Fortune v. TD Insurance Meloche Monnex, 2024 CanLII 10564

Citation: Fortune v. TD Insurance Meloche Monnex, 2024 ONLAT 22-000541/AABS

Licence Appeal Tribunal File Number: 22-000541/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:

Eddison Fortune

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Margaret Sims

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Tanner Blomme, Counsel

HEARD: In Writing

OVERVIEW

1Eddison Fortune, the applicant, was involved in an automobile accident on August 24, 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, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $3,696.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted September 17, 2019 and denied September 24, 2019?
2. Is the applicant entitled to $111.69 ($1,300.00 less $1,188.31 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted September 17, 2019 and denied December 9, 2019?
3. Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted January 6, 2020 and denied January 15, 2020?
4. Is the applicant entitled to $1,384.70 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted March 2, 2020 and denied March 5, 2020?
5. Is the applicant entitled to $2,569.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted August 14, 2020 and denied August 24, 2020?
6. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a plan submitted October 20, 2021 and denied November 3, 2021?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to the amounts claimed in respect of all the benefits in dispute plus interest.

ANALYSIS

Applicant has demonstrated that the Chiropractic Treatment Plans are reasonable and necessary.

4I find that the chiropractic treatment plans at issue in this application are reasonable and necessary as a result of the accident.

5To be entitled to a treatment plan under sections 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. In considering whether the treatment is reasonable and necessary, I have considered whether (i) the treatment goals are reasonable, (ii) the goals are being met to a reasonable degree and (iii) the overall costs of achieving the goals is reasonable.

6The applicant submits that the plans are reasonable and necessary because the extensive clinical notes and medical findings of his family doctor Dr. Aroosa Haroon, the report of Dr. Ashley Esdaile, GP and the report of Dr. Maria Bagovich, rheumatologist r and Dawn Rynberk, kinesiologist, reveal a persistent and complex pattern of musculoskeletal complaints mainly focused on the lower back but also involving his left hip, leg and toes and that the applicant’s financial limitations hindered consistent access to physiotherapy, potentially affecting recovery. The applicant’s submissions also note that the clinical notes and records of these doctors and the kinesiologist lay a strong foundation for a chronic pain claim because they highlight the persistent nature of the injuries, the ongoing physical discomfort, and the need for continued medical attention. Further, the applicant relies on the psychological reports of Dr. Fabio Salerno, psychologist, and of Dr. Konstantine Zakzanis, psychologist, and a chronic pain assessment of Dr. Kessie, psychologist.

7The respondent submits that the applicant has failed to prove that the treatment plans in dispute are reasonable and necessary and his claim should be dismissed. In particular, the respondent relies on the Multidisciplinary Assessment Report dated July 31, 2020 by Dr. Ismail, Dr. Salerno and Ms. Rynberk in respect of income replacement benefit entitlement (the “IRB IE”). The respondent submits that, while Dr. Ismail notes that the applicant reported pain with active forward flexion and extension at the lumbosacral spine, Dr. Ismail did not identify any other motor vehicle accident related musculoskeletal or neurological impairment. The respondent also argues that the applicant relies upon psychological findings to argue that the physical chiropractic services are reasonable and necessary and that the psychologists’ findings should not be relied upon to support physical goods and services.

8I have reviewed the record including the applicant’s assessment reports and the insurer examination reports and I agree with the applicant’s submissions that the applicant suffers from a persistent and complex pattern of musculoskeletal complaints mainly focused on the lower back. The applicant has undergone medical doctor assessments, several diagnostic imaging and specialists’ consultations as a result of pain experienced from the subject accident. I find that the applicant continued to suffer from back pain caused by the accident for the periods covered by these chiropractic plans, September 2019 to August 2020. In this regard, I note that:

i. I find that the applicant attended fifteen (15) in-person and virtual appointments with his family doctor during the COVID-19 pandemic in respect of the injuries he sustained and the pain experienced as a result of the accident.

ii. I find that the applicant’s back pain caused by the accident was not resolved during the time period at issue in the chiropractic treatment plans and further treatment was still recommended during the period from the date of accident until December 2020. I find that the accident caused the back pain and also exacerbated the applicant’s pre-existing condition degenerative back condition. I find the following evidence persuasive.

1. In the CNRs of his family doctor, there are repeated complaints of lower back pain and left leg pain, and the primary issue being addressed is back pain.
2. The applicant had a Pain Clinic Consultation with Dr. Ashley Esdaile of Wilderman Medical Clinic on January 28, 2020, and in this visit, it was opined that

“[t]he history and physical examination mostly suggestive of: Mechanical lower back pain pattern 3;

Lumbar radiculopathy due to herniated disc.”

Dr. Esdaile provided several recommendations including “Lifestyle guidance, local heating, chiropractic, physiotherapy, core strengthening, stretching, avoidance of strenuous physical activity, exercise as tolerated, lumbar support, orthotics and/or acupuncture.”

3. Mr. Fortune had a virtual rheumatology consultation with Dr. Maria Bagovich, virtually on May 10, 2020, who opined his symptoms were “most consistent with mechanical low back pain. The ?sacroililtis seems incidental and he does not have confirmed spondyloarthropathy”. (sic)
4. An Orthopaedic consultation was conducted at the Humber River Hospital Fracture Clinic with Dr. James V. Seligman on December 24, 2020. Dr. Seligman noted:

“…49-year-old gentleman who presents with lower back and left leg pain. It has been present for a year and half and start radiating into his left foot. An MRI done showing degenerative changes primarily on the right side, minimal findings on the left side. On physical examination, hips range of motion is normal. Straight leg raising is normal. Power is grossly normal. There is some tenderness in the left leg into his calf. This gentleman’s MRI is essentially clear on the left side. He has sciatic symptoms. I have arranged for an EMG to see if there is anything else that we can see.”

5. MRI of the Lumbar Spine, Humber River Hospital, Dr. Jonathan Mandel, Radiologist, dated January 8, 2020 where there is a notation of “Clinical Indication: Lower back pain” and “Impression: Degenerative change as described. Possible sacroililtis, not well assessed.”

iii. As I have found that there is sufficient evidence without considering the psychological reports, I have not relied upon those reports in making these findings,

9The IRB IE was prepared as part of an in-person s. 44 examination of the Applicant in July 2020 by Dr. Farooq Ismail (Physical Medicine and Rehabilitation Specialist), Dr. Fabio Salerno (Registered Psychologist) and Dawn Rynberk (Kinesiologist - Functional Capacity Evaluation). Dr. Ismail noted the Applicant’s reports of pain with active forward flexion and extension at the lumbosacral spine. In light of the evidence referenced above, the fact that Dr. Ismail did not identify “any other motor-vehicle-accident-related musculoskeletal or neurological impairment” does not persuade me that the applicant was not suffering from back pain in the period from the accident in the period from the accident until the end of 2020. The report does identify the applicant’s report of pain with active forward flexion and extension at the lumbosacral spine. Further in the IRB IE the psychologist Dr. Salerno documents that the applicant “estimated his level of pain over the past 4 weeks at 7 to 8 out of 10, with 10 representing the worst pain you have ever had in your life” and a chart in which the applicant indicated his pain to be concentrated in his lower back and left leg. Further, Dr. Salerno includes in his report that during his assessment the applicant

“explained there has been no reduction in his level of pain since the subject accident. He understands he did not fracture any bones in the subject accident. He was told there is ‘bulging in the spine’ as a result of the subject accident. He reported that heavy lifting, sudden movements, climbing ladders, and prolonged standing while washing the dishes exacerbate the pain. He articulated his belief that exercises and movements as recommended by his treatment professionals are appropriate for his pain and physical injuries.”

10The plans’ stated goals of pain reduction, increased range of motion, increase in strength (except not in the August 2020 plan), return to activities of normal living and return to work activities are reasonable.

i. Pain reduction: as set out above, the applicant was experiencing significant pain in the period from the date of the accident through the end of 2020. ii. Increase in strength: the applicant experienced a loss of strength as a result of his injuries in the accident. In the IRB assessment report of Dr. Ismail dated July 31, 2020, the applicant reported aggravating factors for his pain included lifting more than 30 pounds (such as a bag of cement repeatedly). The IRB IE includes references to a loss of strength as a result of his injuries including difficulty lifting his children. iii. Activities of daily living: the applicant was also experiencing difficulties in returning to his activities of daily living including playing with his children (lifting them), assisting with household chores to the extent he did pre-accident and sporting activities like ceasing playing soccer with friends. The IRB IE includes reports that the applicant has difficulty playing with his children, needs to pace house-keeping and home maintenance activities due to pain and that he has not played soccer much since the accident due to his physical limitations and pain. iv. Return to work activities: The applicant worked as the single owner and operator of a renovation business. The IRB IE includes reports by the applicant that prior to the accident he worked at least 40 hours per week, the jobs he performed included demolition, small framing, drywall, taping, sanding, painting, floor installation, minor plumbing, and after the accident he worked reduced hours of 5-6 hours per day before ceasing work in March, 2020 due to the COVID-19 pandemic. He reported that he reduced his hours due to severe pain but that he had to work through the pain to support his family.

11I find that the goals set out in the treatment plans were being met to a reasonable degree. The CNRs and reports include notes that the applicant was receiving benefit toward the treatment goals from treatment, but, unfortunately, the applicant was unable to pursue the full range of physical therapy recommended in 2019 and 2020 as a result of financial limitations.

12I have reviewed the chiropractic treatment plans and I find that the overall costs of the plans in seeking to achieve the goals is reasonable.

13I find that the plans in dispute are reasonable and necessary, and the applicant is entitled to payment in respect of the services recommended in those plans once incurred.

Chronic Pain Assessment

14I find that a chronic pain assessment, proposed by Q Medical in a plan submitted October 20, 2021 is reasonable and necessary as a result of the accident.

15The onus is on the applicant to prove that the assessment is reasonable and necessary and that there is a link between the assessment sought and an accident-related impairment. Section 25(1) of the Schedule provides that an insurer shall pay reasonable fees for the preparation of an assessment.

16The applicant submits that chronic pain that limits daily functioning warrants a comprehensive assessment and, in this case, the applicant’s continuous complaints to the assessors and practitioners and the diagnoses provided by treating healthcare practitioners is compelling evidence that the applicant continues to have impairments that require assessment and treatment.

17The respondent submits that the chronic pain assessment is not reasonable and necessary because the applicant has not established three of the six criteria set out by the American Medical Association for a diagnosis of Chronic Pain Syndrome.

18I disagree with the respondent’s position that the applicant needs to establish chronic pain syndrome to be entitled to a chronic pain assessment. To be entitled to a claim for a chronic pain assessment, the applicant needs not establish that he meets the criteria for a chronic pain syndrome diagnosis.

19Rather, the purpose of a chronic pain assessment is to assess whether the applicant suffers from chronic pain and/or chronic pain syndrome and to formulate recommendations to assist in alleviation of symptoms and return to normal activities of daily living.

20I agree with the applicant that the chronic pain assessment is reasonable and necessary as a result of the accident. As set out above, the applicant was experiencing significant pain in the period from the date of the accident through the end of 2020. In addition, the CNRs in respect of the applicant’s appointments with his family doctor on January 13, 2021, January 21, 2021, February 19, 2021, and April 9, 2021 also include reports of significant pain which the applicant reported was “not getting better” and referrals to additional health care providers. The OCF-18 dated October 12, 2021 completed by Marc Mandel, psychologist, in support of the chronic pain assessment recommends it to evaluate the applicant’s psychological, emotional and social repercussions following the accident, to identify if a psychological impairment exists, and, if it does, to formulate recommendations to assist in alleviation of symptoms and return to normal activities of daily living. The OCF-18 is supported by an interview of the applicant completed on October 12, 2021, which is summarized in the OCF-18.

21The cost of the assessment is reasonable as it is $2,486.00, comprised of $2,000.00 for the assessment, $200.00 for documentation and $286.00 for applicable taxes and, as such, is within the maximum payable for assessments as per s. 25(5)(a) of the Schedule.

22I find that a chronic pain assessment, proposed by Q Medical in a plan submitted October 20, 2021 is reasonable and necessary as a result of the accident.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

24Having found that the applicant is entitled the amounts claimed in respect of the chiropractic treatment plans, dated September 10, 2019, November 23, 2019, January 4, 2020, March 2, 2020 and August 13, 2020 and the chronic pain assessment, the applicant is entitled to interest, pursuant to s. 51 of the Schedule.

ORDER

25I order that the applicant is entitled to the following medical benefits:

i. $3,696.50 for chiropractic services in a plan, dated September 10, 2019 and submitted September 17, 2019, ii. $111.69 ($1,300.00 less $1,188.31 approved) for chiropractic services in a plan, dated November 23, 2019, iii. $1,977.05 for chiropractic services in a plan, dated January 4, 2020 and submitted January 6, 2020, iv. $1,384.70 for chiropractic services in a plan submitted March 2, 2020 and denied March 5, 2020; v. $2,569.40 for chiropractic services in a plan dated August 13, 2020 and submitted August 14, 2020, vi. $2,486.00 for a chronic pain assessment, in a plan submitted October 20, 2021 and denied November 3, 2021, and vii. interest in respect of these plans in accordance with s. 51 of the Schedule.

Released: February 6, 2024

__________________________

Margaret Sims

Adjudicator