Citation: J.D. v. Wawanesa Mutual Insurance Company, 2020 ONLAT 19-002318/AABS

Released Date: 07/10/2020

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. D.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Jory Garibaldi, Counsel

For the Respondent:

Paul C. Sykes, Counsel

Heard be way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant J. D. (“applicant”), was involved in an automobile accident on October 13, 2016 (“accident”). The applicant was 58 years old at the time of the accident. The applicant did not seek medical attention on the day of the accident, but, on October 19, 2016, she went to [the Hospital] for head and neck injury from the accident and was diagnosed with concussion, whiplash and query PTSD.

2The applicant sought benefits from the respondent Wawanesa Mutual Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The respondent submits that the applicant is not entitled to the assistive devices and disputed treatment plans because they are not reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

ISSUES

4The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $1,722.83 for assistive devices (tub with massaging jets) recommended by Jonathan Jenney in a treatment plan (OCF-18) submitted on February 24, 2017, and denied on February 27, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $610.99 for assistive devices (lightweight vacuum cleaner) recommended by Kristen Wood in a treatment plan (OCF-18) submitted on April 16, 2017, and denied on May 2, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $2,085.00 for physiotherapy and orthotic devices recommended by Jonathan Jenney in a treatment plan (OCF-18) submitted on May 11, 2017, and denied on May 26, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $1,030.00 for massage therapy recommended by Christina Scott in a treatment plan (OCF-18) submitted on June 19, 2018, and denied on June 19, 2018?

v. Is the applicant entitled to a medical benefit in the amount of $3,400.00 for BrainEx Group Therapy recommended by Katie Gosner in a treatment plan (OCF-18) submitted on August 28, 2018, and denied on September 6, 2018?

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

RESULT

5The applicant is not entitled to the treatment plans as the applicant has failed to prove that they are reasonable and necessary for injuries directly attributable to the accident. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

LAW

6Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

Are the Disputed Treatment Plans Reasonable and Necessary?

Bathtub with Massaging Jets

7The applicant submits that the treatment plan of Jonathan Jenney, the applicant’s physiotherapist, is reasonable and necessary as the bathtub with massaging jets she purchased after the respondent’s denial of the treatment plan provides her with pain relief not provided by a regular bathtub.

8The respondent submits that it’s assessor Dr. Rajgopal, orthopaedic surgeon, opined that there is no evidence that a bathtub with massaging jets provides greater pain relief than a regular bathtub and the applicant has not refuted this.

9I find that the applicant is not entitled to the payment of $1,722.83 for a bathtub with massaging jets because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. The applicant’s submission that the bathtub with massaging jets provides her with pain relief not provided by a regular bathtub is subjective. I prefer the more objective medical evidence of Dr. Rajgopal that a bathtub with massaging jets provides no greater relief than a regular bathtub. I also note that, according to the invoices submitted by the applicant, the applicant appears to have had the bathtub with massaging jets installed on February 11, 2017, before this treatment plan was submitted to the respondent. This expenditure requested by the applicant is not reasonable and necessary.

Lightweight Vacuum Cleaner

10The applicant submits that the treatment plan of Kristen Wood, the applicant’s occupational therapist, is reasonable and necessary as a lightweight vacuum cleaner would assist the applicant in returning to her activities of normal living. The respondent has already recognized this by partially approving $180.00 for a lightweight vacuum cleaner, but the $180.00 vacuum cleaner is not as mobile or user friendly as the one recommended by Ms. Wood. As a result, the applicant has had to purchase another one.

11The respondent disputes the balance of $610.99 for the light weight vacuum cleaner based on the opinion of its assessor Jackie Auger, occupational therapist. Ms. Auger concluded that a lightweight vacuum cleaner was required but that the cost of $790.99 is excessive as lightweight vacuum cleaners can be purchased from Canadian Tire or Walmart for approximately $180.00. The respondent also submits that the applicant did not identify a specific vacuum and told Ms. Auger that she enjoys using the $180.00 vacuum as it is so light it does not result in back pain.

12I find that the applicant is not entitled to the payment of $610.99 for a lightweight vacuum cleaner because the applicant has not provided sufficient evidence to demonstrate that the cost of the vacuum cleaner is reasonable and necessary. Ms. Wood did recommend a specific type of lightweight vacuum cleaner. I accept the evidence of respondent’s assessor Ms. Auger that a lightweight vacuum cleaner can be purchased locally for the $180.00 already approved. The cost suggested by the applicant is not reasonable and necessary.

Physiotherapy and Orthotic Devices

13The applicant concedes in her submissions that she is no longer disputing the denial of orthotics and associated cost of $420.00. With respect to physiotherapy, the applicant submits that the treatment plan of Jonathan Jenney, the applicant’s physiotherapist, for $1,596.00 is reasonable and necessary to assist the applicant in returning to her pre-accident status or to assist her until she plateaus in her recovery. The applicant also submits that the respondent’s assessor, Dr. Rajgopal, report of June 8, 2017 makes no mention that the applicant’s treating physiotherapist opines that the applicant is still improving, had not yet plateaued and that physiotherapy is warranted until that occurred. In reply, the applicant submits that Mr. Jenney’s notes show the applicant experienced improvement.

14The respondent relies upon the opinion of Dr. Rajgopal, orthopaedic surgeon, that further physiotherapy is not reasonable or necessary because the applicant has already had more than 40 physiotherapy sessions and has been provided ample time and education to overcome barriers associated her pre-existing fibromyalgia and chronic pain and to transition into a home-based program.

15I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. Jonathan Jenney’s recommendation of further physiotherapy is not supported by any medical opinion. Dr. Rowley, the applicant’s family physician, recommended physiotherapy on October 27, 2016 which the applicant received. Dr. Rowley does not recommend further physiotherapy as requested in this treatment plan.

16In his June 8, 2017 report, Dr. Rajgopal reviewed this treatment plan submitted May 11, 2017 by Jonathan Jenney. Dr. Rajgopal also assessed the applicant in person in December 2016 and did two previous paper review reports in March 2017 and May 2017. Based on this, I find that Dr. Rajgopal is aware of Mr. Jenney’s view of the applicant’s condition, contrary to the suggestions of the applicant. Also, Dr. Rajgopal was familiar with Mr. Jenney’s treatment of the applicant as he had previously found 24 physiotherapy sessions with Mr. Jenney to be reasonable and necessary in a treatment plan dated November 17, 2016, not in dispute here. Because of his medical expertise and his familiarity with the applicant’s medical condition, I prefer the medical evidence of Dr. Rajgopal over that of Mr. Jenney, who was the applicant’s physiotherapist prior to the accident but is not a physician. Dr. Rajgopal opined that this treatment plan is unreasonable and unnecessary given that the applicant had more than 40 physiotherapy sessions and has been provided ample time and education to overcome barriers associated her pre-existing fibromyalgia and chronic pain and to transition into a home-based program.

Massage Therapy

17The applicant submits that the treatment plan of Jonathan Jenney dated June 2018 for the services of Christina Scott, the applicant’s registered massage therapist, is reasonable and necessary. According to the applicant, massage therapy helps alleviate her back and neck pain, headaches, pressure in her head and assists with her range of motion in her back and neck.

18The respondent submits that it’s assessor Dr. Sekyi-Otu, orthopaedic surgeon, opined that no further treatment or investigations were required given the nature of the applicant’s soft-tissue injuries. Dr. Sekyi-Otu diagnosed exacerbation of pre-existing low back pain and uncomplicated myofascial strains to the cervical and lumbar spines and to the shoulder girdles with no objective signs of rotator cuff or biceps teninopathy and no objective signs of pathology from a musculoskeletal perspective that would account for the applicant’s reported limitations and disability. The respondent submits that it’s assessor Dr. John Heitzner, physiatrist, also opined that no further facility-based physical treatment is required. Further, the respondent submits that the applicant’s pre-existing pain was not being managed as shown by her many pre-accident attendances at the [second Hospital] for pain and the fact that she was not working at the time of the accident. Therefore, the applicant has received maximum medical recovery for her accident-related injuries. The respondent also argues that there is no evidence that the proposed treatment would achieve the goal of pain reduction given that the applicant did not report a reduction in pain to Dr. Heitzner when he assessed her post-treatment.

19I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. It is not enough for the applicant to submit that she received the treatment and finds the treatment helpful in a treatment plan submitted more than one and one half years after the accident. There is insufficient medical evidence to prove that the massage services are reasonable and necessary to treat injuries the applicant sustained in the accident. This treatment plan is not supported by any medical opinion or recommendation by the applicant’s physicians.

BrainEx Group Therapy

20The applicant submits that the treatment plan of Katie Gosner, the applicant’s physical therapist, is reasonable and necessary to improve the applicant’s vision, vestibular, balance, core stability, cardio and cognition (attentional, memory and planning) and to assist her in returning to the activities of daily living.

21The respondent submits that its assessor Dr. Kertesz, neurologist, opined that institutional physiotherapy and occupational therapy nearly two years after the accident with pre-existing problems is not necessary or reasonable. The respondent also relies on the opinion of its assessor Dr. Tuff, neuropsychologist, that the applicant’s alleged ongoing symptoms are not as a result of post-concussion syndrome but rather arise from her pre-existing somatic problems, there is no accident-related ongoing brain injury/concussion to treat and the proposed treatment is not reasonable or necessary. The respondent further submits that this proposed treatment is not reasonable because the records of BrainEx do not demonstrate that the program has improved the applicant’s alleged complaints.

22I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet her burden of proof that it is reasonable and necessary. Pre-accident, Dr. Rowley referred the applicant to Dr. Shirkool, neurologist, who in his July 13, 2015 report to Dr. Rowley diagnosed frequent migraines with possible aura complicated due to fibromyalgia and chronic fatigue syndrome. Dr. Shirkool recorded that the applicant said she had migraines since age 20, associated with nausea, sometimes vomiting, photophobia, phonophobia, slurred speech, blurry vision and dizziness and may last for up to three days. Dr. Shirkool has not opined on whether this treatment plan is reasonable and necessary.

23Holly Castro, physiotherapist, informed Dr. Rowley by letter dated August 27, 2018 that during the applicant’s initial assessment for the BrainEx 90 program at [second Hospital] on August 7, 2018, she was observed to have deficits in her balance and gait, dizziness, nausea and fogginess, and less than normal results on a MOCA test. There was a delay because of funding issues and [the second Hospital’s] concern she was not an appropriate candidate for their program. After denial of this treatment plan by the respondent, Dr. Rowley was asked to make a new referral to the [second hospital’s] BrainEx 90 group program which he did on February 25, 2019.

24Although Dr. Rowley made the referral to the BrainEx 90 program in July 2018 he did not refer the applicant back to Dr. Shirkool or any other neurological specialist in the approximately one and one half years post-accident. Further, Dr. Rowley’s post-accident notes do not reflect significant urgency or increased concern about her medical condition post-accident. On October 27, 2016, some two weeks after the accident, Dr. Rowley noted that the applicant has “now no nausea, no headache, still very tired”. On November 22, 2016, Dr. Rowley noted that the applicant complains of ongoing issues from the accident, physio says she is physically improving but she complains of pain in her eyes, pressure in her head, worse with screens or reading, poor focus, pain in neck and back, “pain all over”. Dr. Rowley noted “fibromyalgia, MVA pain and concussion sx – ongoing forms for MVA and for long term for her fibro”. On October 17, 2017, one year post-accident, Dr. Rowley notes that the applicant “has feeling with vision going in and out, some dizziness, seen by specialists for MVA incl neuro, vision ok, denies stress has an impact” and notes “await reports from neuro”. On October 23, 2017 Dr. Rowley notes “insurer’s examination, neurological assessment profile” and “received Jan 24, 2018”. On July 17, 2018, Dr. Rowley noted “[the second hospital] now has a concussion therapy - form”. When Dr. Rowley refers the applicant to the BrainEx 90 program at the [second Hospital] July 18, 2018, he gives the date of the accident as the date of brain injury and the cause as “motor vehicle accident”. Dr. Rowley lists memory, attention, concentration, pain and or headaches and perceptual difficulties as presenting difficulties. Dr. Rowley states the rehabilitation goals as “decrease pain, (symbol)…focus”.

25Dr. Esmail, the respondent’s neurologist, assessed the applicant in October 2017 before this treatment plan was proposed, with respect to income replacement benefits. He diagnosed the applicant with head injury, concussion and posttraumatic migraines. Dr. Esmail opined that the applicant had pre-existing migraines that have been aggravated by the accident and recommended medication and Botox injections and concluded the applicant should be able to return to work in six to twelve weeks.

26Dr. Kertesz, neurologist, assessed the applicant in October 2018 at the respondent’s request with respect to this treatment plan. Dr. Kertesz noted that the BrainEx 90 therapeutic circuit promises to improve sensory integration and balance and other post-concussion symptoms. Dr. Kertesz notes that the services proposed are therapy, motor and living skills at a cost of $3,200.00 and documentation at a cost of $200.00. Dr. Kertesz noted that the applicant told him she fell backwards in February 2017 and had another concussion. Dr. Kertesz opined that the applicant may have suffered a minor concussion in the accident, that she has headaches, vague memory and concentration complaints on the background of pre-existing migraine, fibromyalgia, several auto accidents and a concurrent concussion since. Dr. Kertesz found that this treatment plan is not reasonable and necessary from a neurological point of view because it proposes institutional physiotherapy and occupational therapy nearly two years after the accident with pre-existing problems.

27Dr. Tuff, neuropsychologist, assessed the applicant at the respondent’s request with respect to income replacement benefits and produced a report in 2019. During the assessment the applicant told him that she tripped on carpet at home and fell on her shoulder, neck and head but was not really hurt. Dr. Tuff noted that the applicant did not report any emotional or cognitive issues or concerns despite the explicit neuropsychological-psychological nature of the assessment. After administering standardized testing, Dr. Tuff opined that the applicant’s alleged ongoing symptoms are not as a result of post-concussion syndrome but rather arise from her pre-existing somatic problems, there is no accident-related ongoing brain injury/concussion to treat and the proposed treatment is not reasonable or necessary.

28Dr. Keretz and Dr. Tuff have more specialized brain education and experience than Dr. Rowley, Ms. Castro and Ms. Gosner. I prefer their evidence that this treatment plan is not reasonable and necessary over that of Dr. Rowley, Ms. Castro and Ms. Gosner. Further, the applicant’s neurologist, Dr. Shirkool, documented that the applicant had migraines and other medical issues many years prior to the accident with many of the same symptoms she reported after the accident. The weight of the medical evidence indicates that this treatment plan is not reasonable and necessary. The applicant has the burden of bringing forward persuasive medical evidence demonstrating that the goals of this treatment plan are reasonable and necessary as a result of injuries sustained in the accident, that the goals are being met to a reasonable degree and that the overall cost is reasonable and she has not satisfied that burden.

29The applicant relies on Sabadash v. State Farm et al³ for the proposition that the “but for” test for causation does not require a plaintiff to prove that the accident is “the cause” of the impairment, only a “necessary cause”. This case is not helpful here because the weight of the medical evidence is that there is there is no accident-related ongoing brain injury/concussion to treat. As a result, I find this treatment is not reasonable or necessary.

Additional Issue Raised by Applicant

30The applicant has requested costs on the basis that the respondent has not paid an amount the applicant claims the respondent agreed to pay at the case conference relating to a treatment plan not before me. The applicant could have brought a motion prior to the hearing to deal with this but did not do so.

31The treatment plan referred to by the applicant in the cost submission is not before me. The applicant’s request for costs is also not one of the issues before me according to the Tribunal’s Case Conference Order. It is unfair to the respondent and to the Tribunal’s process to attempt to add this issue now without prior notice to the respondent or the agreement of the respondent. I decline to add it as an issue or to decide it.

Interest

32As no benefits are payable, no interest is payable.

ORDER

33For the reasons outlined above, the applicant is not entitled to the treatment plans claimed. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
3. 3Sabadash v. State Farm et. al., 2019 ONSC 1121 (Div. Ct.).