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:
M. G.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
PANEL:
Nidhi Punyarthi
Robert Watt
APPEARANCES:
For the Applicant:
Lawson Hennick, counsel
For the Respondent:
Hermina Nuric, counsel
HEARD IN-PERSON:
September 13, 14, 17 and 18, 2018
BACKGROUND
1The applicant, M. G., was involved in an accident on July 14, 2015. She sought benefits from the respondent, the Guarantee Company of North America, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied her claims for benefits, and she applied to the Licence Appeal Tribunal (“Tribunal”).
2The parties participated in a case conference and were unable to resolve the issues in dispute between them.
3With the consent of the parties, a hearing in person was scheduled for September 13, 14, 17 and 18, 2018.
ISSUES FOR THE HEARING
4The issues in dispute were identified and agreed to as follows:
i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from July 30, 2015 to date and ongoing, denied by the respondent on October 21, 2016?
ii. Is the applicant entitled to payment in the amount of $1,754.07 per month for attendant care benefits, from July 14, 2015 to date and ongoing, for services provided by Carrie Robertson, denied by the respondent on September 26, 2016?
iii. Is the applicant entitled to payment in the amount of $1,774.10 for occupational therapy services (specifically, an assessment for attendant care needs), as set out in a treatment and assessment plan by Eitan Glazas of Injury Management and Medical Assessments dated December 17, 2015, denied by the respondent on December 23, 2015?
iv. Is the applicant entitled to payment in the amount of $387.72 for chiropractic services as set out in a treatment and assessment plan by Joanne McKinley-Molodynia dated March 9, 2016, denied in part by the respondent on March 16, 2016?
v. Is the applicant entitled to payment in the amount of $711.70 for chiropractic services as set out in a treatment and assessment plan by Joanne McKinley-Molodynia dated April 12, 2016, denied by the respondent on April 20, 2016?
vi. Is the applicant entitled to payment in the amount of $6,000.00 for botox injections as set out in a treatment and assessment plan by Dr. Jeff Robichaud dated December 5, 2016, denied by the respondent on December 8, 2016?
vii. Is the applicant entitled to payment in the amount of $2,444.15 for psychology services as set out in a treatment and assessment plan by Leanne Wagner of Injury Management and Medical Assessments dated November 15, 2016, denied by the respondent on November 29, 2016?
viii. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
5For the reasons explained below, we find that the applicant is not entitled to payment for any of the disputed benefits in this proceeding. Further, the applicant is not entitled to interest as there are no overdue benefits owing.
ANALYSIS
Non-Earner Benefits
6The Schedule1 requires an insured to suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident to qualify for non- earner benefits. The insured must sustain an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
7It has been held that pain as a result of an accident is not sufficient to meet the non-earner benefit test. Non-earner benefits are not intended to compensate an insured person from having to engage in post–accident activity with pain and discomfort.2
8The applicant’s testimony indicated that pre-accident, she had no problems looking after her child (who developed autism as he grew older), taking her child to public places, cleaning her residence, engaging completely in all self-care, and socializing with her friends in different parts in the GTA.
9The applicant indicated that post-accident, she experiences pain at times when she has to run after her child. She still takes him to the Safari, public parks, and to swimming, but avoids crowded public spaces. She does not clean as often because it is painful to do so. She still does her own grooming and self-care until she reaches a certain pain level. She socializes less now compared to before the accident.3
10The applicant still engages in her pre-accident activities, but on a more limited basis, and experiences some pain while so doing.
11Engaging in a limited or modified manner in normal pre-accident activities does not translate into a complete inability to perform those activities.
12We therefore find that the applicant does not suffer a complete inability to carry on a normal life, as required by the Schedule. Accordingly, we find that the applicant is not entitled to a non-earner benefit.
Attendant Care Benefits
13Attendant care benefits must be paid for if reasonable and necessary. Furthermore, the insured must have received the goods and services and incurred the expense paid.4
14When the insurer received an Assessment of Attendant Care needs on September 12, 2016, it asked for a section 44 IE to take place on October 3, 2016. The applicant did not attend this IE. The applicant states that she already attended 5 IEs between May 30, 2016 and September 19, 2016, and that the respondent was unreasonable in requiring the additional assessment. The same assessor (Sarah Tran, occupational therapist) had seen the applicant on August 2, 2016.
15The Schedule requires compliance with a section 44 IE request as a condition for proceeding before the Tribunal. However, pursuant to section 55(2), the Tribunal can consider whether it may permit an insured person to apply despite such non-compliance.5
16We are of the view that in this case, the fact of the missed assessment is to be weighed and considered with the rest of the evidence. We have not denied the applicant’s claim based on section 55. We have, however, denied the applicant’s claim for attendant care benefits for other reasons, which we have set out below.
17The applicant claims payment for attendant care services provided by a Carrie Robertson. The applicant indicated that Ms. Robertson was a registered personal support worker (PSW), and tendered in evidence a certificate to that effect.
18The respondent objected to the certificate, on the basis that it was attempting to serve Ms. Robertson with a summons to attend as a witness at the hearing, and Ms. Robertson avoided service of the summons. Ms. Robertson had moved to the Maritimes. The applicant confirmed that she was no longer able to get in touch with Ms. Robertson, and that the two of them had a “falling out.”
19Another set of records with Ms. Robertson’s name on them was a number of invoices that appear to be pre-filled. They were all submitted to the respondent on a single date attached to an OCF-6 expense form.
20The applicant testified that the list of tasks on these invoices was pre-filled by her lawyer’s office. Ms. Robertson was asked to and did check off certain boxes on and signed her name at the bottom of these invoices.
21At least the first week of these invoices signed by Ms. Robertson appears to contradict the signed statement that the applicant had given to the respondent shortly after the accident. In that statement, the applicant stated that she was still able to continue with activities and did not receive assistance. By contrast, there is an invoice that Ms. Robertson had signed for assistance provided to the applicant during the same period of time.
22The respondent submits that little weight should be given to all records involving Ms. Robertson (i.e., the certificate and the invoices) because the respondent was unable to cross-examine Ms. Robertson on these documents.
23We are troubled by the fact that the invoices were pre-filled by the applicant with respect to the list of tasks performed, and then provided to Ms. Robertson for signing. On the basis of the respondent being unable to cross-examine Ms. Robertson, we are unable to give any weight to the certificate and the invoices relating to Ms. Robertson.
24The applicant also submitted, in support of her claim for attendant care benefits, a Form 1 and report prepared by Ibrahim Ismaylov, a registered nurse. The Form 1 identified a number of areas in which the applicant needed assistance. A number of hours of assistance were marked for each category of activity with which the applicant needed assistance in Mr. Ismaylov’s view. Mr. Ismaylov also stated on the Form 1 and in his report that there was an inability on the applicant’s part to save herself in the event of an emergency.
25In his report, where he was required to give an explanation for his assessment of the applicant’s various attendant care needs, Mr. Ismaylov appears to have made the same generic statement: “Based on formal and non-formal observation/testing the client would have difficulty with this task.”
26The respondent called Sarah Tran, one of the assessors of the applicant in the area of occupational therapy. Ms. Tran critiqued Mr. Ismaylov’s Form 1 and report, in that she disagreed with his assessment of the applicant’s limitations based on her own observations and testing. Additionally, she was not of the view that the applicant was unable to save herself in the event of an emergency. She further critiqued the generic statements that are found throughout Mr. Ismaylov’s report. Ms. Tran maintained these views of Mr. Ismaylov’s materials during her cross-examination.
27The applicant did not call Mr. Ismaylov as a witness, even though he was initially on her list of witnesses.
28Given that Mr. Ismaylov was not called as a witness, we did not have the benefit of a potential cross-examination of his evidence and records. Furthermore, we accept the critiques of his evidence put forward by Ms.Tran and maintained by her during her cross-examination. We considered the applicant’s own evidence that she is able to manage a number of care and cleaning activities, and even run after and control her son to the best of her ability as she is still experiencing pain.
29On the basis of the evidence submitted, we give little weight to Mr. Ismaylov’s Form 1 and report.
30We find, therefore, for these reasons, that the applicant is not entitled to the attendant care benefits as claimed on the Form 1 prepared by Mr. Ismaylov.
Assessment of Attendant Care Needs in the amount of $1,774.10
31Medical benefits must be paid for, if the services are reasonable and necessary.6
32The applicant claims payment in the amount of $1,774.10 for an assessment of attendant care needs, as set out in a treatment and assessment plan (OCF-18) by Eitan Glazas, chiropractor, of Injury Management and Medical Assessments, dated December 17, 2015.
33The respondent denied this OCF-18 on December 23, 2015 on the basis that the applicant’s injury was a minor injury under the Schedule. The respondent has since taken the applicant out of the minor injury categorization, however, the respondent denies that the benefit is reasonable and necessary.
34We have found, for the reasons provided in the previous section of this decision, that the applicant is not entitled to the attendant care benefits. On this basis, the services proposed in the OCF-18 in question are not reasonable and necessary.
35Therefore, the applicant is not entitled to payment under this OCF-18 for an assessment of attendant care and a related treatment plan.
Chiropractic Treatment in the amount of $387.72
36The applicant claims payment in the amount of $387.72 for chiropractic services as set out in a treatment and assessment plan (OCF-18) by Joanne McKinley-Molodynia, chiropractor, of McKinley-Molodynia Chiropractic and Massage Therapy, dated March 9, 2016. This OCF-18 was for proposed chiropractic treatment to assist with the applicant’s experiences of low back pain, arm pain, and neck pain.
37The respondent partially approved this OCF-18 on March 16, 2016 in the amount of $225.56. The reduction made by the respondent was that instead of the 6 hours claimed for mobilization and therapy, 3 hours were approved.
38Both the applicant and her family doctor, Dr. Rosa, testified at the hearing that she did not experience a benefit from the chiropractic treatments. They essentially testified that these treatments did not work for the applicant.
39This evidence was corroborated by Dr. Julian Mathoo, the respondent’s physiatry assessor, who testified at the hearing. He indicated that the applicant appeared to not have followed the functional restoration approach of treatment under the minor injury guideline, and that, at some point after a critical window, treatments that would have otherwise been helpful are no longer useful.
40Given the applicant’s testimony that chiropractic treatment was no longer working for her and the evidence of Dr. Rosa indicating the same conclusions, we find that the additional hours of chiropractic treatment claimed in the OCF-18 in question, are not reasonable or necessary.
Chiropractic Treatment in the amount of $711.70
41The applicant claims payment in the amount of $711.70 for chiropractic services as set out in a treatment and assessment plan (OCF-18) by Ms. McKinley-Molodynia, dated April 12, 2016. This OCF-18 was for proposed chiropractic treatment to assist with the applicant’s experiences of low back pain, arm pain, and neck pain.
42The respondent denied this OCF-18 on April 20, 2016 on the basis that it did not view the proposed services as reasonable and necessary in relation to the injuries sustained by the applicant in the accident.
43The applicant has to demonstrate that the outstanding services are reasonable and necessary. Both the applicant and her family doctor, Dr. Rosa, testified at the hearing that she did not experience a benefit from the chiropractic treatments. They essentially testified that these treatments did not work for the applicant.
44This evidence was corroborated by Dr. Julian Mathoo, the respondent’s physiatry assessor, who testified at the hearing. He indicated that the applicant appeared to not have followed the functional restoration approach of treatment under the minor injury guideline, and that, at some point after a critical window, treatments that would have otherwise been helpful are no longer useful.
45Given the applicant’s testimony that chiropractic treatment was no longer working for her and the medical evidence of Dr. Mathoo that they were not working, we find that the additional hours of chiropractic treatment claimed in the OCF-18 in question are not reasonable or necessary.
Botox Injections
46The applicant claims $6,000.00 for botox injections as set out in a treatment and assessment plan (OCF-18) by Dr. Jeff Robichaud dated December 5, 2016. In the OCF-18, Dr. Robichaud indicates that the botox injections are recommended to help reduce the severity and frequency of her migraines and headaches.
47On December 23, 2016, the respondent denied this OCF-18 on the basis of the opinions of Dr. Mathoo (physiatrist), Dr. Desai (neurologist), Ms. Tran (occupational therapist), and Dr. Friesen (psychologist), that the recommended treatment is not reasonable or necessary.
48Dr. Mathoo gave evidence at the hearing. He indicated that botox treatments are recommended for a certain class of headaches, but not myofascial headaches. The applicant, in Dr. Mathoo’s opinion, exhibited symptoms of myofascial headaches. Furthermore, Dr. Mathoo opined that the OCF-18 of Dr. Robichaud did not contain sufficient detail to classify the nature of the headache. For these reasons, Dr. Mathoo was of the opinion that the OCF-18 of Dr. Robichaud is not reasonable or necessary.
49The applicant testified that she had not yet attempted the botox injections. As a result, she was unable to testify as to whether such injections would help with her pain.
50On the basis of this evidence, we find that the treatment recommended in the OCF-18 of Dr. Robichaud dated December 5, 2016, is not reasonable or necessary and that it is therefore not payable.
Psychological treatment in the amount of $2,444.15
51The applicant claimed payment in the amount of $2,444.15 for psychology services as set out in a treatment and assessment plan (OCF-18) by Leanne Wagner of Injury Management and Medical Assessments dated November 15, 2016. The OCF-18 contemplates assessment and counselling related to mental health and addictions, as well as documentation and support activity relating to the claim form.
52The respondent denied this OCF-18 on November 29, 2016, on the basis of the opinion of its assessor, Dr. Christopher Friesen, who is a psychologist. Dr. Friesen concluded that the applicant does not require any formal treatment programs or rehabilitation services to assist in achieving recovery from any impairment present as a direct result of the motor vehicle accident.
53The applicant gave testimony that she had refused the services of a psychologist that had been recommended to her. This was also confirmed by Dr. Rosa, who indicated that the applicant did not find such services helpful.
54On this basis, we find that the applicant is not entitled to the psychological services claimed because the expenses are not reasonable and necessary.
Interest
55Given that we have not found any benefit to be owing to the applicant under the Schedule, interest is not payable to the applicant.
ORDER
56Based on the evidence tendered before us, we dismiss the applicant’s application for benefits.
Release: December 24, 2018
Nidhi Punyarthi
Adjudicator
Robert Watt
Adjudicator
Footnotes
- Schedule, sections 12 (1), 3(7)(a).
- Cook v. Pilot Insurance Co., 2005 CarswellOnt 2697 (FSCO Arb), at para. 37. See also Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 (Ont. C.A.), at para. 63.
- Respondent’s Evidence Brief, Experts – Respondent, Tab B1 – Occupational Therapy Report of Sarah Tran re: Non Earner Benefit, dated August 2, 2016, at p.20 (p.493 of Brief).
- Schedule, sections 3(7) (e), 19(1).
- Schedule, section 55(2).
- Schedule, section 19(1).