Court File and Parties
COURT FILE NO.: CV-13-117039-00 DATE: 20160826 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: SAROJA ELAYATHAMBY Plaintiff/Responding Party – and – STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant/Moving Party
Counsel: Elisabeth van Rensburg, for the Plaintiff Ashu Ismail, for the Defendant
HEARD: August 23, 2016
Reasons for Decision
GILMORE J.
Overview
[1] This is a summary judgment motion brought by the defendant State Farm Mutual Automobile Insurance Company (State Farm).
[2] On February 12, 2007, the plaintiff Saroja Elayathamby (the plaintiff) was in motor vehicle accident. As a result of the accident, she claimed and received statutory accident benefits from State Farm.
[3] A treatment plan was submitted on behalf of the plaintiff by Dr. Douglas Stirke, Chiropractor, and subsequently denied by State Farm. A mediation of the treatment plan at the Financial Services Commission of Ontario was unsuccessful. After the failed mediation, the plaintiff issued the within claim on December 2, 2013.
[4] The treatment plan, which forms the subject matter of the claim, was dated April 29, 2013, and sought chiropractic treatments totalling $4,090. In addition, the respondent seeks a declaration that she is entitled to future medical rehabilitation benefits for an indefinite period due to her continued disability.
[5] State Farm moves for summary judgment to dismiss the plaintiff’s claim on the basis that the request for treatment was not reasonable and necessary as a result of the accident. Further, it is unnecessary for the plaintiff to ask for declaratory relief because the plaintiff is entitled to medical rehabilitation benefits until February 12, 2017 as long as such treatment is reasonable and necessary. As such, this is an inappropriate case for summary judgment as there is no genuine issue for trial and the claim should be dismissed.
[6] The plaintiff’s position is that she has delivered three experts’ reports to support her claims that the proposed treatment plan is reasonable and necessary and that she continues to suffer from a disability as a result of the accident. Further, there is conflicting evidence from at least five witnesses that would likely be qualified as experts and the assessment of credibility of those witnesses can only be determined at trial.
Background Facts
[7] Subsequent to the February 12, 2007 accident, the plaintiff was paid statutory accident benefits totalling $34,703.62. Those benefits included medical rehabilitation, housekeeping expenses, income replacement benefits and assessments and examinations. Nine treatment plans for the plaintiff were approved between February 28, 2007 and February 8, 2010. In addition the plaintiff was provided a one year gym membership and six personal training sessions. No further treatment plans were submitted until the subject treatment plan in 2013.
[8] In 2012 the plaintiff had a slip and fall accident which resulted in a back injury. At her discovery on November 21, 2014 she gave evidence that she went to the hospital and received pain medication for the slip and fall. She reported her ongoing lower back pain as 7/10 and her ongoing mid-back pain as 8/10 as of the date of the discovery. [^1]
[9] The plaintiff offers medical evidence to support her contention that she continues to be disabled due to the 2007 accident. That evidence includes the following:
a. The expert report of Dr. Berbrayer (physiatrist), dated August 7, 2009; the plaintiff provided Dr. Berbrayer a complete medical history and underwent a physical examination. Dr. Berbrayer reviewed various documents including hospital reports, notes and records from Dr. Vasmima Ali, the reports of Dr.’s Chan Kumhare and McComas as well as a chiropractic assessment report dated November 12, 2008 and an OHIP summary. Dr. Berbrayer concluded that the plaintiff had chronic pain in both her upper and lower back. He concluded that the injuries were serious and permanent and related to the 2007 motor vehicle accident;
b. The plaintiff also relies on consultation report of Dr. Kachooie (physiatrist), dated February 8, 2010, which indicates that the plaintiff suffered from mild residual whiplash, left rotator cuff tendonitis, thoracic pain and an SI joint disorder. Dr. Kachooie recommended interventional pain management techniques to ensure successful rehabilitation and improve the plaintiff’s compliance with exercise and mobility;
c. The expert report of Dr. Tommy Chan (orthopedic surgeon) dated May 19, 2011, indicated that the plaintiff suffered upper back pain from soft tissue injuries and lower pain from mechanical back pain. He concluded that her symptoms at that time were a direct result of the 2007 accident and that the plaintiff carried a poor prognosis. Dr. Chan recommended that the plaintiff needed to be engaged in an exercise-based program on a permanent basis to maintain her current status. He opined that her lower back symptoms would likely deteriorate as she aged.
[10] State Farm provided evidence by way of an orthopaedic surgeon assessment report completed by Dr. Pervez Ali on June 24, 2013. The examination was completed in order to determine whether the treatment plan submitted by the plaintiff was reasonable and necessary as a result of the accident. Dr. Ali opined that the plaintiff had reached pre-injury status. He concluded that the treatment and assessment plan of Dr. Stirke, dated April 29, 2013, was neither reasonable nor necessary.
[11] Dr. Ali’s view based on his report was that the plaintiff’s residual mechanical discomfort was best accommodated by carrying out an independent self-directed exercise program and not a formal facility-based rehabilitation. It was his view that “the patient is far past the time for therapeutic improvement to be expected from formal facility-based rehabilitation of the type that is recommended in the Treatment and Assessment plan in dispute.” [^2]
Issues in Argument
Issue 1: Is this case appropriate for a summary judgment motion?
[12] It is this court’s view that the within case more than meets the guidelines set out in Hryniak v. Mauldin, 2014 SCC 7. The court must advert to the rules being interpreted “broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims” so long as it is just and fair to do so. Inferred by this is consideration of the appropriate use of judicial resources. The amount in question is $4,090. I agree with State Farm’s position that a full trial is unnecessary and bordering on a misuse of judicial resources.
[13] The issues in this case are discrete and expert evidence is available on which this court can reasonably rely with respect to a just result. In addition to the expert’s reports, the transcript from the plaintiff’s discovery is available which also provides significant information to the court in order to allow it to weigh evidence and draw reasonable inferences from the evidence.
[14] I do not agree with the plaintiff’s position that an assessment of credibility is required for the expert witnesses. The fact remains that none of the expert witnesses (including those of the plaintiff) recommended the type of treatment sought by the plaintiff. The emphasis was on active, rather than passive treatment as well as independent treatment such as self-directed exercise.
[15] In all the circumstances I find that this is an appropriate case for summary judgment motion.
Issue 2: Is the treatment plan reasonable and necessary as a result of the accident?
[16] There is no dispute that this plaintiff is entitled to medical rehabilitation benefits up to $100,000 for a 10-year period following the accident so long as she has sustained impairment and so long as the expense is reasonable and necessary as a result of the accident. Neither counsel disputed that this is a proper interpretation of the statutory accident benefits schedule for accidents which occurred on or after November 1, 1996.
[17] There is also no dispute that the plaintiff has already received statutory accident benefits of $18,344.81.
[18] It is the plaintiff’s burden to show that the plan is reasonable and necessary. It is my view that the plaintiff has not met that burden for the following reasons:
- While the reduction or alleviation of pain is a reasonable objective for treatment, that does not mean that chiropractic treatment is the medically reasonable remedy. Dr. Chan’s report confirms that the plaintiff suffers from chronic pain. However, his recommendation in 2011 was that an exercised-based program would be best. According to Dr. Chan the plaintiff’s lower back symptoms were unlikely to respond to treatment. However her upper back symptoms, as of 2011, were possibly able to respond to an exercise-based program. He recommended an exercise physiotherapist or kinesiologist. Dr. Chan did not mention chiropractic treatments with respect to alleviating the chronic pain.
- Dr. Kachooie recommended interventional pain management techniques as part of successful active rehabilitation. Chiropractic treatment is not active rehabilitation and can be inferred to be more in keeping with a passive form of treatment.
- In 2009 Dr. Berbrayer confirmed the plaintiff’s pain but made no recommendations with respect to chiropractic treatment.
- The plaintiff’s family doctor of 24 years recommended physiotherapy. When the plaintiff said she could not afford physiotherapy her family doctor recommended stretching. [^3]
- The report of Dr. Ali is the most recent with respect to an assessment of the plaintiff’s condition and pain. He opines that the plaintiff is functional and that the treatment plan dated April 29, 2013, was not “appropriate for or consistent with the severity of the insured’s injuries or conditions.” He concluded that the plaintiff did not have any ongoing orthopedic impairment and did not require ongoing facility-based rehabilitation. [^4]
[19] The plaintiff urges this court not to rely on Dr. Ali’s report because there is no indication as to what documents he had relied upon to form his opinion. I disagree. The plaintiff is required to put her best foot forward in the context of a summary judgment motion. The plaintiff has not provided any report that post-dates the 2012 slip and fall accident which would address possible causation issues related to the plaintiff’s reported pain at discovery. In any event, Westerhof v. Gee, 2015 ONCA 206 [^5] permits reliance on Dr. Ali’s report as a contemporaneous opinion.
[20] It may be that the plaintiff has a poor prognosis as indicated by Dr. Chan, but the type of treatment sought by the plaintiff to address her prognosis is not the type of treatment recommended by those professionals who have examined her.
[21] In summary, the plaintiff’s reports, leaving aside the unresolved causation issue, do not say anything that is markedly different from Dr. Ali’s report; that an active and not a passive type treatment would best suit the plaintiff’s chronic pain.
Conclusion
[22] In conclusion, none of the medical professionals involved with the plaintiff recommended passive-type treatments such as chiropractic adjustment as an alleviation of her pain. I therefore accept Dr. Ali’s conclusion that such treatments are neither reasonable nor necessary.
[23] With respect to the issue of declaratory relief, the plaintiff has the ability to apply for further medical rehabilitation benefits up to the ten year anniversary of her 2007 accident. It is therefore not necessary for this court to make any declaration about the plaintiff’s ability to apply for any further medical rehabilitation benefits.
Final Order
[24] Given the above, State Farm’s motion is allowed and the plaintiff’s claims are hereby dismissed.
Costs
[25] If the parties cannot agree on costs, I will receive written submissions on a seven day turnaround, commencing with the moving party, followed by responding submissions and then reply submissions, commencing fourteen days from the date of release of this decision. Costs submissions shall be no more than three pages in length exclusive of any Bill of Costs or Offers to Settle. If no submissions are received within 35 days from the date of this decision, the issue of costs will be deemed to have been settled as between the parties.
Madam Justice C.A. Gilmore Released: August 26, 2016