S.S. v. Wawanesa Mutual Insurance Company, 2018 CanLII 146008

Citation: S.S. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-004899/AABS

Tribunal File No.: 18-004899/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:

[S.S.] Applicant

and

Wawanesa Insurance Company Respondent

DECISION

PANEL: Nidhi Punyarthi, Adjudicator

APPEARANCES:

For the Applicant: Maria Makarova, Paralegal

For the Respondent: Erica Lewin, Counsel

HEARD: In Writing on: December 17, 2018

OVERVIEW

1The applicant was involved in an accident on March 9, 2016. She claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (“Schedule”). Her claim for benefits was denied by the respondent. She then applied to the Licence Appeal Tribunal (“Tribunal”) for an adjudication of the dispute arising from her denied benefits.

ISSUE IN DISPUTE

2A written hearing was held in this matter. The parties identified the following issues in dispute for the hearing:

a. Two medical benefits for physiotherapy treatment: i. A treatment plan in the amount of $2,200.72, that was submitted on August 8, 2016 and denied on August 17, 2016; and ii. A treatment plan in the amount of $3,144.26, that was submitted on July 11, 2016 and denied on October 26, 2016.

b. The remainder of a medical benefit for other assistive devices, being the amount of $1,814.49, left over after a treatment plan in the amount of $1,924.47 was submitted on September 15, 2016 and partially approved on September 26, 2016.

c. Costs of examinations for the following assessments: i. A driver anxiety assessment in the amount of $2,000.00 submitted on September 14, 2016 and denied on September 23, 2016; ii. A functional abilities evaluation in the amount of $1,869.25 submitted on October 13, 2016 and denied on October 26, 2016; and iii. A chronic pain assessment in the amount of $2,556.05 submitted on March 13, 2017 and denied on March 24, 2017.

d. Interest on any overdue payment of benefits; and

e. Whether an award under s. 10 of Regulation 664 is payable because the respondent unreasonably delayed or withheld payment of a benefit to the applicant.

RESULT

3I find that the applicant is entitled to the full amounts of the medical benefits and costs of examinations at issue. She is, consequently, also entitled to interest under the Schedule. Nonetheless, I do not find a basis to order an award under s. 10 of Regulation 664 as I do not find that the respondent unreasonably delayed or withheld payment.

ANALYSIS

A. The Physiotherapy Treatment Plans

4In order for a medical benefit to be payable under the Schedule, it must be a reasonable and necessary expense incurred by or on behalf of the insured person.¹ It should also be within the applicable monetary limit² and claimed by submitting a treatment plan or OCF-18 that meets certain requirements under the Schedule.³

5The dispute between the parties in this case centers on whether the medical benefits claimed are reasonable and necessary.

6The first of the two listed treatment plans for physiotherapy appears to have been denied on August 17, 2016. The denial letter from the respondent indicates that the claim was a duplicate of a previous treatment plan that had been submitted.

7The previous treatment plan for such benefits that was submitted by the applicant was denied on the basis that the applicant was within the Minor Injury Guideline.⁴

8It should be noted that the applicant was removed from the Minor Injury Guideline on August 12, 2016 due to her psychological impairments caused by the accident.⁵

9The opinion that the applicant’s injuries were minor injuries was provided by Dr. Jamie Rusen, orthopedic surgeon, in a report dated August 8, 2016 (the “Rusen Report”). Dr. Rusen opined that, from an orthopedic perspective, the applicant’s injuries from the accident (namely her physical injuries), were minor as defined in the Schedule.

10Later, the applicant’s second treatment plan for physiotherapy services was denied on October 26, 2016, also based on the Rusen Report.

11A reading of the Rusen Report confirms that the analysis therein leads to the opinion that the applicant’s injuries are within the Minor Injury Guideline. This particular report does not specifically address the two physiotherapy treatment plans at issue. Dr. Rusen was not asked to specifically review these two treatment plans and provide an opinion on their reasonableness and necessity. Nonetheless, his opinion about the state and prognosis of the applicant’s injuries was used by the respondent to deny the two physiotherapy treatment plans.

12The evidence in the applicant’s medical file, however, provides different information on the applicant’s health status both before and after the accident at issue. According to her Personal Claim History (i.e., list of her OHIP claims), her conditions prior to the accident (based on the diagnostic code descriptions of her various claims) include: obesity (March 2013); glaucoma (November and December 2013); acne and sebaceous cyst (April and May 2014); migraine (June 2014); and hypertension (June 2014).⁶

13After the accident, the Personal Claim History shows diagnostic code descriptions including: sprains, strains and other trauma: neck, low back, and coccyx (day of the accident); depressive or other non-psychotic disorders, anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis (March to May 2016); lumbar strain, lumbago, coccydynia, sciatica (May 2016); acne again – which was also pre-existing (May 2016); other sprains and strains (May 2016); anxiety, neurosis (June 2016); and nervous system – convulsions, ataxia (July 2016).⁷

14The applicant’s Personal Claim History tracks the conditions she reported to her family doctor over time. Later periods of the Personal Claim History show diagnostic code descriptions including: coccydynia, sciatica (January 2017); psychosomatic disturbances (October 2017), and musculoskeletal system – leg cramps (July 2018).⁸

15A review of this Personal Claim History confirms that, while some of the applicant’s pre-existing conditions persist after the accident, there are a number of conditions, including conditions of a physical nature that would reasonably be relieved through physiotherapy treatment, that were noted by her family doctor for the first time after the accident. These conditions include addressing the pain she was experiencing in her neck and back.

16The respondent identifies in its submissions that the applicant was experiencing left shoulder pain due to her cysts after the accident. However, there is nothing in the documentation to indicate that the applicant’s pain after the accident was limited to the left shoulder and due to cysts. There were other areas of the body that were affected.

17Furthermore, the clinical notes and records of Rivlin Medical Group and the Chronic Pain Assessment Report of Dr. Wilderman dated September 13, 2018 (“Wilderman Report”) filed in evidence noted the benefits that the applicant was experiencing from the physiotherapy treatment that she was taking for some time after the accident.

18On a balance of probabilities, the Personal Claim History, the clinical notes of the applicant’s treating professionals, and the notes in the Wilderman Report about the applicant’s conditions and treatment experiences after the accident support the argument that the two physiotherapy treatment plans at issue were reasonable and necessary. These two treatment plans should have been approved on that basis.

19The Rusen Report contained a very narrow and focused analysis directed towards the conclusion that the applicant’s injuries are minor. It did not take into account the evidence identified above regarding the applicant’s conditions and treatment taken after the accident. For these reasons, I prefer the preponderance of evidence in the above-noted documents to the analysis and opinion in the Rusen Report.

20Accordingly, I find that the physiotherapy treatment plans in issue were reasonable and necessary, and they should be payable.

B. Remainder of Treatment Plan for Assistive Devices

21Similar to the issue taken with the physiotherapy treatment plans, the respondent took the position that the majority of the assistive devices recommended for the applicant by Punita Laurier, occupational therapist, in September 2016, were not reasonable and necessary. I have, therefore, evaluated the disputed portion of this treatment plan only on the basis of whether it is reasonable and necessary.

22The respondent took its position based on the in-home assessment and resulting opinion of Andrew Phillips, occupational therapist, in January 2017.

23Ms. Laurier recommended the following items in her treatment plan for assistive devices for the applicant, based on the applicant’s reports and her observations of the applicant’s limitations at home: instruction, personal care; documentation, support activity for claim form; provider travel time to treatment; long-handled bath sponge; bathtub seat; toilet seat, raised; bed helper bar; vacuum cleaner – lightweight; long-handled bathroom cleaner; dusting device, long-handled; long handled broom and dustpan; Swiffer wet jet; 16” and 24” grab bars with install.

24Mr. Phillips indicated that only the following items in his opinion were reasonable and necessary based on his observations and assessment: documentation, support activity for claim; long-handled bathroom cleaner; and long-handled broom and dustpan.

25A significant portion of the initial claim pertains to the balance of the assistive devices that were not approved by the respondent on the basis of Mr. Phillips’ opinion. Importantly, the assistive devices that were not approved for the applicant, namely other long-handled aids and grab bars, have the same functional goals as the devices that were approved by Mr. Phillips. As is evident by a review of the applicant’s medical history (contained in the records of her treatment providers after the accident), the applicant experienced physical impairments due to the accident. It is reasonable to infer that she would benefit from aids to alleviate her pain and limitations on a day-to-day basis at home. Some of the other items on the treatment plan are smaller one-time fee items for the occupational therapist to attend and instruct the applicant on use of the devices.

26On the basis of the rationale that was used by Mr. Phillips to support the two assistive devices that he approved, it can also be reasonably inferred that the balance of the recommended assistive devices are also helpful to the applicant. The balance of the treatment plan for the assistive devices is, therefore, reasonable and necessary. The respondent shall pay the balance of this treatment plan to the applicant.

C. Costs of Examinations

27A cost of examination claimed under the Schedule should also be reasonable and necessary and is subject to Guidelines limiting amounts and rates.⁹ The argument made by the respondent in denying the costs of examinations claimed by the applicant is that the claims for these costs were not reasonable and necessary in its view. I have, therefore, evaluated these claims only on the basis of whether they were reasonable and necessary.

a. Driver Anxiety Assessment

28The respondent’s reason for denying this cost of examination was that it had already approved a comprehensive psychological assessment.¹⁰

29There is, however, evidence that supports, on a balance of probabilities, the possibility that the applicant suffers from driving anxiety, such as the following:

a. The initial denial letter dated September 23, 2016, based on the report of the respondent’s psychological assessor, Dr. Costa El-Hage, indicates: “you have resumed driving on a regular basis and although you advised that you experience some moments of panic associated with driving you denied experiencing symptoms consistent with having a panic attack and you typically try to push yourself to drive in all situations.”¹¹ A driver who does not feel confident, experiences “some moments of panic,” and who has to push themselves to drive has driving anxiety and is potentially a danger to the public if on the road.

b. The actual report from Dr. Costa El-Hage dated July 29, 2016, indicates the following: “[S.S.] has resumed driving on a regular basis. She feels comfortable when driving in her neighbourhood but dislikes driving out of that area and experiences symptoms of panic when doing so. Specifically, she experiences shortness of breath, pain in her chest, headaches, and an inability to focus. She clenches the steering wheel tightly and feels “very scared”. She is currently avoiding driving on the highway and is particularly fearful of large trucks, as well as changing lanes and the possibility of driving into someone or of another vehicle hitting her. She has never had to pull over because of fear while driving on the highway but does travel “slower” causing other drivers to honk at her. She occasionally experiences moments of panic while driving in her neighborhood but could not say how often that occurs. She advised that she typically tries to “push herself to drive in all situations.” She dislikes travelling in a vehicle as a passenger but prefers it to driving. She does not use public transportation.”¹² These reports to Dr. Costa El-Hage are consistent with the proposition that the applicant may suffer from driving anxiety.

c. A note from her family doctor dated May 25, 2016 indicates that she has driving anxiety and PTSD. In addition, as noted earlier in this decision, the Personal Claims History of the applicant indicates that she was reporting anxiety symptoms on many occasions after the accident.

d. The respondent had further commissioned a s. 44 report from Dr. Paul Kelly, psychologist, on May 9, 2017. In his conclusions, Dr. Kelly indicated: “I agree with Dr. Costa El-Hage that [the applicant] developed clinically significant anxiety and depression symptoms as a result of the subject motor vehicle accident but, in my formulation, I have placed greater emphasis on driver and passenger anxiety.”

30There is no evidence before me to support that the comprehensive psychological assessment that was previously approved by the respondent is sufficient to evaluate the nature and prognosis of the applicant’s possible driving anxiety. The evidence tendered, on a balance of probabilities, persuades me that the cost of an examination to assess whether the applicant has driving anxiety is reasonable and necessary. The respondent shall pay this cost of examination to the applicant.

b. Functional Abilities Evaluation

31The cost of examination for a Functional Abilities Evaluation was denied on October 26, 2016, on the basis of the Rusen Report.¹³ As I have discussed earlier with regards to the two physiotherapy treatment plans at issue, there is a preponderance of medical evidence that supports the argument that the applicant has physical impairments arising from the accident that are different from what is indicated in the Rusen Report. This evidence includes but is not limited to the applicant’s claims history with OHIP and the clinical notes and records of her treating professionals. I have also, on the basis of this evidence, found that the applicant is entitled to additional assistive devices than the ones approved by the respondent. It is, therefore, reasonable and necessary to undertake an evaluation of the applicant’s functional abilities. The respondent shall pay this cost of examination to the applicant.

c. Chronic Pain Assessment

32The respondent initially denied the chronic pain assessment on the basis of the Rusen Report¹⁴ and subsequently denied it on the basis of two s. 44 assessments conducted by a physiatrist and a psychologist.¹⁵

33For reasons provided earlier, including the fact that the Rusen Report focused on an analysis pointing to the classification of the applicant in the Minor Injury Guideline from an orthopedic perspective, I do not find the Rusen Report to be relevant to an evaluation of whether a chronic pain assessment for the applicant is reasonable and necessary. Furthermore, the Rusen Report pre-dated the applicant’s request for a chronic pain assessment by a lengthy period of time, and it did not, due to its limited scope, explore the psychological impact of the applicant’s physical conditions arising out of the accident.

34With respect to the two s. 44 assessments that were commissioned by the respondent, there is no conclusion made in these reports as to whether the applicant has a chronic pain condition or chronic pain syndrome. A number of other diagnoses are made, but chronic pain or chronic pain syndrome themselves are not specifically addressed. I therefore find these reports to be of limited relevance to a determination of whether the assessment of the applicant for chronic pain is reasonable and necessary.

35There is, as I have stated earlier, medical evidence before me showing the applicant’s treatment trajectory with her family doctor and other professionals. This evidence also includes her OHIP claim summary, her prescription summary for numerous pain medications, a pain consultation report, as well as a report produced by the chronic pain assessment conducted by the office of Dr. Wilderman. The preponderance of this evidence points towards the argument that it is reasonable and necessary to assess the applicant to see whether she has chronic pain syndrome.

36While the respondent argues that the Tribunal has, in some previous cases, not upheld Dr. Wilderman’s reports, I do not find that argument to be directly relevant or persuasive when it comes to the question of asking whether the cost of an examination for chronic pain in this applicant’s case is reasonable and necessary. Each case turns on its own individual facts. In the case before me, I am persuaded by the medical evidence before me on the applicant’s reported and observed conditions arising from the accident, as discussed above.

37On the basis of the evidence before me, the cost of the chronic pain assessment was a reasonable and necessary expense. The respondent shall pay this cost to the applicant.

D. Interest

38Interest is payable in accordance with the Schedule for all of the amounts that I have ordered as payable above.

E. Special Award

39The claim for an award against the respondent for unreasonable delay or withholding in the payment of a benefit was not particularized before me in the submissions. While the Tribunal has reached a different determination from the respondent on the benefits at issue, it does not mean that the respondent engaged in unreasonable conduct in delaying or withholding payment of a benefit. The applicant has to demonstrate, on a balance of probabilities, that the respondent engaged in conduct that was unreasonable in this regard. I do not have that evidence before me in this case. Therefore, I deny the applicant’s claim for an award under s. 10 of Regulation 664.

CONCLUSION

40The applicant was successful in her application with respect to the medical benefits and cost of examinations claimed, as well as corresponding interest. She is not, however, entitled to an award under Section 10 of Regulation 664.

Footnotes

1. 1Schedule, s.15(1).
2. 2Schedule, s. 18.
3. 3Schedule, s.38(2) and (3).
4. 4In this case, placing the applicant in the Minor Injury Guideline meant that her injuries were understood to be “minor” as defined in the Schedule. It also meant that her monetary limit for medical benefits was $3,500. The reasonableness and necessity of a medical benefit claimed was assessed in relation to the classification of her injuries as minor.
5. 5Letter from the respondent dated August 12, 2016.
6. 6Tab 11 of the Respondent’s Brief of Documents.
7. 7Ibid.
8. 8Ibid.
9. 9Schedule, s.25.
10. 10Letter from the respondent dated October 11, 2016.
11. 11Letter from the respondent dated September 23, 2016.
12. 12Report of Dr. Costa El-Hage (s.44 Psychological Report) dated July 29, 2016.
13. 13Letter from the respondent dated October 26, 2016.
14. 14Letter from the respondent dated March 24, 2017.
15. 15Reports dated May 9, 2017 by Dr. Raymond Zabielauskas (s.44 Physiatry Report) and by Dr. Paul Kelly (s.44 Psychology Report).