Licence Appeal Tribunal File Number: 23-004581/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:
Jennifer Emelike
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Olubunmi Akinsanmi, Counsel
For the Respondent:
Ainsley Shannon, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Jennifer Emelike, the applicant, was involved in an automobile accident on November 29, 2021, 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, Economical 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Medex Health Services in a treatment plan/OCF-18 (“plan”) submitted May 4, 2022?
iii. Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Medex Health Services in a plan submitted May 4, 2022?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Medex Health Services in a plan submitted January 30, 2023?
v. Is the applicant entitled to $1,100.00 for physiotherapy services, proposed by Medex Health Services in a plan submitted January 31, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s accident-related injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.
4The applicant is entitled to the plans in dispute for a psychological assessment, a chronic pain assessment, and for physiotherapy services, plus interest pursuant to S. 51 of the Schedule.
5The applicant is not entitled to the plan for a neurological assessment.
ANALYSIS
Is the applicant barred from pursuing the issues in dispute, pursuant to s. 55 of the Schedule, due to non-attendance at a s.44 insurer’s examination?
6I find that, on a balance of probabilities, the applicant is not barred from pursuing the issues in dispute because the s.44 insurer’s examination (“IE”) was not reasonable and necessary.
7The respondent argues that the applicant is barred from pursuing the issues in this application pursuant to s. 55 of the Schedule because of non-attendance at a scheduled psychological IE. The applicant argues that she did not attend the scheduled IE and that it was not reasonable and necessary because she had already attended a psychological IE with the same assessor previously.
8The Tribunal has previously assessed the following factors when considering whether a proposed IE is reasonable and necessary:
i. the timing of the insurer’s request;
ii. the possible prejudice to both sides;
iii. the number and nature of the previous insurer’s examinations;
iv. the nature of the examination(s) being requested;
v. whether there are any new issues being raised in the applicant’s claim that require evaluation; and
vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
The timing of the insurer’s request
9The applicant was involved in an accident on November 29, 2021. The applicant sought entitlement to a psychological assessment in a plan dated May 4, 2022. The respondent denied entitlement for this psychological assessment by denial letter dated June 29, 2022. The applicant filed the subject application with the Tribunal on April 21, 2023, disputing application of the MIG and entitlement to plans.
10A case conference was held on November 27, 2023. In advance of this case conference, the applicant provided new documents including updated clinical notes and records of St. Joseph’s Hospital and Dr. Li, the ambulance call report, prescription summaries, and a s. 25 chronic pain assessment report by Dr. Karmy dated May 29, 2023.
11The respondent submits that, as a result of receiving these new documents, it provided a notice dated December 5, 2023 for a further psychological IE. This IE was scheduled for January 29, 2024 to obtain an updated opinion regarding application of the MIG and entitlement to plans based on the new documents delivered by the applicant.
The possible prejudice to both sides
12The respondent’s position is that it is significantly prejudiced by the applicant’s failure to attend the second IE because the applicant is relying on the new documents that the respondent needs the IE assessor’s opinion regarding. The respondent submits these new documents were delivered on November 6, 2023 to support the applicant’s position that her injuries are non-minor and that she is entitled to the plan proposing a psychological assessment. The respondent argues the applicant cannot rely on these new documents or updated records while at the same time preventing the respondent from obtaining an updated report addressing those records.
13The applicant’s position is that she is prejudiced by having to relive the trauma of the car accident with Dr. Mandel, the same assessor who had previously assessed her and opined that she had no psychological impairments. The applicant also argues that the respondent was seeking to obtain further evidence in the context of the application by requesting the IE after the case conference was held, while updated records had been provided previously. It follows that the applicant would face a shortened period to review and respond to the respondent’s evidence because of the timing of the IE and the deadlines being set during the case conference.
The number and nature of the previous insurer’s examinations
14The respondent scheduled three IEs by notice to the applicant dated September 15, 2022. These IEs were scheduled between October 3 to October 24, 2022 with the following specialties: general practitioner, neurology, and psychology.
15The applicant attended, including the in-person s.44 insurer psychological IE on October 12, 2022 with Dr. Marc Mandel, psychologist. Dr. Mandel authored a resulting report dated November 14, 2022. The respondent relied on this IE to determine that the applicant’s injuries were not outside the definition of the MIG and also denied entitlement to the claimed plan for a psychological assessment.
The nature of the examination(s) being requested
16The respondent submits that entitlement to the plans in dispute were denied as a result of the applicant reaching the MIG limit. The respondent argues that the applicant is barred from pursuing the MIG issue and all the plans in dispute because the psychological IE was to address the application of the MIG and therefore it is connected to all of the issues in dispute.
17The respondent submits that s. 44 of the Schedule grants it a right to an IE of the applicant. The applicant refused to attend the scheduled psychological IE by letter dated December 8, 2023. In the December 8, 2023 letter, the applicant stated that the IE was neither reasonable nor necessary because the respondent had obtained previous medical opinions regarding the application of the MIG and entitlement to the plans.
Whether there is a reasonable nexus between the examination requested and the applicant’s injuries
18The IE requested would assist in addressing whether the applicant’s injuries are outside of the definition of the MIG and entitlement to the plan proposing a psychological assessment. Since it would address application of the MIG, it would assist the respondent in re-adjusting entitlement of other plans that were originally denied because the MIG limit was exhausted.
Reasonable and Necessary
19Considering all of the relevant factors, the IE was not reasonable and necessary. I focused on the timing of the request being after the case conference had already taken place, the possible prejudice to the parties, and that a previous psychological IE had taken place.
20According to the respondent, the notice for the IE was sent a month after it received new documents or updated records from the applicant including updated clinical notes and records of St. Joseph’s Hospital and Dr. Li, the ambulance call report, prescription summaries, and a s. 25 chronic pain assessment report by Dr. Karmy dated May 29, 2023.
21However, in reviewing the evidence, the respondent had previously confirmed in correspondence dated September 15, 2022 that it had already reviewed the ambulance report. For this reason, it is not accurate for the respondent to include in its submissions that the ambulance report was part of the new document disclosure that occurred on November 6, 2023. In addition, the respondent has not provided any submissions on why it would be reasonable and necessary to obtain a second in-person insurer psychological IE as a result of receiving Dr. Karmy’s chronic pain assessment report.
22The respondent relies on the clinical notes and records of St. Joseph’s Hospital and Dr. Li for its position that the IE was reasonable and necessary. However, the respondent’s submissions provide no specific reference to any of those records that would assist me in clearly establishing what portions of those records were provided on November 6, 2023 or why they would necessitate a second in-person psychological IE with Dr. Mandel. The respondent’s general argument that the applicant cannot rely on updated records if the applicant does not subject herself to a further IE addressing those updated records does not establish that the IE is reasonable and necessary. It is not automatically reasonable and necessary to subject the applicant to an IE just because new documents are disclosed, or records are updated.
23The respondent’s notice dated December 5, 2023 for the IE states its goal was to “determine if the new materials result in changes to the assessor’s opinion relating to the report that was completed November 14, 2022”. The parties did not address why this goal could not have been accomplished by the assessor reviewing the new materials and providing a further report without the applicant’s attendance, commonly referred to as a paper-review. I considered that the applicant’s correspondence dated December 8, 2023 clearly stated her position that the IE was not reasonable and necessary and that the correspondence was dated only three days after the respondent’s notice was received. This provided the respondent with sufficient notice that the applicant was not attending and an opportunity to minimize any prejudice resulting from the applicant’s non-attendance by attempting to obtain a report based on a paper-review.
24For the reasons above, the applicant is not barred from pursuing the issues in dispute because the s.44 IE was not reasonable and necessary.
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
25I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are not predominantly minor as defined by the Schedule.
26Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
27An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing medical condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
28The applicant argues her injuries fall outside of the definition of minor injury because she suffers from chronic pain syndrome and specifically chronic pain in her chest, neck, lower back, both shoulders, and left knee as opined by Dr. Karmy, Chronic Pain Specialist, in a report dated May 29, 2023.
29The respondent argues that there is a lack of causation linking the applicant’s lumbar back pain to the subject accident.
Chronic Pain Diagnosis
30In Dr. Karmy’s May 29, 2023 assessment report, he diagnosed the applicant with:
i. Possible mild Traumatic Brain Injury with associated persisting symptoms;
ii. Chronic Post-Traumatic Headache;
iii. Chronic non-specific chest pain;
iv. Chronic mechanical neck pain, likely originating from the cervical discs and facet joints, and likely associated with left-sided radiculopathy;
v. Chronic mechanical lower back pain, originating from the lumbar discs and facet joints, and likely associated with left-sided radiculopathy due to moderate foraminal stenosis at L5-S1 level (as per MRI);
vi. Left sacroiliac joint dysfunction;
vii. Chronic mechanical left shoulder pain, likely originating from post-traumatic tendinopathy;
viii. Chronic mechanical right shoulder pain, likely myofascial;
ix. Chronic mechanical left knee pain;
x. Myofascial pain syndrome;
xi. Chronic Pain Syndrome;
xii. Sleep disorder; and
xiii. Possible mood disorder with symptoms of passenger and driving anxiety.
31Dr. Karmy’s diagnoses are inconsistent with, Dr. Li, the applicant’s family doctor because Dr. Li’s referral to the Roncesvalles Chronic Pain Clinic (“RCP Clinic”) is solely because of low back pain. The applicant also relies upon the evidence of Dr. Sim, her chronic pain treatment provider, at the RCP Clinic. Dr. Sim’s clinical note and record (“CNR”) dated November 21, 2023 confirms that the applicant was referred due to chronic lumbar pain.
32In my view, Dr. Karmy’s assessment report of May 2023 provides a drastically different picture as to the applicant’s chronic pain and functional impairments when compared to the initial consultation and treatment CNRs, from November 2023 to January 2024, of the applicant’s treating chronic pain specialists at the RCP Clinic which includes Dr. Sim and Dr. D’Souza. Dr. Karmy provides a list of thirteen diagnoses and the RCP Clinic provides just one. The applicant’s submissions do not address why all of the chronic pain related diagnoses identified by Dr. Karmy in May 2023, other than the applicant’s lower back, no longer required assessment or treatment by the RCP Clinic just a few months later, in November 2023. I find that the applicant’s only ongoing chronic pain related complaint by November-December 2023 was of her lumbar spine on the basis of the family doctor referral form to the RCP Clinic and the resulting diagnosis and the CNRs of the RCP Clinic. The respondent argues causation as a defence which I deal with in a section to follow.
33The applicant submits that she has developed psychological impairments, specifically anxiety and poor sleep due to pain. This submission is in the context of supporting her position that the applicant meets the psychosocial sequelae criteria for chronic pain syndrome diagnosis sufficient to warrant a chronic pain assessment rather than addressing the issue of removal from the MIG. Nevertheless, the applicant’s function is addressed in Dr. Karmy’s report and in the CNRs from the RCP Clinic. As it relates to diagnosis, function, and treatment, I give more weight to the RCP Clinic consultation and treatment notes and records as compared to Dr. Karmy’s chronic pain report for a number of reasons. Whereas Dr. Karmy’s assessment is made for a medical-legal purpose, the applicant’s referral to the RCP Clinic from her family doctor and the resulting diagnosis and opinion “are specifically and solely intended for medical treatment purposes”. As opined by the Divisional Court in Plante v. Economical Insurance Company, 2024 ONSC 7171 have recognized in accident benefits cases, “Far too often so called “independent medical examinations” are nothing more than the opinion of a “hired gun”. In this case, I have the benefit of the treatment records of the RCP Clinic. I prefer the applicant’s treatment records over the hired examiners of both the applicant and the respondent in so far as the examination reports are inconsistent with the treatment records. In addition, the RCP Clinic’s treatment records are strengthened because they are more recent to Dr. Karmy’s report, although by just a few months. The RCP Clinic records are further strengthened because the applicant visited the clinic more than once, at least four times in 2023, whereas each examination report is based on a single assessment visit.
34Dr. Karmy’s diagnoses are broadly inconsistent with the rest of the evidence before me which has been contrasted and summarized in a previous paragraph. The applicant’s family doctor supports my finding because she was solely referred to the RCP Clinic as a result of complaints of low back pain rather than the large number of chronic pain complaints reported by Dr. Karmy. It is also supported by the RCP Clinic’s sole diagnosis of chronic pain related to the lumbar spine, although they also examined the applicant’s other complaint, regarding her left leg. In addition, follow-up notes from the RCP Clinic from December 2023 to January 2024 confirm that the applicant is doing well, that nerve block injections for her lumbar pain helped significantly, and that the applicant denied any other issues. The notes also confirm the applicant “is doing well otherwise without any other questions or concerns.” In my view, this confirms that the applicant’s complaint was focused on her lumbar pain because she no longer had other issues or concerns after treatment of that pain. Next, I need to address the applicant’s functional impairment resulting from this chronic pain and the respondent’s argument about causation.
Functional Impairment
35The applicant’s submissions did not focus on functional impairment. In order to analyze the applicant’s functional impairment, I turn to the chronic pain specialists, Dr. Karmy, Dr. Sim and Dr. D’Souza that have outlined certain functional impairments. I have previously decided Dr. Karmy’s report will be given less weight where it doesn’t reconcile with the treatment CNRs. The functional complaints recorded by Dr. Karmy in May 2023 compared to those made to the RCP Clinic after November 2023 are drastically different but I will start with what they agree on.
36Dr. Karmy and the RCP Clinic largely agree that the applicant continues to live alone and independently, works from home, is able to complete her activities of daily living but requires more time and breaks after the accident. They also agree that she is independent in her personal care tasks, but she completes them slower than she did pre-accident. I am persuaded that these are the functional limitations of the applicant as a result of her chronic pain in the lumbar spine.
37The applicant also points to functional limitations relating to her self-employment in her submissions. Other than the applicant’s self-reporting to Dr. Karmy, the applicant has not pointed me to evidence to contrast the applicant’s working hours pre and post-accident, to establish she took time off, or that she is working fewer hours and lost some of her income post-accident. The applicant’s self-reporting as it relates to functional impairment relating to work is weakened due to lack of evidence to substantiate these claims noted in Dr. Karmy’s report. While I appreciate that not all self-reporting of functional impairments can be substantiated easily with documentary evidence, this does not generally apply to reduced employment or self-employment and reduced income.
38Regarding other important aspects of the applicant’s functioning, Dr. Karmy’s report states the applicant is no longer able to visit family, attend social gatherings, or go out with her friends. This level of impairment is not corroborated by the RCP Clinic’s CNRs. I find that that the RCP Clinic’s treatment CNRs do not support the level of impairments described by Dr. Karmy’s report, including an inability to visit family, attend social gatherings, or go out with her friends.
39Dr. Sim recommends staying active and trying specific medications. Dr. Sim noted that following a trial of medications, the applicant “could be a candidate for interventional nerve blocks in an attempt to improve range of motion…” However, this recommendation contradicts Dr. Sim’s physical examination completed on the same date in which no deficits in range of motion were noted that would require improvement. This discrepancy is not explained. However, I am persuaded by the applicant’s reporting of back pain and her consenting to nerve block injections immediately on November 21, 2023 despite the medical opinion that she should try other treatment first. Nerve block injections were administered bilaterally in the lumbar spine at the L5. Follow-up notes dated December 13, 2023 to January 4, 2024 confirm that the applicant is doing well, the injections helped significantly, the applicant denied any other issues. The notes also confirm the applicant “is doing well otherwise without any other questions or concerns.”
40As a result of the nerve block injections, the RCP Clinic notes that the applicant reported improvement functionally finding it easier to carry out her activities of daily living. I am persuaded by the evidence that the applicant developed chronic pain in her back and functional limitations in her activities of daily living sufficient to request nerve block injections. I am also persuaded that after this treatment the applicant’s functional ability and pace to carry out her activities of daily living improved.
41For the reasons above, I find that the applicant has established chronic pain with a functional impairment as a result of the accident warranting removal from the MIG. Therefore, the applicant’s accident-related injuries are not predominantly minor as defined in s. 3 of the Schedule and are not subject to treatment within the $3,500.00 MIG limit.
Causation
42It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause.
43The respondent concedes that the applicant complained to Dr. Li of low back pain on December 9, 2021 but submits that she did not complain to Dr. Li about low back pain again until March 29, 2023. The respondent also submits that the applicant initially complained of low back pain to her physiotherapist until March 2022 and there was no further complaint of low back pain to her physiotherapist after April 2022 so it should be considered resolved. The respondent also argues that if low back pain returned after April 2022 that it was not a result of the accident. The respondent argues that it is more likely the applicant’s low back pain is related to prolonged sitting at work, and normal, age-related degeneration, rather than to a minor accident over a year earlier.
44Dr. Sim notes prolonged sitting aggravates the applicant’s low back pain but did not suggest that it was caused by prolonged sitting. Even if I was to grant the respondent that aggravation from prolonged sitting should be understood to mean caused by prolonged sitting, it does not negate the causation test. It is accepted that the accident need not be the only cause of the impairment but a necessary cause. Read together, the records of the applicant’s family doctor, physiotherapist and her chronic pain treatment provider show that the accident caused the low back pain and that prolonged sitting is one factor that aggravates it. In my view, there would be no back pain to aggravate if the accident had not caused it. I agree with the applicant that the respondent’s position that the applicant’s low back pain is caused by degeneration or prolonged sitting is speculative because there is no prior history of low back pain complaints. Prior to the accident, the applicant was working from home in the same job that she continued post-accident, which requires remaining in a prolonged sitting position. The applicant was working pre-accident without low back pain until she was involved in the subject accident, a necessary cause for her low back pain.
45The respondent also focuses on the timing of low back pain complaints and treatment, or lack thereof, in its argument. I note that the applicant has provided some explanation of gaps in the record alleged by the respondent. The applicant submits she was required to attend to a family emergency outside of Canada. I find that any alleged gap does not negate causation because the applicant does not have a record of complaints pre-accident and complained of low back pain for the first time in the records post-accident to both her family doctor and to her physiotherapist which the respondent concedes. Ultimately, low back pain is the sole reason she was referred to the RCP Clinic. The RCP Clinic’s treatment records confirm the applicant requested nerve block injection treatment. After administration of nerve block injection for her chronic low back pain the applicant reported improvement in her pain and her functional limitations that resulted from the pain as addressed earlier in this decision. Since these improvements are noted between December 2023 and January 2024, I find that it was not resolved by April 2022 as the respondent suggests.
46For the above reasons, I find that the applicant has established causation, on a balance of probabilities, as it relates to her chronic pain in her lumbar spine.
47To 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.
48Notably, for an applicant to prove that an assessment is reasonable and necessary, it is not crucial for the applicant to prove the actual existence of a condition; rather, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment.
The applicant is entitled to $2,200.00 for a psychological assessment, proposed in a plan submitted May 4, 2022?
49I find the applicant is entitled to this assessment.
50The applicant submits that the family doctor’s records show that the applicant has complained about sleeping difficulties, agitation, anxiety, and difficulty focusing sufficient to warrant an investigation. The applicant submits that she continues to deal with anxiety and sleeping difficulties and she has been prescribed related medication and has been reimbursed for same by the respondent. The applicant points me to clinical notes and records of Dr. Li, her family doctor, to establish that these complaints were made on the first visit after the accident and continued to be made post-accident.
51Regarding the hand-written notes of Dr. Li referenced by the applicant as evidence to establish the applicant’s complaints, the respondent’s position is that they are illegible. The respondent submits that the applicant should have provided legible notes as evidence for my consideration, perhaps in transcribed form. In reply submissions, the applicant submits that the respondent could have requested transcribed notes but did not do so. I have two concerns arising from the applicant’s position. First, the applicant’s position seems to be shifting the burden, of providing legible evidence she is relying on in this hearing, on to the respondent. Second, the applicant’s position ignores that Dr. Karmy had alerted readers in the Chronic Pain Assessment Report dated May 29, 2023 that Dr. Li’s handwritten notes are mostly illegible. In my view, this should have prompted the applicant to act on this if she intended to rely on those notes as evidence at this hearing but instead, I have mostly illegible notes. For this reason, I find that I do not have legible evidence that I can rely on to find that Dr. Li’s notes and records confirm the submissions made by the applicant.
52However, with a wholistic view of the submissions and evidence, I recognize that the respondent’s position concedes that the applicant initially complained of psychological symptoms, which assists me. The respondent submits that it is not clear whether the symptoms are related to the accident and also argues that any such symptoms seemed to have resolved by December 2022.
53I have considered and am persuaded that these symptoms are accident related because there is no evidence of psychological symptoms prior to the accident and the respondent concedes noting these complaints in the medical record right after the accident.
54I am also persuaded by the applicant’s reference to the adjuster’s log notes dated September 20, 2022 reimbursing the applicant for Escitalopram. The log notes recognize it as antidepressant medication that is used to treat depression and generalized anxiety disorder. I am persuaded by the applicant’s argument that if the respondent felt it was reasonable and necessary to approve payment for this medication it also should have allowed the applicant to investigate the reason or symptoms that made the treatment reasonable and necessary. According to the applicant’s prescription summary, Escitalopram was dispensed from April 2022 to December 2023 which refutes the respondent’s position that the applicant’s symptoms seemed to have resolved by December 2022. Unfortunately, Dr. Mandel, the respondent’s psychological IE assessor, noted the medication but did not provide an opinion referencing it.
55Finally, I also considered that from the respondent’s perspective it was reasonable and necessary to complete its own in-person psychological examination and that it also deemed it necessary to request a second in-person psychological examination.
56I find that the applicant has demonstrated on a balance of probabilities that the assessment is reasonable and necessary, sufficient to warrant an investigation.
Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Medex Health Services in a plan submitted May 4, 2022?
57I find the applicant is not entitled to this assessment.
58The applicant argues there should be an investigation because the applicant suffers from headaches, dizziness, as well as numbness and tingling in her left leg radiating from her lower back. These complaints were assessed at St. Joseph’s Health Centre (“SJHC”) in November 2023. Dr. David Fam of SJHC noted impressions regarding EMG and MRI studies completed in November 2023 (“first imaging”). Dr. Fam opined that the low back pain is likely myofascial and that the EMG studies were normal. Dr. Fam also opined that the MRI was also reassuringly relatively normal. Dr. Fam suggested it would be prudent to get an MRI of the cervical spine and brain (“second imaging”) because of the mechanism of injury, referring to the subject accident, and that there would be a follow up after it is completed.
59After further investigation in January 2024, Dr. Fam suggested further imaging by way of contrast enhanced CR sinus (“third imaging”) to explore a possible nasopalatine duct cyst. Since there is nothing about any nexus between this recommendation for the third imaging, a nasopalatine duct cyst, and the subject accident, I am satisfied that Dr. Fam has investigated the applicant’s complaints as they may relate to the accident. Since Dr. Fam’s recommendation for MRI of the cervical spine and brain came as a result of the mechanism of injury being the subject car accident, it deserved to be acted upon and investigated and it was within the first and second imaging investigations.
60The respondent argues that there is no reasonable possibility that the applicant suffers from a neurological condition. The respondent also points to the applicant complaining of headaches brought on after sitting for extended periods of time, which the respondent suggests is not connected to a neurological condition. The respondent also makes other arguments, including that its own assessors did not find a neurological condition. Since it is not necessary for the applicant to prove the actual existence of a condition my analysis is focused on if there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment. In this regard, I am persuaded that Dr. Fam’s records confirm that the first imaging and second imaging were completed as a result of the subject accident. However, they did not lead to an opinion that a neurological assessment is reasonable and necessary because there was no objective evidence that an accident-related neurological condition exists. The accident-related imaging completed was deemed normal by Dr. Fam.
61While the applicant provided the respondent’s denial letter dated June 29, 2022, she did not provide me with an OCF-18 for this plan to review in determining if the plan is reasonable and necessary.
62I find that the applicant has not demonstrated on a balance of probabilities that the assessment is reasonable and necessary, sufficient to warrant an investigation.
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Medex Health Services in a plan submitted January 30, 2023?
63In my view, it is not necessary to separately engage with whether there was sufficient evidence to warrant investigation of chronic pain since I have already engaged with chronic pain extensively in previous paragraphs. For brevity, I find that the applicant has demonstrated on a balance of probabilities that the assessment is reasonable and necessary, sufficient to warrant an investigation.
Is the applicant entitled to $1,100.00 for physiotherapy services, proposed by Medex Health Services in a plan submitted January 31, 2023?
64I find the applicant is entitled to physiotherapy services proposed in this plan.
65The applicant submits that an active exercise program was supported by Dr. Karmy and Dr. Li. I note that Dr. Sim also recommended being active to help manage the applicant’s chronic pain. The recommendation to exercise and be active to manage the applicant’s chronic pain, for which she began receiving nerve block injections, is persuasive in establishing the applicant would benefit from further physiotherapy services.
66The plan’s goals are to reduce the applicant’s pain and to help the applicant return to her activities of daily and normal living. It also notes that previous physiotherapy treatment reduced the applicant’s pain complaints. I find that the plan’s goals quite closely mirror the opinions and recommendations of the chronic pain specialist CNRs from the RCP Clinic.
67For the reasons above, I find that the applicant has demonstrated on a balance of probabilities that the plan is reasonable and necessary.
Interest
68The applicant is entitled to interest on any overdue benefits in this decision pursuant to s. 51 of the Schedule.
ORDER
69I find that:
i. The applicant’s accident-related injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is entitled to the plans in dispute for a psychological assessment, a chronic pain assessment, and for physiotherapy services, plus interest pursuant to S. 51 of the Schedule.
iii. The applicant is not entitled to the plan for a neurological assessment.
Released: April 30, 2025
__________________________
Amar Mohammed
Adjudicator