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:
M.T.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Nicole Corriero, Counsel
For the Respondent:
Paul Irish, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on December 15, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2The applicant applied for certain medical benefits that were denied by the respondent, Aviva Insurance Canada. 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:1
i. Is the applicant entitled to medical and rehabilitation benefit in the amount of $2,892.04 for chiropractic services recommended by Spinal Touch Wellness Centre in a treatment plan dated and submitted on July 6, 2017, and denied on July 19, 2017?
ii. Is the applicant entitled to the cost of an examination in the amount of $2,520 for a neurological assessment recommended by Dr. Inese Robertus in a treatment plan dated August 21, 2019, submitted on August 30, 2019, and denied on September 13, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based upon the totality of the evidence presented, I find that the applicant is:
a. entitled to the medical benefit for chiropractic services in the amount of $2,892.04;
b. not entitled to the cost of examination for a neurological assessment in the amount of $2,520.00; and
c. entitled to interest on the incurred amount for the approved treatment plan.
PRELIMINARY ISSUES
Applicant’s Production of Medical Evidence after Deadline
7The respondent submits that the medical evidence located at pages 78 to 81 of the applicant’s initial submission should be excluded as the Tribunal’s Direction, dated November 5, 2019, required productions to be exchanged on or before January 6, 2020. The documentation that the respondent refers to is an October 25, 2019 report from the applicant’s long-time treating physician, Dr. Robert Athey of Streetsville Medical Centre. The applicant submitted this report along with her initial written submissions on January 23, 2020, about two weeks after the deadline. The respondent asserts that it would be unfair for the Tribunal to consider this new evidence.
8While acknowledging that service of the report was approximately two weeks late, the applicant takes the position that the report is important as it is from the applicant’s treating physician who is able to provide the most accurate and unbiased insight into the applicant’s disability. The applicant alleges that the report speaks directly to the issues of causation, prognosis, and recovery, all of which are central to the position of the respondent. That the evidence in the report is irreplaceable and its exclusion would render the applicant at a substantial disadvantage, especially considering the presence of multiple insurance assessments that stack the odds against the applicant. The applicant further asserts that the respondent is a sophisticated insurer with capable counsel who could have raised the issue immediately and requested an adjournment to allow it to respond instead of including its objection in the body of its submissions.
9I have considered the respondent’s arguments in their entirety and believe that the report of the treating physician is relevant and should be considered. I note that the applicant produced the report about two weeks late and prior to when the respondent’s responding submissions were due. At that time, the respondent could have raised the issue and sought additional time to review and assess the report. It chose not to do so.
10In addition, I find that the prejudice to the applicant in not considering her treating physician’s report is too great in comparison to the prejudice to the respondent in this regard. I further note that the medical evidence in the report consists, in part, of a summary of her family physician’s clinical notes over the years which were timely produced and known to the respondent.
11Given the above, I have considered the report of Dr. Athey.
Length of the Applicant’s Reply
12The respondent submits that the applicant breached paragraph 5(i) of the Tribunal’s Direction stipulating that the applicant’s reply submission will not exceed five [5] pages, and that the parties’ submission are to be double spaced, 12 point, Arial or Times New Roman font. The reply submissions were five pages and single spaced. The respondent asserts that the applicant used double the allotted page length, which is procedurally unfair and highly prejudicial to the respondent and, thus, the reply submissions should not be considered by the Tribunal.
13I have reviewed paragraph 5(i), which states:
The applicant’s and respondent’s submissions will not exceed fifteen [15] pages, double spaced, 12 point, Arial or Times New Roman font. The applicant’s reply submission will not exceed five [5] pages. The page limits are exclusive of evidence and case law. The hearing adjudicator may not consider submissions which exceed the page limits.
14While it is clear that the initial submissions should be double spaced. The same can not be said for the applicant’s reply submission. The applicant correctly points out that there is no direction that her reply submission be double spaced.
15Nonetheless, I can understand the respondent’s position in this regard and note that there appears to be an implication that the reply submission also be double spaced. However, I must consider the plain language of paragraph 5(i) upon which the applicant relied when preparing the reply submission. Notably, there is no specific requirement that the reply submission be double spaced. In addition, I do not believe the prejudice to the respondent is so great as to warrant the relief sought.
16I have considered the applicant’s reply submission because to do otherwise would be procedurally unfair and prejudicial to the applicant.
DISCUSSION
A. Entitlement to the Chiropractic Treatment Plan in the amount of $2,892.04
17Based upon a totality of the evidence presented, I find that the applicant is entitled to the medical benefit for chiropractic treatment in the amount of $2,892.04.
18The 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. I find that the applicant has met her burden.
19The treatment plan states that the injuries and sequelae that are the direct result of the automobile accident include, whiplash associate disorder [WAD2] with compliant of neck pain with musculoskeletal signs, radiculopathy, sprain and strain of the thoracic spine, sprain and strain of lumbar spine, headache, fibromyalgia, other anxiety disorders, post concussion syndrome and other chronic pain. The goals of the treatment are pain reduction, increase in strength, increased range of motion, return to activities of normal living and a return to modified work activities. The plan includes 20 physical rehabilitation and therapy sessions.
20The applicant states that, despite the denial of the treatment plan, she has completed the chiropractic sessions because they were necessary for her continued pain management after the accident, and she wanted to limit her vocational restrictions. She states that, while the physical treatments did not “cure” her symptoms, they provided temporary pain relief and aided her in her multiple efforts to continue working as a nurse at William Osler Health System. She asserts that her ongoing problems with fibromyalgia necessitated physical intervention.
21I 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 persistent neck, shoulder and left arm pain as a result of the motor vehicle accident. She also experiences headaches and is prescribed various medication to assist in her pain management and fibromyalgia. I note that, prior to the motor vehicle accident, she managed household duties and was working full-time, but now has difficulties given her pain symptoms and physical impairments. Over the years, she has tried pain medications, anti-inflammatories, cortisone injections, nerve blocks, and various treatments to manage her pain symptoms.
22I found convincing the clinical notes and records of the applicant’s treating family physician, Dr. Robert Athey. Dr. Athey has been the applicant’s primary physician for nearly a decade and, since the time of the motor vehicle accident, has consistently noted her physical pain symptoms and attempts to manage her pain. For instance:
i. A July 7, 2016 note states she “had a bad week – upper back and shoulder in particular have been painful.
ii. A September 21, 2016 note states “fibromyalgia started acting up – had to miss the week from work”, “had to miss Sept 17 until now due to shoulder, neck and upper back pain being aggravated things”, “shoulder and back still very painful.”
iii. A November 23, 2017 note states “pain is up to 10/10, in particular in hands and legs which are burning. Very frustrated, Insomnia has been horrible also.” “Was last seen at pain clinic in June – injections didn’t work at that time.”
23In his medical report dated October 25, 2019, Dr. Athey notes that the applicant has an ongoing need for treatment stating that “she most definitely will require and potentially benefit from ongoing physical therapy, psychotherapy and will almost certainly require ongoing medical treatment.”
24Also persuasive is the medical report, dated April 19, 2017, of Dr. Biruk Habteselassie of the CPM Centres for Pain Management, who states that the applicant suffers from chronic neck pain possibly due to degenerative disc disease and myofascial pain disease, and left shoulder pain possibly due to myofascial pain disease and rotator cuff tendonitis. He recommended continued treatments to improve her core strength and mobility.
25I did not find especially persuasive or thorough the IE physiatrist reports, dated January 10, 2017, February 5, 2018 and June 25, 2018, of physiatrists Drs. Tonya Ballard and Andrzej Gwardjan. Dr. Ballard diagnosed uncomplicated soft tissue injuries as a result of the accident and identified no physical impairment. Dr. Gwardjan opined that the applicant sustained uncomplicated soft tissue injuries predominately to the neck and left shoulder area without objective evidence of serious musculoskeletal trauma. He diagnosed her with WAD type II and left shoulder sprain/strain. The assessment revealed no signs consistent with ongoing residual physical accident-related impairments despite reported pain and found that further facility-based physical rehabilitation was not reasonable and necessary.
26I have also considered, and found unconvincing, the respondent’s argument that the applicant has not met the “but for” test because, prior to the accident, she was experiencing pain symptoms and had a long-standing history of fibromyalgia that had been a persistent factor in her life both before and after the accident. The respondent points out that, about 10 days before the accident, the applicant’s fibromyalgia was acting up, and after the accident she had two slip and fall incidents, in late March 2016 and January 25, 2019, which all contributed to her current condition and exacerbated her fibromyalgia. It also highlights that her persistent complaints related to fibromyalgia have forced her off of work and that she now receives long-term disability benefits. The respondent points out that the applicant has failed to prove that her impairment would not have developed but for the accident having occurred.
27To the contrary, I find that the medical evidence establishes that her condition was exacerbated by the accident. I found especially persuasive the opinion of the applicant’s treating physician, Dr. Athey. In his report, Dr. Athey notes that, prior to the accident, the applicant suffered from widespread muscle achiness and pain and intermittent fatigue and insomnia. In July 2012, she was “diagnosed with chronic myofascial pain syndrome (or fibromyalgia).” Dr. Athey notes that “as expected with this condition, her symptoms would often wax and wane, but rarely affected her ability to work or function at home prior to December 2015.” He states that she was able to function both at work and at home with little, if any, limitation in her activities. However, after the accident, her generalized body pain worsened, she was able to return to work after some time, but her pain was much worse, at 9 out of 10 severity in late February 2016.
28In addition, Dr. Athey states that while she returned to work in 2016 and 2017, she was unable to perform her job in a safe and effective way and for the year prior to the date of the report she had been unable to work in any capacity. She now has significant insomnia, her pain level is much worse, and her emotional state has also declined. Finally, he notes that “clearly the accident caused the fibromyalgia to worsen to a very significant degree.” He states:
While the accident primarily resulted in soft tissue injuries to her L shoulder, neck and upper back, the most significant result from a health point of view was a clear exacerbation of the fibromyalgia. Since the accident, [M.T.]’s health has significant deteriorated, to the point that she has been unable to work for some time, and is only able to complete the minimum of house keeping tasks.
29With regards to her falls after the accident, I note that Dr. Athey makes clear that the applicant’s pre-existing condition was exacerbated by the accident and he does not assign much significance to her falls. I found his opinion to be convincing. He notes that the fall in a parking garage in late March 2016 primarily caused left hip pain. I would agree with the applicant that the fall in March 2016 had not directly resulted in complex fibromyalgia symptoms. I also note that the January 2019 fall occurred well after the date of the treatment plan at issue, July 6, 2017, and that the medical evidence establishes that, at the time of the treatment plan, the applicant was experiencing pain symptoms. I find that the evidence before me establishes that the applicant’s pre-existing fibromyalgia was exacerbated by the accident and that her impairment would not have developed but for the accident having occurred.
30I find that the medical evidence provided by the applicant is compelling in establishing that she has physical impairments and continues to experience pain which inhibits and impacts her daily activities. The goal of the treatment plan for chiropractic services is pain reduction, increase strength, increased range of motion, and endurance. I find that pain reduction, in particular, is a reasonable and legitimate goal of treatment so that the applicant is able to engage in her daily activities.
31I find the applicant has met her burden in establishing that the proposed treatment plan is reasonable and necessary to address her impairments resulting from the accident.
B. Entitlement to the Cost of Examination for a Neurological Assessment in the amount of $2,520.00
32Based upon a totality of the evidence presented, I find that the applicant is not entitled to the cost of examination for a neurological assessment in the amount of $2,520.00. I note that the onus is on the applicant to establish, on a balance of probabilities, that the treatment plan is reasonable and necessary as a result of the accident. She has not met her burden.
33I found persuasive Dr. Nagib Yahmad’s IE neurological report, dated November 18, 2019, in which he concluded that a neurological assessment was not reasonable and necessary. Dr. Yahmad conducted a physical and neurological examination of the applicant and opined that the pain that she is experiencing is not neurological in nature. He noted that the applicant complained of memory decline in the context of pain and decreased sleep with tiredness which are not neurological in nature. Further, that there is no evidence of any significant traumatic brain injury as she did not lose consciousness, was not confused and was oriented to place, person and time, and there was no evidence of post-traumatic amnesia. He found no neurological diagnosis that was detected from a strict physical and neurological perspective as a direct result of the motor vehicle accident.
34In denying the treatment plan, the respondent further noted that the applicant was already under the care of an OHIP funded neurologist, Dr. Gasper Israelian, and that a further neurological assessment would be a duplication of services.
35The applicant submits that Dr. Israelian found that the applicant may still be irritating her ulnar nerve to get the episodic numbness in digits 3, 4 and 5, and he gave her a special ulnar nerve sheath. Given this, the applicant asserts that while her symptoms are not obviously “neurological,” she required a nerve sheath and there was ulnar nerve irritation. Thus, at the very least, this warranted further exploration in the hopes of ultimately resolving the issue. The applicant further asserts that the medical evidence supported the possibility of a neurological disorder and it is reasonable for her to seek out another neurologist’s opinion. I am not persuaded by this argument.
36I note that the applicant was referred to Dr. Israelian by her treating physician Dr. Athey for her ongoing pain symptoms. In his report, Dr. Athey records that Dr. Israelian ordered a number of neurological investigations including, an Echo, stress test, loop monitor and tilt test. Notably, Dr. Athey states that none of the tests showed anything concerning.
37In addition, Dr. Athey states that the applicant had “another neurologic assessment” on April 15, 2019 because of the tingling and numbness. Again, there were no abnormalities found on the EMG and nerve conduction testing. Dr. Athey is referring to OHIP funded neurologist Dr. Ahmad Ghavanini of Credit Valley Hospital who was referred for consultation with regards to a neurological cause for the applicant’s pain. Dr. Ghavanini notes that after extensive investigations there was no evidence of a neurological structural disease explaining the applicant’s symptoms, and he recommended no further investigations or need for regular follow up.
38It appears that the applicant has been under the care of neurologists and that assessments and testing did not reveal anything concerning from a neurological perspective.
39Given the above, I do not believe that the applicant has met her burden in establishing that a neurological assessment is reasonable and necessary. I find that she is not entitled to the cost of examination for a neurological assessment.
C. The Applicant’s Entitlement to Interest
40The applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for the approved treatment plan for chiropractic services.
ORDER
41After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that the applicant is:
a. entitled to the amount of $2,892.04 for chiropractic services;
b. not entitled to the amount of $2,520.00 for a neurological assessment; and
c. entitled to interest on the incurred amounts for the approved treatment plan in accordance with the Schedule.
Released: January 11, 2021
Rupinder Hans
Adjudicator
Footnotes
- The Tribunal’s November 5, 2019 Direction listed a third issue, specifically the cost of examination in the amount of $2,200 for a psychological assessment recommended by Dr. Judith Pilowsky in a treatment plan dated and submitted on June 21, 2016 and denied on July 7, 2016. However, in its submissions, the respondent advised that this issue was moot as it was included in an earlier application before the Tribunal, Tribunal File Number 18-001735/AABS, and that the parties settled the issue at a June 12, 2018 case conference. The applicant does not dispute this in her reply submissions. As such, I have not considered this issue as this treatment plan is no longer in dispute.