Case Name: 16-002861 v Aviva Insurance Company
In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits.
Between:
F. P.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Counsel for the Applicant: Adam Romain
Counsel for the Respondent: Kevin Griffiths
Written Hearing: June 6, 2017
I. Overview
[1.] The applicant was injured in an automobile accident on September 18, 2006, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accident on or After November 1, 1996 (the ''Schedule'').
[2.] The applicant made medical claims for physiotherapy treatments and orthopaedic and psychiatric assessments.
[3.] The respondent denied the physiotherapy treatment plans (“OCF-18”) based on the conclusions of physiotherapist, Ms. Serah Park, that the treatment plan was not reasonable and necessary because the applicant had already received extensive facility based treatment and home exercise programs.
[4.] Regarding the orthopaedic and psychiatric assessments, the respondent denied these benefits based on paper review insurer examinations (“IE”) from Dr. Gianni Maistrelli, orthopaedic surgeon, and Dr. Joel Eisen, psychologist, respectively, who concluded that the assessments were not reasonable and necessary.
[5.] According to the applicant, he continues to suffer from a chronic pain disorder, the same disorder that was diagnosed by Dr. Michael West, orthopaedic surgeon, and Dr. Lionel Gerber, psychiatrist, and documented in their respective reports dated July 14, 2012 and July 9, 2012.
[6.] The onus is on the applicant to prove on a balance of probabilities that the expenses for the treatments claimed are reasonable and necessary, and that the fees for the assessments claimed are reasonable.
II. Issues
[7.] The following issues were identified at the case conference on January 13, 2016:
i. Is the applicant entitled to a medical benefit for physiotherapy services from Access Rehab in the amount of $1,877.80, treatment plan denied on September 25, 2014?
ii. Is the applicant entitled to a medical benefit for physiotherapy services from Access Rehab in the amount of $998, treatment plan denied on November 15, 2015?
iii. Is the applicant entitled to the cost of an orthopaedic assessment from Access Rehab in the amount of $2,486, treatment plan denied on March 15, 2016?
iv. Is the applicant entitled to the cost of a psychiatric assessment from Access Rehab in the amount of $2,486, treatment plan denied on March 15, 2016?
v. Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments of benefits under subsection 280(10) of the Insurance Act and Ontario Regulation 664, R.R.O. 1990?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
III. Result
[8.] After reviewing the parties’ submissions and considering their evidence, I find that:
i. The applicant is entitled to a medical benefit for physiotherapy services in the amount $1,877.80 and $998, as I am persuaded that these expenses for the treatment are reasonable and necessary because the services will assist the applicant in managing his pain.
ii. The expenses for the orthopaedic and psychiatric assessments are reasonable to determine and assess whether the applicant requires more treatment.
iii. The applicant is entitled to an award and interest.
IV. Analysis
i. Is the applicant entitled to a medical benefit for physiotherapy services in the amount of $1,877.80?
Law
[9.] Under section 14 of the Schedule, the test to determine entitlement to medical benefits is whether the expenses for the proposed treatment are reasonable and necessary.
Findings
[10.] I find that the applicant is entitled to the medical benefit for physiotherapy services in the amount of $1,877.80 as set out in the treatment plan denied by the respondent on September 25, 2014.
[11.] According to the applicant, he continues to suffer from chronic pain and depression.
[12.] The applicant relied on three reports to support his position that he continues to require treatment to manage his chronic pain and depression.
[13.] In an orthopaedic medical assessment report dated July 14, 2012, Dr. Michael West diagnosed the applicant with chronic pain syndrome related to a myofascial strain of the lumbosacral spine and post traumatic and post concussive cervicogenic headaches. Dr. West described the syndrome as a “persistent state of pain whereby the cause of the pain cannot be removed completely [and] continues beyond the normal recovery period for the respective injuries sustained despite appropriate therapy.”
[14.] Dr. West’s prognosis was “guarded” in 2012 and recommended many facility based treatments, including physiotherapy.
[15.] In a psychiatric medical assessment report dated July 10, 2012, Dr. Lionel Gerber, diagnosed the applicant with a major depressive disorder and chronic pain disorder associated with both psychological factors and a general medical condition, and ongoing symptoms of post-traumatic stress disorder.
[16.] In addition to the reports by Dr. West and Dr. Gerber, the applicant also relied on a consultation report dated March 8, 2011 from Dr. Raphael K Chow, the applicant’s treating physiatrist who also recommended that the applicant attend physiotherapy to manage his chronic pain.
[17.] The respondent relied on an IE dated September 23, 2014, by Ms. Serah Park, physiotherapist, to review the treatment plan in question for physiotherapy services.
[18.] Ms. Park indicated that in the eight years since the accident, the applicant had received extensive facility based therapy and home exercise programs. Ms. Park noted that the applicant’s symptoms have been consistent and that physiotherapy only provided a temporary benefit for a day or two. Ms. Park found that the results from therapy were temporary and not necessary at this time.
[19.] The applicant also noted that Ms. Park was not given Drs. West’s and Gerber’s reports to consider in the assessment of the applicant.
[20.] In considering whether the expenses for the treatment plan are reasonable and necessary, I must take note of the goals of the treatment plan. The goals of the treatment plan are: 1) pain reduction, 2) increased range of motion, 3) increased strength, 4) return to activities of normal living, and 5) return to pre-accident work activities.
[21.] Both parties agree that the applicant suffers from chronic pain. Both Dr. West and Dr. Gerber indicated that the applicant’s pain would persist. The applicant cannot expect to make a full recovery. Understanding the nature of chronic pain, I am persuaded that treatment that reduces or manages the applicant’s pain is a practical objective.
[22.] I also take into consideration the applicant’s work. At the time of the accident, he owned his own home renovation/construction company. According to the applicant’s affidavit, he now works part-time at his company and does mostly administrative work. The applicant indicated that the physiotherapy helped him to manage his pain and get through his work week.
[23.] I am not persuaded by Ms. Park’s assessment, particularly since she was not able to consider the reports of Drs. West and Gerber. In considering Dr. West’s report, my understanding is that pain management rather than recovery is a realistic objective when dealing with chronic pain.
[24.] For the reasons stated above, I find that the expenses for treatment plan are reasonable and necessary.
ii. Is the applicant entitled to a medical benefit for physiotherapy services in the amount of $998?
[25.] Regarding the treatment plan for physiotherapy services in the amount of $998, the respondent has raised a new issue that was not addressed at the case conference. Under subsection 50 (b) of the Schedule, an insured person cannot commence a mediation proceeding if he has failed to undergo a designated assessment under section 43.
[26.] The applicant failed to attend an IE for physiotherapy services.
[27.] Section 42 of the Schedule states that for the purposes of assisting an insurer to determine if a person is or continues to be entitled to a benefit, the insurer may, as often as is reasonably necessary, require a person to undergo an IE. The applicant had recently undergone an IE in 2014 regarding his entitlement to another physiotherapy treatment plan for the injuries he sustained from the accident.
[28.] I do not find that it was reasonably necessary for the respondent to require the applicant to undergo another IE when one had been done the previous year for the same type of treatment plan.
[29.] As such, I find that the applicant’s absence from the IE was justified and further find that the expenses for the treatment plan are reasonable and necessary for the same reasons indicated for the treatment plan denied on September 25, 2014.
iii. Are the fees for the orthopaedic and psychiatric assessments reasonable?
Law
[30.] Under section 24 of the Schedule, the respondent is required to pay for reasonable fees for assessments and examinations.
Findings
[31.] I find that the respondent is required to pay for the cost of the psychiatric and orthopaedic assessments.
[32.] The applicant notes that the respondent paid for psychiatric and orthopaedic assessments in 2012 for Dr. Gerber and Dr. West, respectively.
[33.] The applicant submits that these reports are dated and sought funding for updated assessments in order to determine if his recovery could be facilitated by different recommendations than those made in 2012.
[34.] The respondent denied these treatment plans on the basis that the treatment plans were duplicates, as identical assessments were conducted in 2012. The respondent also conducted IEs by way of paper review by Dr. Gianni Maistrelli, orthopaedic surgeon and Dr. Joel Eisen, psychiatrist, for an orthopaedic and psychiatric assessment, respectively. Both assessors indicated that the treatment plans were not reasonable and necessary.
[35.] The applicant submits that neither Drs. Maistrelli nor Eisen were provided the reports of Dr. West and Dr. Gerber for their paper reviews. The applicant also indicates that the respondent also failed to provide Dr. Eisen with the applicant’s treating psychiatrist’s disability certificate dated May 31, 2012, which diagnosed him with severe depression.
[36.] The applicant argues that the assessors were not able to accurately assess his orthopaedic or psychiatric status, given that: a) they were not given sufficient documents to review; and, b) they did not personally examine the applicant. I agree.
[37.] I do not accept the respondent’s argument that the psychiatric assessment in particular was not reasonable and necessary given that it had approved a chronic pain assessment, which the respondent states that the applicant did not attend. I find it irrelevant whether or not the applicant attended the chronic pain assessment and the approval of that treatment plan has no bearing on whether the other assessments are reasonable and necessary.
[38.] I also do not accept the respondent’s argument that the approval of the psychiatric assessment should be dismissed on the basis that the treatment plan was signed by a medical doctor, Dr. Abida Usaman, and not a psychiatrist. Subsection 38(2) of the Schedule only requires that the treatment plan be signed by a member of a health profession or by a social worker. Dr. Usaman is a member of a health profession.
[39.] Given that the applicant continues to suffer from chronic pain and considering that Drs. West and Dr. Gerber’s assessments were conducted in 2012, I find that the treatment plans are reasonable and necessary in order to get an updated status of the applicant’s condition and what type of treatments will best facilitate his rehabilitation.
[40.] I am of the view that the applicant met his onus to show that the fees for both the orthopaedic and psychiatric assessments were reasonable.
iv. Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments?
[39.] Section 10 of Ontario Regulation 664, R.R.O. 1990 (“O. Reg. 664”) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may 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 with interest.
v. Did the respondent unreasonably withhold or delay payment of benefits and if so, for how long?
[40.] The applicant submitted that the respondent unreasonably withheld or delayed payment regarding the medical benefits for physiotherapy services and the cost of psychiatric and orthopaedic assessments. I agree that the payment for physiotherapy services and the psychiatric and orthopaedic assessments were unreasonably withheld for the reasons that follow.
[41.] Regarding the physiotherapy services, the respondent does not dispute that the applicant has chronic pain syndrome, but whether the treatment will lead to the applicant’s recovery. Drs. West and Gerber indicated that the applicant will not likely recover from the pain despite appropriate treatment. I am of the view that the goal for treatment for this applicant should be pain relief and reduction given his chronic pain diagnosis. As such, I do not agree with the respondent’s rationale that given the applicant is not able to recover from his injuries that further physiotherapy treatment is not reasonable and necessary.
[42.] Regarding the assessments, given that Drs. West and Gerber’s assessments were dated and the persistent nature of the applicant’s chronic pain, I find that it was reasonable for the applicant to request to undergo new assessments in order to determine if the assessors could recommend other treatments at this stage of his chronic pain. I am not persuaded by the respondent’s position regarding the denial of the assessments given the nature of the applicant’s chronic pain and the timing of his prior assessments.
[43.] Regarding the length of the respondent’s delay, the respondent delayed payment for 1-3 years depending on the treatment plan. The delay in payment of the treatment plans delayed the applicant’s ability to effectively manage his chronic condition. According to the applicant, he had to incur the cost of the physiotherapy services, which has impacted him financially.
[44.] I find that an award under section 10 of O. Reg 664. is warranted. I now turn to calculating the amount of the award.
Calculating the award
[45.] According to section 10 of O. Reg. 664, the adjudicator has discretion to award up to 50 per cent of the disputed amount, including interest, for amounts unreasonably withheld or delayed. I will award 50 per cent of the disputed amount, including interest, for the reasons outlined above.
vi. Is the applicant entitled to interest on any overdue payment of benefits?
[46.] Subsection 46(2) of the Schedule requires that the respondent pay interest on the overdue payments for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.
[47.] As such, the applicant is entitled to all applicable interest as per the Schedule for the respondent’s overdue payment of the claimed benefits.
V. Order
[48.] I order the following:
i. The applicant is entitled to a medical benefit for physiotherapy services from Access Rehab in the amount of $1,877.80.
ii. The applicant is entitled to a medical benefit for physiotherapy services from Access Rehab in the amount of $998.
iii. The applicant is entitled to the cost of an orthopedic assessment from Access Rehab in the amount of $2,486.
iv. The applicant is entitled to the cost of a psychiatric assessment from Access Rehab in that amount of $2,486.
v. The applicant is entitled to an award in the amount of 50% of the amounts of the approved treatment plans, plus interest.
Released: September 8, 2017
Nicole Treksler, Adjudicator```