McCarty v. TD Home and Auto Insurance Company, 2022 CanLII 1143

McCarty v. TD Home and Auto Insurance Company

Citation: McCarty v. TD Home and Auto Insurance Company, 2022 ONLAT 20-004623/AABS

Licence Appeal Tribunal File Number: 20-004623/AABS

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:

Mieczyslawa (Maya) McCarty

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Mieczyslawa (Maya) McCarty, Applicant Anastasiya Chepak, Paralegal

For the Respondent: Derek Vihvelin, Counsel

HEARD: Via Written Submissions

BACKGROUND

1The applicant was involved in a motor vehicle accident on September 29, 2015. The applicant sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September, 2010¹ (the "Schedule"). The respondent denied the medical and rehabilitation benefits on the basis that same were not reasonable and necessary. The applicant then applied to the Licence Appeal Tribunal (the "Tribunal") for the resolution of the dispute.

ISSUES TO BE DECIDED

2As per the Tribunal's Order of August 11, 2020 the parties agreed that the following issues are to be decided in this hearing:

a. Is the applicant entitled to $ 5,177.60 for physiotherapy services, recommended by The Rehab Centre in a treatment plan (OCF-18) dated December 17, 2018?

b. Is the applicant entitled to $809.04 for osteopathic treatment, in a treatment plan dated January 2, 2019?

c. Is the applicant entitled to $999.04 set out in an OFC-18 for orthopaedic treatment, dated August 15, 2018?

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

RESULT

3For the reasons noted below, the applicant has not met her onus to show on a balance of probabilities that she is entitled to the medical and rehabilitation benefits in dispute. As there are no benefits that are owing or overdue there is no entitlement to interest.

ANALYSIS

4Sections 14-16 of the Schedule provide that, subject to Section 18, the insurer shall pay for all reasonable and necessary medical expenses incurred by or on behalf of the insured person as a result of the accident.

5The onus is on the applicant to show that the medical expenses are reasonable and necessary.

6The first treatment plan in dispute is dated December 17, 2018 and was recommended by Rehab Centre. As per the treatment plan the proposed treatment is 20 sessions of physical rehabilitations, 10 sessions of acupuncture, 10 sessions of massage therapy, 3 sessions of shock wave therapy, a TENS Unit, a functional ability evaluation, one hour of education and one hour for Dr. Kachooie to complete the OCF-18/Treatment plan.

7The goals of the treatment plan were noted to be pain reduction, increase in strength, increase in range of motion, and return to the activities of normal living.

8The applicant submits that since the accident up until the time of the disputed treatment plan that there have been ongoing recommendations made by the applicant's treating physicians for physiotherapy. The applicant also submits that the lack of treatment makes for a worsening of her injuries and that the physical treatment has and will provide improvement and pain relief. Thus, the applicant submits that taken together the treatment plan in dispute is reasonable and necessary. Further the applicant submits that costs of the treatment are also in line with the accepted rates for this type of treatment and thus the cost of the treatment plan is reasonable and necessary.

9The respondent argues that the applicant's physical injuries fall within the definition of "minor" under the Schedule. In the accident, the respondent argues, the applicant sustained uncomplicated soft tissue injuries without evidence of significant orthopedic or neurological sequela. The respondent also submits that the applicant's complaints and issues with her foot are not an accident related injury. The respondent relies on the insurer examination (I.E.) report of Dr. Czok, physiatrist, who opined that the proposed treatment is not reasonable and necessary, would provide no additional benefit. The respondent as well submits that the worsening of the applicant's condition is not based on evidence but rather her own self reports. Finally, the respondent submits there is no evidence that further treatment would reach its listed goals including reducing the applicant's pain.

10The applicant is seeking the full amount of the treatment plan; however, the applicant does not point to evidence, other than the disputed treatment plan, that acupuncture, massage therapy, a TENS machine or a functional abilities evaluation are being recommended or that these items are reasonable and necessary. Thus, the applicant has not met her onus with respect to the above modalities listed in the treatment plan.

11Further the applicant as well points to no evidence that the shockwave treatment is reasonable and necessary, and the evidence provided actually shows that the shockwave treatment specifically was not helpful². Thus, it cannot be said that the shockwave treatment is reasonable and necessary.

12The applicant's submissions are focused on the physical rehabilitation or physiotherapy treatment portion of the treatment plan.

13Both parties have provided me with medical evidence commencing in 2015 onwards. This evidence has been reviewed and considered. The focus of the analysis below is on the evidence that is contemporaneous with the treatment plan as I find the evidence after the accident and three years prior to the treatment plan to not carry as much weight as the evidence that is contemporaneous with the treatment plan and that shows the applicant's impairments and treatment recommendations at the time of the treatment plan.

14To that end the applicant submits that in January of 2019 the applicant stopped working due to the increase in her pain levels, around this time she reported that she continued to participate in 20% of the household tasks and that the goals of the treatment plan to return to activities of daily living are reasonable and necessary in the circumstances. As well, the applicant argues that the chronic and ongoing nature of the applicant's injuries and thus pain make the need for treatment obviously reasonable and necessary.

15I agree with the applicant that goals of reducing pain and returning to the activities of normal living are legitimate goals in a treatment plan. However, I find that the applicant has not met her onus to show that these are goals that are legitimate and achievable for her by means of her treatment plan.

16The evidence contemporaneous with the treatment plan however is not persuasive in showing that physiotherapy is reasonable and necessary and will reach the goals listed. While the applicant submits that as a result of the accident she has ongoing pain in her back, foot, radiculopathy, chronic pain and psychological injuries, the applicant has not shown on a balance of probabilities that continued physiotherapy in December of 2018 (in an around the date of the treatment plan) is being recommended or is warranted as a result of the accident.

17The only evidence that there was a recommendation for physiotherapy is the report of May 26, 2017 by Dr. Kachooie. He noted that the applicant continued to have pain in her back and lower extremities. Following this report of May 27, 2017 until December 17, 2018 there are no further recommendations for physiotherapy. This lack of recommendations for physiotherapy is despite the fact that the applicant continues to see Dr. Kachooie. The disputed treatment plan is dated some nineteen months following the May 26, 2017 note and thus I do not place much weight on a recommendation for physiotherapy that was made nineteen months prior to the disputed treatment plan.

18On August 31, 2018 Dr. Kachooie makes a diagnosis of metatarsalgia and recommends steroid injections to the applicant's foot and specifically to the soft tissue of the metatarsal. However, he makes no recommendations for physiotherapy.

19On December 17, 2018 Dr. Kachooie provides the disputed treatment plan and an accompanying report wherein he recommends physiotherapy.

20However, on March 29, 2019 Dr Kachooie notes in his report of the same date that despite the applicant trying a course of physiotherapy that it has not helped the applicant.

21I note that there is no other contemporaneous evidence other than the treatment plan and the report to point to the reasonableness or necessity of disputed treatment plan.

22In the clinical notes and records from 2017 to 2019 of Dr. Jose, the applicant's family doctor, there are no recommendations for physiotherapy to reduce the applicant's pain related complaints.

23The evidence also does not support that the pain in the applicant's foot is related to the accident. There are no expert reports that relate the applicant's metatarsal issue to the accident. Further, while Dr. Jose continues to note the ongoing pain complaints he does confirm that the applicant firstly never reported the foot pain following the accident and secondly the foot pain and related symptoms are as a result of avascular necrosis on the metatarsal head.

24The applicant also saw Dr. Partridge at the Jacobs Pain Clinic. Dr. Partridge in the report of February 23, 2016, notes the ongoing pain complaints but also notes that he does not think that meralgia parasthetica (nerve compression from the spine) explains the left foot pain. He makes no recommendations for physiotherapy.

25In Dr. Partridge's report of February 25, 2019, he diagnoses the applicant with Freiberg's avascular necrosis of the third metatarsal head. Again, he makes no recommendations for physiotherapy.

26Based on the above I do not find that the issues with applicant's left foot are an accident related injury or impairment and additionally I find that the there is no evidence supporting the need for physiotherapy with respect to the applicant's foot.

27With respect to the functional limitations and the need for physiotherapy to support the applicant's return to activities of daily living, the evidence shows that the applicant continued to work since the accident. The I.E report of Dr. Khaled dated July 26, 2016 states the applicant reports that she has returned to work after the accident. The I.E. report of Dr. Czok states that the applicant reports that she stopped working as of January 2019 due to ongoing pain and feeling unwell. The clinical note of February 25, 2019 of Dr. Partridge states that the applicant cannot have her foot immobilized for six weeks (as form of treatment) because she needs to "work and drive."

28The applicant produced notes from Dr. Jose dated July 17, 2020 and another note from Dr. Partridge dated July 20, 2020 which both state that the applicant has been unable to work since the accident. I am not persuaded by the July 2020 notes of Dr. Jose and Dr. Partridge given the above noted evidence of the applicant reporting that she was working for a time period following the accident."

29The applicant does not point to any evidence showing her reporting functional limitations nor does the applicant point to any evidence confirming her functional limitations. There is also no evidence that the applicant requires physiotherapy or any treatment to treat her accident related injuries in order for her to return to her activities of daily living.

30Based on the evidence distilled above, the applicant has not shown on a balance of probabilities that the treatment plan dated December 17, 2018 for physical rehabilitation (physiotherapy) acupuncture, massage therapy, shockwave therapy, a TENS Unit, a functional ability assessment and the associated costs of the OCF-18 and education are reasonable and necessary.

Osteopathic Treatment

31The applicant is seeking payment for osteopathic treatment of $809.04. The case conference order states that this is based on an OCF-18 of January 2, 2019. The applicant states that the request for payment for the osteopathic treatment is based on the OCF-6 of January 2, 2019. The respondent submits that the cost of the osteopathic treatment is not quantifiable as there are two OCF-6s that claim differing amounts for osteopathic treatment.

32I find that the issue in dispute is whether the applicant is entitled to expenses of the osteopathic treatment as stated in the OCF-6 of January 2, 2019. The respondent in pointing out the duplication of the osteopathic treatment expenses points to the OCF-6 of August 15, 2018 and the subsequent OCF-6 of January 2, 2019. The respondent submits that the receipts attached to these OCF-6s are the same. I agree that the receipts attached for the osteopathic treatment are the same for both the earlier OCF-6 of August 15, 2018 and the one of January 2, 2019. As well the January 2, 2019 has further receipts attached for purported treatments that occurred after August 15, 2018.

33Thus, I rely on the submissions of the applicant that it is seeking the expenses for the osteopathic treatments as per the OCF-6 of January 2, 2019. Further as no treatment plan has been provided, I find that there is no treatment plan to correspond to the osteopathic treatment.

34Lastly in terms of the amount in dispute I find as the applicant is relying upon the OCF-6 of January 2, 2019 and the expenses on the OCF-6 notes that the osteopathic treatment is not $809.04 but it is $730.00.³ The receipts attached to the OCF-6 for the osteopathic treatment as well add up to $730.00. Thus, this is the amount that is in dispute.

35Even if I am wrong in the above, I also find, for the reasons noted below, that the osteopathic treatment is not reasonable and necessary.

36The onus is on the applicant to show that osteopathic treatment and the costs of the treatment are reasonable and necessary. The OCF-6 notes that the applicant is seeking reimbursement for treatment that occurred in 2017 and 2018. The applicant submits that this treatment occurred at Health Spectrum but the applicant does not provide the clinical notes and records from 2017 onwards from Health Spectrum. I also note that at paragraph 38 of the applicant's submission she states that she attended Health Spectrum from October 2015 to December 2016 this is contrary to her stating in the OCF-6 that she received the osteopathic treatment at Health Spectrum in 2017 and 2018.

37The applicant further submits that the osteopathic treatment is reasonable and necessary as the treatment was done on the advice of the physiotherapist and that the treatments were effective and helpful. The applicant does not point to any evidence for these submissions. Specifically, the applicant does not point to evidence that the recommendation was made and when it was made. The applicant does not point to any evidence of the treatments being related to the accident. The applicant has not pointed to evidence as to what the treatment was, what the goals of the treatment are, the effectiveness of the treatment and the helpfulness of the treatment.

38I find that the applicant has not met her onus to show that the osteopathic treatment is a reasonable and necessary expense as a result of her accident related injuries and impairments. Therefore, the expenses for the osteopathic treatment are not payable.

Orthopaedic Treatment

39With respect to the request for the repayment of the costs for "orthopaedic treatment" again this is not based on a treatment plan. This issue in dispute is also not as described in the Tribunal's order from the case conference. Based on the submissions of the applicant it appears that the applicant is seeking expenses based on the OCF-6 dated August 15, 2018. There is no "orthopaedic treatment" listed on this OCF-6, what is listed however is an orthopaedic cushion at the cost of $179.04 of January 30, 2018 and not $990.04. Further the receipt attached to the OCF-6 is from Sparkman's and lists an "ortho cushion" that is 8 1/2" x 19" x 24" and costs $79.04 including tax. Based on the submission of the applicant it appears that she is seeking the costs of orthotics for her foot but given the size of the cushion I cannot assume that the cushion is an orthotic cushion for her foot. The Tribunal was provided with no further information or documents in support of the $990.04 for orthopaedic treatment.

40The respondent submits that the amount of the orthopaedic treatment is not quantifiable and thus cannot be found to be reasonable and necessary. The applicant in their reply submissions provides no explanations despite the respondent's aforementioned argument.

41I agree with the respondent. The applicant is seeking reimbursement of expenses of $990.04 for orthopaedic treatment and does not provide the necessary information for the Tribunal to determine what the treatment is and if the cost is reasonable and necessary. As the onus is on the applicant to show that the orthopaedic treatment is reasonable and necessary the applicant has failed to meet this onus and thus the $990.04 is not payable.

Interest

42As no benefits are overdue there is no interest owing.

Conclusion and Order

43The applicant's appeal is dismissed in its entirety.

Footnotes

1. 1O.Reg. 34/10, as amended!
2. 2Report of Dr. Kachooie dated March 29, 2019, tab 7 of the Applicant's submissions.
3. 3See tab 17 of the applicant's brief