Citation: Jolly v. The Commonwell Mutual Insurance Group, 2023 ONLAT 21-002680/AABS

Licence Appeal Tribunal File Number: 21-002680/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:

Bruce Jolly

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Cecil Jaipaul, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Bruce Jolly, the applicant, was involved in an automobile accident on March 12, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to chiropractic services recommended by Whitby Wellness Centre in the amount of $3,231.82 in a treatment plan dated December 17, 2019 and denied January 22, 2020?

ii. Is the applicant entitled to chiropractic services recommended by Whitby Wellness Centre in the amount of $2,818.39 in a treatment plan dated August 28, 2020 and denied October 7, 2020?

iii. Is the applicant entitled to chiropractic services recommended by Whitby Wellness Centre in the amount of $3,245.87 in a treatment plan dated December 29, 2020 and denied February 8, 2021?

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

RESULT

3The treatment plans in dispute are not reasonable and necessary. No interest is payable as no benefits are overdue.

ANALYSIS

4In order for a medical or rehabilitation benefit to be payable under 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.

5The applicant submits that the proposed treatment is necessary for pain management and future recovery. He states that he sustained full-thickness tears in both of his shoulders in the accident, amongst other injuries. He submits that the treatment should be approved because he was receiving physiotherapy that was helping prior to the treatment plans being denied, and that he has suffered from an increase in pain since the treatment stopped.

6The respondent argues that there are issues with respect to causation, in that there is no evidence that the full-thickness tears in both of the applicant’s shoulders were caused by the accident. The respondent further argues that the applicant has not proven that the treatment plans are reasonable and necessary.

Causation

7It is well-established that the appropriate test to determine causation in accident benefits cases is the “but for” test, which was confirmed by the divisional court in Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must prove on a balance of probabilities that “but for” the accident, he would not have suffered the impairments that form the basis for his request for benefits.

8Since the accident, the applicant has been diagnosed with full thickness tears in both of his shoulders. No evidence has been provided to indicate that the tears in the applicant’s shoulders were caused by the accident itself. Neither the applicant’s orthopaedic surgeon, Dr. Joel Lobo, nor his family physician have opined as much. However, there is no evidence to suggest that the applicant’s left shoulder was symptomatic prior to the accident. In the records of the family physician from January 2018 to the date of the accident, there is no mention of left shoulder pain, and he complained of left shoulder pain immediately after the accident. Upon reviewing the MRI results, Dr. Lobo found that there were moderate degenerative changes which showed chronicity to the tear, although it was clear that following the accident the applicant’s function significantly changed. Further, Dr. Gharsaa, in his s. 44 orthopaedic assessment report of April 15, 2021, opined that the large tear in the applicant’s left shoulder was not caused by the accident, but “in the absence of any pre-existing left shoulder pain one would have to assume that the accident may have brought out the symptoms but did not cause the underlying pathology”. I have no reason to disagree with that. I find that the applicant’s left shoulder became symptomatic as a result of the accident, and therefore the applicant meets the “but for” test for causation with respect to his left shoulder impairments.

9Conversely, the applicant did not complain about right shoulder issues until many months after the accident occurred. The OCF-1 form that he signed on April 26, 2019 only mentions a left shoulder injury. A Form-1 submitted by James Moorthy on June 5, 2019 does not mention right-sided shoulder issues. When the applicant was seen by Dr. Lobo in May and July 2019, only the left shoulder was noted to be symptomatic. He was sent for an MRI at that time for his left shoulder only. He first reported to Dr. Shamima Quadir, his family physician, that he was having issues with his right shoulder on January 28, 2020. If he also had a full-thickness right shoulder tear that became symptomatic as a result of the accident, his complaints would have likely started closer to the date of the accident. Further, neither Dr. Quadir nor Dr. Lobo have opined that the applicant’s right shoulder issues are a result of the accident. The applicant has therefore not proven on a balance of probabilities that his right shoulder difficulties are a result of the accident.

Are the treatment plans reasonable and necessary?

10The applicant has not proven on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.

11The crux of the applicant’s argument is that the proposed treatment is reasonable and necessary because previous physiotherapy has helped him with pain relief, and when the therapy stopped, his pain worsened. He argues that the goals of the chiropractic treatment are pain management and future recovery.

12Although pain management and recovery are legitimate goals, I find that there is a lack of evidence that the goals of the chiropractic treatment will be met in such a way that the cost of the treatment would be justifiable.

13Firstly, nowhere in the records of Dr. Quadir, Dr. Lobo, or any other specialist seen by the applicant, does anyone recommend chiropractic treatments. The only practitioner recommending chiropractic treatments is the chiropractor at Whitby Wellness. The applicant points to the record of Dr. Emily DeHaas, who wrote on October 13, 2021, that the applicant reported getting worse since his physiotherapy stopped. Dr. DeHaas made a number of recommendations at that visit, none of which included physiotherapy or chiropractic treatments.

14Secondly, the medical records indicate that the applicant’s left shoulder symptoms have improved, but his right shoulder symptoms have worsened. By 2020, he was receiving treatment for his right shoulder at Whitby Wellness in addition to his left. As I have found that the applicant’s right shoulder difficulties were not a result of the accident, the respondent should not have to pay for chiropractic treatment for that condition.

15Thirdly, it is difficult to determine what benefit the applicant has been deriving from chiropractic treatments so far. The notes from Whitby Wellness in February/March 2020 indicate that his left shoulder was getting better and was “just sore”. His pain was more on the right. Treatment stopped, and when the applicant returned in July 2020, he stated that his left shoulder was better - even after 4 months without treatment. He reported that his left shoulder was not as painful during movements like before, and that the pain was more in his right shoulder. It is unclear why Whitby Wellness continued to treat his left shoulder at that point, and there is no indication that the therapy to his left shoulder was helpful or necessary.

16On November 24, 2020, the notes from Whitby Wellness state that the applicant’s shoulder was still painful “from time to time”. He did not return for one month, and when he did, the note states “patient is feeling better than before, sometimes the pain aggravates.” On January 5, 2021, the note states “patient is having the same pain, no difference found”. Again, it is unclear what the purpose of treatment was at that point, or whether the cost was justifiable.

17The respondent relies on the s. 44 report of Dr. Gharsaa dated April 15, 2021, who was asked to comment on the treatment plan dated December 29, 2020. Dr. Gharsaa stated that further facility-based treatment is not reasonable and necessary. He recommended a self-directed active exercise program to help the applicant’s overall conditioning and to strengthen his shoulder stabilizers. The applicant has not made any submissions or provided any evidence contrary to Dr. Gharsaa’s findings. I do not have any reason to disagree with Dr. Gharsaa either.

18In his addendum report of May 2, 2022, Dr. Gharsaa was asked to comment on the other two treatment plans in dispute. With respect to the treatment plan dated December 17, 2019, he opined (retrospectively) that ongoing chiropractic treatment at 9 months post-accident was not warranted. Dr. Gharsaa also stated that by the time of the August 28, 2020 treatment plan, the need for passive chiropractic treatments at that stage was not warranted either. I assign less weight to Dr. Gharsaa’s retrospective opinion on the older treatment plans, given that he did not assess the applicant around the time they were submitted. However, given the lack of evidence that chiropractic treatment was recommended at that time, there is not much else to weigh Dr. Gharsaa’s opinion against.

19I find that the applicant has not met his burden of proof in showing how the treatment goals of pain management and further recovery would be met if further chiropractic treatment was approved.

Is the applicant entitled to interest?

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not payable.

ORDER

21The applicant has not met his onus in establishing that the treatment plans in dispute are reasonable and necessary. Since no benefits are owing, interest is not payable.

22The application is dismissed.