Tribunal File Number: 18-003423/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:
B.S.
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Elena Steinberg, Counsel
For the Respondent: David Raposo, Counsel Aly Pabani, Counsel
HEARD In writing on: January 7, 2019
OVERVIEW
1The applicant was injured in an automobile accident on April 12, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
- Is the applicant entitled to receive medical benefits proposed by Brampton Civic Care Centre Inc. as follows;
A. $3,087.92 for a physiotherapy treatment plan dated September 17, 2016;
B. $2,754.08 for a physiotherapy treatment plan dated March 20, 2017;
C. $2,754.08 for a physiotherapy treatment plan dated July 20, 2017; and
D. $2,153.84 for a physiotherapy treatment plan dated April 5, 2018?
Is the applicant entitled to receive payment for the cost of examinations in the amount of $2,295.33, less $1,995.33 approved by the respondent, for a psychological assessment recommended in a treatment plan dated September 13, 2016?
Is the applicant entitled to receive payment for the cost of examinations for assessments recommended by Ontario Independent Assessment Centre Inc. as follows;
A. $1,297.26 for an in-home assessment recommended in a treatment plan dated December 17, 2016;
B. $2,198.00 for an orthopedic assessment, recommended in a treatment plan dated January 6, 2017;
C. $2,198.00 for a chronic pain assessment recommended in a treatment plan dated January 12, 2017?
D. $1,300.00 for an assessment of attendant care needs recommended in a treatment plan dated February 22, 2017;
E. $1,850.00 for a cognitive assessment recommended in a treatment plan dated June 7, 2017;
F. $1,966.13 for a driving evaluation assessment recommended in a treatment plan dated September 15, 2017;
G. $2,000.00 for a neurological assessment recommended in a treatment plan dated September 7, 2017?
- Is the applicant entitled to receive interest on the overdue payments?
RESULT
3The applicant is not entitled to any of the benefits claimed.
BACKGROUND
4The applicant was the driver of a vehicle which was struck on the passenger’s side while making a left turn. Ambulance services attended the scene of the accident but did not take the applicant to the hospital. The applicant attended a walk-in clinic later that day and was prescribed medication to deal with pain and referred to massage therapy. About a week and a half later on April 23, 2016, the applicant went to see Dr. S. Wassef, family physician, who requested x-rays which were unremarkable.
5The applicant went to Brampton Civic Care Centre Inc. (“Brampton”) and received physiotherapy and massage therapy to treat soft tissue injuries, characterized in the Schedule as “minor injuries”, pursuant to the Minor Injury Guideline (“MIG”). The applicant was subsequently removed from the MIG as a result of psychological injuries and was no longer subject to the $3,500.00 MIG funding limit. The respondent funded the applicant’s initial treatment at Brampton, but eventually denied funding for physiotherapy services after insurer’s examination (‘IEs”) determined further physical treatment was not reasonable and necessary.
6As the applicant’s recovery and course of care continued at Brampton, a different treatment and assessment centre, Ontario Independent Assessment Centre Inc., proposed seven separate examinations, which the respondent denied funding for.
EVIDENCE
7The applicant claims entitlement to the disputed treatment and assessment plans due to extensive functional barriers and high levels of pain. The applicant claims to have not resumed the same pre-accident lifestyle and submits there is a reasonable possibility that the applicant may have chronic pain syndrome.
8The applicant’s submissions only refer to the Occupational Therapy Paper File Review Report by D. Rogozinsky, dated November 2, 2018 (“the OT report”) to support the claims. I will address this report in detail later.
9The respondent claims the applicant suffered minor psychological difficulties and musculoskeletal injuries a result of the accident. The respondent relies on the opinions in several IEs to support this position. The opinions include that of Dr. Weisleder, who in a report dated October 11, 2017 found the applicant suffered strain injuries but determined further facility-based treatment was not reasonable and necessary for the applicant. Another opinion is that of M. Lee, occupational therapist, who in a report dated October 27, 2017, noted the applicant reported no experiences with cognitive difficulties at work despite having a job which involved mostly cognitive skills.
The Occupational Therapy Paper File Review Report
10The applicant submits the findings in the OT report support the position that the disputed treatment and assessment plans are reasonable and necessary. The applicant relies solely on the opinions of occupational therapist D. Rogozinsky.
11The OT report did not include a physical or in-person assessment. Instead, the occupational therapist listed the different issues in dispute and included an opinion on whether the disputed treatment and assessment plans are reasonable and necessary.
12The respondent submits the OT report should be dismissed as unhelpful because the occupational therapist is not a doctor and the report is self-serving. I mostly agree with the respondent for the following reasons.
13I find the assessor in the OT report has failed to comply with the requirements outlined in section 10(2) of the LAT Rules of Practice and Procedure (the “Rules”). Specifically, the assessor failed to fulfill the duty of providing opinion evidence that is within the expertise of occupational therapy, fair, objective, and non-partisan.
14The expert’s failure to comply with rule 10(2) is highlighted in the section titled “RESPONSE TO CURRENT DENIALS”. The comments in this section are beyond the scope of an occupational therapist and disparage the respondent. This implies the assessor is not being objective. The paragraph in question reads as follows;
It should be noted that the SABS are supposedly in place to assist clients in their recovery. Unfortunately, in this case, the adjuster appears to prefer to spend money on multiple assessments rather than on treatment and support for the client. The cost of these assessment could have covered much of her therapy and it is unfortunate that the adjuster did not choose to spend this money providing support for the client which would have assisted in (the applicant’s) recovery.
15As a result of the assessing occupational therapist’s bias and tendency to provide opinions outside the scope of occupational therapy, I reject entirely the opinions contained in the report.
THE APPLICANT’S MEDICAL RECORD
16Although the applicant submitted medical records in addition to the OT report, the written submissions make no reference to this evidence. A review of the applicant’s evidence reveals no remarkable information and does not persuade the reader to find the disputed treatment plans are reasonable and necessary.
17For example, the applicant’s family physician’s CNRs indicate the applicant suffers from depression and anxiety following the accident. However, this diagnosis is recognized by the respondent, who funded the applicant’s psychological assessment and there is no psychological treatment in dispute. Similarly, the CNRs from Conestoga Medical Centre show the applicant had x-rays and ultra sound imaging of the knee, neck, back, and shoulder, which all produced unremarkable results and there is no indication any course of treatment was recommended as a result of these investigations.
THE DISPUTED TREATMENT PLANS
18It is the applicant’s responsibility to prove entitlement to medical and rehabilitation benefits1. The OT report, written submissions, and medical records provided by the applicant fail to satisfy this requirement. As a result, I find the applicant is not entitled to the disputed treatment and assessment plans.
INTEREST
19Interest is only payable on overdue benefits pursuant to section 51 of the Schedule. Having found the applicant is not entitled to payment for any of the disputed treatment plans, I can conclude no payments went overdue. The applicant is not entitled to any interest as a result.
CONCLUSION
20Considering the totality of the evidence before me, I find the applicant is not entitled to any of the disputed treatment and assessment plans or interest.
Released: November 20, 2019
___________________________
Brian Norris
Adjudicator
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635