Tribunal File Number: 18-010371/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:
A.B.
Appellant
and
Guarantee Insurance
Respondent
DECISION
PANEL:
Shannon Braun, Adjudicator
Appearances:
For the Appellant:
A.B., Applicant
Carla Barcelo, Counsel
For the Respondent:
Alex Dirlis, Counsel
Heard:
In Writing: May 27, 2019
OVERVIEW
1A.B. (“the applicant”) was injured in an automobile accident (“the accident”) on July 5, 2017 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The Guarantee Company of North America (“the respondent”) initially approved his requests for treatment and, on April 3, 2018, acknowledged that his impairments are not “minor” as defined by the Schedule or subject to limited treatment within the Minor Injury Guideline. However, the respondent denied his claims for certain chiropractic and psychological treatment.
3The applicant appealed those denials to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”). The parties were unable to resolve those disputes and a written hearing was scheduled. Upon reviewing the parties’ submissions, I find the applicant is entitled to the requested treatment.
ISSUES
4The issues in dispute that I must decide are:
i. Is the applicant entitled to the following medical benefits recommended by Mediwise Healthcare Clinic in the following treatment plans (OCF-18s):
a) $3,805.76 for chiropractic treatment submitted October 10, 2017 and denied by the respondent on October 11, 2017;
b) $4,463.96 ($3,192.00 partially approved) for psychological treatment submitted January 15, 2018 and denied by the respondent on April 3, 2018;
c) $3,733.94 for chiropractic treatment submitted April 11, 20182 and denied by the respondent on August 17, 2018?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
5I note that on September 10, 2018 the respondent approved the applicant’s claim for assistive devices which were in dispute, and that in his reply submissions, the applicant withdrew his claim to a plan for $3,355.20 in chiropractic treatment.
RESULT
6I find the applicant has established on a balance of probabilities that the treatment plans in dispute are all reasonable and necessary. The applicant is entitled to the medical benefits claimed as well as interest owing any overdue payments.
ANALYSIS
7In assessing the applicant’s entitlement to the medical benefits sought, several provisions of the Schedule are relevant. Section 14 makes an insurer liable to pay medical and rehabilitation benefits for an insured person who sustains impairment as a result of an accident, while section 15 states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
8The burden rests with the insured person to establish on a balance of probabilities that the benefits sought are reasonable and necessary.
Chiropractic treatment plans
9Following the July 5, 2017 accident, the applicant began to develop left shoulder and left-sided neck pain as well as low back pain. He sought treatment approximately four days after the accident. He regularly attended therapy sessions from July 9, 2017 to May 22, 2018 at Mediwise Healthcare Solutions Inc.
10The applicant argues that the treatment plans at issue are reasonable and necessary. He relies upon evidence of his chiropractors and, in particular, a series of assessments with objective range of motion (ROM) measurements showing he was improving with regular participation in the types of therapies recommended.
11The respondent submits that the treatment plans are not reasonable and necessary, arguing they are passive in nature and contrary to the recommendations of two physiatrists who performed insurer’s examination (IE) assessments (Drs. Mian and Tam), as well as the applicant’s own chronic pain assessor (Dr. Getahun), all of whom suggest that the applicant would benefit from active treatment.
12Dr. Tam, one of the IE physiatrists, recommended referral to a multidisciplinary pain program. He noted that the disputed treatment recommendations include mostly ‘passive’ therapies, including manipulation, soft tissue mobilization and TENS, and opined:
[the applicant] should not engage in continued passive treatment modalities regularly, as these treatments while providing temporary symptom relief, are unlikely to provide lasting benefit at this point in his recovery.
13Dr. Mian, the other IE physiatrist, opined that the applicant would benefit from an “active movement-based rehabilitation program to treat his shoulder impingement.” However, he also noted that the “program could include physical therapy sessions under the guidance of a sports physiotherapist.”
14The applicant’s chronic pain assessor, Dr. Getahun, also recommends enrolment in a multidisciplinary chronic pain program. However, he also recommends:
physiotherapy in a multidisciplinary supervised setting focusing on range of motion and strengthening of the cervical and lumbar spine.
15While Dr. Tam clearly indicates passive treatment is unlikely to provide benefit, I find it significant that both Drs. Mian and Getahun include in their recommendations further physiotherapy/focus on range of motion and strengthening. These recommendations are akin to some of the therapies in the treatment plans at issue and, in my view, this suggests that these assessors believe the applicant would, in all likelihood, continue to benefit from some of the more passive treatments rejected by Dr. Tam.
16There is also no suggestion from the applicant’s treating chiropractors that continued participation in therapy would not yield improvement. In fact, their series of assessments consistently noted overall ‘mild to moderate’ improvements; successive notations of decreasing pain levels; and some slight increases in the applicant’s ROM test values. I have briefly summarized these assessments below:
(i) Initial assessment (July 11, 2017)
(a) Rating of 8/10 for neck, upper/lower back and headache pain;
(b) ROM baseline testing completed
(ii) Reassessment (September 19, 2017)
(a) Decrease in pain ratings to 6/10 for neck and upper/lower back pain, 6-8/10 for headache pain;
(b) very slight improvement in some categories of ROM test values
(iii) Reassessment (October 5, 2017)
(a) No appreciable change in ROM test vales from previous assessment;
(b) decrease from 6/10 to 5/10 relating to neck and upper/lower back pain.
(iv) Reassessment (April 11, 2018)
(a) Increases in almost all ROM test values;
(b) slight decrease in the applicant’s headache pain from 6/10 to 5/10 with other affected areas remaining at 5/10.
17In my view, the above evidence, and in particular this series of assessments, suggests that the applicant was slowly, yet steadily, achieving the stated goals of decreased pain and increased range of motion with the types of therapies recommended in the treatment plans at issue. While I acknowledge that the treating chiropractor’s assessment of October 5, 2017 shows less improvement, especially in ROM testing values, I also note only two weeks had passed since the previous assessment of September 19. In my view, given such a short timeline, appreciable improvements would be unlikely.
18While it is clear the IE assessors recommend participation in active, movement-based therapy, it is also clear that the treatment plans at issue include active components. The October 2018 treatment plan recommends exercises for the respiratory system as well as for the low back and neck, and the April 2018 treatment plan includes exercise for multiple body sites. The treatment plans are, therefore, not strictly passive, as the respondent suggests.
19I am not persuaded by Dr. Tam’s assertion that continued participation in passive therapies will not lead to improvement. This is because the applicant’s treating chiropractors and Drs. Mian and Getahun all recommend some sort of continued involvement in physiotherapy/passive modalities as a component of the applicant’s overall ongoing treatment. In addition, there is objective evidence of improvement in the form of increased ROM, as well as subjective evidence (applicant’s reporting of decreased pain) with participation in such treatments.
20Even though the disputed treatment plans include passive forms of therapy, the applicant has persuaded me that they are reasonable and necessary. He has shown consistent improvement with such therapy and his treating practitioners recommend he continue with same. In addition, I find it significant that two out of three specialist assessors, including one of the IE assessors, include some passive components as part of an overall recommended plan of therapy.
21It is also possible that the potential benefits of the applicant’s ongoing participation in some forms of passive therapy (decreased pain, increased ROM) may help him to consistently participate in the more active components of the treatment plans.
22As a result of all of the foregoing, I am satisfied on a balance of probabilities that the treatment plans are reasonable and necessary.
Psychological treatment plan
23The parties agree that the applicant suffers from psychological diagnoses and symptoms as a result of the July 5, 2017 accident. It is also not disputed that he had pre-existing psychological conditions of attention deficit hyperactive disorder (ADHD) and anxiety.
24Following the accident, the applicant’s psychological assessor, Dr. Cook, diagnosed “moderate depressive episode without somatic symptoms” in addition to residual trauma symptoms. The respondent’s psychological assessor, Dr. Solomon, diagnosed adjustment disorder with features of depression and anxiety superimposed on pre-existent depression and personality features (ADHD, depression and borderline personality disorder).
25While both assessors agreed that psychological treatment was reasonable and necessary, they differed with respect to the length of the required sessions. Dr. Cook recommended sixteen sessions at 1.5 hours each, while Dr. Solomon recommended sixteen one-hour sessions. As such, the treatment plan was only partially approved by the respondent.
26The applicant argues he is entitled to the full amount of the treatment plan because the 1.5 hours as recommended are reasonable and necessary. In support of his position, he relies on the following explanation of the need for longer therapy sessions in Dr. Cook’s psychological assessment of December 7, 2017:
It is important to note that I suggest 1.5 hour sessions because psychotherapy treatments related to traumatic events may utilize imaginal exposure, deep relaxation and/or EMDR techniques. These techniques require the client to recall or be re-exposed to the traumatic memory of the event. As a result, it is imperative for the therapist and the client to have 1.5 hours so that the therapist may be able to facilitate the client’s recall of the trauma memory, explore it, and support the client so that he/he (sic) exits the trauma memory safe and secure psychologically, before leaving the treatment session.
27In contrast, the respondent argues that 1.5 hour sessions are not reasonable and necessary because:
a) the applicant reported to Dr. Solomon that he was “over the driving fear and [he] is doing a driving job now,” so on the basis of the foregoing, the memory of the accident was no longer traumatic and 1.5 hour long sessions were not necessary; and
b) Dr. Cook failed to consider the applicant’s pre-existing psychological symptomatology and how this might affect treatment efficacy, while Dr. Solomon considered that history of ADHD and indicated that his ADHD would preclude his ability to focus during 1.5 hour sessions.
28I note that the psychological assessments of both Dr. Cook and Dr. Solomon indicate the applicant is affected by trauma. Dr. Cook’s assessment notes elevated scores on the Trauma Symptom Inventory (TSI-2-A) in the ‘Anxious Arousal, Anger, Impaired Self-Reference and Tension-Reduction clinical scales’, leading to the conclusion that the applicant:
is likely experiencing significant residual trauma symptoms in particular areas of his life at the present time…is also demonstrating some intrusive thinking and re-experiencing phenomena in the form of flashbacks, nightmares and avoidance behaviours, but these do not appear to be to a level or intensity that would qualify him for a diagnosis of Post-Traumatic Stress Disorder, but these are residual trauma symptoms that are clinically noteworthy regardless.
29Dr. Solomon’s report also notes that the applicant reported nightmares, of being “in a no way out situation” and nightmares unrelated to the accident, which initially worsened thereafter but had since gotten better. She further indicates,
[A]ccording to the PAI [personality assessment inventory] Interpretive Report, his responses indicate that he occasionally experiences, or may experience to a mild degree, maladaptive behaviour patterns aimed at controlling anxiety. [He] has likely experienced a disturbing traumatic event in the past – an event which continues to distress him and produce recurrent episodes of anxiety...(my emphasis)
…regarding his ongoing accident related impairments he described that depression and anxiety are his worst ongoing symptoms. He was able to overcome his driving anxiety but not his generalized anxiety which he experienced prior to the accident and which got aggravated subsequently.
30While I acknowledge the applicant endorsed being able to drive again, it is clear from both reports that he was continuing to suffer from nightmares and other trauma related symptoms. As a result, I do not accept the respondent’s argument that the applicant’s ability to overcome his driving fear suggests that the memory of the accident was no longer traumatic and 1.5 hour long sessions were not necessary.
31The respondent also argued that 1.5 hour sessions were not reasonable and necessary because Dr. Cook failed to consider the applicant’s pre-existing symptomatology and its impact upon the treatment. In support of this argument, the respondent relies upon Dr. Solomon’s March 20, 2019 addendum which states:
[the applicant] suffers from Attention Deficit Disorder (ADHD), which means that he has a short attention span, which would hinder him from remaining focussed for such long sessions. Therefore 1.5 hour long sessions would likely reduce the efficiency of treatment.
32I am not persuaded by Dr. Solomon’s statement that such symptomatology would preclude focus, thereby reducing treatment efficacy. She provides no factual basis to support her assertion (for example, references to her own personal observations of the applicant’s attention span in the course of her own assessment of him, specific references to difficulties focusing for 1.5 hours in the applicant’s medical records, etc.). Moreover, there is no evidence before me to suggest that the applicant’s ADHD would preclude his ability to focus during and/or benefit from the 1.5 hour sessions as recommended by Dr. Cook. As such, I do not accept Dr. Solomon’s statement as a basis for denying the full amount of the recommended treatment plan.
33Instead, I am persuaded by and accept Dr. Cook’s explanation that longer therapy sessions are required in order to safely (my emphasis) support the applicant through the specific types of treatment(s) required to address past traumatic events. I find on a balance of probabilities that Dr. Cook’s recommendation for 16 1.5 hour long sessions is reasonable and necessary and accordingly, the applicant is entitled to full funding in respect of the psychological treatment plan claimed.
CONCLUSION
34I find the applicant has discharged his onus to establish on a balance of probabilities that the disputed treatment plans are reasonable and necessary.
35In closing, I note the applicant raised concerns with respect to the respondent’s alleged non-compliance with section 38(8) of the Schedule. As I have already found that he is entitled to the disputed benefits, it is unnecessary to conduct a fulsome analysis in this regard.
36However, for the sake of completeness, I will briefly address this issue. The denial letters indicate that the respondent required “a second medical opinion from the appropriate specialists to assist in determining whether the proposed goods and services would be considered medically necessary for the treatment and rehabilitation of [your] accident related injuries”. The applicant argues that the respondent does not provide medical reasons, as required by section 38(8), as it does not include any references to his medical condition, nor does it identify specific details/information in respect of his condition which the respondent requires. It is submitted that the failure to include proper medical reasons entitles the applicant to the treatment plans claimed under section 38(11).
37In this instance, I agree that the denial is vague and does not provide medical reasons and is therefore not in compliance with section 38(8). While it is indicated that a second medical opinion is required to assess the reasonableness and necessity of the treatment, no further detail is provided as to the particular reason(s) why such an opinion is required. There is no reference to the applicant’s medical condition and/or any specific information the respondent may be lacking which precludes the ability to properly assess the treatment plans in dispute.
38The intention of the Schedule is to protect the consumer. As such, where insurer fails to give a notice in accordance with section 38(8), section 38(11) is triggered, obligating the insurer to pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period 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).
ORDER
39The applicant is entitled to the two chiropractic treatment plans claimed as well as the full amount of the psychological treatment plan claimed along with any interest owing in accordance with section 51 of the Schedule.
Released: October 9, 2019
_____________________________
Shannon Braun
Adjudicator
Footnotes
- O. Reg. 34/10.
- The March 27, 2019 Conference Order states the plan was submitted August 18, 2018. The evidence establishes that the actual date as April 11, 2018.