D.G. v. Allstate Insurance Company of Canada, 2017 CanLII 148401

Licence Appeal Tribunal

Tribunal File Number: 17-001641/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:

D.G.

Applicant

and

Allstate Insurance Company of Canada

Respondent

HEARING DECISION

Adjudicator: Ian Maedel

Appearances: Marc S. Katzman, Counsel for the Applicant Victoria C. Little, Counsel for the Respondent

Heard in writing on: July 25, 2017

OVERVIEW

1The applicant was injured in an automobile accident on March 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').

2The respondent denied a treatment and assessment plan (OCF-18) submitted on behalf of the applicant by LifeMark Tecumseh & Manning.

3The applicant appealed the denial of the treatment and assessment plan (OCF-18) to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on March 8, 2017.

4The parties were unable to resolve their dispute at the case conference, on May 18, 2017, and a written hearing was scheduled.

5Prior to the written hearing, the respondent submitted a motion to include an addendum to their expert’s assessment. That motion decision shall be included as part of the written hearing.

ISSUES TO BE DECIDED

6The following are the issues to be decided:

i. Is the respondent entitled to rely on the Addendum – Orthopaedic In-Person Examination prepared by Dr. Thair H. Yousif, Orthopaedic Surgeon dated July 4, 2017, which was provided to the applicant on July 5, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $3,809.18 for physiotherapy services, recommended in a treatment plan by LifeMark Tecumseh & Manning submitted February 24, 2017 and denied by the respondent on March 7, 2017?

iii. Is the applicant entitled to any interest on overdue benefit payment?

RESULT

7Given that the respondent’s motion to admit the addendum was unopposed, I find that the respondent is entitled to rely on the Addendum – Orthopaedic In-Person Examination prepared by Dr. Thair H. Yousif, Orthopaedic Surgeon, dated July 4, 2017.

8The applicant is not entitled to a medical benefit in the amount of $3,809.18, as he failed to meet his onus on a balance of probabilities and has not established that the treatment and assessment plan (OCF-18) in question is reasonable and necessary.

9The applicant is not entitled to interest on any overdue payments.

FACTS

10The applicant was involved in a motor vehicle collision on March 7, 2016. He was examined by his family doctor the following day. He subsequently underwent an x- ray of his neck, a CAT scan of his cervical spine and an ultrasound of his right shoulder.

11The applicant’s injuries included: Whiplash Associated Disorder (WAD 2) with cervical sprain/strain; right shoulder soft tissue sprain and strain; upper thoracic sprain and strain; lower lumbar sprain and strain; sprain and strain of the wrist; and sprain and strain of the metacarpal and headaches.

12The parties agree that the injuries sustained by the applicant do not fall within the definition of a “minor injury” as defined in the Schedule and fall outside of the Minor Injury Guideline (“MIG”).

13The applicant was assessed by LifeMark Tecumseh & Manning in a report dated April 14, 2016 and he continued to attend LifeMark for physiotherapy treatments under the care of Occupational Therapist, Andrea Pillon and Physiotherapist, Narshana Sonali.¹

14A treatment and assessment plan (OCF-18) dated February 24, 2017 in the amount of $3,809.18 was prepared by Physiotherapist Narshana Sonali and was submitted to the insurer. This plan sought further treatment for Whiplash Associated Disorder (WAD 3) with complaints of neck pain with neurological signs, headache and sprain/strain of lumbar spine.²

15The insurer denied this treatment plan in an Explanation of Benefits (“EOB”) dated March 7, 2017. This denial was based on an assessment report received from Orthopaedic Surgeon, Dr. Thair H. Yousif following an examination of the applicant on November 1, 2016. Dr. Yousif concluded that the applicant did not require further formal or informal treatment or rehabilitation services and the applicant could return to work with no restrictions.³

16The applicant submits that he is still in need of further treatment; Dr. Yousif’s report pre-dates the treatment plan at issue; and Dr. Yousif did not view the ultrasound relied upon as a basis for the treatment plan, thus, there was no proper denial with reasons.⁴ The respondent submits there is no medical evidence justifying continued funding of physical treatment and the treatment plan was properly denied.

17Following the case conference, the respondent was provided a copy of the applicant’s right shoulder ultrasound. It was forwarded to Dr. Yousif, who examined the imagery and provided an addendum dated July 4, 2017. In his addendum, Dr. Yousif opined that from an orthopaedic standpoint the applicant did not require any further treatment.⁵ The respondent forwarded a copy of this addendum to the applicant on July 5, 2017, nineteen days prior to the written hearing.

18The respondent then filed a motion with the Tribunal dated July 7, 2017, seeking to file the addendum and rely upon it at the written hearing. The respondent maintained that the addendum did not contain any different conclusions, but the ultrasound simply confirmed Dr. Yousif’s earlier conclusions. The applicant did not object to the filing of said motion nor provide any responding materials.

ANALYSIS

Motion to Admit the Addendum

19The respondent submitted that they were not provided a copy of the applicant’s ultrasound until after the case conference date. The date on which the respondent received the ultrasound was not specified, but the addendum prepared by Dr. Yousif was dated July 4, 2017. The respondent has included a fax confirmation page indicating the addendum was provided to the applicant by facsimile on July 5, 2017.⁶

20Given that the applicant has failed to raise any objection to the filing of Dr. Yousif’s addendum, I do not consider there to be any procedural unfairness or prejudice wrought upon the applicant by the addendum’s admission and any reliance thereupon. The document shall be admitted into evidence.

The Treatment Plan at Issue

21The respondent is liable under section 14 of the Schedule to pay for medical and rehabilitation benefits to or on behalf of an injured person who sustains an impairment as a result of an accident. The test for payment of medical benefits found at section 15 of the Schedule is whether the benefits incurred are reasonable and necessary expenses.

22The applicant has the burden of proving that the treatment plan at issue is reasonable and necessary. This accepted principle is laid out in the seminal case of Scarlett v. Belair Insurance Co.⁷ In that decision, the Ontario Superior Court sitting as Divisional Court stated that it is fundamental to insurance law that the burden of proof rests with the insured to establish a right to recover under the terms of a policy.

23In addressing whether this treatment plan is reasonable and necessary, I am confronted with the conflicting opinions of Orthopaedic Surgeon, Dr. Yousif, on behalf of the respondent and Physiotherapist, Narshana Sonali, on behalf of the applicant.

24The applicant attended a section 44 assessment with Dr. Yousif on November 1, 2016. Dr. Yousif was provided with and reviewed medical information, including the clinical notes and records of the family physician, documents from LifeMark, and the physical demands description from the applicant’s employer, a job analysis from Benchmark Medical Independent Examinations Inc., a Functional Abilities Evaluation from Benchmark Medical Independent Examinations Inc., and a cervical spine x-ray dated April 14, 2016.⁸

25Dr. Yousif conducted a series of tests as a result of his physical examination of the applicant. There were range of motion tests of the back, neck and shoulder, including specific tests like Spurling’s test, SLR test, Babinski test, Hawkin’s test, Neer’s Test and Yergason’s test. These are all specific tests or maneuvers to assess the applicant’s pain or range of motion used by medical practitioners.⁹

26Following his examination, Dr. Yousif diagnosed the applicant with Whiplash Associated Disorder (WAD 1) with cervical sprain/strain, right shoulder soft tissue sprain/strain, upper thoracic sprain/strain and lower lumbar sprain/strain. He noted some self-limitation with pain behaviour and guarding during the examination. From an orthopaedic standpoint, Dr. Yousif indicated that the applicant did not require any formal or informal treatment or rehabilitation services and he was able to return to working full duties as a personal support worker with no restrictions.¹⁰

27In preparing the addendum dated July 4, 2017, Dr. Yousif was able to review the ultrasound of the applicant’s right rotator cuff and a CT of the cervical spine in addition to other medical documents. He was able to confirm his earlier diagnosis regarding soft tissue sprain and strain of the shoulder. He again opined that no further treatment was required.¹¹

28The applicant provided a total of two documents with his written submissions: the Motor Vehicle Accident Report prepared by the police and the treatment and assessment plan (OCF-18) prepared by Physiotherapist Narshana Sonali.

29The treatment and assessment plan (OCF-18) was dated February 24, 2017 and indicated that the applicant was still suffering from Whiplash Associated Disorder (WAD 3) with complaint of neck pain with neurological signs, headache and sprain and strain of lumbar spine.¹²

30There is no additional information provided with regard to the applicant’s prognosis. There were no other medical reports, clinical notes or records to assist the applicant in meeting his persuasive burden.

31Given the scope of the medical report and addendum provided by Dr. Yousif, I find it more persuasive. Dr. Yousif’s report indicates the medical documents and imagery reviewed and details the physical examination of the applicant. This examination includes details of objective and specific tests performed to reach his prognosis. The treatment plan submitted by the applicant simply does not rise to the scope and detail provided in the orthopaedic surgeon’s report.

32I do not find the passage of time between Dr. Yousif’s November 2016 examination of the applicant and the treatment and assessment plan (OCF-18) dated February 24, 2017 to be significant. Dr. Yousif’s report is more comprehensive than the treatment plan at issue and I place more weight upon it, despite the fact that it was prepared almost four months prior.

The Denial and Reasons

33I reject the applicant’s submission that there was no proper denial with reasons because the medical report relied upon by the respondent did not include a review of the ultrasound of the applicant’s shoulder.¹³ The report provided by the Orthopaedic Surgeon, Dr. Yousif, is comprehensive and compelling. Even if I was to disregard the addendum provided on July 4, 2017, in which he examined the ultrasound at issue, there is still enough medical evidence from the documents examined and the examination performed to confirm the prognosis provided. This is in direct contrast to the relative lack of medical documentation provided in the applicant’s submissions.

34When I examine the Explanation of Benefits (EOB) dated March 7, 2017, the wording is very clear. On page five it states: “At this time, we will not be approving nor funding this treatment request as the assessor’s opinion states no further treatment is required….”.¹⁴ This is in addition to the statutory boilerplate wording on page four which complies with the test laid out in Smith and Co-operators.¹⁵ Specifically, the denial was conveyed in clear language that the benefit had been denied, provided notice of the two year limitation period and included information regarding the applicant’s right to dispute the insurer’s determination and how to do so.¹⁶

35Given a review of all the evidence and submissions provided, the applicant has not persuaded me on a balance of probabilities. The applicant has not demonstrated that the treatment plan at issue is reasonable and necessary. The applicant simply did not provide an evidential foundation in accordance with the submissions made. A lone treatment plan does not suffice in this matter, especially in contrast to the relative strength of the medical report provided by the respondent. As a result, the application is dismissed, as is any claim for interest attached thereto.

CONCLUSION

36For the reasons outlined above, I find that:

i. The respondent is entitled to rely on the Addendum – Orthopaedic In- Person Examination prepared by Dr. Thair H. Yousif, Orthopaedic Surgeon, dated July 4, 2017.

ii. The applicant is not entitled to a medical benefit in the amount of $3,809.18, as they have failed to meet their onus on a balance of probabilities and have not established that the treatment and assessment plan (OCF-18) in question is reasonable and necessary.

iii. The applicant is not entitled to interest on any overdue payments.

Footnotes

1. 1Respondent’s Written Submissions, Tab 1, page 10.
2. 2Applicant’s Written Submissions, Tab 2, page 5.
3. 3Respondent’s Written Submissions, Tab 1, pages 18-20.
4. 4Applicant’s Written Submissions, para. 6.
5. 5Respondent’s Motion Submissions, page 17.
6. 6Respondent’s Motion Submissions, page 6.
7. 7Scarlett v. Belair Insurance Co., 2015 ONSC 3635, at para. 20.
8. 8Respondent’s Written Submissions, Tab 1, pages 10-12.
9. 9Respondent’s Written Submissions, Tab 1, page 16.
10. 10Respondent’s Written Submissions, Tab 1, pages 18-20.
11. 11Respondent’s Motion Submissions, pages 15-16, 19-20.
12. 12Applicant’s Written Submissions, Tab 2, page 5.
13. 13Applicant’s Written Submissions, para. 6.
14. 14Respondent’s Written Submissions, Tab 2, page 5.
15. 15Smith v. Co-operators General Insurance Co., [2002] 2 S.C.R. 129, 2002 SCC 30 at para. 14.
16. 16Respondent’s Written Submissions, Tab 2, pages 3-4.