Licence Appeal Tribunal File Number: 20-008806/AABS
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:
Ebony Wright
Applicant
and
The Personal
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Ebony Wright, Applicant
Charles Gluckstein, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD: In Writing
Heard by way of written submissions
BACKGROUND
1The applicant was injured in an automobile accident on July 5, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 20101 (the “Schedule”).
2The applicant applied for certain medical benefits that were denied by the respondent, The Personal. The applicant disagreed with this decision and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
3The applicant is not in the Minor Injury Guideline as defined in subsection 3(1) of the Schedule.
4A written hearing was scheduled, and a review of the evidence and submissions forms the basis for the decision.
ISSUES IN DISPUTE
5The following are the issues to be decided:
i. Is the applicant entitled to $3,358.68 for chiropractic services recommended by Total Health and Sport Performance in a treatment plan (OCF-18) dated June 13, 2020?
ii. Is the applicant entitled to $1,700.00 for physiotherapy and chiropractic services recommended by Sportside Medical Services in a treatment plan (OCF-18) dated November 30, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based upon the totality of the evidence presented, I grant the application in its entirety.
DISCUSSION
A. The treatment plans
7I have reviewed the submissions and evidence and find both treatment plans, dated June 13, 2020 and November 30, 2020, to be reasonable and necessary. My reasons are as follows.
8I note that the test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses as a result of the accident. The onus is on the applicant to establish that she meets this test on a balance of probabilities.
9I note that the injuries listed in the June 13, 2020 treatment plan include cervicalgia, generalized anxiety disorder, sprain and strain of joints and ligaments of other and unspecified parts of neck, low back pain and sprain and strain of sacroiliac joint. The treatment plan notes that the applicant’s impairments from her accident related injuries include her ability to carry out her activities of normal life. The goal of the treatment plan is pain reduction, increase in strength, increased range of motion and return to modified work. The treatment plan includes twenty-eight sessions of therapy to multiple body sites.
10The November 30, 2020 treatment plan lists the applicant’s injuries as whiplash associated disorder [WAD3] with complaint of neck pain with neurological signs, sprain and strain of shoulder joint, rotator cuff capsule and tension-type headache. The treatment plan notes that the applicant is in school to be a chef and the use of her arm is proving difficult throughout her shifts. The goals of the treatment plan are similar to the previous treatment plan and include a return to activities of normal living. The plan includes 12 weeks of therapy and exercise for her head, neck, back and shoulder joint.
11The treatment plans contain goals that are relevant to the applicant’s subjective situation, including pain reduction, increase in strength and increased range of motion. The applicant submits that the treatment plans are geared towards improving her functional levels, reducing her pain and improving her emotional state which are reasonable and necessary goals according to the Schedule. She submits that since the accident she has repeatedly reported to her treatment providers her ongoing pain symptoms and physical impairments and that treatment has proven effective.
12I find that there is compelling medical evidence from her treatment providers demonstrating that the applicant continues to experience accident related pain and has physical impairments that impacts her functional levels and the tasks of normal living.
13A clinical note from Total Health & Sports Medicine, dated June 3, 2020, states the applicant reports ongoing aching pain in back, neck and shoulder on a daily basis, and that the pain limits her from being in the kitchen as long as she can. At the time, she was pursing work in the culinary field. A June 6, 2020 clinical note states that her pain is aggravated from being up on her feet all day and she needs to take breaks to help with the pain. She reports her pain level at 6-7. A March 16, 2020 clinical note states that the applicant reports the pain in her low back is constant at 7.5-8/10, and that since the accident, she has been taking pain medication as needed. She also complains of neck and mid-back pain mostly on the left side and reports that the pain is ongoing at 7.5-8/10. She wakes up with pain every few nights. She was diagnosed with chronic mechanical neck and low back pain.
14When the applicant was initially assessed at Sportside Medical Services in September 2020, she reported her main complaint as neck and low back pain starting in 2014 from the accident. She reports a pain level of 4 at best and 8/10 at the worst and travelling up to her left shoulder and down to her buttocks. She reports that she has sharp pain in the low back that is aggravated with bending, lifting, sweeping and standing for long periods of time. She also advised that activities such as sweeping aggravate the pain and that massage and stretching help relive the pain. She reports that therapy has assisted her in the past. An October 8, 2020 clinical notes states that her low back is getting better with consistent treatment and rehabilitation.
15Her treating family doctor, Dr. Robert Ames, in a June 27, 2019 clinical record notes her chronic pain.
16The neurological report of Dr. Irina Valentin, psychologist, dated August 17, 2019, notes that the applicant reports continued pain in her neck, lower back, left and right shoulders, and headaches. Since the accident, she has experienced difficulty maintaining employment due to physical requirements, including bending under the popcorn machine at Cineplex and an inability to stand for long periods of time at Designer Shoe Warehouse. The results of the psychological measures indicate that the applicant has a great deal of concern about her physical functioning. She is diagnosed with neurocognitive disorder (mild, not otherwise specified), major depressive episode (moderate), post-traumatic stress disorder and somatic symptoms disorder. Her physical limitations and functioning have caused emotional stresses.
17I find the applicant receives pain relief and improved physical functionality from engaging in physical treatment. There is evidence of this in the medical evidence including, as set forth above, in the clinical notes and records from Sportside Medical Services. In addition, Dr. Amena Syed, in the Insurer’s Examination (“I.E.) psychological assessment report, dated April 10, 2017, notes the applicant reports physiotherapy, massage therapy and chiropractic treatment all help alleviate her pain and that her physical complaints were headaches, neck, shoulder and upper and lower back pain which she describes as constant and worsening since the accident.
18The IE physiatry assessment report of Dr. Raymond Zabieliauskas, physiatrist, dated August 14, 2017, and the conclusion that no further facility-based treatment is required do not outweigh the balance of the evidence. Dr. Zabieliauskas’ conclusion was reached in 2017, about 3 years prior to the treatment plans at issue, and was based on the applicant not exhibiting any physical limitations which required treatment. As acknowledged by the respondent, Dr. Zabieliauskas did not review the treatment plans in dispute. Dr. Zabieliauskas notes the applicant was healthy prior to the accident and that she sustained a cervical strain WAD II and thoracolumbar strain as a result of the accident. He further notes the applicant’s ongoing musculoskeletal pain caused her to leave her employment delivering newspapers in 2014, and thereafter her job as a hostess, cashier, and cleaner for More Fun with Bounce as it was too demanding on her back. Dr. Zabieliauskas notes that she continues to experience residual pain.
19Given the medical evidence provided, in particular, by the applicant’s recent treatment providers, I am not convinced by the respondent’s submission that the applicant has reached maximum medical recovery based on the time that has elapsed since the accident and the treatment already received. I find that the applicant’s pain complaints as a result of the motor vehicle accident are credible and consistent with the evidence presented. I find that she continues to experience ongoing pain symptoms as a result of the motor vehicle accident as evidenced in the medical evidence presented. Over the years, she has tried pain medications and various physical treatments to manage her pain symptoms and improve her daily functionality.
20I have also considered, and found unconvincing, the respondent’s argument that the applicant has not met the “but for” test and that the causal link to the 2014 accident is questionable based on the medical records. The respondent submits that her family physician, Dr. Ames, notes the applicant has gained weight since the accident. The respondent submits that this has likely contributed to the worsening of her symptoms and that Dr. Ames links the weight gain to polycystic ovary syndrome disorder (“PCOD”) which causes hormonal imbalance. The respondent also submits that the applicant has been diagnosed with metatarsalgia, which is a condition where there is pain in the ball of the foot where the long bones of the foot meet the toe bones, and it can be caused by arthritis, bone inflammation, foot strain, uncomfortable shoes or abnormal structures in the foot.
21The respondent submits that life events, including but not limited to, weight gain, PCOD, metatarsalgia, jobs, vigorous sports (such as rugby), and a vocational program (culinary arts program) that requires her to stand for prolonged periods are the cause of her back and neck pain rather than the accident. The applicant counters that this is purely speculative as there is no medical opinion supporting this argument and that the respondent’s own medical assessor, Dr. Zabieliauskas, did not opine that anything other than the subject accident was the cause of the applicant’s ongoing pain.
22I agree with the applicant’s submission in this regard. I find that the medical evidence is compelling in establishing, on a balance of the probabilities, that the applicant has been experiencing ongoing pain and physical impairments since the accident, and as a result of the accident, and that she has continued to seek medical care and treatment to manage her pain symptoms and functional limitations. There is insufficient evidence before me to conclude that the applicant’s ongoing pain symptoms and functional limitations are the result of life events as proposed by the respondent and not the accident. There is no compelling medical evidence presented that shows that the PCOD, weight gain, a condition impacting the ball of the applicant’s foot, or any other reason are possible causes of her ongoing neck, shoulder or back pain.
23I further note that the most recent IE report provided to the Tribunal by the respondent was Dr. Zabieliauskas’ report, dated August 14, 2017, and he did not opine that anything other than the subject accident was the cause of the applicant’s neck and back pain. The respondent provided no further updated IE assessment that would support its submissions that life events are the cause of the applicant’s ongoing pain.
24I find that the medical evidence is compelling in establishing that the applicant has physical impairments and continues to experience pain which inhibits and impacts her daily activities as a result of the accident. She has found that treatment has assisted her in the past. The goals of the treatment plans to provide pain relief and improved functionality are reasonable and necessary. I find that pain reduction, in particular, is a reasonable and legitimate goal of treatment.
25I find the applicant has met her burden in establishing that the proposed treatment plans are reasonable and necessary to address her impairments resulting from the accident.
B. The Applicant’s Entitlement to Interest
26The applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for both approved treatment plans.
ORDER
27After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that the application is granted in its entirety.
Released: December 29, 2021
Rupinder Hans
Adjudicator
Footnotes
- O. Reg. 34/10, as amended