Court File and Parties

Date: 2017-06-20 Tribunal File Number: 16-003221/AABS Case Name: 16-003221 v Echelon

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:

16-003221, Applicant

and

Echelon, Respondent

Decision

Adjudicator: Susan Mather

Appearances:

For the Applicant: Robert W. Vitols, Counsel for the Applicant For the Respondent: Jamie Pollack, Counsel for the Respondent

Heard in Writing on: April 18, 2017

Overview

1The applicant was involved in an automobile accident on March 14, 2010, when the car she was a front seat passenger in was rear-ended. The applicant and her husband were both injured in the accident and their two year old daughter sustained fatal injuries. In June 2015 the applicant was found to be catastrophically impaired as a result of the accident¹ due to the severity of the mental impairments she sustained.

2In June 2014 the applicant sought a rehabilitation benefit pursuant to Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Schedule''). At the time of the application the applicant was 29 years old with two young children at home.

3The applicant was seeking to extend the services of an occupational therapist, Lisa Hutchinson, who had been working with her to help her increase her involvement in activities of daily living both in her home and with her children.

4The respondent denied the benefit on the basis that the Treatment and Assessment Plan in dispute (“treatment plan”)² did not contain a clear rational as to why the applicant continued to require occupational therapy.

5The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).³

6A case conference was held on January 17, 2017, but the parties were unable to resolve the issues in dispute. A written hearing was ordered.

Issues to be Decided

7The issues to be decided are:

1. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,363.23 for occupational therapy services, recommended by DMA Rehability in a treatment plan dated June 30, 2014, denied by the respondent on October 15, 2014⁴?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the applicant entitled to costs?

Result

8I find that:

1. The applicant is entitled to receive a rehabilitation benefit in the amount of $2,363.23 for occupational therapy services recommended by DMA Rehability in a treatment plan dated June 30, 2014, denied by the respondent on October 15, 2014.
2. The applicant is entitled to interest on the overdue payment of benefits.
3. The applicant is not entitled to costs.

Analysis

9Section 15(1) of the Schedule requires an insurer to a pay rehabilitation benefit to an insured person who sustains impairment as a result of an accident.

10Section 15(2) provides that a rehabilitation benefit shall pay for all reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.

11The burden of proof rests with the applicant to show on the balance of probabilities that the rehabilitation benefits sought are reasonable and necessary. I find that the applicant has met this burden.

12Following the accident in 2010 the applicant underwent numerous examinations and assessments by the insurer’s examiners, her own family doctor, her psychiatrist and a multi-disciplinary team hired by her legal counsel.

13The applicant was severely traumatized in the accident. This is confirmed in the October 2, 2012 letter ⁵ of Dr. Surapenini, a psychiatrist and a March 15, 2013 report of Dr. Keith Sequeira⁶, a physical medicine and rehabilitation specialist.

14In his report Dr. Sequeira lists the primary diagnoses as: post-traumatic stress disorder, chronic pain syndrome, bilateral femoral cutaneous neuropathy, mild traumatic brain injury, post-concussive syndrome, bilateral occipital neuralgia and tension type cerviogenic headaches. He states that the “applicant requires a great deal of support and treatment to have any chance of improving” and that even with help the applicant’s prognosis was at best guarded and likely poor.

15The treatment and assessment plan in issue⁷ proposes six one and one-half hour occupational therapy sessions over the course of 16 weeks. It also allows for attendance at a multi-disciplinary team meeting. The goal of the plan is to continue to provide treatment to gradually increase the applicant’s involvement in the activities of daily living (in-home activities and activities with her children) and to promote function and improve her quality of life. The plan indicates that the applicant “has continued to make small gains in terms of function” and “remains receptive to OT intervention”.

16After reviewing the evidence and the written submissions of the parties I am satisfied the treatment plan in dispute is for reasonable and necessary measures to reduce or eliminate the effects of a disability resulting from the applicant’s impairment and to facilitate the applicant’s reintegration into her family. The goods and services recommended by Ms. Hutchinson fall into the category of “life skills training” as set out in section 15(5) of the Schedule.

17The evidence the respondent relies on to deny the benefit does not persuade me that the applicant has not met the burden of proof to show that the treatment and assessment plan was reasonable and necessary.

18The benefit was denied by the respondent on the basis of an Insurer’s Examination (IE) ⁸ by Rasul Kassam an occupational therapist. The respondent also relies on the reports from other IEs and photographic evidence from surveillance conducted over several years to support its position.

19Mr. Kassam considers the plan to be not reasonable or necessary “at this time” because in his opinion there is no clear rational as to why occupational therapy “continues to be required.”⁹

20My reading of the treatment plan is that the rehabilitation benefit was claimed primarily to assist the applicant with coping with the psychological impairments arising from the accident that were affecting her ability to function well in her home and interact with her young family.

21The primary purpose of the treatment and assessment plan was not physical rehabilitation although there are aspects of the occupational therapy proposed for the applicant that focus on helping the applicant her cope with her reduced physical tolerances and emotional sequelae arising from the accident.

22Mr. Kassam performed functional physical testing on the applicant but his report does not comment or address the applicant’s psychological injuries. He does however, state that the applicant expressed concern to him over her difficulty in “doing stuff” with her children and the fact that the daughter felt she was not loved because her mother did not do “stuff” with her. This concern expressed by the applicant, is clearly one of the issues the treatment and assessment plan was submitted to address.

23The respondent argues that the applicant has not provided a clear rationale as to the requirement of the occupational therapy treatment other than to indicate that applicant is receptive to receiving therapy.

24The respondent further argues that:

“In light of the fact that the Treatment Plan is in dispute does not identify any measurable goals, combined with the fact that the occupational therapy services to date appear to have yielded few if any positive results, it is the insurer’s position that the Treatment plan is not reasonable and necessary as a result of the accident”.

25I do not agree with the respondent’s assertion. The goals of the treatment and assessment plan include providing treatment to gradually improve the applicant’s involvement in activities of daily living (in home activities and activities with her children) and to promote function and improve quality of life.

26In view of the applicant’s diagnosis of a severe mental impairment, the fact that small gains had been made by the applicant in my view supports the finding that further occupational services were reasonable and necessary for the applicant to continue to reduce the effects of the mental impairment she suffered in the accident on her day to day life and relationships with her children.

27The Catastrophic Impairment Psychiatric Assessment Report of psychiatrist Dr. Gnam ¹⁰ finds that the applicant suffered a “motivation impairment” arising from her mental disorders.

28Dr. Gnam expresses the opinion that the fact that the applicant disengaged during the various components of the psychiatric and occupational therapy examinations was a result of her “motivation impairment” and that the applicant was not consciously amplifying or fabricating her symptoms from the accident. This finding is consistent with Mr. Kassam’s report that the applicant reported that she was unable to access the vacuum cleaner and refused to simulate sweeping and mopping when asked to do so.

29I find that the conclusion that Dr. Gnam arrived at almost eight months after the treatment plan was submitted supports the opinion of Ms. Hutchinson that any gains from therapy would be made slowly.

30In my view the 2015 determination by Dr. Guam that the applicant suffers from a “motivational impairment” corroborates the March 2013 report of Dr. Sequeira and 2013/2014 reports of Ms. Hutchinson that the applicant would benefit from continued access to occupational therapy to deal with her losses.

31Mr. Kassam’s report includes a list of “Documents Reviewed” and as section entitled “Detailed File Review” where he summarizes finding from reports of other Insurance Examinations (IEs). He does not recognize or comment on any of the assessment reports prepared by DMA Rehability aside from the treatment and assessment plan.

32Mr. Kassam’s report suggests that because in 2012 applicant did not feel she was ready to apply pain management techniques to increase her independence in daily activity and was discharged from occupational therapy she was not entitled to further occupational therapy intervention in 2014. The fact that the applicant refused treatment in 2012 does not in my view disentitle her to treatment in 2014.

33Mr. Kassam also states in his report that the plan should be denied because there was no new medical or functional information to support ongoing occupational therapy treatment.

34The requirement in the Schedule is that a rehabilitation benefit be paid for reasonable and necessary measures undertaken by the insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market. The Schedule does not require that there be new medical or functional information for each treatment plan in order for an applicant to be entitled to an ongoing rehabilitation.

35In addition to the report of Mr. Kassam the respondent relies on reports of its own Insurance Examiners (IEs) dated prior to the treatment plan in issue to support its position that the treatment plan for continued occupational therapy services is not reasonable or necessary.

36I am of the view that these reports are of no assistance in deciding if the treatment plan is reasonable and necessary for the following reasons:

• The report of occupational therapist Joanne Roma dated June 9, 2011,¹¹ approved occupational therapy services for the applicant.
• The report of chiropractor Dr. Jim Getsos¹² dated March 15, 2012, deals with the applicant’s physical functioning and does not address her other injuries. The report states that the applicant demonstrated an inconsistent effort during testing suggesting that she did not reflect her maximal abilities. In my view this observation is consistent with the Dr. Gnam’s¹³ finding that the applicant suffered “motivation impairment” in the accident.
• The report of orthopedic surgeon Dr. Jaroszynski ¹⁴ dated March 22, 2012, and the reports of physiotherapist Dave Wilkinson¹⁵ also deal with physical impairments. They provide no reasons why occupational therapy treatment for the applicant in 2014 was not reasonable or necessary. Dr. Jaroszynksi’s report recognizes the severe nature of the applicant’s soft tissue injuries and concludes she was unable to return to work. Dr. Wilkinson’s reports are in response to treatment and assessment plans for physiotherapy.
• The report of Angela Bertolo (occupational therapist)¹⁶ dated November 15, 2012, was for the purpose of reviewing a treatment and assessment plan proposing an in-home occupational therapy assessment by Ms. Hutchinson. Ms. Bertolo noted that the applicant’s former treating occupational therapist discharged her with education and strategies to resume her activities of daily living. A summary of the January 12, 2012, Discharge Letter of occupational therapist M. Ferguson is found in Mr. Kassam’s report.¹⁷ The therapist notes that the applicant’s mood-related symptoms distracted her in daily activities and her ability to carry them out. This is my view is the same problem that Ms. Hutchinson was recommending further occupational therapy support for in 2014.

37The respondent also submitted surveillance evidence. I do not give this evidence any weight as in my view it is not relevant to the determination as to whether the treatment plan for occupational therapy is reasonable and necessary. The footage of the applicant walking her daughter to meet her school bus and carrying her daughter’s back-pack is not evidence that continued occupational therapy is not reasonable or necessary.

38The following evidence satisfies me that the therapeutic goal of increasing the applicant’s involvement in activities of daily living (in-home activities and activities with her children) to promote function and improve quality of life is a reasonable and necessary measure to reduce the effect of her psychological injuries:

• The Multi-Disciplinary Assessment dated April 25, 2013,¹⁸ co-authored by occupational therapist Ms. Hutchinson, a physiotherapist and a social worker recommending occupational therapy to address the applicant’s need for need for structured daily activity and a need for a sense of meaningful activity in the applicant’s day. The report includes a detailed assessment of the applicant’s activities of daily living¹⁹ and recommendations for treatment. Ms. Hutchinson is the occupational therapist who submitted the treatment and assessment plan in issue and worked with the applicant prior to the treatment and assessment plan being submitted.
• The January 2014 occupational therapy progress report update ²⁰ by Ms. Hutchinson which finds that the applicant demonstrated small yet significant gains in terms of her receptiveness and readiness to engage in rehabilitation. Continued access to occupational therapy intervention is recommended with an emphasis on building upon the gains made to date. The report includes a chart showing the status with respect to the initial occupational therapy assessment and recommendation with respect to further treatment.
• The November 2014 multidisciplinary progress report²¹ by Ms. Hutchinson recommending that the applicant receive continued occupational therapy treatment once every month. The focus of the intervention would be to build on gains made via a continuation of functional goal setting involving implementation of a structure plan to increase the applicant’s level of participation and overall function within activities of daily living over time.
• A Preliminary Cost of Future Care Needs Report ²² providing for three stages of occupational therapy to be provided with the frequency of service being reduced over three years.

39Based on these reports I am satisfied that there was a “master plan” for the delivery of occupational services with the June 30, 2014, treatment plan being one of the components.

Interest

40Having found that the applicant is entitled to the claim for the rehabilitation benefit I find that the applicant is entitled to interest on the amount overdue as provided for in the Schedule. The interest claim is not disputed by the respondent.

Costs

41The applicant requested costs in her submissions.²³

42The Tribunal’s authority to award costs comes from two sources:

43Section 17.1 of the Statutory Powers and Procedure Act (“SPPA”) and Rule 19.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (the “Rules”).

44Section 17.1(1) of the SPPA empowers the Tribunal to order a party to pay another party’s costs in a proceeding according to rules made under s. 17.1(4). Section 17.1(2) states the Tribunal shall not order a party to pay costs unless the conduct or course of conduct of that party has been unreasonable, frivolous or vexatious, or has acted in bad faith.

45Rule 19.1 of the Rules mirrors the language of s. 17.1(2) of the SPPA and permits a party to make a request to the Tribunal for costs.

19.1 Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith that party may make a request to the Tribunal for costs, …

46The respondent’s submissions²⁴ point out that it is not clear from the applicant’s submissions as to whether the applicant is asking for costs or an award under section 10 of Regulation 664²⁵ made under The Insurance Act²⁶, because the applicants relies on case law pertaining to “special awards” under the now repealed section 282(10) of the Insurance Act.

47I am satisfied that the applicant is seeking costs and not an award under Regulation 664 for the reason that the applicant is represented by counsel and in her reply submissions the applicant clearly reiterates her request for costs and does not ask for an award under Regulation 664.

48The request for costs by the applicant is denied because I am not satisfied that the respondent has acted unreasonable, frivolously, vexatiously, or in bad faith in these proceedings.

49The applicant argues that an insurer’s conduct is unreasonable because the respondent failed to weigh the entirety of the evidence and relied upon the “flawed” report of its own expert, Rasul Kassam in denying the claim.

50The applicant also argues that the respondent owes a duty of utmost good faith to the applicant and cannot simply delegate its decision on a treatment plan to a medical examiner.

51The applicant asks me to draw an adverse inference because the respondent did not produce the log notes of the adjuster working on the file from the date of loss to the date of the application to the Tribunal.

52The Tribunal’s Rules only refer to behavior that occurs during the course of the proceeding before the Tribunal.

53The decisions of the Tribunal in 16-00041 v. Intact Insurance Company, 2016 Can LII 78333 (ON LAT) and J.B. v. Meloch Monnex Financial Services Inc, 2016 Can LII 96162 (ON LAT) cited by the respondent confirm this principle.

54The respondent’s behavior that the applicant argues is unreasonable occurred prior to the application being filed with the Tribunal on October 13, 2016.²⁷ The only behavior of the respondent the applicant refers to that occurred after the filing of the application with the Tribunal is the respondent’s failure to produce the adjuster’s log notes that were ordered to be produced by the Tribunal in its Order made at the case conference on January 17, 2017.

55I do not draw any inference from the fact that the applicant did not produce the adjuster’s log notes from the date of the accident to the date of the claim for the reason that the behavior of the respondent before the application to the Tribunal is not relevant to a cost determination under the LAT Rules.

56I also do not find the respondent’s failure to produce the adjuster’s log notes to be behavior entitling the applicant to costs because there is no evidence that the applicant pursued the request for the log notes after the order was made on January 17, 2017 and because I am not satisfied that the adjuster’s log notes are relevant to any of the issues the Tribunal has been asked to decide.

57In her reply submissions the applicant requests an order from the Tribunal compelling the production of the adjuster’s log notes.

58It is too late to ask for a production order in the reply submissions for a written hearing and as already stated I am not convinced that the adjuster’s log notes are relevant to the issues before me on this application.

Order

1. The applicant is entitled to receive a rehabilitation benefit in the amount of $2,363.23 for occupational therapy services recommended by DMA Rehability in a treatment plan dated June 30, 2014, denied by the respondent on October 15, 2014.
2. The applicant is entitled to interest on the overdue payment of benefits.
3. The applicant is not entitled to costs

Footnotes

1. 1Insurer’s Examination Catastrophic Impairment Psychiatric Assessment Report, Tab 13 applicant’s submission
2. 2Treatment and Assessment Plan dated June 30, 2014, Tab 8, applicant’s submission; Tab A, respondent’s submission
3. 3Application – Tribunal File
4. 4Tribunal Order dated Feb. 1, 2017 stated denial date as October 15, 2015. Explanation of benefit letter filed with the application confirms denial date to be October 15, 2014
5. 5Tab 2, applicant’s submissions
6. 6Tab 3, applicant’s submissions
7. 7Tab 8, applicant’s submissions
8. 8Tab 15, applicant’s submissions
9. 9Tab 15, page 11
10. 10Tab 13 applicant’s submissions
11. 11Tab l, respondent’s document brief
12. 12Tab J, respondent’s document brief
13. 13Tab 13, applicant’s submission
14. 14Tab K, respondent’s document brief
15. 15Tab M, Tab N respondent’s document brief
16. 16Tab L, respondent’s document brief
17. 17Tab 15, applicant’s submissions; Tab 3 applicant’s submissions
18. 18Tab 3 applicant’s submissions
19. 19Tab 3, Pages 14-18, applicant’s submission
20. 20Tab 6, applicant’s submissions
21. 21Tab 10, applicant’s submissions
22. 22Tab 7, applicant’s submissions
23. 23Page 11, applicant’s submission
24. 24Page 8, respondent’s submissions
25. 25R.R.O. 1990
26. 26R.S.O. 1990, c. I.8
27. 27Application, Tribunal file