M.L. v. Allstate Insurance Company of Canada, 2019 CanLII 130362

Citation: M.L. vs. Allstate Insurance Company of Canada, 2019 ONLAT 18-007257/AABS

Tribunal File Number: 18-007257/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.L.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Victoria Gorbenko

For the Respondent: Andrew E. Franklin

Written Hearing: June 10, 2019

OVERVIEW

1M.L. was injured in an accident on September 12, 2016 and sought medical benefits and an income replacement benefit (“IRB”) from the respondent, Allstate. M.L. was paid an IRB until June 2017 but, after conducting Insurer’s Examinations, Allstate terminated the IRB on the basis that M.L. no longer suffered a substantial inability to complete his pre-accident job tasks. Allstate also denied several treatment plans submitted by M.L. on the basis that they were not reasonable and necessary. M.L. disagreed and applied to the Tribunal for the IRB’s reinstatement and approval of the treatment plans.

ISSUES TO BE DECIDED

2The following issues are in dispute, as per the Case Conference Order dated March 4, 2019:

i. Is the applicant entitled to an income replacement benefit in the amount of $353.50 weekly from June 2, 2017 to January 2, 2018, less any amounts paid?

ii. Is the applicant entitled to a medical benefit in the amount of $2,122.40 for chiropractic services recommended by Life Point Medical Inc. in an OCF-18 submitted on February 2, 2017 and denied on February 27, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $3,817.63 for psychological services recommended by Life Point Medical Inc. in an OCF-18 submitted on March 16, 2017 and denied on March 29, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $1,892.24 for chiropractic services recommended by Life Point Medical Inc. in an OCF-18 submitted on March 22, 2017 and denied on March 29, 2017?

v. Is the applicant entitled to a medical benefit in the amount of $1,558.41 for chiropractic services recommended by Life Point Medical Inc. in an OCF-18 submitted on June 15, 2017 and denied on June 30, 2017?

vi. Is the applicant entitled to the cost of an occupational therapy assessment in the amount of $1,746.27 Life Point Medical Inc. in an OCF-18 submitted on May 15, 2017 and denied on May 31, 2017?

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

RESULT

3M.L. is not entitled to an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his pre-accident employment for the period in dispute.

4M.L. is entitled to payment in the amount of $2,122.40 for chiropractic services incurred as they are reasonable and necessary. Interest is payable on this overdue amount, pursuant to s. 51.

5M.L. is not entitled to payment for any of the remaining treatment and assessment plans as they are not reasonable and necessary.

ANALYSIS

Is M.L. entitled to the income replacement benefit?

6I find that M.L. is not entitled to an IRB for the period in dispute, as he has not met his burden to prove that he suffered from a substantial inability to perform the essential tasks of his employment during the period in dispute.

7Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. This inquiry is divided into two steps: 1) what are the essential tasks of the insured’s pre-accident employment; and, 2) is the insured substantially unable, as a result of the accident, to perform those tasks? The onus to prove entitlement rests with M.L.

8At the time of the accident, M.L. was employed as a driver for a medical clinic. His responsibilities were to pick up and drop off patients for appointments, sometimes assisting elderly patients into and out of the vehicle. A typical work day lasted between eight and 10 hours, with the majority of it driving for 50 kilometres at a time per trip. M.L. argues that as a result of his impairments—chiefly his headaches, neck, back, side, knee and shoulder pain—he could not complete the essential tasks of his employment and could not return to work until December 2017. He relies on two OCF-3s dated September 23, 2016 and March 31, 2017, respectively, as well as various clinical notes and records, to prove that he meets the IRB test under s. 5.

9In response, Allstate argues that, although it paid an IRB to M.L. up to June 1, 2017, he has not provided any convincing medical evidence to prove that he suffered a substantial inability to complete his employment tasks during the period in dispute. It argues that M.L. has not met his burden of proof because there are no contemporaneous reports or work stoppage advice from medical practitioners, the OCF-3s and OCF-18s pre-date the period in dispute, and none of the reports even address the IRB test. Further, Allstate argues that its reports should be preferred and that M.L. returned to work well before December 2017.

10I agree with Allstate. The onus to prove entitlement to an IRB rests with M.L. and I find, on the evidence, that he has not met his burden to prove that he suffered a substantial inability to perform his pre-accident job tasks as a result of the accident for the period in dispute, being June 2, 2017 to January 2, 2018. The parties agree that M.L. was entitled to an IRB for the period from the accident up to June 1, 2017, as Allstate paid the benefit. However, following a series of IEs, Allstate terminated the IRB on the belief that there was no medical indication that M.L. could not substantially perform his pre-accident employment activities.

11M.L.’s submissions and evidence to address this disputed period are, frankly, scarce. There is limited analysis on M.L.’s capabilities during this specific period, which, based on the notes, seemed to be plagued by abdominal pain, cardiovascular issues, obesity, diabetes and a gallbladder issue that required surgery. While it is evident on these notes that M.L. was in considerable pain, I find the connection to the accident to be tenuous and unexplained. Indeed, on review of the clinical notes for this period, the four visits to his family physician between June and September 2017 all deal with impairments that cannot reasonably be attributed to the accident. In a similar vein, I was not directed to an instance where M.L.’s family doctor addresses his employment, the IRB test or recommended that he not work or work in a limited capacity during this period.

12The OCF-3 on which M.L. relies is dated March 31, 2017 and, while it does indicate that M.L.’s impairments may last beyond 12 weeks due to “the chronicity of his injuries,” there is no analysis on the IRB test other than a line in part six that states M.L. is “too symptomatic to return to work.” While I accept that M.L. was unable to complete his work tasks for several months post-accident, I also find that the Tribunal was not really provided with evidence to meet the test required for IRB for the period in dispute following this period of substantial inability for which Allstate issued payment. As it is M.L.’s burden to prove, the lack of evidence for this period is problematic.

13I agree with Allstate that none of the practitioners who diagnosed M.L. provided evidence regarding the IRB test and M.L. did not produce documentation addressing the essential tasks (other than sitting) of his employment or how his impairments render him substantially unable to complete those tasks for the period in dispute, specifically. On the contrary, Allstate points to the opinions of its IE assessors, Dr. Cayen, orthopedic surgeon, and Dr. Nikkhou, psychologist, who both determined that M.L. does not meet the substantial inability test. While M.L. takes issue with some of the findings in these reports and directs the Tribunal to the older, November 2016 report of Dr. Gabidulina, psychologist, I find it difficult to overlook the IE assessors’ findings when they have actually commented directly on the IRB test.

14In submissions, the parties focused on the IE - Workwell Functional Capacity Report of Robert Bullard, kinesiologist, who determined that M.L. did not suffer a substantial inability to perform his pre-accident employment tasks. The report likened M.L.’s pre-accident employment to the Taxi/Limousine driver category for comparison purposes. M.L. argues that the report is favourable to him, as it indicated that he is only able to sit for 34-66% of the work day, has ¼ to ¾ range of motion in his neck and driving limitations of “80 minutes continuously and 128 minutes cumulatively.” Allstate argues the opposite, that the report states that M.L. demonstrated abilities that would enable him to engage in constant sitting for 34% to 66% of the day (or between eight and 15 hours a day) in keeping with his pre-accident job demands.

15On review of the report, I note the 34-66% column is actually titled “Slight/No Limitation”, which I take to mean that between 1/3 and 2/3 of the time, Mr. Bullard believed that M.L. had no limitations or only slight limitations in completing his pre-accident employment task of sitting. In any event, I agree with M.L. that the accompanying comment on sitting limitations being “80 minutes continuously and 128 minutes cumulatively” is confusing and, without context, seems to contradict the rest of the report. Still, on the bulk of the report, I do find that Mr. Bullard determined that M.L. did not have substantial inability to perform his pre-accident tasks. In the absence of a competing opinion, I follow the expert’s lead.

16Finally, Allstate argues that it can be inferred that M.L. returned to work as an [delivery] driver well before December 2017 based on his comments to assessors and his failure to provide certain financial documents. While I am alive to this submission, I make no specific findings or inferences on M.L.’s actual return to work because I find the evidence to be insufficient. Rather, my focus was on the specific period in dispute and whether M.L. met his burden to prove that he met the IRB test. For the reasons above, I find that M.L. has not demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment during the period in dispute. Accordingly, I find he is not entitled to the IRB for this period.

Are the rehabilitation benefits reasonable and necessary?

17Section 14 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. M.L. bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. I find on the evidence that M.L. is entitled to one of the chiropractic treatment plans as it is reasonable and necessary. I find he is not entitled to the remaining chiropractic treatment plans, the psychological treatment or the occupational therapy treatment plan as they are not reasonable and necessary.

$2,122.40 for chiropractic services

18I find M.L. is entitled to the medical benefit in the amount of $2,122.40 for chiropractic services recommended by Life Point Medical as it was reasonable and necessary. This treatment plan was the first in a series of chiropractic plans denied by Allstate. M.L. argues that he is entitled to this plan because he never received a valid denial and incurred the treatment, and that it was reasonable and necessary to treat his pain and range of motion issues. In response, Allstate contends that it relied on M.L.’s excuse for non-attendance at the IE for this plan due to his hernia and cancelled the assessment accordingly. Further, it argues that it made a valid s. 33 request for a medical note to excuse M.L. from the IE due to the hernia and that M.L. never provided the note.

19I find Allstate’s argument that it is not reasonable that M.L. seeks payment for incurred chiropractic treatment in circumstances where he told Allstate that he was “in too much pain and [was] not fit for any examination” to be somewhat persuasive. On the correspondence before the Tribunal, it does appear that M.L. declined to participate in an IE for IRB and the OCF-18 due to his hernia and did not comply with Allstate’s s. 33 request, but allegedly had the capacity to participate in chiropractic therapy during this same period. While M.L. may have attended and incurred the treatment, I agree that Allstate did not have a fair opportunity to assess the plan following its denial. It is my understanding that M.L. never provided the s. 33 doctor’s note—although the reports of abdominal pain are present—but did eventually attend the IE with Dr. Cayen two months later, which formed the basis for later denials.

20However, I find on the evidence that a round of chiropractic treatment in February 2017 to address M.L.’s ongoing pain, range of motion issues and function was reasonable and necessary. As M.L. argues, the additional comments in the plan and the treatment goals are rather humble and proportional to the impairments M.L. reported during this period and in the months prior. It is well-settled that relief from pain is a legitimate goal for treatment and the notes indicate that, at minimum, the treatment plan was addressing M.L.’s pain. Further, I note the IE he was unable to attend was for both an IRB assessment and for the OCF-18 in dispute. As an IRB IE is more demanding and would likely result in M.L. having to expend greater effort, I find it reasonable that a hernia would prevent him from a fair IE assessment, but that he may very well have been able to continue passive chiropractic treatment at the same time.

21While it is regrettable that M.L. could not attend the IE immediately and did not provide the doctor’s note, I find that it did not prevent Allstate from conducting the IE at a later date and maintaining its denial. In any event, I find M.L.’s excuse to be reasonable and supported by the evidence because the doctors note for his hernia would not have been reasonably required to assess his entitlement to a benefit—which is the requirement under s. 33—but rather as proof that he was unable to attend the IE due to the hernia. Therefore, he is entitled to payment for this treatment plan as it is reasonable and necessary and incurred.

$1,892.24 for chiropractic services

$1,558.41 for chiropractic services

22In contrast, I find M.L. is not entitled to either of the remaining treatment plans for chiropractic services, as they are not reasonable and necessary. M.L. argues that they are based on his pain and that he incurred the costs. In response, Allstate offers a number of arguments: that M.L. has not led any evidence to indicate that the ongoing chiropractic treatment was effective and only relies on the OCF-18s which include range of motion data. Further, Allstate argues that Drs. Pham and Yu have not prepared any reports commenting on the treatment effectiveness and the significance (if any) of the range of motion data, that the re-examination reports included with the OCF-18s contain similar commentary on the orthopedic test results and there is also no change in M.L.’s prognosis which is described as “mildly poor”. Allstate relies on Dr. Cayen’s opinion that M.L. reached maximum medical recovery and that the proposed treatments were not reasonable or necessary.

23I agree with Allstate. While I find that a round of chiropractic treatment may have proven beneficial to M.L. six months following the accident, I find the treatment plans described above to be largely duplications with no analysis on how effective the treatment M.L. was receiving was, an objective determination on whether it was even beneficial to his specific impairments or if his prognosis was changing positively. On review of Dr. Cayen’s report, I agree that it is likely M.L. reached maximal medical benefit from this type of treatment and that the modalities used in these treatment plans was no longer effective for his recovery. Accordingly, I find M.L. is not entitled to payment for either treatment plan.

$3,817.63 for psychological services

24M.L. argues that the psychological services are reasonable and necessary because his treating psychologist, Dr. Gabidulina, and Allstate’s IE assessor, Dr. Nikkou, both provided psychological diagnoses as a result of the accident and, since he has incurred the treatment, it should be payable. In response, Allstate argues that accident-related psychological conditions are not reflected in Dr. Slavina’s clinical notes and that, other than some references to stress after the accident, the notes do not reference any ongoing psychological complaints or diagnoses. Further, it argues M.L. denied having depression at the appointment dated May 18, 2017, that there is no evidence that Dr. Slavina prescribed psychological therapy following the accident and that its IE assessor, Dr. Nikkou, concluded that the proposed treatment was “a replication of the previous low responsive procedure” which was not reasonable or necessary.

25I agree with Allstate and prefer the report of Dr. Nikkou, which I find is proportional to the reporting in the file. The initial psychological screening and treatment came on the recommendation of the clinic, not from M.L.’s treating physician. The initial screening diagnosed M.L. with driving phobias, depressive episodes and sleep-related issues. After 16 sessions, the OCF-18 notes M.L. slightly improved his depressive symptoms and emotional balance. His alleged driving phobias remained unchanged after five months of treatment. There are no other psychological complaints or diagnoses during this period or after and M.L. later denied feeling depressed and is able to drive. Further, it appears that his sleep-related issues were not psychological but a result of severe sleep apnea, for which he is now receiving treatment.

26Accordingly, I find M.L. is not entitled to payment for the treatment plan as it is not reasonable and necessary.

$1,746.27 for an occupational therapy assessment (cognitive skills training)

27I find M.L. is not entitled to payment for the occupational therapy assessment, which is actually cognitive skills training, as it is not reasonable and necessary.

28M.L. argues that this treatment plan is reasonable and necessary because his psychologist, occupational therapist and Allstate’s IE assessor all found indication of cognitive difficulties and it was reasonable to incur an assessment to investigate same. In response, Allstate contends that M.L.’s evidence regarding alleged cognitive difficulties is largely based on his self-reported limitations to Dr. Gabidulina, that the tests administered by Dr. Gabidulina do not address cognitive functioning such as memory or concentration, that M.L.’s self-reported issues are not corroborated by Dr. Slavina’s post-accident clinical notes and that the OT’s document review consisted of two documents. Finally, Allstate relies on the conclusion of Marlene Levy, occupational therapist, who determined that the OCF-18 is not reasonable or necessary after an extensive document review and assessment where she found that M.L. did not display any overt cognitive defects during the interview or functional assessment and only displayed “minor memory difficulties” and was capable of using strategies to overcome them.

29Again, I agree with Allstate. Other than his self-reporting to the clinic, there is limited evidence in the file suggesting that M.L. suffers from cognitive difficulties. There are a few mentions that he forgets birthdays and has difficulty concentrating at times, but nothing that amounts, objectively, to a potential cognitive impairment requiring investigation. Based on M.L.’s self-reporting and no cognitive testing, I disagree that it was reasonable to incur an assessment and find that this particular treatment plan does not really correlate with the bulk of the evidence. On this basis, I follow the opinion of Ms. Levy that this OCF-18 was not reasonable and necessary and therefore not payable.

Interest

30M.L. is entitled to interest on any overdue benefits, pursuant to s. 51.

CONCLUSION

31For these reasons, I find M.L. is not entitled to an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his pre-accident employment for the period in dispute.

32I find M.L. is entitled to payment in the amount of $2,122.40 for chiropractic services incurred as they are reasonable and necessary. Interest is payable on this overdue amount, pursuant to s. 51.

33I find M.L. is not entitled to payment for any of the remaining treatment and assessment plans as they are not reasonable and necessary.