Citation: Cohen vs. Security National Insurance Company, 2020 ONLAT 19-007128/AABS

Released Date: 11/17/2020

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:

Wayne Cohen

Applicant

and

Security National Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

WC, Applicant

Jordan Palmer, Counsel

For the Respondent:

Security National Insurance Company, Representative

Farid Mahdi, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, W.C., was involved in an automobile accident on July 31, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ W.C. was denied certain benefits by the respondent, Security National Insurance Company (“Security National”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2W.C. submits that, as a result of injuries he sustained in the accident, the treatment he seeks is reasonable and necessary.

3Security National argues that W.C. has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues I am asked to decide are:

a. Is the medical benefit for physiotherapy in the amount of $1,899.96 recommended by Progressive Rehabilitation, and denied on May 28, 2017, reasonable and necessary?

b. Is W.C. entitled to interest on any overdue payment of benefits?

FINDING

5Based on the evidence, I find that W.C. is not entitled to the disputed treatment plan, and interest is not payable.

LAW

6Sections 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 the 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

7W.C. submits that on a balance of probabilities, it is more likely than not that he is entitled to the claimed benefit because it is reasonable and necessary. The basis of W.C.’s position is that given the medical benefits of physiotherapy for his injuries, the treatment plan is reasonable and necessary. On the contrary, I find the evidence does not support W.C.’s position.

8Security National submits that, although W.C. was removed from the Minor Injury Guideline (“MIG”) due to psychological impairments, his accident-related physical injuries are uncomplicated soft tissues injuries. Security National maintains that W.C. suffered “predominantly soft tissue injuries”, essentially maintaining that his physical injuries are predominantly minor within the meaning of s. 3 of the Schedule. However, a removal from the MIG is a complete removal, not a partial removal based separately on physical injuries or psychological impairments. Once an insured is removed from the MIG (based on psychological impairments), there is no longer a consideration of whether the insured’s accident-related physical injuries are predominantly minor or “predominantly soft tissue injuries”. The appropriate test is to solely determine whether a treatment plan is reasonable and necessary. Regarding the question of the reasonableness and necessity of the disputed treatment plan, Security National responds in the negative.

9Post-accident, W.C. saw his family physician approximately 5 days later. W.C. presented with complaints of pain in his upper and lower back, head and left shoulder. A second family physician, Dr. Kaur, noted on an August 20, 2015 visit, that W.C. complained of constant lower back pain, occasional left shoulder and neck pain, difficulty getting out of his chair and a reduced range of motion in the shoulder and neck area. Dr. Kaur recommended that W.C. continue with physiotherapy. Several subsequent visits to Dr. Kaur between September 9, 2015 and May 29, 2017 contain similar pain reports. In addition, on a May 28, 2016 visit, Dr. Kaur diagnosed W.C. with chronic low back pain. Physiotherapy continued to be recommended with each visit.

10Despite the evidence of the family physicians, I am not persuaded by this evidence that the treatment plan is reasonable and necessary.

11Security National relies on the reports of its insurer examination (“IE”) assessors in support of its denial of the treatment plan.

12Physician Dr. Platnick opined in his July 11, 2016 report, that the rear end nature of the collision is not in keeping with the trauma or injury to the right foot or ankle region. Dr. Platnick did not attribute the right foot/ankle complaints to the accident. Dr. Platnick also did not find any evidence of a left shoulder tear, partial or otherwise. He noted that W.C. did not display any specific points of tenderness, deformity, muscle wasting or guarding around the shoulder girdles. Dr. Platnick concluded that W.C. suffered predominantly minor injuries, after diagnosing W.C. with cervical myofascial strain WAD I and lumbosacral myofascial strain.

13W.C. reported no improvement since the accident to Dr. Platnick. Dr. Platnick noted a full range of motion of the cervical spine, however, lumbosacral ranges were reduced by 50%. Dr. Platnick noted that although W.C. was able to forward flex at the waists, he reported low back pain.

14W.C. was assessed by chiropractor Dr. Sharma, who generated a report dated May 25, 2017. Dr. Sharma reviewed diagnostic reports, noting an “old well-aligned, well-healed transverse fracture through the base of the right fifth metatarsal, otherwise right foot is normal with no evidence of acute injury”³; a lumbar spine x-ray which noted mild lower spine degenerative disc disease but no evidence of acute bony injury”⁴; and a left shoulder x-ray which revealed moderate degenerative change.⁵ Dr. Sharma made no comment on whether or not W.C.’s right foot pain complaints were accident-related.

15On physical examination, Dr. Sharma reported, “Head & Face: There was the presence of mild bilateral tenderness on palpation in the temporal. Neck: There was the absence of cervical joint pain and tenderness on palpation. Shoulder: There was the absence of shoulder pain and tenderness on palpation. Back: There was the presence of mild bilateral back tenderness in L2-L3, L3-L4, L4-L5, L5-S1, and the sacro-iliac joint”.⁶ Dr. Sharma noted a full range of motion in the cervical spine, and reduced range of motion in the lumbosacral spine. During the examination of W.C.’s left shoulder, Dr. Sharma noted that the supraspinatus test result was suggestive of a supraspinatus tear.

16Dr. Sharma did not go into any other detail regarding the possible left shoulder tear, and concluded that W.C. sustained predominantly soft tissue injuries, with the exception of the right foot fracture which is causing pain. There is no objective evidence that supports the right foot pain was caused by the accident.

17I find the reports of Dr. Platnick and Dr. Sharma to be somewhat vague on providing clarity of W.C.’s post-accident pain complaints. Dr. Platnick’s report does not mention any shoulder issue. Dr. Sharma mentions a potential shoulder tear, and the rest of the report is silent on the injury. It is curious that the earlier Platnick report does not find a potential shoulder tear, if this injury is in fact accident-related.

18The evidence does not clarify why there is a discrepancy between the findings of the shoulder examinations in the IE reports. In addition, W.C. has not provided any objective evidence that suggests or confirms he suffered a left shoulder tear, partial or otherwise, as a result of the accident. As such, I must consider W.C.’s self-reporting of the benefits of treatment received to date.

19W.C. reported to Dr. Sharma that his initial left shoulder pain had resolved. Dr. Sharma noted full range of motion in the cervical spine and reduced range of motion in the lumbosacral spine.

20W.C. reported to Dr. Platnick a 10-20% improvement in pain symptoms. W.C. reported to Dr. Sharma that his pain has resolved and denied any other ongoing accident-related physical symptoms. The evidence does not support that the treatment has helped to relieve pain, or if it has, has very short-term benefit. W.C. reported to Dr. Platnick that there is benefit for a few hours and then the symptoms return. During the assessment with IE assessor, psychologist Dr. Lewis, W.C. reported that physical therapy only provides short-term relief of pain.

21The goals of a treatment plan must be reasonable, the goals of a treatment plan must be met to a reasonable degree, the cost of the treatment plan (time and monetary investment) and the subjective benefit to the injured person or if the treatment helped to relieve pain are factors that need to be considered when determining if the claimed treatment is reasonable and necessary.

22While I agree that the goals of the disputed treatment plan are reasonable, this is the only element of the reasonable and necessary test that W.C. satisfies, and that is not enough to entitlement him to the treatment. The reported 10-20% improvement in pain symptoms is not evidence that the goals of the treatment plan are being met to a reasonable degree. As such, this would make the cost (monetary and time investment) also not reasonable. The subjective benefit and whether the treatment helped relieve pain is not supported by the short-term benefit reported by W.C.

23For the reasons laid out above, I find that W.C. has not established on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary.

COSTS

24The costs provisions of Rule 19.1 are not intended to compensate parties for suffering an inconvenience or for the costs of their involvement in filing an application with the Tribunal. Costs are awarded to ensure civility, respect and order during Tribunal proceedings, and to deter conduct that threatens the orderly and civil resolution of an application.

25Security National’s request regarding costs relates to reimbursement for the cost of this proceeding.

26Security National did not offer any submissions on the issue of costs.

27I do not find W.C.’s actions demonstrate a lack of civility, respect, order, or any other grounds that would warrant a claim for costs. Consequently, Security National’s claim for costs in this proceeding is denied.

CONCLUSION

28W.C. is not entitled to the disputed treatment plan; therefore, no interest is payable.

29W.C.’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Respondent Document Brief - TAB K – Vodden X-Ray & Ultrasound Diagnostic Report, dated August 29, 2015
4. 4Ibid
5. 5Ibid
6. 6Ibid - TAB A – Insurer Medical Examination Report of Dr. Sangita Sharma, dated May 26, 2017 at pages 9-11