Released: January 18, 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:
SK
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
ADJUDICATOR:
Robert Watt
APPEARANCES:
For the Applicant:
Andrew Franzke counsel
For the Respondent:
Patrick Baker, Counsel
HEARD:
Via written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on June 22, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), for resolution of the dispute.
ISSUES
3The issues to be decided are:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,165.00 for physiotherapy treatment recommended by Zarrabian Rehabilitation Centre in a treatment plan (OCF-18) submitted on February 12, 2017 and denied on January 11, 2018?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULTS
4The applicant is not entitled to any medical and rehabilitation benefit for physiotherapy treatment.
5No interest is owing.
6No award is owing.
BACKGROUND
7The applicant (34 years of age at date of the accident) was involved in an accident on June 22, 2014. She complained after the accident of jaw pain relating to airbag deployment but did not report at the time any other injuries.1 The applicant was employed in manual labour, full time at [a finishing services company]. Diagnostic imaging of the cervical spine at [the Hospital] came up negative.2
8The applicant attended at her family doctor, Dr. R. Kirubaharan, on June 23, 2014, complaining of headaches, her right shoulder, her left arm and her low back.3 Her doctor assessed her with neck sprain and lower back pain and a note for physiotherapy and massage therapy was made. The applicant saw her doctor again on July 14, 2014 with similar complaints and a similar assessment by her doctor.4
9On May 4, 2015, the applicant’s family doctor identified a right shoulder mass that had been painful for about two years. The doctor assessed it as a sebaceous cyst and recommended it be removed.5 There is no evidence before me that it was ever removed.
10The applicant saw her family doctor on February 16, 2016 complaining of right chest wall pain. The applicant saw her family doctor on May 22, 2016 with complaints about the right shoulder and scapular pain. Her doctor prescribed physiotherapy and message therapy. There are no indications in the medical notes indicating whether these complaints were accident-related, or work-related.6
11The applicant saw her family doctor on December 22, 2016 with complaints of right shoulder pain off and on. She indicated that the pain was work-related. A referral for physiotherapy and message therapy was made.7 She saw her family doctor on May 2, 2017 complaining of right shoulder pain and again on July 21, 2017. The clinical notes indicate that the applicant indicated the pain was aggravated by movement and heavy lifting.8
12The applicant complained of lower back pain to her family doctor on June 25, 2018. This was the first time since July 7, 2014 of her complaining of lower back pain. The applicant saw her family doctor on November 14, 2018 in relation to right shoulder pain. On December 21, 2018, the applicant saw her family doctor for ongoing lower back pain.9
13The applicant complained of low back pain and posterior neck pain to her family doctor on April 9, 2019. She noted that her job requires standing for long periods of time. On June 6, 2019, the applicant complained to her doctor of mid and low back pain as well as bilateral shoulder pain.10
14On April 23, 2020, the applicant complained to her doctor of left-sided shoulder pain and discomfort.11
ANALYSIS
Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,165.00 for physiotherapy treatment recommended by Zarrabian Rehabilitation Centre in a treatment plan (OCF-18) submitted on February 12, 2017 and denied on January 11, 2018?
15For the reasons set out below, I find that the treatment plan is not reasonable and necessary.
16In order to for an insured to be entitled to accident benefits under the Schedule, the impairment must be caused by the motor vehicle accident. I find here that there is not enough evidence on a balance of probabilities, to show that the applicant’s continuous shoulder, neck and back pain, was caused by the 2014 accident. Further, and in any case, I do not find that the applicant has demonstrated that the treatment is reasonable and necessary.
17Under section 15, the applicant must demonstrate that the medical benefits claimed are reasonable and necessary. In order to be payable, section 16 of the Schedule requires that the medical benefits reduce or eliminate the effects of any disability resulting from the accident.
18There is no dispute that the applicant has ongoing complaints of right shoulder pain, and, more recently, of mid and low back pain. The issue instead is whether the cause of that pain is as a result of the 2014 accident and, if so, whether treatment is reasonable and necessary.
19The applicant’s position is that the right shoulder pain was caused by the accident, because there was no pre-accident complaint set out in the applicant’s pre-existing medical records.
20I find however there is not enough information in the medical clinical records to clearly identify the cause of the continuous right shoulder pain or that the pain was caused by the 2014 accident. For example, the sebaceous cyst in the right shoulder could be the cause of the right shoulder pain, as there has been no evidence, that it was ever removed. The applicant’s manual labour job, and her current age (40), could also be the cause of the continuous right shoulder pain. The applicant when she saw her family doctor on December 22, 2016 with complaints of right shoulder pain, indicated that the pain was work-related. The clinical notes indicate that the applicant indicated the right shoulder pain was aggravated by movement and heavy lifting, which I find is a work-related injury, and not an accident-related injury.
21Further, I find the cause of the applicant’s mid to low back pain issue is also not clearly stated in the medical records. The applicant’s complaint on June 25, 2018 was almost four years since she made the first complaint. She also indicated that her job requires her to stand for long periods of time which could also be a factor causing her back pain. I agree that it is reasonable to assume, given her infrequent complaints of back pain in the six years post-accident, that the back pain is caused by her working conditions, and not by the accident. I was not persuaded by the applicant’s submissions that her back pain can be directly attributed to the 2014 accident.
22The applicant’s position is that the treatment plan will facilitate pain reduction, increased range of motion, an increase of strength and would facilitate a meaningful recovery for the applicant. While the applicant’s doctor has continuously recommended that the applicant get physiotherapy and massage therapy for her pain since 2014, I find the recommendations are not linked to the accident. I note that the applicant has already been receiving physiotherapy and massage therapy through her husband’s group benefits plan to date.
23However, there is no evidence before me that further physiotherapy services will reduce or eliminate the effects of the applicant’s pain. The fact that she still has pain after she has had physiotherapy and massage therapy for several years, indicates to me that maximum medical benefit has likely been reached. Even if causation were not an issue, I was not persuaded by the applicant’s submissions that further facility-based treatment is reasonable and necessary six years post-accident for her infrequent pain complaints that cannot be directly attributed to the 2014 accident. Accordingly, I find the applicant is not entitled to payment for the treatment plan in dispute as she has not met her burden to demonstrate that it is reasonable and necessary.
INTEREST
24As no benefits are owing, there is no interest owing pursuant to section 51 of the Schedule.
AWARD
25The applicant also sought an award under s. 10 of O. Reg. 664. Section 10 permits the Tribunal to make an award against an insurer if the insurer has unreasonably withheld or delayed the payment of benefits. Having determined that the applicant is not entitled to the sole benefit in dispute, I find there is no evidence before me that the respondent unreasonably withheld or delayed the payment of benefits to justify an award.
26Accordingly, I find that there is no award owing.
ORDER
27The applicant is not entitled to the treatment plan in dispute, interest or an award.
Released: January 18, 2021
Robert Watt, Adjudicator