Released Date: 03/13/2020
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:
M. K.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Kal Stoykov, Counsel
For the Respondent:
Jean-Claude Rioux, Counsel
HEARD: In Writing
October 7, 2019
OVERVIEW
[ 1 ] The applicant (“M.K.”) was involved in an automobile accident on January 12, 2010 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (O. Reg. 403/96) (the “Schedule”). This dispute focuses on the respondent’s (“Aviva”) denial of M.K.’s entitlement to a medical benefit and cost of examination expense.
[ 2 ] M.K. submits that, as a result of injuries she sustained in the accident, the treatment and examination expense she seeks is reasonable and necessary.
[ 3 ] Aviva argues that M.K. has not established that the treatment plan or cost of examination is reasonable and necessary.
ISSUES
[ 4 ] The issues I must determine are as follows:
i. Is the medical benefit in the amount of $3,895.16 for chiropractic treatment, recommended by MyoHealth Rehab and Wellness Centre in a treatment plan dated December 13, 2017, and denied on February 22, 2018, reasonable and necessary?
ii. Is the cost of examination expense in the amount of $2,452.71 for a psychological assessment, recommended by MyoHealth Rehab and Wellness Centre in a treatment plan dated February 23, 2018, and denied on March 30, 2018, reasonable and necessary?
iii. Is M.K. entitled to interest on any overdue payment of benefits?
[ 5 ] In reviewing the parties’ submissions, I recognize that the respondent has raised the issue of causation and whether the applicant’s injuries were a result of the accident. Therefore, in addressing the substantive issues above, I will also address the issue of causation.
FINDING
[ 6 ] Based on a review of the evidence, I find that the accident was not a necessary cause of M.K.’s injuries and therefore M.K. is not entitled to the benefits or interest.
LAW
[ 7 ] Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.1
[ 8 ] For the reasons that follow, I find that the claimed treatment plan and cost of examination are not reasonable and necessary.
ANALYSIS
[ 9 ] M.K. submits that her s. 25 assessors, Psychologist Dr. Benzimra and Chronic Pain Specialist Dr. Karmy note that the accident directly led to her current psychological impairment and physical injury complaints.
10Dr. Benzimra diagnosed M.K. with Major Depression with anxious distress, Post-Traumatic Stress Disorder with panic attacks, and a Specific Phobia (driving).2 Dr. Karmy diagnosed M.K. with Post-Traumatic Fibromyalgia and Chronic Post-Traumatic Headaches.3
11M.K. further submits that causation was discussed in both Drs. reports, which notes that the accident directly led to the development of both her psychological impairments and physical injuries.
12Aviva submits that M.K. has not provided any reliable evidence showing a link between the subject accident and any worsening of her psychological or physical condition or causation of new injuries.
Causation
13Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the impairments from which M.K. is suffering.
14The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.4 M.K. must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause.5
Knee pain - North York Hospital clinical notes
15Aviva directed me to the clinical notes6 of North York Hospital. M.K presented with a knee injury as a result of twisting her knee in her home on January 24, 2010. Although M.K. did advise Dr. Rumble of the subject accident, she also reported that, “she did not recall striking herself on the interior of the car at the time”. Dr. Rumble diagnosed M.K. with early patellofemoral osteoarthritis, early medial compartment osteoarthritis, a remote injury to the medial collateral ligament of her knee, possible torn medial meniscus and possible loose body right knee.
16In an addendum note from the January 24, 2010 hospital visit, Dr. Rumble noted a previous accident in August of 2006. The note indicates that M.K. reported that her right knee was injured and that she was receiving physiotherapy as a result of this previous accident.
17On March 22, 2010, M.K. returned to North York Hospital for follow-up with Dr. Rumble. In the related note, Dr. Rumble opines as follows:
She has continued on physiotherapy and has made great progress. She now is able to walk nearly normally. She has occasional pain in the anterior aspect of her knee, which radiates through to the back, which is improving.
On examination, she has very minimal effusion, excellent range of motion, minimal patellofemoral crepitus. Ligament stable, excellent range, she walks normally.
M.K. is improving a great deal. She will continue her home exercise program after her physiotherapy has ended. She will gradually return to normal activities without restriction although she should avoid running or jumping activities.
18Although the accident is mentioned at the February 2010 visit, Dr. Rumble makes no connection between the 2010 accident and the presenting knee pain complaints. In addition, on the return visit in March, again no connection is made to the accident and the knee pain. Further, Dr. Rumble reports that M.K.’s knee pain is improving, and she is able to walk normally. Dr. Rumble concludes that all aspects of the knee pain are improving and M.K. will be able to return to normal activities without restriction. I do not find that the North York Hospital records support that M.K. suffered a knee injury as a result of the January 2010 accident.
Back pain – North York General Hospital clinical notes
19Approximately two and a half years later, on July 2, 2012, M.K. presented at North York General Hospital complaining of lower back pain.7 Specifically, the notes report on the cause of the injury as follows:
Was on a boat approximately two hours ago when the boat hit a wave, patient raised in air approximately 6" and came down hard on her tail bone. Complaining of lower back pain since. Unable to sit due to pain.
20It should be noted that there is no mention of the January 2010 accident, or the previous August 2006 accident. There is no evidence in this hospital record that the back injury was caused by or as a result of the January 2010 accident.
Left side pain - Clinical notes and records of Dr. Teitel
21In his clinical notes and records,8 Family Physician Dr. Teitel noted M.K. presented with the following pain complaints,
July 8, 2014
Sunday night went for walk and sidewalk uneven and fell on chest Went to emerg, bruised and feels pressure;
Pain in back down arm on left;
Left-arm bruising over humerus on left;
Diagnosis: Musculoskeletal bruising and tenderness
July 17, 2014
Seen here 9 days ago, fell 11 days ago, tripped and fell to ground.
Injured L[eft] shoulder and L arm and L chest, seen ER and had x-rays there and now still pain L chest and L scapula and L shoulder.
22In his notes, Dr.Teitel makes no comment on the subject accident contributing to the injuries M.K. sustained in the trip and fall incident, over four years post-accident.
23Aviva submits that the question that I should consider is whether M.K. would be in her present condition had the accident not occurred. The answer is yes. M.K. has not provided me with persuasive evidence that her physical injuries (knee and lower back) two and four years post-accident, respectively, were caused by the subject accident.
24I agree with Aviva that M.K.’s present injury complaints were not caused by the January 2010 accident. Further, I agree that M.K. would still have her current injury complaints had the January 2010 accident not taken place. The medical evidence shows three separate compelling incidents that I find contributed to M.K.’s present pain complaints, and not the January 2010 accident.
25There does not appear to be any complaints from M.K. regarding the accident in any of M.K.’s medical practitioners’ notes, nor are there recommendations for treatment. I am also not directed to any evidence to show that M.K. sustained these injuries as a result of the accident or that her pre-existing condition was exacerbated by the accident.
26According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”9 I am not presented with or directed to any evidence that M.K.’s pre-existing injuries were necessarily caused by or worsened by the accident. With the onus being on M.K., she has not satisfied me on a balance of probabilities.
27As a result of the above, I find that the evidence does not establish on a balance of probabilities that M.K. would not have suffered the injuries “but for” the accident.
CONCLUSION
28I find M.K. has not met her onus in showing how the treatment plan and cost of examination meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan or cost of examination to be reasonable and necessary.
29No interest is owing as there is no overdue payment of benefits.
30M.K.’s claim is dismissed.
Released: March 13, 2020
Derek Grant
Adjudicator
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635.
- Applicant Written Submissions at Tab 2 - Dr. Benzimra, Psychological Assessment, dated April 5, 2016.
- Ibid at Tab 3 - Dr. Karmy, Chronic Pain Assessment, dated April 19, 2016.
- Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 ("Sabadash").
- Ibid at para. 36.
- North York Hospital clinical notes dated February 3, 2010 and March 22, 2010
- Hospital Records from North York General Hospital, Applicant's Submissions, Tab 1, Respondent's Submissions, Tab 3
- Clinical Notes of Dr. Teitel, Applicant's Submissions, Tab 6, Respondent's Submissions, Tab 4
- Sabadash at para. 39.