Barkho v. Intact Insurance Company, 2023 CanLII 23588

Barkho v Intact Insurance Company, 2023 ONLAT 21-001983/AABS

Citation: Barkho v Intact Insurance Company, 2023 ONLAT 21-001983/AABS

Licence Appeal Tribunal File Number: 21-001983/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:

Hanna Barkho

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Richard Warr

APPEARANCES:

For the Applicant: Kateryna Vlada, Paralegal

For the Respondent: Mariam Yusufi, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Hanna Barko, (“the applicant”), was involved in an automobile accident on July 7, 2018 and sought benefits from Intact Insurance Company, (“the respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied certain benefits by the respondent and submitted an Application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3ISSUES

4The issues to be decided are:

1. Is the applicant entitled to a medical benefit in the amount of $1,870.20 for physiotherapy treatment, proposed by Dev Wellness and Rehab Clinic in a treatment plan/OCF-18 (“plan”) dated February 9, 2019?
2. Is the applicant entitled to a medical benefit in the amount of $1,795.20 for physiotherapy treatment, proposed by Dev Wellness and Rehab Clinic in a plan dated November 11, 2019?
3. Is the applicant entitled to a medical benefit in the amount of $12,918.49 for chronic pain therapy, proposed by Downsview Healthcare Inc. in a plan dated January 31, 2020?
4. Is the applicant entitled to a medical benefit in the amount of $2,575.12 for physiotherapy treatment, proposed by Downsview Healthcare Inc. in a plan dated January 30, 2020?
5. Is the applicant entitled to a medical benefit in the amount of $3,335.98 for psychological treatment, proposed by Downsview Healthcare Inc. in a plan dated February 5, 2020?
6. Is the applicant entitled to a medical benefit in the amount of $2,076.71 for physiotherapy treatment, proposed by Downsview Healthcare Inc. in a plan dated July 3, 2020?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find the applicant is not entitled to the benefits claimed, nor interest.

BACKGROUND

6The applicant was the driver of a motor vehicle which was struck from the rear in stop-and-go traffic conditions on a 400 series highway. Following the accident, the applicant exited his vehicle on his own and exchanged information with the other driver. The applicant’s vehicle was towed to an accident reporting centre.

7The applicant met with his family physician, Dr. V. Kakzanov, about a month following the accident, on August 11, 2018. The clinical notes and records, (“CNRs”), for that visit notes that the applicant complained of back pain worsening following the accident which limits his range of motion. Dr. Kakzanov recommended stretching and home exercises and prescribed medications.

ANALYSIS

8The applicant claims entitlement to the treatment and assessment plans in dispute on the basis that the subject accident exacerbated his pre-existing injuries and he suffered new psychological impairments.

9The respondent denied funding for the treatment and assessment plans in dispute because it determined that they are not reasonable and necessary as a result of the subject accident. It submits that the applicant has not met his onus of establishing a link to the subject accident and his ongoing injuries.

Causation

10I find that the applicant’s pre-existing back pain was not exacerbated by the accident because his pain complaints prior to the accident are consistent with his complaints following the accident, both in frequency and severity.

11The applicant has a long, documented history of back pain pre-dating the accident. He had an MRI of his lumbar spine conducted in June 2015, about three years prior to the accident. The MRI report prepared by Dr. J. Perring notes the applicant’s complaint at that time to be pain radiating down left leg. The report concluded that the applicant had mild spinal stenosis, mild to moderate disc bulges, mild to moderate facet osteoarthritis and disc protrusions. The applicant’s lumbar spine MRI of September 2018, two months following the accident, showed no significant difference when compared to the 2015 pre-accident MRI.

12The CNRs of Dr. Kakzanov indicate that the applicant was living with back pain, severe at times, at least three years prior to the subject accident. In his own reporting the applicant attributed this pain to the physical stressors of working in the construction industry during a 2015 consultation with Dr. G. Tsemoulas, neurosurgeon. At the time of that consultation, Dr. Tsemoulas diagnosed the applicant’s pain as arthritis, a degenerative disease.

13Dr. Khazanov’s CNRs show back pain to be a prominent complaint of the applicant along with knee pain and right foot numbness, all pre-dating the subject accident as far back as December 9, 2015. At this visit the applicant advises Dr. Kakzanov that his back pain is so bothersome that he is unable to work. There is also a complaint of right foot numbness. Dr. Kakzanov diagnosed spinal stenosis. The applicant as referred to a social worker at this time to discuss disability.

14On December 14, 2015, the applicant attended for a consultation with Dr. Tsemoulas, due to ongoing back pain. The applicant told Dr. Tsemoulas at that visit that he attributes his back pain to working in the construction industry which is physically demanding and requires him to perform heavy lifting and deep bending tasks. Dr. Tsemoulas notes that the applicant had been complaining of back pain for two years leading up to this consultation. At the time of this consultation, Dr. Tsemoulas advised the applicant that his back pain was most likely due to arthritis as was his knee pain.

15The applicant met with Dr. Kakzanov again in January 2016, following his consultation with Dr. Tsemoulas. Dr. Kakzanov’s CNRs continue to refer to the applicant’s back pain and inability to work. The CNRs show that the applicant was in contact with a social worker to discuss application to the Ontario Disability Support Program (ODSP) and employment insurance (EI) sick benefits at this time. Following that, the CNRs note that the applicant’s back pain is so severe he is going to go on sick leave from his work. On April 2, 2016 and September 27, 2017 there are further notations of back pain. On June 11, 2018, the last CNR prior to the accident there is a notation where the applicant advises Dr. Kakzanov that his back pain is so severe that he is unable to shower.

16On August 27, 2018 an OCF-3 was completed for the applicant by physiotherapist K. Patel. The applicant’s injuries were listed in the OCF-3 as Whiplash Associated Disorder (WAD) II and sprains and strains. The OCF-3 also anticipated the duration of disability caused by the accident at 5 to 8 weeks.

17On September 26, 2018 the applicant attended for an MRI of his lumbar spine, which was requested by his family doctor. As noted previously, the MRI found no significant change from the pre-accident MRI conducted in 2015.

18Throughout 2018 the clinical notes and records of Dr. Kakzanov show complaints of ongoing back pain accompanied by right foot numbness. Dr. Kakzanov recommends physical therapy and prescribes medications. These are very similar notations as are found in the pre-accident clinical notes and records.

19The next notation referring to the accident in the clinical notes and records of Dr. Kakzanov is on March 23, 2019 when Dr. Kakzanov refers the applicant to a pain specialist.

20The applicant attended for an appointment with Dr. M. Al-Husari, a pain specialist, who issued a report dated (maybe On June 17, 2019 ). Dr. Al-Husari reviewed the applicant’s medications and the MRI of September 2018, noting no significant change compared to the pre-accident MRI of 2015. Dr. Al-Husari further noted in his report that the applicant self-reported that he was no longer working in construction and that he was working as a property manager. The applicant further reported to Dr. Al-Husari that he has experienced back pain for the previous four years and neck pain since the accident which the applicant characterized as a low-speed collision. Dr. Al-Husari notes that the applicant reports he cannot walk more than two blocks, and cannot sleep more than two hours continuously, that he cannot stand more than fifteen minutes and that he can no longer swim or ride a bicycle. Dr. Al-Husari reports that during the applicant’s physical examination the applicant had pain upon palpation of his neck and back and that the neurological exam appeared normal.

21The applicant was assessed by Dr. S. Dharamshi, physician, who issued a report dated June 24, 2019. Dr. Dharamshi’s assessment included an interview of the applicant, a review of medical documentation and a physical examination of the applicant. The applicant described bilateral low back pain with some right leg numbness. The applicant described the pain is made worse by activity and he does get some relief with over the counter and prescription medications. The applicant secondly described left side neck pain that is made worse by activity and relieved with rest and medications. No other complaints or symptoms were described.

22The applicant advised Dr. Dharamshi that his pre-existing back pain had completely resolved prior to the subject accident. He further reported that his low back pain caused by a previous accident in 2009 had also completely improved. This is inconsistent with the clinical notes and records of Dr. Kakzanov and the report of Dr. Tsemoulas of December 2015.

23Dr. Dharamshi reviewed Dr. Kakzanov’s clinical notes and records which included the MRI reports of 2015 and September 2018, but never concluded that the applicant’s current back pain was as a result of the accident. Dr. Dharamshi notes in his report that the applicant was able to walk, stand and sit without impairment or discomfort despite his reports of pain in his neck on the left side during the examination and lower back with some decreased range of motion in both the neck and back. Dr. Dharamshi concluded that the applicant’s diagnoses were WAD level 2, lumbosacral musculoligamentous strain and underlying spinal degenerative changes and that the accident-related injuries were minor in nature. Dr. Dharamshi does comment that the applicant has a “prior history of low back pain from a motor vehicle collision 10 years ago and spontaneous low back pain four years ago. The claimant did have a recurrence of his low back pain after the subject motor vehicle collision, which will delay his recovery but not prevent recovery.” Dr. Dharamshi also stated in the report that the applicant reported his prior back pain had resolved. This is inconsistent with the notations of Dr. Kakzanov.

24Dr. Dharamshi completed an addendum report dated September 10, 2019 and his conclusions remained unchanged. Dr. Dharamshi reviewed additional medical documents including updated CNRs of Dr. Kakzanov, MRI reports from September 2018 and June 2015 and a referral to a pain clinic in March 2019. Dr. Dharamshi maintained his initial diagnosis.

25On June 8, 2020 investigative surveillance was conducted on the applicant. The applicant was observed leaving his home in the morning, operating a motor vehicle making several stops throughout the day. The respondent submits that this investigative surveillance report is conclusive evidence that the applicant has returned to his pre-accident condition. I view the observations made on that day of surveillance as a point in time indication of the applicant’s overall condition and have given it appropriate weight. Certainly, it shows on June 8, 2020 the applicant was able to drive a vehicle, walk without assistance, go grocery shopping and be away from his house for the day. It does not provide any context as to how the applicant was feeling that day or after these events.

26The applicant had a lumbar spine MRI on October 1 2020, which does show some further degeneration, but this is two years post-accident, and no evidence was presented to show that but for the subject accident the applicant’s post-accident back pain would be less severe or non-existent. Dr. Khazanov’s review of the October 1, 2020 MRI does not provide any indication that these changes to the applicant’s spine are as a result of the subject accident.

27I find that the applicant has not shown that his post-accident back pain was caused by or exacerbated by the subject accident. His complaints are very similar before and after the accident both in the severity and frequency.

The Disputed Treatment and Assessment Plans

The Physiotherapy Treatment Plans Dated February 9, 2019, November 11, 2019, January 30, 2020, and July 3, 2020

28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

29I find that the applicant has not established on a balance of probabilities that these plans are reasonable and necessary as a result of the accident.

30I find that the applicant’s pain complaints pre-date the subject accident. The records demonstrate that his pre-accident pain was severe enough to impact his ability to work and activities of living, to a degree where he contemplated having to give up his employment and there is no compelling evidence indicating an exacerbation of his pre-existing back pain.

31Further, I am persuaded by Dr. Dharamshi’s report dated June 24, 2019 concluded that the OCF-18 dated February 9, 2019 was not reasonable and necessary as the applicant had reached maximal recovery from his accident-related injuries and that the prognosis for the applicant was good.

32I find that likewise the remaining treatment plans are not reasonable and necessary. The plan dated November 11, 2019 is very similar to the one dated February 9, 2019. Dr. Dharamshi, who concluded in an addendum report dated September 10, 2019 that the conclusions of the June 24, 2019 report had not changed. Those conclusions were that the “claimant has attained maximum medical recovery and maximum therapeutic benefit from any facility-based treatment based on the assessment conducted today for his injuries occurring almost a year ago”.

33The treatment plans dated January 30 and July 3, 2020 are similar are very similar. The January 30, treatment plan caused the insurer to have a paper review conducted by Dr. Dharamshi. In the IE report in relation to this paper review, dated April 9, 2020, Dr. Dharamshi reviewed further medical documentation and did not change his conclusions from his June 24, 2019 report.

34Likewise, I find that the July 3, 2020 plan is not reasonable and necessary because, like the plans dated February 9 and November 11, 2019 and January 30, 2020, there is no evidence demonstrating that the applicant’s ongoing pain is as a result of the accident. Again, this is consistent with the opinion of Dr. Dharamshi, who assessed the applicant for a second time and issued a report dated November 5, 2020. In this assessment Dr. Dharamshi had opportunity to review the applicant’s October 1, 2020 lumbar spine MRI. Dr. Dharamshi noted that this MRI did show further degeneration, however Dr. Dharamshi also concluded that there was no evidence to show the applicant’s symptomology was more than just casually related to the accident.

35The applicant has failed to show that these disputed treatment plans are reasonable and necessary as a result of the accident.

Multidisciplinary Chronic Pain Program treatment plan dated January 31, 2020

36I give the report of Dr. G. Karmy, pain specialist, dated November 28, 2019, little weight and find that the applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary as a result of the subject accident.

37On January 31, 2020 an OCF-18 for a multi-disciplinary chronic pain program was completed by Dr. Karmy, This plan proposes documentation support activity, counselling mental health and addictions with a brokerage service fee, manipulation multiple body sites, exercise multiple body sites, mobilization multiple sites, stimulation of muscles of the back, therapy multiple body sites, assessment (examination) total body, therapeutic intervention NEC musculoskeletal system NEC, education promoting health and preventing illness, therapeutic intervention NEC soft tissue of head and neck, claimant transportation to treatment. The psychological portion of this treatment plan was approved and will be discussed in following paragraphs.

38The applicant participated in a chronic pain assessment on November 22, 2019 conducted by Dr. Grigory Karmy who then completed a report dated November 28, 2019. Dr. Karmy is a pain physician certified by the Canadian Academy of Pain Management.

39Dr. Karmy diagnosed the applicant with the following:

1. Post-Traumatic Fibromyalgia, caused by the subject accident
2. Persisting symptoms following mild Traumatic Brain Injury, caused by the subject accident
3. Chronic Post-Traumatic Headache, caused by the subject accident
4. Chronic mechanical neck pain, originating from the cervical discs and facet joints, and possibly associated with bilateral radiculopathy, caused by the subject accident
5. Chronic mechanical left shoulder pain, likely originating from post-traumatic tendinopathy, caused by the subject accident
6. Chronic mechanical left elbow pain, due to post-traumatic enthesopathy, caused by the subject accident
7. Chronic mechanical right elbow pain, likely myofascial, caused by the subject accident
8. Chronic mechanical lower back pain, on the background of pre-existing structural changes in the lumbar spine, aggravated by the subject accident, with worsening of L4-L5 annular tear, possibly caused by the subject accident
9. Sacroiliac joint dysfunction, caused by the subject accident
10. Chronic mechanical bilateral knee pain, significantly aggravated by the subject accident
11. Chronic Pain Syndrome, caused by the subject accident
12. Sleep Disorder, caused by the subject accident
13. Possible Mood Disorder with symptoms of Driving and Passenger Anxiety, as well as post-traumatic features, all caused by the subject accident

40I am not persuaded by this report as Dr. Karmy reported that the applicant developed some lower back pain after a 2009 motor vehicle accident and developed bilateral knee pain in 2015. Dr. Karmy further reported that this pre-accident back and knee pain was tolerable for the applicant and did not cause any restrictions with the applicant’s ability to work or function on a daily basis, which is inconsistent with the notes of Dr. Kakzanov.

41Dr. Karmy also reported that hours after the subject accident, the applicant developed “a headache and pain in his neck, left shoulder, bilateral elbow, lower back and bilateral knee.” During his first visit with his family doctor following the accident, there is no notation of headache, shoulder, elbow, or knee pain as a result of the accident. Dr. Karmy also asserts that because of the subject accident, the applicant’s functional restrictions led to the applicant’s “complete inability” to continue in his job or any other job. The applicant, however, began reporting an inability to work due to back and knee pain, to his healthcare providers as early as 2015, even asserting that his work was the cause of his disabling pain. No other healthcare provider has observed signs or symptoms of fibromyalgia in the applicant or caused investigations to be made regarding this diagnosis. The diagnoses of mild traumatic brain injury and chronic post-traumatic headaches are not supported in Dr. Karmy’s report with diagnostic imaging or any other investigative testing and are not corroborated by any of the other healthcare providers seen by the applicant. Dr. Karmy diagnosed the applicant with psychological impairments. This is outside the scope of his expertise as a chronic pain specialist and no tests were conducted by Dr. Karmy to support such a diagnosis.

42Following the assessment of Dr. Karmy the applicant was assessed by neurologist Dr. Y Jiang in February of 2020. I find Dr. Jiang’s report unpersuasive evidence demonstrating that the applicant’s back pain is as a result of the accident. Dr. Jiang conducted an in-person physical examination, a review of diagnostic imaging and an interview of the applicant. Dr. Jiang stated that the September 2018 MRI showed no significant changes in comparison to the 2015 MRI. Dr. Jiang was unable to conclusively diagnose the applicant, as the applicant was unbale to tolerate a portion of the diagnostic process.

43The respondent relies upon an IE assessment conducted by neurologist Dr. G. Moddel conducted in March 2020. I find this report to be persuasive in addressing the applicant’s complaints from a neurological point of view. Dr. Moddel, assessed the applicant and found no evidence that the applicant’s neck and back pain had a neurological cause. Dr. Moddel’s report dated April 9, 2020 concluded that the applicant’s pains were muscular only. Dr. Moddel also found that the applicant had been living with mechanical back pain for at least three years prior to the subject accident which does not impair the applicant from a neurological perspective. Dr. Moddel also concluded that, from a neurological perspective there was no evidence that the applicant suffered an impairment as a result of the accident and that the applicant sustained injuries that are minor as defined by the Schedule.

44Dr. Dharamshi’s April 2020 paper review included a review of multidisciplinary chronic pain program treatment plan and Dr. Dharamshi did not vary his opinions from earlier assessments.

45The applicant has not provided compelling evidence that the physical treatment portion of the multidisciplinary chronic pain program treatment plan dated January 31, 2020 is reasonable and necessary in relation to the subject accident.

The Psychological Treatment Plan dated February 5, 2020

46I find that the psychological treatment plan is not reasonable and necessary as the treatment proposed in this plan is very similar in timing and scope to an approved portion of a treatment plan submitted January 31, 2020.

47In November 2019, the applicant was examined by psychologist Dr. Jacqueline Brunshaw who authored a report dated November 28, 2019. During the interview of the applicant, he reported to Dr. Brunshaw that he was in good health prior to the accident, that he was active and participated in many activities and that he performed many household chores. This is inconsistent with the pre-accident clinical notes and records of Dr. Kakzanov.

48Dr. Brunshaw diagnosed the applicant with Adjustment Disorder, specific phobia (travelling in and around a vehicle) and features of somatic symptom disorder with predominant pain, persistent type. These diagnoses were linked to the subject accident. Prior to the accident the applicant had no history of psychological injury or impairment.

49The respondent approved psychological treatment on the opinion of Dr. Konstantine Zakzanis, a psychologist. Dr. Zakzanis assessed the applicant and diagnosed him with an Adjustment Disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain, moderate. Dr. Zakzanis concluded that these diagnoses were as a result of the subject accident and very similar to the diagnoses of Dr. Brunshaw.

50Psychological treatment was approved by the respondent. The respondent approved the psychological treatment portion of the multidisciplinary chronic pain program treatment plan dated January 31, 2020 and maintained its denial of the psychological treatment plan dated February 5, 2020 due to it being almost a duplication of what had been approved.

51The applicant had not explained why two courses of psychological treatment, provided simultaneously, is reasonable and necessary as a result of the accident. Thus, he has not met his onus.

CONCLUSION and ORDER

52I find that the applicant has not demonstrated that his injuries were caused by or exacerbated by the accident. Therefore, I find that the applicant has not met his burden of demonstrating on a balance of probabilities that the benefits claimed are reasonable and necessary as a result of the accident.

53The applicant is not entitled to the benefits listed in the issues in dispute, nor interest.

54The application is dismissed.