Susan Ali v. Co-operators General Insurance Company, 2021 CanLII 60471

20-002764/AABS

Released Date: 07/07/2021

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:

Susan Ali

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Mark Stoiko, Counsel

For the Respondent:

Kathleen O'Hara, Counsel

HEARD

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Susan Ali, (“the Applicant”), was injured in an automobile accident on January 24, 2019 and sought benefits from the Respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2Co-Operators General Insurance Company, (“the Respondent”), refused to pay for certain benefits and the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Is the Applicant entitled to a hydrotherapy treatment plan in the amount of $4,984.00, dated April 29, 2019?

2. Is the Applicant entitled to a treatment plan for chiropractic treatment, in the amount of $4,042.50, dated on February 6, 2019?

3. Is the Applicant entitled to the unapproved balance of a treatment plan, in the amount of $258.38, partially approved on May 13, 2019?

4. Is the Applicant entitled to a treatment plan for massage therapy in the amount of $1,891.04, dated November 8, 2019?

5. Is the Applicant entitled to a chiropractic treatment plan in the amount of $4,057.72, dated March 24, 2020?

6. Is the Applicant entitled to a chronic pain assessment in the amount of $2,881.50, dated on November 8, 2019?

7. Is the Applicant entitled to a functional ability evaluation plan in the amount of $2,486.00, dated November 8, 2019?

8. Is the Applicant entitled to a kinesiology treatment plan in the amount of $3,160.00, dated on November 8, 2019?

9. Is the Applicant entitled to a kinesiology treatment plan in the amount of $2,680.00, dated March 24, 2020?

10. Is the Applicant entitled to a chiropractic, acupuncture and physiotherapy treatment plan in the amount of $5,454.72, dated August 19, 2020?

11. Is the Applicant entitled to a treatment plan for mental health therapy, in the amount of $5,059.51, dated August 19, 2020, partially approved on September 1, 2020?

12. Is the Applicant entitled to a treatment plan for optometry assessment dated August 19, 2020, in the amount of $3,277, denied on September 1, 2020?

13. Is the Applicant entitled to interest on overdue payments?

RESULT

4The Applicant is unsuccessful on all of the issues.

BACKGROUND

5The Applicant was the driver of a vehicle which struck a left-turning vehicle in a suburban intersection. She was taken by ambulance to the hospital where she was examined and released. She went to her family physician, Dr. C. Dixon, the following day and was examined again. Dr. Dixon diagnosed the Applicant with soft-tissue injuries, noted that she was pregnant, and advised her to return if she had any concerns regarding pain or pregnancy-related issues.

6The Applicant then sought treatment at Spinetec Health Care Solutions. The Respondent agreed to fund the Applicant’s treatment pursuant to the Minor Injury Guideline (the “MIG”) because her injuries were predominantly soft-tissue injuries. The Applicant exhausted the funding provided by the MIG but continued to pursue treatment at Spinetec and assessments at Meditecs after. She was eventually removed from the MIG in January 2020 following recommendations from Dr. S. Baker, physiatrist, and Dr. J. Reis, psychologist, in insurer’s examination reports dated January 16, 2020.

7The Applicant seeks a finding that the disputed treatment and assessment plans are reasonable and necessary for her accident-related injuries. She claims to experience ongoing headaches and neck, back, and shoulder pain as a result of the accident and submits that the treatment proposed in the disputed treatment plans relieve her ongoing pain and facilitate a return to her pre-accident level of functioning. She submits that the disputed assessments are reasonable and necessary to explore the root of her ongoing pain and functional impairment.

8The Respondent characterizes the treatment and assessment plans as excessive or unnecessary and submits that they are not supported by contemporaneous medical evidence.

9The onus is on the Applicant to prove that the disputed treatment and assessment plans are reasonable and necessary for her accident-related injuries.

EVIDENCE

10I find that the Applicant’s medical evidence fails to support her claims for chronic pain and functional assessments, and ongoing physical treatment.

11The clinical notes and records (“CNRs”) of the Applicant’s family physician, Dr. Dixon, are unsupportive of ongoing treatment. As noted above, Dr. Dixon initially diagnosed the Applicant with soft-tissue injuries and advised her to return to the clinic if she had any concerns. The next accident-related issue is a April 26, 2019 request for a note prescribing hydrotherapy because her physiotherapists “cannot do too much” due to her pregnancy. The request was made secondary to a regular pre-natal visit and was obliged by Dr. Dixon. The Applicant makes no other substantial reference to Dr. Dixon’s records other than the April 26, 2019 note. One accepted request for a note for hydrotherapy is insufficient evidence to support a finding that the disputed treatment and assessment plans are reasonable and necessary.

12The CNRs of Spinetec are unreliable and unpersuasive. The physiotherapy SOAP notes by W. Javeria, physiotherapist, are identical for most of the treatment visits and lack credibility as a result. For example, the physiotherapy SOAP notes are the exact same for the visit a week before and three weeks after the premature birth of the Applicant’s child. This repeated copying and pasting of the Applicant’s reported subjective complaints over a course of months of treatment sessions causes me to give the reports no weight as they are, on a balance of probabilities, inaccurate when compared to the chiropractic SOAP notes. The chiropractic notes are unique for each visit and note that, over time, the Applicant’s pain is improving, and her headaches occur only once per week.

13The Applicant’s subjective reports to assessors are inconsistent and, as a result, unreliable. As noted above, the chiropractic records document that the Applicant’s headaches had reduced to a frequency of about one per week by October 2019, her pain was decreasing, and she reported to be 80% recovered. Yet, she complained of headaches two-to-three times per week and constant neck and back pain and considered herself 50% recovered in the January 16, 2020 physiatry assessment by Dr. Baker. Likewise, she complained of constant headaches and neck pain and very frequent shoulder and back pain in the June 26, 2020 assessment by Dr. L. Steiner, psychologist. The Applicant reported independence with her self-care tasks and denied any changes in her ability to perform caregiving tasks to Dr. Baker but told Dr. L. Steiner that she was unable to perform her usual caregiving and household chores due to pain and physical restrictions. The Applicant also incorrectly reported to Dr. Steiner that she was diagnosed with a concussion by Dr. Dixon in the visit immediately following the accident. Despite the issues she reported to Dr. Baker and Dr. Steiner, and multiple visits, there are no accident-related issues noted in Dr. Dixon’s CNRs after April 26, 2019 and there is no evidence that she was diagnosed with a concussion by a qualified healthcare professional.

FINDINGS ON THE INDIVIDUAL TREATMENT PLANS

14Considering my findings above, I find the disputed treatment and assessment plans are not reasonable and necessary for the Applicant’s accident-related injuries. My additional findings are as follows.

Hydrotherapy treatment plan dated April 29, 2019

15This plan proposes 12 hydrotherapy sessions at an estimated length of one hour per session, for the cost of $350.00 per session. This treatment plan was denied because the Applicant was subject to the MIG at the time and the plan proposed treatment outside the MIG.

16I find this treatment plan is not reasonable and necessary for the Applicant’s accident-related soft-tissue injuries. Contrary to her submissions, the Applicant’s medical record makes no indication that she is unable to engage in physiotherapy or that she can only participate in hydrotherapy. In fact, the records suggest otherwise considering she continued with traditional physiotherapy instead. While I appreciate that Dr. Dixon “agreed with hydrotherapy”, I am not convinced that Dr. Dixon, or any other healthcare provider, considered the therapy to be a necessary component of the Applicant’s recovery. In addition, the Applicant provides no explanation for the cost of treatment.

Chiropractic treatment plan dated February 6, 2019

17This treatment plan was denied by the Respondent because it believed the MIG applied. In response, it advised the Applicant to submit a Treatment Confirmation Form (OCF-23) which allows for up to $2,200.00 of pre-approved treatment.

18I find this decision was made pursuant to section 38(5) of the Schedule. The Applicant presented with predominantly soft-tissue injuries and is subject to the MIG until she provides compelling, documented evidence of a pre-existing condition which would preclude her recovery if subject to the MIG. Pursuant to section 38(6) of the Schedule, this decision is final and not subject to review.

The balance of a treatment plan partially approved on May 13, 2019

19The Applicant made no submissions on this issue and the disputed treatment plan is not before me. I am unable to find it reasonable and necessary as a result.

Massage therapy treatment plan dated November 8, 2019

20I find no compelling evidence in favour of this treatment plan. Dr. Dixon only recommended physiotherapy and agreed with hydrotherapy. There is no record that Dr. Dixon supported massage therapy at any time. As noted above, the CNRs from Spinetec are unreliable. Whereas Dr. Baker advised the Applicant that some further active care is reasonable and necessary and passive forms of therapy are not.

Chiropractic treatment plan dated March 24, 2020

21I find no compelling evidence in favour of this treatment plan. As noted above, the CNRs from Spinetec are unreliable and no other healthcare practitioner recommended chiropractic treatment at this time.

Chronic pain assessment plan dated November 8, 2019

22I find no compelling evidence in support of a chronic pain assessment. As noted above, the Applicant reported an 80% improvement prior to the submission of the treatment plan. In addition, there is little evidence that the Applicant has a chronic pain condition which required further investigation. The Applicant is functional and able to complete her self-care and caregiving tasks.

23I recognize that Dr. Steiner recommended a multi-disciplinary pain management program in the June 26, 2020 report. However, the recommendation is made after receiving unreliable subjective reports about 7 months after this treatment plan was submitted. Further, the recommendation was made in order to “avoid the development of a chronic pain disorder.”

Functional ability evaluation plan dated November 8, 2019

24I find no compelling evidence in support of a functional ability assessment for the same reasons as the chronic pain assessment. The Applicant reported 80% recovery by the time this treatment plan was submitted and showed no evidence of physical disfunction which required further investigation.

Kinesiology treatment plans dated November 8, 2019 and March 24, 2020

25I find no compelling evidence in support of kinesiology treatment. The Applicant sustained soft-tissue injuries as a result of the accident and had mostly recovered by the fall of 2019. The only credible recommendation is from Dr. Baker, who recommended some additional physiotherapy at this time. Dr. Baker further advised that the physiotherapy should focus on an exercise program that the Applicant can later continue independently. As noted previously, the Applicant made no accident-related complaints to her family physician, Dr. Dixon, during visits contemporaneous with the submission of these treatment plans.

Chiropractic, acupuncture, and physiotherapy plan dated August 19, 2020

26There is no credible evidence to suggest that the Applicant required ongoing physical therapy more than a year and a half following the accident. As previously noted, the CNRs from Spinetec are unreliable and Dr. Dixon’s CNRs are devoid of any accident-related complaints following April 2019.

Mental health therapy treatment plan dated August 19, 2020

27The Applicant made no submissions on this issue and the disputed treatment plan is not before me. I am unable to find it reasonable and necessary as a result.

Optometry assessment plan dated August 19, 2020

28The Applicant made no submissions on this issue and the disputed treatment plan is not before me. I am unable to find it reasonable and necessary as a result.

INTEREST

29Pursuant to section 51 of the Schedule, interest is only payable on overdue payments. No interest is payable because there are no overdue payments.

CONCLUSION

30The evidence shows that the Applicant had mostly recovered from her soft-tissue injuries by the fall of 2019. Assessors recommend that she engage in a self-directed exercise program and there is no compelling evidence to support ongoing treatment.

31The disputed treatment and assessment plans are not reasonable and necessary. No interest is owed as no payments went overdue.