Release date: 2021/03/25
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:
Svetlana MacPhail
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Karen Hulan, Counsel
For the Respondent:
Vicky Chan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Svetlana MacPhail, was involved in an automobile accident on November 28, 2012 when a sports utility vehicle ran her over in a parking lot, striking her in the abdomen, knocking her to the ground, and crushing her feet.
2In 2019, the applicant sought a benefit from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule"). The respondent denied that benefit and the applicant applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES IN DISPUTE
3The issues to be decided are as follows:
i. is the applicant entitled to $900.00 for chiropractic treatment, recommended by Dr. Reena Pathak in a treatment plan (OCF-18) dated June 4, 2019?
ii. is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is entitled to $900.00 for chiropractic treatment plus interest calculated in accordance with s. 51 of the Schedule. The applicant's request for costs id denied.
ANALYSIS
5To be eligible for the benefit claimed in her application, the applicant must establish, on a balance of probabilities, that the treatment she seeks is reasonable and necessary as a result of the accident, as required under s. 15(1) of the Schedule.
6The record before me establishes, on a balance of probabilities, that the disputed chiropractic treatment is reasonable and necessary to treat injuries the applicant sustained as a direct result of the accident.
7The disputed treatment and assessment plan (OCF-18) was prepared by Dr. Reena Pathak, Chiropractor, on June 4, 2019. The treatment plan proposed 20 sessions of chiropractic services consisting of "manipulation, hip joint" to manage the applicant's pain and maintain her range of motion. In the plan, Dr. Pathak identified the applicant's arthritis diagnosis as a barrier to recovery, as the condition "contributes to stiffness and tightness in SIJ [sacroiliac joint] and discomfort that Svetlana experiences."
8The respondent submits the disputed treatment aims to treat an impairment that is not a result of the accident. The respondent submits that the applicant suffers from arthritis, a degenerative condition that was diagnosed after the accident. In other words, the applicant disputes the causation of the applicant's low back and hip pain.
9The evidence the applicant has tendered of her post-accident medical treatment provides important context for the causation analysis.
The applicant's low back and pelvic pain and her post-accident medical treatment
10It is not in dispute that as a result of the accident, the applicant sustained injuries to her feet consisting of a "dorsal chip fracture left tarsal navicular and additional avulsion injuries involving lateral midfoot are suspected with considerable soft tissue swelling" as documented in an x-ray report dated November 28, 2012.
11In 2013 and 2014, the applicant was assessed by two orthopedic surgeons in relation to her foot injuries. No mention is made of any back, pelvis, or hip injury in the reports of the orthopedic surgeons.
12In March of 2015, the applicant's family physician, Dr. John Samoila, completed a Disability Certificate (OCF-3) on the applicant's behalf, identifying her accident-related injuries simply as "bilateral ankle trauma."
13In a Section 44 Physiotherapy Assessment report dated November 23, 2015, physiotherapist Mr. John Spirou mentioned "central low back pain" as among the applicant's complaints and assessed her with "chronic mechanical lower back pain – sacroiliitis bilaterally." Mr. Spirou noted that the applicant's low back pain was a result of overcompensation due to her altered gait pattern.
14A March 10, 2016 physiotherapy report by Mr. Rob Cusinato documented the applicant's bilateral pelvic pain, noting that she "continues to present with a trunk (lumbar) flexion dysfunction" that "may be discogenic, may be sacroiliac dysfunction."
15The applicant's low back and mid-back pain appear as a complaint in Ms. Evangelica F. Reyes-Viray's May 5, 2016 Section 44 Functional Abilities Evaluation.
16In 2017, the applicant began seeing a new family physician, Dr. Balal Hussain. In a clinical note dated March 9, 2017 Dr. Hussain noted that the applicant "has some sacroiliitis, and DDD [degenerative disc disease] in low back". Dr. Hussain recommended continuing with chiropractic treatment.
17On March 29, 2017, the applicant began seeing Dr. Reena Pathak for chiropractic services. The treatment notes of Dr. Pathak identify the goal of treatment as helping the applicant with discomfort she feels due to sacroiliac joint arthritis – this treatment goal appears repeatedly in Dr. Pathak's notes from March 2017 to 2019 when the disputed treatment plan was submitted.
18On August 15, 2019, Dr. Yuri Marchuk conducted a Section 44 Physiatry Assessment of the applicant. Dr. Marchuk opined that the disputed treatment plan was not reasonable and necessary as related to the impairments sustained in the accident, and that the applicant's condition had plateaued. He opined that further facility-based treatment would not assist the applicant. Dr. Marchuk's diagnoses of the injuries the applicant sustained as a direct result of the accident included lumbar musculoligamentous dysfunction, bilateral trochanter bursitis, and bilateral sacroiliac joint dysfunction. Dr. Marchuk noted "[a]rthritis contributes to stiffness and tightness in the SIJ [sacroiliac joint] and discomfort that Svetlana experiences." Dr. Marchuk recommended cortisone injections to the trochanter bursa and sacroiliac joints and a lumbar support brace.
19On December 29, 2019, Dr. Hussain noted that the applicant's "whole pelvis is feeling stiff" but made no mention of the accident in relation to the pelvic stiffness. Dr. Hussain proposed testing to screen for urinary tract and sexually transmitted infection. These tests came back negative.
"Necessary as a result of the accident": causation of the applicant's impairment
20In the accident benefits context, it is settled law that the test for causation is the 'but for' test.2 The applicant's impairment must be a direct result of the accident. The applicant need not demonstrate that the accident is only cause of the impairment to satisfy the causation test.
21I am satisfied on the evidence before me that the applicant continued to experience stiffness and pain in her lower back and pelvic areas at the time the disputed treatment plan was submitted. The question is whether the applicant's complaints in these areas can be directly attributed to the accident. The records of the applicant's treating and consulting physicians do little to support this finding: where back or pelvic pain are mentioned in the clinical notes and records of Drs. Samoila and Hussain, the pain is attributed to the applicant's degenerative disc disease and sacroiliitis. The family physicians make no mention of the accident in relation to these complaints.
22Similarly, the records of the applicant's treating physiotherapist and chiropractor characterize the applicant's pelvic pain as possibly discogenic (i.e. degenerative rather than trauma-related), possibly sacroiliac joint dysfunction, and related to sacroiliac joint arthritis. The accident does not feature in the notes of these practitioners as a cause of the applicant's pain, except to the extent that the accident can be inferred as the cause of dysfunction of the sacroiliac joint.
23It is the reports of the respondent's own Section 44 assessors that provide evidence linking the accident to the applicant's persistent low back and pelvic pain.
24Mr. Spirou reasoned in his report that the applicant's central low back pain was a result of overcompensation due to her altered gait pattern. This suggests a direct causal relationship between the applicant's crush injuries to both feet and her low back or sacroiliac pain.
25Dr. Marchuk goes further in explaining the genesis of the applicant's low back pain. He opines that as a direct result of the accident, the applicant sustained lumbar musculoligamentous dysfunction, bilateral trochanter bursitis, and bilateral sacroiliac joint dysfunction. These are impairments affecting the low back, hips, and sacrum. Dr. Marchuk identified the applicant's arthritis as a factor contributing to stiffness, tightness, and discomfort in her sacroiliac joint.
26Both Mr. Spirou and Dr. Marchuk offer opinions on the cause of the applicant's sacroiliac or low back and hip pain that are persuasive considering the medical record as a whole. I accept that the applicant suffers from arthritis of the sacroiliac joint, and that this degenerative condition complicates her accident-related sacroiliac joint dysfunction. I accept that the applicant's overcompensation for her foot injuries resulted in altered gait and low back pain.
27Dr. Pathak's treatment notes disclose that the goal of chiropractic treatment was to address the applicant's discomfort due to her arthritis. I accept Dr. Pathak's opinion as to the applicant's ongoing need for and benefit from chiropractic treatment. This is corroborated by Dr. Hussain's recommendation for ongoing chiropractic treatment to address sacroiliitis, a recommendation made 20 days before the applicant began treatment with Dr. Pathak. As far as Dr. Pathak's notes speak to causation, I prefer the opinion of Dr. Marchuk that arthritis was a contributing cause, but not the sole cause, of the applicant's impairment. The applicant's low back pain also pre-date the first reference to degenerative disc disease in the record before me; while not definitive, as I have not been provided with an exhaustive medical record, this supports my finding circumstantially.
28To conclude, I find that the accident is a direct cause of the impairment for which the applicant sought the disputed chiropractic treatment, and that treatment is necessary to address that impairment.
The disputed treatment is reasonable
29Having established that the disputed treatment is necessary as a result of the accident, I must also consider whether the disputed chiropractic treatment is reasonable.
30The respondent's denial of the treatment plan is premised on Dr. Marchuk's opinion that the applicant's condition had plateaued, and further facility-based treatment would not assist her. Instead he recommended cortisone injections to the trochanter bursa and sacroiliac joints. Dr. Marchuk's conclusions appear contradictory. He attributes the applicant's low back pain, which the applicant described to him on the date of assessment as "constant" and "achy, throbbing, and burning" directly to the accident. He notes the applicant's report that chiropractic care helps her manage her pain. His physical examination showed decreased range of motion, pain and tenderness in the lumbar area. His tests for sacroiliac joint dysfunction (joint compression/distraction) and bilateral trochanter tests were positive. These conditions, documented nearly seven years post-accident, were serious enough to warrant cortisone injections, but in Dr. Marchuk's assessment, facility-based chiropractic treatment would not assist and is not reasonable and necessary as related to impairments sustained in the accident. Dr. Marchuk's conclusion is at odds with his findings. It is at odds with the evidence that the applicant was benefitting from chiropractic treatment. Dr. Marchuk does not give reasons for finding that the applicant's condition had plateaued.
31I find that the applicant derived benefits in the form of pain management from the chiropractic treatment Dr. Pathak provided. The applicant sought that care on the recommendation of her family physician. That her pain complaints persisted long after the accident is consistent with the severity of her initial injuries and the complications that followed, as I have discussed in detail in these reasons. In sum, the evidence surpasses the threshold for reasonableness. Taken together with my findings on necessity and causation, the disputed treatment therefore meets the test set out in s. 15 of the Schedule. The applicant has met her onus.
COSTS
32The applicant requests costs in her submissions but advances no argument or evidence in support of a costs award.
33The Tribunal's discretion to award costs is governed by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017, as amended). The Tribunal will not order costs unless a party can establish that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. The applicant has not demonstrated conduct on the part of the respondent that could be characterized in this way.
34The applicant's request for costs is accordingly denied.
CONCLUSION AND ORDER
35The respondent shall pay the applicant $900.00 for the cost of chiropractic treatment plus interest calculated in accordance with s. 51 of the Schedule.
36The applicant's request for costs is denied.
Date of Issue: March 25, 2021
________________________
Theresa McGee, Vice-Chair
Footnotes
- O. Reg. 34/10.
- Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31.