Lubman v. The Guarantee Company of North America, 2018 CanLII 95556

Licence Appeal Tribunal

Date: 2018-06-27

Tribunal File Number: 17-006422/AABS

Case Name: 17-006422 v The Guarantee Company of North America

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR: D. GREGORY FLUDE

APPEARANCES:

For the Applicant: Naphtali Silverman, Counsel

For the Respondent: Hermina Nuric, Counsel

Heard in Writing: April 9, 2018

1The applicant was injured in a motor vehicle accident on November 30, 2014. She applied to the respondent for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ The respondent paid for a number of benefits but has denied payment for a recent treatment plan submitted on behalf of the applicant by her physiotherapist. The applicant has applied to the Tribunal to determine her entitlement to the treatment set out in the recent plan.

2The applicant was born on May 13, 1998 and is currently 20 years old. At the time of the accident on November 30, 2014, she was a student in grade 11. She has since completed high school and is currently a full time student [in university]. She is pursuing a dual degree in Women's Studies and Global Development.

3The dispute between the parties revolves around two distinct views of the benefit of the treatment. The author of the treatment plan, Dorothy Hillman, has been treating the applicant since approximately seven months post-accident and has documented significant improvements in the applicant’s condition. In her view, further treatment will resolve the root cause of a number of the applicant’s symptoms, particularly headaches that she has suffered since the accident.

4At the respondent’s request the applicant was examined by a neurologist, Dr. Jamsheed Desai. Dr. Desai is of the view that further physiotherapy treatment will not be effective and that the applicant’s major complaint, headaches, is best treated pharmacologically. The respondent denied the treatment plan after receiving Dr. Desai’s report.

5There is a complicating factor. The applicant appeared to make great progress in resolving her impairments from the date of the accident until September 2016. In September 2016 she suffered a concussion when she struck her head. Many of her symptoms returned after the second concussion, including anxiety attacks and headaches. Ms. Hillman treated her intensively following the second incident with a view to getting the applicant to the point where she could continue her university studies. The second incident raises the question of whether the treatments necessitated by the second concussion are sufficiently linked to the motor vehicle accident to require the respondent to fund the treatment under the Schedule.

6Having reviewed the written submissions of the parties and the evidence they submitted, I find that the applicant is entitled to the requested treatment.

ISSUES:

7The issues in the case as defined in the case conference order are:

a. Is the applicant entitled to a medical benefit in the amount of $4,115.04 for physiotherapy services recommended by Dorothy Hillman, PT, in a treatment plan (OCF-18) dated October 6, 2016, submitted to the respondent on October 11, 2016 and denied on October 25, 2016 and subsequently on September 14, 2017?

b. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

8I find that the applicant is entitled to the medical benefit claimed. The Schedule requires that interest be paid on any outstanding incurred amounts.

ANALYSIS

9Section 15 of the Schedule requires the respondent to pay for all reasonable and necessary medical benefits, including physiotherapy. The section requires that I review the October 6, 2016 treatment and assessment plan, its goal and expected outcomes in the context of the applicant’s overall impairments and medical condition. In doing this, I am guided by the factors set out by Director’s Delegate Draper in Violi and General Accident Assurance Company of Canada (P99-00047, September 27, 2000) (“Violi”) as follows:

a. the treatment goals, as identified, are reasonable;

b. these goals are being met to a reasonable degree; and

c. the overall cost [not just financial, but also investment of time, etc.] of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.

10Dorothy Hillman is a physiotherapist. She styles herself as an "independent physiotherapist who has done consulting work for several head-injury centred rehabilitation facilities since moving to Ontario in 1991, providing community and clinic based physiotherapy to individuals with brain injuries, neurological impairments, spinal cord and orthopaedic injuries." She runs Hillman Physiotherapy Consulting and, according to the applicant’s submissions, a clinic called The Concussion Clinic.

11She began treating the applicant in June 2015, approximately seven months after the accident. The respondent submits that Ms. Hillman had one hundred sessions with the applicant between June 2015 and October 6, 2016. She has documented significant improvements in the applicant’s condition over the period of treatment.

12Ms. Hillman produced three reports over the course of the treatment period documenting the applicant’s progress. She then authored the treatment and assessment plan dated October 6, 2016 that is in dispute in this proceeding. Because that progress is at the heart of my consideration of the treatment plan in question, I will detail the original symptoms and the noted improvements in each report.

13Ms Hillman’s initial report is dated November 17, 2015. It notes:

a. Severe fatigue;

b. Constant severe headaches/migraines;

c. Cognitive problems;

d. Constant moderate pain in her neck, shoulders, upper and lower back;

e. Severe soft tissue restrictions for shoulders, arms, neck, back, legs and trunk;

f. Severe muscle spasming of neck and upper and lower back muscles;

g. Decreased ranges of motion of the neck;

h. Decreased muscle strengths of the neck, shoulders, legs, back/trunk and pelvis caused by trauma and muscle imbalances;

i. Muscle imbalances in terms of lengths, reduced strength and stability for the neck, shoulders, trunk, pelvis and hips;

j. Reduced lower trunk, pelvis and hip stability;

k. Compressed atlanto-occipital and sphenoid basilar joint and reduced cranial bone movement;

l. Temporomandibular joint problems; and

m. Reduced endurance due to inadequate sleep, altered biomechanics and injuries.

14As noted above, the applicant underwent one hundred treatments over a period of sixteen months. The respondent paid for sixty-nine of those treatments and the balance were funded by private sources. On March 6, 2016 Ms. Hillman authored a progress report that showed significant improvement:

a. Neck pain: 90% resolved

b. Bilateral shoulder and upper thoracic back pain: Resolved

c. Jaw pain: 90% resolved

d. Low back pain: Resolved

e. Anxiety/Emotional Impact: decreased by 40% overall, to mild

f. Blinking/Eye Focusing: eyes still get tired and hurt with prolonged studying

g. Cognitive changes: Excellent progress

h. Fatigue: improved to 3/10 from 7/10. Headaches: Reduced

i. Irritability: Ongoing mild improvement

j. Taste and smell: Mostly resolved

k. Temporomandibular joint problems: Resolved

15Ms. Hillman continued treating the applicant though October 2016. By June Ms. Hillman was able to report that the applicant had 85% overall improvement. Muscle imbalance was completely resolved and headache frequency had diminished. By October the improvement had reached 90%. The frequency of headaches had continued to diminish despite a blow to the head in July and a second concussion in September. The concern for future treatment was to address headaches and decompress the atlanto-occipital² and sphenobasilar³ joints.

16Ms. Hillman submitted a treatment plan on October 6, 2016 proposing 16 more treatment sessions for a total cost of $4,115.04.

17When it received the treatment and assessment plan, the respondent decided to have the applicant examined by a neurologist, Dr. Desai. Due to scheduling issues, the examination, originally scheduled in November 2016 did not take place until August 2017. Dr. Desai had before him the progress reports prepared by Ms. Hillman. He noted that the applicant complained of neck and other physical pains during his examination as well as headaches. He noted that about 24% of concussion victims suffer headaches after four years from the date of the incident.

18When asked if he thought further physical treatment would be useful, he stated:

From the neurological perspective given the time elapsed and treatment modalities trialed, I feel that Ms. Lubman has had an adequate trial of physical therapy and further intervention by physiotherapists is unlikely to be of any further benefit. As noted above, from a pharmaceutical perspective, Ms. Lubman appears to be sub-optimally managed and appropriate recommendations have been provided above.

19In short, Dr. Desai is of the opinion that the applicant should test a number of pain-killers and find one that agrees with her.

20It is Dr. Desai’s final conclusion that is the most puzzling to me. He was asked to give his opinion on the reasonableness and necessity of Ms. Hillman’s proposed treatment. In finding it not to be reasonable and necessary, Dr. Desai states:

Based on the current examination findings, and the documentation reviewed, the goods and services detailed in the Treatment and Assessment Plan (OCF-18) dated October 6, 2016 are deemed not reasonable and necessary in full. Ongoing physical therapy, similar to previous treatments that have been provided and have failed to demonstrate any significant benefit to Ms. Lubman is not reasonable and necessary. From a neurological perspective, there was no ongoing accident related impairment identified that would warrant the provision of the proposed goods and services.

21Dr. Desai’s statement runs directly counter to the reports by Ms. Hillman showing positive results from physiotherapy. Support for his position is found in a statement he reports made by the applicant: “She reported that there has been minimal to no improvement since the subject motor vehicle accident.” On its own, this statement would appear damaging. I do not find it so. The applicant suffered a second concussion in September 2016. Ms. Hillman reports:

Fatigue had further improved until re-injury September 3. This therapist was away until Sep. 12. [App] Went to Emergency, saw neurologist & was told concussion more severe due to having pre-existing concussion. Unable to continue at school but with intensive re-assessment & therapy 5 days a week was able to return to school with much reduced load. Headache levels reduced from 9-10/10 to 4/10 & variable through day as opposed to severe. Decreased blurriness/light/noise sensitivity. Improved TMJ/swelling.

22Notwithstanding the comment about lack of improvement recorded by Dr. Desai, the records indicate that the applicant’s condition improved following intensive treatment by Ms. Hillman. In fact, in her October 6 report, Ms. Hillman records a 90% overall improvement.

23The second concussion raises a new question: is the applicant’s current condition the result of the accident or the result of the second incident? There is medical evidence that the applicant’s condition as a result of accident made her more susceptible to concussion and, but for the accident, she would not have sustained as severe a concussion as she did. Thus, the accident was a major contributor to the impairments suffered by the applicant as a result of the second concussion. Ms. Hillman notes in her third progress report:

The neurologist, noted that this concussion was so much more severe due to it following the initial concussion/head trauma that occurred at her MVA of November 30, 2014, which predisposed her and made her vulnerable to having this second, and with more severe concussive symptomology.

24The respondent relies on the case of State Farm and Sabadash (FSCO Appeal P16-00029), a decision of Director’s Delegate Evans at the Financial Services Commission of Ontario (FSCO), overturning an arbitration decision of Arbitrator Wilson. The decision thoroughly reviews the case law about the test for causation in personal injury cases. It holds that the test is the “but for” test: that is, but for the accident the injured person would not suffer the complained of impairments. The respondent does not expound further on its submission leaving me to speculate about how the respondent seeks to apply the “but for” test on these particular facts.

25I have found above that the evidence discloses that the applicant was particularly susceptible to more severe concussions because of the head injury she sustained in the accident. It is a common theme in the case law reviewed by Director’s Delegate Evans that the “but for” test does not require that the accident be the only contributing factor to the applicant’s condition. There can be other contributing factors and the effect can be cumulative but if both contribute to the applicant’s injuries then the “but for” test is met.⁴ The applicant’s particular susceptibility to more severe consequences from future concussions arises directly from the accident. The accident is a contributing factors and the “but for” test is satisfied.

26I find that Dr. Desai appears to have totally discounted the reported progress made by the applicant under Ms. Hillman’s care. From a purely objective point of view, the record discloses that the applicant went from severe pain, dizziness and nausea to leaving home to attend university. Her fatigue had improved to the point that she was functional during the day at university as opposed to missing classes immediately after the accident and dropping courses as reported to Dr. Desai. When I place that record of improvement that appears to stem from an attempt to address the applicant’s issues at a fundamental physical level against Dr. Desai’s recommendation that she take pain killers, I have no hesitation in finding that Ms. Hillman’s treatment has been beneficial to the applicant and has every possibility of continuing to be so.

27The respondent also relied on a decision of Arbitrator Sapin, Amoa-Williams and Allstate Insurance Company of Canada (FSCO A97-001864 June 5, 2000). Again, in the absence of specific submissions, I must confess some confusion in understanding the point the respondent is making in relying on this case. Arbitrator Sapin accepts Director’s Delegate Draper’s analysis from Violi set out above, stating:

Other factors considered by arbitrators in determining what is reasonable include whether the treatment complied with accepted professional protocols, the subjective benefit to the insured person, or if a treatment helped to relieve pain. I agree with Arbitrator Alves [See note 9 below.] that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery. I would qualify this, however, by adding that pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.

28The respondent relies on the last sentence from the above quote suggesting that the applicant has developed an inappropriate or indefinite dependency on Ms. Hillman’s treatments. There is no evidence before me to suggest that such a dependency has developed. I concede that Ms. Hillman’s treatments have been intensive, but in each case there has been marked improvement and the overall goal of allowing the applicant to successfully attend university seems to be working.

29Applying the Violi factors in this case, I have no difficulty in finding that the first two factors are satisfied. The treatment goals are reasonable and they are being reasonably achieved.

30In assessing the treatment goals, I have taken a broad view. The treatment and assessment form has a section titled “Goals.” The goals set out in that section are medical in nature and modest: “reduce swelling, reduce pain, increase strength, etc.” There is a much broader goal set out in the ‘Evaluation” section indicating that the lifestyle goal is to improve the applicant’s success at university: “Unable to continue at school but with intensive re-assessment & therapy 5 days a week was able to return to school with much reduced load.”

31In her October 6, 2016 report Ms. Hillman expands on the treatment and assessment form. She quotes the applicant’s goals: "Please get me back to at least as good as I was before this happened. Please get me better so that I can get back to school. I don't want to lose the year" She states the overall goals more formally later in her report:

a. Have further improved attention, concentration

b. Have decreased her headache intensity levels, frequency and duration by 90% or more

c. Reduced compressed atlanto-occipital and sphenoid basilar joint and reduced cranial bone movement by 90% overall

d. Have fully resolved daily functional endurance

e. Have reduced fatigue to 90% overall

32I find these to be laudable goals.

33In terms of the success of Ms. Hillman’s treatment regimen, I find that there is ample evidence that it is meeting its objectives. The second concussion incident is instructive. Following intensive treatment, the applicant was able to return to her studies, albeit with a reduced workload. It would seem her goal of not losing the academic year was achieved.

34The third Violi factor is concerned with the overall cost [not just financial, but also investment of time, etc.] of achieving these goals, taking into consideration both the degree of success and the availability of other treatment alternatives. Intensive treatment is expensive. Sixteen sessions of treatment cost in excess of $4,000 and the applicant has had one hundred. Weighing this cost against the degree of success, I am of the view that it is reasonable. This leaves me with the question of alternative treatment.

35It is the respondent’s position that there is alternative treatment that is also inexpensive. Again, this position is not clearly elucidated in the respondent’s submissions but it flows from the nature of the dispute and from Dr. Desai’s report. Simply put, Dr. Desai would have the applicant take pain killers. I have some difficulty with such a simple solution. The applicant’s complaints are much more complex than headaches. She has had anxiety, fatigue and sensitivity to light among other symptoms. All of these have responded to the current physiotherapy treatment regimen. It is unlikely that pain killers alone will address such a wide range of symptoms. Therefore I find that the respondent has not shown the availability of any alternative treatment.

ORDER

36The applicant is entitled to payment of the treatment and assessment plan dated October 6, 2016 in the amount of $4,115.04, and;

37The applicant is entitled to interest on overdue payments in accordance with s. 51 of the Schedule.

Footnotes

1. 1O.Reg. 34/10
2. 2The atlanto-occipital joint is the joint between the top cervical vertebra called the Atlas and Occiput.
3. 3The sphenobasilar joint is a joint where bones of the skull meet.
4. 4Directors Delegate Evans draws his conclusions from his analysis of the decision of Major J. in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. That case dealt with a personal injury claim, not a claim under the Schedule. Mr. Athey had pre-existing back problems, and two road accidents, all of which contributed to a herniated disc. The court found that as long as each accident contributed to the disc herniation problem, the “but for” test was met.