Citation: Bondzie v. TD General Insurance Company, 2021 ONLAT 19-013442/AABS
Release date: 09/16/2021
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:
Emmanuel Bondzie
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Daniela Corapi
APPEARANCES:
For the Applicant: Emmanuel Bondzie, Applicant R. Amanda Neves, Representative
For the Respondent: Symone Marlowe, Representative
HEARD: By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on November 10, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was the passenger in a vehicle which was stopped at a stop sign in the city of Cleveland, Ohio, when another vehicle impacted the rear of the vehicle. As a result of the accident, the applicant states that he sustained physical and psychological injuries.
3On November 12, 2015, the applicant returned to Canada and attended Humber River Hospital presenting with pain and concerns relating to his lower back and neck stiffness.
4The applicant applied for physical treatment that was denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
5The subject treatment plan was submitted on August 8, 2019 and consists of fourteen (14) sessions of therapy at “multiple body sites” including a reassessment of the applicant, physical therapy and manual therapy (“chiropractic treatment”).
ISSUES TO BE DECIDED
6The following are the issues to be decided:
a. Is the applicant entitled to a medical benefit in the amount of $2,339.34 for chiropractic treatment recommended by Regency Rehabilitation in a treatment plan which was denied on August 19, 2019?
b. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The chiropractic treatment plans are not reasonable and necessary. As there are no outstanding benefits that are payable by the respondent, the applicant is not entitled to interest.
ANALYSIS
Is the applicant entitled to the chiropractic treatment plan in dispute in the amount of $2,339.34?
(i) Applicant’s Submissions & Evidence
8The applicant was involved in three motor vehicle accidents: the first in November 2011; the second in November 2015; and third in February 2016. The applicant states that the second accident, which is the subject of this application, is pivotal in its impact on his health. He states that the injuries sustained in the first accident were made significantly worse in the subsequent accidents. The applicant states that “but for the second accident in 2015, the applicant may have recovered from his pre-accident condition”, and now requires ongoing treatment to keep his symptoms from getting worse.
9The applicant submits that it is the insurer’s obligation to pay for medical benefits to or on behalf of an applicant so long as: the applicant sustains impairment as a result of the accident; and, the medical benefit is a reasonable and necessary expense.
10The applicant states that he sustained physical injuries which cause functional impairments, and that these impairments were caused, aggravated and/or exacerbated as a result of the second accident (“subject accident”).
11The applicant relies on the Emergency Records of November 12, 2015, wherein he was diagnosed with whiplash and post concussive syndrome.
12The applicant submits that the treatment plan in dispute is in relation to the subject accident and the medical records demonstrate an exacerbation of his neck, low back and right knee pain, as well as a worsening of his depression and anxiety.
13The applicant relies upon the Disability Certificate (OCF-3) from Dr. Antoniazzi. Dr. Antoniazzi notes that the subject accident exacerbated previous injuries that the applicant sustained in a 2011 motor vehicle accident (“previous accident”). Dr. Antoniazzi states that the applicant suffered the following injuries as a result of the subject accident: (1) sprain and strain of cervical spine; 2) sprain and strain of lumbar spine; 3) sprain and strain of thoracic spine; 4) right upper an lower extremity radiculopathy; 5) chronic post-traumatic headache; 6) post-concussion syndrome; 7) a sprain and strain of his left knee; and 7) a sprain and strain of his ribs and sternum.
14The applicant sought psychological treatment from psychiatrist, Dr. Joglekar, and subsequent treating psychologist, Dr. Wright. The applicant states that his psychological symptoms were affected by the subject accident.
15The applicant also relies upon the assessment of Dr. Jensen, neurologist, in support of his position that he has consistent headaches/migraine, and these are related to sleep dysfunction.
16The applicant’s ongoing migraines were noted by Dr. Milad on July 10, 2019; and subsequently on October 22, 2019. Dr. Milad diagnosed the applicant with chronic pain in or around October 22, 2019. On June 4, 2020, Dr. Milad advised the applicant to continue with rehabilitation for pain issues.
17The applicant states that the treatment plan in dispute should be deemed reasonable and necessary because it would reduce, or at least mitigate, the applicant’s chronic pain, which would in turn increase the efficacy of his psychological treatment for Somatic Symptom Disorder.
18The applicant relies on the Tribunal case 17-007527 v. Aviva Insurance Canada2, wherein the adjudicator found that physical treatment was reasonable and necessary for an applicant whose medical issues were mostly psychological in nature. The applicant in the case before me relies on this case to establish that physical treatment could in fact be effective in treating or advancing psychological treatment and concerns.
(ii) Respondent’s Submissions & Evidence
19The respondent submits that there are no objective accident-related injuries and it is only liable to pay medical benefits that were incurred as a result of the subject accident. It points to the treatment plan being submitted nearly four years post-accident. The respondent denies that the complaints were a result of injuries sustained in the subject accident; rather, it states that these injuries were sustained in the subsequent 2016 accident.
20The respondent states that the applicant’s section 44 examinations with Dr. Woods (psychologist), Dr. Ko (psychiatrist), Dr. Loritz (general practitioner) and Dr. Leontidis (chiropractor), all present the following consensus: the applicant’s physical injuries were soft tissue in nature.
21The respondent states that the applicant reported back and knee pain prior to the subject accident. Dr. Milad’s note on September 8, 2015 states that the applicant reported that he “continued” to experience back and knee pain since the motor vehicle accident. The respondent suggests that this wording indicates that these complaints arose prior to the subject motor vehicle accident.
22The respondent states that the imaging which was ordered following the subject accident (November 16, 2015), which included an x-ray of the skull, showed no abnormality, fracture or degenerative changes. Further, ultrasound and knee imaging showed no acute fractures or malalignment.
23The respondent relies on Dr. Milad’s note on February 18, 2016 to demonstrate that the subsequent 2016 motor vehicle accident in fact caused the applicant’s ongoing headaches and complaints, rather than the subject accident in 2015. The respondent further submits that the diagnostic testing which was conducted after the subject accident and prior to the February 2016 accident, yielded normal results.
24The respondent relies on Dr. Ko’s section 44 psychiatry assessment which concluded that there was no objective evidence of an ongoing organic pathology or impairments.
25The respondent also relies on Dr. Loritz’ assessment wherein Dr. Loritz concludes that there is no objective evidence of radiculopathy, myelopathy, osseous fracture or complete tendon tear that would exclude the applicant’s physical injuries from the minor injury guideline.
26The respondent further points to Dr. Woods’ diagnosis of the applicant which concludes residual adjustment disorder and opined that the symptoms are partly a result of the subject accident, but likely also reflect injuries sustained in the November 19, 2011 accident which became aggravated by the subject accident.
27The respondent submits that the treatment plans in dispute are not reasonable and necessary because the applicant has not demonstrated that he has or will progress with further treatment. In support of its position, the respondent points to Dr. Leontidis’ statement, “by his own admission, subjectively similar treatment consumed previously has not afforded him any significant improvements and the evidence suggests that this would not be effective and provision of this course of treatment is also unlikely to achieve the goals set out in the OCF-18 plan”.
(iii) Entitlement to Treatment Plan
28It is not necessary to address the “but for” test raised in the applicant’s Reply submissions because regardless of the outcome of that analysis, the applicant has not proved that the subject treatment plan is reasonable and necessary in the circumstances.
29The applicant submits that the goals of the chiropractic treatment is to reduce pain and manage somatic symptoms. These symptoms include headaches, loss of focus and concentration, in addition to neck, knee and back pain. The treatment aims to achieve a return to normal activities, pain reduction and an increase in strength and mobility.
30The respondent states that the treatment plan in dispute is for physical and chiropractic treatment and that removal from the minor injury guideline on a psychological basis does not make the proposed physical treatment automatically reasonable and necessary. The respondent relies on R.K. v RBC General Insurance Company3 in this regard.
31The respondent also relies on A.A. v Aviva4, wherein Adjudicator Boyce stated that “it is not reasonable to rely on the treatment plans as evidence that they are de facto reasonable and necessary. There must be an analysis on why the specific treatment is required to address the specific impairment, and especially so where the physical injuries identified are or minor and the applicant has been removed from the MIG for psychological reasons”.
32The applicant states that the treatment plan in dispute should be deemed reasonable and necessary because it would reduce, or at least mitigate, the applicant’s chronic pain, which would in turn increase the efficacy of his psychological treatment for Somatic Symptom Disorder. Based upon the evidence before me, I am not persuaded by this argument.
33While I am not bound by the decisions that the respondent cited, I find Adjudicator Boyce’s analysis in A.A. v Aviva useful in analyzing the issue before me. Specifically, the mere fact that the applicant sustained psychological injuries, such as Somatic Symptom Disorder, does not warrant the conclusion that the subject treatment plan for chiropractic treatment is necessary and reasonable. The applicant has not presented objective evidence to suggest that the treatment plan could reasonably achieve the benefits proposed with respect to reducing somatic symptoms.
34The treatment plan mentions that the applicant continues to get temporary relief from all forms of treatment being provided. The treatment plan was submitted over three years after the subject accident, and there is little evidence before me to demonstrate efficacy or continued efficacy of similar treatment. I find that there are no particulars presented in the evidence to substantiate this claim. To the contrary, I find that Dr. Leontidis’ statement speaks, with specificity, as to why continued treatment would not reasonably achieve the treatment goals.
35The onus is on the applicant to prove his entitlement to these benefits on a balance of probabilities, and I find that the applicant has not done so. The mere fact that the applicant submits that he continuously complained about his impairments and injuries to his doctor does not lend support to the claim for treatment. Rather, I am not persuaded that records from more than a three-year period which have been produced support treatment or that any previous courses of treatment were effective in reducing pain arising from the injuries sustained in the subject accident. Based on the records before me, the applicant has not met his onus.
ORDER
36As a result of the above, I find that the chiropractic treatment plans are not reasonable and necessary and as there are no outstanding benefits the applicant is not entitled to interest.
Released: September 16, 2021
_________________________
Daniela Corapi, Adjudicator
Footnotes
- O. Reg. 34/10 as amended.
- 2018 CanLii 110948.
- 2019 CanLii 101568 at para. 10.
- 2020 CanLii 34491 at para.12.