Licence Appeal Tribunal File Number: 21-006260/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:
Natasha Ekelman
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Jacob Sazio, Counsel
For the Respondent:
Jonathon Kahane-Rapport, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Natasha Ekelman, the applicant, was involved in an automobile accident on August 14, 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, Co-operators General Insurance Company, 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 $997.48 ($2,012.77 less approved $1,015.29) for chiropractic treatment, proposed by Dr. Tyler Fletcher in a treatment plan (“OCF-18”) denied on September 25, 2020?
ii. Is the applicant entitled to $2,456.20 for chiropractic treatment, proposed by Dr. Tyler Fletcher in an OCF-18 denied on November 16, 2020?
iii. Is the applicant entitled to $1,374.48 for physiotherapy treatment, proposed by Fairview Physiotherapy in an OCF-18 denied on March 21, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate that the OCF-18s in dispute are reasonable and necessary. Accordingly, no interest is payable.
PROCEDURAL ISSUES
4In its submissions, the respondent requests a stay of proceedings, alleging that the applicant had failed to produce a number of key medical records. The respondent submits correspondence from the applicant’s counsel which it contends establishes that a number of documents were still outstanding. As such, the respondent requests a stay of this written hearing, pending the production of these records.
5I find that the respondent has not demonstrated that a stay of proceedings is appropriate. I note that the respondent did not bring a motion to require the applicant to produce the outstanding documents or to adjourn the hearing, at any point prior to this written hearing. No explanation was provided by the respondent as to why such a motion was not brought in advance of the hearing.
6Moreover, the respondent has not established what, if any, documentation is still outstanding. The Case Conference Report and Order dated December 29, 2021 did not list specific documents to be produced, but specified that any applicable documents would be exchanged by April 29, 2022. The respondent submits correspondence dated January 13, 2022, which it claims indicates that a number of key documents were not provided. It contends that since January 13, 2022, no productions were provided by the applicant. However, the applicant submits subsequent correspondence dated April 28, 2022, with corresponding Sharefile links, indicating that a number of documents were delivered after January 2022. The respondent has not provided any subsequent correspondence, indicating that any productions remained outstanding.
7Given that the respondent has not established what, if any productions are outstanding, I decline its request for a stay of this written hearing.
ANALYSIS
8To 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.
The applicant has not established entitlement to the OCF-18s for chiropractic services
9The applicant submits two OCF-18s for chiropractic services, dated September 8, 2020 and November 1, 2020. Both OCF-18s were submitted by Dr. Tyler Fletcher, chiropractor, and had the same listed injuries and the same stated goals of pain reduction, increase in strength, increased range of motion, improving cognitive function, return to activities of daily living and return to pre-accident work activities. The applicant submits that both treatment plans are reasonable and necessary, as she has continued to suffer from concussion-related impairments and chronic pain as a result of the subject accident. She contends that the clinical notes and records (“CNRs”) of her family physician establish her ongoing accident-related impairments and that the treatment records of her chiropractic clinic show her progress and the need for ongoing treatment.
10The respondent denied the OCF-18s on the basis of an insurer’s examination (“IE”) physiatry report of Dr. Paul Stacey, who found that the applicant had sustained only soft tissue injuries and that given the time elapsed since the accident, the OCF-18s for further facility-based treatment were not reasonable and necessary.
11I find that the applicant has not met her onus to prove that the OCF-18s for chiropractic services are reasonable and necessary.
12The CNRs of the applicant’s family physician, Dr. Margaret Krol, provide limited support for ongoing chiropractic treatment. The applicant only attended at Dr. Krol’s office a few times for accident-related complaints, despite attending numerous times for unrelated issues. Immediately after the accident, the applicant reported significant neck and right hip pain and described hitting her head. Dr. Krol found limited range of motion in the neck and diagnosed the applicant with soft-tissue injuries. The applicant attended for accident-related issues only two more times in the intervening years, on October 3, 2019 and September 28, 2020. Although the applicant’s main complaints are chronic pain and post-concussive symptoms, the applicant does not appear to have been prescribed ongoing prescription pain medication, nor do the CNRs of Dr. Krol indicate chronic pain management, referrals to chronic pain specialists or to a neurologist to address concussion-related concerns.
13The applicant does not direct me to any CNR entry where Dr. Krol recommended that the applicant receive the proposed chiropractic treatment, particularly during the time the OCF-18s in dispute were submitted. The most contemporaneous CNR entry was from September 28, 2020. At this visit, the applicant reported some pain, cognitive symptoms and mostly psychological complaints. Dr. Krol noted “since the mva has been getting chiro”, but I do not see any specific recommendation from Dr. Krol that the applicant continue such treatment. Rather, Dr. Krol made a referral for a psychiatric assessment. The only other entry the applicant points to, is a note from Dr. Krol recommending massage therapy. However, I note that this was not the treatment modality proposed in the OCF-18s in dispute.
14I similarly do not find the treatment records of the chiropractic clinic or the OCF-18 forms, to be sufficient evidence establishing the need for ongoing treatment. The applicant relies on Dr. Fletcher’s statements in the OCF-18s noting improvement with treatment, as evidence that the stated goals of treatment are being met. However, it is well-settled that OCF-18s alone are not sufficient evidence of the reasonableness and necessity of a plan. Rather, additional medical evidence is required.
15Despite the applicant attending at chiropractic treatment regularly since the accident, no progress reports were provided from Cobblestone to describe the applicant’s progress in meeting the stated goals. The CNRs of the clinic indicate variable progress from August 2019 to December 2020, with notations some months that the applicant’ was “progressing well”, and others that she was experiencing significant pain. Contemporaneous with the submission of the OCF-18s, in September and October 2020, the applicant reported doing well. However, the next month, in November 2020, she reported severe sharp pain, that all movements increased pain and that her pain was an 8/10. As such, the treatment records themselves show inconsistent progress with respect to pain reduction.
16The applicant has not provided any specific submissions or directed me to any evidence as to how the additional stated goals of increase in strength, increased range of motion or improving cognitive function, were being met by treatment. In particular, with respect to improving cognitive function, the CNRs of Cobblestone include a Cognitive Assessment Report dated September 2, 2020. This report appears to compare the applicant’s progress in a number of different cognitive tests, from November 2019 to September 2020. Although some tests indicated increased scores over time, other tests indicted lower test scores in November 2020. The applicant has not provided any submissions or a progress summary from her treatment provider, indicating whether the ongoing treatment led to improved cognitive symptoms.
17I further find the respondent’s IE assessor Dr. Stacey’s report to be persuasive. Dr. Stacey found that while the applicant had subjective pain complaints, she exhibited normal range of motion at all levels of the spine and shoulder. While Dr. Stacey noted the applicant’s pre-existing neck, back and hip pain would have been aggravated by the subject accident Dr. Stacey found that given the applicant’s soft tissue injuries and the time that had elapsed since the accident, additional chiropractic treatment was not reasonable and necessary. The applicant disputes Dr. Stacey’s report, submitting that it is not sufficient to simply state that given the passage of time, no further treatment is warranted. However, the onus rests on the applicant to prove the reasonableness and necessity of the plan, not on the respondent to disprove it. The applicant has not provided sufficient medical evidence to refute Dr. Stacey’s findings or to establish that the stated goals of the proposed treatment were being met to a reasonable degree.
18As such, I find that the applicant has not met her onus to prove that the continued chiropractic treatment is reasonable and necessary.
The applicant has not established entitlement to the treatment plan for physiotherapy and massage treatment
19The applicant submitted an OCF-18 dated February 22, 2022 for a combination of physiotherapy treatment and massage therapy. The stated goals of treatment were identified as being: pain reduction, increase in strength and a return to activities of normal living. To establish her claim, the applicant relies on the OCF-18 submitted by Brad Zdriluk, physiotherapist, a referral letter from Dr. Kroll recommending massage therapy and receipts from Fairview Health.
20This was the first treatment plan submitted by Fairview Health in almost two years. The applicant had attended at physiotherapy initially post-accident, but submits that she stopped such treatment in January 2020, in order to focus on her chiropractic treatment with Dr. Fletcher. The onus rests with the applicant to establish why physiotherapy and massage therapy is reasonable and necessary, after an almost two year hiatus and almost three years post-accident.
21I find that the applicant has not adduced sufficient evidence that the proposed treatment is reasonable and necessary. Firstly, although the applicant relies on the OCF-18 form to establish her claim, as previously noted, it is well settled that an OCF-18 alone is not sufficient evidence. Similarly, although the applicant relies on the receipts of Fairview to show that she partially self-funded the treatment, I do not find this to be persuasive evidence of the plan’s reasonableness and necessity. Finally, although I note that Dr. Kroll provided a letter recommending massage therapy, I do not find this to be sufficient evidence to establish the applicant’s claim.
22Firstly, Dr. Kroll’s letter simply refers to massage therapy, but the OCF-18 in dispute references physiotherapy as well as massage. In addition, Dr. Kroll’s letter dated January 27, 2022, simply states “To Whom It May Concern, Natasha Ekelman requires Massage Therapy for myofascial pain of the hip and back due to MVA August 2019”. No additional information is provided. The CNRs of Dr. Kroll do not indicate any additional support for physiotherapy or massage either prior to the submission of this OCF-18 or contemporaneously. The last CNR entry where the applicant had discussed accident-related impairments with Dr. Kroll was in September 2020, however, at that time Dr. Kroll simply made a referral for a psychiatry assessment to clarify the applicant’s diagnosis. The applicant does not direct me to any subsequent CNR entries where pain management was discussed, or any entry where Dr. Kroll discussed physiotherapy and massage. As such, I do not find that this isolated note, without any additional supporting medical evidence, is compelling evidence of the need for massage therapy, three years post-accident.
23Without sufficient medical evidence to support the need for physiotherapy and massage treatment, I find that the applicant has failed to establish the reasonableness and necessity of the treatment plans in dispute.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
ORDER
25The applicant has not demonstrated that the disputed OCF-18s are reasonable and necessary. Accordingly, no interest is payable.
26The application is dismissed.
Released: June 15, 2023
__________________________
Ulana Pahuta
Adjudicator