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:
[R.S.]
Applicant
and
The Guarantee Company of North America
Respondent
AMENDED DECISION AND ORDER
ADJUDICATOR:
Claudette Leslie
APPEARANCES:
For the Applicant:
Ryan M. Jeffries, Paralegal
For the Respondent:
Kathleen O'Hara, counsel for The Guarantee Company of North America
HEARD: In Writing
September 24, 2019
OVERVIEW
1The applicant was involved in an automobile accident on March 9, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer, The Guarantee Company of North America. The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on May 2, 2019, and consequently the matter proceeded to this written hearing.
ISSUES
3The following are the issues to be decided:
(i) Is the applicant entitled to a medical benefit for physiotherapy services in the amount of $2,992.60 recommended by Taruneet Dhir, in a treatment plan dated April 10, 2017 and denied September 13, 2017?
(ii) Is the applicant entitled to interest on any overdue payment of benefits?
ISSUES IN DISPUTE
RESULT
4Considering the submissions and the relevant evidence provided, I find that, on a balance of probabilities:
the treatment plan in the amount of $2,992.60 for physiotherapy services is reasonable and necessary; and interest is payable in accordance with section 51 of the Schedule.
BACKGROUND
5The applicant was driving north on [a major highway] on March 9, 2016 when he recalls hearing a loud bang. He was initially in a state of shock and later determined that he had been rear-ended. He reported that his right foot shifted automatically on to the brake pedal, as he struggled to stop his vehicle. Realizing that his glasses were no longer on his face, and that he could smell something burning, he quickly exited the stopped vehicle.
6He noticed that his vehicle was damaged, and a tow truck driver who later arrived at the scene, told him that he had been hit by a drunk driver; and the drunk driver had just crashed their vehicle. The Ontario Provincial Police took his report and they drove him off the Highway to the nearest street.
7The applicant was referred to and received physical therapy approved and paid for by the respondent. He claimed that this therapy alleviated his pain. The insurer denied further such treatment in April of 2017. The applicant was 47-years-old at the time of the accident.
THE LAW, EVIDENCE AND ANALYSIS
Issue (i): Whether the applicant is entitled to the medical benefits for proposed physiotherapy services as indicated above.
8An insurer, under to ss. 14 and 15 of the Schedule, is liable to pay an insured person’s medical and rehabilitation benefits if the insured person has sustained an impairment as a result of an accident, and the benefits are reasonable and necessary expenses.
9It is understood that the applicant sustained an impairment in the accident. The issue here is whether the treatment plan in question is reasonable and necessary to address that impairment. While the Schedule does not define the terms “reasonable and necessary”, a realistic interpretation must include consideration of, among other things, whether the expenses and services proposed/incurred are related to impairments caused by the accident, the goals of the treatment, and whether such goals will be achieved by the expenses/services proposed/incurred. The burden rests with the applicant to prove, on a balance of probabilities, the reasonableness and necessity of the denied treatment plan.
10In this case, the applicant argues that, as a direct result of the accident, he continues to experience pain to his right wrist, and upper and lower back. Consequently, he was unable to function at his pre-accident level. He maintains that the recommended 20 sessions of physiotherapy will help restore him to his pre-accident health. Contrary to the respondent’s claim, the applicant asserts that the treatment plan clearly indicates the nature, type, duration and treatment goals and barriers to recovery of the proposed treatment plan and is designed to improve his functional motor issues.
11The respondent contends that this is the fourth treatment plan of its kind submitted over a one year post-accident period. It takes the position that it is not reasonable and necessary. It further argues that, based on objective medical evidence, the applicant has recovered from his accident-related injuries; and the recommended treatment would not relieve the applicant’s subjective pain complaints or improve his function.
12The treatment plan in question proposes: 20 physical rehabilitation sessions; 20 exercise, multiple body sites (0.75hr); 20 mobilization, multiple body sites (0.25hr); 20 hyperthermy, multiple body sites (0.25hr); and stimulation, muscles of the arm (0.25hr).
13Based on the totality of the evidence, and for the reasons that follow, I am satisfied that the physiotherapy treatment is reasonable and necessary to help the applicant receive pain relief. There is evidence of on-going pain, and intermittent relief with this type of treatment/similar therapy, throughout the applicant’s medical records.
14The day after the accident and again on March 12 and April 7, 2016 the applicant saw Dr. R Shaikh, Lorimel Medical Centre, due to pain in his right wrist, neck, upper and lower back. In the Clinical Notes and Records (CNR) of April 7, 2016. the doctor notes, “ swelling of rt wrist…wrist pain after, MVA.” Dr. Shaikh referred the applicant to Healthmax Physiotherapy Clinic for physiotherapy treatments which started on April 1, 2016.
15The clinic’s progress reports include the following notes: April 6, 2016 - “Diagnosis: Acute MSK injuries secondary to MVA”- temporary disability; continue with current treatment…” The applicant attended for 3 treatments ending on April 25, 2016, before going elsewhere. The applicant has received no further physiotherapy treatments since April of 2017.
16Dr. Shaikh also ordered X-Rays of lumbar and cervical spine, conducted on March 16, 2016; which revealed specified degenerative changes including, “Moderate to sever facet osteoarthritis present at L5-S1 on the right side. Mild to moderate facet osteoarthritis at L4-L5 on the right side”.
17Dr. Boutros Mikhail, the applicant’s family physician, in completing the Disability Certificate (OCF-3) on June 30, 2016, notes “injury to his right wrist after the accident; he continues to suffer from…muscle pain, back pain and pain down both arms and legs. His feet have become swollen, he has difficulty sleeping concentrating and remembering, slurred and forgotten words since the accident.”
18Two days after the accident, the applicant was taken by ambulance to [the emergency department] with complaints of head injury. He underwent a brain MRI, which was found to be normal.
19The applicant continued to follow up with his family physician, Dr. Boutros Mikhail, Castlemore Family Medical Center, following the accident and throughout 2017. Among other things, the physician’s CNRs, indicate the following:
April 29, 2016 – “stress after MVA, dizziness, has neck pain”; May 27, 2016. “still feel his right side of the body is different than his left; notes weakness of the right side of his body; June 17, 2016 – “right arm issue counselling”; June 24, 2016; “mild weakness of the right lower limb; right side is numb”. The applicant reported some improvement with physiotherapy.
January 27, 2017 - “pain of the right side of the upper back shooting to his head tried to go to work / could not leave the house I right side shooting pain”; May 5, 2017- “…patient said since he started physiotherapy he feels much better…”; December 7, 2017 “spasm of the right side of the body for a long time since MVA; stiff neck and as well low backache on and off…pain in the right leg, right arm with non stretching…”
Dr. Mikhail scheduled multiple MRIs/diagnostic tests in regard to the applicant’s ongoing complaints of shooting pain and psychological complaints. While degenerative changes were confirmed, I find no evidence connecting the pain and psychological complaints to the degenerative changes.
20By way of follow up the applicant saw multiple practitioners and underwent various diagnostic tests.
In December 5, 2016 Dr. Yael Friedman, Neurologist, stated that that the applicant should continue with his physiotherapy; and in a January 24, 2017 letter from Ultra-Modern Medical Inc., the practitioner indicates that the applicant attended for a follow up “with regards to performing nerve conduction studies to investigate his right arm numbness and right leg pain.; motor nerve conduction…There is electrophysiological evidence for a right median neuropathy at the wrist that is electrically moderate .” Following his EMG study of January 24th, 2017. Dr. Friedman commented "Right median motor study revealed a prolonged distal motor onset latency with a preserved distal amplitude". He diagnoses Carpal Tunnel Syndrome.
January 9, 2017 letter of Douglas McClure Medicine Professional Corporation, Dr. Doug McClure states - “was seen today regarding constant bilateral tinnitus he became aware of shortly after an MVA last March. Constant, varies in severity, more noticeable at night…”
Brampton Civic Hospital CNRs/imaging results cover several visits, during 2017. Its findings include as follows:
o February; Feb. 26, 2017 findings/history: “47-year-old male with right arm and leg numbness and neck and low back pain. Rule out structural lesions”: Imaging: March 13, 2017–findings/history: “Right arm and leg numbness, neck and low back pain”; July 3, 2017 – “right arm and leg numbness, neck and low back pain, mild multilevel degenerative disease”
21In a sworn Examination under Oath (EUO) of June 20, 2016, the applicant states that, as a result of the accident, he continued to have right-sided weakness and pain in his lumbar and cervical spine.
“This pain would continue up to my head and was causing me significant concentration and sleep issues. I never had any of these issues prior to the motor vehicle accident...During the period of time which I was followed, I was receiving physiotherapy treatments which were helping me recover and function. I advised my doctors that physiotherapy was helping and making me feel better.”
22The insurer commissioned Insurer’s Examinations (IE) in response to the applicant’s claims. As a result, he was denied approval of the treatment plan in question. Specifically,
- In October and December 2016- Dr. Konstantine K. Zakzanis, Neuropsychologist, assessed the applicant and reported that the applicant’s profile was valid. The doctor’s diagnosis is,
o Adjustment Disorder With mixed anxiety and depressed mood.
- Dr. Anna Czok, Physiatrist, examined the applicant, first on September 1, 2016. She notes the applicant’s complaints of pain “on the top of his head
extending to the occipital region and down to the neck as a burning pain and stiffness with a tingling sensation. Back pain: He described stiffness and pins and needles along the entire spine and to both lower extremities. Numbness in the right hand and right forearm....” Notwithstanding and considering that the applicant had been assessed by other medical practitioners prior to her examination, she concludes that “The current physical examination did not demonstrate objective musculoskeletal pathology which could be attributed to injuries sustained in the motor vehicle accident.” The doctor, based on her findings, in an August 31, 2017 report and a May 30, 2018 addendum report, denies any usefulness or need for the treatment plan at issue.
- Neurologist Dr. Jason Lazarou was commissioned by the insurer to conduct an IE on November 4, 2016, in regards to an August 2016 treatment plan which was later approved by the insurer. He reported that “On examination today, [ ] had some subtle features to suggest a functional/psychogenic component to the right sided weakness. He also demonstrated subjective decreased sensation of pinprick along the entire right side of the body…It would be appropriate for him to be seen by a treating neurologist to have a confirmation that these symptoms he is experiencing…and then the institution of a physical therapy program…”
Is the treatment plan reasonable and necessary?
23Based on the medical records/evidence provided, I find that the treatment plan is reasonable and necessary in this case.
There is no evidence that the mental and physical symptoms (dizziness, neck and back pain, right side numbness, shooting pain to his head, or right wrist pain) existed prior to the accident. The only reasonable conclusion is therefore, that the accident caused these symptoms/ impairments.
It is clear that the applicant consistently pursued relief from pain, starting immediately following the accident up to over a year post-accident; and that he regularly engaged in physiotherapy treatment up to April of 2017 when the plan in question was denied by the insurer.
The applicant’s complaints to various treatment providers is consistent. The CNRs of the family doctor, the diagnostic imaging/X-Rays, the reports of the IE assessors all indicate that the applicant consistently complained of post-accident symptoms, including, stress, dizziness, neck pain; and weakness of the right side of his body.
The applicant, on multiple occasions reported to treatment providers and in his EUO over 3 years later, he confirms that he still experienced ongoing pain, and found pain relief in the physiotherapy treatments he had undergone.
24There is an abundance of evidence that the applicant began experiencing pain and psychological symptoms after the accident occurred and that he consistently pursued pain relief. At the same time, and while the applicant was diagnosed, post-accident, with degenerative changes, I find no evidence that would suggest the severity of such changes or that such changes may have caused the pain symptoms he began experiencing after the accident. The applicant indicated that physiotherapy services assisted in providing pain relief. The goal of the treatment plan as indicated is to relieve pain, increase strength and endurance, and essentially return the applicant to pre-accident physical condition. The plan is clearly intended to address the applicant’s subjective condition.
25Notwithstanding the objective evidence of the IE assessors and other medical practitioners, the applicant’s subjective complaints must also be considered; especially in this case where, over a lengthy period, he was consistent in both the nature of his complaints and his pursuit of relief; which in my view validates what he was experiencing. Considering the above, I find the entirety of the physiotherapy treatment plan, dated April 5, 2017 reasonable and necessary.
Issue (ii): Whether the applicant is entitled to interest
26The applicant is entitled to interest for the physiotherapy treatment plan, in accordance with section 51 of the Schedule.
CONCLUSION/ORDER
27While both parties submitted Tribunal decisions for consideration, I note here that I am not bound by another member’s decision. At the same time, while I recognize that the issues determined in these decisions may be similar, the circumstances, including the mechanics of the accident and the evidence provided, vary in each case. For this reason, in determining the merits of this matter, I have focused my attention primarily on the particulars, facts and the relevant evidence provided, in this case.
28I order that:
o the applicant is entitled to physiotherapy services in the amount of $2,992.60 recommended by Taruneet Dhir, in a treatment plan dated April 10, 2017; and
o the applicant entitled to interest on any overdue payment of the benefit in accordance with the Schedule.
Released: February 7, 2020
Claudette Leslie
Adjudicator