R. T. v. Echelon Insurance, 2018 CanLII 132559

Licence Appeal Tribunal

Date: 2018-11-13 Tribunal File Number: 17-007609/AABS Case Name: 17-007609 v. Echelon Insurance

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:

R. T. (Applicant)

and

Echelon Insurance (Respondent)

DECISION

ADJUDICATOR: Chris Sewrattan, Adjudicator

APPEARANCES:

For the Applicant: Alfred Kwinter and Dilenthi Warakaulle, counsel

For the Respondent: Jamie R. Pollack, counsel

HEARD: Written Hearing: May 7, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant was injured in a motor vehicle accident on November 5, 2014. He sought payment for benefits under the Schedule.¹ Echelon General Insurance Company (“Echelon”) denied payment for four treatment plans on the ground that they are not reasonable and necessary. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The following issues are in dispute:

(1) Is the applicant entitled to payment for $4,371.28 in chiropractic services, submitted by the Canadian Active Rehabilitation Centre in a treatment plan dated February 23, 2016?

(2) Is the applicant entitled to payment for $5,389.51 in chiropractic services, submitted by the Canadian Active Rehabilitation Centre in a treatment plan dated May 19, 2017?

(3) Is the applicant entitled to payment for $1,661.86 in chiropractic services, submitted by the Canadian Active Rehabilitation Centre in a treatment plan dated September 12, 2017?

(4) Is the applicant entitled to payment for a $1,900.00 functional abilities assessment, submitted by the Canadian Active Rehabilitation Centre in a treatment plan dated October 19, 2017?

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

(6) Is the applicant entitled to an award under O. Reg. 664 because Echelon unreasonably withheld or delayed payments?

RESULT

3Issues 1 and 2: The applicant is entitled to payment for the chiropractic services. The treatment plans are reasonable and necessary because each plan’s goal and method of reaching that goal is reasonable to treat the applicant’s medical condition. There is a link between the provision of these services and the applicant’s psychological injury.

4Issue 3: The applicant is not entitled to payment. The treatment plan is not reasonable and necessary because it does not employ a reasonable method of achieving its goal, and some of the service is a duplication.

5Issue 4: The applicant is not entitled to payment for a functional abilities assessment. He already received a functional abilities assessment in 2016. There is no evidence of why a second assessment is needed.

6Issue 5: The applicant is entitled to interest in accordance with s. 51 of the Schedule.

7Issue 6: The applicant is not entitled to an award under O. Reg. 664 because it does not appear that Echelon was in possession of the critical evidence needed to approve the treatment plans until the parties came to the Tribunal.

DISCUSSION

Issues 1 and 2: The applicant is entitled to payment for the treatment plans for facility-based passive chiropractic services

8The sole question for the resolution of issues 1 and 2 is whether each treatment plan is reasonable and necessary given the applicant’s medical condition. The treatment plans relating to issues 1 and 2 are reasonable and necessary because each plan’s goal and method of reaching that goal is reasonable to treat the applicant’s medical condition.

9I begin with the applicant’s medical condition. According to Echelon, the applicant's physical injuries are soft-tissue strains and sprains about his cervical and lumbar spine, right knee ligament joint, and right ankle ligament. Echelon submits that the applicant has not consistently reported these injuries, and the injuries have improved over time.

10Echelon denied the two disputed treatment plans because of reports by two medical practitioners it retained to examine the applicant: Dr. Karabatsos, an orthopedic surgeon; and Dr. Hosseini, a physiatrist. Both doctors view the applicant has having achieved maximal medical recovery, and he is no longer in need of passive, facility-based treatment. Echelon’s core submission is that the applicant may require additional treatment for psychological injuries from which he suffers as a result of the accident, but he has achieved maximal medical recovery for his physical injuries.

11The applicant suffers from the following psychological injuries: adjustment disorder and anxiety, posttraumatic stress, alcohol abuse disorder, and specific phobia - vehicular. The applicant’s treatment was removed from the Minor Injury Guideline because of his psychological injuries.

12In an affidavit, the applicant explains that the chiropractic treatment for which he requests payment helps him tremendously with his pain management. Indeed, after Echelon denied payment, the applicant continued to seek treatment out-of-pocket. The applicant swears that the treatment helped to reduce his pain, increase his stamina, and increase his ability to participate in activities of daily living. The applicant goes on to explain that his pain worsened over time after he stopped receiving chiropractic treatment. This had a significant impact on his psychological injuries. In my view, this is critical to understanding how the chiropractic treatment affects to the applicant’s medical condition.

13The shared goal of the treatment plans is pain reduction, increase in range of motion and strength. I might have agreed with Echelon that the treatment plans are unreasonable were it not for the applicant’s psychological condition. It is clear from the applicant’s affidavit that the facility-based, passive treatment relieves his pain. In turn, the plain relief helps his psychological injuries. At the least, his psychological injuries do not worsen. This unique mix of circumstances makes the treatment plans reasonable and necessary.

Issue 3: The applicant is not entitled to payment for the treatment plan

14The treatment plan for issue 3 is not reasonable and necessary. The treatment plan does not have a reasonable method of achieving its goal, and some of the service is a duplication.

15The treatment plan consists of the following:

(a) six hurt vs. harm sessions;

(b) exercise ball;

(c) theraband;

(d) an in-home exercise plan;

(e) mat;

(f) hammer massager;

(g) dumbbells;

(h) ankle weight; and,

(i) bosu ball.

The goal is the same as the treatment plans for issues 1 and 2: pain reduction, increase in range of motion and strength. The goal is reasonable, but the treatment plan’s method of achieving it is not.

16Unlike the facility-based, passive chiropractic service in the treatment plans addressed in issues 1 and 2, much of this treatment plan involves active, home-based exercise. Examples include the exercise ball, dumbbells, and bosu ball. This modality is an unreasonable method of achieving the treatment plan’s goal.

17The applicant’s unique mix of circumstances again drives the decision. The applicant emphasized to Dr. Hosseni, the physiatrist that Echelon retained to examine the applicant, that his pain is typically aggravated with physical activity. Indeed, an aversion to physical activity formed part of the applicant’s reply submissions on why he should receive payment for passive, facility-based chiropractic service. The relationship between the applicant’s physical pain and his psychological injuries is a prime concern for me. It is not reasonable for Echelon to fund a modality that the applicant admits will aggravate his pain.

18Much of the treatment plan is redundant or a duplication of service. The applicant advised his treating social worker, Ms. Gordon, that he had received hurt vs. harm counselling at the Canadian Active Rehabilitation Centre since the accident. Echelon has had an opportunity to cross-examine the applicant. During cross-examination, the applicant agreed that he could purchase the proposed exercise equipment on his own. Moreover, he already owns weights. Some of the requested equipment is available for use at the gyms he attended prior to the accident.

Issue 4: The treatment plan is a duplication of service

19The applicant seeks payment for a functional abilities assessment. However, he has not proven on a balance of probabilities that the assessment is reasonable and necessary. The applicant already received a functional abilities assessment. There is no evidence why a second assessment is needed.

20The first functional abilities assessment was an insurer’s examination. It was conducted on September 26, 2016 by Dr. Jeff Ford. Dr. Ford issued a report dated October 7, 2016. I appreciate that there may be potential motivations for wanting a functional abilities assessment that was not created by an insurer’s examiner. However, the applicant has not provided any evidence as to why a second functional abilities assessment is needed. I cannot speculate.

21In the absence of any evidence supporting the assessment’s need, the applicant is not entitled to payment.

Issue 5: Interest

22The applicant is entitled to interest on payment for the treatment plans in issues 1 and 2. Payment will be made in accordance with s. 51 of the Schedule.

Issue 6: The applicant is not entitled to an award under Ontario Regulation 664

23Section 10 of Ontario Regulation 664 allows me to order an award for the applicant if Echelon unreasonably denied payment. Echelon did not unreasonably deny payment. The applicant’s entitlement to the treatment plans for chiropractic services in issues 1 and 2 is largely because of his affidavit’s content. Indeed, as I noted earlier in this decision, I might have agreed with Echelon that the treatment plans are unreasonable were it not for the affidavit’s content. The affidavit was created well after Echelon denied the applicant payment. It is sworn April 9, 2018 and includes a back page specifically naming the Tribunal. I infer that the affidavit was created for the purpose of dispute resolution.

24Critical in the affidavit is the link between the absence of chiropractic service and the applicant’s increase in psychological injury. I do not see this link in documents that would have been available to Echelon prior to dispute resolution process at the Tribunal. I do not think it unreasonable, then, for Echelon to have denied payment for the treatment plans in issues 1 and 2.

CONCLUSION

25The applicant is entitled to payment for the chiropractic services in issues 1 and 2. Payment of interest must be made in accordance with s. 51 of the Schedule.

26The applicant is not entitled to payment for the treatment plans in issues 3 and 4. Nor is the applicant entitled to an award under Ontario Regulation 664.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.