Released Date: 08/07/2020
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:
I. K.
Applicant
And
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Bahman Azimi, Counsel
For the Respondent:
Catherine H. Zingg, Counsel
Heard by way of written submissions
OVERVIEW
1I. K., (the “applicant”) was involved in an automobile accident on December 24, 2014 and sought benefits from Certas Direct Insurance Company (the “respondent”) 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 Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference; however, they were unable to resolve the issues in dispute. 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 $2,902.55 for physiotherapy treatment recommended by Health Max, in a treatment plan (OCF-18) submitted on May 3, 2017, and denied on August 3, 2017?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4After reviewing the parties’ submissions and all the evidence I find as follows:
i. The applicant is not entitled to the disputed treatment plan, interest or an award.
BACKGROUND
5On December 24, 2014, the applicant was traveling through a green light when a vehicle made a left turn in front of his, resulting in his vehicle t-boning the other car. He did not have any initial pain symptoms, however, he later developed pain in his right shoulder, head, chest and back.
6The applicant’s pre-accident medical history was significant for hypertension, headaches and back and neck pain.
7Following the accident, the applicant’s primary concern was pain in his right shoulder. He was later diagnosed with a partial tear in his right shoulder (frozen shoulder). The applicant was off work in his position as a car jockey at an [The airport] for a period of four months and maintains that he returned to work out of financial necessity.
8The applicant attended Mackenzie Medical Centre for physical therapy until January 2016 and switched to 101 Physiotherapy. The applicant attended 101 Physiotherapy for approximately four months. It is not known why he stopped attending.
ANALYSIS
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,902.55 for physiotherapy treatment recommended by Health Max, in a treatment plan (OCF-18) submitted on May 3, 2017, and denied on August 3, 2017?
9The applicant is not entitled to the disputed treatment plan for the following reasons.
10Sections 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.
11The applicant argues that the disputed treatment plan is reasonable and necessary because the accident aggravated his pre-existing neck and back pain and he requires additional physical treatment because he has not returned to his pre-accident activities of daily living. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Methiwalla and Dr. Larson, family doctors, and a few notes from Health Max. The applicant also relied on the psychological report of Dr. Reimann dated August 28, 2015 and the chronic pain assessment of Dr. Robertus dated May 3, 2016.
12The respondent maintains that the treatment plan is not reasonable and necessary as the applicant’s complaints which form the basis of the submission of this treatment plan were not caused by the accident. Instead, it submits it was the applicant’s diagnosis of cancer and resulting symptoms which led to the submission of this treatment plan. The respondent relies on the insurer examinations (“IEs”) of Dr. Stacey, physiatrist dated August 3, 2016 and Dr. Lang, physiatrist, dated July 24, 2017 as well as an operative note from [The Hospital] dated May 13, 2017. For the following reasons, I agree with the respondent and do not find the treatment plan for physiotherapy reasonable and necessary.
13The treatment plan dated May 3, 2017 authored by Mary Jane Calzado, physiotherapist, listed the following accident related impairments: follow-up exam after surgery for malignant neoplasm, spinal stenosis, sprain and strain of the lumbar spine, spondylosis, chronic post-traumatic headaches, sleep disorders with radiculopathy and myelopathy. Under activity limitations it states that the applicant was having difficulties with activities of daily living due to chronic injuries and current medical condition. The goal of the treatment plan is to reduce pain, increase strength and range of motion (“ROM”) and return the applicant to activities of daily living. Ms. Calzado recommends 20 sessions of physiotherapy over seven weeks and 6 sessions of chiropractic treatment and a cervical pillow, lumbar support and hot cold pack for a total cost of $2,902.55.
14I find the respondent’s argument regarding causation in relation to this treatment plan valid. The respondent submitted the Divisional Court decision in Sabadash v. State Farm et al1 which establishes the test an insured must meet to prove that an accident caused their impairment. The applicant must prove that “but for” the accident in December 2014 he would not suffer the impairments which cause the complaints he puts forward as the basis for the disputed treatment plan. As a starting point, I agree with the respondent that the impairments listed under part 6 of the treatment plan are not accident-related. While I accept that the applicant sustained an impairment as a result of the accident, I am not persuaded that his issues relating to severe back, leg and groin pain which arose in 2016 and 2017 are accident related.
15In the year following the accident, the applicant’s only accident related complaints to his family doctor related to the injury to his right shoulder. In the summer of 2016, the applicant started complaining about severe groin and right leg pain which caused functional limitations. Dr. Methiwalla’s CNRs do not mention the accident as being the cause of these complaints.
16In January 2017, the applicant switched family doctors and started seeing Dr. Larson and began complaining about significant back pain. Dr. Larson does not reference the accident in the CNRs. Unfortunately, MRIs of the applicant’s spine completed on April 24 and May 4, 2017 revealed that the applicant had severe spinal stenosis as a result of a cancer diagnosis. In my view, the CNRs of Dr. Methiwalla and Dr. Larson do not support that the applicant’s complaints of back, leg and groin pain in 2016 and 2017 are accident related. I find that the applicant’s complaints during this time period are related to his cancer diagnosis. Further, I find that the applicant’s functional limitations also coincided with his cancer diagnosis as he took a medical leave from work on March 14, 2017.
17The respondent submitted an operative note of Dr. Mainprize, neurosurgeon of [The Hospital], dated May 13, 2017, which confirms that the applicant underwent a bilateral decompression laminectomy and tumor resection of the spine to address cancer. Dr. Mainprize notes that following surgery the applicant’s back pain was relieved, and he no longer required a cane for ambulation. There are a few entries in Dr. Larson’s CNRs following the applicant’s surgery which note back pain, however, the accident is not mentioned at all.
18The applicant relied on the chronic pain assessment of Dr. Robertus dated May 31, 2016. The applicant reported that he had developed pain in the head, neck, back, right shoulder and chest following the accident. Significantly, as of the date of this assessment the applicant reported that he did not have any residual back pain and no complaints were made about any accident-related groin or right leg pain. Dr. Robertus diagnosed the applicant with chronic pain and recommended a chronic pain program which included massage and physiotherapy. I agree with the respondent that this assessment predates the submission of the treatment plan in dispute by one year. What I found lacking from the applicant’s evidence was a recommendation from either his family doctor or medical expert (with knowledge of his cancer diagnosis and surgery) supporting the applicant’s need for physiotherapy as a result of the accident.
19The applicant submitted a few notes from Health Max dated May 3, 2017 which indicate that the applicant suffered from pain in his lower back that shoots to his knees and that the applicant required a cane to assist with mobility. In my view Ms. Calzado’s notes are not consistent with the applicant’s medical history. In her May 20, 2017 note, she indicates that the applicant underwent surgery on April 12, 2017, that his pain is reduced, and that he is walking better. However, as highlighted above, the applicant underwent surgery on May 13, 2017--a week prior to this note. In my opinion, there is no link in the notes of Health Max which support that the accident caused the applicant’s complaints used to justify the disputed treatment plan. Further, the applicant did not provide an explanation for the gap in his need for physical treatment between 2016 when he stopped treatment at 101 Physiotherapy and the random submission of this treatment plan by this clinic.
20By contrast, the respondent submitted the IE report of Dr. Lang dated July 24, 2017. After reviewing all of the medical documentation and completing a physical examination, Dr. Lang opined that the applicant’s accident related soft-tissue impairments had healed and that the impairments put forward as the basis for the disputed treatment plan are not accident related. I accept Dr. Lang’s opinion as the doctor had all of the updated CNRs regarding the applicant’s cancer diagnosis. I also agree with Dr. Lang that the timing in which the treatment plan was submitted was not appropriate as the applicant had recently been diagnosed with cancer, a serious medical condition, and had undergone surgery a few weeks after the treatment plan was submitted.
21For all of the above reasons, the applicant has not met his onus on a balance of probabilities in proving that the treatment plan for physiotherapy is reasonable and necessary as a result of the accident.
ii. Is the applicant entitled to interest on any overdue payment of benefits?
22Section 51(1) of the Schedule provides that interest is payable on overdue payment of benefits.
23Since I have determined that the treatment plan in dispute is not reasonable or necessary, I do not find the applicant is entitled to interest.
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
24The respondent is not liable to pay an award as I do not find that it unreasonably withheld or delayed payment of the benefit.
25Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states that, if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.
26The applicant argues that an award is appropriate as, despite having adequate medical documents to support the need for ongoing treatment, the respondent maintained its denial. Considering my decision that the treatment plan is not reasonable and necessary, the respondent is not liable to pay an award as I do not find that it unreasonably withheld or delayed payment of the benefit.
ORDER
27For all of the above reasons, I find:
i. The applicant is not entitled to the disputed treatment plan, interest or an award.
ii. The application is dismissed.
Released: August 7, 2020
__________________________
Rebecca Hines
Adjudicator
Footnotes
- Sabadash v. State Farm et al., 2019 ONSC 1121.