Sylwia Olesniewicz v. Wawanesa Mutual Insurance Company, 2024 CanLII 67365

Citation: Olesniewicz v. Wawanesa Mutual Insurance Company, 2024 ONLAT 21-010245/AABS

Licence Appeal Tribunal File Number: 21-010245/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:

Sylwia Olesniewicz

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Sylwia Olesniewicz, Applicant Mark S Taborowski, Counsel

For the Respondent: Wawanesa Mutual Insurance Company Stacey Morrow, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Sylwia Olesniewicz, the applicant, was involved in an automobile accident on August 16, 2017, and sought medical and rehabilitation 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:

i. Is the applicant entitled to a medical benefit in the amount of $2,892.98 for psychological services, proposed by Gozlan Psychology in a treatment plan/OCF-18 (“plan”) dated June 15, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $3,313 for a gym membership, proposed by Blazk Rehabilitation in a plan dated July 2, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $621.31 for a Weight Watchers Program, proposed by Blazk Rehabilitation in a plan dated July 2, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,787.06 for physiotherapy, massage therapy and documentation, proposed by Dixie Physiotherapy and Wellness in a plan dated December 16, 2021?

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

RESULT

3I find the applicant has failed to demonstrate that the proposed treatment plans (OCF-18’s) are reasonable and necessary for her accident-related injuries. As a result, the OCF-18’s in dispute are not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

4The application is dismissed.

ANALYSIS

5To receive payment for a treatment plan (OCF-18) under 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. 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 same are reasonable.

Is the psychological treatment plan reasonable and necessary?

6I find there is no corroborating evidence in support of OCF-18 dated June 15, 2021 by psychologist, Dr. Gozlan in the amount of $2,892.98 for psychological services. The applicant relies on Disability Certificate (OCF-3) dated October 10, 2017 by Dr. Christopher Mazza, a pre-screening report dated June 15, 2021 and treatment plan report dated June 30, 2021 by Dr. Gozlan and a s.25 report dated February 22, 2022 by physiatrist, Dr. Kumbhare. In the OCF-3, Dr. Mazza indicates the applicant suffers from headaches, cognitive dysfunction, visual dysfunction and neck and back pain as a result of the accident. Over three years later, Dr. Gozlan suggests that the applicant requires further psychological therapy for persistent headaches, physical pain complaints and cognitive difficulties. Dr. Gozlan further indicates the applicant lacks a sense of safety and she has developed depression due to COVID restrictions. Dr. Kumbhare deferred an opinion on the applicant’s mood disorder; however, he notes that she attends York University without accommodations. The applicant has not followed up on the recommendations of Dr. Kumbhare for neurological and psychiatric consultations regarding her persistent headaches and psychological issues.

7In response, Wawanesa scheduled a s. 44 IE by psychologist, Dr. Dumitrascu, who found no psychological impairments as a result of the accident. Wawanesa points to the treatment records of HighMark Health Mississauga (“HighMark”) which include the clinical notes of Dr. Mazza who has been providing medical care of the applicant after the accident. The applicant has no family physician, and she has not produced any records regarding her pre-accident medical history. Shortly after the accident, Dr. Mazza referred the applicant to neuro-optometrist, Dr. Tanya Polonenko for vision therapy in treatment of persistent headaches, blurred vision and eye fatigue. Dr. Polonenko diagnosed binocular vision and provided vision therapy on a bi-weekly basis until April 29, 2018. On March 15, 2018, Dr. Mazza notes that the applicant’s functional abilities are not adversely affected by headaches. Dr. Mazza indicates in March 2018, the applicant is working at a kindergarten coop placement. Dr. Mazza’s records contradict the treatment plan report by Dr. Gozlan indicating the applicant is 100% disabled from volunteer work.

8I find that the clinical notes of treating physician, Dr. Mazza do not support the OCF-18 of Dr. Gozlan. The applicant has not reported any psychological complaints to her treating doctors and therapists, other than irritability regarding persistent headaches before completing vision therapy. The applicant’s visual dysfunction has since been successfully treated with vision therapy. On August 21, 2018, Dr. Mazza notes the applicant’s headaches and cognitive function has returned to normal. In addition, both Dr. Mazza and Dr. Dumitrascu emphasize that the applicant maintains an ‘A’ average at York University, and she is pursuing a driver’s licence. Dr. Gozlan repeats Dr. Mazza’s original diagnosis in the OCF-3, as a basis for his OCF-18, which is outdated by over three years. The applicant has failed to establish that the OCF-18 for psychological services is reasonable and necessary as a result of the accident.

Is the gym membership reasonable and necessary?

9I find that the applicant has failed to demonstrate that her significant weight gain is related to the accident. The applicant seeks payment for an OCF-18 dated July 2, 2019 in the amount of $3,313.00 for a gym membership and personal training sessions to control her weight. The applicant relies on the report of Dr. Kumbhare recommending an aggressive conditioning program for weight gain. Dr. Kumbhare indicates that the applicant is no longer under the care of Dr. Mazza. The applicant has not provided any records of a treating physician or specialist other than the report of endocrinologist, Dr. Piersanti diagnosing thyroiditis and oligomenorrhea. The applicant has not provided any medical evidence to explain how her weight gain is related to the accident.

10Wawanesa relies on IE report dated August 19, 2019 by general practitioner, Dr. Silver who found no accident-related cause for the applicant’s weight gain. The applicant initially reported weight gain to her doctor in April 2018. Dr. Mazza addressed the applicant’s weight gain by recommending a fitness program to develop strength and self confidence and referred her to an endocrinologist. The applicant participated in a formal exercise program at High Mark. In June 2018, the applicant reported that her headaches were improved, she stopped taking her medications and she follows a self-directed home exercise program.

11I find that the applicant has failed to establish that her weight gain is related to the accident. To the contrary, her doctors indicate that her complaints of soft tissue pain and weight gain derive from an endocrine disorder. The applicant has not met the burden of proof that the OCF-18 for a gym membership and personal trainer is reasonable and necessary as a result of the accident.

Is the Weight Watchers Program reasonable and necessary?

12The applicant seeks payment for an OCF-18 dated July 2, 2019 in the amount of $621.31 for a Weight Watchers Program based on the report of Dr. Kumbhare recommending a medically managed weight loss program. The applicant admits that her weight gain is related to physical and possible hormonal issues. The applicant does not point to any medical evidence by a treating physician to conclude that her weight gain is a result of the accident.

13Wawanesa relies on clinical note dated February 25, 2019 by treating endocrinologist, Dr. Piersanti indicating that the applicant’s weight gain is unrelated to the accident and IE report by Dr. Silver linking medication for hyperthyroidism to weight gain. In her consultation report, Dr. Piersanti diagnosed thyroiditis and possible polycystic ovary syndrome (“PCOS”). The applicant self reports to IE psychologist Dr. Dumitrascu that her weight gain was caused by medications for concussion. Thereafter, she developed hyperthyroidism for which she takes medication. The applicant’s doctors have not provided any explanation for her weight gain and endocrinology symptoms.

14The applicant has not demonstrated that her weight gain is directly related to the accident since her doctors have not diagnosed accident-related weight gain. In the absence of medical evidence from a treating physician to provide an explanation for the weight gain, the applicant has not met her burden of proof that a Weight Watchers Program is reasonable and necessary as a result of the accident.

Is the Dixie Physiotherapy and Wellness OCF-18 reasonable and necessary?

15I find that the applicant is not entitled to further physiotherapy and massage therapy since she reported that her accident-related pain symptoms resolved within a year after the accident. Subsequently, her doctor linked her pain symptoms to an endocrine disorder. The applicant seeks payment for an OCF-18 dated December 16, 2021, in the amount of $1,787.06 for physiotherapy and massage therapy based on the report of Dr. Kumbhare who diagnosed persistent headaches, neck pain and deconditioning syndrome. Dr. Kumbhare recommended an aggressive conditioning program. Dr. Kumbhare is not a treating doctor and he only provided a s.25 physiatry assessment five years after the accident.

16In contrast, Wawanesa point to the clinical notes and treatment records of Dr. Mazza and HighMark. Treatment providers report that the applicant’s neck pain was completely resolved within four months after the accident. They also report relief of the applicant’s low back pain within seven months after the accident. In July 2018, the applicant was able to participate in a yard sale which required repetitive lifting and bending. Dr. Mazza referred the applicant to endocrinologist, Dr. Piersanti regarding her weight gain and menstrual irregularities. Subsequent to a consultation report dated February 25, 2019 by Dr. Piersanti, Dr. Mazza links the applicant’s soft tissue pain to an endocrine disorder. By August 26, 2019, Dr. Piersanti reports stabilization of the applicant’s weight and menses.

17Since the applicant’s accident-related pain symptoms resolved within a year after the accident and she later developed soft tissue pain from an endocrine disorder, she has failed to prove that the OCF-18 for physiotherapy and massage are reasonable and necessary as a result of the accident.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on the OCF-18’s in dispute for psychological services, gym membership, Weight Watchers and physiotherapy services, no benefits are owing and interest does not apply.

ORDER

19The applicant has failed to demonstrate that the OCF-18’s are reasonable and necessary as a result of the accident. There is no medical evidence in support of an accident-related psychological injury, weight gain or chronic pain. Since the plans for psychological services, gym membership, Weight Watchers and physiotherapy services are not reasonable and necessary, interest does not apply. The application is dismissed.