Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 162

FSCO A15-003154

BETWEEN:

MAJID KHANEHSHIR

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

Before:

Arbitrator Anne Morris

Heard:

In person at Hamilton, Ontario on March 30 and 31, 2015 and by written submissions completed on April 7, 2016

Appearances:

Mr. Vikram Bhandari participated for Mr. Majid Khanehshir

Ms. Lisa Pool participated for Certas Direct Insurance Company

Issues:

The Applicant, Mr. Majid Khanehshir, was injured in a motor vehicle accident on November 7, 2014 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is the Applicant entitled to payment for the cost of an attendant care assessment in the amount of $1,131.44 pursuant to an assessment and treatment plan (OCF-18), dated December 12, 2014?
Is the Applicant entitled to payment for the cost of a psychological assessment in the amount of $1,995.33 pursuant to an OCF-18, dated February 25, 2015?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

The Applicant is entitled to payment for the cost of an attendant care assessment in the amount of $1,131.44 pursuant to an assessment and treatment plan (OCF-18), dated December 12, 2014.
The Applicant is entitled to payment for the cost of a psychological assessment in the amount of $1,995.33 pursuant to an OCF-18, dated February 25, 2015.
The Insurer is liable to pay a special award in the amount of $1,083.42.
The Applicant is entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Issues Background

Whether or not the Applicant’s injuries fell within the Minor Injury Guideline (“MIG”) was an issue in dispute in this Arbitration until February 2016, when the Insurer removed the Applicant from the MIG. This is according to the oral submissions of the Applicant, not disputed by the Insurer.

Whether or not the Applicant was entitled to chiropractic treatment in the amount of $1,851.41 pursuant to an assessment and treatment plan, dated December 12, 2014, was initially an issue in dispute in this Arbitration, but the parties agreed at the outset of the Hearing that this treatment was paid within the MIG pursuant to an OCF-23 submitted after the OCF-18 was denied. That issue was therefore withdrawn.

The Applicant advised the Insurer in advance of the Hearing that he would be seeking a special award, and this issue was added at the Hearing.

The remaining substantive issues besides the special award and expenses, then, are entitlement to an attendant care assessment, dated December 12, 2014, a little over a month after the accident, and a psychological assessment, dated February 25, 2015, about three and a half months after the accident.

Chronology

The accident occurred on November 7, 2014.

Dr. Luela Louis, a health practitioner with Toronto Medical Centre, completed a disability certificate (OCF-3), dated December 12, 2014, and faxed a copy to the Insurer on January 20, 2015 as shown in the clinical notes and records of Toronto Medical Centre.² Part 8 of the OCF-3 dealing with “Prior and Concurrent Conditions” notes the following: “Patient’s health history is significant for prior left ankle fracture, left forearm fracture, right hand fracture, right forearm fracture, right forearm surgery, nerve repair, surgery in left hand, brain injury in 2003, depression and asthma”. Part 8 also notes: “Patient reported being on ODSP for PTSD and Manic Depression”.

An office administrator from Toronto Medical Centre wrote to Dr. Oril Nadel on December 17, 2014 requesting medical records, as appears from the clinical notes and records of the Applicant’s family doctor, Dr. O’Mara.³ The request from Toronto Medical Centre referred to is stamped: “Faxed January 6, 2015”.

The office of the Applicant’s family doctor sent a three page document headed “Personal Medical Profile”, dated January 6, 2015, to Toronto Medical Centre. This document appears both in the clinical notes and records of Dr. O’Mara⁴ and the clinical notes and records of Toronto Medical Centre.⁵ Dr. O’Mara testified at the Hearing that the purpose of the “Personal Medical Profile” was to provide a “snapshot” of a patient’s medical issues. This would assist an attending doctor who was not the patient’s regular doctor.

Toronto Medical Centre sent the Personal Medical Profile, dated January 6, 2015, to the Insurer on January 6, 2015, as appears from a fax cover sheet, dated January 6, 2015.⁶ The number of pages sent including the cover sheet was four. The parties agreed at the outset of the Hearing that the documents in the Arbitration briefs were evidence, and no evidence was led that the Personal Medical Profile, dated January 6, 2015, was in fact not sent to the Insurer.

The Personal Medical Profile of January 6, 2015 includes a section headed “Past Medical History”. There is a note in this profile that the Applicant became Dr. O’Mara’s patient in 2013. There is a reference to an assault leading to a traumatic brain injury in 2005 with “cognitive difficulties, slurred and slow speech, auditory hallucinations”. There is a reference to what appears to be a psychiatric consultation in October 2012, with a Dr. Zalan, which indicates queries of PTSD, panic disorder with agoraphobia, bipolar disorder, anxiety, and “rule out cannabis induced psychosis”. There is also reference to a consultation in January 31, 2014, with Dr. Sokolov of CAMH. The profile states as follows with respect to the consultation with Dr. Sokolov:

-difficult to arrive to a clear diagnosis given that he was intoxicated at the time of the interview. He does describe symptoms consistent with depression, cognitive difficulties, and PTSD-like symptoms. His so-called associative disorder could be explained by paranoia secondary to cannabis. His cognition also could be affected by the cannabis. Consider referring him for a psychiatric reassessment to the Head Injury Clinic at St. Mikes Hospital if he discontinues the cannabis. He is, however, unwilling to do so. I cannot make any specific medication recommendations.

I note the reference to a reassessment at the head injury clinic which tends to suggest in this note that an earlier assessment at the head injury clinic had taken place.

There is also a section of the Past Medical History headed “MSK”. References in this section include to a left hand stabbing in 2005, a left ulna fracture “plate in situ” in 2006 and a fifth metacarpal base fracture in the right hand in 2013.

The OCF-18 for an attendant care assessment in the amount of $1,131.44 is dated December 12, 2014 and signed by Dr. Luela Louis.⁷ It was received by the Insurer on January 20, 2015 and denied for the reason: “Insufficient medical documentation on file”.⁸ Part 7 of the attendant care OCF-18 dealing with “Prior and Concurrent Conditions” notes: “Patient’s health history is significant for prior left ankle fracture, left forearm fracture, right hand fracture, right forearm fracture, right forearm surgery, nerve repair surgery in left hand, brain injury in 2003, depression and asthma”.

The OCF-18 in the amount of $1,851.41 for chiropractic treatment discussed above is dated December 12, 2014 and was received by the Insurer on January 20, 2015. The Insurer arranged an Insurer Examination with respect to this treatment plan “to assist in determining whether the plan relates to injuries from the accident and is reasonable and necessary as we have insufficient information to make this determination”.⁹

The Insurer requested “Pre-Accident Family Physician Clinical Notes and Records” and a “Police Report” pursuant to s. 33 of the Schedule by letter, dated January 28, 2015.¹⁰

Psychologist, Kenneth Keeling, of Toronto Medical Centre prepared an OCF-18, dated February 25, 2015, which proposed a psychological assessment.¹¹ The “Additional Comments” section of the OCF-18 contains about a page and a half of “Clinical Information.” The information appears to relate to complaints associated directly with the accident. It contains the following statement: “[the Applicant] stated that his mental health prior to the accident was good and he has not experienced any previous mental or emotional health problems”. This statement is at odds with the disability certificate prepared by Dr. Luela Louis of Toronto Medical Centre, and at odds with the Personal Medical Profile received by Toronto Medical Centre from the Applicant’s family doctor, both of which documents are discussed above. I find this troubling, given the evidence of a pre-accident psychological history alluded to in the Personal Medical Profile, and referred to in the disability certificate.

The Insurer denied the OCF-18 for a psychological assessment by letter, dated March 27, 2015, for the reason: “We are arranging an Insurer Examination to assist in determining whether the plan relates to injuries from the accident and is reasonable and necessary as we have insufficient information to make this determination”.¹²

The Applicant underwent Insurer Examinations with Dr. Steven Kent Baker, a physiatrist, and with Dr. Lawrence P. Tuff, a psychologist. Both reports were dated July 2, 2015 and were sent to the Applicant followed by an OCF-9 (Explanation of Benefits), dated July 4, 2015. The OCF-9 advised that, based on the reports, the medical and rehabilitation benefit (for chiropractic treatment) was considered not reasonable or necessary. The Applicant’s injuries were considered minor as per the MIG. The OCF-9 also advised that, based on Dr. Tuff’s report, the request for a psychological assessment by Dr. Keeling was not considered reasonable or necessary.

From the evidence contained in the Arbitration briefs, extensive family doctor records were sent to the Applicant’s lawyer in June 2015. According to the Insurer’s lawyer, Ms. Pool, and not contradicted by the Applicant, these records were sent to the Insurer in December 2015. I heard no further evidence on this point.

The Insurer forwarded the records to the Insurer assessors, Dr. Baker and Dr. Tuff, but the records did not alter the opinion of the doctors as indicated in the addendum reports, both dated February 22, 2016. The insurer examination reports are discussed further below.

As noted above, the Insurer took the Applicant out of the MIG in February 2016. The Insurer did not, however, alter its position with respect to the denial of the attendant care assessment and psychological assessment, maintaining that they are not reasonable and necessary at present and were not reasonable and necessary based on the information available to the Insurer at the time they were submitted.

Insurer Examination Reports

Dr. Tuff’s initial assessment is dated April 23, 2015.¹³ At page 2 of his report, Dr. Tuff indicated that the primary purpose of the assessment was to determine whether the Applicant had sustained a “minor injury” as a result of the accident. He also indicated that the secondary purpose was to determine whether the OCF-18 by Dr. Keeling for a psychological assessment was reasonable and necessary with respect to the accident.

Dr. Tuff indicated that the medical brief provided to him was small. The documents of particular significance to him, and reviewed by him in the report, were the disability certificate (OCF-3), dated December 12, 2014, by Dr. Luela Louis referred to above and the treatment and assessment plan (OCF-18) of Dr. Keeling, dated February 25, 2015. The other documents listed in the appendix to the report were the two treatment plans prepared by Dr. Luela Louis, dated December 12, 2014.

The Personal Medical Profile, dated January 6, 2015, provided by the family doctor and forwarded to the Insurer as discussed above, appears not to have been forwarded to Dr. Tuff. It is in any event not referred to in his report.

As regards the disability certificate, Dr. Tuff stated that no prior and/or concurrent conditions were identified. As noted earlier, the disability certificate under Part 8, headed “Prior and Concurrent Conditions”, identifies prior fractures, a brain injury in 2003, depression and asthma. This part also notes that the patient reported being on ODSP for PTSD and Manic Depression.

It may be that Dr. Tuff was misled by the statement in Dr. Keeling’s OCF-18, referred to above, that the Applicant had no prior mental or emotional health problems, equally at odds with the information then available. The interviewer who provided the information for the OCF-18, however, was likely conducting what can reasonably be inferred to have been a more cursory interview for the purposes of requesting funding for a psychological assessment, than might be expected from someone conducting an actual psychological assessment. Dr. Tuff was retained to do an actual psychological assessment, and it is difficult to give a lot of weight to that assessment when Dr. Tuff appears not to have carefully reviewed the small amount of documentation provided to him. The assessment is also flawed in that Dr. Tuff appears not to have been provided with the Personal Medical Profile of January 6, 2015 from the family doctor, provided to the Insurer.

Dr. Tuff’s report notes under “Employment Background” that the Applicant had not worked for well over a decade due to an assault. Under “Pre-accident Health History”, the Applicant’s report of having fallen down stairs in his early 20s, injuring his arm, is noted. The Applicant’s report of having been involved in an altercation in 2002 or 2003, in which he sustained serious injuries, including a traumatic brain injury, is noted. Some details about the assault are noted, including hospitalization and psychological counselling in relation to the incident, as well as other acquired brain injury rehabilitation. The Applicant’s report that he was diagnosed with bipolar disorder after the assault is noted.

Dr. Tuff noted the Applicant’s post motor vehicle accident complaints of pain in various areas, increased migraine headaches, increased anxiety attacks, decreased sleep and appetite, and increased panic attacks. Dr. Tuff administered various tests, the results of which are difficult to follow, but Dr. Tuff appears to conclude that the responses were for the most part invalid and that “disingenuous symptom reporting was strongly suggested.” His opinion was that no accident-related DSM-5¹⁴ diagnosis could be objectively substantiated at that time. He appears not to have considered whether the pre-accident mental health difficulties reported by the Applicant might have affected the responses to the tests.

Dr. Tuff opined that no psychological impairments that would fall outside the Schedule definition of “minor injury” were identified. As regards a pre-existing medical condition, Dr. Tuff indicated that there was no supportive documentation to support the reported pre-accident history of bipolar disorder, anxiety, migraine headaches and acquired brain injury. He found that there was insufficient evidence to support a psychological assessment for the purposes of treatment planning.

On July 2, 2015, Dr. Tuff completed a “paper review” for the purpose apparently of commenting on the Applicant’s entitlement to a non-earner benefit.¹⁵ No significant additional medical documentation was reviewed in this report. This report is as unpersuasive as the April 2015 report discussed above. Dr. Tuff again appears not to have carefully reviewed the disability certificate of December 2014 as discussed above, and again does not appear to have the January 2015 Personal Medical Profile available to him. He concluded in this report that there was no objective evidence from a psychological perspective that the Applicant met the test for that benefit.

Dr. Tuff did a further paper review of the Applicant’s file on February 22, 2016.¹⁶ This time he had before him the clinical notes and records of Dr. O’Mara. He indicated that his comments had generally been reserved for those aspects of the file that fell within his particular area of expertise. He reproduced several entries from Dr. O’Mara’s records beginning on January 16, 2015. He did not excerpt any entries prior to the motor vehicle accident. The only reference to pre-accident psychological history is that briefly summarized in a February 12, 2015 entry by Dr. O’Mara as follows:

2012 Oct: query PTSD, query Panic Disorder with Agoraphobia, query Bipolar Disorder, query Anxiety, rule out Cannabis-induced Psychosis – Dr. R. Zalan, NYGH – was previously treated (Gabapentin, Seroquel, Venlafaxine, Remeron) but stopped about 3.5 years ago (fear of s/e; COO states stopped February 2013)

2014; seen at CAMH

The 2012 report from Dr. Zalan and the 2014 CAMH report are both contained in the clinical notes and records of Dr. O’Mara which are located in the Insurer’s Arbitration Brief, Section C, Tab 1. The CAMH report is at p. 122 and Dr. Zalan’s report starts at p. 152. If Dr. Tuff reviewed these reports in any detail, it is not apparent from his paper review report. Dr. Sokolov indicated in the CAMH report, dated January 31, 2014, that while it was difficult to get a clear diagnosis given that the Applicant was intoxicated at the time, “he does describe symptoms consistent with depression, cognitive difficulties, and PTSD-like symptoms…” He noted that the Applicant’s symptoms could be affected by cannabis.

Dr. Tuff concluded that the additional information contained in Dr. O’Mara’s records did not alter his opinion. He again referred to the psychological testing conducted by him at the initial assessment, and to the Applicant’s responses to supplemental symptom validity measures which, in his view, raised significant concerns regarding disingenuous symptom reporting and/or gross symptom magnification. He does not appear to have considered whether cognitive difficulties, whatever their source, might influence psychological test scores and validity testing.

He concluded this last paper review report by indicating that while “a more up to date psychological assessment for the purposes of treatment planning may be entirely reasonable, sufficient rational data have not been provided to support same.” I find this statement to be quite cryptic, but unfortunately Dr. Tuff, although subpoenaed, was unavailable to testify at the Hearing to provide clarification.

The other insurer examiner was Dr. Baker, who is a specialist in Physical Medicine and Rehabilitation. The purpose of Dr. Baker’s assessment was to address the chiropractic treatment plan of December 12, 2014 and to address the MIG. These issues are no longer in dispute, as the Insurer removed the Applicant from the MIG in February 2016. Dr. Baker also addressed the issue of non-earner benefits, an issue which is also not before me.

Other Evidence

Dr. O’Mara testified at the Hearing and confirmed the contents of the extensive clinical notes and records provided by her office.

The Applicant gave oral testimony, and his evidence was at times vague and occasionally argumentative. In this regard, I note his history of psychological difficulty as evidenced by the family doctor records.

Dr. Justin Guy, a chiropractor, who conducted a Functional Abilities Assessment, dated October 24, 2015,¹⁷ in relation to the Applicant, testified as to the worker’s physical limitations demonstrated in the assessment.

Joshua Pugen testified with respect to his Social Emotional Assessment Report, dated February 16, 2016, in which he commented on the Applicant’s ongoing relationships and emotional difficulties.¹⁸

ANALYSIS

Attendant Care Assessment

The OCF-18 for an attendant care assessment, dated December 12, 2014, was denied for the reason: “Insufficient medical documentation on file” as noted earlier. Under section 14 of the Schedule, a person whose injuries fall within the MIG is not entitled to attendant care benefits. The Insurer removed the Applicant from the MIG in February 2016, but has maintained its denial of funding for the attendant care assessment.

The Insurer submitted that just because the Insurer removed the Applicant from the MIG does not mean that the Applicant’s injury was not minor. It appears, without having specific evidence to point to in this regard, that the reason the Applicant was removed from the MIG was his pre-existing condition. I therefore interpret the Insurer to mean that although the Applicant was removed from the MIG because of his pre-existing condition, his injuries sustained in the accident are nevertheless minor, or at least that there is insufficient evidence to the contrary in circumstances where the burden of proof lies with the Applicant. The Insurer submitted that the family doctor’s clinical notes and records after the accident mirrored the clinical notes and records before the accident, and that causation on a “but for” basis was not proven. By this, I understand the Insurer to mean that the Applicant has not proven that “but for” the accident, he would not have suffered the conditions described in the post-accident medical documentation and reports.

The MIG states as follows with respect to pre-existing conditions:

An insured person’s impairment does not come within this Guideline if the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the SABS or is limited to the goods and services authorized under this Guideline…

In my view, the evidence of a pre-existing condition in this case is compelling in the sense that the pre-existing injuries and conditions documented in the family doctor records are serious ones. They include a brain injury, with evidence that this was treated some 10 years earlier at St. Mike’s Hospital. There is evidence of psychiatric diagnoses and treatment, and psychiatric referrals (to CAMH as discussed above) as recently as early 2014. There is also evidence of significant pre-existing physical injuries.

In my view, these significant injuries are of the kind that would likely prevent the Applicant from achieving maximum medical recovery if subjected to the $3,500.00 MIG limit.

That is not to say that removing the Applicant from the MIG necessarily entitles him to every benefit applied for. Medical and rehabilitation benefits still have to meet the “reasonable and necessary” test, and other benefits also have to meet the various tests for those benefits.

In this case, a request was made for an attendant care assessment – not attendant care benefits. Payment of attendant care benefits would involve a consideration of whether the need for attendant care benefits arose as a result of the accident. An assessment, on the other hand, seems reasonable and necessary to me in circumstances as here, where the pre-existing conditions are of such significance that it is likely that the MIG limitations would not apply. It is reasonable and necessary in order to determine whether the Applicant is entitled to attendant care benefits because of the accident.

The Insurer submitted that it did not receive the family doctor’s clinical notes and records until December 2015. When these records were received, they were reviewed and the Applicant was removed from the MIG. The Insurer submitted that by that time, while a request for an updated attendant care assessment might be reasonable, the request made in December 2014 was not reasonable and necessary as the Applicant had still been considered within the MIG at that time.

This case is different, however, from the Arruda¹⁹ case cited by the Insurer. The Arbitrator in Arruda found that initially the Insured’s injuries fell within the MIG but that a chronic pain condition developed over time, taking the Insured’s injuries outside of the MIG. Earlier treatment plans were found not to have been reasonable and necessary while the Insured was still within the MIG.

This is a case of a condition which pre-existed the accident, not one which developed over time afterwards. If the assessment was reasonable and necessary at the time it was submitted, it was because of the pre-existing condition itself. The lack of proof of the pre-existing condition, as perceived by the Insurer, did not mean that the condition did not exist, and did not render the assessment unreasonable or unnecessary. Late proof did not render the assessment unnecessary at the time it was submitted.

I note that particularly with an attendant care assessment, there is immediacy to the need for an assessment since attendant care benefits are not payable for the period before a Form 1 (assessment of attendant care needs) is received by the Insurer.²⁰

It appears to me in that regard, from the evidence discussed above, that Toronto Medical Centre in fact provided compelling evidence of a pre-existing condition to the Insurer in January 2015 by way of the OCF-3 which referred to the pre-existing conditions. These pre-existing conditions were documented by way of the Personal Medical Profile, dated January 6, 2015, which the evidence shows Toronto Medical Centre then forwarded to the Insurer. This was done in January 2015. In my view, the Insurer should have approved the OCF-18 for an attendant care assessment at that time. It certainly should have approved it when it removed the Applicant from the MIG.

Psychological Assessment

I find that the OCF-18 for the psychological assessment was also reasonable and necessary. There was evidence of a pre-existing and significant psychological condition, documented prior to the accident by the family doctor. Again, the request was for an assessment. An assessment was and remains reasonable and necessary to determine whether the Applicant required psychological treatment as a result of the injury. I find this OCF-18 a little more troublesome, however, in that the OCF-18 states that the Applicant reported good mental and emotional health prior to the accident. The reasons for that statement can only be speculated upon since Dr. Keeling, who signed the OCF-18, did not testify. I note, however, that Toronto Medical Centre, with whom Dr. Keeling is associated, had already sent the Insurer the OCF-3 with the references to a pre-existing condition as well as the Personal Medical Profile of January 6, 2015.

Special Award

Section 282(10) of the Insurance Act provides as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.

I find that this is an appropriate case in which to make a special award against the Insurer, having regard to the serious nature of the Applicant’s pre-existing condition, the information available to the Insurer at the time, and having regard to the nature of the OCF-18s for which the Insurer withheld approval. The OCF-18s are for assessments in amounts which appear reasonable. The assessments seem reasonable to determine whether the need for attendant care benefits or psychological treatment exists as a result of the accident. In my view, the Insurer had sufficient information to approve the assessments in January 2015. Whether or not benefits arising from the assessments might be payable may very well have required more documentation than was available at that time, but the reasonableness of the assessments was apparent without an intense scrutiny of prior medical records to determine if any applicable causation test had been met. Even when extensive records became available in December 2015, the Insurer continued to maintain the denial of the assessments, up to and including the Hearing. This delay was unreasonable in my view.

I calculate the special award to be $1,083.42 applying a special award percentage of 33% and using the formula expressed in Liberty Mutual Insurance Company and Molly R. Persofsky et al.²¹ The formula used is as follows: special award % x (benefits that were unreasonably withheld or delayed + interest on these benefits calculated under the Schedule + compound interest calculated according to s. 282(10)). I consider 33% to be an appropriate percentage in light of all of the circumstances discussed.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

June 6, 2016

Anne Morris

Arbitrator

Date