G.L. v. TTC Insurance Company Limited, 2019 CanLII 101848

Citation: G.L. vs. TTC Insurance Company Limited, 2019 ONLAT 18-005322/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:

G. L.

Appellant

and

TTC Insurance Company Limited

Respondent

DECISION

PANEL:

Derek Grant, Adjudicator

APPEARANCES:

For the Applicant:

R. Amanda Neves, Paralegal

For the Respondent:

Tamara Broder, Counsel

HEARD:

In Writing on: March 4, 2019

OVERVIEW

1The applicant (“G.L.”) was involved in an automobile accident on January 18, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') .

2G.L. applied for and received some benefits from the respondent (“TTC”). With respect to other benefits which were denied, G.L. applied to the Licence Appeal Tribunal (the “Tribunal”).

PRELIMINARY ISSUE

Section 38 compliance

3Sections 38 (8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under section 38 (8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per section 38 (11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice.

4G.L. submits that the following treatment plans should be approved because TTC failed to comply with section 38 (8) of the Schedule:

i. Treatment plan dated October 2, 2017 and denied on December 8, 2017;

ii. Treatment plan dated December 29, 2017 and denied on January 19, 2018; and

iii. Treatment plan dated March 5, 2018 and denied on March 22, 2018.

5In support, G.L. provided a breakdown of the period in dispute, the number of days of incurred treatment and the amount owing, including HST. My summary of the breakdown is as follows:

Period in dispute

Days of incurred treatment

Cost of treatment and treatment plan

Total (including HST)

October 5, 2018 to December 8, 2017

14

14 x $152.81 + $200.00 + HST

2,643.45

January 4, 2018 to January 18, 2018

5

5 x $152.81 + $200.00 + HST

1,089.38

March 5, 2018 to March 22, 2018

2

2 x $152.81 + $200.00 + HST

571.37

Total

$4,304.20

6TTC also provided a breakdown in response, in support of its claim that only two of the treatment plans were not in compliance with section 38(8), I have summarized their evidence in the chart below:

Date of OCF-18

Date submitted to TTC

10 business day deadline

Date of Section 38 (8) Notice

Days liable for payment

October 2, 2017

October 2, 2017

October 17, 2017

December 8, 2017

October 18, 2017 to December 8, 2017

December 29, 2017

January 4, 2017

January 18, 2017

January 19, 2017

January 19, 2017

Total

$1,593.04¹

7TTC submits the content of the denials in relation to the above treatment plans complied with the requirements of section 38. However, TTC admits that section 38 denial letters were sent out after the 10^th business day, in relation to two of the treatment plans², not three. As such, TTC concedes that it is liable to pay for the goods and services described in the treatment plans “that were incurred starting on the 11^th business day and ending on the day TTC sent proper notice in compliance with section 38 (8)”. For the reasons that follow, I disagree with TTC’s argument that the treatment must be incurred.

8Section 38(11)2 states that the “Insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period (my emphasis) starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)”. Although section 38(11)2 does not specifically include the “expenses incurred” wording, I find the language in section 38(11)2 does support G.L.’s entitlement to payment for the relevant periods of TTC’s non-compliance.

9In his submissions, G.L. provides dates and amounts based on the incurred treatment. Although there is no reference to incurred in section 38(11)(2), if the legislators had intended that the effect of a non-compliant notice was that the insurer must pay the treatment plan in full, the reference to a non-compliant time period (starting on the 11^th day) would not have been necessary. In order to calculate the amount owing, G.L. needs to show what is owing for the period of non-compliance. The only way to do so, is to provide evidence as to how many treatment sessions were incurred during the period of non-compliance by TTC, and/or the cost of the treatment that was incurred during the period of non-compliance.

10TTC submits that a payment of $1,593.04 to resolve the non-compliance issue, was provided to G.L. on February 15, 2019; G.L. did not dispute this payment was made. TTC based its calculation on the amount owing for the periods of non-compliance related to the October and December 2017 treatment plans. I find that on a balance, G.L.’s explanation of what treatment was incurred during the periods of non-compliance is correct. As such, I find that any amounts owing for non-compliance, should be less any amounts already paid³.

ISSUES IN DISPUTE

11The issues in dispute are as follows:

(i) Are the following treatment plans recommended by Regency Rehabilitation, reasonable and necessary?

a. $2,339.34 for medical services in a treatment plan (“OCF-18”) submitted January 9, 2017, and denied on January 16, 2017;

b. $2,339.34 for medical services in an OCF-18 submitted June 19, 2017, and denied on June 28, 2017;

c. $2,339.34 for medical services in an OCF-18 submitted October 2, 2017, and denied on October 18, 2017;

d. $2,339.34 for medical services in an OCF-18 submitted December 29, 2017, and denied on January 19, 2018; and

e. $2,339.34 for medical services in an OCF-18 submitted March 5, 2018 and denied on March 22, 2018?

(ii) Is F.P. entitled to receive interest on any overdue benefit payments?

RESULT

12G.L.’s appeal is not granted because he has not met his onus to prove that the treatment he seeks is reasonable and necessary. In addition, G.L is not entitled to interest.

ANALYSIS AND REASONS

The Treatment Plans

13Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.⁴

14G.L. has not provided me with persuasive medical evidence that establishes on balance that the treatment plans are reasonable and necessary.

15As a result of the accident, G.L. was diagnosed with several injuries, including: recurrent cerebral concussion, myofascial cervical strain with exacerbation of degenerative disc disease and myofascial lumbar strain;⁵ post-traumatic stress disorder;⁶ head injury with concussion and small retinal tear on left eye, recurrent vertigo, myofascial cervical strain with exacerbation of previously asymptomatic, myofascial lumbar strain and right shoulder strain with rotation cuff tendonitis, low grade chronic anxiety and depression.⁷

16It’s as a result of these injuries, G.L. submits the treatment plans are reasonable and necessary. It should be noted that G.L. had received approximately seventy chiropractic sessions prior to the initial treatment plan in dispute, submitted two years post-accident, which were funded by TTC.

17The medical evidence provided, does not establish on balance that the treatment plans are reasonable and necessary. For instance:

(i) Under Part 8, of the initial treatment plan dated January 9, 2017 Dr. Antoniazzi ⁸notes, the patient states that currently his neck and right shoulder pain feels like it did a year ago”.

(ii) Under Part 7 of the second treatment plan dated June 19, 2017, Dr. Antoniazzi makes the same notation regarding G.L. prior and concurrent condition as noted in the initial treatment plan. Further, Under Part 8, the same recovery goals and barriers to recovery are noted, once again. There are no new recommendations for treatment, only the same one made as the initial treatment plan of re-commencing chiropractic rehabilitation and continuing with medically prescribed modalities.

(iii) Part 7 of the third treatment plan dated October 2, 2017, again listed the same prior and concurrent conditions, barriers to recovery, under Part 8 and the same treatment recommendations.

(iv) The treatment plans dated December 29, 2017 and March 5, 2018 are both nearly identical to the previous three treatment plans in terms of the goals of the treatment, barriers to recovery and recommended treatment.

18G.L. has failed to provide any objective evidence to establish that the treatment plans are reasonable and necessary. Dr. Antoniazzi does not provide any additional objective reporting in support of the recommendations for treatment. Essentially submitting the same treatment plan on five separate occasions, without any other supporting objective evidence, is not enough to establish entitlement to treatment.

19Dr. Antoniazzi’s recommendations seemed to be based on G.L.’s subjective pain complaints. In addition, with each treatment plan, there is little to no variance in the details provided as for the reasons for treatment. Further, there is no evidence that the treatment is making G.L. more functional or relieving pain. Each of the subject treatment plans list the same or similar pain complaints, which I find is not indicative of treatment that is achieving the goals of the treatment plans.

20Aside from the OCF-3’s⁹ of Dr. Soutar and the treatment plans from Dr. Antoniazzi, G.L. has not provided me with any objective evidence to establish that further chiropractic treatment is reasonable and necessary. Dr. Soutar’s clinical notes and records do not support further chiropractic treatment or show that the chiropractic treatment is reasonable and necessary. G.L. does not direct me to any evidence to establish why additional chiropractic treatment is required two-years post-accident.

21On the contrary, the medical evidence shows that G.L. has suffered significant psychological impairment as a result of the subject accident, and/or an exacerbation of his psychological impairment as a result of the previous accident. However, I do not have any treatment plans before me recommending psychological treatment, so I make no determinations regarding the reasonableness or necessity regarding psychological treatment.

22G.L.’s subjective reporting of improvement from facility-based physical treatment, notes some relief was obtained from physiotherapy. Again, however, this does not establish that the subject chiropractic treatment plans are reasonable and necessary.

Diagnostic Imaging

23I find that the diagnostic imaging reports do not provide any objective medical evidence that establishes the treatment plans are reasonable and necessary. For example:

(i) April 30, 2014 – shoulder ultrasound report: “no distinct tear, no joint effusion. Minor distal right supraspinatus calcific tendinosis”;

(ii) April 30, 2014 – left wrist, scaphoid and hand x-ray report: no fractions or abnormalities. Normal findings;

(iii) April 30, 2014 – right shoulder x-ray report: osteoarthritis;

(iv) April 30, 2014 – cervical spine x-ray report: no fracture, subluxation. Mild non-acute spondyloarthrosis; and

(v) January 19, 2015 – cervical spine x-ray report: no significant interval changes or acute finding.

Section 44 Assessments

24TTC relied on the reports (‘IE’s’) of its assessors¹⁰ in denying the treatment plans. Dr. Meloff noted that G.L. has no neurological deficits and although G.L. suffered from cervicogenic vertigo, he had been receiving vertigo physiotherapy, which was helpful. Dr. Meloff concluded that G.L. suffered from musculoskeletal injuries that “have largely resolved”. Dr. Meloff made no recommendations for treatment.

25In his report, Dr. Yee concluded that G.L. has “residual symptomatology related to myofascial strains of the cervical spine and right trapezius and exacerbated his pre-existing chronic neck and right shoulder complaints in the context of degenerative disc disease”. Dr. Yee went on to note that G.L., “suffered myosfascial strains of the lumbar spine and left hip strain”.

26Dr. Yee again saw G.L. and noted the same findings in this report regarding G.L. injuries/impairments. Dr. Yee further commented that G.L. had pre-existing chronic pain that was exacerbated by the subject accident and would prolong his recovery time. Despite this opinion, Dr. Yee concluded that G.L. has reached maximum medical recovery, that there would be no benefit from further facility-based treatment. Dr. Yee comments, “the treatment provided to date followed the expected course of recovery for the injuries being claimed that are solely, directly and causally related to this accident”.

27Dr. Leontidis diagnosed G.L. with an “aggravation of his pre-existing neck, right shoulder, left hip/low back pain”. Dr. Leontidis went on to conclude that G.L.’s soft tissue injuries “appear to have been superimposed upon pre-existing and un-resolved soft-tissue injuries and/or biomechanical disorders of the spine and shoulder (i.e. degenerative changes) that may have been exacerbated by the subject motor vehicle accident but would be expected to largely resolve to pre-accident level/function with treatment rendered and time elapsed”. Dr. Leontidis made no recommendations for treatment.

28I find the IE’s to be persuasive because the conclusions are in line with the subjective medical evidence provided by G.L.

29For instance,

(i) G.L. reported a 25-50% improvement to Dr. Leontidis in the February 15, 2017 IE. G.L. reported a 40% improvement in his back pain to Dr. Yee in the September 2018 IE and feeling 30-40% better (regarding his back pain) since Dr. Yee’s initial March 2016 IE.

(ii) G.L. reported to Dr. Yee that he found some relief from physiotherapy, home exercise and various other modalities.

(iii) G.L. reported to Dr. Leontidis that “he has not been referred by his family physician and/or any of his treating healthcare practitioners to any other medical specialist(s). with respect to his accident-related injuries”.

30Based on the treatment plans, the disability certificates and the conclusions reached by the IE assessors, I find that G.L. has not satisfied his burden to establish that the treatment plans are reasonable and necessary.

Functionality

31G.L. has not established that the treatment plans are reasonable and necessary in improving his level of functionality.

32I find G.L.’s level of functionality does not appear to be adversely affected by the subject accident. He returned to his employment with the TTC approximately one-month post-accident. G.L. returned to his position at the TTC and resumed his regular work and duties. G.L. retired from the TTC in March 2017, however, has returned to another full-time position in the transportation industry “for many months”, as he reported to Dr. Yee in the March 2016 IE report. This is not indicative of someone who has suffered a significant impact on their functionality as a result of an accident.

33G.L.’s treating practitioners and the insurer assessors mention “chronic pain”, however, G.L. has not directed me to any evidence that supports a finding of chronic pain. Subjective complaints of chronic pain in treatment plans and/or reports, are not enough to establish that a person suffers from chronic pain, or that the recommended treatment is reasonable and necessary in treating that pain. Further, G.L. has not established that the treatment plans are assisting in any significant way with his pain.

34I find for a person to be suffering from chronic pain, there must be an affect on their functionality. A treating physician’s mention of a chronic pain condition be it ‘syndrome’ or specific use of the term ‘chronic pain’ is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability. In addition, a chronic pain assessment or treatment is not in issue in this proceeding.

35Further, G.L.’s self-reporting of the treatment he has received post-accident until the time of Dr. Yee’s 2018 IE report, shows a similar level of improvement. I find the range of improvement reported to Dr. Yee (30-40%) is within the range reported (previously noted 25-50%) to Dr. Leontidis, nineteen months earlier. On this basis, I find there does not appear to be significant benefit of chiropractic treatment, more than three years post-accident. Further, I find that the chiropractic treatment is not reasonable or necessary in improving G.L.’s level of functionality.

The treatment plans are not reasonable and necessary

36An objective medical basis for treatment, which supports the subjective evidence, that, in turn, supports the recommended treatment, is helpful. Where that objective medical evidence is lacking or not provided, more is required than numerous treatment plans which list near identical barriers to recovery and goals of the recommended treatment, over a fifteen-month period.

37In order to further establish that recommended treatment is reasonable and necessary, there should be a significant difference in the level of pain complaints and functionality over a one, two- or three-year post-accident period. G.L. has received mainly physiotherapy treatment, which he has reported to be of some benefit. This is key, given the fact the five treatment plans in dispute are for chiropractic treatment that the medical evidence has shown to be of little benefit.

38For the reasons above, I find the evidence has established that the treatment plans are not reasonable and necessary.

CONCLUSION

39G.L. has not met the onus on him to prove his entitlement to the disputed treatment plans.

ORDER

40I find that TTC did not comply with section 38(8) of the Schedule regarding the treatment plans mentioned in paragraphs 4 and 5 above. I order that G.L. is entitled to payment related to the three treatment plans in question¹¹, for the amounts of incurred treatment during the period of TTC’s non-compliance, less any amount(s) already paid. Further, G.L. is entitled to interest on any remaining outstanding balance of non-compliance payment.

Released: August 23, 2019

Derek Grant

Adjudicator

Footnotes

1. 1$1,593.04 represents the amount of incurred treatment according to TTC’s submissions, regarding the two treatment plans it agrees were not in compliance with section 38(8).
2. 2October 5, 2017 and December 29, 2017 treatment plans
3. 3The calculation being $4,304.20, less $1,593.04 already paid by TTC.
4. 4Scarlett v. Belair, 2015 ONSC 3635
5. 5Disability Certificate dated February 19, 2015, Applicant’s Submissions, tab A.
6. 6Clinical Notes and Records of Dr. J. Caplan, Applicant’s Submissions, tab A.
7. 7Disability Certificate dated March 25, 2016, Applicant’s Submissions, tab A.
8. 9OCF-3 dated February 19, 2015 – anticipated duration is noted to be 5-8 weeks, and a recommended return to work date of February 23, 2015; OCF-3 dated March 25, 2016 – notes low-grade chronic anxiety and depression.
9. 10Section 44 assessment reports: March 14, 2016 of Dr. Keith Meloff; Neurologist, March 18, 2016 of Dr. Gilbert Yee, Orthopaedic Surgeon; February 15, 2017 of Dr. Dimitrios Leontidis, Chiropractor; September 13, 2018 of Dr. Gilbert Yee, Orthopaedic Surgeon
10. 11According to the chart in para. 5