Elena Salfi v. Travelers Canada, 2021 CanLII 28663

Citation: Salfi v. Travelers Canada, 2020 ONLAT 19-008690/AABS

Release date: 2021/03/05

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:

Elena Salfi

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: William C. Wolfe, Counsel

For the Respondent: Julie Grajales, Counsel

HEARD: by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on July 6, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits, and in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The issues in dispute for this hearing are:

i. Is the applicant entitled to receive a medical benefit in the amount of $2,907.44 for chiropractic treatment recommended by The Posture Clinic in a treatment plan submitted February 14, 2019 and denied on June 6, 2019?

ii. Is the applicant entitled to receive a medical benefit in the amount of $4,160.00 for chiropractic treatment recommended by The Posture Clinic in a treatment plan submitted February 14, 2019 and denied on June 6, 2019?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,840.00 for chiropractic treatment recommended by The Posture Clinic in a treatment plan submitted February 14, 2019 and denied on June 6, 2019?

iv. Is the applicant entitled to receive a medical benefit in the amount of $3,300.00 for chiropractic treatment recommended by The Posture Clinic in a treatment plan submitted February 14, 2019 and denied on June 6, 2019?

v. Is the applicant entitled to receive a medical benefit in the amount of $153.66 for chiropractic treatment recommended by The Posture Clinic in a treatment plan submitted February 14, 2019 and denied on June 6, 2019?

vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the medical benefits in dispute. Interest is not payable.

BACKGROUND

4The applicant was the driver of a car which was struck from behind while waiting to make a left turn. Following the collision, the applicant was taken by ambulance to the hospital and x-rayed due to complaints of neck pain. Imaging revealed no fractures and the applicant was discharged. She visited her family doctor, Dr. R. Neville, about a week later, and complained of neck problems and general stiffness. Dr. Neville assessed the applicant and observed some reduction in her neck rotation and flexion but made no treatment recommendations during that visit.

5A few weeks later, the applicant had an MRI on her head, neck and back. Her thoracic spine was mostly normal but showed mild degenerative disc disease. Her cervical spine showed a progression of disc degeneration and disc protrusion at C6-7 with no cord compression. Lumbar spine and head imaging were entirely normal.

6The applicant was off work for one week following the accident. She returned to full-time work and is now an administrator in a health services clinic. She maintains that she struggles at work, but her chiropractic treatment has permitted her to continue working.

7The respondent initially characterized the applicant’s injuries sustained in the subject accident as a minor injury, as defined in section 3(1) of the Schedule, and subjected her to the Minor Injury Guideline (the “MIG”). Later, in February 2017, the respondent removed the applicant from the MIG and increased her funding limit on treatment to up to $65,000.00.

8The applicant was removed from the MIG because, at the time of the subject accident, she was still recovering from injuries sustained in a motor vehicle accident in 2011. She sustained significant soft-tissue injuries to her neck, back and arm as well as psychological injuries as a result of the prior accident. The applicant settled her 2011 accident benefit claim on a full and final basis in August 2015, about two months following the subject accident.

9Dr. I Horseman, chiropractor, treated the applicant for her injuries sustained in the 2011 accident and continued to treat her following the 2015 accident. Eventually, on February 14, 2019, Dr. Horseman submitted the five treatment plans proposing chiropractic treatment for the applicant.

10The respondent initially denied funding for the five chiropractic treatment plans on the opinion of Dr. J. Getsos, chiropractor, who previously assessed the applicant and produced a report dated January 19, 2017. Dr. Getsos noted that the applicant advised that she had returned to her pre-2015 accident baseline about two months following the subject accident and found no evidence to “objectively substantiate the presence of any ongoing impairment related to the subject accident”.

11The respondent also sought another opinion and had Dr. V. Tester, chiropractor, conduct an insurer’s examination (“IE”). The report from that examination, dated May 24, 2019, maintained the respondent’s denial because the applicant showed inconsistent signs of physical impairment and signs of symptom magnification and found that she had reached maximal medical recovery given her lack of progression, limited level of recovery and self-reported short-term benefit of treatment.

12In turn, the applicant has provided reports from Dr. Horseman dated October 31, 2016 and February 12, 2020. In both reports, Dr. Horseman felt that the applicant needs to continue chiropractic treatment. In the latter report, Dr. Horseman advises that continued chiropractic treatment is necessary for the applicant to maintain her employment and keep her symptoms to a manageable level.

ANALYSIS

13Combined, the disputed treatment plans propose around 200 sessions of chiropractic treatment and one instructional session. All the treatment plans note that the applicant’s impairments restrict her from completing her activities of normal life. Two of the plans note that her impairments restrict her from completing her work tasks, but three do not.

14The applicant submits that the treatment plans are reasonable and necessary to provide her with pain relief and improve her function to maintain employment.

15The respondent submits that the applicant hasn’t met her onus to prove the plans are reasonable and necessary. It submits that her symptoms are a continuation of her pre-existing symptoms from the 2011 accident.

16I find on the evidence that the treatment and assessment plans are not reasonable and necessary for the applicant’s injuries sustained in the 2015 accident.

17The applicant reported that she recovered from the soft tissue injuries sustained in the 2015 accident. This occurred on at least two occasions following the subject accident. Dr. V. Kekosz, physiatrist, assessed the applicant in April 2017 and reported that the accident caused a “temporary aggravation of her previous injuries which gradually settled within a week or two.” Dr. Kekosz also noted that the applicant used extra medications for only a week after the subject accident, returning to her regular intake after. Dr. Getsos, chiropractor, noted that the applicant reported that she was back to her pre-accident status by about two months following the 2015 accident. While I agree that pain relief may be a legitimate treatment goal, the applicant’s statements regarding her recovery indicate that the pain she currently experiences is as a result of her 2011 accident.

18The applicant’s difficulties at work are primarily cognitive and there is no evidence to show that it is as a result of the subject accident. The applicant submits an October 12, 2018 email from her current employer to support her claim that the treatment plans claimed are required to provide pain relief and improve function, enabling her to maintain employment. However, I find this email unpersuasive. The email states that the applicant frequently gets headaches at work, has difficulty remembering the sequence of some tasks, has not met the employer’s expectations, and has taken “considerable time off work for chiropractors, and medical and legal appointments.” To me, this letter shows that the applicant’s predominant issue affecting her work is lingering cognitive difficulties, not pain as submitted by the applicant, and there is no compelling evidence to show that it as is as a result of the subject accident. There are hospital and doctors’ records from the period immediately following the accident and none confirm that she suffered a head injury. Further, there is no evidence to show that years of treatment with Dr. Horseman has improved the applicant’s cognition. If anything, the letter indicates that treatment with Dr. Horseman is interfering with her ability to maintain work.

19The applicant has demonstrated little to no improvement in her health as a result of Dr. Horseman’s care. Dr. Horseman’s records include two assessment reports; one from November 2016 and the other from February 2020. The similarities in the two reports are remarkable. Dr. Horseman evaluated the several aspects of the applicant’s health, including balance, coordination, visual symptoms, gait analysis, and endurance, and found that the only improvement experienced was an increase in neck extension and rotation by 5 degrees. Otherwise, the applicant’s situation was unchanged over the more than three years between reports. It is not reasonable nor necessary to continue to engage in treatment which, after three years, has provided limited functional benefit to the applicant.

INTEREST

20Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. Having found no benefits payable, I conclude that no interest is payable.

AWARD

21The applicant claims entitlement to an award under Ontario Regulation 664 and submits that the respondent was careless, stubborn, and unreasonable when it denied her entitlement to the disputed treatment plans. She submits the respondent failed to uphold its obligation to adjust the applicant’s claim in good faith and take her pre-accident medical history into account, by forcing her to commence this hearing, by ignoring caselaw which confirms pain relief as a legitimate treatment goal, and because the denial of benefits has interfered with her recovery and physical and mental well being.

22The respondent submits that it reasonably adjusted the applicant’s claim based on the medical evidence on file and according to the Schedule. It submits that it was reasonable to rely on the opinion in its IEs and that case law illustrates that transitory pain relief does not automatically entitle insureds to proposed treatment.

23I find that no award is payable as no payments were unreasonably withheld or delayed. An award is only payable in situations where the insurer has unreasonably withheld or delayed payment. Having found none of the benefits payable, I conclude that no award is payable.

CONCLUSION

24After considering the evidence and submissions, I find that the applicant has returned to her pre-accident health status. The difficulty the applicant experiences at work appears to be cognitive and there is no evidence to show that the treatment proposed will remedy the applicant’s situation. Considering this, I find that the disputed treatment plans are not reasonable and necessary for the applicant’s accident-related injuries.

25No interest is payable as no payments went overdue. Likewise, no award is payable because no payments were unreasonably withheld or delayed.