Release date: 10/26/2021
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:
Angelo Heifa
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Patrick D’Aloisio, Counsel
For the Respondent:
Symone Marlowe, Counsel
HEARD:
By way of written submissions
OVERVIEW
1A.H. was injured in an accident on December 13, 2017, and sought benefits from Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). Wawanesa denied the benefits on the basis that it determined that his accident-related impairments were predominantly minor injuries, subject to treatment within the Minor Injury Guideline (“MIG”). A.H. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Did A.H. sustain predominantly minor injuries as defined under the Schedule?
3If not, then I must determine the following:
a. Is the expense in the amount of $350.00 for an MRI, recommended by Rehab and Wellness Clinic in a treatment plan (OCF-18) submitted April 10, 2018, denied on April 13, 2018, reasonable and necessary?
b. Is the medical benefit in the amount of $1,909.47 for chiropractic treatment, recommended by Rehab and Wellness Clinic in an OCF-18 submitted April 4, 2018, denied on April 13, 2018, reasonable and necessary?
c. Is the medical benefit in the amount of $1,683.77 for chiropractic treatment, recommended by Rehab and Wellness Clinic in an OCF-18 submitted June 14, 2018, denied on June 28, 2018, reasonable and necessary?
d. Is the medical benefit in the amount of $2,486.00 for orthopaedic assessment, recommended by Access Rehab in an OCF-18 submitted July 5, 2018, denied on July 18, 2018, reasonable and necessary?
e. Is the medical benefit in the amount of $2,212.57 for medical services, recommended by Rehab and Wellness Clinic in an OCF-18 submitted April 1, 2019, denied on April 16, 2019, reasonable and necessary?
f. Is A.H. entitled to interest on any overdue payment of benefits?
FINDING
4A.H. has established that he suffers from chronic pain that removes him from the MIG.
5A.H. is not entitled to payment for the OCF-6.
6A.H. has demonstrated that the OCF-18s are reasonable and necessary to treat his accident-related injuries. Interest is payable on the overdue payment of benefits.
ANALYSIS
Applicability of the Minor Injury Guideline
7Under s. 18(1) of the Schedule, medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) sets out the definition of a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” In order to be removed from the MIG if they can establish that their accident-related injuries fall outside the MIG, or, in accordance with s. 18(2), they have a documented pre-existing injury or condition combined with compelling medical evidence indicating that the pre-existing injury or condition prevents recovery if they are kept within the MIG. The Tribunal has found that chronic pain, with functional limitations, or psychological impairments may justify removal from the MIG. In every case, the burden of proof remains on the insured.
8Wawanesa relies on the s. 44 IE assessor reports by Dr. Williams, physiatrist and Dr. Waseem, physiatrist to rebut A.H.’s claims. Dr. Williams concluded that A.H. sustained uncomplicated soft tissue sprain and strain injuries as a result of the accident. Dr. Waseem stated that A.H.’s complaints appear to be the result of the accident, however, he noted the medical records indicated lower back pain in the few months prior to the accident but was unclear whether the pain was ongoing or resolved at the time of the accident. Dr. Waseem concluded that A.H.’s injuries amounted to a minor injury and was unable to determined if there was compelling evidence of a pre-existing medical condition which would prevent A.H. from achieving maximum medical recovery if kept within the confines of the MIG.
9I prefer the medical records and reports of A.H. over the reports of the s. 44 assessors. Specifically, I am persuaded by the reports of Dr. Balkansky and Dr. Fern. A.H. has continuously reported ongoing pain which is referenced in the clinical notes and records of the family physician, his assessors’ reports, and the s. 44 assessors’ reports. He has reported a 50-70% improvement as a result of treatment, which in my view supports that additional treatment would achieve its stated goals of pain relief and increased strength and range of motion (ROM).
Does A.H. suffer from chronic pain?
10I find that A.H. suffers from chronic pain and is exempt from the MIG on this basis. This is supported by the documented evidence that A.H. still had a 30-40% ROM loss, as of the February 5, 2018 entry. Second, A.H. has consistently reported complaints to, and has been diagnosed with ongoing back and neck pain by, his treating physician and assessors.
11A.H. relies on a chronic pain and functional impairment disability report dated July 30, 2018 from Dr. Balkansky. In the report, Dr. Balkansky noted neck pain, upper and lower back pain, and right leg pain. Objective testing showed 50-70% loss of ROM in the lumbar spine with increased pain noted in the lumbar and thoracolumbar paraspinals with bilateral lateral bending producing pain complaints. Dr. Balkansky diagnosed A.H. with thoracolumbar spinal dysfunction with associated positional lateral nerve root compression at L5/S1 due to a prolapsed L5/S1 disc resulting in right leg radiculopathy from L5/S1 to right foot. Dr. Balkansky opined that the impairments were a direct result of the accident, and that the prognosis was poor due to the length of time of reported symptomatology.
12Dr. Balkansky reviewed the June 21, 2018 physiatry assessment of Dr. Williams. Dr. Balkansky noted that Dr. Williams states in the section titled “Physical Examination” that:
Lumbar spine range of motion demonstrated forward flexion bringing his fingertips to the inferior pole of the patella. Extension was 20 degrees. He reported midline low back pain with lumbar extension at end range. Lateral flexion was 30 degrees bilaterally.
13Dr. Balkansky noted that A.H. did not complain of cervical pain on the day of examination but did present with severe lumbar pain. When compared to Dr. Williams’ report, Dr. Balkansky opined that it was unlikely that A.H. could have demonstrated an active lumbar forward flexion range to the point where he could “bring his fingertips to the inferior pole of the patella” one month prior. In addition, Dr. Balkansky noted that Dr. Williams reported a positive finding of 20 degrees for active lumbar extension. Dr. Balkansky stated this determination was reduced by 40 percent from normal, although this is not highlighted in Dr. Williams’ report and no explanation is giving for this finding. Dr. Williams also reported full active lumbar lateral flexion range in both directions, which Dr. Balkansky opined to be completely misrepresentative of A.H.’s current functional ability.
14Dr. Balkansky commented that disc prolapse is not a normal variant of spinal anatomy, but this condition did not appear to affect any of Dr. Williams’ testing procedures. Dr. Balkansky noted that disc prolapse does not fall under the definition of a minor injury, nor does the sequelae of such an injury. Dr. Balkansky additionally commented that Dr. Williams’ testing seemed illogical in light of the documented MRI findings and the lack of mention of any difficulties in A.H.’s functional capabilities, particularly getting up from a seated position. Dr. Balkansky commented that A.H. has shown a marked decrease in his functional abilities and without proper treatment may develop chronic permanent injuries. Dr. Balkansky recommended several evaluations and assessments be conducted in order to properly determine the level of treatment required.
15I am persuaded by Dr. Balkansky’s report over that of Dr. Williams for several reasons. In contrast to Dr. Williams, Dr. Balkansky observed that A.H. demonstrated functional reductions of up to 50 percent from normal in left lateral flexion and reductions of up to 20 percent in right lateral flexion, which was consistent with A.H.’s reported symptoms. Dr. Balkansky went on to note that although Dr. Williams did not note any pain complaints during straight leg raise testing, it is functionally and physically impossible for a patient suffering from a central bulge at L5/S1, mild or otherwise, to be completely symptom free during such testing, particularly, if they have indicated and demonstrated functional impairments such as getting up from a seated position.
16For the reasons above, I am satisfied that A.H. suffers from chronic pain as a result of the accident.
OCF-6 in the amount of $350.00
17A.H. is not entitled to payment for the OCF-6 submitted on April 10, 2018.
18Pursuant to s. 38(2)(a), an insurer is not liable to pay an expense in respect of a medical benefit or assessment or examination that was incurred before the insured person submitted a treatment and assessment plan that satisfies the requirements of subsection (3).
19There is no evidence that A.H. submitted a treatment plan prior to submitting the OCF-6. In addition, pursuant to s. 38(2)(a), Wawanesa did not provide A.H. with notice of prior approval that it will pay the expense without a treatment and assessment plan.
20I agree with Wawanesa that the OCF-6 is not payable, as it does not meet the requirements under s. 38(2)(a), nor those set out under s. 38(2)(c), which sets out that an expense of $250 or less be reasonable and necessary as a result of an impairment sustained by the insured.
OCF-18 dated April 2, 2018 in the amount of $1,909.47
OCF-18 dated June 28, 2018 in the amount of $1,683.77
OCF-18 dated April 16, 2019 in the amount of $2,212.57
21I find that A.H. has demonstrated that the treatment plans are reasonable and necessary.
22The OCF-18 dated April 2, 2018 noted the following injuries: cervicalgia, spinal instabilities - cervical region, tension type headache, headache, sprain and strain of other and unspecified parts of shoulder girdle, dorsalgia, spinal instabilities – thoracic region, dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, spinal instabilities – lumbar region, radiculopathy, and non-organic sleep disorders. It was also indicated that his current accident-related injuries impacted his ability to carry out the tasks of his employment and engage in activities of normal life. His injuries were indicated to cause functional restrictions with extended sitting/standing, bending over, and lifting. The OCF-18 recommended 36 treatment sessions of various modalities.
23The OCF-18 dated June 14, 2018, noted the same injuries as the April 2, 2018 OCF-18. The OCF-18 author also noted that A.H. returned to work but suffers from ongoing symptoms and limitations in ranges of motion due to positional irritation from lower back pain. It was indicated that therapy has helped reduce the extent of the injuries, however, the severity of the initial injuries has affected recovery of neck, shoulder, and low back as there is continued aggravation with attempted work and daily activities. The OCF-18 recommended 35 mixed modality physical treatment sessions. The OCF-18 contained the same reports as the April 2018 OCF-18 regarding the ongoing symptomatology as a result of the accident.
24In the April 1, 2019 OCF-18, Dr. Balkansky indicated the same pain issues, goals, and barriers to recovery as the April 2018 and June 2018 OCF-18s. Dr. Balkansky recommended 39 sessions of treatment. Despite this, Dr. Balkansky provides additional comments which detail each modality of treatment and its intended purpose. For example, he provides a list of the stimulation and modalities treatment; he provides a list of the active treatment and stretching exercises and provides a breakdown of the recommended types of exercises and treatments. A.H. reported that the treatments help alleviate his pain, and although the treatments provide temporary relief, he wanted to continue to receive treatment. I find that the proposed treatment plans are reasonable and necessary to address the ongoing pain complaints because they are supported by the records which indicate that A.H. continued to suffer from ongoing back pain a year and a half after the accident. Lastly, it is well-established that the goals of pain relief, as indicated in the treatment plans, are reasonable grounds for finding that the recommended treatment is necessary. I am persuaded by the consistent reporting of pain complaints noted above, that A.H. still suffers from ongoing accident-related symptomatology.
25For these reasons, I find that A.H. has established that the three OCF-18s are reasonable and necessary.
OCF-18 dated July 18, 2018 in the amount of $2,486.00
26A.H. is entitled to the OCF-18 for an orthopaedic assessment, as I find it to be reasonable and necessary.
27In his August 15, 2018 report, chronic pain specialist Dr. Fern determined that there is a direct causal relationship between the accident-related injuries and A.H.’s current degree of impairment and disability. Dr. Fern opined that the clinical examination was consistent with his symptomatology. Dr. Fern opined that A.H. is still within the healing phase of his injuries, and he has not yet reached maximum medical recovery. Dr. Fern commented that the current findings are consistent with the reported symptoms and a chronic mechanical problem appears to be developing with his back. Dr. Fern opined that A.H.’s current prognosis is guarded as a result of ongoing symptomatology. Dr. Fern stated that he considers it more likely than not that A.H. will have a permanent impairment and recommended ongoing treatment.
28Wawanesa relies on the report of Dr. Williams in support of its determination that the OCF-18 is not reasonable and necessary.
29I have already commented on Dr. Williams’ report, and I prefer the report of Dr. Fern as well as the treatment goals set out in the OCF-18. As a chronic pain specialist, Dr. Fern indicates in the OCF-18 that an orthopaedic assessment would aid in determining the full extent of the injury, possible misalignment of the bone and/or joint and damage to adjacent ligament and tendon structures, and any consequential barrier to recovery. Dr. Fern goes on to note that the orthopaedic assessment will also address any necessary entitlement to benefits.
30I agree with A.H. The orthopaedic assessment is reasonable to determine the proper course of treatment to address A.H.’s accident-related injuries. In addition, the cost of the OCF-18 is in line with industry norms and regulated fee standards.
31For these reasons, I find that A.H. has established that the OCF-18 for an orthopaedic assessment is reasonable and necessary.
INTEREST
32I have determined that A.H. is entitled to the treatment plans for physical treatment, and an orthopaedic assessment. As such, interest is payable on the overdue amounts, pursuant to s. 51 of the Schedule
CONCLUSION
33A.H. is removed from the MIG due to his chronic pain as a result of the accident.
34A.H. is entitled to payment for the three OCF-18s for physical treatment, as they are reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.
35A.H. is entitled to payment for the OCF-18 for an orthopaedic assessment and interest pursuant to s. 51 of the Schedule.
36A.H. is not entitled to payment for the OCF-6, interest is not payable as there are no overdue payment of benefit owing.
Released: October 26, 2021
Derek Grant, Adjudicator