Licence Appeal Tribunal File Number: 20-000204/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:
Roberto Almonte
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jessie Tran, Paralegal
For the Respondent:
Stanislav Bodrov, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, R.A., was injured in an accident on December 11, 2014, and sought benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). Wawanesa denied the benefits on the basis that it determined that R.A.’s accident-related impairments were predominantly minor injuries, and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). R.A. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2I am asked to make a determination on the following issues in dispute:
a. Are R.A.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
3If R.A.’s injuries are not predominantly minor, then I must determine if the following treatment plans (OCF-18s) recommended by Pain Rehabilitation Clinic Inc. are reasonable and necessary:
a.
i. $1,200.00 for chiropractic treatment, massage therapy, in an OCF-18 submitted on December 27, 2017, and denied on January 11, 2018?
ii. $2,600.00 for chiropractic treatment, massage therapy, in a plan submitted on March 23, 2018, and denied on April 5, 2018?
iii. $2,200.00 for a social work assessment, in an OCF-18 submitted on March 23, 2018, and denied on April 6, 2018?
iv. $2,200.00 for an orthopaedic assessment, in a plan submitted on March 23, 2018, and denied on April 5, 2018?
v. $2,200.00 for a chronic pain assessment, submitted on June 21, 2019, and denied on July 5, 2019?
vi. $1,500.00 for a functional assessment evaluation, submitted on June 21, 2019, and denied on July 5, 2019?
vii. $2,300.00 for rehabilitative massage and chiropractic treatment, submitted on July 12, 2019, and denied on July 23, 2019?
b. Is R.C. entitled to interest on any overdue payment of benefits?
FINDINGS
4R.A. has demonstrated that his impairments require treatment beyond the MIG. Accordingly, the treatment plans for physical treatment are reasonable and necessary. In addition, R.A. is entitled to the cost of examination expenses for the chronic pain assessment and functional assessment evaluation. Interest is payable pursuant to s. 51 of the Schedule.
5R.A. has not demonstrated that the cost of examination expenses for the social work and functional assessment evaluation are reasonable and necessary. No interest is payable.
ANALYSIS
Applicability of the MIG
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly minor in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence noting that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also established that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus remains on the applicant.
Does R.A. have a pre-existing condition that precludes recovery if kept within the MIG?
7Prior to the accident, R.A.’s medical evidence indicate that he suffered from issues related to his wrist, back and neck. It appears the pre-existing knee pain complaints were due to a sports injury suffered at the age of 17. Essentially, R.A. submits that these pre-existing conditions were exacerbated by the accident and warrant removal from the MIG.
8In response, Wawanesa submits that it is unclear from the medical documentation what pre-existing condition R.A. asserts prevents his recovery within the MIG. Further, it submits that R.A. has not met the relevant test for establishing that he has a pre-existing condition that would preclude recovery under the MIG. In this regard, its position is that R.A. has not provided any pre-accident clinical notes that establish he had a pre-existing medical condition documented by a medical health practitioner prior to the accident. In addition, it posits that R.A. has not led any evidence to establish how any alleged pre-existing condition prevent his recovery under the MIG.
9I agree with R.A. On the evidence, his right knee was already compromised at the time of the accident due to the pre-existing athletic injury suffered as a teen. The medical documentation also notes that in the months following the accident, R.A. reported on more than one occasion that he struck his right knee at the time of the collision.
10Between March 9, 2015, and December 19, 2019, there are numerous records of knee pain complaints and pain medication prescriptions. Diagnostic imaging by way of an MRI revealed complex lateral meniscal tears and a complete ACL tear, which was found to be chronic in nature. These injuries were noted to be accident related. In September 2017, R.A. underwent knee surgery due to the ACL tear and lateral meniscal tear.
11I find that the accident exacerbated R.A.’s pre-existing right knee and as a result would prevent R.A. from achieving maximum medical recovery if he remained in the MIG limits.
Are the physical treatment plans reasonable and necessary?
12Having found that R.A. has a pre-existing condition that prevents him from maximum medical recovery under the MIG, I must now consider whether the OCF-18s for physical treatment are reasonable and necessary. I will be addressing all three treatment plans together as they involve the same evidence. On a balance of probabilities, I find that R.A. has met his onus to establish that the treatment plans for chiropractic treatment and massage therapy are reasonable and necessary.
13Wawanesa submits that any treatment that R.A. required beyond the right knee surgery is not as a result of the accident. Its position is that any functional limitations after August 2017, were caused by degenerative knee changes unrelated to the accident.
14I disagree. The OCF-18s were submitted between December 27, 2017, and July 12, 2019. Between March 9, 2015, and September 20, 2016, R.A. sought treatment at the Wilson Foot & Spine Clinic until his funding was denied. Between September 12, 2017, and September 28, 2017, R.A. paid for treatment at The Orthopaedic Physiotherapy Specialists, following his knee surgery. On October 16, 2017, R.A. reported right knee pain to his family physician, Dr. Mazaheri, who recommended physiotherapy.
15Continuing to seek treatment, R.A. attended Pain Rehabilitation Clinic, between November 27, 2017, and September 25, 2020. The records note that R.A. complained of left shoulder, right knee and lower back pain during visits. At a March 23, 2018 visit, he reported that he feels “well” when receiving treatments. On multiple occasions, R.A. reported that his left shoulder, low back and right knee pain interferes with work and sleep. This was most recently reported on March 13, 2020.
16In considering whether the OCF-18s are reasonable and necessary, R.A. must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that overall cost of achieving the goals is reasonable.
17The treatment plan goals note pain reduction, increased range of motion and strength and a return to activities of normal living. The treatment goals would be achieved through ortho testing, changes in range of motion and strength were noted as effective treatment strategies. It is well settled that treatment aimed at reducing or managing an insured’s pain is a reasonable objective.
18The knee pain complaints were consistent both prior to and after the surgery, which I find to be indicative that there is legitimacy to the accident-related knee symptomatology. Further, I note that a previous OCF-18 resulted in improved range of motion and strength, pain reduction and better quality of sleep after receiving treatments. I find that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and the costs (both financial and time invested) of achieving the goals are reasonable.
19For these reasons, I find that R.A. has demonstrated that the treatment he seeks is reasonable and necessary.
Is the social work assessment reasonable and necessary?
20For the reasons to follow, I find that the social work assessment is not reasonable and necessary.
21Chiropractor, Dr. Bui completed an assessment on March 23, 2018. In his report, Dr. Bui noted various concerns: problems related to social environment, psychosocial circumstances, in relationships with spouse, family members, housing and economic circumstances, as well as employment and unemployment.
22In response, Wawanesa submits that none of the assessments are reasonable and necessary. It maintains its position that after August 2017, any functional limitations that developed were caused by degenerative knee changes.
23As a chiropractor, I place little weight on the opinion of Dr. Bui. I do not find Dr. Bui has the proper expertise to recommend a social work assessment. While I appreciate that R.A. has experienced reductions in his social life, and activities of daily living, I am not persuaded that a social work assessment is reasonable and necessary.
Is the orthopaedic assessment reasonable and necessary?
24I find that the orthopaedic assessment is reasonable and necessary.
25R.A. submits that the orthopaedic assessment is reasonable and necessary in order to identify his orthopaedic injuries and establish a course of treatment. Similar to the OCF-18s for chiropractic treatment, the treatment plan identified that R.A.’s injuries continue to impact his ability to engage in his activities of normal life and his tasks of employment due to pain, range of motion and psycho-social impairments. The purpose of the treatment plan according to Dr. Bui, was to identify and evaluate the specific nature of the patient’s musculoskeletal injury and condition, as well as to evaluate range of motion, impairments and responses to treatment.
26In response, I refer to Wawanesa’s position in paragraph 21, above.
27It’s important to consider that assessments, by their nature, are speculative. They are conducted to determine if an insured has a specific condition or meets a specific threshold. There is also the reality that the assessment will prove negative. That said, I accept R.A.’s position that there must be some indication that the specified condition exists, and that further investigation is reasonable and necessary.
28Given the exacerbated nature of the pre-existing knee injury, the ongoing shoulder and back pain complaints, I find that there are reasonable grounds to support an investigation by way of an orthopaedic assessment. The evidence is that despite the pre-existing knee injury, R.A. was able to engage in full-time work and sports activities, and after the accident, he required knee surgery and is no longer able to engage in full-time work or his various pre-accident sports activities.
29For the reasons set out above, I find it is reasonable that since the R.A. struck his knee inside of the van at the time of the collision, and the nature of the other accident-related injuries that further investigation by way of an orthopaedic assessment is reasonable and necessary.
Is the chronic pain assessment reasonable and necessary?
30I find that the chronic pain assessment is reasonable and necessary.
31In support of his claim of entitlement to the chronic pain assessment, R.A. relies on the June 21, 2019, Independent Pain Assessment report from anesthesiologist, Dr. Ta. Dr. Ta diagnosed R.A. with post-traumatic injury to the left shoulder, post-surgical osteoarthritis of the right knee and right knee lateral collateral ligament strain. Dr. Ta further noted that R.A. also has left shoulder range of motion limitation and chronic pain, requiring further investigation.
32Wawanesa submits that R.A. does not have chronic pain as a result of the accident. It argued that R.A. failed to meet the minimum requirement of satisfying three of the six criteria in the AMA Guides regarding chronic pain.
33I disagree with Wawanesa that the AMA Guides are the appropriate consideration, as the purpose of the chronic pain assessment is to determine whether R.A. suffers from chronic pain or chronic pain syndrome as a result of the accident. Until such a determination is made, Wawanesa cannot rely on a failure to meet the criteria set out in the AMA Guides. I find that the appropriate test for whether the chronic pain assessment is reasonable and necessary is whether there is a reasonable possibility that R.A. has the condition that the assessment is designed to investigate; and whether the evidence supports that the claimed assessment is reasonable and necessary.
34I am persuaded by Dr. Ta’s report, as I find his opinion persuasive regarding the longevity and impact on functional ability preferrable over the position taken by Wawanesa. Accordingly, I find that the chronic pain assessment is reasonable and necessary.
Is the functional assessment evaluation reasonable and necessary?
35I do not find the functional assessment evaluation (“FAE”) to be reasonable and necessary.
36The treatment plan author, Dr. Bui, noted that R.A. experiences limitations related to activities that he was independent in pre-accident. According to Dr. Bui, R.A. is limited with tasks involving prolonged standing, bending forward, reaching or involving repetitive movements of the upper limbs, lifting or carrying tasks, due to ongoing pain symptoms. R.A. reported restrictions with driving long distances, playing baseball/basketball and tobogganing. Dr. Bui also reported that R.A. suffered physical impairments directly related to the accident and that he continues to suffer from chronic pain of the lumbar spine, shoulders and right knee.
37Wawanesa submits that R.A. did not suffer any functional impairments; that he continued working in a physically demanding job, attend restaurants, movies, went on vacations, church and attended his trailer. Wawanesa also relies on surveillance evidence from 2016 showing R.A. carrying various pieces of equipment, allegedly related to his job. The observer did not note any impairment with R.A.’s gait or ability to carry heavy objects.
38On the evidence, I place little weight on Dr. Bui’s opinion regarding chronic pain, as he is not a chronic pain specialist. Further, R.A. has at various times engaged in numerous of his pre-accident activities, which is indicative of a reasonable level of function. Additionally, I find that there is little additional benefit from an FAE when the chronic pain assessment notes similar barriers to recovery. It would seem that the FAE may be somewhat redundant and serve less benefit to address the ongoing pain complaints, when considered against the goals of the chronic pain assessment.
39For these reasons, I find the FAE is not reasonable and necessary.
INTEREST
40Interest is payable on the physical treatment plans, the orthopaedic and chronic pain assessments, in accordance with s. 51 of the Schedule.
41No interest is payable for the social work and functional assessment evaluation.
CONCLUSION
42R.A. is entitled to the following:
a. The treatment plans for physical treatments;
b. The cost of examination expenses for the orthopaedic and chronic pain assessments; and
c. Interest is payable in accordance with s. 51 of the Schedule.
43R.A. is not entitled to the following:
a. The cost of examination expense for the social work and functional assessment evaluation; and
b. No interest is payable.
Released: May 17, 2022
Derek Grant
Adjudicator
Footnotes
- O. Reg 34/10, as amended.