in the amount of $1,995.33 for a psychological assessment, recommended by Toronto Medical Centre in a treatment plan submitted on June 28, 2016, and denied on July 8, 2016?
7. Is YK entitled to interest on any overdue payment of benefits?

FINDINGS

5I find that YK has not proven that he is entitled to any of the benefits in dispute. His appeal is denied and the issue of interest does not arise.

REASONS

Background

6Sections 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 necessary.²

Issues 1-3 Physiotherapy

7As noted, one of YK’s disputed claims for physiotherapy was partially approved.

8YK was removed from the Minor Injury Guideline (MIG)³ because Wawanesa’s assessor determined that he had sustained psychological injury as the result of the accident.

9YK bases his claim on his Disability Certificate (“OCF-3”) and notes from his family physician, Dr. Jeremy Thimm, setting out his injuries and symptoms, and chronicling his efforts to have them treated. YK also relies on two expert reports to support his claim:

i. Dr. Tajedin Getahun, in his orthopedic assessment dated September 15, 2018, confirmed a number of neck and back conditions either caused or aggravated by the accident.

ii. Dr. Michael Wansbrough, a pain specialist (report undated, but based on an initial consultation conducted on July 5, 2018) who set out YK’s continuing pain complaints, injuries and suggested modalities of treatment.

10Wawanesa denied the disputed OCF-18s because, in its view, YK has failed to demonstrate that physiotherapy is reasonable and necessary. To rebut YK’s claim, Wawanesa notes:

i. The clinical notes and records (CNRs) of YK’s family physician, Dr. Jeremy Thimm, indicate a gradual onset of symptoms after the accident and a five-month gap between YK’s first post-accident follow-up and the next visit related to accident injuries. This, Wawanesa, argues, is inconsistent with YK’s claim that his injuries are serious and that treatment is needed

ii. The insurer’s examination (IE) report by Dr. Platnick, dated June 21, 2016, in which the doctor concluded that YK’s injuries from the accident had resolved and treatment beyond the limits of the MIG was unnecessary. This conclusion was unchanged in addendum reports prepared after review more medical information, including medical imaging.⁴

iii. In an IE dated January 22, 2018, Dr. Theodoropoulos reported that his orthopedic assessment of YK revealed that further facility-based treatment was not indicated.

iv. YK’s own orthopedic assessor, Dr. Tajedin Getahun, did not recommend any further facility-based treatment, such as physiotherapy, in his report of September 15, 2018.

11Wawanesa contends that YK has failed to address evidence that his medical complaints were not caused by the accident:

i. YK’s evidence suggests that he was largely asymptomatic until a second motor vehicle accident in May, 2016 – and for three weeks after that. Dr. Thimm’s August 2016 CNRs reference the May, 2016 accident and also that YK had injured his right shoulder falling out of bed since the accident.

ii. Dr. Platnick’s addendum report of September 21, 2016 reference pre-existing degenerative disc disease, while noting that this would not prevent maximal medical recovery (MMR) within the limits of the MIG.

iii. Dr. Theodoropoulos opined in his report of January 22, 2018, that YK’s sciatica complaints were not accident-related.

12YK denies being involved in an accident in the May, 2016 accident. However, the accident is noted more than once in his own doctor’s CNRs⁵, and his failure to explain how this evidence would be mistaken leads me to accept it.

13I find that YK has not met the onus on him to prove that the physiotherapy he seeks is reasonable and necessary, because:

i. His submissions include descriptions of injuries and pain but without any analysis and without pointing me to any medical opinion as to how and why these would require further facility-based treatment.

ii. I find the IE reports submitted by Wawanesa to be persuasive, that further facility-based treatment, such as physiotherapy, are not indicated. YK does not question the quality of these reports in his Reply submissions, he simply rejects them.

iii. YK fails to address Wawanesa’s concerns with respect to whether or not the disputed OCF-18s are necessary as a result of the accident. Even if I find that he continues to need physiotherapy, I am unable to find that this is as a result of the accident. YK’s lack of candor with respect to the May 2016 accident leads me to give light weight to any assessor’s opinion, such as Dr. Getahun’s, that his complaints were a “direct result of” the accident.

iv. I found it persuasive that Dr. Getahun’s assessment report did not include physiotherapy or any similar modalities in its recommendations. Dr. Getahun instead recommended epidural injections and surgical disectomy and decompression. The report does not, as a result, support YK’s claim for physiotherapy.

v. Dr. Wansbrough’s report is unhelpful to me because it does not address causation of a range of symptoms and noted injuries, and simply lists a very wide range of treatment modalities that could benefit YK. This does not serve to offset the persuasive value of the IE reports submitted by Wawanesa about treatment – especially as the emphasis during the consultation was on injection treatments.

14YK’s appeal on issues 1-3 – his claims for physiotherapy -- is denied.

Issues 4 and 5 Cost of Examination

15YK provides no evidence or argument to support his claim for an orthopedic assessment or ACA. He simply does not make a prima facie case for these benefits. He also fails to reply to Wawanesa’s argument that further orthopedic assessment would be duplicative of assessments already completed. As a result, it is unnecessary for me to detail Wawanesa’s defence of these claims.

16I will note that my review of both parties’ medical assessment reports revealed no opinion that YK required or requires attendant care or an ACA as a result of the accident, despite some pain-related impairments to his activities of daily living. In June of 2016, YK told Dr. Platnick that he was independent with respect to his personal care activities.

17YK’s appeal on issues 4 and 5 – his claims for physiotherapy -- is denied.

Issue 5 Cost of Examination – Psychological Assessment

18To support this claim, YK relies on the psychological assessment report of Dr. Silvia Tenenbaum, psychologist, undated but referring to an assessment conducted on July 25, 2018.

19Dr. Tenenbaum recommended ongoing psychotherapy and a psychiatric and neurocognitive assessment to determine the etiology of his reported cognitive decline. She diagnosed YK with Generalized Anxiety Disorder and Somatic Symptom Disorder.

20As noted, YK was removed from the MIG on the basis of psychological injury. This was based on a finding by Dr. J. Sethi, psychiatrist and Wawanesa’s psychological assessor, that YK suffered a specific phobia --driver and passenger – as a result of the accident.⁶ Dr. Sethi actually endorsed, and Wawanesa funded, the assessment by Dr. Tenenbaum upon with YK relies.

21Wawanesa rebuts YK’s claim with the following evidence and argument:

i. An IE report dated August 15, 2016, by Dr. A.H. Rubenstein, psychologist, finding that YK did not sustain any psychological impairment as the result of the accident, and further that his psychometric testing revealed tendencies toward symptom magnification and endorsement of highly atypical symptoms, bringing psychological testing results into question.

ii. The assessments by Drs. Tenenbaum, Sethi and Rubinstein make the claimed assessment duplicative.

22YK’s appeal on issue 6 is denied for the following reasons:

i. The assessment details outlined in the disputed OCF-18 appear to duplicate the assessments already conducted by Drs. Tenenbaum, Sethi and Rubinstein.

ii. The assessments recommended by Dr. Tenenbaum appear to me to be distinct from the assessment described in the disputed OCF-18. Dr. Tenenbaum’s recommendation focused squarely on cognitive decline, and her specific recommendations are not contained in the disputed OCF-18. As a result, I do not find that Dr. Tenenbaum’s report supports YK’s claim.

23EK’s appeal on issue 6 – psychological assessment is denied.

CONCLUSIONS

24EK’s appeal is denied, and accordingly interest is not owing to him, as the disputed benefits are not payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. The MIG sets a cap of $3,500 on medical benefits for persons whose injuries are “predominantly minor” as defined by s.3 of the Schedule and in the MIG itself. Psychological injuries are not included in the definition of minor injury.
4. 4Dr. Platnick issued two addendum reports dated July 6, 2016 and September 21, 2016, respectively
5. 5CNRs of Dr. Jeremy Thimm. I read entries dated June 8, 2016 and August 5, 2016 respectively.
6. 6Psychological report dated October 1, 2018, by Dr. J. Sethi.