Citation: Ng v. Western Assurance Company, 2022 ONLAT 19-010690/AABS

Licence Appeal Tribunal File Number: 19-010690/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:

Cheung-Tat Ng

Applicant

and

Western Assurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Symone Marlowe, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Cheung-Tat Ng (the “applicant”) was injured in an automobile accident on August 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from Western Assurance Company (the “respondent”). The applicant was denied certain benefits on the basis that they were not reasonable and necessary and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are to be decided:

(i) Is the applicant entitled to $9,253.11 for chiropractic services recommended by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) dated January 28, 2019?

(ii) Is the applicant entitled to $8,346.80 for chiropractic services recommended by Total Recovery Rehab Centre in an OCF-18 dated March 27, 2020?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to either of the treatment plans in dispute as they are not reasonable and necessary. Given that no benefits are outstanding, no interest is payable.

ANALYSIS AND OVERVIEW

Are the Treatment Plans Reasonable and Necessary?

4Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as the result of an accident. The medical benefit must be a reasonable and necessary expense. The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating that the OCF-18s in dispute are reasonable and necessary on a balance of probabilities.²

5In the interest of fairness, I considered the totality of the evidence before me and assigned it the weight that I deemed appropriate in order to make a determination on the issues in dispute.

The Medical Evidence

6The applicant submits that he suffered physical and psychological injuries as a result of the subject accident on August 4, 2016. He was transported to hospital from the scene of the accident by ambulance complaining of upper back spasms along with middle and lower back pain. The applicant acknowledges a history of mild impairment to the right shoulder and finger joints due to a work-related injury sustained before the subject accident.³

7The applicant sought treatment from Dr. H. Wu, family physician, who noted tenderness at the neck, back, and trapezius areas. The doctor prescribed medication for pain and recommended physical therapy. The applicant applied for sick leave from his place of employment. The applicant continued to attend appointments with his family physician from late 2016 to early 2021. During this period, he reported continuing issues progressing to chronic neck, back, right shoulder, right finger, and right arm pain, psychological issues with depression, and poor sleep and mood disturbances.⁴

8The applicant was referred to Dr. J. Wong, family physician, who diagnosed right-side fibromyalgia in 2017 due to right shoulder and right-hand pain.⁵

9The above issues led to the two treatment plans in this dispute, which were recommended by Dr. G. Palantzas, chiropractor, of Total Recovery Rehab Centre, for “chronic pain.”⁶ In January 2019, Dr. Palantzas found that the applicant had suffered chronic pain as a result of the accident, along with fibromyalgia. She also recommended psychological treatment and an appointment with a sleep specialist.⁷

10Western Assurance submits that the applicant’s accident-related physical injuries were resolved in 2016, and that many of the references to symptoms and chronic pain in the clinical notes and records (“CNRs”) of Dr. Wu were due to a prior work-related injury.⁸ The respondent further notes that the applicant received no treatment for more than two years, from his last appointment with All Seasons Rehab on December 18, 2016 to his first with Total Recovery Rehab Centre on January 28, 2019.⁹

11The respondent challenges the applicant’s statements with regard to requiring significant time away from work due to accident-related injuries, noting that he returned to work on August 22, 2016.¹⁰ Western notes that although it removed the applicant from the Minor Injury Guideline (“MIG”) and its related $3,500.00 limit on treatment, it did so “on a psychological basis,” not a physical one.¹¹ The insurer submits that the applicant’s accident-related injuries are soft tissue in nature, citing independent examinations (“IEs”) conducted by Dr. N. Alikhan, family physician,¹² Dr. R. Day, psychiatrist,¹³ and Dr. D. Mula, family physician,¹⁴ to demonstrate that the treatment plans in dispute are not reasonable and necessary.

Total Recovery Rehab Chiropractic Treatment Plans ($9,253.11 and $8,346.80)

12The OCF-18s at dispute involve identical chiropractic treatment including sessions of manipulation, exercise, mobilization, and physical therapy. The injuries and sequelae are indistinguishable in both plans, as well, along with the treatment goals, which are pain reduction, increased strength and range of motion, reduced inflammation, and an increase in blood circulation.¹⁵ As such, I will be addressing them together.

13The applicant submits that he is entitled to the treatment plans at dispute due to continuing complaints about pain to Dr. Wu and Dr. Palantzas. The report of Dr. S. McDowall, psychiatrist, is also noted, as she examined the applicant on March 26, 2020 and diagnosed him with major depressive disorder with anxious distress and a specific phobia in relation to travel, both as a direct result of the subject accident and resulting pain symptoms.¹⁶

14Furthermore, the applicant claims that this is a “chronic pain case,” and that the treatment plans should be approved for the goal of pain relief, as well as addressing ongoing pain and emotional distress that “impairs his ability to carry out aspects of daily living.”¹⁷ The applicant also notes that the respondent did not properly assess new information on this file as it became available from medical treatment providers, and thus breached its duty of good faith.

Chronic Pain

15Firstly, to address the chronic pain question. I am not persuaded that the applicant suffered from chronic pain. While the applicant does not raise a chronic pain condition formally in his submissions, I will comment on this as such a finding would be relevant to the reasonable and necessary nature of the treatment plans in dispute. It is generally accepted that to meet a diagnosis of chronic pain, an individual must be deemed to meet at least three of the six criteria as set out in the American Medical Association (“AMA”) Guides:¹⁸

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

16Insufficient evidence has been provided by the applicant to satisfy any of the above six criteria, save possibly (vi). While the applicant was prescribed pain medication, there is no indication that it was used beyond recommended duration, nor is there any claim of abuse. Similarly, there is no evidence of excessive dependence on health care providers or family, or evidence of secondary physical deconditioning or fear-avoidance due to pain. There is also no indication that the applicant withdrew from social, work, or recreation settings to any significant degree. He appears to have worked throughout most of the time following the accident, showing that there was no failure to restore pre-injury function when it came to employment. Only the psychological diagnoses¹⁹ and the insurer’s removal of the applicant from the MIG indicates development of psychosocial sequelae that could satisfy criterion (vi), but since meeting one criterion is not enough to warrant a diagnosis of chronic pain based on the AMA Guides, the matter requires no further analysis.

Medical Evidence

17Granted, the AMA Guides criteria regarding chronic pain are not incorporated into the Schedule, so I am not bound to utilize them as anything but a useful interpretive tool. Other medical evidence can substitute for an analysis guided by the principles in the AMA Guides.

18In this instance, the applicant relies largely on the CNRs of Dr. Wu and the OCF-18s submitted by Dr. Palantzas to support a diagnosis of chronic pain, claiming that they demonstrate a progression of symptoms from 2016 through 2021 that ultimately resulted in the two treatment plans at issue. The written submissions refer to 38 different appointments with Dr. Wu from August 11, 2016 to January 6, 2021, each of which contains references to complaints about right shoulder pain, right elbow pain, neck pain, back pain, joint swelling and pain in the fingers of the right hand, shoulder tendinitis, and recommendations for physical therapy and medical prescriptions.²⁰ Dr. Palantzas generally concurred when she examined the applicant on January 29, 2019 and March 27, 2020, making note of “fibromyalgia; injury of muscle and tendon at neck, thorax, abdomen, lower back, pelvis, shoulder, upper arm, and forearm; dislocation, sprain and strain of joints and ligaments at neck, thorax, lumbar spine, pelvis, and elbow; radiculopathy; sprain and strain of sacroiliac joint; rotator cuff syndrome; chronic post-traumatic headaches; and dizziness.”²¹ In addition, Dr. Palantzas noted that the applicant “exhibits complete impairment and function with severely decreased ROM in the cervical, thoracic, lumbar spine and shoulder, and right elbow region,” and “(r)adicular symptoms in the right upper extremity with loss of strength and weakness.”²²

19With that said, there is context beyond the diagnoses and recommendations picked out of the CNRs of Dr. Wu by the applicant. The respondent submits that a large number of these entries actually refer to a work-related injury at his job as a cleaner in a hospital. This injury was sustained to his right shoulder and fingers in April, 2016.²³ A review of a WSIB claim made in April, 2016 and approved in May, 2016 also illustrates that the applicant did injure his right shoulder and finger while working, before the subject accident that resulted in injuries primarily to the same areas.²⁴

20A review of Dr. Wu’s CNRs support this contention. Comments regarding issues as “MSK sprain” and “low back pain” and recommendations of physiotherapy begin on April 19, 2016, immediately after the workplace accident.²⁵ Other physical symptoms are also noted prior to the subject vehicle accident, such as a “heel and achilles” concern when walking and standing that resulted in a review of “pain and work limitation”²⁶ and “R shoulder pain for 2 wks.”²⁷

21Immediately after the subject vehicle accident, Dr. Wu’s records show that the applicant reported “pain 70% better from MVA (R shoulder and TRap)” and “pain resolving.”²⁸ Following September 2016, symptoms related to the motor vehicle accident vanish from Dr. Wu’s records for some two years. Mention of the “MVA” does not reoccur in Dr. Wu’s notes until January 8, 2018.²⁹ Whenever self-reports of back, right elbow, and right finger pain (amongst other issues) are mentioned during this time period,³⁰ they occur in the context of mentioning work duties. This raises uncertainty regarding whether these comments refer to the subject vehicle accident or the workplace accident.

22The applicant also spoke to Dr. Wu about retiring during his appointment on October 30, 2017, resulting in a notation of “too much stress for work, drive, family” and “plan to retirement.”³¹ There is no mention of the subject accident here, which leaves room to question what role this accident played in his decision to retire, contrary to what the applicant now claims.

23Most of Dr. Wu’s CNRs are not specific regarding the applicant’s pain symptoms. The language in his reports consists mainly of general comments on back, shoulder, and heel pain, which as I have shown above, predates the subject vehicle accident. There is insufficient information here to definitively state whether Dr. Wu is referring to the workplace accident or the motor vehicle accident in dispute.

24Dr. Wu’s CNRs deal much more with the applicant’s physical impairments than the applicant’s psychological state. While there is no dispute regarding psychological factors here, given the insurer’s decision to remove the applicant from the MIG for this specific reason, it is odd that the impact of the accident is not cited. For example, in the note from December 4, 2017, Dr. Wu notes that his patient is not in a good mood “due to stress a lot with family,” specifically “worries about 2nd daughter (she cannot find a job),” “argue with wife about saling (sic) the house,” and even thoughts “about suicide, plan to do it by car accident/medication/gas, etc.”³² It seems clear that other stressors in the applicant’s life played the primary role in contributing to his psychological issues, as well as to his decision to retire, not the subject accident.

25Furthermore, while the applicant did attend a large number of appointments with Dr. Wu between 2016 and 2021, these were not solely to address accident-related complaints, or the workplace incident that resulted in the WSIB claim. These appointments dealt primarily with other issues, such as ongoing hypertension and cholesterol concerns, colds, and both minor and chronic ailments that had no relation to either accident.³³

26As a result, Dr. Wu’s CNRs provide insufficient evidence to conclude that the subject accident caused the physical symptoms reported by the accident, or even that the subject accident exacerbated the injuries sustained in the prior workplace accident.

27Other evidence bolsters this conclusion. An IE arranged by the insurer with Dr. N. Alikhan, family physician, took place on October 18, 2016.³⁴ This resulted in the applicant stating that he was experiencing low back pain rated at 2/10 and right upper back/shoulder pain rated at 4-5/10, and that the workplace accident had caused earlier issues with the same area.³⁵ The report further noted that the applicant reported his lower back pain would go to a 9/10 when putting pressure on his back by lifting heavy weights or prolonged standing.³⁶ Dr. Alikhan’s final conclusions could not rule out the role of the workplace accident in the applicant’s symptoms, but that regardless of causation, the injuries were predominantly soft tissue in nature and did not warrant removal from the MIG or its $3,500.00 limit.³⁷

28While the MIG is not at dispute here, these findings remain relevant. They speak to the extent of the injuries and the level of medical care that would be deemed reasonable and necessary, which would not seemingly include two plans involving over $17,000.00 of treatment. Dr. Alikhan actually does not recommend any sort of physical treatment, which is also revealing, and further indicative that he deemed the applicant to be healing well in the fall of 2016 from injuries sustained in the subject accident.

29A further IE was conducted by Dr. D. Mula, physician, on July 16, 2020.³⁸ The respondent questions the applicant’s credibility regarding his answers to the doctor during this exam. I must agree. Based on the report of Dr. Mula, the applicant conspicuously fails to mention the April 2016 workplace accident. Instead, the applicant notes a prior motor vehicle accident in 2013 and focuses the rest of his attention on the subject accident, indicating that all of his physical injuries were as result of this incident. The applicant even advised Dr. Mula that “he had no pre-existing pains at the time of the subject motor vehicle accident,”³⁹ which is at odds with the facts, particularly with regard to Dr. Wu’s CNRs and the WSIB claim.

30This leads me to question the veracity of the applicant’s answers during this examination and as a result I assign them little weight. These responses tell a contradictory story, as the applicant claimed to be experiencing ongoing/intermittent significant neck, right shoulder, and lower back pain as a result of the subject accident despite ongoing treatment at Total Recovery Rehab Centre. These assertions call into question the effectiveness of this medical care. The applicant does claim, however, that the treatment has been “providing 30% relief lasting one to two days with improvement in range of motion and mobility.”⁴⁰ These results are not very noteworthy, especially given the extensive nature of the treatment seen in the OCF-18s in dispute here.

31Regardless, Dr. Mula agreed with the conclusions of Dr. Alikhan. His report further noted his finding that the injuries were primarily soft tissue in nature, that they fell within the MIG,⁴¹ and that the range of motion in the key injured areas ranged from 70-100 per cent.⁴² Dr. Mula presented similar conclusions in his paper review of the treatment plans in question dated September 14, 2020.⁴³ He described both plans as not medically reasonable and necessary, with the added explanation that he believes the applicant “has likely reached a plateau in recovery specific to the soft tissue injuries sustained in the subject motor vehicle accident.”⁴⁴

CONCLUSION

32Overall, I do not find the medical evidence persuasive in establishing that the treatment plans in dispute are reasonable the reasonable and necessary pursuant to the Schedule.

33While it has been accepted that the applicant sustained psychological injuries as a result of the subject accident, which warranted removing him from the MIG to permit psychological treatment beyond the $3,500.00 limit, there is simply no corresponding evidence demonstrating the same need for the additional and extensive physical treatment as detailed in the two treatment plans at dispute. The unexplained role of the workplace accident, a failure to mention the motor vehicle accident for two years in the family physician’s CNRs following specific notations that injuries from this accident were healing very well, the absence of treatment for these physical injuries for a similar length of time, and the lack of transparency by the applicant during the IE conducted by Dr. Mula all raise more questions than answers.

34For the above reasons, I find that the applicant has not met his burden of proving that the treatment plans in dispute here are reasonable and necessary. He is not entitled to either plan, or interest.

Released: September 8, 2022

__________________________

Brett Todd

Vice-Chair

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Ibid. s. 14, 15.
3. 3Applicant Submissions, page 2. (NOTE: All footnotes refer to the PDF page numbers of each specified document, not the page numbering within said documents.)
4. 4Ibid. pages 3-6; Applicant Tab 2, parts 1 and 2 (Records from Dr. Woo).
5. 5Ibid. page 6; Applicant Tab 5 (Records from Dr. Wong).
6. 6Applicant Tab 4, page 24 (Records from Total Recovery).
7. 7Applicant Submissions, page 7-8; Applicant Tab 4.
8. 8Respondent’s Written Submissions, page 7
9. 9Ibid. page 4.
10. 10Ibid. page 7.
11. 11Ibid. page 8.
12. 12Ibid. Tabs 3 and 7 (Dr. N. Alikhan Physician Assessment Reports).
13. 13Ibid. Tabs 4 and 11 (Dr. R. Day Physician Assessment Reports).
14. 14Ibid. Tabs 8 and 12 (Dr. D. Mula Physician Assessment Report and Physician Paper Review Report).
15. 15Applicant Submissions Tabs 9 and 12 (Western Assurance denial letters and OCF-18s dated January 28, 2019 and March 27, 2020.
16. 16Applicant Written Submissions, pages 9-10; Applicant Submissions, Tab 3, pages 81 ff (Dr. S. McDowall Psychological Assessment Report).
17. 17Ibid. page 10.
18. 18American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition.
19. 19See Respondent’s Written Submissions, Tab 11, page 473 for the second Dr. R. Day, psychiatrist, IE that diagnoses the applicant as progressing to a significant psychological impairment with adjustment disorder, with mixed anxiety and depressed mood; Applicant Submissions, Tab 3, pages 81 ff. and pages 91 ff. for the Dr. McDowall Psychological Assessment Report and her Counselling Progress Report.
20. 20Applicant Written Submissions, pages 3-6.
21. 21Ibid. page 7.
22. 22Ibid. page 8.
23. 23Respondent’s Written Submissions, page 2; Tab 2 (WSIB file dealing with this workplace accident, dated April 18, 2016).
24. 24Ibid. Tab 2, page 249 ff (WSIB file).
25. 25Ibid. Tab 1, page 61 ff.
26. 26Ibid. Tab 1, page 68.
27. 27Ibid. Tab 1, page 71.
28. 28Ibid. Tab 1, page 77.
29. 29Ibid. Tab 1, page 115.
30. 30Ibid. Tab 1, page 94 as just one example.
31. 31Ibid. Tab 1, page 106.
32. 32Ibid. Tab 1, page 111.
33. 33Ibid. Tab 1, page 61 ff.
34. 34Ibid. Tab 7, page 275 ff. (Dr. N. Alikhan Physician Assessment Report).
35. 35Ibid. page 279.
36. 36Ibid. page 281.
37. 37Ibid. page 418.
38. 38Ibid. Tab 8, page 428 ff. (Dr. D. Mula Physician Assessment Report).
39. 39Ibid. Tab 9, page 439.
40. 40Ibid. pages 434-435.
41. 41Ibid. page 438.
42. 42Ibid. pages 436-437.
43. 43Ibid. Tab 12, page 476 ff (Dr. D. Mula Physician Paper Review Report).
44. 44Ibid. page 487.