Tribunal File Number: 18-007549/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:
L.T.
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Sharon MacKay, Counsel
For the Respondent: Kristen M. Bailey, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on May 12, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for a physiotherapy treatment plan and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Is the applicant entitled to a medical benefit in the amount of $1,417.48 for physiotherapy treatment recommended by St. Catharines Physiotherapy Centre in a treatment plan dated February 27, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the physiotherapy treatment plan, nor interest.
BACKGROUND
4The applicant was the driver of a vehicle which, while making a left turn, struck another vehicle that had proceeded through a red light. She did not seek medical assistance at the scene of the accident but reported to Dr. A. Kopyto, physician, during an insurer’s examination (“IE”), that later that day she was treated for pain in her neck and shoulder by her chiropractor, Dr. T. Skrinjaric, which continued for approximately 12 weeks. Dr. Skrinjaric’s clinical notes and records (“CNRs”) were not produced for the hearing.
5The applicant visited her family physician, Dr. W. Koslowski, about a week following the accident for reasons unrelated to the accident. There are no accident-related complaints from the applicant recorded in the CNRs for that visit. However, she complained of accident-related neck pain and headaches to Dr. Kowalski in subsequent visits on June 9, 16, and August 4, 2016.
6The applicant was referred by her chiropractor, Dr. Skrinjaric, to physiotherapist C. Mazurkiewicz of Better Balance Physiotherapy on September 15, 2016 for a consultation regarding post-concussion symptoms. Physiotherapist Mazurkiewicz assessed the applicant and in a report dated September 15, 2016, recommended vestibular rehabilitation. There were no shoulder-related issues noted in the consultation report.
7Nearly eleven months following the accident, on April 3, 2017, the applicant complained of shoulder pain to Dr. Koslowski for the first time since the accident. Records from that visit note the applicant reported that her pain started at the end of September and that she started physiotherapy treatment in January but has experienced minimal improvement. Dr. Koslowski’s CNRs do not refer to the May 12, 2016 accident in the April 3, 2017 entry.
8Following the April 3, 2017 visit, Dr. Koslowski referred the applicant to Dr. T. Scriven, orthopaedic surgeon, who assessed the applicant and wrote a report dated June 28, 2017. Dr. Scriven found the applicant suffered from right shoulder pain, arm pain, and numbness. Dr. Scriven made no treatment recommendations but referred the applicant for further imaging and to Dr. M. Lang, neurologist.
9Dr. Lang assessed the applicant and wrote a report dated November 21, 2017. In it, Dr. Lang found the applicant presented with symptoms suggestive of functional thoracic outlet sensory irritation. Dr. Lang suggested the applicant work with her physiotherapist to address the issue and made no further referral or recommendation.
10The applicant started physiotherapy and massage therapy treatment at St. Catharines Physiotherapy Centre (“SCPC”) in early September 2017, less than two months before Dr. Lang’s assessment. The CNRs from SCPC are not before me but statements of account were provided. As a result, I have no information regarding the treatment provided at SCPC, the injuries she sought treatment for, and the results of her treatment. The statements only show the applicant regularly paid for treatment from September 2017 until March 2018.
11As noted above, SCPC submitted the disputed physiotherapy treatment plan. The primary focus of the treatment plan is to address the applicant’s shoulder issues.
12The onus is on the applicant to establish that, on a balance of probabilities, the disputed treatment plan is reasonable and necessary for her accident-related injuries.
CAUSATION
13The applicant submits the evidence demonstrates her shoulder injury is accident-related and that all treating physicians recommend ongoing physiotherapy treatment. She claims entitlement to payment of the disputed treatment plan for these reasons.
14The respondent disagrees and submits the applicant’s right shoulder injury is not as a result of the accident and therefore, the disputed treatment plan submitted to address her shoulder injury is not reasonable and necessary.
15I find the applicant’s shoulder injury is not as a result of the accident for the following reasons.
16Contrary to her submissions, the applicant reported no shoulder issues immediately following the accident. The first treatment plan submitted by the applicant as a result of the accident fails to mention any shoulder-related issues. As previously noted, a visit to her family physician’s office a week following the accident made no mention of the accident. CNRs note the applicant only reported ongoing headache and neck pain to Dr. Koslowski during the next three visits, about a month to two months following the accident. A consultation letter from Better Balance Physiotherapy dated September 15, 2016 mentions no shoulder issues. Her first shoulder-related complaint occurred during an April 3, 2017 visit to Dr. Koslowski. During that visit, the applicant reported that her shoulder pain started in the end of September, when she stopped chiropractic treatment provided by Dr. Skrinjaric.
17The June 28, 2017 report by Dr. Scriven found no history of trauma. Dr. Scriven’s report noted the applicant reported a gradual onset of shoulder pain beginning in October 2016. The report mentions the subject accident caused a concussion/headaches and eventually neck pain and that the applicant’s shoulder pain started afterwards.
18Most importantly, Dr. Lang found the applicant’s shoulder issues were as a result of medical interventions which occurred prior to the accident. Dr. Lang noted the applicant’s medical history is significant for bilateral prophylactic mastectomies for which she did not treat with physiotherapy afterwards. The result of this, according to Dr. Lang, is that the applicant developed a significant contracture through her pectoral region with rounding and squaring of the shoulders. Dr. Lang found the applicant presented with functional thoracic outlet sensory irritation for which she is predisposed to by the contracture through her shoulder girdle and increased muscle tension in her cervical strap muscles.
19While I agree the applicant suffers from a shoulder injury which requires physiotherapy treatment, her medical evidence shows the injury is not as a result of the accident. Therefore, the applicant is not entitled to the disputed physiotherapy treatment plan.
CONCLUSION
20I find the applicant’s shoulder injury is not as a result of the accident and, thus, she is not entitled to the disputed treatment plan. No benefits are payable or overdue. As a result, no interest it payable.
Released: May 22, 2020
___________________________
Brian Norris
Adjudicator