Tribunal File Number: 17-007384/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.
Between:
HS Applicant
and
Aviva Insurance Canada Respondent
DECISION
PANEL: Jacqueline M. Harper
APPEARANCES:
For the Applicant: Michael Ferrante, Counsel
For the Respondent: Mercedes Marin, Counsel
HEARD: In Writing and by Teleconference on: June 11, 2018
OVERVIEW
1The applicant, H.S., was injured in an automobile accident (the “accident”) on October 1, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries are within the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”). On the contrary, the applicant’s position is that her injuries fall outside of the MIG and that she is entitled to medical benefits in excess of the quantum of the MIG limit.
3If the applicant’s position is correct, then I must address whether the medical treatments being claimed are reasonable and necessary. The applicant has exhausted the MIG limit of medical and rehabilitation benefits.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the benefits being claimed are reasonable and necessary will be unnecessary because the $3,500.00 maximum benefit for minor injuries has been exhausted.
5The respondent denied these benefits on the basis that they are not reasonable and necessary.
MOTION
6The parties attended a case conference on February 20, 2018. In the resulting Order dated February 22, 2018 (the “Order”), the Tribunal set a deadline of March 30, 2018 for the production and exchange of documents to be relied upon at the hearing.
7The respondent provided documents to the applicant, including 2 reports after the ordered deadline. Specifically, on April 5, 2018 and April 20, 2018, the respondent provided Dr. Finkelstein’s addendum report regarding the treatment plan in the amount of $3,685.39. The respondent also provided the neurology assessment paper file review report prepared by Dr. Garry Moddel. Dr. Finkelstein’s report was very similar to his March 26, 2018 report. Dr. Moddel noted that he did not find any neurological impairment as a result of the accident and concluded that the injury was predominantly minor in nature.
8On April 12, 2018 and thereafter, the applicant refused the request to admit the reports into evidence at the upcoming hearing on the basis that the evidence was being sought to be admitted after the deadline of March 30, 2018, set out in the case conference Order.
9On May 3, 2018, the respondent filed a motion seeking an order from the Tribunal to admit into evidence the addendum report of Dr. Finkelstein and the report of Dr. Moddel, both dated April 3, 2018.
10The respondent submitted that the reports should be admitted into evidence for the reasons noted below.
i. New information was received that may impact the determinations in one or more of the insurer examinations.
ii. The respondent made its best efforts with the assessment company to obtain the reports before the case conference order deadline of March 30, 2018 and further requested the reports shortly after receiving new records from the applicant, including the decoded OHIP summary and records from the family doctors, Dr. Lee and Dr. Monavvari. Prior to the applicant’s disclosure, the applicant had not produced any pre-accident records necessary to determine whether she suffered from a pre-existing injury that would preclude her from achieving maximal recovery within the MIG. Prior to obtaining the records, it was unclear for the respondent whether the applicant regularly attended her family doctors or consulted with any specialists regarding her post-accident symptoms and sequelae.
11The applicant submitted that it would be unfair to admit the addendum reports for the reasons noted below.
i. The LAT must continue with the original purpose of assuring public fairness and this would not be attainable if the respondent was allowed to disregard the deadlines set out in the Order. The applicant should not be disadvantaged because the respondent was improperly prepared to discuss the benefits in dispute within the time lines granted by the order.
ii. No other new medical evidence suddenly surfaced warranting an additional medical opinion or addendum to deal with the benefits in dispute. The applicant would agree and not dispute the motion if additional relevant medical evidence had surfaced as this would warrant additional medical opinions so that the disputed benefit may be addressed properly but, this was not the case.
iii. Dr. Finkelstein’s original report was dated January 22, 2016, and the addendum dated March 26, 2018 was more than 2 years later. All of the additional medical documents referenced in the addendum were available to the respondent before the date of the original report and could have easily been submitted to Dr. Finkelstein shortly after the original report was prepared for further evaluation.
iv. The applicant had not been provided with Dr. Finkelstein’s clinical notes and records as set out in the Order and, therefore, no clinical notes were taken or available. Without them, it would be extremely difficult, if not impossible, for him to specifically remember the applicant over the course of this two-year period. Therefore, the accuracy of the addendum report should be subject to question given the amount of time which passed between the original report and the addendum.
v. The respondent had ample opportunity to seek the required medical reports in order to respond to the LAT application. There was a notice of case conference dated January 5, 2018 notifying the parties of the case conference on February 20, 2018, there was no adjournment of the case conference which proceeded as scheduled and the Order stipulated that all supporting reports intended for use the hearing must be disclosed by March 30, 2018.
vi. Further, the need for a second neurology report by Dr. Moddel is redundant given that the respondent had already provided a neurology report by Dr. Verity John based on an examination dated May 9, 2016 and Dr. Moddel’s report was not submitted by the production deadline.
MOTION DECISION
12After considering the evidence and submissions of the parties, I deny the respondent’s motion for an order requesting to admit into evidence the new reports dated April 3, 2018 prepared by Dr. Finkelstein and Dr. Moddel.
13My reasons are as follows:
i. The production and exchange requirements in this matter were ordered on consent. The Order clearly stated that “no new reports will be admitted into evidence if not received by the parties by that date (i.e. March 30, 2018) subject to the other parties’ consent or the hearing adjudicator’s discretion”. The respondent agreed to the timeline and conditions and it has not persuaded me that it should not be required to comply with it.
ii. The additional medical documents referenced in the addendum were available to the respondent before the date of the original report dated January 22, 2016 and could have easily been submitted to Dr. Finkelstein shortly after the original report was prepared for further evaluation.
iii. The additional reports are not necessary for my decision and there is no real prejudice to the respondent if they are not admitted into evidence; even if I admitted them into evidence to be considered for the hearing, they would not change the outcome of the decision. The April 3, 2018 report prepared by Dr. Finkelstein is very similar to his previous report. Further, the report by Dr. Garry Moddel did not find any neurological impairment as a result of the accident and concluded that the injury is predominantly minor in nature. The information is not additional relevant information. There is an earlier neurology report prepared by Dr. John from an examination on May 9, 2016.
iv. The respondent’s motion is denied.
SUBSTANTIVE ISSUES
14The issues in dispute identified at the case conference are as follows:
i. Did the applicant sustain predominantly minor injuries as defined by the Schedule limiting her entitlement to medical and rehabilitation benefits to the MIG limit amount?
ii. If the applicant’s injuries are not within the MIG, then is the applicant entitled to the following treatment and assessment plans for chiropractic treatment recommended by North Toronto Rehabilitation and Physiotherapy (“NTRP”):
a. $1,969.10 denied by the respondent on January 28, 2016;
b. $3,685.35 denied by the respondent on January 28, 2016;
c. $1,666.53 denied by the respondent on June 2, 2016;
d. $1,892.15 denied by the respondent on June 2, 2016?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
15I find that the applicant’s injuries fall outside of the MIG based on the applicant sustaining a concussion and experiencing post-concussive syndrome.
16I find that the treatment proposed in the treatment plans is reasonable and necessary.
17I find that the applicant is entitled to the payment of interest on the overdue payment of benefits.
ANALYSIS
Minor Injury Guideline
18Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms for injuries mean.
19Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500 for any one accident. The onus is on the applicant to show that her injuries fall outside of the MIG1.
Did the applicant sustain predominantly minor physical injuries?
20The applicant claimed that she is out of the MIG due to the following criteria:
i. Concussion and post-concussion syndrome;
ii. Psychological impairment;
iii. Multiple lacerations, the combination of which precludes them from being kept within the MIG definition.
21I find that the evidence establishes that the applicant sustained a concussion and post-concussive syndrome which are not defined in the Schedule as minor injuries and, therefore, do not fall within the MIG. The MIG definition of a minor injury does not include a concussion and/or post-concussion syndrome. The MIG relates only to “minor injuries” as defined by s. 3(1) of the Schedule and the definition does not include brain injuries, as a concussion and post-concussion syndrome have been identified, according to recognized health authorities such as Health Canada Guide and the American Association of Neurological Surgeons. I accept the evidence that the applicant hit her head and that she sustained post-concussive symptoms, including dizziness, sleep disturbances and headaches which exclude her injuries from the MIG definition and, therefore, her entitlement to benefits is not limited to the MIG limit of $3,500.00.
22The applicant testified that following the accident, she was dizzy and had a headache, a bruise on her knee and injured her left shoulder. She suffered from soreness to her chest area, a lump behind her left ear and a laceration to her left facial area, above her left eye for which she received 7 stitches and a laceration to her left leg. She suffered from post-traumatic sleep disturbance, dizziness and headaches. She went to see her family doctor a few weeks following the accident because he had re-located and she was not aware of his new location; it took her some time to get an appointment with him. Dr. Monavvari was her previous family doctor for 4 to 5 years.
23The applicant’s testimony was corroborated by the records of the family physician, Dr. John Lee insofar that he noted on October 20, 2015, that the applicant had a laceration to the left facial area with sutures placed and was currently experiencing pain in her chest area, anterior and midline. Dr. Lee did not reference a concussion, cognitive issues or psychological symptoms and he did not make a referral for further testing or treatment of her symptoms. He prescribed meloxicam for pain.
24The applicant submitted that she reported symptoms of the accident to Dr. Ian Kai, the treating chiropractor at North Toronto Rehabilitation and Physiotherapy (“NTRP”) where she attended shortly following the accident on October 6, 2016 for chiropractic, massage and physiotherapy treatment. Dr. Kai completed the disability certificate (OCF-3) dated November 9, 2015 which included a concussion as one of the injuries sustained by the applicant with a brief loss of consciousness noted in the injury and sequelae information area of the form. The OCF-3 also included the following injuries: laceration/open wound of head, contusion underneath her left eye, chest wall abdominal injury, left shoulder injury, left knee laceration and injury, edema/swelling in the left leg, post traumatic dizziness and headaches, thoracic/cervical injury, post-traumatic sleep disturbances, and fear of crossing the street. There are references made in the NTRP records over the course of her treatment of the applicant’s diagnosis of sustaining a concussion, as well as her experiencing dizziness, sleep disturbance, headaches and fear of crossing the street.
25The respondent submitted that the evidence establishes that the applicant sustained predominantly a “minor injury”. The respondent submitted that in the applicant’s statement to police, she reported that her injuries only included a “scraped left knee, upper chest and forehead cut”. Further, the respondent submitted that the Toronto Paramedic Service referenced pain around the sternum, no loss of consciousness and a GCS score of 15/15 and that the single note of “concussion” is made only in a discharge diagnosis when the applicant attended at the Scarborough Grace Hospital on October 4, 2015, reporting of symptoms of vertigo and dizziness but, that her GCS score was 15/15 and another CT scan was performed and found no acute intracranial abnormality.
26The respondent further submitted that the applicant’s visit to Dr. Lee was on October 20, 2015, 19 days following the accident, he made no reference to a concussion or cognitive and psychological issues and there was no referral for further testing or treatment of her symptoms. In addition, at the next appointment on February 23, 2016, Dr. Lee recorded that the applicant “feels better from previous MVA” and made no reference to any physical symptoms, concussion or cognitive and psychological issues and no referral for further testing or treatment and no further appointments were made.
27The respondent submitted that the applicant has not adduced evidence of any other visits, consultations or referrals with any other medical doctor or hospitals and that the applicant’s chiropractor is not qualified to diagnose concussion or post-concussion symptoms. Beyond a clinical note of November 18, 2015, the NTRP records do not make any reference to a concussion or cognitive and psychological symptoms, although the applicant continued to attend for treatment.
28Further, the respondent submitted that based on the evidence of four different medical practitioners, namely Dr. Finkelstein (medical physician), Dr. Corrin (neurologist), Dr. Ko (medical physician) and Dr. John (neurologist), the applicant’s impairment is predominantly a “minor injury”.
29In making a determination, I considered that there is no dispute between the parties that the applicant was a pedestrian who was struck by a motor vehicle, fell to the ground, hit her head and in addition to other physical injuries, she sustained a laceration to her head which required sutures. The number of sutures is disputed by the parties as between 2 and 7. Following the accident, the applicant was taken by ambulance to Scarborough Grace Hospital where she was treated for numerous injuries and later released. She attended the hospital again, 3 days later, on October 4, 2015 and as part of the emergency department records, it is noted that she complained of headaches, nausea and dizziness. The treating physician at the hospital made a discharge diagnosis that she sustained a concussion.
30I am not convinced that the evidence of the respondent’s medical assessors ought to be given more weight than that of the attending hospital physician who assessed and diagnosed the applicant with a concussion within days of the accident - the discharge diagnosis of a concussion is significant and it is compelling evidence that she sustained a concussion.
31I considered the respondent’s submissions that a chiropractor is not qualified to diagnose concussion or post-concussion symptoms. I find that Dr. Kai’s records and those from NTRP’s other service providers serve at least to corroborate the symptomology that was reported by the applicant at NTRP where she sought regular treatment within the week and for months following the accident. The respondent’s submissions are based on the evidence of physicians who did not meet and assess the applicant until more than 2 months after the accident, the earliest meeting being specifically on December 10, 2015 with Dr. Finkelstein and in the case of the multidisciplinary assessment by Dr. Ko and Dr. John, as late as May 10, 2016 and May 9, 2016, respectively, more than 7 months after the accident.
32In addition, the Scarborough Grace Hospital records, the clinical notes and records from NTRP and the OCF-3 completed by Dr. Kai were not among the documents submitted to the assessors for review in the preparation of the respondent’s examination report by Dr. Finklestein dated January 22, 2016. Further, the respondent submitted that Dr. Ko and Dr. John were provided with the clinical notes and records from NTRP (which included the CT scan taken on the day of the accident) but, they were not provided with the Scarborough Grace Hospital records, noting the concussion diagnosis by a medical doctor along with symptoms reported by the applicant at the time of the two hospital visits. Further, while both Dr. Ko and Dr. John found the applicant’s injuries to be predominantly minor, I find that their evidence is not compelling. I find that based on the totality of the evidence, it is more likely than not, that the symptoms which the applicant was experiencing are directly related to a head injury of a concussion and post-concussion syndrome which is outside of the MIG.
33Contrary to Dr. John’s report to whom the applicant reported at least vertigo and who had the benefit of the NTRP clinical notes and records which recorded other symptoms from which the applicant suffered sooner post-accident than at the date of the assessment on May 9, 2016, such as headaches and dizziness, I am not convinced of the reliability of Dr. John’s finding that the applicant did not sustain an impairment which is more than minor in nature. While Dr. John specifically noted that the applicant did not report headaches, memory concerns or neck pain, she would have known that the applicant had previously reported headaches and neck pain and, of at least a diagnosis of a concussion by a chiropractor since she had the records from NTRP. It is unclear whether she canvassed with the applicant all of her injuries. The report is not thorough - it appears to be limited in the intake, recording and review of information on which it is based.
34Further, the fact that the applicant did not receive further physician based treatment for the head injury does not equate to it being minor in nature. In addition, the applicant clarified as is recorded by the respondent’s assessors and to which she testified at the hearing, the reason for which she did not seek treatment at her family doctor sooner.
35Having found that the applicant sustained a concussion and post-concussive syndrome as a result of the accident, it is unnecessary to address the other exclusion criteria that she is claiming.
Are the treatment plans reasonable and necessary?
36There are 4 treatment plans in dispute. Based on the evidence and the submissions of the parties, I find that each of the treatment plans is reasonable and necessary.
37All of the treatment plans have been recommended by Dr. Kai at NTRP. The applicant submitted that in each of the treatment plans, the goals are listed as being to help her with pain reduction, to increase strength, to increase her range of motion and to return to the activities of normal living. The evidence from her treating chiropractors and other treatment providers at NTRP from whom she received regular and ongoing treatment following the accident, supports her position. Further, the applicant submitted the following injuries are listed in the treatment plans: concussion; superficial head injury; open wound head; superficial injury of thorax; segmental and somatic dysfunction, ribcage; abdominal and pelvic pain; open wound of lower leg; dizziness and giddiness; chronic post-traumatic headaches; segmental and somatic dysfunction, lumbar region; cervicalgia; nervousness; contusion of shoulder and upper arm; nonorganic sleep disorders; nausea and vomiting.
38According to the clinical notes and records from NTRP, the applicant began physiotherapy treatment on October 6, 2015. Over the next 6 months, the applicant received a number of treatments at NTRP, including physiotherapy, massage therapy, laser therapy, chiropractic treatment, as well as interferential current therapy (IFC) with Dr. Kai and other treatment providers. The treatment is detailed in the treatment plans in dispute.
39The treatment plan dated October 26, 2015 is for treatment in the amount of $3,685.32 and proposed 27 sessions of chiropractic treatment, 8 sessions of massage therapy, 4 sessions of physiotherapy and documentation, with an estimated duration of 10 weeks. It was noted that the applicant’s progress on the treatment goals would be evaluated based on the patient’s ability to heal from at least 75% of her injuries and return to the majority of her previous activities, healing of her lacerations and contusions sites, improved ranges of motion, decreased post-concussive symptoms and improved emotional well-being.
40The treatment plan dated December 14, 2015 is for treatment in the amount of $1,969.10 and proposed 14 sessions of chiropractic treatment, 3 sessions of massage therapy, 2 sessions of physiotherapy and documentation, with an estimated duration of 5 weeks. It was reported that the applicant was continuing to heal from her injuries as the frequency of care was decreased and there was an increase in her active program. It was also noted that the applicant was responding well with treatment and her left lateral ribs and around the left breast were her main complaints. The injuries still affected her ranges of motion, activity levels and sleep patterns. Her neck injury improved but she continued to have pain in her left anterior shoulder along with ongoing headaches associated with her head laceration and dizziness when changing positions.
41The treatment plan dated February 7, 2016 is for treatment in the amount of $1,892.15 and proposed 15 sessions of chiropractic treatment and documentation, with an estimated duration of 5 weeks. It was noted that the applicant continued to progress well with her treatment and the only remaining areas of injury were her left chest and rib injuries. It was noted that she was able to do most of her exercises and household activities without pain however, she was still unable to lift anything due to her rib injury, unable to sleep on her right side as it aggravated her left ribs and still had pain on palpitation of the left pectoral and intercostal muscles.
42The treatment plan dated March 14, 2016 is for treatment in the amount of $1,666.53 and proposed 13 sessions of chiropractic treatment and documentation, with an estimated duration of 4 weeks. It was noted that the applicant continued to heal from her injuries, her left ribs remained sore on palpitation, she could not get a full night’s sleep due to her rib pain, certain neck movements caused her to feel lightheaded which she felt had been worsened in the last few weeks but, that she did not have any pain with the neck ranges of motion.
43The clinical notes and records of the Scarborough Grace Hospital, Dr. Lee and from NTRP, as well as the treatment plans, refer to the applicant as having a history of a stroke, Hepatitis C and diabetes II. She was prescribed medication and/or ongoing care for these medical issues. The applicant submitted, and as is noted in the treatment plans, these issues are barriers to her recovery. As previously mentioned, Dr. Kai completed a disability certificate (OCF-3) dated November 9, 2015, noting her injuries.
44The respondent relied on the conclusions of the assessors to deny the treatment plans on the basis that the applicant’s injuries were predominantly minor, could be treated within the MIG limit of $3,500.00 and are not reasonable and necessary.
45On December 10, 2015, the applicant underwent an insurer’s examination with Dr. Finkelstein for the purpose of determining entitlement to a treatment plan dated October 26, 2015 in the amount of $3,685.32. The examination and subsequent medical physician assessment report prepared by Dr. Finkelstein dated January 22, 2016 was to determine whether the applicant suffered a predominantly minor injury as defined in the Schedule and whether the treatment plan was reasonable and necessary. Dr. Finkelstein also provided another report, namely a medical physician paper review assessment dated January 22, 2016, to determine the same issues but, with respect to a treatment plan dated December 14, 2015, in the amount of $1,969.10. Dr. Finkelstein confirmed the applicant’s diagnoses as being a left arm strain, left intercostal strain, left knee contusion and a left temple laceration and noted that the latter 2 had been resolved and healed, respectively. Her left costal margin pain was experienced daily, constant and exacerbated by rolling over when lying down. Dr. Finkelstein recorded that massage therapy provided a temporary benefit for 48-72 hours and the pain rating on the VAS scale was 5/10. With respect to her left arm pain, it was noted that it is present on a daily basis and was constant throughout the day, with normal mobility at the shoulder, elbow and wrist, although the applicant complained of numbness in the left hand and her symptoms were relieved by massage therapy. He noted that the applicant experienced headaches with a VAS pain rating at the time of the examination being 8-9/10. The applicant reported experiencing these headaches 2-3 times per week which last for 24 hours. She denied any nausea, vomiting, photo phonophobia, aura or premonitory symptoms. She reported that she obtained 80% improvement in her symptoms to date. Both of Dr. Finkelstein’s reports dated January 22, 2016 concluded that the applicant suffered from a predominantly minor injury which could be treated within the MIG and that the treatment plans in question were not reasonable and necessary.
46Dr. Finkelstein also provided an addendum report dated March 26, 2018 based upon receipt of additional information further to the paper review report dated January 22, 2016. He concluded that the applicant suffered from soft tissue injuries from the accident and that there is no new information which would alter his original opinion - the treatment plan in the amount of $1,969.10 was not reasonable and necessary.
47On January 8, 2016, the applicant underwent an insurer’s examination with Dr. Corrin, a neurologist, for the purpose of determining entitlement to the above-noted treatment plan in the amount of $3,685.32. The applicant reported that she was unable to lift objects over 5 pounds and had difficulty mopping but, no other difficulties with activities in the house, self-care or activities of daily living. Dr. Corrin concluded in her neurology assessment report that the applicant suffered from a predominantly minor injury as defined in the Schedule and that the treatment recommended in the treatment plan was not reasonable and necessary. The applicant’s injuries could be treated within the MIG.
48On May 9, 2016, Dr. John, a neurologist, conducted a neurology assessment of the applicant to address the physical rehabilitation in the treatment plans in the amounts of $1,969.10, $1,892.15 and $1,666.53. Dr. John concluded that the applicant did not sustain a neurological impairment from the accident but, had “vertigo possibly indirectly because of perhaps positions adopted post-accident to be comfortable”, along with uncomplicated soft tissue injuries with lumbar strain, shoulder contusion and left supraorbital suture. She concluded that the applicant sustained a predominantly minor injury and the treatment plans were not reasonable and necessary.
49On May 10, 2016, Dr. Ko conducted a physiatry assessment of the applicant also to address the physical rehabilitation in the treatment plans in the amount of $1,969.10, $1,892.15 and $1,666.53. Dr. Ko’s assessment and report, along with Dr. Corrin’s, were part of the multidisciplinary assessment report prepared by the 2 physicians. Dr. Ko concluded that the applicant sustained a sprain/strain affecting the left upper back and shoulder area. Dr. Ko found that there was no objective evidence of an ongoing impairment and from a physiatric perspective, the applicant’s injuries were predominantly minor and could be treated within the MIG. He also concluded that the 3 above-noted treatment plans were not reasonable and necessary.
50In determining whether a treatment plan is reasonable and necessary, I considered Section 15(1) of the Schedule which provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured or on behalf of an insured person as a result of the accident, including chiropractic services. I also considered Section 38 of the Schedule which provides that an insurer is not required to pay an expense in respect of a medical benefit until the insured submits a treatment and assessment plan that is reasonable and necessary for the insured’s treatment and rehabilitation.
51I considered all of the evidence. The applicant is eligible for treatment in excess of the MIG limit but, must prove that the treatment is reasonable and necessary. The goal is to achieve maximal recovery from the injuries which she sustained in the accident. The applicant sought chiropractic, massage and physiotherapy treatment for her injuries and I accept the applicant’s submissions and evidence that the treatment at NTRP assisted her in recovering from the injuries which she sustained in the accident.
52NTRP recorded that they were reviewing her improvement and there is compelling evidence that the treatment administered was effective as she was improving and her injuries were diminishing.
53Dr. Kai’s recommendations were substantive. He indicated a thoughtful understanding of the applicant’s symptoms and functional limitations and that the plans would reasonably provide relief and assist with improvement of the effects of the injuries to the applicant. He described the ongoing issues with which the applicant was dealing and that her injuries and functionality were improving.
54I considered that the frequency of treatment was reasonably reduced with time, as recovery progressed and the effects of the injuries diminished. However, even at February 7, 2016, it was reported that the applicant was still not able to do all of her household chores due to the injuries. Further, according to the treatment plan dated March 14, 2016, while the list of physical injuries was reduced to pain in her left chest and rib area, there was no evidence that she reached maximal recovery at that date and she still had sleep issues as a result of her chest and rib pain.
55The respondent did not address the treatment recommended in the treatment plans in detail, other than that the applicant could be treated within the MIG limit and any additional treatment was not reasonable and necessary, notwithstanding that injuries were noted by the assessors, months after the accident. Dr. Finkelstein goes into some detail in his report dated January 22, 2016 of what the applicant’s complaints were at December 10, 2015. In addition, after assessing the applicant on January 8, 2016, Dr. Corrin noted that the applicant reported ongoing pain over her left anterior left chest and was reportedly not able to lift over 5 pounds. After physical examination on May 9, 2016, Dr. Ko’s report noted that the applicant sprain/strain injuries affecting her left upper back and shoulder area.
56I find that the applicant had long lasting physical injuries which she sustained from the accident, including pain to her shoulder, chest and rib area which impaired her functionality and her ability to achieve reasonable recovery - there was no evidence that she achieved maximal recovery from them. She continued to be impaired functionally by her injuries. I find that the 4 treatment plans are reasonable and necessary for the applicant to achieve maximal recovery.
ORDER:
57For the reasons provided above, I order the following:
i. The applicant shall be removed from the MIG;
ii. The applicant is entitled to:
a. $1,969.10 for chiropractic, massage and physiotherapy treatment, recommended by NTRP in a treatment plan dated December 14, 2015;
b. $3,685.35 for chiropractic, massage and physiotherapy treatment, recommended by NTRP in a treatment plan dated October 26, 2015;
c. $1,666.53 for chiropractic, massage and physiotherapy treatment, recommended by NTRP in a treatment plan dated March 12, 2016; and
a. $1,892.15 for chiropractic, massage and physiotherapy treatment, recommended by NTRP in a treatment plan dated February 7, 2016;
iii. The respondent shall pay interest on any overdue payment in accordance with s. 51 of the Schedule.
Released: July 31, 2019
Jacqueline M. Harper Adjudicator
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635 para.24