Pulcine v. Wawanesa Insurance, 2023 CanLII 52285

Citation: Pulcine v. Wawanesa Insurance, 2023 ONLAT 20-014810/AABS

Licence Appeal Tribunal File Number: 21-014810/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:

Michael Pulcine

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Nicole Elizabeth Walker, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Michael Pulcine (the “applicant”) was involved in a motor vehicle accident on March 1, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Insurance (the “respondent”) denied a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that he suffers from headaches, neck pain, shoulder pain, and functional limitations that have also caused depression and anxiety, all as a direct result of the accident. He claims entitlement to six treatment plans, plus interest and a special award.

3Wawanesa responds that the applicant has not demonstrated that the treatment plans are reasonable and necessary, so no benefits, interest, or an award are owing. The insurer further adds that the applicant disclosed key documentary evidence late, which prejudiced its ability to defend this claim, and that payment for one of the issues in dispute has already been made and should be regarded as resolved.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to $300.00 ($891.50 less $591.50 approved) for physiotherapy, recommended by Bliss Wellness in a treatment plan/OCF-18 dated April 2, 2019?

2. Is the applicant entitled to $689.40 ($1,345.00 less $655.60 approved) for assistive devices, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 dated September 23, 2019?

3. Is the applicant entitled to $2,174.50 for physiotherapy, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 dated November 20, 2019?

4. Is the applicant entitled to $2,174.50 for physiotherapy, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 dated December 31, 2019?

5. Is the applicant entitled to $2,569.40 for physiotherapy, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 dated July 20, 2020?

6. Is the applicant entitled to $2,000.00 for other medical services (a chronic pain assessment), recommended by Prime Health Care Inc. in a treatment plan/OCF-18 dated February 10, 2020?

7. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

8. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

5Both parties agreed in submissions that the Minor Injury Guideline (“MIG”) issue noted in the Case Conference Report and Order (“CCRO”) dated November 3, 2021 was actually not in dispute, as the applicant had previously been removed from the MIG. I have accordingly removed it from the list of issues in dispute.

6As the applicant did not submit the six OCF-18s in dispute with his original submissions, I relied on Rule 9.1 of this Tribunal’s Common Rules of Practice & Procedure to request them from the applicant. All of the forms were submitted on May 19, 2023.

RESULT

7I find that the applicant is not entitled to any of the treatment plans in dispute, as he has failed to demonstrate that they are reasonable and necessary. As no benefits are owing or overdue, he is not entitled to interest. For the same reason, the applicant is not liable to pay an award.

PROCEDURAL ISSUE

8I agree with the respondent and strike the clinical notes and records (“CNRs”) of Dr. Jeff Pitcher, family physician, and Emily Mulders, social worker, as the late submission of this evidence has prejudiced the respondent.

9Rule 9.4 of this Tribunal’s Common Rules of Practice & Procedure holds that “If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.”

10In its written submissions, the respondent argues that both of the sets of records in question were submitted by the applicant well after April 29, 2022, the date specified for the exchange of productions by both parties in the CCRO. The respondent claims that the applicant did not provide any productions either before or after April 29, 2022, and that the applicant did not respond to two queries about productions on March 29, 2022 and April 26, 2022.

11Despite this failure to submit productions, the applicant introduced what the respondent characterizes as new documentary evidence in the CNRs of Dr. Pitcher and Ms. Mulders that were filed as part of the applicant’s hearing submissions on June 24, 2022. The respondent claims that this late disclosure prevented it from obtaining s. 44 insurer’s examination (“IE”) assessments and therefore prejudiced the respondent from presenting a full and fair response in this proceeding. Further, the respondent claims that it was unaware that the applicant had been undergoing therapeutic treatment with Ms. Mulders, and that both sets of records are incomplete as submitted with each featuring just a single page of CNRs.

12In its reply submissions, the applicant admitted to not serving these productions as required by the CCRO, but that this was an error. An apology for the oversight was offered, along with a declaration that the CNRs were not intentionally withheld.

13Regardless of intention, the CNRs of Dr. Pitcher and Ms. Mulders were not properly disclosed. This deprived the respondent of the opportunity to address them in its submissions for this hearing. In addition, what was disclosed was incomplete. Only one page of Dr. Pitcher’s CNRs was submitted, detailing just two appointments, even though the header on this page indicates that this was page 11 of 21. And only a single page of Ms. Mulders CNRs was submitted as well, with the header in this separate set of records indicating that this was page 21 of 21.

14While these CNRs may be relevant to the subject matter of the proceeding and otherwise admissible pursuant to s. 15(1) of the Statutory Powers Procedure Act, I find that the respondent has been prejudiced by the late production of these records. I decline to exercise my discretion under Rule 9.4 to permit the applicant to rely on these sets of CNRs and do not admit them into evidence.

ANALYSIS

The Treatment Plans

15To be entitled to a treatment 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

16In dispute here is one partial treatment plan involving the cost of preparing this physiotherapy OCF-18, one plan for assistive devices, three plans for physiotherapy services, and one plan for a chronic pain assessment. The applicant submits that all are reasonable and necessary. He relies on hospital records, CNRs from Bliss Wellness Centre and Mackenzie Medical Rehabilitation Centre, medical diagnostic tests, and the treatment plans in dispute.

17The respondent counters that the applicant has not met his burden to demonstrate that any of the plans are reasonable and necessary and, in one instance, claims that the amount in dispute has already been paid.

Is the applicant entitled to $300.00 for physiotherapy in a treatment plan dated April 2, 2019?

18I find that the applicant is not entitled to this treatment plan, as he has failed to demonstrate that it has not been paid by the insurer.

19The applicant lists this as an issue in dispute in his submissions, but he does not specifically refer to it anywhere else in this document. He does not explain what this $300.00 was charged for in the plan, or otherwise comment on it at all.

20The respondent explains in its submissions that this $300.00 was the cost of Dr. Pitcher’s preparation of the OCF-18, which it agreed to pay upon receipt of an invoice from Dr. Pitcher. The respondent provided a letter that was sent by Wawanesa to the applicant on April 4, 2019 noting that the invoice was sent by Dr. Pitcher and the physician would be reimbursed. In submissions, the respondent notes that this invoice had been paid in full, although it did not provide further proof of payment.

21This issue is not mentioned in the reply submissions of the applicant, either to confirm or deny the respondent’s account of events.

22Given the promise of payment in the April 4, 2019 letter and the lack of response by the applicant, I infer that this issue has been resolved. The respondent has already paid this amount in dispute, so the applicant is not entitled to it again, nor interest, as this would result in a duplication of payment.

Is the applicant entitled to $689.40 for assistive devices in a treatment plan dated September 23, 2019?

23I find that the applicant is not entitled to this treatment plan for assistive devices, as he has not demonstrated it to be reasonable and necessary.

24This treatment plan was completed by Dr. Ayden Banibashar, chiropractor, and recommended the purchase of a number of assistive devices to meet the goals of pain reduction, increased strength and range of motion, and a return to pre-accident normal living and work activities. Injuries noted in this OCF-18 include concussion, post-concussion syndrome, head swelling and headache, and various back and shoulder sprains and strains. The devices are a TENS unit; carbon electrode replacement pads; a thumper; an Obus Forme backrest; a Tempurpedic pillow; exercise ball; theraband resistance bands; and four ounces of Cryoderm gel. All of these devices were recommended to aid in therapy and speed up rehabilitation.

25Wawanesa approved $655.60 of the original $1,345.00 of this plan, leaving $689.40 in dispute. A list of what devices were approved and what were denied was not submitted into evidence.

26Regardless of these specifics, the applicant has submitted minimal evidence for the purchase of these devices being reasonable and necessary. He relies on the treatment plan itself and the CNRs of Mackenzie Medical Rehabilitation that show an extensive record of physical treatment, some of which utilized a TENS machine, so presumably this purchase/these purchases would allow the applicant to continue therapy at home. However, too much is left to presumption. The purchase of these devices has not been substantiated by objective medical evidence such as the recommendations of a treating physician.

27As OCF-18s and treatment records are not sufficient on their own in the absence of such supporting medical evidence, I find that the applicant has not met his burden and demonstrated this plan to be reasonable and necessary. Accordingly, the applicant is not entitled to this treatment plan, nor interest.

Is the applicant entitled to $2,174.50 in a treatment plan dated November 20, 2019, $2,174.50 in a treatment plan dated December 31, 2019, and $2,569.40 in a treatment plan dated July 20, 2020, all for physical therapy?

28I find that the applicant is not entitled to these three treatment plans for physical therapy, as he has not demonstrated that they are reasonable and necessary.

29Each of these plans was also completed by Dr. Banibashar, and they also recommended sessions of chiropractic treatment, physical therapy, massage therapy, TENS/electrotherapy treatment, active therapy, mobilization, and acupuncture, along with charges for ice and heat packs and reassessments. All of this treatment was recommended to address the same injuries noted above and to meet the same goals.

30Again, I find the applicant’s medical evidence to be unpersuasive. He relies here, as well, almost entirely on the treatment plans in dispute and the records of Mackenzie Medical Rehabilitation, which are not enough to prove this treatment to be reasonable and necessary without supporting medical documentation that endorsed such an approach. There are, for example, no physician records showing that this ongoing physical therapy was prescribed.

31Further, Dr. Banibashar noted in the additional comments section of the last OCF-18 in dispute dated July 20, 2020 that the applicant reported only minor improvements with continuing moderate discomfort, and that an examination of the applicant showed ongoing impairment and range-of-motion restrictions. As a result, I question the effectiveness of this treatment. Such a negative assessment after some eight months of the same therapeutic treatment would indicate, to me at any rate, that it might be time to try something different.

32For the above reasons, the applicant is not entitled to these plans, nor interest.

Is the applicant entitled to $2,000.00 for a chronic pain assessment, recommended by Prime Health Care Inc. in a treatment plan dated February 10, 2020?

33I find that the applicant is not entitled to the chronic pain assessment treatment plan as he has not demonstrated it to be reasonable and necessary.

34In dispute here is a treatment plan completed by Dr. Chad Hefford, chiropractor, for a chronic pain assessment. This assessment was recommended to address the same injuries noted above, along with insomnia, anxiety, and depressive episodes. The goal of the assessment was to determine “a tissue specific diagnosis” regarding the nature of the applicant’s chronic pain so that an appropriate treatment regimen could be arranged.

35There seems to have been no medical basis for such an assessment. The applicant has failed to submit any objective medical evidence outside of the treatment plan in question to demonstrate that he has ever been suspected of suffering from chronic pain, or that he has ever displayed the symptoms of a chronic pain condition, or that he suffered from a specific impairment due to chronic pain. His family physician seems to have been uninvolved here, given that the chronic pain assessment came through Dr. Hefford. Medical diagnostic evidence such as a CT scan dated September 18, 2020 showed minimal anterolisthesis in the cervical spine of “uncertain etiology” that could involve “chronic degenerative change,” but nothing links this condition to the accident.

36Lastly, allusions are made in both the applicant’s written submissions and some of the treatment plans to the applicant suffering from psychological impairments as a result of ongoing pain. However, none of these comments are substantiated by diagnoses from a physician trained in such matters, a psychological assessment, or any form of psychological treatment or medication.

37In all, the applicant has not provided sufficient evidence to substantiate his claim that this chronic pain assessment treatment plan is reasonable and necessary. It follows that the applicant is not entitled to this plan, nor interest.

AWARD

38As I find no benefits to be owing, the respondent is not liable to pay an award.

ORDER

39The applicant is not entitled to the plans in dispute, as he has not demonstrated them to be reasonable and necessary. As no benefits are owing, the applicant is not entitled to interest and the respondent is not liable to pay an award.

40The application is dismissed.