M.C.S. v. Scottish & York, 2019 CanLII 119768

Citation: M.C.S. vs. Scottish & York, 2019 ONLAT 18-002894/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:

M.C.S.

Applicant

And

Scottish & York

Respondent

DECISION

ADJUDICATOR:

Tavlin Kaur

Appearances:

For the Applicant:

Kevin So, Counsel

For the Respondent:

Kathleen Mertes, Counsel

Heard IN WRITING:

April 1, 2019

OVERVIEW

1The applicant was involved in an accident on September 30, 2015. The applicant was the front seat passenger in the vehicle that side-swiped a vehicle in the next lane. The applicant was 57 years old at the time of the accident.

2Following the accident, the applicant sought benefits from the respondent under the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the ‘Schedule’).

3A dispute arose with respect to medical benefits and costs of examination. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the ‘Tribunal’) to resolve this dispute.

ISSUES IN DISPUTE

4The disputed issues in this hearing are as follows:

i. Is the applicant entitled to $3,341.87 for psychological treatment, recommended by York Psychological Services in a treatment plan (OCF-18) submitted on April 26, 2016, denied by the respondent on April 26, 2016?

ii. Is the applicant entitled to $3,940.31 for psychological treatment, recommended by York Psychological Services in an OCF-18 submitted on October 4, 2016, denied by the respondent on October 6, 2016?

iii. Is the applicant entitled to $1,620.91 for physiotherapy treatment, recommended by Trillium Rehabilitation Centre in an OCF-18 submitted on March 13, 2016, denied by the respondent on March 14, 2016?

iv. Is the applicant entitled to $1,590.91 for physiotherapy treatment, recommended by Trillium Rehabilitation Centre in an OCF-18 submitted on July 11, 2016, denied by the respondent on July 12, 2016?

v. Is the applicant entitled to $2,222.15 for physiotherapy treatment, recommended by Trillium Rehabilitation Centre in an OCF-18 submitted on October 5, 2016, denied by the respondent on October 6, 2016?

vi. Is the applicant entitled to $2,334.96 for physiotherapy treatment, recommended by Trillium Rehabilitation Centre in an OCF-18 submitted on July 24, 2017, denied by the respondent on July 25, 2017?

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

RESULT

5The applicant is not entitled to all of the claimed psychological and physiotherapy treatment plans in dispute.

ANALYSIS

Psychological Treatment: Issues i and ii:

6The onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary: s. 15 of the Schedule. The applicant argues that she has been suffering from a severe psychological impairment since the motor vehicle accident. The respondent argues that the applicant is not entitled to the treatment plans in dispute because the treatment plans are not reasonable and necessary. I find that the applicant has not met the onus on her to prove her entitlement to the disputed medical benefits for the following reasons.

7Dr. Solomon, who is the applicant’s family physician, completed a disability certificate (OCF-3) on November 25, 2015. In section 7 of the OCF-3, Dr. Solomon states that there will be a “consultation to [sic] trauma specialist.” The applicant met with Mr. Arshad Mahmood and Dr. Tony Toneatto on March 9, 2016. Mr. Mahmood is a Registered Psychotherapist, while Dr. Toneatto is a Psychologist.

8They opined that, as a result of the accident, the applicant’s psychological status was significantly impacted and had deteriorated. They stated that her prognosis was not good, and that psychotherapy was both reasonable and necessary. They felt that evidence-based techniques could help her psychological recovery and help her cope better with her pain.

9On April 24, 2016, Mr. Mahmood and Dr. Toneatto filled out the first treatment plan in dispute. The goals that they identified were to reduce depression and anxiety, ruminating and worried thoughts, sleep and cognitive difficulties, as well as to increase coping skills to address recent lifestyle changes, pain management, systematic desensitization and build social support. The applicant commenced treatment.

10On July 28, 2016, Mr. Mahmood and Dr. Toneatto reassessed the applicant and filled out the second treatment plan. They found that, although her sleep and irritability improved, she had achieved minimal psychological progress, specifically, within the areas of her depressive and anxiety symptoms. Furthermore, her pain levels had not dissipated. They recommended that the applicant attend an additional 12 psychotherapy sessions.

Issues with the section 25 assessments

11The respondent submitted that the assessments completed by Dr. Toneatto and Mr. Mahmood are deeply flawed and should not be considered as credible evidence that the applicant sustained accident-related psychological impairments. In particular, the respondent takes issue with the fact that the assessments were completed without the assistance of a Tamil interpreter.

12In response to that allegation, the applicant’s counsel states as follows:

It is the Applicant’s position that [her] husband, someone who she trusts and is honest with, is better suited to interpret for her than an unfamiliar Tamil interpreter. In Dr. Wiesenthal’s report dated March 3, 2016, on page 5, she indicates that [the applicant] has features of tardive dyskinesia. This condition is known to be associated with substantial impairment in speech. [The applicant’s] husband would be one who is most familiar with her speech patterns and his interpretation of [her] answers and speech would be most reliable. Indeed, with an [sic] Tamil interpreter, Ms. Wiesenthal still noted her vague and contradictory answers.

13Based on my review of the evidence submitted by both parties, I am not persuaded by the applicant’s position given the reasons below.

Tardive Dyskinesia

14Firstly, the applicant has not provided any evidence that establishes that she suffers from Tardive Dyskinesia as she alleges in her reply. The applicant merely relies on comments in Dr. Wiesenthal’s March 3, 2016 IE report to this effect, but Dr. Wiesenthal has not formally diagnosed the applicant with Tardive Dyskinesia.

15Her report simply states that “it appears that she had features of tardive dyskinesia.” Dr. Wiesenthal’s second report on November 24, 2016 states that “she was moving her lips periodically, and again, I wonder if she is displaying symptoms of tardive dyskinesia.” These are merely observations that the assessor has made, but not an official diagnosis.

16The applicant has also failed to provide evidence from any other medical practitioners that even mentions this condition, or that the applicant suffers from it. Equally important, there is no mention of how this condition affects her speech. The lack of evidence makes it difficult for me to accept that the applicant suffers from this condition. This strengthens the respondent’s criticisms regarding the reports that the applicant is relying on.

Lack of evidence that the husband acted as an interpreter

17Secondly, I am not convinced that the applicant’s husband interpreted for her at all of the assessments and counselling sessions with Dr. Toneatto and Mr. Mahmood, as her counsel submits. There is no evidence of this. Aside from counsel’s reply submissions, the thrust of the applicant’s evidence is the reliance on Mr. Mahmood’s note from June 16, 2016 that states “accompanied by husband.”

18I am not persuaded by this note because it does not specifically state that the husband acted as an interpreter – rather, it just states that he was present. Moreover, the note only relates to that visit. There are no similar notations in the clinical notes and records of Mr. Mahmood for other visits that even mention the husband’s presence let alone that he acted an interpreter. If the husband did act as an interpreter, I would expect this important fact to be documented each time. The fact that it was not leads me to believe that the husband was not present at these sessions or, at the very least, did not interpret for her.

Discrepancies between reports

19Thirdly, despite the fact that it appears that the applicant’s assessment reports did not make use of a Tamil interpreter as mentioned above, it is clear that there is a documented language barrier. The applicant’s first language is Tamil and it has been noted in various documents that she requires an interpreter when communicating in English.

20For example, the emergency department report dated September 30, 2015 notes that there is a language barrier. The applicant’s application to the Tribunal also notes that she required a Tamil interpreter for the case conference. Indeed, while I don’t rely on counsel’s representation that the husband served as her interpreter during the sessions and assessment, the thrust of the submission is an admission that the applicant requires Tamil interpretation on top of other possible speech issues.

21Dr. Wiesenthal, the IE assessor, also noted that the applicant had difficulties communicating even with the aid of a Tamil interpreter. Her March 3, 2016 report states the following:

A Tamil-speaking interpreter was present for the duration of the assessment. The claimant was encouraged to use translation. When she attempted to speak English, it was difficult to understand what she meant. The claimant was somewhat vague at times. I do not believe that it was in an effort to evade, but there may have been some difficulties with language, despite the interpreter present.

22Dr. Toneatto and Mr. Mahmood’s March 9th, 2016 report states that the applicant’s first language is Tamil. However, the report does not mention that a Tamil interpreter was present. Nor does it mention that the applicant’s husband acted as an interpreter.

23In this report, Mr. Mahmood and Dr. Toneatto note that the applicant presented a clear account of the accident and her symptoms. They state that “she was able to describe both form and content of her symptoms. [The applicant] was well-oriented to person, place and time. Her speech rate and rhythm were normal.”

24Based on this report, it appears that the assessors communicated directly with the applicant without the assistance of a third party. It appears that the applicant was able to communicate with the assessors without any issues.

25I find the fact that her own assessor’s report seems to find no communication issue whatsoever is inconsistent with all of the other evidence that I have before me – evidence which comes from a variety of sources – regarding the applicant’s difficulties communicating without an interpreter.

26I find this inconsistency weakens the evidence that the applicant is relying on. As the applicant had a documented language barrier, it is questionable how she was able to communicate with Dr. Toneatto and Mr. Mahmood without the assistance of a Tamil interpreter or her husband. How did they arrive at the conclusions they did? I note that the records of the respective regulatory bodies show that both Dr. Toneatto and Mr. Mahmood do not speak Tamil.

27In conclusion, the applicant has only provided me with a brief clinical note that states that her husband was present at one visit, but not any persuasive evidence that supports her position. I also cannot rely on a factual statement of counsel made in submissions on a central disputed point. As such, without evidence to support counsel’s statement, I am not satisfied with counsel’s explanation. For the reasons above, I am assigning less weight to Dr. Toneatto and Mr. Mahmood’s reports. I am giving more weight to Dr. Wiesenthal’s report because there was a Tamil interpreter present during the assessments. I find that her report is more reliable because there was a qualified interpreter who helped the applicant to communicate with Dr. Wiesenthal during the assessments.

28As such, I find that the treatment plans are not reasonable and necessary.

Physiotherapy Treatment: Issues iii, iv, v and vi

29The applicant argues that the physiotherapy treatment that she received provided her with relief and helped to restore function. As such, it is reasonable and necessary.

30The respondent relies on s. 44 assessments completed by Dr. Abuzgaya that found that there was no objective evidence of any residual musculoskeletal impairment attributable to injuries sustained in the subject accident and that further physical therapy treatment is not reasonable and necessary.

31I find that the applicant has not met the onus on her to prove her entitlement to the disputed medical benefits for the following reasons.

Lack of visits to the family doctor

32Based on the decoded OHIP summary and the clinical notes and records of Dr. Solomon, the applicant met with her family physician on a few occasions after the accident. Many of these visits were not in relation to the MVA. If the applicant was continuing to experience pain as it has been alleged, I would expect that she would have visited Dr. Solomon on a more constant basis.

33In the reply submissions, the applicant’s counsel argues that “the lack of complaints to Dr. Solomon may be attributed to [the applicant’s] improving condition as a result of the treatment received from the incurred treatment plans, which reinforces the reasonableness and necessity of the disputed plans.” I am not persuaded by this explanation as counsel is merely speculating.

Lack of referrals made to specialists

34The applicant has not been referred to see specialists for her pain-related conditions. In part 7 of the disability certificates dated October 2, 2015, November 25, 2015 and May 11, 2016, Dr. Bassit and Dr. Solomon both checked off the box that pertains to further examinations, investigations and consultations. In the disability certificate dated October 2, 2015, Dr. Bassit recommends an in-home assessment and notes that “an ortho/neuro referral via patient’s gp” would be made if “severity of symptoms deem necessary.”

35In the disability certificate dated November 25, 2015, Dr. Solomon notes that there would be a consultation to a physiatrist. In the disability certificate dated May 11, 2016, Dr. Solomon notes “if no change, further investigation and consultation.”

36Based on my review of the evidence, it appears that the applicant was not referred to see any specialists for her pain-related complaints. If the applicant’s pain related conditions were as serious as it has been alleged, then I would expect she would be referred to a specialist for further investigation and treatment. The fact that this did not happen leads me to believe that her pain-related complaints are not as serious as she purports them to be.

In-home assessment v. orthopedic assessment

37The applicant relies on an In-Home Assessment dated March 19, 2016 conducted by Susheel Mohan Pawtey, who is an occupational therapist. Mr. Pawtey made multiple findings. For example, he found that the applicant had a reduced AROM at her shoulders, elbows, wrists, hips, knees, ankles and cervical and lumbar spine. He also found that the applicant has pain in her shoulders, elbows, wrists, hips, knees, ankles, neck and lower back.

38The respondent relies on Dr. Fathi Abuzgaya’s reports dated February 29, 2016, March 3, 2016 and December 9, 2016. Dr. Abuzgaya is an orthopaedic surgeon. Dr. Abuzgaya found that the applicant’s accident-related diagnosis is consistent with cervical sprain, soft tissue injury to the left shoulder, lumbosacral sprain and soft tissue injury to the left knee. The applicant had functional range of motion of her cervical spine, left shoulder, lumbosacral spine and knees. He states that “overall, there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the subject accident.”

39I prefer the report of Dr. Abuzgaya’s report over Mr. Pawtey’s report as Dr. Abuzgaya is a medical doctor and had a Tamil Interpreter present for the assessment. I find that Dr. Abuzgaya is more qualified to diagnose the applicant, which is beyond the scope of an occupational therapist.

40Moreover, the applicant’s husband acted as an interpreter during the in-home assessment and Mr. Pawtey based his findings on the information that was conveyed to him through her husband. For the purpose of an assessment, it would have been prudent to have an independent interpreter instead of a party that may have a vested interest in the matter. For these reasons, I am assigning more weight to Dr. Abuzgaya’s report.

Clinical notes and records from Trillium Rehab Centre

41The applicant is also relying on clinical notes and records from Trillium Rehab Centre in support of her claim for physiotherapy benefits. I am assigning less weight to these records for the following reasons.

42Based on my review of the evidence, there are various notations that state that the applicant “feels better after session”. As I have noted earlier on in this decision, there is a documented language barrier. The clinical notes and records do not note that there was an interpreter present. Given the applicant’s difficulties in communicating without an interpreter, it is questionable as to how the treating practitioners were able to communicate with the applicant. As such, I am assigning less weight to these records.

Length of passive treatment

43The applicant attended Trillium Rehab Centre for a lengthy period of time. It is alleged that the applicant commenced physiotherapy shortly after the accident. I note that there is nothing in the records from Trillium Rehab Centre from 2015. However, the records from 2016 to 2018 were submitted into evidence. If I were to accept that she commenced treatment in 2015 and it ended in 2018, that is almost close to three years of physiotherapy treatment. This is a very long time for passive treatment. There is no medical evidence that supports or justifies the need for such extensive passive treatment. The applicant has not submitted any evidence of re-injury, any other condition that has impacted her recovery and/or whether this is more than a sprain. As such, I am not persuaded that these treatments were reasonable and necessary.

44Therefore, based on my reasons above, I find that the applicant is not entitled to the treatment plans for physiotherapy.

INTEREST

45Having determined no benefits are payable, I do not need to consider if interest is payable.

ORDER

46For the reasons provided above, I order that the application be dismissed.