B.A. v. Wawanesa Mutual Insurance Company, 2020 CanLII 80297

19-000565/AABS

Date: August 14, 2020

Tribunal File Number:19-000565/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:

B.A.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Paul DeLuca, Counsel

For the Respondent:

Paul C. Sykes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1B.A. (the “applicant”) was injured in an automobile accident (the “accident”) on September 24, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent, Wawanesa Mutual Insurance Company (“Wawanesa”), refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2A case conference was held on June 3, 2019. The parties were unable to resolve their dispute and have proceeded to a written hearing.

BACKGROUND

3The applicant was a front seat belted passenger in a vehicle which was struck from behind in chain like collision. The emergency room record notes a chief complaint of neck pain. No loss of consciousness was noted. X-rays were taken of the cervical and thoracic spine and no evidence of acute osseous injury was noted.¹ The applicant has a history of Schizophrenia and was involved in a prior motor vehicle accident on October 16, 2012.

ISSUES

4The disputed claims in this hearing as noted within the order are as follows:

i. Is the applicant entitled to a medical benefit in the amount of $2,325.00 for physiotherapy, recreation therapy, and aromatherapy recommended by Spinetec Healthcare Solutions Inc. in a treatment plan (OCF-18) dated June 14, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $3,781.21 for chiropractic treatment, massage, and acupuncture recommended by Spinetec Healthcare Solutions Inc. in a treatment plan (OCF-18) dated June 14, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $5,676.49 for physiotherapy, chiropractic treatment, massage therapy, and acupuncture recommended by Spinetec Healthcare Solutions Inc. in a treatment plan (OCF-18) dated September 7, 2018?

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

RESULT

5Based on the evidence before me, and on a balance of probabilities, I find that:

i. The applicant is not entitled to the medical benefits in dispute.

ii. As no benefits are payable, no interest is found to be owed.

LAW

[6] Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.²

ANALYSIS

[7] The applicant’s position is that his injuries sustained from a prior motor vehicle accident on October 16, 2012 (“2012 accident”) have been exacerbated by the subject accident and have not resolved. The applicant suffers from neck, back, and shoulder pain, bilateral knee pain, and frequent cervogenic headaches. The applicant argues the disputed treatment plans are reasonable and necessary.

[8] Wawanesa’s position is that the treatment plans are not reasonable and necessary because the subject accident did not materially contribute to the applicant’s pre-existing injuries. Wawanesa submits the applicant’s soft tissue injuries from the subject accident have resolved and, as of August 12, 2019, it had paid $25,295.02 in medical and rehabilitation benefits.

OCF-18 in the amount of $2,325.00 for physiotherapy, recreational therapy, and aromatherapy

[9] I do not find the applicant has proven on a balance of probabilities that this OCF-18 is reasonable and necessary for the reasons provided below.

10The OCF-18 in dispute was submitted by Dr. J. Paton, chiropractor at Spinetec Healthcare Solutions (“Spinetec”), and proposed physiotherapy, therapeutic recreation, and aromatherapy to address: cervogenic headaches, sprains and strains of the cervical, thoracic, and lumbar spine, bilateral strain/sprain of the shoulder joint, and rotator cuff capsule irritation. The goals of the OCF-18 were to promote, restore, rehabilitate, and to return to the activities of normal living.

11In support of his position, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Paton³ which included SOAP (subjective, objective, assessment, plan) notes. The SOAP notes referenced that the applicant reported pain in these areas and that he frequently experienced headaches. A physical examination of these areas was performed by Dr. Paton and the applicant’s reported pain ratings were noted. Under the objective section of the SOAP notes, Dr. Paton recorded his objective observations. While Dr. Paton has noted his physical findings, there has been no explanation provided as to how these findings impact the applicant’s functional abilities. Therefore, I am not persuaded that the applicant would benefit from an active program to improve his functional abilities as recommended under the additional comments section on page 9 of the OCF-18.

12I find Dr. Paton’s CNRs, specifically the SOAP notes do not support the treatment recommendations noted within the OCF-18. For example, under part 6 - Injury and Sequelae Information, strains/sprains to the cervical/thoracic/lumbar spine, whiplash associated disorder (WAD2), and headache are noted. With the exception of headache, I find these are soft tissue injuries and the applicant has not produced evidence to support that similar treatment received to date has been beneficial. The OCF-18 notes under additional comments on page 9 that the applicant would comply with a program incorporating enjoyable activities and goals and which formed part of his recreational and leisure activities prior to the accident. However, Dr. Paton has not identified what these previous leisure/recreational activities are. Therefore, I am not persuaded that the proposed recreation therapy would benefit the applicant. The OCF-18 includes a definition and the benefits of aromatherapy. I do not find this component of the OCF-18 is reasonable and necessary as the applicant suffered from headaches and pain in these areas prior to the accident. I do not find Dr. Paton has established that there has been an exacerbation of these impairments 21 months following the subject accident.

13I am persuaded by the insurer’s examination (“IE”) assessment report of Dr. E. Ramlochan, chiropractor,⁴ which found this treatment plan was not reasonable and necessary. I find Dr. Ramlochan’s assessment thorough. He obtained a history from the applicant, reviewed previous OCF-18s for chiropractic treatment received and occupational therapy assessment reports. A physical examination was completed and noted as normal, and no barriers to recovery were identified. He concluded the applicant sustained soft tissue injuries from the subject accident. No signs of accident-related impairment were identified, in keeping with the magnitude and persistence of his reported symptomology and level of dysfunction. Further, it was noted that there was no exacerbation of any pre-existing medical conditions that would interfere with his functional abilities such that further facility based treatment would be required to manage his disability. Dr. Ramlochan concluded the applicant’s injuries would best be managed by resuming all his usual activities and further facility based treatment was not recommended.

14I already accepted that the OCF-18 noted soft tissue injuries under part 6 which aligns with Dr. Ramlochan’s finding. There has been no competing report produced by the applicant which challenges Dr. Ramlochan’s conclusion. The OCF-18 recommending further physiotherapy was submitted to Wawanesa 21 months following the accident. I accept Dr. Ramlochan’s finding that there were no signs of accident related impairment, and no identified barriers to recovery as the physical examination was normal.

15I find Dr. Ramlochan did consider the applicant’s reported pain complaints and reported impairments in reaching his conclusion that there were no pre-existing medical conditions to interfere with his functional abilities. Page 11 of the report notes the applicant reported functional deficiencies related to a disability acquired as a result of the 2012 accident which have persisted and further deteriorated since the subject accident. Dr. Ramlochan notes on pages 12, 13 and 14 of his report that the applicant reported pain in the following areas since the 2012 accident: neck, right shoulder, upper/lower back, and left knee. It is noted on page 12 of the report that the applicant reported to Dr. Ramlochan there has been 0% improvement with his symptoms since the subject accident. I find this information persuasive that further physiotherapy is not reasonable and necessary. Dr. Ramlochan noted the applicant reported the symptoms are present intermittently when weight bearing and that they have reached a plateau and are neither improving or deteriorating. The applicant reported he is unable to complete the following tasks which are completed by his stepfather: laundry, meal preparation, cleaning, and removal of heavy garbage.

16I find the physiatry report which was issued by Dr. A.H. Ghouse⁵ supports that the applicant had neck, back, bilateral shoulder pain, and foot pain from the 2012 accident and experienced functional impairments. For example, Dr. Ghouse noted the applicant reported poor activity tolerance and his back and neck pain were aggravated by bending, lifting, carrying, turning, and reaching overhead. The applicant further reported that he was unable to do any [emphasis mine] of his housekeeping and home maintenance duties. Dr. Ghouse noted it was more than 2.5 years since the 2012 accident and the applicant had not recovered from his injuries. Dr. Ghouse concluded he had reached maximum medical rehabilitation potential and further recovery and restoration of function is not probable.

17Based on the evidence above, I find the applicant’s functional status remained the same, or slightly better following the subject accident as he reported to Dr. Ramlochan that he could only perform light sweeping and garbage duties and he relied on his stepfather to perform the majority of the housekeeping tasks. I find this is an improvement from 2015 when he reported to Dr. Ghouse that he was unable to complete any of his housekeeping tasks. Further, the applicant reported to Dr. Ramlochan that his symptoms were present intermittently when he was weight bearing and that his symptoms have plateaued. I find this evidence supports there has not been an exacerbation of the applicant’s pre-existing pain complaints and functional impairments as a result of the soft tissue injuries he sustained from the subject accident.

18The CNRs from Spinetec Healthcare Solutions (“Spinetec”) support the applicant attended treatment there from June 17, 2015 to September 7, 2018⁶, and note complaints of neck and back pain, bilateral shoulder pain, and cervogenic headaches. The treatment included chiropractic treatment, physiotherapy, massage, and acupuncture. I find the pain complaints noted within these CNRs existed prior to the subject accident as confirmed by the report of Dr. Ghouse. The June 17, 2015 CNR is the only CNR from Spinetec prior to the subject accident. Therefore, I do not find the applicant has demonstrated on a balance of probabilities how the applicant’s injuries from the 2012 accident were exacerbated by the subject accident.

19The OHIP summary only noted two visits to Dr. R. D’Souza, family doctor, relating to strains/sprains since the accident.⁷ The OHIP summary confirms the applicant did visit medical doctors on a regular basis. There were only two complaints of accident-related complaints to Dr. D’Souza and no further referrals were made by Dr. D’Souza which recommend further treatment beyond September 30, 2015.⁸ I find this evidence supports that the applicant’s impairments from the 2012 accident were not exacerbated as a result of the subject accident.

20Based on the totality of this evidence, I find the proposed treatment plan is not reasonable and necessary.

OCF-18 in the amount of $3,781.21 for chiropractic treatment, massage, and acupuncture

21This OCF-18 was submitted by Dr. Paton with the proposed goals including: pain reduction, increase in strength and range of motion, and improving endurance/flexibility so the applicant could return to his activities of normal living. Barriers to recovery were noted in relation to the previous motor vehicle accident. The same injury and sequela are noted as referenced within the previous OCF-18 of the same date.

22I find this OCF-18 is not reasonable and necessary for the reasons which I have noted above. This OCF-18 was also assessed by Dr. Ramlochan⁹ which he found was not reasonable and necessary. I have already accepted the applicant sustained soft tissue injuries from the subject accident which have resolved, and I concur with Dr. Ramlochan that further facility based treatment is not warranted as a result.

OCF-18 in the amount of $5,676.49 for physiotherapy, chiropractic treatment, massage therapy, and acupuncture

23This OCF-18 was submitted by Dr. Paton which noted the following proposed goals: pain reduction, increase in strength and range of motion, and improvement of endurance/flexibility to enable the applicant to return to the activities of normal living. The injury and sequela noted within this treatment plan were the same as referenced in the above noted OCF-18’s in dispute.

24I do not find this OCF-18 is reasonable and necessary. I am persuaded by the IE physiatry assessment report of Dr. E. Newell which found this OCF-18 was not reasonable and necessary.¹⁰ The in-person assessment consisted of an interview and a physical examination. Dr. Newell opines the applicant sustained soft tissue injuries from the subject accident, which I already accepted. While Dr. Newell noted the current injuries are an aggravation of his previous injuries from the 2012 accident and that the aggravation is a direct result of the current accident, Dr. Newell found his injuries from the subject accident were mild and found no objective evidence of impairment, nor evidence of neurologic and/or bony injury. Dr. Newell noted that he believed there was symptom magnification. Dr. Newell supports this finding by noting the applicant’s movements during the assessment were inconsistent with his level of pain reporting at 9/10. Dr. Newell also concludes that the length of time since the accident does not support the OCF-18 is reasonable and necessary as the applicant sustained strains/sprains.

25The applicant reported to Dr. Newell that massage therapy helped a little bit and chiropractic treatment and acupuncture was most useful. However, Dr. Newell’s report notes the applicant reported that when he attended treatment, his pain level reduced to a 6-7/10 for a few days following treatment and when treatment stopped, his pain returned to the post-accident level of 9/10.¹¹

26The OCF-18 is not reasonable and necessary because the applicant sustained soft tissue injuries from the subject accident, and the OCF-18 proposes treatment for soft tissue injuries nearly three years following the accident. Further, the applicant reported his pain is reduced to a 6-7/10 for a few days following treatment which I find supports that the effects of proposed treatment within the OCF-18 is limited. Lastly, I accept Dr. Newell’s explanation in support of his belief that the applicant exhibited symptom magnification.

27I find Dr. Newell considered the applicant’s impairments from the 2012 accident when he noted his pre-existing physical conditions were residual discomfort in his neck and back, and headaches from the 2012 accident. I find Dr. Newell provides an explanation which support his findings. Dr. Newell opined that the pre-existing physical conditions from the 2012 accident and the diagnosis of Schizophrenia would not affect his recovery from the current accident. Dr. Newell noted that the diagnosis of his current injuries is an aggravation of his pre-existing thoracic and lumbar strains with no evidence of neurologic and/or bony injury. He opined his headaches were cervogenic. The cervogenic headaches were also noted in the report of Dr. Ghouse in relation to the 2012 accident. The applicant’s upper limb numbness and tingling was opined by Dr. Newell to possibly be the result of mild ulnar nerve irritation caused by the positioning of the applicant’s elbows while lying down, and unrelated to the accident. Further, the applicant’s reported bilateral knee pain was attributed by Dr. Newell to mild patellofemoral syndrome, also unrelated to the accident.

28There has been no competing report produced by the applicant to address how the previous impairments from the 2012 accident have been exacerbated as a result of the subject accident. I accept the conclusions made by Dr. Newell in which he found no objective impairments, and that the pre-existing physical conditions from the 2012 accident would not affect his recovery from the subject accident. I find this provides further support that this OCF-18 is not reasonable and necessary.

CONCLUSION

29For the reasons I outlined above, I order the following:

(i) The applicant is not entitled to the medical benefits in dispute.

(ii) As no benefits are payable, no interest is found to be owed.

(iii) The applicant’s claim is dismissed.

Footnotes

1. 1Tab B2 included with the respondent’s submissions - Emergency room record of [the Hospital] and copy of x-ray, dated September 24, 2015.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Tab 4 of the applicant’s submissions – CNRs of Dr. J. Paton from Spinetec Healthcare Solutions, entries dated May 10, 26, 31, June 7, 14, 2017.
4. 4Tab B10 of the respondent’s submissions – Independent Chiropractic Evaluation of Dr. Ramlochan, dated July 20, 2017.
5. 5Tab 6 included with applicant’s submissions – Catastrophic Impairment Determination Physiatry Report of Dr. Ghouse based on in person assessment completed on May 11, 2015.
6. 6Tabs 4 and 5 included with the applicant’s submissions – CNRs of Spinetec Healthcare Solutions.
7. 7Tab B3 included with the respondent’s submissions – OHIP summary with entries dated September 30, 2015 and June 9, 2017.
8. 8Tab 4 included with the applicant’s submissions – Referral from Dr. D’Souza, dated September 30, 2015 for physiotherapy/massage/acupuncture, at 37.
9. 9Supra, note 4.
10. 10Tab 14 included with the respondent’s submissions – Independent Physiatry Examination Report of Dr. E Newell, dated October 9, 2018.
11. 11Ibid, at 4,6.