Citation: Midak v. RSA Insurance Company, 2024 ONLAT 23-004033/AABS

Licence Appeal Tribunal File Number: 23-004033/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:

Khrystyna Midak

Applicant

and

RSA Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Suganiya Sivabalan, Counsel

Shehaab Roshan, Counsel

Jeff Mark, Student-at-Law

For the Respondent:

Ken Yip, Counsel

Heard by Videoconference:

June 25, 26, 27, 2024

OVERVIEW

1Khrystyna Midak, the applicant, was involved in an automobile accident on November 28, 2020, 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, RSA 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 a non-earner benefit in the amount of $185.00 per month from December 13, 2021 to November 28, 2022?

ii. Is the applicant entitled to chiropractic services proposed by Bill Nikols as follows:

(a) $1,090.39 ($3,080.00 less $1,989.61 approved) in a treatment plan/OCF-18 (“plan”) submitted October 17, 2022?

(b) $1,691.16 in a plan submitted December 29, 2021?

iii. Is the applicant entitled to chiropractic services proposed by 101 Physio in a plan as follows:

(a) $816.81 in a plan submitted July 16, 2021?

(b) $1,656.93 in a plan submitted April 5, 2022?

iv. Is the applicant entitled to $1,736.35 for physiotherapy services proposed by 101 Physio in a plan submitted November 2, 2021?

v. Is the applicant entitled to $2,647.00 for aqua therapy proposed by 101 Assessments in a plan submitted May 12, 2022?

vi. Is the applicant entitled to $4,390.64 for a cognitive rehabilitation assessment proposed by 101 Assessments in a plan submitted March 1, 2022?

vii. Is the applicant entitled to $4,390.64 for a psychological assessment proposed by 101 Assessments in a plan submitted March 1, 2022?

viii. Is the applicant entitled to $2,460.00 for a neurological assessment proposed by 101 Assessments in a plan submitted March 12, 2022?

ix. Is the applicant entitled to $2,460.00 for an environment assessment proposed by 101 Assessments in a plan submitted June 15, 2021?

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

RESULT

3The applicant is not entitled to a non-earner benefit.

4The applicant is entitled to the treatment plans for issues [2] (ii), (iii), (iv) and (v), Chiropractic Services, Physiotherapy Services and Aqua Therapy Services plus interest.

5The applicant is not entitled to the treatment plans for issues 2, (vii), (viii) and (x), cognitive rehabilitation, psychological assessment, neurological assessment and environment assessment.

ANALYSIS

Causation

6In this matter, the respondent has raised the issue of causation. Specifically, it is the respondent’s position that the applicant’s head injury occurred as a result of medical malpractice and not as a result of an accident.

7The legal test for causation to be met is the “but for” test. The applicant must show on a balance of probabilities that “but for” the accident, the injury would have not occurred.

8The applicant has demonstrated that an accident occurred, however, I am not satisfied that it is the cause of her head injury. I find that the applicant fell off an examination table in the course of receiving an injection, a matter that is the subject of litigation for professional negligence before the Ontario Superior Court. The applicant suffered a traumatic brain injury (TBI) as a result of the fall. Neither party contests the aforementioned factual findings. I find the TBI suffered from the applicant was not related to the accident.

9The respondent submitted that the incident wherein the applicant fell off the examination table is an intervening act breaking the chain of causation that occurred some months after the accident.

10The applicant submits that the accident was the cause of the treatment being received and was a necessary cause of the TBI. The applicant submitted it would not have been at the pain clinic but for the accident.

11I find the respondent’s submission to be persuasive because I find the TBI was clearly an independent injury from the accident injuries, and an intervening event some months afterwards.

12Further, I find the applicant has chosen to address her TBI in another legal proceeding.

Non-Earner Benefit

13I find that the applicant is not entitled to a non-earner benefit.

14It is the applicant’s onus to establish on a balance of probabilities entitlement to a non-earner benefit.

15Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

16The applicant submitted that she has met the test for a non-earner benefit under s.12 of the Statutory Accident Benefits Schedule O. Reg. 34/10, and suffered a complete inability to carry on a normal life because she was unable to return to the work she had been trained to do nor able to manipulate the instruments necessary to her work, and her TBI caused significant cognitive issues preventing her from focusing on the tasks of her work.

17I find that the applicant did demonstrate through her testimony and medical evidence that she did suffer a complete inability to carry on a normal life within 104 weeks after the accident. I find the most significant change in the applicant’s ability to lead a normal life is her post accident condition that prevented her from virtually all tasks associated with her vocational training. I find the major component of the inability to lead a normal life was her TBI, that was found not to be as a result of the accident.

18However, I find the applicant’s claim for non-earner benefit cannot succeed as the applicant is unable to establish causation and discharge their onus of the burden of proof on a balance of probabilities.

Issues [2] (ii), (iii), (iv) and (v), Chiropractic Services, Physiotherapy Services and Aqua Therapy Services

19I find the applicant has proven on a balance of probabilities that the treatment plans for chiropractic services, physiotherapy services, and aqua therapy services are reasonable and necessary.

20To 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.

21Dr. Bill Nikols, chiropractor, testified that the applicant’s recovery had not met maximum recovery potential when chiropractic treatment was stopped in 2022. Dr. Nikols testified that he was surprised that the applicant no longer attended for treatment as she had previously attended treatment regularly and put in a conscientious effort towards her recovery, but had not yet reached her treatment goals or maximum recovery. Dr. Nikols became aware at his hearing that the applicant’s benefits had been denied. I find Dr. Nikols testimony to be important credible evidence as to whether the treatment plans were reasonable and necessary and give it significant weight.

22The chiropractic services plans detailed in issues 2 ii., iii., and iv., through the OCF-18’s of July 16, 2021, November 2, 2021, December 29, 2021, April 5, 2022 and October 17, 2022 are clear in the goals of pain reduction, increased range of motion and increase in strength for the purposes of returning to the activities of normal living. The testimony of both Dr. Nikols and the applicant was clear that the applicant was progressing towards these goals when the treatment plans were denied. I find this is important evidence that the treatment plans were reasonable and necessary.

23The treatment plan for aqua therapy detailed in issue v., through the OCF-18 dated May 2, 2022 is clear in the goals of pain reduction, increased range of motion and increased strength for the purposes of returning to the activities of normal living. Dr. Nickels evidence was clear that the properties of buoyancy and hydrostatic pressure permits a dimension of rehabilitation therapy that cannot be accomplished on dry land; specifically, buoyancy reduces weight in the water leading to reduced stress on injured areas, and hydrostatic pressure increases venous return and enhances cardiac function. I find this important evidence that the treatment plan is reasonable and necessary and give it significant weight.

24The benefit of continued chiropractic services was corroborated in the report of Dr. Gregory Karmy M.D., dated February 13, 2022. In his report, Dr. Karmy recommended that the applicant participate “in an active exercise program, physiotherapy sessions, acupuncture, and massage therapy. Chiropractic adjustments and spinal decompression therapy should also be provided.”

25Further, Dr. Karmy recommended an active exercise program including physiotherapy. I find Dr Karmy’s comments with respect to physiotherapy to be inclusive of aqua therapy and take notice that aqua therapy is a subset of physiotherapy, and credible evidence as to whether or not the treatment plan is reasonable and necessary and give his evidence high weight.

26The respondent did not provide compelling medical evidence to the contrary that refuted the findings of Dr. Nikols and Dr. Karmy. The IE report for orthopedic examination by Dr. Weisleder dated December 16, 2021 contains contradicting statements in its conclusions. Dr. Weisleder states at page 21, para 1, as follows:

“Cervical strain, right shoulder strain, thoracic strain, lumbar strain, right wrist strain and left wrist strain injuries as a direct result of the motor vehicle accident on November 28, 2020. The reports of pain and stiffness in the regions of her neck, right shoulder, upper back, lower back, right wrist and left wrist correlate with my objective findings of residual tenderness in the region of her neck, upper back, lower back and both wrists.”

Dr. Weisleder then states at page 21, para 3:

“Ms. Midak was involved in a motor vehicle accident on June 7, 2019 sustaining a fracture right distal radius, cervical strain, right shoulder strain, thoracic strain and lumbar strain injuries. The fracture of her right distal radius required internal fixation. Her pre-existing condition is a barrier to her recovery and will prolong recovery but will not prevent recovery for injuries sustained in the accident on November 28, 2020.”

Dr. Weisleder further states at page 22, para 4:

“The prognosis is good for recovery in terms of functionality for activities of daily living and employment.”

Dr. Weisleder states at page 22, para 6:

“I reviewed the Treatment and Assessment Plan recommending further treatment at a cost of $1,736.35. The treatment as outlined is not reasonably required nor necessary for injuries sustained in the accident. Ms. Midak has already been appropriately assessed and treated for injuries sustained in the accident.”

27It is this final statement of Dr. Weisleder that runs contrary to earlier statements, particularly his statement at page 21, para. 3 where he stated the applicant will have a prolonged recovery, and subsequently rejected prolonged treatment. I give little weight due to Dr Weisleder’s findings because of inconsistent statements within his report.

28Accordingly, I find that the applicant met her burden on proof on a balance of probabilities that the treatment plans outlined in issues 2, (iii), (iv) and (v) are reasonable and necessary, specifically Chiropractic Services, Physiotherapy Services and Aqua Therapy Services.

Issues [2](vi), (vii), (viii) and (x), cognitive rehabilitation, psychological assessment, neurological assessment and environment assessment

29I find the applicant has not met her onus of the burden of proof on a balance of probabilities that the treatment plans outlined in issues 2, (vii), (viii) and (x) are reasonable and necessary.

30The applicant submits that the cognitive, psychological, and neurological injuries were sustained as a direct cause of the accident. To support this position, the applicant relies upon the following reports from 101 Assessments: Psychological Assessment Report dated March 9, 2021, Neurological Assessment Report dated June 17, 2021, Social Worker Assessment Report dated September 3, 2021, Neuropsychological Report dated September 14, 2021, Chronic Pain Assessment dated January 26, 2022, and Psychiatric Assessment Report dated March 7, 2022.

31The respondent submits that the aforementioned injuries are the result of an intervening event where further injury was sustained while receiving medical treatment some months later.

32It is uncontested that in May of 2021 the applicant attended to see Dr Senthelal at Pain Care Clinics for the purpose of injection therapy for pain due to the accident. During the procedure, the applicant experienced a syncopal episode and fell off the examination table and suffered a head injury.

33It is clear that after this injury the applicant began to experience cognitive and other neurological issues according to the applicant’s testimony. The applicant was diagnosed soon after this injury with a mild traumatic brain injury (TBI) at IScope Concussion & Pain Clinic as a result of the fall.

34The respondent submitted that the applicant had no cognitive impairment between the accident date and the subsequent May 2021 head. Further, the respondent submitted no medical evidence can be found of cognitive difficulties until after the May 2021 head injury, which is corroborated by the applicant’s own testimony.

35I find the respondent’s submissions to be persuasive and find that the applicant did not demonstrate evidence of cognitive impairment prior to the May 2021 head injury.

36Accordingly, I find that the injuries the applicant sustained applicable to issues 2, (vii), (viii) and (x), cognitive rehabilitation, psychological assessment, neurological assessment and environment assessment, have not been demonstrated by the applicant on a balance of probabilities to be reasonable and necessary as the treatment plans address an impairment that was not a direct result of the accident.

37I find that the applicant has not met their burden of proof on a balance of probabilities that the treatment plans described in issues 2, (vii), (viii) and (x), are reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Accordingly, interest is to be applied to the benefits awarded pursuant to the treatment plans outlined in issues 2, (iii), (iv) and (v).

ORDER

39I order:

i. I find the applicant has not meet the test for issue 2 non earner benefit.

ii. I find the applicant has proven the treatment plans outlined in issues 2, (iii), (iv) and (v) are reasonable and necessary.

iii. I find the applicant has not proven the treatment plans outlined in issues 2, (vii), (viii) and (x) are reasonable and necessary.

iv. I find the applicant is entitled to interest.