17-005974 v. Desjardins General Insurance Group, 2018 CanLII 110938

Licence Appeal Tribunal

Date: 2018-07-16 Tribunal File Number: 17-005974/AABS Case Name: 17-005974 v Desjardins General Insurance Group

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

Desjardins General Insurance Group

Respondent

DECISION

ADJUDICATOR: Monica Purdy

APPEARANCES:

For the Applicant: Mariya Verkhovets, counsel For the Respondent: Kayley Richardson, counsel

HEARD: Written Hearing: May 7, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in a motor vehicle accident on July 9, 2016 (“the accident”), and applied for medical benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The respondent, Desjardins General Insurance Group, denied the claims for these benefits.

3[The applicant] appealed the denial of the benefits to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

4The issues before me are as set out in the Order dated December 1, 2017:

1. Is [the applicant] entitled to receive medical benefits recommended in treatment plans by Complete Rehab Centre as follows:

a. $1,816.74 for physiotherapy services submitted June 3, 2017, and denied by the respondent on June 19, 2017;

b. $2, 248.90 for occupational therapy services (form 1 assessment) submitted September 7, 2016, and denied by the respondent on October 13, 2016;

c. $2,531.00 for physiotherapy services submitted November 24, 2016, and denied by the respondent on December 21, 2016;

d. $2,173.87 for physiotherapy services submitted February 8, 2017, and denied by the respondent on February 16, 2017;

e. $1,882.49 for physiotherapy services submitted March 17, 2017, and denied by the respondent on May 31, 2017;

f. $1,591.12 for physiotherapy services submitted May 23, 2017, and denied by the respondent on June 22, 2017?

g. $2,460.00 for psychological services submitted October 27, 2016, and denied by the respondent on February 2, 2017;

2. Is [the applicant] entitled to interest on any overdue payment of benefits?

3. Is [the applicant] entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payments of a benefit?

RESULT

5I find that [the applicant] is entitled to the benefits in dispute.

6[The applicant] is entitled to an award under Regulation 664 and interest on all overdue payment of benefits.

ANALYSIS

7Section 15(1) of the Schedule provides that the insurer shall pay for all “reasonable and necessary” expenses incurred as a result of the accident for medical benefits such as occupational therapy services or assistive devices.

8Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan, including any assessment necessary for that purpose.

Causation

9The respondent argues that there is no evidence to suggest that [the applicant]’s diagnosis of compression fracture L3 is a direct result of the motor vehicle accident of July 9, 2016. The emergency record of July 9, 2016 indicates that [the applicant] was discharged home with soft tissue injury.

10The evidence suggests that the fracture was first identified on an X-ray taken on July 9, 2016 while [the applicant] was in the emergency room. The respondent also noted that as well as psychological and psychiatric health issues, [the applicant] had pre-existing chronic back pain. A previous X-ray of the lumbar spine dated June 30, 2015 was normal.

11Even the respondent’s assessors have noted that the compression fracture was a result of the accident in their assessment reports. For instance, Dr. Weiseleder, who completed an orthopedic assessment on [the applicant] on March 3, 2017 and a paper review on June 3, 2017 noted M.S’s diagnosis of compression fracture L3, cervical and thoracic spine strain was a direct result of the accident.

12Furthermore, one of the reasons that was given for a number of X-rays and MRIs that were taken on September 2, 2016, December 1, 2016 and February 3, 2017 was the motor vehicle accident. The reports also confirmed the compression fracture L3, and included other findings of disc herniation at C6-7, moderate to severe loss of disc space and a trace of scoliosis in the left thoracic spine.

13On review of all the documentation from both parties, I am persuaded that M.S’s compression fracture at L3 was a direct result of the accident of July 9, 2016.

Physiotherapy treatment plans in dispute

14Although there are five physiotherapy treatment plans in dispute; I did not find that they were duplicated. The treatment plans were submitted at various times throughout [the applicant] treatment. Furthermore, each of the plans seems to correspond with visits to his family physician for back and neck pain primarily. At each visit Dr. Kumar prescribed physiotherapy as treatment for [the applicant]’s pain signs and symptoms.

15Rather than lump the treatment plans together I review each of them separately below.

16I am persuaded on review of all the evidence that this treatment plan is reasonable and necessary.

17The respondent directed [the applicant] to undergo an assessment by Dr.Louis Weiseleder, an orthopedic specialist. Dr. Weiseleder performed a paper review of M.S’s medical records in response to this treatment plan, having completed an in-person assessment of [the applicant] three months prior, in March 16, 2017.

18Dr. Weiseleder confirmed [the applicant] diagnosis of compression fracture L3, cervical and thoracic spine strain as a direct result of the motor vehicle accident of July 9, 2016 in both the in person assessment and in the paper review.

19Dr. Weiseleder did not agree with the need for ongoing physical intervention and thought that [the applicant] was appropriately assessed and treated for his injuries. Dr. Weiseleder concluded that the treatment plan was not reasonable and necessary.

20Dr. Weiseleder’s opinion stands in contrast to those of [the applicant]’s family physician, Dr. Kumar, his treating chiropractor who completed the treatment plan and even other assessors who assessed [the applicant] post-accident.

21Dr. Weiseleder’s opinion in the paper review was too narrow in focus. I gave the paper review little weight. Though the paper review specifically addressed the healing of the fracture it gave no attention to [the applicant]’s presenting symptoms, such as pain.

22I give greater weight to Dr. Weiseleder’s assessment report that was based on the in person assessment completed in March 2017. The assessment report offered a much better perspective on [the applicant] presenting signs and symptoms which persuaded me that the physiotherapy recommended by the treating chiropractor is reasonable and necessary. For instance in the assessment report from March 2017, Dr. Weiseleder provided great details of [the applicant]’s pain experience and noted that [the applicant]: “has persistent upper back pain”; “the upper back pain is intermittent”; “to date the upper back pain remains unchanged”.

23Dr. Weiseleder also described [the applicant] as having: “persistent lower back pain” radiating to the paravertebral muscles and legs with intermittent numbness in left thigh and right calf.

24Dr. Weiseleder further noted restrictions in sitting tolerance of 5 -10 minutes; walking tolerance of 10 minutes and bending forward worse than bending backwards. An improvement of 25% in lower back pain was recorded. I find that this evidence supports the treatment plan for physiotherapy proposed by Dr. Jessa.

25The treatment plan completed by Dr. Rahim Jessa noted [the applicant]’s injuries as:

a. fracture of lumbar vertebra, L3 level;

b. sprain and strain lumbar spine,

c. sprain and strain thoracic spine;

d. sprain and strain to other parts of the shoulder girdle;

e. other sprain and strain cervical spine;

f. dislocation, strain joints and ligaments of the ankle and foot;

g. concussion, injury to multiple muscles and tendons of lower leg,

h. headaches;

i. reaction to severe stress unparalleled;

j. disorders of initiating and maintaining sleep.

26The treatment plan also indicated barriers to recovery including severity of injuries, multiple injuries; sleep problems, frustration, anxiety, and fear of re-injury, decrease motivation; and reported continued pain and dysfunction.

27The goal of the therapy, which includes sessions of massage therapy and active functional restoration rehabilitation is pain reduction, increase range of motion and increase strength to return M.S to pre-accident work activities and return to normal daily living activities.

28[The applicant] saw Dr. Kumar on January 13, 2017, February 2, 2017 and on July 6, 2017. Each time for persistent back and neck pain. On those visits Dr. Kumar referred [the applicant] for physiotherapy, chiropractor and a physiatrist assessment.

29I find on totality of the evidence that the treatment plan for physiotherapy is reasonable and necessary. The treatment plan offered a comprehensive assessment of [the applicant]’s injuries with detailed interventions from a variety of practitioners to help reduce [the applicant] symptoms including persistent back pain. I find that [the applicant] is entitled to the benefit. The goal of the treatment plan to reduce M.S’s pain and increase range of motion makes it a reasonable and necessary plan.

30I find that this treatment plan is also reasonable and necessary.

31The treatment plan was also completed by Dr. Jessa and denied by the respondent. Dr. Jessa proposed ongoing interventions to assist [the applicant] to restore functional skills in his activities of daily living and to return to pre-accident work activities.

32The medical records from Dr. Kumar indicate that [the applicant] sought ongoing treatment and follow up since the accident. Dr. Kumar assessed [the applicant]’s pain impairments on December 8 and 19, 2016, noting persistent back pain. On January 13, 2017 [the applicant] was referred for physiotherapy and chiropractic treatment by Dr. Kumar.

33A paper review report dated March 1, 2017, was completed by Dr. Kaufman. Dr. Kaufman noted that M.S’s injuries were more serious than the typical soft tissue injury and recommended six 30 minutes massage therapy and six 1 hour sessions of rehab therapy. The treatment plan was partially approved by the insurer for $718.46.

34I much prefer Dr. Jessa’s recommendation over that of Dr. Kaufman who only completed a paper review of [the applicant] and may not have had a full understanding of [the applicant]’s impairments and pain experience. Dr. Jessa who has been regularly treating [the applicant] and sees him at least two times per week, would have a better understanding of what treatment was required. I am persuaded by the evidence that [the applicant] is entitled to the full amount of the treatment plan. Further, the goal of the treatment plan to reduce [the applicant] pain and increase range of motion is reasonable.

35The respondent denied the treatment plan based on a paper review by Dr. Kaufman. As I noted above, I much prefer Dr. Jessa’s recommendation over that of Dr. Kaufman who have only completed a paper review of [the applicant] and may not have had a full understanding of [the applicant]’s impairments and pain experience. Dr. Jessa who has been treating [the applicant] regularly would have a better understanding of what treatment was required and the length of time it would take for it to be of benefit to [the applicant].

36Further, Dr. Kumar has recommended physiotherapy and has seen [the applicant] on a regular basis for back and neck pain. Visits in December 2016, January 2017 and February 2017 are reflected in Dr. Kumar’s assessment notes. Dr. Jessa also sees [the applicant] on a regular basis for treatment and has noted the goals of the treatment plan, which I find is reasonable. It seeks to restore functional skills in his activities of daily living and to return him to pre-accident work activities.

37I also find the goal of the treatment plan to reduce [the applicant]’s pain and increase range of motion reasonable and necessary and that [the applicant] is entitled to the treatments.

38I find that the treatment plan is reasonable and necessary based on the medical documentation from Dr. Kumar and Dr. Jessa who are M.S’s treating clinicians.

39The medical records from Dr. Kumar, indicate that [the applicant] sought ongoing treatment and follow up since the accident for his injuries. At each visit Dr. Kumar assessed [the applicant]’s pain impairments noting persistent back pain, painful range of motion, and worsening neck pain. The observations of pain and painful range of motion were recorded in entries dated December 8, 19, 2016 in which [the applicant] was referred to physiotherapy.

40The goal of the treatment plan is pain reduction and increase range of motion. I find the goal of the treatment to be reasonable and necessary and that [the applicant] is entitled to the treatments.

41On review of all the evidence before me, I find that the psychological treatment plan is reasonable and necessary. [The applicant] is entitled to the benefit.

42[The applicant] was referred in December 2016, by Dr. Kumar to see Dr. Mohammed Sayeed Ahmad, a psychiatrist, for post-traumatic stress disorder. Dr. Ahmad assessed [the applicant] in December 2016 and diagnosed him with adjustment disorder with prominent anxiety symptoms since the motor vehicle accident of July 2016.

43In the December 24, 2016 report to Dr. Kumar, Dr. Ahmad prescribed cipralex, alprazolam and supportive psychotherapy.

44To determine if the treatment plan was reasonable and necessary the respondent directed [the applicant] to attend a section 44 assessment by Dr. Jetly. Dr. Jetly assessed [the applicant] and made a diagnosis of major depressive disorder. The respondent readily submitted that Dr. Jetly recommended 10 to 15 sessions of psychotherapy. Despite this recommendation the respondent did not approve the treatment plan.

45The respondent claimed that the “treatment plan requesting psychological assessment was not reasonable given that Dr. Jetly recommended psychological treatment.” Not only did the respondent not act on the recommendation of their own assessors they also did not take any action to adjust [the applicant] claim for psychological services, as is their duty.

46My determination, based on the evidence, is that the treatment plan for psychological services is reasonable and necessary.

47Under section 14 (2) of the Schedule the respondent is liable to pay for attendant care benefits when an injured person’s impairments from an accident is not a minor injury. [The applicant] was diagnosed with a compression fracture of L3 as a direct result of the accident which removes him from the Minor Injury Guideline and makes him eligible to apply for attendant care benefits.

48In order to prove his eligibility for the attendant care benefits, [the applicant] has to submit a treatment plan to have his need for attendant care assessed. [The applicant] submitted the treatment plan for the cost of attendant care assessment on September 7, 2016.

49Rather than give [the applicant] approval for the assessment the respondent obtained its own assessment of M.S’s eligibility. The respondent then denied [the applicant] the treatment plan based on a report completed by Mr. Tsuji, an occupational therapist. Mr. Tsuji assessed [the applicant] on October 3, 2016 for attendant care benefits and did not recommend the benefit.

50In the adjuster’s log notes, an entry dated September 9, 2016 states “Form 1 completed and most of service needed is for safety reasons”. The log notes indicates that [the applicant] was approved for the maximum monthly amount of $3,000, “36k” for 2 years, of attendant care benefits, mainly for safety reasons. [the applicant] maintains that the respondent was aware of the nature of his injuries and the need for attendant care based on the log note entries.

51I find in this case that the denial contravenes the provisions of section 14 (2) and 25(1) 4. Section 25(1) 4 and 42(3) and obliges the respondent to pay for the assessment for attendant care benefits, especially when there’s evidence to show that it is reasonable. In this case, I am satisfied on a balance of probabilities that [the applicant] is entitled to the cost of the assessment for attendant care benefits and the respondent is obligated to pay for the assessment.

Award

52[The applicant] requests an award under Section 10 of Ontario Regulation 664 (O. Reg. 43/16, s. 4) because the respondent unreasonably denied all benefits claimed in this application.

53Under Ontario Regulation 664, section 10, the Licence Appeal Tribunal can award a lump sum of up to 50 per cent of the amount to which the person was entitled to at the time of the award to an insured person, if, the respondent is found to have unreasonably withheld or delayed payments of benefits.

54I find that [the applicant] is entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments of medical benefits that were determined to be reasonable and necessary by its own assessors. For instance, the respondent had evidence that [the applicant] needed certain medical benefits on the basis of legitimate injuries with objective findings.

55In addition, the respondent also did not meet their obligation under section 14 (2) and 25(1) 4 to pay for the assessment of attendant care. Although attendant care benefits were approved to the maximum available rate as noted in the adjuster log notes [the applicant] was not notified. In fact, the adjuster log notes specifically reference safety concerns as the need for the benefits. Therefore, I am satisfied that, in this case, an award in the amount of 50%, at the prescribed rate of interest, is reasonable when applied to the claim for benefits.

Interest

56[The applicant] is entitled to interest according to the Schedule.

ORDER

57I make the following orders:

1. [The applicant] is entitled to receive medical benefits recommended in treatment plans by Complete Rehab Centre as follows:

i. $1,816.74 for physiotherapy services;

ii. $2, 248.90 for occupational therapy;

iii. $2,531.00 for physiotherapy services;

iv. $2,173.87 for physiotherapy services;

v. $1,882.49 for physiotherapy services;

vi. $1,591.12 for physiotherapy services;

vii. $2,460.00 for psychological services;

2. Further, MS. is entitled to interest on all overdue payment of benefits.

3. [The applicant] is entitled to a 50 % award on his claim for benefits.