[Applicant] v. Certas Home and Auto Insurance, 2018 CanLII 8098

Date: 2018-01-26

Tribunal File Number: 17-001228/AABS

Case Name: 17-001228/AABS v Certas Home and Auto 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:

[Applicant]

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Eleanor White

APPEARANCES:

For the Applicant: Sophia Dales, Counsel

For the Respondent: Jocelyn Tatebe, Counsel

Held by Written Hearing: July 4, 2017

OVERVIEW

1The applicant, [applicant], was involved in a highway automobile accident on November 30, 2012, when he collided with the vehicle in front of him. His vehicle was damaged beyond repair. His father drove him to a hospital emergency department, where he was diagnosed with soft tissue injuries and released same day. The applicant sought and received medical and other benefits from the respondent, Certas Home and Auto Insurance, under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The respondent refused to pay for further medical benefits for treatment and assessment of [the applicant’s] injuries, assistive devices and a gym membership, on the basis that they were not reasonable and necessary as a result of the accident. The applicant disagrees with the respondent’s position and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve their dispute. The parties were unable to resolve their disputes at a Case Conference, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

3The issues in dispute are as follows:

1. Is the applicant entitled to receive a medical benefit in the amount of $1,265.00 for chiropractic services recommended by Chiromax of Manotick in a treatment plan dated May 9, 2016?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,857.77 for a gym membership and assistive devices recommended by Jeffrey Moolasseril, Occupational Therapist, in a treatment plan dated May 17, 2016?
3. Is the applicant entitled to recover the cost of a psychological assessment in the amount of $2,000.00 completed by Dr Gow, psychologist, in a treatment plan dated December 6, 2016?
4. Is the applicant entitled to recover the cost of a psychoneurological assessment in the amount of $2200.00 completed by Dr Gow, psychologist, in a treatment plan dated December 6, 2016?
5. Is the applicant entitled to interest for the overdue payment of benefits under s. 51 of the Schedule?

RESULTS

4The applicant is entitled to expenses of $1,265 for chiropractic services because they are reasonable and necessary as a result of the accident.

5The medical benefit of a gym membership and assistive devices submitted in a treatment plan in the amount of $1,857.77 is partially reasonable and necessary, allowing the gym membership for one year in the amount of $933.00.

6The applicant is not entitled to $2,200 for the cost of a neuropsychological examination because he failed to present any medical evidence to show that he sustained any type of head trauma or brain injury as a result of the accident. Similarly, he also failed to produce any medical evidence to show that a pre-existing neuropsychological condition was exacerbated by the accident.

7The applicant is entitled to $2,000 for the cost of a psychological assessment because of the diagnoses in Dr Kim Payne’s psychological evaluation of the applicant. His findings of 3 DSM-5 conditions; Persistent Depressive Disorder, Somatic Symptom Disorder and Specific Phobia (motor vehicle). The report was persuasive in its support of the applicant’s development of a chronic pain disorder. I find the treatment plan for a psychological assessment to be reasonable and necessary.

8The applicant is entitled to interest for any payments overdue under s. 51 of the Schedule.

REASONS

Background

9The applicant was 19 years old at the time of the accident. Prior to the accident, he had attended and finished high school, complicated by an early diagnosis of a Minimal Mental Disability, with associated behavioural issues, for which he received support from the Ontario Disability Support Program. The applicant had been working part-time at a pizza store since he was 16. He was registered in Algonquin College, studying electrical engineering. On his own report, he had a social life including some sports activities with his friends.

10From his own narrative and the reports from medical and insurer’s assessments and examinations, the applicant has not been able to continue with his schooling, his employment or his social life since the accident because of ongoing accident-related headaches and neck and back spinal pain which occurs day and night. He has diminished stability and mobility. He stated that he spends a lot of time lying down and watching television. He stated that his condition worsened in 2014 despite 8 months of physiotherapy treatment, and he has been taking multiple daily doses of opiates for at least 4 years, as prescribed by the family physician. His medications include Percocet, an opiate,¹ for pain relief; Tylenol 3; Elavil, an anti-depressant; and Neurontin for neurological pain. He reported that he was taking Tylenol 3 three to four times per day and Percocet at a frequency of two to three times daily. The applicant has also been diagnosed with a somatic symptom disorder, persistent depressive disorder, and driving phobia.²

11The parties agree that the applicant had developed symptoms of chronic pain syndrome as a result of his accident injuries. The applicant’s position is that the chiropractic treatment, gym membership and assistive devices he is claiming are reasonable and necessary because they provide pain relief and will improve his functional abilities. He submits that the neuropsychological assessment is necessary because of possible brain injury caused by the accident. He submits the psychological assessment is necessary because of Dr Payne’s diagnoses listed above and because the assessment will allow the doctor to determine a course of treatment or medication to help him.

12Underlying the respondent’s refusal to pay for the items claimed is the lack of objective evidence of examination findings, whether by imaging or by physical testing, that would support the service providers’ proposals for continued treatment. In support of its position, the respondent relies on insurer’s examinations (IE) conducted by physiatrists Dr U. Buenger and Dr Z. Waseem.

THE LAW

13Under s. 15 of the Schedule, insurers are required to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, among other things, medical, chiropractic, psychological, occupational therapy and physiotherapy services, and also other goods and services of a medical nature that the insured person requires. The applicant bears the burden of proof of establishing, on a balance of probabilities, that the expenses claimed result from the accident and are reasonable and necessary.

Denied Treatment Plans for Physical Treatment and Assistive Devices

$1,265 for chiropractic services recommended in a Treatment Plan dated May 9, 2016 by Dr Ismail from Chiromax of Manotick

14Dr Salima Ismail, chiropractor, recommended 24 sessions of chiropractic services over an 8-week period. The applicant had been treated in this facility from January 27, 2016 to April 21, 2016.

15The applicant attended a physiotherapy clinic for approximately 8 months, but reported to IE assessor Dr Buenger, physiatrist, that the treatment was largely unsuccessful. In another and more recent IE assessment conducted by Dr Waseem, physiatrist and reported on August 24, 2016, the applicant reported that he had increased pain at the end of 2014 and in 2015 started to attend a chiropractic clinic where he received chiropractic care, massage therapy and was instructed in independent exercises. The applicant indicated this treatment was the most successful to date, but still only allowed him up to 3 hours of pain relief.

16The respondent relied on the report of Dr Buenger who conducted an IE of the applicant under section 44 of the Schedule and issued a report dated September 5, 2014, in its decision to deny the treatment plan. Dr Buenger found the applicant to suffer from chronic pain with decreased spinal mobility. He emphasized that although the applicant would likely face pain as an ongoing concern, his treatment should emphasize fitness and mobility rather than pain relief.

17In the respondent’s submissions, it also referred to the conclusions of Dr Waseem, a physiatrist, who had conducted an IE under section 44 of the Schedule reported on August 24, 2016, for the consideration of the second disputed treatment plan from Occupational Therapist Jeffrey Moolasseril. Now two years after the accident, Dr Waseem was unable to find any objective evidence of impairment during this assessment. However, Dr Waseem still found the applicant suffered with ongoing chronic pain, and thus he found that the applicant had reached maximal medical recovery from his injuries and would not benefit from further facility based treatment, despite the continuing pain. The respondent thus found facility based treatment to be not reasonable and necessary.

18Having reviewed the medical evidence submitted, I agree with the respondent that there are no objective findings that would explain the applicant’s ongoing impairment due to the applicant’s accident injuries and thus his need for further treatment. I reject the applicant’s position that the presence of Schmorl’s nodes in the lower thoracic and upper lumbar vertebrae, noted in a post-accident x-ray, indicate a traumatic herniation arising from the accident. The report explains these as incidental findings, commonly non-symptomatic.

19However, the applicant has raised the issue of pain relief as a viable justification for allowing a treatment plan. In his report, Dr Waseem has acknowledged that the applicant finds the treatment received from the chiropractor’s office to be the most effective to date, however the relief is temporary. The applicant has relied upon Arbitrator Sapin’s interpretation of the reasonableness of pain relief as a legitimate medical and rehabilitative goal.³ This interpretation allowed this goal if medically recommended and agreed upon by the applicant as well as not setting up inappropriate dependencies on the protocol. Each case is to be examined on its own merits. I find that this case warrants the allowance of a treatment plan that temporarily provides relief from pain in the absence of (to date) objective findings of injury for the reasons below.

20In this case, we cannot lose sight of the fact that the applicant is a young man, already somewhat disadvantaged by an early diagnosis of a Minimal Mental Disability with behavioural problems. He had a sustained employment history at a pizza parlor, was enrolled in a vocational program in college and the school was assisting him with his disability. Despite this, I do not see any recommendation to a chronic pain program for this young man, which could provide an alternative to the continued prescription of opiates and return him to a more productive life.

21In the absence of any otherwise expected recommendation for a good chronic pain program, and with only the continuation of opiate medications, the decision to discontinue a proposed treatment plan which has provided the applicant’s sole pain relief, albeit temporary, seems harsh. I find it unreasonable considering no other alternative is evident in the submissions. I am not asked to choose the most reasonable program, but only if this disputed treatment plan in this applicant’s situation is reasonable and necessary. I agree with Dr Waseem’s argument that any road forward for this young man should be one that considers more than just pain relief, as pain may be a reality for him for some time, particularly given the symptoms of chronic pain syndrome which the parties agreed that the applicant developed as a result of his accident injuries. I am also persuaded that no objective findings are evident. In addition, Dr Buenger has stressed that fitness and mobility, and not just pain relief are important for the applicant. However, until a better alternative is available, the ability to provide some pain relief is justifiable through the treatment recommended in the disputed plan. Accordingly, I find the treatment plan of Dr Ismail to be reasonable and necessary.

$1,857.77 for a gym membership and assistive devices recommended by Jeffrey Moolasseril, Occupational Therapist, in a treatment plan dated May 17, 2016?

22This treatment plan proposes the respondent approve a one-year membership at a gym (Movati Athletic) in the amount of $ 933.04. It also proposes certain assistive devices in the amount of $ 685.00 from Canada Care Medical. The remainder of the $1,857.77 total amount relates to administrative costs.

23I find that the recommendation for a gym membership is reasonable and necessary. The applicant had attended and evidently occasionally still attends a gym with his friends. Dr Buenger had recommended the applicant utilise the gym facilities at college, but according to Dr Waseem’s IE report, the applicant no longer is a student at the college so those facilities may no longer be available to him. The assessors have agreed that he must learn to pay attention to mobility and function and not be limited by pain. However, the respondent submits that the disputed plan is not reasonable because it does not include the supervision of a physiotherapist, as recommended by Dr Waseem. Again, I am reminded this young man has had a diminished lifestyle due to pain and relied upon medications for pain relief. Likely, he can access a trainer at this gym and consult with his treatment provider regarding the exercises that are best suited to his needs. This provision has many benefits and is reasonably priced. The recommendation is supported in principle by both physiatrists, Drs Buenger and Waseem. I find this component of the treatment plan ($ 933.04) to be reasonable and necessary.

24With respect to the assistive devices, I have more difficulty in relating their necessity to the injuries sustained in the motor vehicle accident. The devices include the following:

• Perching stool,
• Anti-fatigue mat,
• Heating pad,
• Whiteboard for planning,
• Daily planner,
• Dosette box,
• Large bathmat,
• Bathing seat,
• Grab bars,
• Obusforme backrest, and
• Long-handled reacher and sponge.

25The bathing seat, mat and grab bars are recommended because of falls. However, the medical records indicate that the applicant already suffered fainting spells prior to the accident, and there is no evidence of any changes in this condition due to the accident. The other assistive devices, for further comfort of the applicant are not well justified in this report. For these reasons, I do not find the remainder of the treatment plan for assistive devices to be reasonable and necessary.

26Dr Gow submitted a treatment plan recommending both a psychological and a neuropsychological assessment of the applicant, dated December 6, 2016.

Is the applicant entitled to recover the cost of a psychological assessment in the amount of $2,000.00 completed by Dr Gow, psychologist, in a treatment plan dated December 6, 2016?

27The applicant submitted that his pre-accident diagnosis of Minimal Mental Disability justified the need for a psychological assessment.

28Dr Kim Payne conducted a psychological evaluation for the applicant and diagnosed 3 DSM-5 conditions; Persistent Depressive Disorder, Somatic Symptom Disorder and Specific Phobia (motor vehicle). Dr Payne felt the applicant’s psychological impairment has led to the “cessation of his vocational and educational involvement” and to a diminished social interaction and he made suggested possible strategies to help the applicant. This report was persuasive in its support of the applicant’s development of a chronic pain disorder.

29The respondent denied the treatment plan because of the lack of evidence presented from three sources on which they relied: firstly, that the physiatry report of Dr Waseem did not diagnose the applicant with any psychological limitation, secondly, the lack of any evidence of intracranial injury after the accident and lastly, that the family physician had not referred the applicant for any psychological consultation.

30I do not find the respondent’s argument convincing. Firstly, the reliance on the physiatry report to diagnose or comment on a psychological issue is not appropriate, as it is not within his scope of practice. Secondly, the presence or absence of an intracranial injury is not necessary for the diagnosis of a psychological problem. Finally, it is correct that the family doctor’s notes have not mentioned a psychological issue. I am inclined to interpret that differently in that it is troublesome that the family doctor has expressed concern with the ongoing pain, but has continued to prescribe this young man opiates for a period of over 3 years, without a referral to a pain clinic or a psychologist. For all of these reasons, I find the treatment plan for a psychological assessment to be reasonable and necessary.

Is the applicant entitled to recover the cost of a neuropsychological assessment in the amount of $2,200.00 completed by Dr Gow, psychologist, in a treatment plan dated December 6, 2016?

31The applicant argued for the neuropsychological evaluation on the basis that Mr. Moolasseril noted cognitive deficits, memory lapses, light and sound sensitivity that may be due to a traumatic brain injury sustained in the accident. However, Dr Gow felt the etiology of these issues may be more psychological than neurological. The respondent argued persuasively against the need for a neuropsychological assessment, stating the applicant has not met his onus in providing evidence to support the need for such an assessment. It cited the absence of any mention of head trauma or brain injury. It also asked me to draw a negative inference from the family doctor’s non-compliance when asked to furnish information supportive of the need for a neurological consultation. The respondent also relied upon the inability of any assessor to find any neurological signs or deficits upon assessment. The normal CT results after a fainting episode in July 2016 offered no evidence of earlier brain trauma. Accordingly, I am not persuaded that there is any evidence to support a neuropsychological assessment as recommended by Dr Gow on December 6, 2016. I find the proposed $2,200 treatment plan for a neuropsychological assessment not to be reasonable and necessary.

CONCLUSION

32The Tribunal directs that the application is partially granted. The treatment plan for chiropractic care in the amount of $1,265 from Dr Ismail is allowed with applicable interest under section 51 of the Schedule. The Treatment Plan recommended by Mr. Moolasseril for a gym membership in amount of $933.04 is allowed, plus applicable interest; whereas the remainder of that plan for assistive devices is denied. Dr Gow’s treatment plan in the amount of $2,000 for psychological assessment is allowed; however the treatment plan for neuropsychological assessment is denied.

Released: January 26, 2018

_____________________

Eleanor White

Adjudicator

Footnotes

1. 1Dr Abdullah, Clinical Notes and Records, March 27, 2013, Respondent’s submissions
2. 2Psychological assessment report of Dr Kim Payne, psychologist, dated April 3, 2007. No indication of psychological treatment has been brought to my attention in either party’s submissions.
3. 3Amoa-Williams v. Allstate Insurance Co. of Canada, 2000, Carswell Ontario 5293 (F.S.C.O. Arb.)