Released: January 27, 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:
NT
Applicant
and
Heartland Farm Mutual Inc.
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
NT, Applicant
Clifford Singh, Counsel
For the Respondent:
Heartland Farm Mutual Inc., Representative
Bruce Keay, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, N.T., was injured in an accident on July 21, 2017 and sought various benefits from the respondent, Heartland, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').1 N.T. sought payment for chiropractic treatment to treat her accident-related injuries. Heartland denied the benefits based on its determination that further facility-based treatment was not reasonable and necessary. N.T. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2As set out in the Tribunal application, the following issues are in dispute:
a. Is the medical benefit in the amount of $2,670.00 for chiropractic treatment recommended by Tillsonburg Family Chiropractic in a treatment plan (OCF-18) submitted on October 4, 2018, and denied on October 25, 2018, reasonable and necessary?
b. Is N.T. entitled to interest on any overdue payment of benefits?
c. Is Heartland liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to N.T.?
FINDING
3I find N.T. is not entitled to payment for the treatment plan in dispute, as she has not met her onus to prove that it is reasonable and necessary. As there is no benefit due, interest and an award are not payable.
ANALYSIS
4Pursuant to s. 15 of the Schedule, the burden is on N.T. to demonstrate that the treatment she seeks for her accident-related impairments is reasonable and necessary on a balance of probabilities. I find N.T. has failed to demonstrate that the treatment plan is reasonable and necessary.
5N.T.’s position is that the chiropractic treatment plan, which proposed 20 one-hour treatments of “stimulation muscles of head and neck” and an additional 20 one-hour sessions of “manipulation spinal vertebrae”, in the amount of $2,670.00 is reasonable and necessary because of the challenges she faces attempting to reintegrate into her pre-accident routine due to the physical restrictions she developed post-accident. N.T. relies on various clinical notes and records from her family physician, Dr. Sohla, her psychologist, Dr. Pilowsky, and the records from Tillsonburg Family Chiropractic to demonstrate that further facility-based treatment is reasonable and necessary.
6In response, Heartland submits that all of the medical evidence indicates that N.T. sustained soft-tissue injuries as a result of the accident that do not warrant further facility-based treatment. In denying this claim, Heartland relies on the s. 44 opinion of Dr. Clifford, who determined that further facility-based treatment was not reasonable and necessary in the reports dated March 14, 2018 and April 17, 2019. Heartland further relies on diagnostic imaging results that revealed normal findings, and no neurological findings, as noted in a report from physician Dr. Burns dated October 19, 2017. Heartland further submits that surveillance evidence suggests that the description of the injuries and sequela set out in the OCF-18 are either inaccurate or no longer relevant regarding N.T.’s functional capacity. Heartland argues that there is no objective evidence to support N.T.’s claim that further passive modalities of treatment are reasonable and necessary.
7On the medical evidence, I agree with Heartland. I am sympathetic to N.T.’s subjective reports of pain, however, I agree that there is limited medical evidence to support her claim that her physical impairments require ongoing facility-based treatment. I find the evidence suggests her physical impairments are not solely as a result of the accident. With a significant pre-accident health history of chronic pain, there is little evidence to suggest that the passive treatment N.T. seeks has been beneficial in providing relief from her accident-related injuries, thereby failing to demonstrate why the specific treatment proposed is reasonable and necessary.
8Upon review, I find that the chiropractic notes show that there has been little benefit from the treatment received in the year post-accident, between September 2017 and September 2018, as the medical reports show that N.T. continued to complain of the same symptoms with little change. As mentioned, N.T.’s significant chronic pain history in her neck and back has not been shown to have been exacerbated by the accident. Pre-accident, she complained to her pain specialist that her “pain was punishing”. Heartland’s position is that N.T.’s ongoing pain complaints and claim for treatment have not been established to be accident-related but rather are a continuation of her pre-accident pain complaints.
9In his report, Dr. Clifford opined that ongoing passive therapy is no longer reasonable and necessary, as N.T. is past the acute phase of her recovery and should be engaged in a more active stage of recovery. Dr. Clifford concluded that ongoing passive therapy can reinforce a person’s sense of disability and is often counterproductive. Based on this opinion, Heartland maintains that N.T. has failed to establish that the OCF-18 is reasonable and necessary.
10With Dr. Clifford’s reports in mind, I find limited support for further facility-based treatment in the remaining medical evidence. N.T.’s pain complaints are similar to those made pre-accident. The extensive level of pre-accident chronic pain treatment has not been increased as a result of the accident. Finally, I find that her self-reporting of pain during the course of receiving the same treatment she currently seeks additional funding for also weakens her claim for further similar treatment that appears to have minimal benefit.
11For these reasons, I find no reason to interfere with Heartland’s determination, based on Dr. Clifford’s s. 44 reports, that the OCF-18 is not reasonable and necessary. As there is no overdue payment of benefit, it follows that no interest is payable under s. 51.
AWARD
12N.T. also seeks an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
13I find an award is not appropriate for several reasons. N.T. made no submissions regarding her claim for an award. Heartland based its determination on the reports of its s. 44 assessors, which is not a ground for an award claim. There was no delay in any funding provided by Heartland, as two previous OCF-18s for the same treatment were fully funded by the insurer; thus, there was no unreasonable withholding or delay of benefits in N.T. receiving treatment prior to Heartland’s denial of the current OCF-18. Finally, as discussed above, N.T. did not provide sufficient medical evidence to satisfy her onus to establish that the OCF-18 is reasonable and necessary. Consequently, as no benefits are payable, there are no grounds to order an award under s. 10.
DISCUSSION
Non-compliance with Tribunal Order
14Heartland submits that N.T.’s submissions failed to adhere to the terms of the Tribunal Order which set out the font, spacing and page allotment for submissions. Specifically, Heartland argues that both the spacing and number of pages do not comply with the Order.
15While I agree with Heartland’s position, given my decision on the disputed issues, I find no reason to make a finding regarding the non-compliance. All relevant submissions and evidence were considered, and I find there is no prejudice to Heartland in considering the entirety of N.T.’s submissions.
ORDER
16N.T. has not demonstrated that the OCF-18 for chiropractic is reasonable and necessary under s. 15. As no benefits are due, it follows that interest and an award are not payable.
Released: January 27, 2021
Derek Grant, Adjudicator