17-006108 v. Unifund Insurance Company, 2018 CanLII 110931

Licence Appeal Tribunal

Date: 2018-08-17 Tribunal File Number: 17-006108/AABS Case Name: 17-006108 v Unifund 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:

17-006108

Applicant

and

Unifund Insurance Company

Respondent

DECISION

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Heidi R. Brown

Counsel for the Respondent: Anju Sharma

Heard in writing on: March 12, 2018

OVERVIEW

1The applicant was injured in an automobile accident on September 1, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for medical benefits that were denied by the respondent because the medical benefits were not reasonable and necessary. The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

3The following are the issues to be decided as per the case conference order dated January 31, 2018:

i. Is the applicant entitled to a medical benefit in the amount of $2,907.44 for physical rehabilitation treatment recommended by Premier Medical Centre Inc. in an OCF-18 submitted to the respondent on February 3, 2016?

ii. Is the applicant entitled to a medical benefit in the amount of $1,298.10 for physical rehabilitation treatment recommended by Premier Medical Centre Inc. in an OCF-18 submitted to the respondent on February 12, 2016?

iii. Is the applicant entitled to a rehabilitation benefit in the amount of $2,135.95 for driving training services recommended by Corporate Driver Training Services in an OCF-18 submitted to the respondent on October 20, 2016?

iv. Is the applicant entitled to a medical benefit in the amount of $2,968.01 for physical rehabilitation treatment recommended by Hartwell Health in an OCF-18 submitted to the respondent on December 17, 2016?; and

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

RESULT

4Based on the totality of the evidence before me, I find the applicant is entitled to the following:

i. A Medical benefit for physical rehabilitation in the amount of $2,907.44

ii. A Rehabilitation benefit for driver training services in accordance with the FSCO Professional Services Guideline; and

iii. Interest in accordance with the Schedule on the above two approved treatment plans.

5The applicant is not entitled to the following:

I. A Medical benefit for physical rehabilitation in the amount of $1,298.10 and

II. A Medical benefit for physical rehabilitation in the amount of $2,968.01.

ANALYSIS

Is the applicant entitled to a medical benefit for physical rehabilitation in the amount of $2,907.44?

6Based on the following, I find the applicant to be entitled to the treatment plan for physical rehabilitation in the amount of $2,907.44 for the following reasons.

7On November 19, 2015, Dr. Prutis-Misterska, a physiatrist, diagnosed the applicant with severe myofascial cervical strain and lumbar sprain and recommended physiotherapy, massage therapy and hydrotherapy. On December 23, 2015 Dr. Prutis-Misterska notes that the applicant continued to experience neck pain and low back pain which is severe and interferes with his activities of daily living and that the accident aggravated his pre-existing degenerative changes in his cervical and lumbar spine. It is recommended that the applicant continue with physiotherapy. On March 17, 2016 Dr. Prutis-Misterska notes that the applicant reported improvement in his low back pain while undergoing rehabilitation sessions and it is recommended that he continue his regular rehabilitation programs.

8The applicant was also assessed by Dr. Potashner, Rheumatologist, and in his report dated September 12, 2016 he diagnosed the applicant with myofascial pain syndrome of the cervical spine with cervicogenic headache and myofascial pain syndrome of the lumbar spine and he recommends ongoing rehabilitation treatment to control the pain.

9The treatment plan in dispute lists pain reduction, increased range of motion and a return to modified work activities as its goals. The rehabilitation treatment consists of physiotherapy, electric current therapy, massage therapy, heat/cold therapy, comprehensive myofascial therapy, ultrasound, and laser and chiropractic treatment.

10The respondent submits that the applicant’s physiatrist, Dr. Prutis-Misterska reports that the chiropractic manipulations were making the applicant worse and that she does not condone chiropractic manipulation. Dr. Prutis-Misterska notes that the applicant felt better once the chiropractic manipulations were stopped. As a result of this and from the respondent’s insurer examination (“IE”) doctor, Dr. Czok, who opined that the applicant sustained a cervical and lumbar sprain/strain and because 6 months had elapsed since the accident at the time of her assessment of the applicant, it was her opinion that the proposed physical rehabilitation in the amount of $2,907.44 had no role and self-directed exercises were recommended instead.

11I do not agree with the respondent’s submissions for two reasons. First, the treatment plan is not only for chiropractic treatment. The chiropractic component is one of eight different types of treatment being proposed. Should the chiropractic component not be tolerable for the applicant, he can advise the clinic of that or the treatment could be approved less any chiropractic component. To simply deny the entire treatment plan when one component can be modified to be in accordance with his doctor’s recommendation does not seem reasonable in my opinion.

12Second, the respondent’s IE assessor, Dr. Czok, opines that the applicant is still suffering from a cervical and lumbar spine sprain and strain and since 6 months have elapsed from the date of the motor vehicle accident only home based exercises are recommended. However, the applicant has seen several medical practitioners including his own family doctor who has been able to assess him on a regular basis and none of them come to same conclusion as Dr. Czok that a self-directed exercise program would be sufficient for the applicant.

13The reduction of pain for the applicant is in my opinion, a reasonable and necessary goal and he is entitled to choose treatment that reduces pain and increases strength. His doctors are recommending continued treatment, Dr. Prutis-Misterska notes that he is feeling low back pain relief as a result of the treatment and one of the treatment plan’s goals is pain reduction. As a result of the foregoing conclusions from the doctors and the fact that he is still suffering from pain, I find the treatment plan to be reasonable and necessary.

Is the applicant entitled to a rehabilitation benefit for driving training services?

14I find that the applicant is entitled driving training services, however, the amount should be in accordance with the FSCO Fee Guideline² for the services of the psychologist and a rehabilitation counselor because the driver rehabilitation specialist providing the services should be considered a rehabilitation counselor for the purposes of the chargeable hourly rate.

15The applicant’s treating psychologist, Dr. Pillai, diagnosed the applicant with Major Depressive Disorder with features of a Post-Traumatic Stress Disorder with ongoing Specific Phobia (in-vehicular/pedestrian type) and recommended amongst other recommendations, an in-vehicular/pedestrian assessment.

16The applicant’s psychiatrist, Dr. Hanick, in his report dated March 10, 2016 notes that the applicant suffers with a chronic adjustment disorder, with features of depression, anxiety and phobic response in terms of being a passenger.

17The respondent relies on the IE assessment of Dr. Elmpak, psychologist, and her reports dated November 28, 2016, February 17, 2017 and an addendum report dated April 25, 2017. A review of the reports shows similarities to the diagnosis arrived at by the applicant’s assessors. Dr. Elpak’s opinion is that the applicant suffers a major depressive disorder, single episode in the mild to moderate range and somatic symptom disorder.

18In the report dated February 17, 2017, Dr. Elpak opines that the applicant’s somatoform disorders have deteriorated since the previous assessment. Her diagnosis is that the applicant now suffers a major depressive disorder single episode in the severe range and a somatic symptom disorder with predominant pain in the severe range. The February 17, 2017 report did not specifically address the driver training treatment plan other than to state it was previously recommended by another doctor. However, an addendum report was requested by the respondent and that report dated April 25, 2017 opines that the applicant has symptoms of (isolated) phobia but not all the symptoms to fulfil the DSM-V diagnosis under the Diagnostic and Statistical Manual of Mental Disorders related to in-vehicular driving as a passenger and driver and the impairments are not significant and compelling enough to require psychological treatment for a desensitization program related to in-vehicular driving.

19I do not agree with the respondent’s assessor for the following reasons. All three of the doctor’s findings are similar; the applicant has a major depressive disorder with anxiety and a phobic response to driving or as a passenger. Dr. Elpak’s opinion is similar, that the applicant has symptoms of the driving phobia but concludes no treatment is required as it does not fulfil all the requirements for a DSM-V diagnosis.

20In my opinion, an official diagnosis is not required, symptoms alone documented by medical practitioners over a period of time including the treatment plan itself would be sufficient to show the treatment plan is reasonable and necessary. The fact that the applicant does not exhibit excessive or significant driving anxiety as Dr. Elmpak’s refers to in her reports, are, in my opinion too high a standard in order to be deemed to be reasonable and necessary. The standard is on a balance of probabilities and the applicant has satisfied me on a balance of probabilities that the treatment plan is reasonable and necessary based on all the medical reports and opinions already discussed above.

21I do agree with the respondent that the fees proposed by the psychologist and the driver training rehabilitation specialist should be in accordance with the Fee Guideline and the hourly rate for the psychologist fee should be $149.61 per hour and $58.19 per hour for the driver rehabilitation specialist, who in my opinion, would be considered a rehabilitation counselor under the Guideline.

Are the treatment plans in the amount of $1,298.10 and $2,968.01 reasonable and necessary?

22I do not find the treatment plan in the amount of $1,298.01 to be reasonable and necessary as I find it to be a duplication of the first issue in dispute for this hearing. The applicant has not provided any evidence or submissions on why this treatment plan is reasonable and necessary. This identical treatment plan was submitted 9 days after the first one and a review of the treatment plans does not shed any light on why it is required. It is identical except for the fact that it recommends 10 treatments for multiple body sites therapy whereas the first one was for 24 treatments of therapy for multiple body sites. There are no submissions or evidence on whether the first 24 therapy sessions were completed and if so, what was the outcome with respect to the goals of the treatment plan and whether they were achieved on behalf of the applicant. Without this information and no submissions on why it was required 2 weeks after the first treatment plan, I am unable to ascertain the reasonableness and necessity of this treatment plan. Part 9 of the treatment plan the applicant entered “N/A” to the question, if this is a subsequent treatment and assessment plan, what was the applicant’s improvement at the end of the previous plan based on your evaluation method?

23As a result, I do not find the treatment plan for physical rehabilitation in the amount of $1,298.10 to be reasonable and necessary and it is therefore denied.

24I do not find the treatment plan in the amount of $2,968.01 to be reasonable and necessary based on the respondent’s evidence by way of a letter dated December 8, 2016 agreeing to pay for the previous treatment plan in the amount of $2,968.01. The respondent submits this treatment plan dated December 17, 2016 is identical to the treatment plan in the same amount from the same service provider and received by the respondent on December 2, 2016 which was approved.

25With the onus being on the applicant, I have not been provided with any submissions or evidence on why this treatment plan is reasonable and necessary or how it differs from the approved treatment plan from two weeks earlier. No submissions or evidence were provided on whether the first treatment plan has been completed and if so, what the results were in relation to the goals of the plan and whether further treatment was required. As a result, it is my finding that the treatment plan in the amount of $2,968.01 is not reasonable and necessary.

INTEREST

26The applicant is entitled to interest on the approved treatment plans in accordance with the Schedule.

ORDER

27For the reasons outlined above, I find that the applicant is entitled to:

a. A medical benefit in the amount of $2,907.44 for physical rehabilitation treatment;

b. A medical benefit in an amount equal to the hourly rate in accordance with the FSCO Fee Guideline for a psychologist and a rehabilitation counsellor for driving training services; and

c. Interest in accordance with the Schedule on the above approved treatment plans.

28The applicant is not entitled to:

a. A medical benefit in the amount of $1,298.10 for physical rehabilitation; and

b. A medical benefit in the amount of $2,968.01 for physical rehabilitation.

Footnotes

1. 1O. Reg. 34/10.
2. 2Financial Services Commission of Ontario Professional Services Guideline Superintendent’s Guideline No. 03/14 September 2014 (the “Guideline”)