Licence Appeal Tribunal File Number: 21-006545/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:
Donna Dabrowski
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Michael H. Hazan, Counsel
For the Respondent: Ainsley Shannon, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Donna Dabrowski (the “applicant”) was involved in an automobile accident on December 14, 2018, 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 Economical Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant has an extensive pre-existing history prior to the subject accident. As noted in the medical evidence, the applicant was involved in a previous motor vehicle accident in 2002 where she required surgical removal of the C3 vertebrae and titanium plate insertion with c-spine fusion. As a result, the applicant had residual neck pain that was symptomatic approximately once a month prior to this accident. The records of the applicant’s family physician, Dr. Michael Mori, also show that the applicant had osteoarthritis, degenerative disc disease in her lumbar spine, and neurological issues prior to this accident. Lastly, three weeks prior to the subject accident in 2018, the applicant was involved in an ATV accident, and she sustained injuries to her neck, back, right groin, right ribs, and head trauma as a result.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $3,130.12 for physiotherapy, chiropractic, and massage therapy, proposed by Headwater Physio in a treatment plan/OCF-18 (“OCF-18”), dated October 2, 2019, and denied on October 31, 2019?
ii. Is the applicant entitled to $2,326.20 for chiropractic treatment, proposed by Headwater Physio in an OCF-18, dated June 17, 2021, and denied on June 28, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits
RESULT
4I find that:
i. The applicant is not entitled to any of the OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable.
ii. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The applicant improperly introduced new evidence in her reply submissions
5I find that the applicant has produced new evidence in her reply submissions, that would prejudice the respondent. Thus, the Tribunal will not consider the summary of the applicant’s collateral benefits coverage limits, dated January 25, 2023 (“summary of coverage limits”), and paragraph 18 of the applicant’s reply submissions will be struck from the evidentiary record.
6The respondent on January 27, 2023, and February 3, 2023, submitted to the Tribunal that the applicant’s reply submissions improperly included new evidence that had not been part of the applicant’s initial submissions, namely, a summary of the applicant’s collateral benefits coverage limits, referred to in paragraph 18 of the applicant’s reply submissions. Its position is it is prejudiced as it was not aware of the coverage limits available to the applicant and that it was not aware of the terms of the policy between the applicant and the collateral benefits provider.
7In response, the applicant submits that the respondent was aware that the applicant had access to collateral benefits as the claims listing from her collateral benefits provider was provided previously. The applicant also argues that the respondent is not prejudiced as it was aware of what was incurred prior to the production deadline.
8It is well settled that the purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument. It is also well-settled that the right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New evidence as part of a reply typically is not permitted, because the respondent does not have the opportunity to respond to new evidence that is tendered as part of a reply.
9I agree with the respondent that the applicant was aware of her burden of proof pursuant to s. 47(2) of the Schedule and as such, could have reasonably anticipated that she would have to demonstrate that payment was not reasonably available to her from her collateral benefits provider. This finding is further supported by the fact that the applicant addressed in her initial submissions that her collateral benefits provider paid for some of her treatment, and she paid for the remaining out of pocket. Thus, the applicant was aware that there was a dispute over her collateral benefits provider and has provided no explanation on why this information was not provided with her initial submissions.
10As a result of the late filing by the applicant of the summary of coverage limits, the respondent was prejudiced as it was unaware of the coverage limits available to the applicant and was unable to address this in its submissions. I am alive to the applicant’s position that the respondent is not prejudiced, as it had access to the claims listing which shows the amount that was incurred. While I agree that the respondent was aware of the incurred costs from the collateral benefits provider for the time period of December 14, 2018, to July 21, 2022, this document did not provide a summary of coverage limits available to the applicant. As such, the respondent was unaware of the coverage limits from IA Financial Group when preparing its submissions.
11Moreover, the applicant has provided no explanation on why this documentation was not produced by the agreed upon production deadline or with her initial submissions. In fact, the respondent on June 7, 2022, July 27, 2022, August 22, 2022, November 3, 2022, and November 28, 2022, requested a copy of any extended health care benefits file. Aside from providing a copy of the claims listing received from IA Financial Group, on July 21, 2022, the applicant has not directed me to evidence that she requested the summary of coverage limits prior to the production deadline or the deadline for her initial submissions.
12To sum up, I agree with the respondent. The right of reply is a limited one. New argument and evidence are not permitted because the respondent does not have the opportunity to respond. I find the applicant’s argument at paragraph 18 and evidence with respect to her coverage limits from her collateral benefits provider is new, and I will not consider this in rendering my decision. They are struck from the record.
The applicant’s letter and email from IA Financial Group dated April 11, 2023, will not be considered by the Tribunal
13I find that the applicant’s letter and email from IA Financial Group, dated April 11, 2023, will not be considered by the Tribunal.
14As per the Case Conference Report and Order, released on May 13, 2022, the applicant’s initial submissions were due by January 3, 2023.
15On April 12, 2023 (three months after the initial submission deadline had passed), the applicant sent a letter to the Tribunal via email which enclosed a copy of an email from IA Financial Group, dated April 11, 2023. Without bringing a motion pursuant to Rule 15 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), the applicant requested that the Tribunal consider this evidence for the purposes of this hearing.
16I find the respondent would be prejudiced if the Tribunal were to allow this evidence into the hearing as the respondent did not have an opportunity to address this evidence in its submissions. Further, the applicant has not provided any explanation on why this evidence was not submitted with her initial submissions. Nor did she provide evidence that she tried to obtain this information prior to her initial submissions being due.
17As such, the above-referenced evidence will be excluded for the purposes of this hearing.
ANALYSIS
18To 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 is not entitled to the OCF-18 in the amount of $3,130.12 for physiotherapy, chiropractic, and massage therapy dated October 2, 2019
19Based on the totality of the medical evidence, I find that the applicant has not proven on a balance of probabilities that the proposed physiotherapy, chiropractic, and massage therapy services are reasonable and necessary.
20The applicant submits that as a result of the accident, she injured her right wrist, and that the subject accident exacerbated her previous neck, back and head pain. The applicant further submits that she has consistently seen her treatment providers, including her family physician, Dr. Mori, and Headwaters Physiotherapy. Lastly, the applicant submits that the goals of treatment were: pain reduction, increased range of motion, and increased strength. To support her position, the applicant relies on the clinical notes and records of Dr. Mori, and Headwaters Physiotherapy, and the Med Legal Report of Dr. Peter Hrkal, chiropractor, dated June 10, 2022.
21The respondent submits that there is no medical evidence to support the necessity of ongoing physical therapy, nor has the applicant shown a reduction in function, or that such a reduction would be assisted by treatment. The respondent further submits that the applicant had achieved maximum medical recovery with respect to her cervical, thoracic, and lumbar spine and that the applicant’s left wrist injury will not benefit from treatment until surgery. To this end, the respondent relies on the s. 44 Orthopaedic Examination of Dr. Louis Weisleder, Orthopaedic Surgeon, dated October 22, 2020, Addendum Report by Dr. Weisleder, dated, May 30, 2022, the clinical notes and records of Dr. Laura Kember, Orthopaedic Surgeon, and the clinical notes and records of Headwaters Physiotherapy.
22Problematically, the applicant in her initial submissions argued that she sustained an injury to her right wrist as a result of the accident. However, this is inconsistent with the records of Headwaters Physiotherapy, Dr. Kember, and the report of Dr. Hrkal, where there are numerous notations that the applicant sustained a left wrist injury as a result of the accident. Confusingly, the applicant then referenced in her reply submissions that she sustained a left wrist injury and there was no reference to a right wrist injury. Thus, I conclude that the applicant sustained an injury to her left wrist as a result of the accident.
23I find that the applicant has not met her onus to prove that the OCF-18 in dispute is reasonable and necessary.
24First, I am not persuaded that the proposed services will provide pain relief for the applicant’s left wrist. While I accept that pain relief is a legitimate goal of therapy, the applicant has not provided sufficient evidence that this treatment goal is being met to a reasonable degree with the proposed services.
25The applicant has provided limited evidence that the physiotherapy treatment she had received to date was helpful in alleviating her pain symptoms. For example, on February 8, 2019, and October 2, 2019, it was noted in the records of Headwaters Physiotherapy that the applicant found mild relief with physiotherapy and there was no change to her pain.
26Dr. Kember’s records also indicate that the applicant reported minimal improvement to her left wrist with conservative treatment, and that Dr. Kember did not ever recommend these services. Approximately, two months before the submission of this OCF-18, on August 27, 2019), the applicant self-reported that her wrist pain was better with rest and that physiotherapy treatment did not benefit her.
27Indeed, Dr. Kember did not recommend the proposed services as outlined in the disputed OCF-18 and instead recommended rest, the use of a wrist brace, and maintenance of a wrist neutral position at all times for two months. Moreover, on October 22, 2019, the applicant self-reported to Dr. Kember that she experienced a 30 percent improvement in her left wrist with rest and the splint. While Dr. Kember recommended that the applicant increase her function for her left wrist, she did not recommend massage, physiotherapy, or chiropractic treatment.
28In her entry dated June 3, 2020, Dr. Kember did not make a recommendation with respect to physiotherapy, chiropractic, or massage services; instead, she discussed surgical options with the applicant. Subsequently, on June 2, 2021, the applicant self-reported to Dr. Kember that she was interested in surgery for her left wrist, as she had tried conservative treatment and the pain had not subsided. Dr. Kember did not discuss further conservative treatment, and in fact reviewed the details of surgery and that an elective surgery could not be currently scheduled because of Covid-19. Accordingly, I am not persuaded that the applicant will receive pain relief for her left wrist as a result of the proposed services, as she has reported minimal improvement with the conservative treatment provided to date, and Dr. Kember has not discussed the proposed services.
29The applicant also did not produce progress notes or treatment records from her massage service provider, albeit she provided some receipts. However, these receipts do not address the applicant’s progress with respect to the stated goals of the OCF-18 with the massage treatment. Without such evidence, I am unable to assess whether the applicant sustained any benefit from the proposed treatment.
30Now turning to the applicant’s injuries to her: neck, shoulder, upper back, and lower back, I am not persuaded that the proposed services are reasonable and necessary. The records of Headwaters Physiotherapy demonstrate that the applicant was receiving no improvement and temporary pain relief with chiropractic and physiotherapy services for her: lumbar spine pain, cervical spine pain, and left wrist. There are several notations to this effect in the entries dated January 14, 2022, February 4, 2022, April 21, 2022, June 10, 2022, and June 29, 2022.
31The applicant also does not direct me to any CNR entry where Dr. Mori recommended that the applicant receive the proposed services, particularly during the time the OCF-18 in dispute was submitted. The most contemporaneous CNR entry was from December 18, 2018 (approximately a year before the submission of this OCF-18), where Dr. Mori recommended massage therapy for her whiplash and sprain injuries. Moreover, Dr. Mori’s record of January 16, 2019, notes that the applicant’s neck sprain was worst after physiotherapy. Aside from one recommendation for massage therapy shortly after the accident, there was no other recommendation for the proposed services from Dr. Mori.
32I find the report of Dr. Hrkal, dated June 10, 2022, to be of limited persuasive value. First, Dr. Hrkal did not review any medical records in preparation of his report, which if he had done so, he would have discovered that neither Dr. Mori nor Dr. Kember recommended treatment for the applicant’s left wrist. As such, it is unclear how Dr. Hrkal concluded that the applicant would require treatment prior to the surgery, when the applicant has consistently self-reported that it has provided minimal improvement, and neither Dr. Kember nor Dr. Mori have recommended ongoing treatment.
33Second, Dr. Hrkal diagnosed the applicant with bilateral glute/pelvic myofascial pain syndrome, however it is unclear how he connected this to the accident, when no other medical practitioner has done so.
34Third, Dr. Hrkal did not address how the goals of the proposed OCF-18 will be met with the massage, chiropractic, and physiotherapy services. In fact, Dr. Hrkal noted that even with ongoing treatment the likelihood of full resolution or even significant improvement was ultimately somewhat poor. While Dr. Hrkal recommended ongoing maintenance care, he provided no explanation on how this was reasonable when significant improvement would not be achieved, nor did he address the goals of the proposed OCF-18.
35I also prefer the reports of Dr. Weisleder over the report of Dr. Hrkal. While I am alive to the applicant’s submission that Dr. Hrkal is the applicant’s treating chiropractor, I find that Dr. Weisleder’s conclusion is more consistent with the bulk of the medical evidence.
36For example, Dr. Weisleder’s conclusion that the applicant has reached maximum medical recovery with respect to her neck, upper back, and lower back is consistent with the lack of recommendations for treatment and lack of pain complaints as indicated in Dr. Mori’s records.
37I find Dr. Weisleder’s conclusion that the applicant has reached maximum medical improvement with respect to her left wrist without surgery is also consistent with the records of Dr. Kember, who has not recommended the proposed services, and instead has discussed surgical options.
38I also acknowledge that the applicant disputes Dr. Weisleder’s report as he only met with the applicant for 40 minutes, and that his addendum report did not address all the medical evidence; 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. Weisleder’s opinion or to establish that the stated goals of the proposed treatment were being met to a reasonable degree.
39Lastly, while I acknowledge that the applicant vaguely submitted that the respondent denied the OCF-18 improperly, she provided no specific submissions on how, nor did she refer me to specific sections of the Schedule. As the applicant did not advise how the respondent’s denial was improper, nor did she address the legal test, I do not find that there was any improper denial of this OCF-18.
40As such, I find that the applicant has not met her onus to prove that the proposed physiotherapy, chiropractic, and massage therapy services are reasonable and necessary.
The applicant has not demonstrated that the OCF-18 in the amount of $2,326.20 for chiropractic treatment, dated June 17, 2021, is reasonable and necessary
41I find that the applicant has failed to demonstrate that the OCF-18 for chiropractic services is reasonable and necessary.
42The applicant submits that the OCF-18 was improperly denied and that it is reasonable and necessary based on her significant medical history and post-accident needs as documented by her treating practitioners and care providers. The applicant further submits that her treating chiropractor has recommended the treatment, as maintenance care is both beneficial and warranted for her. Lastly, the applicant submits that Dr. Mori’s records clearly indicate that she has chronic neck/back pain and radiculopathy post accident. To support her position, the applicant relies on the clinical notes and records of Dr. Mori, and the med legal report of Dr. Hrkal, dated June 10, 2022.
43The respondent submits that the treatment plan in dispute is not reasonable and necessary as the applicant’s injuries from the accident were minor and the applicant has reached maximum medical recovery. The respondent submits that Dr. Weisleder’s evidence is that the applicant will not benefit from further treatment in the absence of surgery, and there is no evidence contradicting this finding. To support its position, the respondent relies on the s. 44 reports of Dr. Weisleder, dated October 22, 2020, and May 30, 2022.
44I find that the applicant has not met her onus to prove that the OCF-18 for chiropractic services is reasonable and necessary.
45The records of the applicant’s family physician, Dr. Mori, provide limited support for ongoing chiropractic treatment. While I am alive to the applicant’s position that the records demonstrate that she sustained chronic neck/back pain and radiculopathy from this accident, I am not persuaded as it is unclear which accident resulted in these impairments or whether this accident aggravated her pre-existing conditions.
46For example, the applicant appears to be relying on an entry titled “problem list” in Dr. Mori’s records, where it was noted that the applicant has chronic neck and radiculopathy “post-MVA” and chronic back pain. As noted above, the applicant was involved in a previous motor vehicle accident in 2002, and in 2017 was seeking treatment from a chronic pain specialist and a cannabis clinic for her chronic neck, shoulder, and lower back pain. Moreover, Dr. Mori’s record, dated October 24, 2018, shows that the applicant reported neck and lumbar pain, only two months before the accident. In any event, even if I were to accept that these diagnoses were in relation to this accident, Dr. Mori still did not recommend the proposed services.
47Moreover, the applicant’s last accident-related visit (aside from left wrist pain) to Dr. Mori was on January 16, 2019. As noted above, neither Dr. Mori nor Dr. Kember have recommended chiropractic treatment for the applicant’s left wrist.
48I similarly do not find the treatment records of the applicant’s treatment provider or the OCF-18 form to be sufficient evidence establishing the need for ongoing treatment. As noted above, there are numerous entries in the records where the applicant reported receiving no improvement and temporary pain relief with chiropractic and physiotherapy services. Moreover, despite the applicant attending for chiropractic treatment, no progress reports were provided by Headwaters Physiotherapy to describe the applicant’s progress in meeting the stated goals.
49I am also not persuaded by Dr. Hrkal’s report, as he provided no explanation on how the goals of pain reduction, increased range of motion and increased strength will be met. In fact, Dr. Hrkal’s report is silent with respect to the goals of the proposed OCF-18, albeit he stated that the applicant received benefit with ongoing treatment which resulted in a definite reduction in further symptom progression. However, Dr. Hrkal did not provide clarification on which treatment provided this benefit, nor did he address which symptoms or how the symptoms were reduced in progression. In any event, Dr. Hrkal noted that ongoing treatment would not provide full resolution or even significant improvement, yet he recommended ongoing maintenance care. Further still, Dr. Hrkal provided no rationale on how ongoing maintenance care would be beneficial to the applicant, nor did he address whether the goals of treatment will be met to a reasonable degree.
50The onus is on the applicant to prove the disputed OCF-18 is reasonable and necessary on a balance of probabilities and not on the respondent to disprove. While I acknowledge that the applicant states that the s. 44 assessments dated October 22, 2020, and May 30, 2022, completed by Dr. Weisleder are deficient, and should be given little weight by the Tribunal, the applicant must still point me to her own evidence and argument that is then potentially further supported by the alleged failings of the respondent. Relying on alleged weaknesses in the respondent’s evidence alone is insufficient.
51Lastly, I acknowledge the applicant’s position that she incurred some of the chiropractic services, and others were paid by her collateral benefits provider. However, in order for an OCF-18 to be payable by the respondent, the applicant has to establish that the proposed services are reasonable and necessary, which I find she has not.
52Accordingly, I find that the applicant has not met her evidentiary onus to establish the proposed chiropractic services are reasonable and necessary.
The applicant is not entitled to Interest
53Interest is only payable on overdue payment of benefits pursuant to section 51 of the Schedule. Having found that the applicant is not entitled to the disputed OCF-18s, no payments are overdue, and thus no interest is payable.
The respondent is not liable to pay an award
55The applicant sought an award and interest under s. 10 of Regulation 664, submitting that the respondent unreasonably withheld and delayed the payment of the benefits and failed to consider the medical evidence before it. I find an award is not appropriate. The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Where I have determined that no benefits are payable to the applicant, it follows that I have no basis on which to grant an award due to the respondent unreasonably withholding or delaying the payment of benefits.
ORDER
56The applicant has not demonstrated that the OCF-18s are reasonable and necessary under s. 15. As no benefits are due, no interest is payable, nor is the respondent liable to pay an award. The application is dismissed.
Released: February 7, 2024
Tanjoyt Deol
Adjudicator