Citation: Mplias v. Wawanesa Insurance, 2023 2024 ONLAT 21-008968/AABS

Licence Appeal Tribunal File Number: 21-008968/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:

Diane Mplias

Applicant

and

Wawanesa Insurance

Respondent

AMENDED DECISION

ADJUDICATOR:

Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Adam Moftah, Counsel

For the Respondent:

Stephen Robinson, Counsel

HEARD: In Writing

OVERVIEW

1Diane Mplias, the applicant, was involved in an automobile accident on July 22, 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, Wawanesa Mutual 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:

a. Is the applicant entitled to the following treatment plans/OCF-18s (“the plans”) proposed by Top Rehab:

i. $2,654.81 for chiropractic services, in a plan dated January 27, 2021, and denied on February 25, 2021;

ii. $1,300.00 for physiotherapy services, in a plan dated February 17, 2021;

iii. $2,856.50 for physiotherapy services, in a plan dated April 11, 2021; and

iv. $220.00 ($2,389.24 less $2,169.24 approved) for other goods and services in a plan dated October 3, 2020?

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

RESULT

3The applicant is not entitled to the treatment plans for chiropractic and physiotherapy services, or the remainder of the treatment plan for other goods and services.

4The applicant is not entitled to interest.

ANALYSIS

5To 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.

6I find that the applicant is not entitled to the treatment plans for chiropractic services in the amount of $2,654.81, and physiotherapy services in the amount of $1,300.00 and $2,856.50, respectively.

7The applicant submits that the plans are reasonable and necessary to treat her pain from the accident which has affected her mobility and life activities. The three plans in dispute identify the following treatment goals: decrease pain, increase range of motion, and return to the activities of daily living. The applicant does not refer specifically to the goals of each treatment plan, but more generally argues that they offer pain relief to aid in her recovery from the accident. She contests the conclusions of s. 44 assessor Dr. Soric and relies on clinical notes and records (“CNRs”) from her general practitioner (“GP”) Dr. Attia, observations from rheumatologist Dr. Soucy, and a disability certificate from her physiotherapist at Top Rehab.

8The respondent submits that it has already funded a significant amount of similar therapy without any lasting benefits and any ongoing pain symptoms are driven by unrelated medical issues or were pre-existing before the accident. It relies on the CNRs of Dr. Attia, the disability certificate from Top Rehab, and the reports of its s. 44 assessors Drs. John and Soric, neurologist and physiatrist, respectively.

9First, it is clear that the applicant’s treatments have not resulted in any lasting pain relief. A disability certificate prepared at Top Rehab on August 26, 2019, identified that the applicant suffered sprain and strain-type injuries as a result of the accident. In answer, the respondent funded close to a year’s worth of clinic-based treatments. However, at the s. 44 assessment with Dr. Soric on May 18, 2021, the applicant reported that she was not experiencing any sustained benefit from the treatments at the clinic. In fact, she described the pain relief as being only hours long.

10Secondly, there is little improvement demonstrated in the progression of the treatment plans. One of the OCF-18s in the evaluation section stated the applicant was making “slow progress” and on another it read “she has shown very little progress”. Despite only small gains, the applicant points to ongoing referrals from Dr. Attia for more physiotherapy in both 2020 and 2021. She also points to observations from rheumatologist Dr. Soucy, that her symptoms resembled chronic pain syndrome. While I acknowledge that the referrals and observations were made, the CNRs of Dr. Attia contain minimal information, are from the perspective of a GP rather than a specialist, and in one case was based on a phone consultation. Further, the observations of Dr. Soucy were made in the context of a rheumatology consult for an unrelated condition. Consequently, I give less weight to their referrals and observations.

11Lastly, I have not been pointed to any compelling medical documentation related to the third goal of returning to the activities of daily living. The applicant’s daily activities after the accident appear to have changed little from her situation prior to the accident, and the treatments at the clinic have not resulted in any lasting benefits. In the one example offered - that she was unable to continue with her usual sewing projects - the applicant clarified to Dr. Soric that she could no longer sew not because of the accident but because she did not go to the store to buy supplies.

12Thus, although the applicant points to a need for continued treatment, supported by referrals from her GP, I am not persuaded that the plans in dispute are reasonable and necessary. I give more weight to the conclusions of the s. 44 assessors because they completed a thorough in-person examination and are specialists in their field. Dr. John determined that the applicant’s obesity was the cause of the ongoing pain in her back. Dr. Soric opined that the applicant’s impairment was related to the same issue as there was no objective evidence of accident-related musculoskeletal impairment. I accept the conclusions of the s. 44 assessors with regard to other issues such as the applicant’s development of vertigo and the other pain symptoms throughout her body. Both assessors identified that these issues are either unrelated, pre-existing, or attributable to her obesity.

13In my view, the evidence before me does not establish that the treatment plans are reasonable and necessary. The goal of pain relief is not being met to any significant degree, and the applicant is making little progress over time despite receiving a substantial amount of facility-based treatment. Further, there are few details to support why more treatment would help to “return to the activities of daily living”. It appears that the applicant has benefited as much as is possible from the type of treatments described in the plans.

14Consequently, the applicant has not demonstrated entitlement to the treatment plans in dispute.

15I find that the applicant is not entitled to the remaining $220.00 ($2,389.24 less $2,169.24 previously approved) in the treatment plan for other goods and services.

16The applicant submits that the exercise equipment and podiatrist care that was not approved as part of the plan are both reasonable and necessary due to foot pain and inflammation, and to address the applicant’s obesity and physical deconditioning which pose barriers to her recovery. She relies on the OCF-18 in dispute, the CNRs of Dr. Attia and the report of Dr. Soric. The respondent submits that the podiatrist care and need for weight loss are both unrelated to the accident, and there were no particulars provided about the nature of the exercise equipment in question.

17I am not convinced that there is a credible link between the applicant’s podiatry treatment and the accident. Dr. Attia’s notes reference Plantar Fasciitis in relation to the foot pain and inflammation, with no mention of the accident. The respondent submits that Dr. Attia could have referred the applicant through OHIP for this type of podiatry care if it was truly necessary. I note that Dr. Attia did not make such a referral.

18With regard to the exercise equipment, the respondent submits that neither the OCF-18 nor the applicant’s submissions for this hearing offered any particulars about the equipment. The applicant submits that it is enough to require this equipment to meet the general goal of treating her pre-existing obesity and physical deconditioning after the accident, because they are obstacles to her recovery. She points to Dr. Soric’s statement that the assessment of her spinal mobility was difficult to perform due to her size, in support of her assertion that she requires exercise and weight loss. While a general goal of exercise and weight loss may have some merit, I cannot make a finding that specific equipment is reasonable and necessary if there are no details provided about what it is, why it is needed, and how it would be used to support her recovery.

19Thus, the applicant has not convinced me that either the podiatry treatment or the exercise equipment are justifiable expenses. I was not directed to any compelling evidence to suggest a link between the podiatry treatment and the accident, and with regard to the exercise equipment, no details were provided to substantiate the claim. As a result, I am unable to conclude it is reasonable and necessary.

20For all of these reasons, the applicant has not established entitlement to the $220.00 remaining in the disputed treatment plan.

ORDER

21The treatment plans are not reasonable and necessary.

22No interest is payable.