[H.M.] v. Intact Insurance Company, 2020 CanLII 19566

Citation: [H.M.] vs. Intact Insurance Company, 2020 ONLAT 18-003979/AABS

Tribunal File Number: 18-003979/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:

[H.M.]

Applicant

and

Intact Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Arash Goneh-Farahani

Counsel for the Respondent: Tracy L. Brooks

Heard in writing on: September 30, 2019

OVERVIEW

1The applicant was injured in an automobile accident on November 13, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was on his motorcycle proceeding through an intersection when a vehicle made a left hand turn into the intersection and collided with the applicant’s motorcycle.The applicant was ejected from the motorcycle and sustained psychological and physical injuries which included an acute fracture of his right arm.

3The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Is the applicant entitled to a medical benefit in the amount of $1,824.81 for physiotherapy treatment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on April 6, 2017 and denied on April 12, 2017?

ii. Is the applicant entitled to a cost of examination in the amount of $1,970.00 for a neurological assessment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on February 28, 2017 and denied on March 6, 2017?

iii. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on June 7, 2017 and denied on June 15, 2017?

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

v. Is the applicant entitled to an order for costs pursuant to Rule 19 of the Common Rules of Practice and Procedure?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find the applicant is entitled to:

a. A medical benefit in the amount of $1,824.81 for physiotherapy treatment; and

b. Interest on the overdue payment of benefits for the physiotherapy treatment in accordance with the Schedule.

6The applicant is not entitled to:

a. A cost of examination for a neurological assessment in the amount of $1,970.00;

b. A cost of examination for a chronic pain assessment in the amount of $2,000.00;

c. An award; or

d. An order for costs.

ANALYSIS

Is the applicant entitled to a medical benefit in the amount of $1,824.81?

7Based on the following, I find the medical benefit for physiotherapy services to be reasonable and necessary for the following reasons.

8The applicant submits that the medical documentation has demonstrated that the applicant should continue with physiotherapy, focusing on massage, acupuncture and other treatments to reduce paraspinal muscle spasm.

9Dr. Paul Jensen, Neurologist’s clinical notes and records dated May 4, 2017 notes that the applicant should continue with physiotherapy as a result of his low back pain that is graded as a 7/10 but may be up to a maximum of 10/10 in intensity.

10The clinical notes and records of Dr. Sokolova, Neurologist, dated June 7, 2017 states that the applicant had back pain related to lumbar sacral radiculopathy, which has improved and that he should continue with physiotherapy.²

11The respondent relies upon the insurer examination (“IE”) report of Dr. Maistrelli, Orthopaedic Surgeon dated March 8, 2017 wherein he opines that the applicant does not have any impairments from a musculoskeletal perspective as a result of the accident.³ The respondent further submits that the Disability Certificate (OCF-3) confirms that the applicant was being treated for injuries resulting from an accident in September 2015 and the applicant has not provided the medical records to indicate the nature or duration of that treatment.

12Dr. Maistrelli’s physical examination of the applicant revealed a lumbar lordosis and forward flexion was only possible with the applicant’s fingertips to his mid-calf and that his extension was full but with end range discomfort. Dr. Maistrelli finds that his injuries are uncomplicated soft tissue injuries and concludes the applicant has no substantive impairments.

13I do not agree with Dr. Maistrelli’s opinion, as his physical findings do not support his conclusion. He found lumbar lordosis and limited flexion and concluded that these are not substantive impairments. In my opinion, an applicant does not need to demonstrate that his impairments are substantive impairments in order to show that the treatment is reasonable and necessary. (emphasis mine). The fact that the applicant was only able to bend forward with his fingertips to his calf and with end range discomfort would support the reasonableness and the necessity of further treatment.

14The OCF-3 notes that the applicant had pre-existing injuries to his shoulder, arm, hand, neck, back, right knee and left ankle which have been exacerbated as a result of the accident.⁴ Furthermore, based on the recommendations of Dr. Sokolova and Dr. Jensen and the physical findings of Dr. Maistrelli of the applicant’s lumbar lordosis and limited flexion, I find that on a balance of probabilities, that the physiotherapy treatment is reasonable and necessary.

Is the applicant entitled to a cost of examination for a neurology assessment in the amount of $1,970.00 and a chronic pain assessment in the amount of $2,000.00?

Neurology Assessment

15I find that the applicant has not proven on a balance of probabilities that the cost of examinations are reasonable and necessary for the following reasons.

16The applicant has not directed to me any evidence that a neurology assessment is reasonable and necessary.

17The applicant submitted the clinical notes and records from the Neurologists Drs. Jensen and Sokolova; however, other than discussing the applicant’s back pain, there is no recommendation for a neurology assessment or treatment other than physiotherapy.

18Dr. Sokolova notes that the applicant’s back pain was related to the lumbar sacral radiculopathy but it has improved and her recommendation is the same as Dr. Jensen, i.e. for physiotherapy. There are no other comments on whether there is anything that is required with respect to a neurology assessment or treatment.

19With the onus being on the applicant, I am not satisfied on a balance of probabilities that a neurology assessment is reasonable and necessary.

Chronic Pain Assessment

20I have not been directed to any evidence to show that the chronic pain assessment is reasonable and necessary for the following reasons.

21The applicant submits as a result of the clinical notes and records of Drs. Oda, Jensen and Sokolova, the applicant should be seen by a chronic pain specialist. I do not agree.

22Dr. Jensen states that the applicant has chronic back pain, however, he does not provide an explanation as to why he believes the applicant has chronic pain or why the applicant needs a chronic pain assessment. Dr. Jensen is not the applicant’s treating doctor; he was a referral and he does not go into detail on why he believes the applicant suffers from chronic back pain other than stating the applicant had a workplace injury in June 2015 causing a right D2 flexor tendon and the motorcycle accident where he had fractures to his right hand and bruising to his knee.

23Drs. Oda and Sokolova do not discuss any chronic pain symptoms or a diagnosis. With the onus being on the applicant, I am not satisfied on a balance of probabilities that the applicant requires a chronic pain assessment.

Is the applicant entitled to an award?

24The onus is on the applicant to prove on a balance of probabilities and the applicant has provided no submissions or evidence in support of her claim for an award and as a result, I find that there are no unreasonably withheld or delayed payments that would justify an award from the respondent.

Is the applicant entitled to costs?

25The onus is on the applicant to prove on a balance of probabilities that the respondent acted unreasonably, frivolously, vexatiously or in bad faith in the proceeding.⁵

26The applicant has not provided any submissions or evidence to show conduct on the part of the respondent in accordance with Rule 19 and accordingly the claim for costs is dismissed.

INTEREST

27The applicant is entitled to interest on the payment of the physiotherapy treatment found to be reasonable and necessary in accordance with the Schedule.

ORDER

28For the reasons outlined above, the applicant is entitled to:

a. A medical benefit in the amount of $1,824.81 for physiotherapy treatment; and

b. Interest on the overdue payment of benefits for the physiotherapy treatment in accordance with the Schedule.

29The applicant is not entitled to:

a. A cost of examination for a neurological assessment in the amount of $1,970.00;

b. A cost of examination for a chronic pain assessment in the amount of $2,000.00;

c. An award; or

d. Costs.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant Written Submissions at Tab 7.
3. 3Respondent Written Submissions at Tab 5, page 7 of 11.
4. 4Applicant written submissions Tab 2 at page 5.
5. 5Rule 19 of the Common Rules of Practice and Procedure, October 2, 2017.