Released Date: 07/07/2020
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:
J.A.
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Dilpreet S. Grewal, Counsel
HEARD:
By Written Submissions
OVERVIEW
1JA (the “applicant”) was involved in an automobile accident on May 19, 2016. Since he did not have insurance, he applied for accident benefits to the Motor Vehicle Accident Claims Fund (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 20101 (the “Schedule”). The respondent provides payment of benefits to injured people who do not have automobile insurance.
2The respondent denied the applicant’s entitlement to a medical benefit and the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve this dispute at a case conference and the matter proceeded to this written hearing.
ISSUES
3I have been asked to decide the following issues:
i. Is the applicant entitled to a medical benefit in the amount of $2,926.83 for physiotherapy recommended by New Wave Health Centre Inc. (“New Wave”) in a treatment plan (OCF-18) submitted on September 19, 2017 and denied on September 29, 2017?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After reviewing the parties’ submissions and all the evidence I find as follows:
i. The applicant is entitled to the disputed treatment plan. Interest is payable pursuant to the Schedule.
BACKGROUND
5On May 19, 2016, the applicant was a pedestrian who was hit by a vehicle which ran a stop sign. He maintains that the car ran over his right foot and the bumper hit his right knee resulting in him falling to the ground. The third-party vehicle did not remain at the scene. Police and ambulance were called, and the applicant was transported to the hospital and discharged the same day. He attended his family doctor’s office shortly following the accident and diagnostic imaging revealed that he sustained a slight displaced proximal fibula fracture of the right knee. The applicant also submits that he sustained impairments to his back, shoulders and neck. He started attending the New Wave clinic for physiotherapy, acupuncture and massage two to three times a week.
ANALYSIS
6The applicant is entitled to the treatment plan for physiotherapy recommended by New Wave in the amount of $2,926.83.
7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
8The applicant argues that the treatment plan in dispute is reasonable and necessary as he suffers from chronic pain and the treatment, he has received to date has improved his symptoms and function.
9The respondent argues that the accident did not cause the impairments to the applicant’s back, shoulders and neck. These issues predated the accident. Moreover, the treatment plan is not reasonable and necessary because the applicant’s right knee fracture has healed, and he has reached maximum medical improvement from facility-based treatment. For the following reasons I agree with the applicant.
10First, I find the clinical notes and records (“CNRs”) of Dr. Nabir, the applicant’s family doctor, support that the applicant’s right knee fracture had not healed as of the date that the treatment plan was submitted. Between August 24, 2017 and January 29, 2019, the applicant attended Dr. Nabir’s office ten times complaining of right knee pain. The accident is cited as being the cause of this impairment throughout these records. The respondent suggested that the reason for the applicant’s frequent visits to his doctor’s office was to get refills of Percocet due to his history of opioid addiction, not because of his knee injury. While I am sure the accident did not help the applicant’s issues with drug dependency, I do not accept this explanation as the applicant sustained an objective impairment as a result of the accident which is supported by diagnostic imaging. In addition, I find that the applicant consistently reported his knee, neck, shoulder and back pain to all assessors, and they were not filling prescriptions.
11Furthermore, Dr. Nabir supports the applicant’s need for ongoing physiotherapy. The respondent maintains that Dr. Nabir’s CNR dated October 25, 2017 supports its position that the treatment plan is not reasonable and necessary because the applicant reported that physiotherapy was not so effective. A closer review of this CNR reveals that Dr. Nabir still recommended that the applicant continue with rehabilitation and requested that the clinic send the doctor a note regarding his progress. In addition, Dr. Nabir continues to support the applicant’s need for physiotherapy on his last visit on January 29, 2019. As a result, I accept the opinion of the applicant’s treating practitioner.
12Second, I find the services proposed by the treatment plan will meet its objectives. The plan notes that the applicant has the following activity limitations: difficulty with prolonged standing, walking and sitting. The medical records support that the applicant used a cane at times for ambulation and walked with a limp. The respondent maintains that the applicant does not need the cane because Dr. Nabir made an observation that applicant could bear weight on his right leg. However, the applicant maintains that he uses the cane for balance because of weakness in his legs. I do not give this one entry much weight as the applicant’s difficulty with ambulation is consistently reported in the medical records and reports. The goal of the treatment plan is to reduce pain, increase strength and improve pain free functional ability and endurance. Based on the progress reports of New Wave, I find that the applicant has benefited from past physical treatment since the date of the accident. While his level of progress varied at times, there are improvements noted in his range of motion (“ROM”) as well as to his shoulder and low back. Therefore, I find that the treatment plan will meet its goals. Neither party made submissions regarding the cost of the treatment plan. Consequently, I do not find the amount excessive.
13Much was made by the respondent about the applicant’s pre-accident medical condition and it argued that the accident did not cause the applicant’s shoulder or back injury. It submitted the decoded OHIP summary from three years pre-accident to date which reflects that the applicant made regular visits to clinics about leg/musculoskeletal pain. However, the OHIP summary did not specify whether it was the left or right leg and no reference is made to the knee. The respondent argued that I should draw a negative inference by the fact that the applicant did not submit the pre-accident CNRs of his family doctor. I do not, as I find that the accident caused the applicant’s knee fracture. Angela Delfa, the chiropractor who authored the treatment plan stated that the applicant had a pre-existing neck and back injury from five years prior which would complicate and delay the applicant’s recovery. Therefore, I do not find the applicant was trying to conceal his pre-accident history.
14The respondent relied on the insurer examination (“IE”) of Dr. Safir, orthopaedic surgeon, who determined that the applicant’s right knee fracture had fully healed, and he would not benefit from further facility-based treatment. I accept the treatment recommendations of Dr. Nabir and New Wave over Dr. Safir, as I find that the applicant has consistently reported his knee pain to all assessors and these complaints are based on an objective impairment which has resulted in functional limitation. Further, his family doctor and service provider support further treatment. Finally, I did not find Dr. Safir’s assessment neutral as the doctor concludes that the applicant does not require any further treatment whether passive or active, no further clinical assessments are required, nor does the applicant require medical cannabis. I did not find this language neutral as Dr. Safir was not asked to comment on whether future assessments or medical cannabis are reasonable and necessary. For these reasons, I give the doctor’s assessment less weight.
15The applicant has met his onus on a balance of probabilities in proving that the treatment plan for physiotherapy is reasonable and necessary.
ORDER
16For all the above reasons, I order as follows:
i. The applicant is entitled to the disputed treatment plan and interest pursuant to the Schedule.
Released: July 7, 2020
__________________________
Rebecca Hines
Adjudicator