K.H. v. Gore Mutual Insurance Company, 2019 CanLII 119730

Citation: K.H. vs Gore Mutual Insurance Company, 2019 ONLAT 18-009689/AABS

Tribunal File Number: 18-009689/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:

K.H.

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Gordon W. Harris, Counsel

For the Respondent: Arthur R. Camporese, Counsel

HEARD: In Writing on June 10, 2019

OVERVIEW

1The applicant was injured in an automobile accident on October 10, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (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:

1. Is the applicant entitled to medical benefits in the amount of $1,886.02 for physiotherapy, massage therapy, and swim passes recommended by Prestige Total Rehab of Cambridge in a treatment plan dated May 30, 2018?

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

3. Is the applicant entitled to an award pursuant to section 10 of regulation 664?

RESULT

3The applicant is entitled to the treatment plan dated May 30, 2018, in the amount of $1,886.02.

4Interest is payable.

5The applicant is not entitled to an award.

BACKGROUND

6The applicant was the front seat passenger of a vehicle which was struck on the driver’s side by another vehicle. The applicant was transported from the scene of the accident to the hospital, assessed, and diagnosed with soft tissue injuries. The applicant was released from the hospital a few hours later with no treatment or care recommendations.

7The applicant initiated a claim for accident benefits and was treated in accordance with the Minor Injury Guideline (the “MIG”). The applicant completed treatment under the MIG and was removed from the MIG and approved for further treatment. The respondent funded the additional treatment until it found further treatments and assessments were not reasonable and necessary according to the opinion of Dr. J. Heitzner, physiatrist, in an insurer’s examination report dated March 9, 2018 (“the Heitzner report”). The applicant disputes this finding and claims entitlement to the goods and services in the treatment plan which is the subject of this hearing.

8The applicant’s arguments can be summarized into two points: first, the disputed treatment plan is reasonable and necessary to address the applicant’s complex condition which included pre-existing injuries from a previous accident and second, the respondent relied on an opinion in a section 44 assessment which, according to the applicant, ought to have been excluded from the report.

THE DISPUTED TREATMENT PLAN

9The disputed treatment plan proposes 12 one-hour physiotherapy sessions, 4 one-hour massage therapy sessions, and 20 swim passes to address back, shoulder and neck strain/sprain type injuries as well as symptoms of cognitive and emotional difficulties, and headaches. It notes the applicant has a history of depression and social anxiety. The treatment plan aims to reduce pain, increase strength and range of motion as well as return the applicant to activities of daily living.

10I find the applicant is entitled to the disputed treatment plan because it is reasonable and necessary to address the applicant’s ongoing pain and functional limitations.

11The applicant was diagnosed with chronic pain syndrome by Dr. K. S. Billing, anesthesiologist, and has ongoing neck, back, and bilateral shoulder pain which is managed through nerve block injections and the modalities proposed in the treatment plan. Dr. Billing’s clinical notes and records (“CNRs”) document the injections administered and the multi-day relief they provide. The CNRs from Prestige Total Rehab, notably in the spring and early summer of 2018, document the applicant’s ongoing pain complaints and notes she receives a positive response to treatment.

12Physiotherapy and massage therapy are recommended to also improve the applicant’s psychological health. This is noted in a psychological assessment report dated June 5, 2017 by Dr. K. del Rosario, psychologist, who strongly recommended ongoing physical treatment such as physiotherapy, acupuncture, and massage therapy.

13The applicant reports a benefit from pool therapy. The report by T. Davies, occupational therapist, dated January 23, 2017, notes this and suggests it should be a long-term goal of the applicant’s accident-related occupational therapy treatment.

14The insurer’s examination report by Dr. J. Heitzner, physiatrist, dated March 9, 2018 is less persuasive than the information in the CNRs as noted above. In the report, Dr. Heitzner noted the applicant’s pre-existing disposition to headaches, back and shoulder pain and acknowledged these injuries were exacerbated as a result of the accident. Dr. Heitzner also agreed a similar treatment plan dated November 7, 2017 was reasonable and necessary as a result of the injuries from this accident and the aggravation of the underlying degenerative disc disease. However, at the conclusion of the report, Dr. Heitzner opines the applicant will not require any further facility-based treatment following the completion of the November 2017 plan.

15I find Dr. Heitzner’s prognosis is uncompelling. The prognosis is provided in advance of the applicant engaging in the treatment and without knowing how the applicant will respond to the treatment. In addition, Dr. Heitzner’s prognosis does not address the applicant’s pain and whether the disputed treatment plan reduces the applicant’s pain.

AWARD

16The applicant’s submissions on the disputed treatment plan focus largely on the respondent’s conduct surrounding the scheduling and use of Dr. Heitzner’s IE report. While I have found the treatment plan is reasonable and necessary, I find the respondent’s conduct does not entitle the applicant to an award for the following reasons.

17Pursuant to section 10 of Regulation 664, an award may be payable in the event the respondent has unreasonably withheld payment of a benefit. The applicant submits the respondent acted unreasonably. She submits the respondent failed to redact Dr. Heitzner’s prognosis from the IE report because questions on prognosis was an issue which the parties agreed to omit from the IE requisition prior to scheduling the assessment.

18Although the parties negotiated to omit any question of prognosis from the IE, I see no obligation, legislative or otherwise, for the respondent to redact or revise the Heitzner report to omit the unsolicited prognosis opinion. This is because the parties negotiated an agreement with respect to the input for the assessment but did not make an agreement with respect to the output from the assessment. In addition, redacting or requesting a revision of an IE report, as suggested by the applicant, may itself be viewed as misconduct on behalf of the respondent.

19I find the applicant’s concerns over the prognosis opinion in the Heitzner report is best addressed when analyzing and weighing the evidence. The schedule does not prevent IE assessors from prognosticating. In the event where prognostication occurs, the opinion provided should be weighed and considered amongst the balance of the medical evidence and opinions.

CONCLUSION

20The applicant is entitled to the treatment plan dated May 30, 2018, in the amount of $1,886.02, plus interest pursuant to section 51.

21The applicant is not entitled to an award.

Released: December 9, 2019

___________________________

Brian Norris

Adjudicator