16-004375 v State Farm Mutual Automobile Insurance Company
Date: 2017-12-08 Tribunal File Number: 16-004375/AABS Case Name: 16-004375 v State Farm Mutual Automobile Insurance Company
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:
Applicant
And
State Farm Mutual Automobile Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Adrian Lomaga, Counsel For the Respondent: Michael Chadwick, Counsel
HEARD in Writing: July 4, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, [the applicant] was injured in a motor vehicle accident (the accident) on September 17, 2014 He applied to the respondent, State Farm, for insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2Among the benefits the applicant initially sought from his insurer were a number of medical benefits as well as Income Replacement Benefits (IRB).
3When these benefits were denied, the applicant submitted an application to the Licence Appeal Tribunal (the Tribunal).
4A case conference was held by the Tribunal on March 31, 2017. The Tribunal ordered a hybrid hearing, in writing and in person, to hear this matter on July 4, 2017. Prior to the hearing, the parties managed to settle a number of issues between them. The remaining outstanding issues deal with claims for certain medical benefits.
ISSUES
5Based on the order of the Tribunal dated March 31, 2017, the following are the issues remaining to be decided at the written hearing:
a) Is the applicant entitled to a medical benefit in the amount of $2,300.58 for physiotherapy services from Physiomed, as submitted on January 11, 2017 and denied on January 23, 2017?
b) Is the applicant entitled to a medical benefit in the amount of $2,520 for physiotherapy services from Physiomed, as submitted on December 19, 2016 and denied on January 3, 2017?
c) Is the applicant entitled to a medical benefit in the amount of $6,610.50 for a Psycho-Vocational and Functional Abilities Evaluation by Read Clinic, as submitted on December 19, 2016 and denied on January 3, 2017?
d) Is the applicant entitled to a medical benefit in the amount of $1,728.75 for an in-home assessment by Mr. Tamir, as submitted on December 13, 2016 and denied on December 22, 2016?
RESULT
6I find that the applicant is entitled to:
a) the medical benefit in the amount of $2,300.58 for physiotherapy services from Physiomed, as submitted on January 11, 2017 and denied on January 23, 2017;
b) the medical benefit in the amount of $2,520 for physiotherapy services from Physiomed, as submitted on December 19, 2016 and denied on January 3, 2017;
c) the medical benefit in the amount of up to $4,000.00 for a Psycho-Vocational and Functional Abilities Evaluation by Read Clinic, as submitted on December 19, 2016 and denied on January 3, 2017; and
d) the medical benefit in the amount of $1,728.75 for an in-home assessment by Mr. Tamir, as submitted on December 13, 2016 and denied on December 22, 2016.
ANALYSIS
7Section 15(1) of the Schedule provides in part that the insurer shall pay for all “reasonable and necessary expenses” incurred by an insured person as a result of the accident for such services as medical, chiropractic, psychological, occupational therapy and physiotherapy services. This section will guide me in my analysis below.
Issue 1: Is the applicant entitled to a medical benefit in the amount of $2,300.58 for physiotherapy services from Physiomed, as submitted on January 11, 2017 and denied on January 23, 2017?
8The applicant submitted two treatment plans from Physiomed. The plan in the amount of $2,300.58 was for physiotherapy services. The Applicant submitted to the Tribunal that the $2,300.68 Treatment Plan was proposed for active physiotherapy consisting of 18 one-hour sessions.
9In its decision refusing the benefit, the respondent stated that the treatment plan for physiotherapy was not reasonable and necessary. The respondent relied on an Insurer’s Examination (IE) physiatry report dated February 6, 2015 in which the assessor, Dr. Julie Millard, found the applicant sustained minor injuries and that he had not reached pre-injury status because he continued to engage in passive therapy program rather than an active self-directed exercise program. As the respondent was of the opinion that the physiotherapy treatment plan submitted was also a passive therapy program, it did not consider the plan reasonable and necessary.
10As the respondent’s refusal is based solely on the report of the IE assessor Dr. Millard, and the distinction it suggests Dr. Millard has drawn between “active” and “passive” treatment, I will begin my analysis by reviewing Dr. Millard’s opinion.
11Dr. Millard assessed the applicant on January 23, 2015, about four months after the accident. According to the IE report, at the time, the applicant was getting “physical therapy treatment” at a frequency of twice a week. The applicant described headaches, neck pain, low back pain, and tight left knee. The IE found that the applicant had not reached pre-injury status or maximum medical improvement and that he had moderate impairments in cervical spine range of motion and moderate to severe impairment in lumber range of motion.
12In response to the question as to whether there were barriers to the applicant’s return to work, Dr. Millard stated:
Yes, as only passive modalities are being rendered to the claimant at his rehabilitation centre, focus needs to change to a more active approach to prevent further deconditioning and as a form of therapeutic exercise.
13Dr. Millard’s comment about the treatment modalities applied to the treatment that the applicant was receiving in February, 2015, and not the Treatment Plan submitted on January 11, 2017.
14The proposed Treatment Plan described the services to include “exercise, multiple body sites”. The Treatment Plan went on to elaborate:
We are focusing on active therapies and self-directed exercises in order to help [the applicant] [sic] able to manage the exercises and program on his own. Because he has not had any treatment (because he moved and was not able to find a facility until now), it will take some time to bring his strength up to where it needs to be, however, we are confident that we can reach maximal recovery shortly.”
15The question I have to consider is whether it is reasonable for the respondent to refuse the treatment plan submitted in 2017 based on a comment made by Dr. Millard about a treatment that was provided to the applicant more than 2 years prior. The answer, I find, is no. The respondent does not deny that the applicant requires some form of treatment – it would have said so otherwise in its refusal notice. The treatment plan as proposed, which focuses on “active therapies and self-directed exercises in order to help [the applicant] able to manage the exercises and program on his own,” is, in my view, not a “passive” treatment, as it requires the applicant’s active participation in the treatment exercises.
16I further note that the respondent’s own IE did observe moderate to severe impairment in the applicant’s motions. As well, the applicant has been diagnosed in June, 2015 by Dr. Kiraly (also an IE arranged by the respondent) with, among other issues, major depressive disorder, posttraumatic stress disorder, and chronic pain associated disorder due to both psychological factors and a general medical condition. Dr. Kiraly also diagnosed the applicant as having pain due to injuries sustained in the motor vehicle accidents and stress due to the loss of good health and role functions. He noted the applicant as having difficulties holding objects for long periods of time, pushing and pulling, looking up, down and sideways as well as decreased range of motions. The respondent did not dispute the finding of Dr. Kiraly, only pointing out that Dr. Kiraly considered the applicant’s prognosis to be good. Given the diagnoses about the applicant’s continuing problems with impairments in cervical spine range of motion and in lumber range of motion, as well as chronic pain, the proposed physiotherapy treatment would appear to be both reasonable and necessary, to help the applicant improve his strength and hopefully assist in his recovery.
17In view of the above, I find the proposed treatment to be reasonable and necessary and as such the applicant is entitled to the $2,300.58 physiotherapy services from Physiomed.
Issue 2: Is the applicant entitled to a medical benefit in the amount of $2,520 for physiotherapy services from Physiomed, as submitted on December 19, 2016 and denied on January 3, 2017?
18The second benefit in question is for 18 sessions of laser spinal decompression therapy. The explanation for the laser therapy, as explained in the Treatment Plan is as follows:
This treatment has been proven to significantly improve patients with discogenic lumbar and cervical spine pain. We feel this form of treatment is something new the patient has not tried and we are quite confident we will get excellent results after 15-20 sessions. Due to his symptoms and pain, [the applicant] is a perfect candidate for decompression therapy.
19As with the physiotherapy services, the respondent refused to approve the laser decompression treatment because, pursuant to the opinion of Dr. Millard, in its view, it was passive therapy, not active therapy. The respondent took the view that there is no medical support to suggest the treatment will lead to any further improvement to the applicant’s physical abilities.
20I note first of all, that the laser spinal decompression therapy is something that the applicant has not tried previously. Clearly it cannot be the same treatment that the applicant was receiving at the time he was assessed by Dr. Millard. I also note the following question and response included in the Treatment Plan for the laser treatment:
Barriers to recovery:
(i) Have you identified any other barriers to recovery? Yes
Patient has suffered with multiple disc injuries which have proven to slow his recovery. He is suffering from anxiety and depression as well due to the accident and the pain he is consistently in. Due to the fact that he is very pain focused does not help his improvement.
(ii) Do you have any recommendations and/or strategies to overcome these barriers?
Educate, motivate and reassure patient. This patient has been through several different types of therapy (chiro, physio, pain clinics, injections, massage therapy, exercise, etc.) Patient is very motivated to try our laser decompression therapy as it is something he has never tried and is very motivated. We will also focus on pain control and other forms of active therapy in order to help him reach maximal recovery.
21On its face, the description of this laser treatment would suggest that it is an active form of treatment that the applicant is motivated to try. If the main reason for the refusal is the respondent’s concern about the treatment being “passive” as opposed to “active”, I find there is no basis for such concern.
22I also find the respondent has not disputed the diagnosis that the applicant has received from Physiomed regarding his lumbar spine which necessitates ongoing treatment of some form. I further note that since this is a treatment that the applicant has never tried, it could not have been the same treatment that Dr. Millard regarded as “passive”. As such, as in the case with the physiotherapy, I find the Treatment Plan for laser treatment to be reasonable and necessary.
Issue 3: Is the applicant entitled to a medical benefit in the amount of $6,610.50 for a Psycho-Vocational and Functional Abilities Evaluation by Read Clinic, as submitted on December 19, 2016 and denied on January 3, 2017?
23Notwithstanding that the parties have settled the issue of the applicant’s entitlement to an IRB for the period beginning 104 weeks from the accident, the applicant still seeks payment for an assessment by the Read Clinic that, among other things, addressed his ability to return to the workforce.
24The Read Clinic submitted an OCF-18 proposing a Psycho-Vocational and Functional Abilities Evaluation. The assessments were performed over two days, on February 21 and February 22, 2017 respectively. Dr. Bain, a chiropractor, conducted the functional abilities evaluation and concluded that the applicant’s symptoms prevent him from working in any job. He also noted that the laser decompression therapy was “loosening up” the applicant and increasing his ranges of motion. The Psycho-Vocational evaluation was completed by Dr. Scherer, a psychologist, who concluded that the applicant “is deemed totally unemployable in both his pre-accident occupation and an alternative form of work for which he might otherwise be considered by virtue of his education, training, and experience.”
25The applicant stated that before the Read Clinic submitted its report, the respondent had not requested any IEs to address the applicant’s post-104 weeks IRB entitlement. But right after the Read Clinic reports were served on the respondent on April 3, 2017, the respondent scheduled their own functional abilities evaluation and psycho-vocational assessments to determine the post-104 weeks IRB. The applicant submitted it is bad faith for the respondent to suggest that an assessment requested by their insured is unreasonable, yet insist that similar assessments undertaken by their own assessors is reasonably required.
26The issue I need to decide is whether or not the Psycho-Vocational and Functional Abilities Evaluation was reasonable and necessary; whether or not the respondent has acted in bad faith does not help me make that determination. But as can be seen below, I do find it relevant to my assessment regarding ‘reasonable and necessary’ that the respondent has chosen to arrange for their own assessment after being presented with the applicant’s claim for the Psycho-Vocational and Functional Abilities Evaluation.
27The respondent’s initial reason for denying the evaluation was based on the February 6, 2015 Physiatry report which determined that the applicant required an active therapy program to improve his physical functioning. The respondent thus submitted that another assessment was unnecessary as it was clear what treatment the applicant would require. Yet just three days after being submitted with the OCF 18 for the Psycho-Vocational and Functional Abilities Evaluation, the respondent wrote to the applicant to schedule a series of evaluations and assessments by among others, a chiropractor and a psychiatrist. Such a decision on the part of the respondent appears to undermine its’ own claim that the applicant does not require any further assessment and evaluation.
28Further, the record would appear to support the applicant’s position that prior to the completion of Dr. Bain’s and Dr. Scherer’s reports, the applicant has not been assessed for his abilities post the 104-week mark.
29Dr. Bain’s report focused on the functional capacities of the applicant such as his ranges of motion, tolerances, and abilities to engage in various physical activities. Dr. Bain’s report also opined on the applicant’s ability to return to work. Dr. Scherer’s report examined the applicant’s mental health status, personality and psychopathology, and his vocational rehabilitation from a psychological perspective. Dr. Scherer also provided his opinion about the applicant’s ability to return to the workforce.
30As noted above, the assessments by Dr. Bain and Dr. Scherer were conducted in February, 2017, some two and a half years after the accident. These reports were prepared clearly for several purposes, including assessing the applicant’s entitlement to IRB benefits post the 104 weeks mark. I do not accept the respondent’s assertion that Dr. Scherer’s report was simply for the purposes of providing a diagnosis, treatment and rehabilitation which had already been done previously, especially given the time gap of almost two years between Dr. Bain’s and Dr. Scherer’s reports and the two previous IE assessments.
31Based on all of the above, I thus find that the Psycho-Vocational and Functional Abilities Evaluation was reasonable and necessary.
32Having made that finding, I need to address the issue of quantum. Section 25(5) of the Schedule states that an insurer shall not pay more than a total of $2,000 in respect of, among other things, fees and expenses for conducting any one assessment or examination. In this case, the applicant is claiming a total of $6,610.50 for two assessments. The treatment plan does not provide a breakdown of the individual amount for Dr. Bain’s and Dr. Scherer’s report. Given the $2,000 limit provided in the Schedule, I find that the applicant is entitled to up to $2,000 each for Dr. Bain’s and Dr. Scherer’s assessments.
Issue 4: Is the applicant entitled to a medical benefit in the amount of $1,728.75 for an in-home assessment by Mr. Tamir, as submitted on December 13, 2016 and denied on December 22, 2016?
33The last benefit claimed by the applicant is for an in-home assessment to be provided by Mr. Tamir, which purpose is to assess the applicant’s entitlement for attendant care benefit.
34The applicant submitted that he is entitled to this assessment because no prior in-home occupational therapy assessments had ever been scheduled or proposed.
35The applicant relied on s.20(3) of the Schedule, stating that attendant care benefits can be claimed following 104 weeks after the accident in respect of an insured person who sustains a catastrophic impairment. However, the applicant also submitted that an OCF-19 dated April 19, 2017 prepared by Omega Medical Consultants to determine whether the applicant’s injury constitutes a catastrophic impairment in accordance with the Schedule.
36The respondent, on the other hand submitted that the Attendant Care Assessment is not recoverable because attendant care benefits are not payable beyond 104 weeks following the accident pursuant to s.20(2) of the Schedule, and further, an attendant care assessment and Form 1 shall not be submitted after the 104 week mark pursuant to s.42(12) of the Schedule.
37I find the applicant must dispute the denial of this benefit within the two-year time limit pending a determination of whether the impairments meet the catastrophic threshold, or risk losing the right to claim ongoing Attendant Care Benefits at the higher level should he later meet the catastrophic impairment threshold. Although the two-year time limit to dispute this denial does not expire until December 2018, the applicant has chosen to dispute the denial in this proceeding. Both parties tendered evidence and submissions on this issue.
38Both parties also referred to the case of Kelly v. Guarantee1 in which the plaintiff was found to have been catastrophically injured and required 24 hour supervision following her release from the hospital. The respondent distinguished the case based on the facts, arguing that there is no evidence the applicant has sustained a catastrophic injury. For reasons set out below, I do not find Kelly to be relevant.
39I note first of all, that as of this date, no determination has been made whether the applicant has sustained a catastrophic impairment as a result of the accident. I further note that while s.42(12) does state that an insured person shall not submit an assessment of attendant care needs if more than 104 weeks have elapsed since the accident, subsections (a) and (b) of s.42(12) provide the following exception:
(a) the insured person is or may be entitled under section 20 to receive attendant care benefits more than 104 weeks after the accident; and
(b) at least 52 weeks have elapsed since the last examination under section 44 relating to entitlement to attendant care benefits.
40As noted above, there has been no prior assessment with regard to the applicant’s in-home needs. Further, there is evidence in the record suggesting that the applicant has been diagnosed with major depressive disorder, posttraumatic stress disorder, and chronic pain associated disorder due to both psychological factors and a general medical condition. According to Dr. Kirlay, the applicant was disabled from his pre-loss activity levels, including work duties, and in fact the applicant has not returned to work since the accident.
41Given the evidence before me with respect to his impairments, I find that the applicant “is or may” be entitled to attendant care benefits more than 104 weeks after the accident and he may be found, at some point in the future, to have sustained catastrophic injuries as a result of the accident. As such, I find that he should not be barred from submitting the in-home assessment plan at the present time. Further, given the applicant’s ongoing functional challenges as a result of his impairments, I find the in-home assessment plan reasonable and necessary.
Interest
42While the issue of interest was not specifically raised during the case conference report or in the application, the applicant did ask that interest be paid on the denied benefits in his written submission. Also, s.51(3) of the Schedule provides that interest is payable on any overdue payment. As such, I find that the applicant is entitled to interest for the overdue payment of benefits, pursuant to s. 51 of the Schedule.
ORDER
43The Tribunal finds the applicant is entitled to:
a. the medical benefit in the amount of $2,300.58 for physiotherapy services from Physiomed, as submitted on January 11, 2017 and denied on January 23, 2017;
b. the medical benefit in the amount of $2,520 for physiotherapy services from Physiomed, as submitted on December 19, 2016 and denied on January 3, 2017;
c. the medical benefit in the amount of up to $4000.00 for Psycho-Vocational and Functional Abilities Evaluation by Read Clinic, as submitted on December 19, 2016 and denied on January 3, 2017; and
d. The medical benefit in the amount of $1,728.75 for an in-home assessment by Mr. Tamir, as submitted on December 13, 2016 and denied on December 22, 2016.
e. Interest on the overdue payment of the above benefits.
Released: December 8, 2017
Avvy Go, Adjudicator