L.M. v. The Co-operators, 2020 CanLII 80288

L.M. vs. The Co-operators, 2020 ONLAT 19-004687/AABS

Citation: L.M. vs. The Co-operators, 2020 ONLAT 19-004687/AABS Released: September 21, 2020 Tribunal File Number: 19-004687/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.M. Applicant

and

The Co-operators Respondent

DECISION

ADJUDICATOR: Sancia Pinto

APPEARANCES:

For the Applicant: Ian Greenway, Counsel

For the Respondent: Daniel Himelfarb, Counsel

Heard by way of written submissions

OVERVIEW

1L.M. was involved in an automobile accident on February 19, 2014 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The applicant applied for medical benefits by submitting three different treatment plans for chiropractic and massage therapy. The respondent denied payment of the benefits following s. 44 assessments finding that further treatment was not reasonable and necessary.

3The applicant disagreed with the respondent's position and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the "Tribunal"). The parties were unable to resolve their dispute at a case conference and the matter proceeded to this written hearing.

ISSUES IN DISPUTE

4The issues to be decided by the Tribunal are:

i. Is the applicant entitled to receive medical and rehabilitation benefits recommended by Whitby Physiotherapy and Rehabilitation, as follows:

a) Massage and chiropractic services in the amount of $3,225.61 as set out in a treatment plan submitted November 20, 2017, and denied by the respondent on November 30, 2017?

b) Massage and chiropractic services in the amount of $3,047.63 as set out in a treatment plan submitted August 20, 2018, and denied by the respondent on August 28, 2018?

c) Massage and chiropractic services in the amount of $3,047.63 as set out in a treatment plan submitted September 26, 2018, and denied by the respondent on October 1, 2018?

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

RESULT

5For the reasons outlined below, I find that L.M. has not met her onus to prove, on a balance of probabilities, the reasonableness or necessity of the treatment plans in dispute. She is not entitled to receive the medical benefits claimed.

6Accordingly, the applicant is not entitled to any interest as there are no overdue payments.

ANALYSIS

i. Are the treatment plans reasonable and necessary?

a) $3,225.61 for massage and chiropractic treatment dated November 20, 2017

b) $3,047.63 for massage and chiropractic treatment dated August 20, 2018

c) $3,047.63 for massage and chiropractic treatment dated September 26, 2018

7Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident.

8Section 15 of the Schedule provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident. In order to receive payment for medical and rehabilitation benefits under s. 15, L.M. must demonstrate on a balance of probabilities that the treatment plans in dispute are reasonable and necessary to treat her specific accident-related impairments.²

9The test requires L.M. to establish that the specific treatments she seeks are reasonable and necessary to achieve the stated goals of the treatment plan and that these treatments will have a pain reductive, restorative or therapeutic impact on her accident related injuries.

10The three OCF-18s in dispute were all submitted by L.M.'s treating chiropractor, Jerome Wong ("Mr. Wong"). The first treatment plan in the amount of $3,225.61 recommend 17 sessions of massage therapy and 17 sessions of chiropractic treatment. The second and third treatment plans are in the amount of $3,047.63 respectively and recommend the same amount of sessions being 16 sessions of massage therapy and 16 sessions of chiropractic treatment.

11All three treatment plans in dispute list pain reduction, increased range of motion, increase in strength, a return to activities of normal living and a return to modified work activities as their stated goals. In addition, the November 2017 and August 2018 treatment plans list a return to usual social and recreational activities as an additional goal to the above.

12In the treatment plans L.M.'s injuries and sequelae are noted as sprain and strain of the lumbar spine, sprain and strain of the cervical spine, sprain and strain of the thoracic spine, sprain and strain of the wrist, sprain and strain of the shoulder joint, rotator cuff capsule, internal derangement of the knee and post-traumatic stress disorder. Since the accident, L.M. began facility-based treatment, which included exercises, physiotherapy, massage therapy and chiropractic treatment.

13The applicant's position is that the treatment plans in dispute are reasonable to treat her accident related injuries. L.M. has submitted various medical records from different treating practitioners to establish her claim and I have highlighted some of the key medical records as follows:

I. The medical records and reports of L.M.'s treating chiropractor, Dr. Wong, and the Whitby Physiotherapy & Rehabilitation Centre file ("Whitby Physiotherapy") including the records of the massage therapist, which note that L.M. sustained multiple site injuries involving her cervical, thoracic and lumbar spine and her left shoulder. The records further note that conservative physiotherapy, exercise therapy, mobilizations, soft tissue therapy, stretches and massage therapy as the appropriate plan of management.³ The records from Whitby Physiotherapy indicate that L.M. was receiving various treatments including but not limited to physiotherapy, massage therapy, chiropractic treatment and engaging in strength training exercises with indication of some improvements in her condition.

II. The report from L.M.'s orthopaedic surgeon, Dr. Chhabra, who notes that L.M. has discomfort in the left shoulder including her neck, blunt injury to her left knee and a bruise on her left arm and shoulder extending across the chest from the subject accident. In addition, he notes that L.M. complained of pain waking her up at night and being present most of the time with increase in the severity of her pain with physical activity. Dr. Chhabra further notes that the ultrasound reveals mild tendinosis of the articular surface of the left supraspinatus and recommended a referral to a physiatrist.⁴

III. The reports from Dr. Doran, chronic pain specialist, assessed L.M.'s injures as whiplash associated disorder type II, cervical strain/sprain, cervical facet injury, lumbar facet pain, myofascial pain syndrome involving the neck, shoulder and lower back with a possible tear of the left supraspinatus, chronic headaches, left knee pain, development of fibromyalgia, possible obstructive sleep apnea, chronic fatigue, rotator cuff and possible labral tear. Dr. Doran's recommendations included L.M. seeing a clinical psychologist for post traumatic stress disorder and depression, pain medication, entering into an exercise program with aqua fit/hydro therapy, continuing with physiotherapy in conjunction with trigger point injections, injection of left shoulder, and further diagnostics of the cervical and lumbar medial branch blocks.⁵

IV. The various reports and medical records from Dr. John, physiatrist, indicating that L.M. had myofascial strain injuries to her neck, shoulder girdle, low back and hip girdle, ongoing myofascial pain, adhesive capsulitis of the left shoulder which had progressed to a sever frozen shoulder, occipital headaches and severe brachial plexus neuropathy affecting the left side based on the electrodiagnostic studies on October 5, 2016.⁶ He prescribed Gabapentin and recommended stretching and exercises, Obus forme supporting roll, a TENS unit for home use in addition to psychological counselling for pain management and PTSD.

V. The report of Dr. Fern, orthopaedic surgeon, which documents L.M.'s impairment to the cervical and thoracolumbar spines with decreased range of motion. Dr. Fern noted that the clinical examination is consistent with some persistent adhesive capsulitis, left shoulder impingement, left shoulder rotator cuff tendinitis and potentially a rotator cuff tear as a result of the subject accident. Dr. Fern made numerous recommendations for treatment as outlined in his report such as over the counter pain medication, trigger point injections, active and passive treatments such as yoga, pilates and aqua therapy etc.⁷

VI. The family doctor records of Dr. Koziar indicate that L.M. complained of sore back, neck, left shoulder, hips and knees, anxiety and depression. Dr. Koziar prescribed Cymbalta, recommended a CBI group and continued psychological treatment with psychologist, Dr. Challis, physiotherapy and an exercise regime.⁸

VII. The report of Ms. Norton, occupational therapist ("OT") who noted L.M.'s limitations and functional barriers in her ability to return to her pre-accident employment given her psychological issues and physical limitations with sitting, neck function, reaching and hand function. Ms. Norton recommended OT intervention to address psychosocial concerns.⁹

VIII. The Functional Abilities Evaluation report of Dr. Goldhawk, chiropractor, notes that L.M. suffers from permanent and significant post-traumatic injuries and has symptoms of chronic pain. Dr. Goldhawk further outlines that L.M. has developed sleep/arousal disorder, depression, anxiety and feelings of isolation.¹⁰

IX. Psychological records and reports of Dr. Pilowsky,¹¹ psychologist, Dr. Challis,¹² psychologist, and Dr. Kwamie,¹³ psychiatrist, note L.M.'s plethora of psychiatric issues including but not limited to: poor concentration, flashbacks, issues with memory, depression, severe anxiety and PTSD. Recommendations for treatment include cognitive behavioural therapy.

14To rebut L.M.'s claim, the respondent relies on the following:

I. The medical report of Dr. Paitich, ("the respondent's orthopaedic surgeon"), who determined that a previous treatment plan for chiropractic treatment that is not in dispute for this hearing was deemed not to be reasonable or necessary based on L.M.'s accident related injuries. The respondent's orthopaedic surgeon in December 2014 opined that L.M. had received sufficient treatment and that he rarely recommends prolonged facility-based treatment as he finds that placing the onus of improvement on the injured individual is beneficial.¹⁴

II. The medical opinion of Dr. Lang ("the respondent's physiatrist"), who after reviewing the disputed November 2017 treatment plan and examining L.M., concluded that four years after the accident, from a physical perspective the treatment plan for passive treatment would not assist L.M. in the recovery of her chronic condition. He recommended active exercise to achieve physical reconditioning, regular aqua aerobics exercise program and education in home-based exercise program to assist in postural strengthening, core strengthening, cardiovascular conditioning and weight loss.¹⁵

III. The medical assessment of Dr. Moddel ("the respondent's neurologist"), assessed L.M. and reviewed the November 2017 treatment plan. He found that L.M. did not have any neurological impairments as a result of the accident and that her neurological examination was normal, aside from her complaint of left lunar numbness, which he found was unrelated to the accident. He further opined that if she presented with brachial plexus neuropathy, then it was not attributed to the accident, but more likely to her pre-existing diabetes, given there were no neurological issues identified until three years post-accident.¹⁶

IV. The report of L.M.'s own treating orthopaedic surgeon, Dr. Chhabra, who was of the opinion that L.M.'s pain was out of proportion to an MRI and ultrasound of her left shoulder, which revealed mild tendinitis and tendinosis.

V. The respondent submits that L.M.'s orthopaedic surgeon, Dr. Fern, made no recommendations for physiotherapy, massage therapy or chiropractic treatment. In addition, Dr. John, L.M.'s physiatrist, made several recommendations for treatment that did not include further physiotherapy, massage therapy or chiropractic treatment. Dr. John recommended that L.M. avoid pressure and traction related to her left elbow and shoulder and he recommended the use of a TENS machine, gentle exercises and topical cream.

15The respondent's submissions further question the strength of L.M.'s overall evidence. The respondent submits that L.M. has not produced an OCF-3 supporting disability beyond 2014 and that her submissions contain no real legal argument. The respondent submits that L.M. has failed to substantiate how the medical evidence that she has submitted for this hearing would justify the above noted treatment plans as being reasonable and necessary as a substantial part of her submissions and medical evidence are focused on her alleged psychological impairments, which are not relevant to the issues in dispute. In addition, the respondent submits that L.M.'s submissions are a summary of medical records with no analysis of the issues in dispute. I note that the above assertions are not contested by L.M.

16Based on the evidence before me, I find that L.M. has failed to meet her onus to prove entitlement to the disputed treatment plan for the following reasons:

I. There are no reports from any health practitioners at Whitby Physiotherapy and Rehabilitation Inc. or L.M.'s chiropractor, Dr. Wong, who prepared the treatment plans in dispute that speak to L.M.'s prognosis, improvement, how the stated goals of these specific treatment plans will be achieved and the requirement for ongoing facility-based treatment three years post accident. The medical reports submitted by L.M. from Dr. Wong predate all three treatment plans as those reports were authored in February 2014 and June 2015.

II. L.M.'s family doctor report of October 2019 and limited records submitted for this hearing fall short of supporting entitlement to the disputed treatment plans as she fails to address the reasonableness and necessity of the disputed treatment plans. The October 2019 report recommends physiotherapy, chiropractic and massage therapy but does not specify on the duration or number of recommended treatments. In addition, L.M.'s family doctor notes in her report that she did not have the opportunity to assess L.M. herself and that her opinion on treatment being reasonable and necessary is based on the report of L.M.'s physiatrist, Dr. John, and orthopaedic surgeon, Dr. Chhabra. L.M.'s family doctor report submitted for this hearing does not indicate what benefit or improvement, if any, that L.M. was receiving from attending massage and chiropractic treatment. L.M. has not submitted the clinical notes and records of her family doctor and I do not have the benefit of reviewing this file to support the need for ongoing facility-based physical rehabilitation for the period of the proposed treatment plans.

III. L.M's chronic pain specialist, Dr. Doran, recommended physiotherapy in his May 2016 report with no mention of massage or chiropractic treatment. In addition, it is not clear if L.M. followed any of the other recommendations for pain management recommend by Dr. Doran such as trigger point injections or medial branch block injections. In Dr. Doran's August 2016 report he recommends that L.M. continue with her physical therapy and massage therapy for now but he does not provide any direction on the duration, length or number of sessions that would be appropriate to assist in L.M.'s recovery or functionality. I find these reports outdated as they were completed beyond a year before all the treatment plans that she is seeking in this hearing. L.M. has not submitted any updated reports from Dr. Doran to support the reasonableness or necessity of the treatment plans in dispute.

IV. While the report of Ms. Norton, occupational therapist ("OT"), from May 2017 details L.M.'s limitations and functional barriers in her ability to return to her pre-accident employment given her psychological issues and physical limitations with sitting, neck function, reaching and hand function, I find this report to be outdated as it is authored more than 6 months before the first treatment plan was submitted. In addition, Ms. Norton recommend OT intervention to address psychosocial concerns and there is no recommendation for further facility-based treatment.

V. Similarly, I find the reports of L.M.'s psychologist Dr. Pilowsky and Dr. Challis and psychiatrist Dr. Kwamie not compelling or helpful in determining how the specific treatments plans in dispute for physical treatment are reasonable and necessary to assist L.M. with her accident related impairments. I have given these reports limited weight as they do not provide any analysis of the issues in dispute or how these reports are relevant in supporting L.M.'s position that the treatment plans she is seeking are reasonable and necessary.

VI. I further agree with the respondent that L.M.'s orthopaedic surgeon, Dr. Fern, did make several recommendations including but not limited to cortisone injections, nerve block, active and passive treatments such as yoga, pilates and aqua therapy. Dr. Fern did not specifically recommend any chiropractic and massage therapy in his report to assist L.M. with her accident related injuries. I find this report is not persuasive and does not assist L.M. in meeting her onus in proving why these specific treatment plans for massage and chiropractic treatment are reasonable and necessary. I further find that the 2015 report from L.M.'s first orthopaedic surgeon, Dr. Chhabra, details that L.M.'s pain is out of proportion to the MRI and ultrasound finding and clearly fails to support L.M.'s entitlement to the disputed treatment plans. Dr. Chhabra's report is not only outdated by several years prior to the submitted treatment plans, but his only recommendation was a referral to a physiatrist with no mention or support for further facility-based treatment.¹⁷

VII. In addition, there are no reports from any health practitioners at Whitby Physiotherapy and Rehabilitation Inc. or the applicant's chiropractor who prepared the treatment plan in dispute that speak to the reasonableness and necessity of the specific treatment sought in each treatment plan. The medical reports submitted by L.M. from Dr. Wong predate all three treatment plans as those reports were authored in February 2014 and June 2015. Furthermore, the functional abilities evaluation completed by chiropractor, Dr. Goldhawk, in March 2019, provides detailed diagnosis, functional limitations and concluding that the injuries are related to the accident but includes no recommendation for any facility-based treatment to support the current treatment plans in dispute. In addition, from my review of the report, it is unclear what medical records or which disputed treatment plans if any, were provided to her for review and consideration prior to her assessment of L.M. Lastly, there is no discussion of the treatment plans in Dr. Goldhawk's report or L.M.'s submissions that links the medical evidence to justify further chiropractic or massage therapy treatment.

VIII. I put minimal weight on the November 2019 report of Dr. John, physiatrist, that was authored over a year after the submission of all three treatment plans. In that report, Dr. John concludes that massage, physiotherapy and chiropractic treatment was reasonable and necessary. Dr. John did not have the benefit of reviewing L.M.'s medical records, more specifically the rehabilitation file or the disputed treatment plans before rendering his opinion. I accord L.M.'s physiatrist medical records relatively light weight in determining this issue because it does not help me assess the specific treatments outlined in the disputed treatment plans. Dr. John's progress reports authored in October 2017, April 2018 and October 2018 do not recommend any facility-based treatment or the disputed treatment plans. In fact, the recommendation around those time periods were topical creams, TENS machine, mobilization and gentle exercises. In addition, Dr. John's November 2019 report recommending massage, physiotherapy and chiropractic treatment does not specify the duration, length of treatment and whether the stated goals can be reasonably achieved based on the proposed treatments in each treatment plan. L.M. further did not point to any persuasive entries within Dr. John's reports and/or records to support the need for ongoing facility-based physical rehabilitation for the period of the proposed treatment plans.

IX. I prefer the reports of the respondent's orthopaedic surgeon and neurologist who had the benefit of assessing L.M. in February 2018, reviewing L.M.'s medical records and the 2017 treatment plan. I note that these assessors did not have the two 2018 treatment plans before them as these were submitted approximately 6 months after the assessments were completed and the denial of the first treatment plan. The treatment proposed in the two 2018 treatment plans including the listed goals as noted above is essentially identical to the 2017 treatment plan and I find that the treatment suggested by the respondent assessors and the medical evidence submitted by L.M. do not support the disputed treatment plans. The respondent's assessors similar to L.M.'s physiatrist recommended exercises and strengthening. I further agree with the respondent's orthopaedic surgeon that facility-based treatment recommended in the said treatment plans would not play a productive role in L.M.'s recovery from her chronic condition based on the medical evidence before me from L.M.'s own treating practitioners.

17I find that L.M.'s submissions are not well reasoned and provide limited analysis of the treatment plan itself including linking the medical evidence submitted to demonstrate and support the reasonableness and necessity of L.M.'s entitlement to these treatments. L.M. has the burden of proving that the benefits in dispute are needed for her specific accident related impairments. While pain relief is a legitimate rehabilitative goal, where there is no discussion of necessity, frequency, duration or cost for further facility-based treatment, I find no reason to disagree with the respondent's determination and find that L.M. has failed to meet her onus to prove that the treatment is reasonable and necessary.

18The applicant has failed to show how these specific treatments as outlined in the respective treatment plans were reasonable or necessary to treat the injuries and symptoms she was experiencing as a result of this accident around the time of the proposed treatment plans.

19It has been three years since the accident and the date of the first disputed treatment plan of November 2017. The medical records submitted by the applicant including from her family doctor, physiatrist, orthopaedic surgeon, pain specialist and her other practitioners show very limited improvement in her recovery from her injuries. The records from the applicant's rehabilitation clinic including the details noted in part 9 of the disputed treatment plan indicate that the facility-based treatment provided to date has shown limited improvement in her condition at best.

20The onus is on the applicant to prove on a balance of probabilities that she is entitled to the benefits claimed. I find that the applicant has not met her onus in showing how the treatment plan in dispute is reasonable and necessary based on the medical evidence before me.

CONCLUSION

21I find that L.M. is not entitled to the treatment plans in dispute as she has not demonstrated based on the medical evidence before me that they are reasonable and necessary. As no benefits are overdue, it follows that no interest is payable pursuant to s. 51. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Reports of Dr. Wong dated February 26, 2014 and June 16, 2015; Whitby Physiotherapy & Rehabilitation Centre file dated June 24, 2019.
4. 4Report of Dr. Chhabra dated November 25, 2015.
5. 5Reports of Dr. Doran dated May 11, 2016 and August 9, 2016.
6. 6Reports and medical records of Dr. John dated June 2, 2016; October 5, 2017; November 14, 2016; April 9, 2018 and October 11, 2018, October 25, 2018, April 11, 2019 and November 12, 2019.
7. 7Report of Dr. Fern dated March 20, 2019.
8. 8Dr. Koziar reports and medical records dated May 2, 2017; October 18, 2018 and Oct 31, 2019
9. 9Report of Ms. Norton dated May 10, 2017.
10. 10Report of Dr. Goldhawk dated March 18, 2019.
11. 11Report of Dr. Pilowsky dated August 18, 2017.
12. 12Dr. Challis Report dated January 17, 2019.
13. 13Dr. Kawmie dated December 9, 2017.
14. 14Report of Dr. Paitich dated December 2, 2014.
15. 15Report of Dr. Lang dated February 9, 2018.
16. 16Report of Dr. Moddel dated February 9, 2018.
17. 17Report of Dr. Chhabra dated November 25, 2015.