Citation: Martincic vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-014176/AABS

Released Date: 11/03/2020

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:

Martha Martincic

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Allen Blemings, Counsel

For the Respondent:

Thomas J. Madison, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Martha Martincic (the “applicant”) was involved in an automobile accident on October 18, 2016 and applied to TD Insurance Meloche Monnex (the “respondent”) for accident benefits under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).¹ The respondent denied the applicant’s entitlement to a medical benefit and she submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2The parties were unable to resolve this dispute at a case conference and 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 $2,850.00 for PRP Injections recommended by Dr. Yousef in a treatment plan (OCF-18) dated November 30, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $1,565.00 for chiropractic treatment recommended by Dr. Angelini in a treatment plan (OCF-18) dated January 17, 2018?

RESULT

4After reviewing the parties’ submissions and all the evidence I find as follows:

i. The applicant is not entitled to the treatment plan in the amount of $1,565.00 for chiropractic treatment recommended by Dr. Angelini in a treatment plan (OCF-18) dated January 17, 2018.

ii. The applicant is not entitled to the treatment plan in the amount of $2,850.00 for PRP Injections recommended by Dr. Yousif in a treatment plan (OCF-18) dated November 30, 2017.

BACKGROUND

5On October 18, 2016, the applicant, a 73-year-old woman, was involved in an accident when another vehicle entered her lane, sideswiping her vehicle. The applicant submits that, following the accident, she experienced pain in her neck and right shoulder. She started attending chiropractic treatment following the accident.

6Prior to the accident, the applicant had a pre-existing full thickness rotator cuff tear in her right shoulder. Post-accident, the applicant argues that this tear increased and became symptomatic. The respondent argues that the accident did not cause the applicant’s right shoulder impairment so I will first address the issue of causation.

ANALYSIS

Did the accident cause the applicant’s right shoulder impairment?

7For the following reasons, I find the accident exacerbated the applicant’s pre-existing right shoulder impairment.

8The Divisional Court confirmed in Sabadash v. State Farm² that the test to prove causation is the “but for” test. The onus is on the applicant to prove that “but for” the accident she would not have suffered the impairment which forms the basis for her claim for accident benefits. While I find that the accident did not cause the applicant’s right shoulder impairment, I do find that it exacerbated her pre-existing condition making her right shoulder impairment more symptomatic post-accident. As established by Sabadash, a pre-existing condition does not in itself negate an insurer’s liability. I find the applicant consistently reported to her assessors that the pain in her right shoulder became more symptomatic post-accident.

9The respondent submits that the applicant’s self-reports cannot be trusted because she did not report her pre-existing right shoulder impairment to IE assessors Dr. Levy or Dr. Bartol. While the applicant did not report her pre-existing right shoulder impairment to these assessors, I do not find that she did so on purpose. This is supported by the fact that Dr. Angelini wrote a follow up letter to the respondent after the submission of the treatment plan noting that the applicant had a pre-existing condition which would make her recovery more difficult. Further, the applicant was not exhibiting symptoms of pain in her right shoulder prior to the accident. However, post-accident, she has developed neck pain, headaches and radicular symptoms in her arms.

10Second, I prefer the opinion of Dr. Jasey over Dr. Bartol regarding causation as I find Dr. Jasey’s report more thorough as he discusses the applicant’s pre-accident medical history. Dr. Jasey’s opines that the accident exacerbated the applicant’s pre-existing right shoulder impairment. By contrast, Dr. Bartol determines the accident was not the cause of this impairment. I prefer Dr. Jasey’s opinion because he discusses the applicant’s pre-accident OHIP summary which demonstrates that her visits to health practitioners prior to the accident concerned complaints about osteoporosis and osteoarthritis. Post-accident, the OHIP summary reveals that the applicant started making complaints about her strain and sprain impairments. Dr. Bartol does not discuss the applicant’s medical history at all which is why I prefer the opinion of Dr. Jasey. Dr. Jasey opined that the accident aggravated the applicant’s pre-existing right shoulder injury. I agree with Dr. Jasey as I find it more consistent with the evidence before me. For example, a comparison of MRIs completed in 2013 and 2017 demonstrate that the size of the full thickness tear in the applicant’s right shoulder had increased post-accident. While I find the accident was not the cause of the applicant’s rotator cuff tear, I agree with the applicant that the accident exacerbated her condition. Now I will address whether the applicant is entitled to the treatment plans in dispute.

Is the applicant entitled to a medical benefit in the amount of $1,565.00 for chiropractic treatment recommended by Dr. Angelini in a treatment plan (OCF-18) dated January 17, 2018?

11The applicant is not entitled to the treatment plan for chiropractic treatment for the following reasons.

12Sections 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.

13Both parties agree that in order for a medical benefit to be considered reasonable and necessary it must meet the following criteria:

(a) the treatment goals, as identified, are reasonable;

(b) these goals are being met to a reasonable degree; and

(c) the overall cost [not just financial, but also investment of time, etc.] of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.³

14The applicant argues that the treatment plan for chiropractic treatment is reasonable and necessary as she suffers from ongoing pain and limited range of motion in her neck and right shoulder which to date has not resolved. While the applicant acknowledges that she had a pre-existing tear in her right shoulder, she asserts that the accident exacerbated this impairment and her symptoms of pain have gotten worse. Further, these symptoms have impacted her ability to carry out her pre-accident daily activities as efficiently as she did pre-accident. In addition, she submits that the chiropractic treatment she received in the past has resulted in improvements to her range of motion. The applicant relies on the treatment plan and the clinical notes and records (“CNRs”) of Dr. Angelini. She also relies on the reports of orthopaedic surgeons: Dr. Yousif, Dr. Hundt and Dr. Jasey.

15The respondent argues that the applicant’s accident related impairments have resolved. Moreover, the treatment plan is not reasonable and necessary because the applicant has received maximum benefit from past chiropractic treatment. Furthermore, the applicant continues to be independent with self-care as well as her pre-accident housekeeping and home maintenance tasks. She also continues to drive and is the sole caregiver for her disabled husband. The respondent submits that additional chiropractic treatment will not likely result in any improvement. The respondent relies on the insurer examination (“IE”) reports of Dr. Levy, general practitioner and Dr. Bartol, orthopaedic surgeon. For the following reasons I agree with the respondent and do not find the treatment plan for chiropractic treatment reasonable and necessary.

16While I agree with the applicant that the accident exacerbated her pre-existing shoulder impairment, I do not find that additional chiropractic treatment will meet the goals proposed in the treatment plan. The treatment plan submitted by Dr. Angelini notes that the applicant has limited range of motion (“ROM”) in her right shoulder, however, her cervical ROM has improved, and headaches have diminished. The goal of the plan is to reduce the applicant’s pain, increase her strength and improve her ROM in relation to her right shoulder impairment. The treatment plan recommended 14 sessions of chiropractic treatment including manipulation, exercise and releases for a total cost of $1,565.00. The duration of the plan is 14 weeks.

17I find the treatment plan will not meet its objective of reducing the applicant’s pain as she has reported to most of the assessors that past chiropractic treatment has not been effective in decreasing her symptoms of pain. Although the applicant has reported that past chiropractic treatment has improved her ROM, I find this was based on the applicant’s self-reports and was not based on objective evidence. Further, I was not directed to evidence that supported that the applicant’s ROM had improved - for example, in the post-accident CNRs of Dr. Angelini.

18Dr. Angelini’s treatment summary report dated January 20, 2018 states that the applicant’s condition has deteriorated when treatment stopped. This report states that the applicant still complains of neck pain as well as pain in her right shoulder which radiates down her arm. However, as noted above the applicant has reported that past chiropractic treatment has not been helpful in reducing her pain. Therefore, I do not find Dr. Angelini’s recommendation that the applicant receive further chiropractic treatment to be reasonable and necessary.

19In addition, even the applicant’s orthopaedic experts Dr. Huntd, Dr. Yousif and Dr. Jasey do not recommend that the applicant receive chiropractic treatment to address her accident related neck or right shoulder impairment. The consensus among Dr. Huntd and Dr. Jasey is that the only remedy that will address the applicant’s rotator cuff tear is surgery as, without it, the tear will expand and lead to further functional impairment. Dr. Yousif also discussed surgery but provided the applicant with the second option of PRP injections, which I will discuss later. The applicant has refused surgery because of her caregiver obligations for her husband. Although Dr. Jasey’s supports that the applicant receive further therapy the doctor does not recommend chiropractic treatment. Further, I am not convinced that the past chiropractic treatment received by the applicant has achieved its goal of reducing her pain, increasing her ROM or improving function.

20By contrast the respondent relied on the IE of Dr. Bartol in denying the treatment plan. The applicant reported to Dr. Bartol that she continues to have pain in her neck, which radiates to her shoulder blade and is worse with flexion/extension movements. She also reported ongoing shoulder pain. Dr. Bartol’s physical examination of the applicant revealed limited ROM in the applicant’s neck in extension, side bending and rotation. Further, the applicant complained of pain at the end range of motion. Dr. Bartol opined that both the rotator cuff tear and soft tissue injury of the neck are contributing to her pain but determined the treatment plan is excessive and maximum benefit has been achieved from past chiropractic treatment. While I find the applicant still has an ongoing impairment, I agree with Dr. Bartol that the applicant has received maximum benefit from past chiropractic treatment.

21The applicant has not met her onus in proving on a balance of probabilities that the treatment plan for chiropractic treatment is reasonable and necessary.

Is the applicant entitled to the treatment plan in the amount of $2,850.00 for PRP Injections recommended by Dr. Yousif in a treatment plan (OCF-18) dated November 30, 2017?

22The applicant is not entitled to the treatment plan for PRP injections for the following reasons.

23The treatment plan submitted by Dr. Yousif, recommended three PRP injections for a total cost of $2,850.00. The goals of the plan are to reduce the applicant’s pain, increase her ROM and strength in order to return the applicant to her daily activities. In the doctor’s report dated September 25, 2017, Dr. Yousif indicated that he discussed surgical and non-surgical options with the applicant to treat her right shoulder impairment and the applicant selected the non-surgical option of three PRP injections However, Dr. Yousif does not explain what PRP injections are or how they will reduce the applicant’s pain, increase her strength or improve her ROM. In addition, no further evidence was submitted to demonstrate how the treatment plan for the PRP injections is going to meet its stated goals. Moreover, the evidence of the other experts does not support her position that this treatment plan is reasonable and necessary. For example, both reports of Dr. Hundt and Dr. Jasey agree that the only way to heal the full thickness tear in the applicant’s right shoulder is by surgical intervention. Neither of these experts recommend or support PRP injections. Moreover, in Dr. Jasey’s report, the doctor highlights that Dr. Yousif made this recommendation but the doctor does not recommend it as a valid treatment option.

24The respondent relied on the addendum report of Dr. Bartol dated February 7, 2018 who opined that the treatment plan is not reasonable and necessary as the accident did not cause the applicant’s right shoulder tear. Dr. Bartol was also of the opinion that there is a lack of scientific evidence for the use of PRP injections in the treatment of full thickness tears of the rotator cuff. For these reasons, the doctor concluded that the treatment plan was not reasonable and necessary. While I disagree with Dr. Bartol in that I find the accident exacerbated the applicant’s pre-existing right shoulder impairment, I agree with his opinion that PRP injections are not reasonable and necessary.

25The applicant has not met her onus in proving on a balance of probabilities that the treatment plan for PRP injections is reasonable and necessary as a result of her accident related impairments.

ORDER

26For all the above reasons, I order as follows:

i. The applicant is not entitled to the treatment plan in the amount of $1,565.00 for chiropractic treatment recommended by Dr. Angelini in a treatment plan (OCF-18) dated January 17, 2018.

ii. The applicant is not entitled to the treatment plan in the amount of $2,850.00 for PRP Injections recommended by Dr. Yousif in a treatment plan (OCF-18) dated November 30, 2017.

Footnotes

1. 1O. Reg. 34/10.
2. 2Sabadash v. State Farm et al. 2019 ONSC 1121
3. 3Violi v General Assurance (FSCO File No. P99-00047, September 27, 2000