Released Date: 06/02/2021
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:
Jason Selby
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Adrian Lomaga, Counsel
For the Respondent:
Andrez Belloso, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in a motor vehicle accident on February 11, 2016 and sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 20101 (the "Schedule"). The respondent denied the applicant's medical and rehabilitation benefits. The applicant then applied to the Licence Appeal Tribunal (the "Tribunal") for the resolution of the dispute.
ISSUES IN DISPUTE
2The parties agree in submissions that the following issues are to be decided in this hearing:
Is the applicant entitled to a medical benefit in the amount of $2,350.00 for chiropractic treatment recommended by Dr. Virk in a treatment plan (OCF-18) submitted on May 4, 2018, and denied on July 10, 2018?
Is the applicant entitled to a medical benefit in the amount of $2,950.00 for chiropractic treatment recommended by PT Health, Halifax in plan submitted on April 4, 2019, and yet to be formally denied by the insurer?
Is the applicant entitled to interest on any overdue payment of benefits?
Issues added to this hearing
3The applicant is seeking costs. This issue will be added to the hearing as per Rule 19.2 of the Tribunal's Common Rules of Practice and Procedure that states that a request for costs can be made to the Tribunal at any time before a decision or order is released.
Issues not to be decided in this hearing
4While the cost of a psycho-vocational assessment was part of the initial dispute and appeal, the applicant has since withdrawn this issue.
5The applicant now submits that an issue in dispute for this hearing is a treatment plan of Dr. Murray submitted on October 10, 2020. The respondent submits that this issue was never raised during the application, case conference or at any point prior to the hearing despite there also being two motion hearings. The applicant does not dispute the respondent's position but argues that adding this issue to the hearing is not prejudicial to the respondent but is prejudicial and unfair to the applicant because there would be a delay in the funding of the treatment by Dr. Murray.
6The issue of the treatment plan of Dr. Murray will not be an issue to be decided in this hearing. The applicant cannot unilaterally add issues to a hearing without providing any notice to the respondent and obtaining their consent or obtaining an Order. To allow the applicant to do so interferes with the Tribunal's ability to facilitate fair and effective participation by the respondent, as the respondent did not know in advance of the hearing the case they have to meet. To add an issue to a hearing without any notice to the respondent is prima facie prejudicial as the respondent has the right to know the case it must meet prior to the hearing, not during the hearing.
7The applicant is also seeking an award pursuant to s.10 of O. Reg. 664. While again the last-minute addition of issues in dispute are prima facie prejudicial and unfair for the reasons noted, this issue is also moot, as based on my findings below there was no withholding of benefits.
RESULT
8The applicant has not met his onus of showing the treatment being sought is reasonable and necessary as the applicant failed to establish his accident related physical injuries. As no benefits are owing, there is no interest. Further, there is no award for costs for the reasons noted below.
ANALYSIS
9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he seeks are reasonable and necessary and are related to the accident. To do so, the applicant should demonstrate that the goals as identified are reasonable, that the goals are being met to a reasonable degree and the cost of achieving the goals of treatment are reasonable taking into consideration both the degree of success and the availability of other treatment.
10The applicant has not met his onus as the applicant has provided little evidence to show what his accident related physical injuries or impairments are and how the treatment goals are reasonable and necessary to deal with those accident related physical injuries and/or impairments.
Pre-Existing Back "Flare-Ups"
11The parties agree that prior to this accident of February 11, 2016, the applicant was involved in a previous motor vehicle accident in 2012 for which he sought treatment. The applicant submits that the treatment from the 2012 accident was less than 6 months and that any symptoms had largely resolved and there are no records of ongoing chronic pain in the year or two prior to this subject accident. The applicant however provides no evidence of this.
12The respondent submits, and the evidence shows, that between 2012 until the subject accident of 2016, the applicant described back pain "flare ups" that occurred following prolonged driving. The evidence shows that the applicant had ongoing chiropractic treatment until September 26, 2014. Further, the respondent submits that the applicant continued to receive massage therapy until at least November of 2015. The respondent provides, and I accept, as evidence of this treatment, invoices for massage therapy submitted to the applicant's extended health carrier.
13The applicant was ordered to produce the pre-accident clinical notes and records from his family doctor. These were never produced (although efforts were made) despite Tribunal orders to do so.
14Based on the evidence, I find that the applicant did have ongoing issues with his back prior to the accident. While I cannot determine the extent of pain levels or limitations, if any, as neither party filed pre-accident records, I do find the evidence of the applicant's extended health carrier to be persuasive in showing that there were some ongoing issues with the applicant's health.
There is no medical evidence from the date of the accident of February 11, 2016 until January of 2018
15Following the accident of February 11, 2016, the applicant attended at a walk-in clinic the following day. The note from the doctor states that the applicant has shoulder and neck strain, whiplash. The doctor recommends massage therapy, physiotherapy and chiropractic treatment. It should be noted that the applicant does not rely on this evidence as it was not provided by him, but it was provided by the respondent.
16Following the note of February 12, 2016, above, there are no further treating records produced with respect to the applicant's accident related injuries until January 15, 2018. In other words, there are no records produced for the two years following the accident that speak to the applicant's post-accident injuries and/or health.
17The applicant does produce an x-ray dated November 29, 2017 that shows "there is minimal wedging of the L1 vertebral body compatible with an age-indeterminate small compression fracture." The applicant submits that this fracture is caused by the accident, but he provides no evidence, an opinion, or any notes or records that could correlate symptoms following the accident to the finding on the x-ray.
18A further MRI of the cervical spine on February 24, 2018 that shows a possible healed fracture at the C2 dens, and the MRI report specifically asks that clinical correlation be made as the MRI reports also notes that it could be congenital in nature:
"The appearance of the dens of C2 might imply previous healed fracture. Clinical correlation is advised."
"Kyphotic deformity is noted of the cervical spine with possible old healed fracture of the superior aspect of the dens. This could also represent a congenital appearance. Clinical correlation is advised as well as correlation to CT. There is no evidence of acute traumatic injury in the cervical spine and there is no compression of neural elements."
19It should be noted that the MRI of the applicant's brain was ordered by the neurologist, Dr. Gawel, as a result of the applicant's complaints of headaches and not as a result of ongoing issues with pain in the cervical spine.
20The x-rays and the MRI add nothing in terms of describing the applicant's injuries as a result of the accident. There are no notes that show whether there are any correlating symptoms to the L1 wedging or the C2 dens. The only doctor who relates the C2 dens to the accident is Dr. Gawel, on April 23, 2018, wherein he states that a fracture seen at C2 dens on the MRI "is most likely healed and probably happened during the accident."
21However, Dr. Gawel makes no mention of the MRI indicating that C2 dens could imply a fracture of something congenital. In the report dated April 23, 2018 or his previous report of January 15, 2018, Dr. Gawel provides no clinical correlation to the C2 dens and any symptoms. Further, there is no information on how Dr. Gawel arrives at the conclusion that the issue with the C2 dens is as a result of the accident that occurred two years prior to his report when he has no information about events prior to the accident or events in the two years after the accident. I am not persuaded that the applicant's fracture is caused by the accident as the applicant has offered no corroborating or correlating evidence that there was in fact an accident related injury to the L1 or C2 levels in the applicant's neck and upper back.
22The above noted reports of Dr. Gawel starting on January 15, 2018 are the first post-accident treating records produced by the applicant that speak to any possible accident related injuries.
23As there are no records prior to this, the applicant has not met his evidentiary onus to show what, if any, injuries are caused by the accident.
24It is against the above backdrop that the applicant submits that the treatment plans in dispute are reasonable and necessary.
The Treatment Plans
25The first disputed treatment plan is dated May 4, 2018 and is for chiropractic treatment (the Chiro Plan). As per this plan, the goals of the treatment include pain reduction, increase in strength, increased range of motion, and return to activities of daily living.
26The second issue in dispute is for chiropractic, physiotherapy and massage treatment recommended by PT Health, Halifax, in the amount of $2,952.00. There is no OCF-18. The respondent submits that the treatment plan is dated May 31, 2019 and a cost outline is sent on September 10, 2019. The proposed outline cost of September 6, 2019 makes reference to an assessment report of May 31, 2019 which purports to state the goals of the proposed treatment, however, this May 31, 2019 report is not provided by the applicant, but is provided by the respondent. The goals of the treatment plan are not clearly articulated but, the assessment of May 31, 2019 notes that the assessment reveals pain and reduction in the applicant's activities of daily living.
The Treatment Plans Are Not Reasonable and Necessary and There is No Entitlement to Interest.
27As stated above, there is no evidence led by the applicant that shows the goals of either treatment plan are as result of his accident related physical injuries as the applicant has provided no medical records that speak to his ongoing physical injuries from the date of the accident to the date of this plan. The applicant also provides no evidence contemporaneous to the Chiro Plan or the PT Health plan regarding the reasonableness or necessity of treatment.
28The applicant points to the entries from St. Lawrence Wellness for June and July of 2018 listing that he has back pain as a result of driving from Ottawa to Montreal. The notes, however, are illegible.
29The Downtown Toronto Wellness notes of July 28, 2018, August 9, 2018 and August 28, 2018 note pain complaints in the upper and lower back, however, these entries do not link the pain complaints to the accident. The entries from Downtown Toronto Wellness do, however, direct the applicant to perform stretches to assist with his lower back.
30The applicant relies on the self-reporting of his physical injuries found in the psychological assessment of Dr. Harris, psychologist (non-treating), of January 3, 2018 and the insurer examination (IE) of Dr. Kelly, psychologist, of February 20, 2018. I am not persuaded by these reports as they do not fully speak to any physical injuries and these assessors do not review any of the post-accident records.
31The applicant also relies on the report of Dr. Rod dated May 1, 2019. Dr. Rod diagnosed the applicant with chronic pain and chronic polyradiculopathy. Dr. Rod reviews no records prior to 2018 despite the accident taking place in 2016. Dr. Rod makes no mention nor is he told of the applicant's pre-accident history of an earlier motor vehicle accident. Dr. Rod does not provide any reasons or support as to why he believes that the accident is the only cause of the chronic pain in the absence of any medical information following the accident and for the two year period thereafter and in the absence of any records showing the applicant is having ongoing pain following the accident. Dr. Rod does not relate the chronic pain to the accident but instead the applicant asks Dr. Rod if the accident caused a permanent impairment to which he answers that the applicant had developed chronic pain syndrome. Given the above, the report of Dr. Rod is not persuasive in showing that the applicant sustained chronic pain as a result of the accident and thus, the recommendations for further physical treatment are equally unpersuasive.
32The reports of Ms. McAllister of October 8, 2020 and Dr. Murray of October 10, 2020 are not contemporaneous to the Chiro plan or the treatment plan of PT Health, Halifax and therefore do no assist in showing the reasonableness or necessity of the treatment proposed.
33The applicant provides letters from July and October of 2020 from Dr. Ghassemi which simply state that Dr. Ghassemi is recommending physiotherapy, chiropractic therapy and massage therapy. There are no clinical notes and records provided, no evidence that Dr. Ghassemi assessed the applicant or even took a history from the applicant. These notes are not contemporaneous and do not assist in showing that the Chiro Plan recommended in May of 2018 or the PT Health treatment plan of May/September 2019 is reasonable and necessary to treat the applicant's post-accident injuries and/or impairments or that the goals of the treatment plan are reasonable and can be achieved.
34As part of the applicant's evidentiary burden, he must show that he sustained injuries as a result of the accident that require treatment. He must then show that the treatment is reasonable and necessary. As stated above, the applicant has not shown on a balance of probabilities that he has accident related physical injuries and he has not met his onus to show that the treatment recommended in the Chiro Plan or the Halifax PT plan is reasonable and necessary and as a result of the accident. Therefore, the treatment plans are not payable.
35As no benefits are owing, there is no entitlement to interest.
Costs and Award
36The applicant is seeking costs but provides no specific details or evidence as to how the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19 of the Common Rules. The applicant is requesting costs but has not provided any basis for same and therefore there is no order for costs.
37With respect to an award pursuant to s.10 of O. Reg. 664 as stated above the issue is moot. The applicant is not entitled to any benefits there was no withholding of benefits by the respondent and therefore there is no basis for an award, even if it were an issue in dispute (which it is not).
CONCLUSION
38The applicant's appeal is dismissed in its entirety.
Released: June 2, 2021
Monica Chakravarti
Adjudicator