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:
R.C.
Appellant(s)
And
Certas Direct Insurance Company
Respondent
DECISION
PANEL:
Rebecca Hines, Adjudicator
APPEARANCES:
For the Applicant:
Victoria Gorbenko, Paralegal
For the Respondent:
Patrick Baker, Counsel
HEARD:
In Writing on: December 3, 2018
OVERVIEW
1The applicant, a 69 year old man was injured in an automobile accident on February 16, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant works [as] a bus washer, which is a physical job. Prior to the accident he suffered from type 2 diabetes but was not functionally limited in his activities of daily living. Following the accident he continued to work for financial reasons, however struggled with chronic lower back pain because of the accident. The applicant maintains that he requires ongoing therapy in order to function because it manages his pain. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference on July 18, 2018 but were unable to resolve the issues in dispute. This matter proceeded to this written hearing.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
i. Is the applicant entitled to the following medical benefits recommended by Mediwise Healthcare Clinic (Mediwise) in the following treatment plans (OCF-18s) for chiropractic treatment?
a) $3,355.20 ($3,180.60 approved) submitted on February 29, 2016 and denied by the respondent on March 18, 2016;
b) $3,086.94 submitted on March 30, 2016 and denied by the respondent on April 11, 2016;
c) $2,027.36 submitted on May 13, 2016 and denied by the respondent on May 20, 2016; and
d) $2,600.64 submitted on July 19, 2016 and denied by the respondent on July 28, 2016.
ii. Is the applicant entitled to a cost of examination in the amount of $612.79 for an attendant care assessment recommended by Denis Bishev in an OCF-18 submitted on March 16, 2016 and denied by the respondent on March 23, 2016?
iii. Is the applicant entitled to a cost of examination in the amount of $1,400.00 for a cognitive assessment recommended by Evgen Amchislavsky in an OCF-18 submitted on January 5, 2017 and denied by the respondent on January 13, 2017?
iv. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for an orthopaedic assessment recommended by Dr. Indech in an OCF-18 submitted on July 15, 2016 and denied by the respondent on August 3, 2016?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After reviewing the parties’ submissions and evidence, I order the following:
i. The applicant is entitled to payment for the following medical benefits and examination expenses:
a) All four OCF-18s for chiropractic treatment, physiotherapy and massage recommended by Mediwise plus interest (less the $174.60 which was not incurred on the first OCF-18 for $3,355.20);
b) The OCF-18 for the in-home assessment in the amount of $612.79 recommended by Denis Bishev plus interest; and
c) The orthopaedic assessment in the amount of $2,000.00 recommended by Dr. Indech plus interest.
ii. The applicant is not entitled to:
a) The cognitive assessment in the amount of $1,400.00 recommended by Evgen Amchislavsky.
Is the applicant entitled to the four OCF-18s for chiropractic treatment, massage and physiotherapy recommended by Mediwise?
5I find the applicant is entitled to payment of all four OCF-18s incurred for chiropractic treatment, massage and physiotherapy recommended by Mediwise.
6Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
7The applicant contends that he suffers from chronic low back pain as a result of the accident among other impairments and incurred all of the OCF-18s as he needed the treatment as it helped him manage his pain. He maintains that his need for past treatment was supported by Dr. Mughal, his family doctor, Dr. Indech, orthopaedic surgeon and Dr. Jacobs, chronic pain specialist. The applicant argues that the respondent denied the OCF-18s on the basis that his physical impairments are minor and fit within the Minor Injury Guideline (MIG). However, he was removed from the MIG as a result of a psychological impairment in November 2016. The applicant maintains that his physical impairments are not minor. Therefore, the respondent should have reconsidered its denial of the four OCF-18s.
8The respondent submits that the applicant’s physical impairments are minor and although he was removed from the MIG as a result of a psychological impairment, the OCF-18s for physical treatment are not reasonable or necessary. In addition, it argues that ongoing treatment was not recommended by his family doctor or any medical expert and the applicant has failed to demonstrate that each OCF-18 is reasonable and necessary. For the reasons that follow, I agree with the applicant and find the four OCF-18s reasonable and necessary.
9First, I find the goals of the OCF-18s reasonable to address the applicant’s accident related impairments. Further, I did not find the amounts of the OCF-18s excessive. Between February 29, 2016 and July 16, 2016, Mediwise submitted four OCF-18s for chiropractic treatment, massage and physiotherapy. With the exception of the total dollar amount and duration of each plan all four of the OCF-18s were practically identical. The activity limitations noted that the applicant’s range of motion was restricted and the goals of the OCF-18s was pain reduction and to return the applicant to his daily activities.
10The additional comment section on the OCF-18 also highlighted that the treatment assists with the applicant’s pain. I find this consistent with what the applicant reported to the other assessors including the doctors who completed the insurer examinations (IEs)1. I find that the goal to reduce the applicant’s pain to be a reasonable objective for the treatment.
11Second, Dr. Mughal, the applicant’s family doctor supported his need for ongoing treatment during the time frame the OCF-18s were submitted. This is reflected in the doctor’s clinical notes and records (CNRs). Dr. Mughal referred the applicant for physiotherapy twice on February 18, 2016 and May 21, 2016. The applicant’s reports of accident related pain were also consistently reflected in Dr. Mughal’s CNRs. In its submissions the respondent asserts that the applicant’s need for ongoing treatment is not supported by his family doctor or any medical expert. I found the respondent’s statement factually incorrect based upon the record before me. I find the applicant’s need for ongoing treatment was supported by his family doctor.
12Third, I found the applicant’s need for ongoing treatment supported by Dr. Indech and Dr. Jacobs. Dr. Indech assessed the applicant to determine whether his impairments were minor and past treatment was reasonable and necessary. In his report dated November 10, 2016, Dr. Indech determined that the applicant’s injuries were not minor because nine months had passed since the accident and his low back pain persisted. Moreover, it would also be exacerbated by his job as a bus washer [.] When asked if the past treatment the applicant received to date was reasonable and necessary as a result of the applicant’s accident related impairments Dr. Indech answered “yes”. This was the time frame the OCF-18s in dispute were incurred.2
13Dr. Indech opined that the applicant had not yet reached maximum medical recovery and that future physical treatment may be required. In his report dated February 15, 2017, Dr. Jacobs diagnosed the applicant with chronic lower back pain and recommended a multi-disciplinary treatment regime. I find the evidence of Dr. Indech and Dr. Jacobs contrary to the respondent’s statement that past or ongoing treatment was not supported by any medical expert.
14Finally, I preferred the report of Dr. Indech over the IE report of Dr. Marchuk, physiatrist dated May 13, 2016. Dr. Marchuk’s assessment took 25 minutes whereas Dr. Indechs’ took 2 hours and 45 minutes. I found Dr. Indech’s assessment more thorough as he reviewed diagnostic imaging and the applicant’s family doctor’s CNRs. Dr. Marchuk’s report was inconclusive as he states the applicant has not reached maximum medical recovery, and he was unable to comment about whether the OCF-18 was reasonable and necessary. Dr. Marchuk made recommendations for further investigation. However, no addendum report was submitted. For these reasons, I give Dr. Marchuk’s report less weight. The respondent did not submit any evidence to refute the conclusions reached in the reports of Dr. Indech or Dr. Jacob.
15I found the case law relied upon by the respondent distinguishable.3 In all of the decisions the adjudicator determined that the OCF-18s for continued treatment were not reasonable and necessary on the basis that there was no objective evidence to support it. In the present case, I have determined that there is.
16I find that the applicant has met his onus on a balance of probabilities that the four OCF-18s are reasonable and necessary because of his accident related impairments. Further, he is entitled to interest on the incurred OCF-18s.
Is the applicant entitled to the cost of examination in the amount of $2,000.00 for an orthopaedic assessment recommended by Dr. Indech?
17I find the applicant is entitled to payment of the incurred orthopaedic assessment in the amount of $2,000.00 recommended by Dr. Indech.
18Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. However, Section 25(1)5 provides that an insurer shall not pay more than $2,000.00 for conducting any one assessment.
19The applicant argues that the OCF-18 for the orthopaedic assessment is reasonable and necessary as he suffers from severe back pain because of the accident. Further, he sustained an orthopaedic injury which required further investigation by an orthopaedic specialist. The applicant also contends that the respondent denied the OCF-18 on the basis that the applicant’s injury was within the MIG. Since he was removed from the MIG the respondent should fund the OCF-18. The applicant has incurred the cost of this assessment.
20The respondent submits that the orthopaedic assessment is not reasonable and necessary as the applicant has failed to produce any evidence that he has sustained an orthopaedic injury because of this accident. Further, it maintains that the fact that Dr. Indech does not make any treatment recommendations proves that the assessment was not reasonable and necessary. Finally, Dr. Indech’s report had no bearing on the respondent’s decision to remove the applicant from the MIG, which was entirely based on the psychological complaints found in the family doctor's CNRs. As a result, the report of Dr. Indech serves no medical or rehabilitative purpose and is not reasonable and necessary. For the following reasons I agree with the applicant and find the orthopaedic assessment reasonable and necessary.
21First, as already highlighted above Dr. Mughal’s CNRs support that the applicant continued to report severe lower back pain because of the accident. I find it reasonable for the applicant to be assessed by an orthopaedic specialist to investigate and make recommendations for future treatment. On November 10, 2016, the applicant was assessed by Dr. Indech who diagnosed the applicant with: acute posterior head and neck injury, acute injury to the yoke of his shoulders, and an acute lower back injury.
22Second, for the reasons already noted I preferred the report of Dr. Indech over Dr. Marchuk. Therefore, I find the assessment reasonable and necessary in the amount of $2,000.00 because of the applicant’s accident related impairments.
Is the applicant entitled to the cost of examination in the amount of $612.79 for an in-home assessment recommended by Denis Bishev submitted on March 16, 2016 and denied on March 23, 2016?
23I find the applicant is entitled to the in-home assessment recommended by Denis Bishev in the amount of $612.79.
24The purpose of an in-home assessment is to assess to what degree the applicant is limited with respect to carrying out his activities of daily living because of his accident-related impairments. The assessment is done to investigate whether an individual requires attendant care and/or assistive devices and how much is required per month.
25The applicant argues that the in-home assessment is reasonable and necessary as he is limited in his activities of daily living. Further, he asserts that the assessment should be deemed incurred pursuant to section 3(8) of the Schedule as the respondent unreasonably withheld and denied the benefit.
26Section 3(8) of the Schedule provides that if an adjudicator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense he or she may deem the expense to have been incurred.
27The respondent maintains that it properly denied the benefit. The respondent relied on a letter from it to the applicant dated March 24, 2016.4 Furthermore, the respondent argues that no evidence has been submitted to support that the applicant is unable to engage in his self-care tasks because of the soft-tissue injuries he sustained in the accident. The respondent asserts that the in-home assessment has not been incurred, so the applicant cannot rely upon section 38(11) to support that the expense is automatically payable. Finally, the Tribunal cannot deem it incurred under section 3(8) as the applicant failed to establish that the assessment was reasonable and necessary and was unreasonably withheld. For the reasons that follow, I agree with the applicant and find the OCF-18 for the in-home assessment reasonable and necessary.
28First, I disagree with the respondent that no evidence has been submitted to support that the applicant has been unable to engage in his self-care tasks. The applicant reported to all assessors including the IE assessors that he was struggling to carry out his activities of daily living and examples are provided in all of their reports. In my view, it would be reasonable to investigate whether the applicant required attendant care assistance. Therefore, I find the cost of the in-home assessment reasonable and necessary.
29Second, I agree with the applicant that the respondent unreasonably denied the benefit as its letter to the applicant denying the benefit did not provide adequate medical reasons and contained errors. The respondent’s letter to the applicant dated March 24, 2016 attached a statement which indicated “Based on Section 38.8, medical and all other reasons, the proposed total body assessment is not reasonable and necessary. The insured has already been assessed by Dr. Kuldip Rakkar on February 20, 2016 and has been recommended treatment.” From the records that were submitted as part of this written hearing, Dr. Rakkar works for Mediwise and is not an IE assessor. It is not clear why the respondent denied the in-home assessment. In the absence of an explanation I find that the respondent unreasonably denied the in-home assessment and deem the benefit incurred.
30I find that the respondent overlooked the applicant’s consistent reports to all of the assessors with respect to his struggles with his activities of daily living. In addition, the respondent did not acknowledge its own error in denying the benefit which I find unreasonable.
31The applicant claims that he did not receive the respondent’s letter dated March 24, 2016. In his reply submissions the applicant filed the affidavit of [RF], a clerk with his law firm’s office sworn November 30, 2018. The affidavit stated that [RF] had a conversation with the applicant on a certain date and the applicant advised that he never received the letter. The respondent raised a procedural issue with respect to the submission of this affidavit filed on reply. The respondent requests that the Tribunal exclude the affidavit from the record as the applicant submitted fresh evidence which is a breach of procedural fairness. I agree with the respondent that it would be procedurally unfair and do not admit the affidavit. Regardless, the affidavit had no impact on my finding that the in-home assessment is reasonable and necessary or my finding that the respondent unreasonably denied the benefit.
32As set out in my analysis above, I deem the OCF-18 for the in-home assessment as incurred pursuant to section 3(8) of the Schedule as I find the respondent has unreasonably withheld the benefit. Section 51(1) provides that a benefit is overdue when an insurer fails to pay for the benefit within the time prescribed under this regulation. Section 38(8) of the Schedule states that within 10 days of receiving an OCF-18 the insurer shall advise the applicant whether it agrees to pay for the benefit, whether it refuses to pay the benefit and provide medical reasons. Alternatively, it may schedule an insurer examination. The respondent denied the benefit by way of notice dated March 23, 2016. In this case, I deem the benefit payable as of the date the respondent unreasonably denied the benefit. Therefore, interest is payable as of March 23, 2016.
Is the applicant entitled to the cost of examination in the amount of $1,400.00 for a cognitive assessment recommended by Evgen Amchislavsky submitted on January 5, 2017 and denied by the respondent on January 13, 2017?
33The applicant is not entitled to the cognitive assessment.
34The applicant argues that the respondent should pay the entire amount of the OCF-18 for the cognitive assessment, on the basis that the reports of Dr. Trofimova and Dr. Yu support that the applicant was suffering from cognitive impairments. The applicant requested that the Tribunal deem the OCF-18 incurred pursuant to section 3(8) of the Schedule.
35The respondent argued that the OCF-18 for the cognitive assessment is not reasonable and necessary. In particular, the OCF-18 is authored by a chiropractor, who is not qualified to comment on cognitive issues as it is beyond the scope of a chiropractor’s expertise and practice. For the reasons that follow I agree with the respondent and do not find the cognitive assessment reasonable or necessary.
36First, I agree that it is beyond the scope of a chiropractor’s expertise to make such a referral. The OCF-18 was authored by Dr. Yu, chiropractor who noted that the applicant "... upon more than one occasion voiced subjective complaints regarding his cognitive functioning since the index motor vehicle accident. As such I felt that this needed to be investigated thoroughly." The applicant submitted the CNRs of Mediwise. I did not find these records helpful as they were not legible. As a result, I am unable to conclude that the applicant made any complaints to the clinic about cognition.
37Second, I did not find the medical report relied upon by the applicant compelling for the time period in which the cognitive assessment was being sought. For example, the applicant relied on the psychological report of Dr. Trofimova dated May 7, 2016 in which the doctor states “[with regard to cognitive activities, he noted only a partial ability for balancing a bank book, reading and remembering what he had read, following a movie or TV show, remembering and following directions, planning and organizing meals or shopping, and prioritizing activities."5
38While the above report makes a reference to a decline in the applicant’s cognition, he also submitted three progress reports of Dr. Trofimova. The progress reports span from July 30, 2016 to February 11, 2017 and none of them reference the applicant having any ongoing cognitive issues. The OCF-18 was submitted in 2017, whereas the applicant’s initial complaints about cognition were made in early 2016. In my view, if Dr. Trofimova had concerns with the applicant’s cognition she would have made a referral for the cognitive assessment. I do not find that the applicant has met his onus in proving on a balance of probabilities that the OCF-18 for a cognitive assessment is reasonable and necessary because of his accident related impairments.
ORDER
39I order that the applicant is entitled to payment for the following medical benefits and examination expenses:
a) all four OCF-18s for chiropractic treatment, physiotherapy and massage recommended by Mediwise plus interest (less the $174.60 which was not incurred on the first OCF-18 in the amount of $3,355.20);
b) The OCF-18 for the in-home assessment in the amount of $612.79 recommended by Dennis Bishev plus interest; and
c) The orthopaedic assessment in the amount of $2,000.00 recommended by Dr. Indech plus interest.
40The applicant is not entitled to:
a) The cognitive assessment recommended by Evgen Amchislavsky.
Released: June 11, 2019
_________________________
Rebecca Hines
Adjudicator
Footnotes
- IE assessments of Dr. Marchuk and Dr. Wiesenthal, Applicant’s Brief, Tabs 16 and 17.
- Applicant’s Brief, Tab 19.
- Respondent’s Brief, Tabs 8, 9 and 10. 16-001539/AABS v. Wawanesa, 2017 CanLII 82039 (LAT); D.J. v. Aviva Ins., 2016 CanLII 93136 (LAT); and 17-002689/AABS v. Aviva Ins. 2018 CanLII 2311 (ON LAT).
- Respondent’s Brief, Tab 15.
- Applicant’s Document Brief, Tab 10, pages 8, 9 and 14.