F. A. v. Belairdirect Insurance Company, 2018 CanLII 131132

F. A. v. Belairdirect Insurance Company

Tribunal File Number: 17-007543/AABS

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:

F. A. (Applicant)

and

Belairdirect Insurance Company (Respondent)

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: M. Aftab Alam, Counsel

For the Respondent: Lori Sprott, Counsel

Held by Teleconference: In Writing on June 11, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 21, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain costs of examinations. As a result, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

(1) Is the applicant entitled to payment for the costs of examinations proposed by Pearson Medical Assessment Centre Inc. as follows:

(a) $2,000.00 for a psychological assessment recommended in a treatment and assessment plan dated February 10, 2016;

(b) $2,000.00 for an orthopaedic assessment recommended in a treatment and assessment plan dated December 2, 2016;

(c) $2,000.00 for a chronic pain assessment recommended in a treatment and assessment plan dated January 18, 2017;

(d) $1,988.80 for an impairment assessment recommended in a treatment and assessment plan dated February 28, 2017; and

(e) $2,000.00 for a physiatry assessment recommended in a treatment and assessment plan dated August 31, 2017?

(2) Is the applicant entitled to interest on any overdue payment of benefits?

(3) Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?

RESULT

3The applicant is not entitled to the psychological, orthopaedic, and physiatry assessments.

4The applicant is entitled to the costs of the impairment and chronic pain assessments.

5The applicant is entitled to interest on any overdue payment of benefits pursuant to section 51 of the Schedule.

6The applicant is not entitled to an award.

BACKGROUND

7The applicant was a passenger in a vehicle which was struck from behind while waiting to make a left turn. Police and emergency services attended at the scene of the accident but did not see it necessary to transport the applicant to the hospital. The applicant attended the office of Dr. A. Iftikhar, family physician, about 10 days after the accident and was diagnosed with a whiplash injury, told to take Advil or Tylenol, and was referred to physiotherapy.

8The applicant participated in treatment at a wellness clinic, which the respondent funded. The applicant also requested funding for the assessments listed above, which the respondent denied.

9Entitlement to payment for the cost of examinations is governed by section 25(1)3 of the Schedule. This section establishes that an insurer shall pay for reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan under section 38, including any assessment necessary for that purpose.

ISSUE ONE: PSYCHOLOGICAL ASSESSMENT

10The applicant claims entitlement to the disputed psychological assessment because the respondent failed to provide a valid medical reason to deny the assessment, the psychological pre-screen test supported it, and Dr. Iftikar referred the applicant to counselling for post-traumatic stress disorder as a result of the subject accident.

11The respondent’s position is, regardless of the reasons in the notice provided to the applicant, the disputed psychological assessment is not reasonable and necessary because the applicant’s medical record does not support the need for a psychological assessment.

12Based on the evidence before me and for the following reasons, I find the applicant is not entitled to the disputed psychological assessment because it is not reasonable and necessary.

13I note the respondent’s denial letter dated February 29, 2016 was delivered on the 11th business day. Under section 38(11)1, this late notice precludes the respondent from using the limits in the MIG as a means for denial. This does not preclude the respondent from arguing the psychological assessment is not reasonable and necessary.

14Although the respondent was barred from relying on the MIG as a means to deny the treatment and assessment plan, I find the respondent provided a clear and unequivocal denial and provided medical reasons to deny the psychological assessment on February 29, 2016. The respondent stated it found the treatment plan not reasonable and necessary based on the medical documents on file. It also advised the applicant’s injuries are predominantly soft-tissue, fall within the MIG and there is no documented pre-existing injury to preclude recovery.

15Section 38(11)2 provides that the applicant is entitled to costs incurred after the 11th business day following receipt of a treatment plan to which the respondent has not replied. The applicant’s entitlement to incurred costs ends when the respondent provides a proper denial, which it did in its February 29, 2016 letter. The applicant did not incur any costs related to the psychological assessment during this period and is not entitled to reimbursement on account of section 38(11).

16The medical record does not support the need for the disputed psychological assessment. Aside from the treatment plan itself, the applicant has not provided any records from the treating facility to suggest the need to investigate a psychological injury.

17The records from Twain Physiotherapy and Wellness Clinic and Dr. Iftikar’s office do not support the need for the disputed psychological assessment. The applicant relies heavily on a referral note for counselling provided by Dr. Iftikar on February 24, 2018 however, I give the note no weight. The referral note was not disclosed to the respondent until initial written submissions on April 9, 2018, denying the respondent the ability to meaningfully review it. Further, the referral note and the treatment plan are the only medical documents that indicate a psychological injury. The balance of Dr. Iftikar’s clinical notes and records and the records from the applicant’s treating physiotherapy clinic have no indication of a psychological injury. The applicant’s submission that cultural differences prevented the applicant from reporting any psychological injury is not supported by any evidence.

ISSUE TWO: ORTHOPAEDIC ASSESSMENT

18The applicant claims entitlement to an orthopaedic assessment on account that the respondent did not provide a clear and unequivocal denial of the treatment plan. The applicant also argues that this disputed assessment is reasonable and necessary because the applicant was still recovering from the injuries as a result of the accident and because Dr. Iftikar prescribed physiotherapy to deal with the injuries.

19The respondent holds the orthopaedic assessment is not reasonable and necessary because the applicant was diagnosed with nothing more than uncomplicated soft tissue injuries. Additionally, the respondent submits there is no medical evidence to support the need for this assessment.

20I agree with the applicant that the respondent failed to provide a medical reason for the denial. The applicant, however, has not incurred any costs associated with the treatment plan and I find the treatment plan not reasonable and necessary.

21The respondent denied the assessment by letter dated December 29, 2016 stating a lack of recommendations for additional facility-based treatment as a reason for denial. This is an evidentiary reason which fails to address the applicant’s medical condition. The denial is based on a lack of information and not a medical reason such as a diagnosis or medical finding.

22Based on the medical evidence before me, I find the treatment plan is not reasonable and necessary. The evidence does not support the need for an orthopaedic assessment. The applicant’s predominant physical injury is a partially torn supraspinatus tendon in the right shoulder and there is no indication in the medical record to show the injury is complicated, confusing, or otherwise unknown which would warrant further investigation. Further, the reasons cited for the assessment focus on the applicant’s inability to complete household or personal care tasks. These reasons do not support the need for an orthopaedic assessment, but instead may support the need for an in-home assessment. I make no ruling on the need for an in-home assessment.

ISSUE THREE: CHRONIC PAIN ASSESSMENT

23The applicant claims entitlement to the chronic pain assessment because the applicant’s family physician and other assessors support the view that the applicant’s injuries have become chronic. The purpose of the chronic pain assessment is to identify the barriers to recovery and treatment options available to the applicant.

24The applicant takes issue with the responding medical report by Dr. J. Heitzner, physiatrist, dated March 22, 2017. The applicant submits the report of Dr. Heitzner is insufficient because it does not note the applicant’s injuries and does not address the applicant’s history of self-reported pain, and because Dr. Heitzner has not found the source of the applicant’s pain.

25The respondent holds the assessment is not reasonable and necessary. The respondent relies on the medical file review and report by Dr. Heitzner to support this decision. Dr. Heitzner reviewed the medical documents provided and concluded the assessment was not reasonable and necessary because there is no evidence to suggest the assessment would make a difference in the applicant’s symptom reduction or functional level.

26I have reviewed the medical evidence and, on a balance of probabilities, find the chronic pain assessment reasonable and necessary. As noted by the applicant, the purpose of the assessment is to identify the barriers to recovery and treatment options available to the applicant – not to reduce symptoms or improve function. The respondent’s evidence (i.e. the medical file review and report by Dr. Heitzner) fails to properly address the purpose of the assessment, does not fully address the scope of the assessment, and does not outweigh the evidence provided by the applicant.

27The clinical notes and records from the treating physician and physiotherapy clinic indicate the applicant has complaints of pain relating to the partially torn shoulder tendon. The pain complaints, although intermittent, have persisted following the accident. Further, the applicant’s family doctor notes different treatment may be required in the event there is a tendon injury. Considering the finding of a partially torn tendon, the applicant’s ongoing complaints of pain, and pursuant to Dr. Iftikar’s recommendation, treatment options alternative to physiotherapy should be explored. A chronic pain assessment is reasonable and necessary because it will explore and comment on different treatment options for the applicant.

ISSUE FOUR: FUNCTIONAL IMPAIRMENT ASSESSMENT

28The applicant claims entitlement to the costs of the functional impairment assessment pursuant to section 38(11)2 because the respondent did not reply to the treatment plan in accordance with section 38(8).

29The respondent submits the treatment plan was responded to in accordance with section 38(8) and the treatment plan was found to be not reasonable and necessary. The respondent relies on the opinion of Dr. A. Kopyto, physician, to deny the assessment. The denial letter dated April 5, 2017 advises that Dr. Kopyto found there was insufficient documentation to suggest that, at this stage of the claimant’s recovery, an impairment warranting a Chiropractic Functional assessment persists as a result of the subject MVA.

30Upon review of the evidence, I find the respondent has failed to provide a medical reason to deny the assessment. Insufficient documentation is not a medical reason to deny a treatment plan. The applicant incurred the cost of the assessment prior to receiving a proper denial and is entitled to the costs incurred pursuant to section 38(11)2.

31The respondent also argued that expenses for the report are related to a Superior Court matter because the report includes a Form 53E, which is a requirement in the Rules of Civil Procedure. The applicant submits this was completed by mistake and that the report addresses issues which are primarily for accident benefits such as the MIG, housekeeping, caregiving, and non-earner benefits.

32I find the inclusion of a document used for a Superior Court matter is not conclusive that the report was created specifically for such a matter. Further, I accept the assessment is related to the applicant’s accident benefit claim as the assessment addresses issues predominantly related to the applicant’s accident benefit claim.

ISSUE FIVE: PHYSIATRY ASSESSMENT

33The applicant did not incur the physiatry assessment but submits it should be considered reasonable and necessary based on the Dr. Iftikar’s clinical notes and records and the lack of evidence to suggest otherwise.

34The respondent submits the applicant’s injuries are uncomplicated and the applicant’s reported symptom severity is not consistent with the injury. Further, the respondent takes issue with the applicant’s untimely delivery of Dr. Iftikar’s clinical notes and records because they were only produced shortly before the case conference of this matter and after the assessment was conducted.

35I find the physiatry assessment is not reasonable and necessary because it is duplicative of the more comprehensive chronic pain assessment which I have found to be reasonable and necessary. The purpose of the physiatry assessment is to determine the reasonable and necessary treatment required to allow the applicant to return to normal activities of life. Identifying the barriers to recovery and treatment options, the stated goal of the chronic pain assessment, ought to also address the applicant’s ability to return to normal activities of daily living. As I have already found the physiatry assessment not to be reasonable and necessary, I do not need to address the untimely production of Dr. Iftikar’s clinical notes and records.

AWARD

36The applicant claims entitlement to an award pursuant to section 10 of Regulation 664. The applicant submits the respondent withheld documents from a section 44 assessor, arbitrarily denied the disputed treatment plans and withheld payment as a result.

37The respondent holds the documents which the applicant claims were withheld were served upon the respondent after the completion of the assessment. The respondent also holds the documents would not impact the assessor’s opinion because they corroborate the section 44 assessor’s conclusion.

38Pursuant to section 10 of Regulation 664, an award may be granted when the Tribunal finds that the respondent has unreasonably withheld or delayed payment of a benefit.

39I find the applicant is not entitled to an award because the respondent did not unreasonably withhold or delay payment of a benefit. The respondent’s decisions to deny the disputed benefits, while medically insufficient in some cases, ultimately stem from the recommendations of medical assessors. Further, the respondent’s failure to provide the section 44 assessor with documents received after the assessment is not unreasonable. The respondent sought and received an opinion from a medical professional and acted on that opinion. I acknowledge and agree with the applicant that the respondent should have provided Dr. Kopyto with the additional clinical notes and records because they are requested by the doctor in the report. However, I am unable to use this as a basis to order an award because no payment was unreasonably withheld or delayed because the assessment in question was ultimately found not reasonable and necessary. Further, although it may not be necessary, there is no statutory requirement which dictates that the production of additional clinical notes and records automatically requires further review from the assessor.

CONCLUSION

40The applicant is not entitled to the costs of the psychological, orthopaedic and physiatry assessments because they are not reasonable and necessary.

41The applicant is entitled to the chronic pain assessment because it is reasonable and necessary.

42The applicant is entitled to payment for the impairment assessment because it was incurred after the 11th business day following the submission of the treatment plan and before the respondent provided a proper denial.

43The applicant is entitled to interest on any overdue payment of benefits pursuant to section 51 of the Schedule.

44The applicant is not entitled to an award because no payments were unreasonably withheld or delayed.