Date: 2018-06-25

Tribunal File Number: 17-004391/AABS

Case Name: 17-004391 v TTC Insurance Company Limited

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

Applicant

and

TTC Insurance Company Limited

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

Paralegal for the applicant: Arvin Gupta

Counsel for the respondent: Tamara E. Broder

Written Hearing: December 11, 2017

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on June 7, 2015, and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“the Schedule”).

2[The applicant] submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) when her claim for benefits was denied by TTC Insurance (“the respondent”).

3[The applicant] was a passenger on a Toronto Transit Commission (TTC) bus when it collided with another vehicle.

4She acknowledges significant pre-MVA history of a left knee injury (cause unspecified), and back injuries sustained in a previous motor vehicle accident in 2014. At the time of the accident, W.H. had been getting physiotherapy from Healthmax Physiotherapy, the proponent of the treatment plans in dispute, since 2014.

DISPUTED BENEFITS

5The issues before me are:

1. Is the applicant entitled to receive medical benefits recommended by Healthmax Physiotherapy as follows;

a. $2,504.10 for a physiotherapy treatment plan submitted April 20, 2016, denied May 6, 2015;

b. $2,444.10 for a physiotherapy treatment plan submitted July 25, 2016, denied August 5, 2016;

c. $2,004.96 for a physiotherapy treatment plan submitted August 17, 2016, denied August 25, 2016;

2. Is the applicant entitled to payments for the cost of examination in the amount of $2,200.00, less $2,000.00 approved, for a psychological assessment, recommended by Dr. Harris in a treatment plan dated September 9, 2016, denied September 14, 2016?

3. Is the applicant entitled to receive a medical benefit of $1,618.94¹, for a psychological treatment plan recommended by Healthmax Physiotherapy, submitted March 29, 2017, denied by the respondent on April 11, 2017?

4. Is the applicant entitled to interest on any overdue payment of benefits?

FINDINGS

6The applicant is not entitled to payment of the benefits for physiotherapy she claims in issue 1. Her appeal is denied.

7The applicant is entitled to payment of the remainder of the amount of benefits for the psychological assessment and treatment, set out respectively as issues 2 and 3. Her appeal on these claims is allowed, with interest on overdue payments to be paid by the respondent, at the prescribed rate.

8The respondent’s request for costs is denied.

REASONS

9Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident.

10The onus is on the applicant, W.H., to show that each proposed treatment plan is reasonable and necessary.²

Issue 1: Physiotherapy Treatment Plans

11W.H. submits that ongoing, consistent complaints of back pain, documented by the clinical notes and records (CNRs) of her family physician, Dr. Olga Li and of Healthmax Physiotherapy from June 10, 2017 to April 27, 2017 demonstrate a chronic pain condition.

12The submitted Healthmax CNRs note the following:

i. mid- and lower back pain, aggravated at work (as a supermarket cashier) by long periods of standing, bending, twisting, squatting, lifting and carrying, despite the daily use of a back brace;

ii. complaints of sleep loss caused by back pain;

iii. pain variously described as “on and off”³ and “continuously stiff and sore”⁴; and

iv. ongoing physiotherapy and recommendations for exercise, heat and ice pack treatments.

13The respondent rejects W.H.’s claims for physiotherapy outright, and contends that they are frivolous and vexatious. In support of its position, it submits:

i. CCTV⁵ video of the accident which shows that the accident was minor, that the applicant was not visibly hurt or impaired in the immediate aftermath and that she was standing and then moving freely with a large bag and purse to exit the bus after the accident;

ii. its Occurrence Report by the bus operator, dated June 7, 2015, which noted that W.H. declined medical attention several times.

14The respondent argues that the alleged back pain for which W.H. seeks treatment was not caused by the accident, but is a consequence of a left-knee injury sustained in 2014, as noted in Healthmax CNR of January 29, 2016. This view is shared by Dr. Reuven Lexier, orthopedic surgeon, in his insurer examination (IE) report dated June 2, 2016 (and various addenda).

15The respondent submits that, based on Healthmax CNRs, W.H. reported improvement in lower back pain in June-July 2015 (the months immediately following the accident), made no complaints of back pain over 10 visits in July-August 2015 and took a 3½ month break in treatments from August 13 to October 30, 2015. It argues that this sequence of events, read together with the above-noted reports, shows that after October 30th, W.H. was not being treated for any accident-related pain.

16The respondent submits that all of the treatment received and claimed by W.H. was in response to the physiotherapy protocol and direction given by Dr. Franklin Tran, the surgeon who performed a left-knee arthroscopic procedure on W.H. May 30, 2016 – almost 1 year post accident. From June 6, 2016 to May 2017, W.H. attended about 36 physiotherapy sessions at Healthmax, and the CNRs refer to treatment according to the surgeon’s rehabilitation protocol with no references to accident-related injuries.

17Finally, the respondent notes that the treatment plans from Healthmax are in fact based on dealing with W.H.’s left-knee related problems. It points out that all three treatment plans include notes focussing on dealing with the surgeon’s rehabilitation protocol noted above.

18Based on the evidence submitted, I find that W.H. has not met the onus on her to prove that the treatment she seeks is to resolve problems caused by the accident. I found the CNRs and treatment plans point to the left-knee injury, and compensatory body movement, as the likelier source of her pain problems after October 30, 2015, and the focus of her claimed treatment plans appears heavily oriented to post-surgical protocols.

19I note that W.H. submitted no argument or evidence to address the respondent’s concerns about causation and this in conjunction with the above medical evidence defeats her claim for physiotherapy.

Issue 2: Psychological Assessment

20W.H.’s assessment plan was approved. The respondent approved the assessment recommended by Dr. Harris, clinical psychologist. It paid the maximum $2,000.00 allowed under s. 25 (5) of the Schedule for the assessments.

21The respondent refused to pay the $200.00 billed by Dr. Harris for the preparation of the OCF-18⁶.

22The respondent contends that the cost of OCF-18s is covered by the maximum amount payable under s. 25(5) of the Schedule in respect of fees for assessments. Subsection 25(5) states:

Despite any other provision of this Regulation, an insurer shall not pay […] more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it […]

23The respondent argues that the $2000.00 cap applies to both conducting the assessment and the preparation of the OCF-18 form for that assessment. It asserts that this interpretation precludes it from paying a fee for preparing an OCF-18 in any amount above the s. 25(5) cap.

24The applicant contends that the respondent is liable to pay for the costs of the OCF-18 as a separate expense over and above the costs of the approved examinations or assessments themselves.

25I am required to consider the Insurance Superintendent’s Guideline No. 03/14⁷ in determining how to interpret s. 25(5) of the Schedule. It reads, at pp.2-3:

The $200 maximum fee referred to in this Guideline and in Superintendent’s Guideline No. 06/10 (July 2010 Professional Services Guideline) for a Treatment and Assessment Plan (OCF-18) applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS, namely reviewing and approving an OCF-18 under subsection 38 (3) (c), […] The $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF-18 and that an insurer agrees to pay for under subsection 38 (8) of the SABS.

26I find that the Superintendent’s Guideline No. 03/14 is clear and requires a reading of the Schedule that:

a. Subsection 25(5) of the Schedule refers only to the costs associated with actually carrying out the recommendations included in the treatment and assessment plan once approved; and

b. The cost of preparing an OCF-18 is a “separate cost” that is payable by the insurer above the $2,000 cap set by s. 25(5) when a treatment and assessment plan has been approved.

27The respondent must pay the $200.00 fee charged by Dr. Harris for preparing the OCF-18 for the approved treatment plan.

Issues 3: Psychological Treatments

28The respondent partially approved this plan, based on an IE report from Dr. Eyal Bodenstein, psychologist, dated August 15, 2017, which concluded that 12 sessions of psychological counselling sessions were reasonable and necessary.

29The respondent states that it paid a portion of W.H.’s claim despite concerns about her evidence, which include:

i. no reference to accident-related psychological difficulties by Dr. Li in any CNRs;

ii. CNRs from Healthmax explicitly denying psychological distress; and,

iii. its view that the assessment by Dr. Harris was focussed on distress arising from the left-knee generated problems, which were not caused by the accident.

30I find that W.H. is entitled to the remainder of the treatment plan, because:

i. My reading of Dr. Harris’ assessment does not indicate that W.H.’s psychological issues were not a result of the accident. On the contrary, the report is clear that the accident was a major factor in generating W.H.’s psychological problems.

ii. I note that Dr. Bodenstein offered no analysis of the proposed treatment plan or Dr. Harris’ psychological assessment: Dr. Bodenstein makes his own independent recommendation. Dr. Bodenstein is persuasive – and in no way does his report act to rebut of W.H.’s treatment plan.

iii. Both psychologists agree on W.H.’s need for treatment. Both psychologists recommend 12 counselling sessions. In my view, the medical evidence is clear that 12 counselling sessions are reasonable and necessary.

iv. The respondent does not raise unreasonable cost as a factor in its decision to refuse W.H.’s claim.

Interest

31Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

32The respondent is liable to pay interest on overdue payments for the benefits that I have found to be payable, at the prescribed rate.

Costs

33Rule 19.1⁸ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

34The respondent seeks legal costs but makes no argument that the respondent has met the test of Rule 19.1 in its conduct in this proceeding.

35The applicant’s cost request is denied.

CONCLUSIONS

36The applicant’s appeal is allowed on the following issues:

i. Cost of psychological examination (unpaid portion of claim) for psychological services – issue 2.

ii. Cost of psychological treatment plan (unpaid portion of claim) for chiropractic treatment – issue 3.

37The applicant’s claims for physiotherapy (issue 1.a-c.) is denied.

38The respondent’s request for costs is dismissed.

Released: June 25, 2018

______________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1$4,063.10 recommended in the plan, less $2,444.16 approved by the respondent; the treatment plan was partially approved by TTC Insurance.
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Healthmax CNR dated April 29, 2016
4. 4Healthmax CNRs dated January 26, February 1 and February 8, 2017.
5. 5CCTV stands for “closed circuit television” – video recording standard on TTC buses
6. 6An OCF-18 is a form used to set out a recommended treatment or assessment plan that sets out the cause and nature of the applicant’s injuries. It outlines assessments or examinations that a health care provider feels is required for ongoing management of the applicant’s recovery.
7. 7see s.268.3(2) of the Insurance Act, RSO 1990, c.I.8.
8. 8All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)