Released: 05/27/2020
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:
[K.P]
Applicant
and
CUMIS General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Matthew M. Létourneau
Appearances:
For the Appellant:
Tina D. Radimisis, Counsel
For the Respondent:
Bevin Shores, Counsel
Heard by way of written submissions
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on January 25, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2This decision sets out the findings and determinations made in concluding that income replacement benefits are not payable from the date of denial up to 104 weeks post-accident due to a substantial inability to perform the duties of the applicant’s employment. I also conclude that the applicant is not suffering from a complete inability to engage in any employment or self-employment for which she is reasonably suited for the period beyond 104 weeks post-accident. However, due chiefly to the pain management needs of the applicant and the diagnoses presented by her treating physicians, all claimed medical benefits and expenses are reasonable and necessary. Interest is payable on any overdue benefits.
ISSUES
3The issues in dispute were determined in Adjudicator Punyarthi’s order of July 19, 2018 as follow:
i. Is the applicant entitled to income replacement benefits in the amount of $180.13 per week, from September 5, 2016 to date and ongoing?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,268.02 for chiropractic and massage therapy recommended by The Physical Therapy Institute Inc. in a treatment plan submitted on April 25, 2017, and denied on May 4, 2017?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,671.48 for mental health therapy recommended by Dr. Romeo Vitelli of Promed Rehabilitation in a treatment plan submitted on July 17, 2017, and denied on July 18, 2017?
iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,866.00 for physiotherapy recommended by Malik Hundani of Movement Physios in a treatment plan submitted on September 16, 2017, and denied on September 27, 2017?
v. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant submits that she is entitled to all of the above. The respondent requests a denial of all benefits and interests and claims its costs.
INFORMATION
5I reviewed the evidentiary records submitted by the parties with their written submissions. This includes the Application, Response and Submissions, the Motor Vehicle Accident Report and Property Damage file, school and work documents as well as clinical notes and records of all treating and assessing clinicians. I equally reviewed the documents provided by the respondent, including the clinical notes and records of the Insurer Examination Assessors (“IE Assessors”).
ANALYSIS
Subject Accident – January 25, 2016
6The applicant was involved in an accident on January 25, 2016. She was a front seated passenger in a 2012 Honda Civic driven by her boyfriend in Mississauga. The applicant states that the vehicle was headed at 60 kilometers per hour through a green lit intersection in the right lane when a Lexus RX4 attempted an improper left turn and struck the vehicle at 40 kilometers per hour. The applicant was the middle seat passenger and did not have a seatbelt fastened. The front passenger side of the vehicle was struck and it spun off into a center median, striking a pole and a stopped truck. The vehicle was a write off according to the applicant and the investigating police officer.
7The Lexus and the stopped Truck were also heavily damaged. The airbags deployed in all three vehicles.
8The applicant states that she struck her right knee, right leg, and her right shoulder, and the top of her head struck the roof of the vehicle. She reports having blood on her head and a noticeable hematoma. The applicant’s boyfriend was rendered unconscious and she remembers yelling at him to stay awake and being in emotional distress.
9The applicant claims Income Replacement and Medical Benefits, with applicable interest, for impairments caused by the accident. She has not returned to work and does not believe she will be able to return to any job due to the accident. She has also been seeking treatment for her medical impairments and submitted several treatment plans that were denied.
10The respondent views the applicant’s claims of impairments resulting from the accident as exaggerated or not credible. The respondent relies on medical information provided by the IE Assessors to deny the income replacement benefits and claimed medical benefits, arguing that the applicant cannot establish entitlement to any of these benefits pursuant to the Schedule.
Physiotherapy, Chiropractic and Massage Services are Reasonable and Necessary
11I must determine whether the following treatment plans are reasonable and necessary. In doing so, the respondent also submits that I look to related considerations, such as if the treatment goals are reasonable and being met to a reasonable degree through effective treatment that is neither too lengthy nor too expensive. These considerations form part of my analysis.
12The applicant claims $2,268.02 for chiropractic and massage therapy recommended by The Physical Therapy Institute Inc. in a treatment plan submitted on April 25, 2017 and denied on May 4, 2017. The applicant also claims physiotherapy in the amount of $2,866.00 as recommended by Malik Hundani and submitted in a treatment plan on September 16, 2017 and denied on September 27, 2017. I will discuss both of these medical benefits together, as they relate to the physical impairments suffered by the applicant.
13The applicant submits that her claims are supported by medical diagnoses identified by treating medical health professionals. The respondent suggests that much of this information is based on self-reporting that is not credible. I have determined that the claims made for medical benefits in this matter are reasonable and necessary.
14I find that there is objective medical information showing that physiotherapy, chiropractic and massage services are reasonable. The applicant clearly suffered impairments that led to treatment through physiotherapy massage and chiropractic services prior to submitting these treatment plans. The level of pain and impairment and overall treatment received further to the accident, but prior to the subject claims, make these benefits necessary.
15The impairments are clearly caused by the accident, as there was no evidence of competing causation.
16The first diagnosis that supports the finding that chiropractic and massage services are reasonable consists of [the Hospital] and associated [Clinic’s] records. Following the applicant’s attendance on January 24, 26 and 27, 2016, their clinicians recorded complaints of headaches, dizziness and repeated vomiting. The applicant vomited several times at the [Clinic] during one of her visits. She was noted as having no previous medical or surgical history. They also recorded complaints of neck pain, back pain, right shoulder pain and right thigh pain. The [Clinic] noted stiffness of cervical spine with loss of normal lordosis and a contusion on her head with dried blood, consistent with a direct trauma to the head. They also noted tenderness on her right shoulder, right hip and right side, but otherwise neurovascularly intact. The clinician, Dr. Getahun, discussed a diagnosis of a head injury and sent her for CT scan. He also recommended massage therapy, anti-inflammatories and using a walker.
17The X-Ray of January 26, 2016 does not show any fracture or dislocation, but some possibility of alignment issues in the cervical spine. The CT scan of the spine found signs of impairment due to muscle spasm or early cervical spondylosis, but otherwise no fracture or malalignment of the cervical spine.
18The first family physician, Dr. Z. Sanchez, provided notes in February 16, 2016 that state a diagnosis of cervical strain, upper & lumbar strain, contusion, hematoma, as well as right anterior thigh and knee pain. She prescribed Tylenol and further physiotherapy and massage. Dr. Sanchez prescribed physio and massage in February 2016. Also, in that same month, a report from the Physical Therapy Institute stated that the applicant suffers from concussion, contusion of the thigh, chronic PTS headaches and sprain and strain of the cervical spine. Dr. Sanchez’s notes from April 30, 2017 and August 29, 2016 appear to show continuing pain and headaches. I find that these observations all point to pain stemming from the subject accident.
19In August 2016, the documents provided illustrate that both IE Assessors and treating physicians for the applicant found signs of pain to be treated. Dr. J. Muhlstock, physiatrist, reported that the impairments were consistent with WAD II and that there were signs of soft tissue impairment to thoracic & lumbosacral spine, right shoulder girdle, abrasions to the head and mentions the reports of concussion and headaches. Dr. Muhlstock suggested that further facility treatment was not needed, despite the finding that there were impairments stemming from the accident. Dr. M. Mehdiratta, IE Neurologist, also noted possible concussion and PTS headaches.
20I find that the IE Assessors do not contradict Dr. Sanchez, but indeed, support that there was ongoing pain as of August 29, 2016. The applicant started physiotherapy 1 week after the accident and she continued attending physiotherapy once a week until at least August 29, 2016.
21Dr. Sandro, the applicant’s new family doctor, later notes in April 2017 that massage therapy is offering pain relief, along with biofreeze and orthogel. On September 13, 2017, Dr. Sandro gave a diagnosis of musculoskeletal pain.
22Dr. Paul Stacey, Physiatrist, evaluated the applicant on May 25, 2017 regarding the treatment plan for massage therapy and chiropractic services. The applicant reported that she had a 40-50% improvement in her accident-related symptoms with pain in the mid range across her body. The evaluation did take some time, as the applicant was crying and inconsolable throughout. The physical examination was thorough and found that “despite reported soft tissue symptoms, her physical examination is devoid of objective signs of impairment.”
23As part of the applicant’s treatment history, Dr. Stacey notes that she attended with Dr. Wong at an assessment of May 4, 2016 and that this physical assessment showed relatively normal evaluation, with no objective evidence of ongoing neuropathy, radiculopathy or ongoing impairment as a result from the accident. The report does note that there is a presence of symptoms consistent with an undiagnosed mood disorder. More specifically, Dr. Wong diagnoses the applicant with a scalp laceration, Grade 1 concussion, WAD I and myofascial strain of the trapezius and paraspinal muscles. A psychiatric evaluation was recommended.
24This May 4, 2016 report of Dr. Wong, General Practitioner, was followed by a report of September 26, 2018. In that report, his chief finding is that the applicant suffers from chronic pain and likely chronic pain syndrome. His conclusions took into account other diagnoses of Adjustment Disorder and the IE Assessors’ findings of pain in her neck, upper back, right shoulder and lower back, as well as right knee and headaches. Dr. Wong found objective soft tissue impairments.
25In weighing the evidence above, I find that there is objective evidence of physical impairments caused by the accident.
26Even if the applicant was exaggerating the extent of the pain, as submitted by the respondent, there is sufficient basis to conclude that the accident caused pain in the head, neck, shoulder and spine, as well as headaches, that required treatment in a manner similar to what Dr. Sandro identified as appropriate treatment and what is included in the treatment plans. Physical treatment was generally followed by the applicant on a weekly basis.
27I do not believe that the concerns of exaggeration pose a challenge in accepting the reports that show that there was indeed an important degree of pain and impairment stemming from the accident that would make physiotherapy, massage and chiropractic services reasonable and necessary as claimed in the disputed treatment plans for these services. I also do not believe that the treatment plans are too expensive or too lengthy. I do not agree with Respondent’s IE Assessors’, specifically Dr. Muhlstock and Dr. Stacey, suggestion that no formal or clinical based therapy is warranted for the physical impairments. I find that the treatment plans submitted are reasonable and necessary with respect to the level of impairment experienced by the applicant.
28The treatment plans submitted regarding massage therapy, chiropractic and physiotherapy with The Physical Therapy Institute Inc. and Movement Physios are reasonable and necessary.
Mental Health Therapy Reasonable and Necessary
29The applicant claims a medical and rehabilitation benefit in the amount of $3,671.48 for mental health therapy recommended by Dr. Romeo Vitelli of Promed Rehabilitation in a treatment plan submitted on July 17, 2017 and denied on July 18, 2017.
30Dr. Joel Jeffries, psychiatrist, evaluated the applicant in a psychiatry assessment which was completed on June 14, 2016 at the request of the respondent. The applicant reported physical complaints, dizziness, vomiting, lack of sleep and other symptoms and consequences, for example, that she could not lift the patient she had as a caregiver but hoped to return in August 2016. Dr. Jeffries states that she has a rather unique response to the accident in how overwhelmed she feels. She was advised to seek psychological treatment but had not yet pursued it. He also finds that her “psychiatric difficulties are not of the type that would stop her from working, but they are causing ongoing distress.”
31The applicant began psychotherapy sessions with Promed Rehabilitation Clinic in September 2017, with Nadira Srosh, supervised by Dr. Romeo Vitelli. The sessions focused on providing CBT, therapy and strategies to deal with the pain, depression and other mental health concerns experienced by the applicant. The notes of Ms. Srosh state that the goal is to help her find better coping skills to reduce symptoms of pain, anxiety, and depression. I find that this is a reasonable and necessary treatment goal. The respondent makes some argument that pain management cannot be the only goal for a legitimate treatment plan, whether for physical or psychological pain. I find generally that the applicant was seeking not only pain management, but knowledge in finding suitable coping mechanisms and trauma management to return her wellbeing to where it once was.
32Dr. Vitelli produced a progress report regarding the applicant on April 17, 2017. He found generally that she has a cognitive impairment complicated by depression, anxiety and social withdrawal. Dr. Vitelli recommended pain medication, consultation with a neurologist and long-term continuing supportive therapy, on a weekly basis. 12 more sessions were recommended at that time.
33Dr. Jeffries made a psychiatric addendum report on May 2, 2017. His report reviewed substantial documentation and used the Beck Inventory in finding mild depression and severe anxiety. He concluded that more attention was needed to her anxiety levels and her sleep.
34A psychological rebuttal assessment report was also completed on September 17, 2018 by Promed Rehabilitation Clinic, in response to the findings of Dr. Jeffries’s IE Assessor report of June 14, 2016. Dr. Vitelli states that he agrees that his findings share Dr. Jeffries’s findings that psychological treatment is required. However, he views 10 sessions as not enough. He also agrees that the applicant has an Adjustment Disorder with depression, anxiety and irritability. He opines that the “presence and magnitude of other co-existing psychological conditions needs to be further explored.” He ultimately recommends that further analysis of the applicant’s current mental status is necessary to assess the severity of her symptoms.
35Dr. H. Scher, neuropsychologist, also evaluated the applicant’s psychological functioning on September 24, 2018. He reviews much of the information provided above. His testing revealed a 15/15 on the Itemized Memory Test. The Serial 3 – concentration exercise showed normal results. Beck Depression Inventory – II indicated a moderate level of symptomatology, including sadness, discouragement, decreased enjoyment, sleep disturbance and fatigue. On the more comprehensive MMPI-2 test (567 questions), she showed normal levels of anxiety for a young adult facing life’s challenges, but also moderate to severe levels of anxiety. Her depressive symptoms were mild and showed some signs of someone living with chronic pain. In comparison to others, she is on the Low Average of suffering and functional interference. The WHODAS 2.0 indicated a feeling of fear in being alone and extreme emotional difficulty dealing with strangers as well as a moderate difficulty completing household tasks due to pain. Overall, Dr. Scher concludes that she meets the criteria for Adjustment Disorder with mixed features of depression and anxiety, as well as somatic symptom disorder (chronic pain disorder). Dr. Scher found that she is disabled from work and that she should continue psychotherapy for 4-6 sessions every 2-3 years on average.
IRB – No Substantial Inability to Perform Essential Tasks
36I am to consider sections 5 and 6 of the Schedule, as submitted by both parties, in determining entitlement to Income Replacement Benefits.
37I also accept the respondent’s submission that the test for income replacement benefits requires consideration of the applicant’s employment status at the time of the accident and whether the impairments were caused by the accident, as clarified in Applicant and TD Home and Auto Insurance Company, 2017 CanLII 9813, where Adjudicator Sewrattan found the following test relevant for analytical purposes:
i. Was the applicant employed at the time of the accident?
ii. Did the accident cause the loss of employment?
iii. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?
38Income replacement benefits were initially commenced 7 days following the accident and the respondent ended them on September 5, 2016, a few weeks after the IE Assessors’ report of August 24, 2016.
39The applicant asserted that she suffered a substantial inability to perform the essential tasks of her employment within 104 weeks post-accident. The applicant also submits that she is completely unable to engage in any employment for which she is reasonably suited by education, training and experience for the period beyond 104 weeks post-accident.
40According to the respondent, the medical reports provided as evidence by the applicant do not provide objective medical information to justify the claims. Rather, the reports repeat and relay self-reported subjective information from the applicant that do not show a substantial inability to perform the essential tasks of any job she was employed at, or of a job at which she spent the most time in the year prior to the accident. The respondent submits that any impairments are exaggerated, subjective, or not caused by the accident. The medical professionals canvassed in the Insurer Examinations state that there are no objective medical limitations that would entitle her to pre or post 104-week income replacement benefits.
Stoppage of Caregiver Job Due to the Accident
41I find that the applicant was primarily employed as a caregiver. I also find that the accident caused impairments that led to a work stoppage as of January 25, 2016 as stated in the medical notes of the family doctor, Dr. Sanchez, of February 16, April 30 and August 29, 2016. The applicant was approved for income replacement benefits in the amount of $180.14 per week following the accident, but these were denied on September 5, 2016.
42The main employment of the applicant was principally that of a caregiver and I will assess her claim based on these duties. At the time of the accident, the applicant states she was working as a caregiver to her boyfriend’s aunt’s daughter who has special needs. She would assist a PSW in these tasks. She states that this job involved heavy lifting, carrying, pushing, bending and pulling a wheelchair. The applicant states she would lift the person into the wheelchair and bed and would administer her daily care, exercises and other tasks. She would perform light housekeeping duties as well. She commenced this work in 2013 and worked 4 hours a day, Monday to Friday, each week. I find the caregiver job required mainly assisting with personal hygiene, sanitizing equipment, light lifting, pushing a wheelchair and light housekeeping duties.
43While the applicant maintained other jobs as servers for short intermittent periods, I find these jobs were ended for other reasons besides the accident. This includes her work as a server at [the Retirement Residence] from 2013 to 2015 and at [the Hotel] in [a city in Ontario] from November 2015 for a month and a half.
44The applicant was enrolled at [College] and was in her first year when the accident occurred. She received sick notes to not have to return and did not complete the program at the time. She reported that she planned to return in 2018.
45The applicant applied to other college programs, set to commence in September 2017. She claims she was unable to accept the offers of admission in Early Childhood Education, as she would be physically and psychologically limited in completing the duties of an early childhood educator.
46The applicant also states that she attempted a return to work full-time in December of 2017 for [the warehouse company]. Her duties were to scan boxes to be shipped. She states that due to significant pain, she quit in February 2018.
Insufficient Evidence of Substantial Inability
47I find that the applicant did not initially return to work due to the accident. The notes of Dr. Sanchez make this abundantly clear. However, the respondent points to other causes that later may have caused the applicant to not return to work as a caregiver or to school, such as psychological distress from a fire at her boyfriend’s home. Also, there is a disconnect between the duties that the applicant reports being able to perform for herself, but not at her job as a caregiver. This disconnect is not resolved with any objective proof that she could not continue in her duties with some workplace accommodations or help from the PSW. This leaves the applicant unable to demonstrate that the inability was substantial enough to stop her from performing her essential tasks, such as pushing a wheelchair or performing light housekeeping duties.
48The applicant first points to Dr. Sanchez’s clinical notes and records of February 16, 2016 to show that she is unable to stand for long periods and becomes dizzy when looking at a computer screen for longer than thirty minutes. Dr. Sanchez confirms that the applicant was unable to return to school immediately following the accident. I note that these observations stem from a period during which the applicant was receiving income replacement benefits.
49The respondent asserts that Dr. Sanchez did not adequately assess the applicant objectively. The respondent suggests that the applicant self reported many of the complaints in stating that she cannot return to work or school. The respondent argues this is a theme throughout all of the supporting medical information provided to show a substantial inability to perform pre-accident work duties.
50The IE Assessors’ reports of Drs. Muhlstock, Mehdiratta and Jeffries of August 24, 2016 do indeed show some impairments linked to the accident. However, they find that these impairments do not lead to a substantial inability to perform essential duties.
51Dr. Mehdiratta found that there were no neurological diagnoses aside from concussion and PTS headaches. While there is a note as well of right shoulder and low back pain being a limitation to returning to work, the applicant reported that she has been able to return to completing cooking and cleaning tasks, although less often. There are also reports of her being able to stretch and rest before then continuing with her day.
52Dr. Jeffries’s Psychiatry Assessment of August 24, 2016 shows that the applicant has psychological impairments from the accident. He assessed her as having adjustment disorder with depression and minor degrees of anxiety and irritability, but that these difficulties are not the type that would stop her from working.
53Dr. H. Scher’s report also sheds some additional light into the applicant’s ability to perform her duties. The applicant reported that she did not complete the cosmetic program because the skills taught there can be learned on YouTube and that the program is $7,000.00 a year which is prohibitive. Regarding the Early Childhood Education program at [the College], she did not follow up on her acceptance because she got “nervous”. She also reported doing some baby-sitting for her family and doing stretching and weight training on her days off. Dr. Scher does note that the applicant is trying to figure out what work she could do with her levels of pain and anxiety. He concluded that the applicant is “disabled for work that she is reasonably suited on the basis of education training, and experience”. He recommended vocational assessment and a labour market survey, with related counseling, to assist in returning to work.
54Overall, the applicant reported to IE Assessors Dr. Mehdiratta, Dr. Muhlstock, Dr. Jeffries and Dr. Stacey that she is able to return to housekeeping responsibilities and self-care. The IE Assessors found that she did have limitations caused by the accident, but that they did not cause a substantial inability to perform the duties of her job and reference housekeeping and cleaning as examples.
55I find that the whole of the evidence, including the conclusions of the IE Assessors, is that the applicant experienced some pain and psychological issues, but that these issues were not to the degree that would substantially impair her from completing the essential duties of a caregiver, specifically, caregiving for an individual with the assistance of a PSW. The fact of the matter is that the applicant was able to complete similar duties for herself (housekeeping) and others (baby-sitting), to lift some amounts (i.e. weightlifting) and could, with some rest, get through her days in or around the time of the denial of income replacement benefits by the respondent. While it is concerning that the applicant still has some level of pain, I do not conclude that it can be said to cause a substantial inability to perform those essential duties.
56On a balance of probabilities, I find that there is insufficient evidence to show that, but for the accident, the applicant would not have been able to continue in a caregiving role. The level of impairment simply does not reach a substantial inability to perform the essential duties of a caregiver. While some level of impairment is identified by the clinicians, there is simply too much conflicting information showing a level of ability in the applicant’s own life that would prevent me from finding a substantial inability. The above findings mean that she is not entitled to receive pre-104-week income replacement benefits beyond September 4, 2016 as claimed in this application.
Not a Complete Inability to Work Any Employment
57The applicant cannot be said to have a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. I found above that she has some ability to perform her previous duties. This finding alone bars her from accessing income replacement benefits past 104 weeks from the accident.
58Along with the medical evidence noted above and a lack of evidence showing specific analysis of other jobs, I find that the applicant has not made out a complete inability to perform any job for which the applicant is qualified due to experience, training or education. Post-104-week income replacement benefits are therefore not granted.
59With reference to the above, the applicant has shown some level of impairment at times. However, they do not show a complete inability. The applicant has a grade 12 education and some college courses and acceptances complete. She has on the job training and some experience for caregiving and service jobs. She has been able to complete tasks identical to these types of jobs in her own life, such as lifting, housekeeping, serving her family and other tasks that would be needed.
60Vocational assessments and labour market surveys were not provided. Therefore, it is not possible to bring the analysis further. The applicant did not provide other medical evidence assessing her ability to perform other jobs. While I have considered the examples noted above regarding her other jobs as servers, box handler or jobs linked to her incomplete schooling, there remains insufficient medical information to show that she has a complete inability to engage in tasks related to these positions.
61I accept the respondent’s submission that this report relies too heavily on self-reported limitations and that there is a lack of corroborating medical information to assist the Tribunal in finding for the Applicant.
62I concluded on this basis that the applicant does not suffer a completed inability to engage in any employment for which she is reasonably suited by education, training or experience. Income replacement benefits past 104 weeks from the accident are therefore not awarded.
Interest
63Interest is owing on all benefits that are payable.
ORDER
64The applicant is not entitled to income replacement benefits from the date of denial to 104 weeks post accident. She is not entitled to income replacement benefits beyond 104 weeks following the accident. Regarding medical benefits, the applicant is entitled to each of the treatment plans claimed in the application. Interest is payable on any overdue benefits.
Released: May 27, 2020
___________________________
Matthew M. Létourneau
Adjudicator
