Tribunal File Number: 17-001981/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:
J. V.
Applicant
and
RBC General Insurance Company
Respondent
DECISION
ADJUDICATOR: Anita John
APPEARANCES:
Counsel For the applicant: Ryan M. Naimark
Counsel for the respondent: Monica Pathak
HEARD in writing: May 7, 2018
OVERVIEW
1The applicant was injured in an automobile accident on August 22, 2014 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”).
2It should be noted that the applicant was involved in a prior motor vehicle accident on August 1, 2014. This decision is based on evidence in relation to the second accident which took place on August 22, 2014.
3The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
4A case conference held on February 9, 2018 failed to resolve the issues disputed by the parties. Accordingly, a written hearing was ordered to be conducted in this matter.
ISSUES
5The following are the issues in dispute:
a) Is the applicant entitled to payment for the cost of an examination in the amount of $1,050.00 for an assessment of attendant care needs, recommended by [The Health Group] in a treatment plan (OCF-18) dated March 17, 2015, denied by the respondent on March 30, 2015?
b) Is the applicant entitled to receive a medical benefit in the amount of $4,189.92 for psychological services, recommended by [The Health Group], in a treatment plan (OCF-18), and dated November 11, 2015 denied by the respondent on November 24, 2015?
c) Is the applicant entitled to receive a medical benefit in the amount of $3,146.48 for chiropractic services, recommended by [The Health Group], in a treatment plan (OCF-18), dated December 30, 2015, denied by the respondent on January 21, 2016?
d) Is the applicant entitled to receive a medical benefit in the amount of $2,031.70 for physiotherapy services, recommended by [The Health Group], in a treatment plan (OCF-18), dated September 8, 2016, denied by the respondent on September 22, 2016?
e) Is the applicant entitled to payments for the cost of an examination in the amount of $17,063.93 for a multidisciplinary assessment, recommended by [Medical Assessment Specialists], in a treatment plan (OCF-18) dated October 14, 2016, denied by the respondent on January 3, 2017?
f) Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
6The applicant is entitled to an assessment of attendant care benefits.
7The applicant is entitled to payment for the psychological services requested in the treatment plan dated November 11, 2015 because it is a reasonable and necessary expense.
8The applicant is entitled to payment for the chiropractic services requested in the treatment plan dated December 30, 2015, denied by the respondent on September 22, 2016.
9The applicant is entitled to payment for the physiotherapy services requested in the treatment plans dated December 30, 2015 and September 8, 2016 because they are reasonable and necessary expenses.
10The applicant is entitled to payment for the cost of a multidisciplinary assessment, requested in treatment plan, dated October 14, 2016.
11Interest on overdue payments is owed on all overdue accrued accounts.
ANALYSIS
12Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed treatment plan and costs of assessment are reasonable and necessary.
Issue (a) Assessment of attendant care needs
13The purpose of the assessment is to determine if the treatment plan (OCF-18), submitted by M.P. of [The Health Group}, dated March 17, 2015 is reasonable and necessary.
14I am persuaded by the in-home needs assessment plan prepared by Dr. B.G., occupational therapist, that the applicant has some difficulties with activities of daily life (“ADLs”) such as personal care hygiene (grooming). The applicant had family members assisting her with cleaning her house. She eats out, orders in and cooks pre-packaged frozen foods. In addition, the applicant hired someone to assist with the outdoor maintenance of her home, including the snow removal. During the assessment, the applicant reported that it is difficult for her to transfer from sitting to standing. Dr. B.G. reported that there were slight changes in her balance when a sharp or sudden pain occurs. The applicant reported that she had disturbed sleep patterns due to right leg feeling “heavy and like a dead log.”
15I am satisfied that the chronicity of the applicant’s injuries is a barrier to her recovery. I find the treatment plan is reasonable and necessary as an assessment of attendant care needs would identify the applicant’s functional impairments and allow her to return to the activities of normal living.
Issue (b) Psychological Services
16The applicant claims entitlement to $4,189.92 for psychological services.
17In her submissions, the applicant states that the IE assessor, psychologist, Dr. A.L., psychologist deemed the treatment plan to be partially reasonable and necessary. Notwithstanding this finding by Dr. A.L., the respondent denied this treatment plan in its entirety.
18In her IE report, Dr. A.L. interviewed the applicant, reviewed relevant medical documents including the OCF-18. Of the test results, the following were particularly significant:
(a) Basic Personality Inventory (BPI): the results indicate high levels of depressive symptomatology and, in association with this, a tendency for self-depreciation. There is a mild elevation noted for somatization and health concerns.
(b) Pain Patient Profile (P-3): Symptoms of depression are above average when compared to the pain patient sample. Symptoms of anxiety are below average, while symptoms of somatization are within the average range for pain patients. This means that, based on the results of this measure, the applicant is likely suffering from a significant number of depressive symptoms, while her somatization levels are normal for chronic pain patients.
19Dr. A.L. found that the proposed treatment and assessment plan is considered partially reasonable and necessary.
20Dr. A.L. goes on to state that no additional time is necessary, unless it is dedicated to retesting. Dr. A.L. notes that three hours for preparation, service is considered reasonable and necessary if re-testing is conducted.
21Dr. A.L.’s psychological assessment establishes that the reduction of stress will help alleviate the applicant’s depression and anxiety. This is a reasonable and necessary objective. The twelve sessions of psychological treatment will focus on the applicant’s depression and anxiety, pain management and sleep restoration interventions and behavioural activation strategies with a focus on challenging the applicant’s current rumination.
22In all, I find the psychological services requested in a treatment plan dated November 11, 2015 to be reasonable and necessary. I find that the applicant has met her onus and accept that she would benefit from a comprehensive psychological treatment, even if re-testing was conducted. As a result, the applicant is entitled to the full payment for this treatment plan.
Issues (c)-(d) – Chiropractic & Physiotherapy Services
23To meet her burden of proof, the applicant relies on a number of reports and recommendations from an array of physicians including medical specialists. Her case for ongoing pain issues is based on reports from:
i. CNRs of [The Health Group];
ii. CNRS of treating family doctor, Dr. U.;
iii. [The Hospital Records]; and
iv. CNRs of [The Pain Clinic].
24On December 1, 2014, Dr. L.W., an orthopedic surgeon, completed an orthopaedic surgery assessment at the respondent’s request. Dr. L.W.’s diagnosis was that the applicant “…sustained cervical strain, thoracic strain, and lumbar strain injuries as a direct result of the motor vehicle accident on August 1, 2014. She developed right flank/buttock pain following a second motor vehicle accident on August 22, 2014. He stated that the applicant “has an impairment in range of motion of her neck, shoulders and lower back as a result of the motor vehicle accident…” I find that the pain that the applicant developed in her right flank/buttock as relevant as the second motor vehicle accident exacerbated the applicant’s pre-existing injuries from the first accident.
25In denying the applicant’s claims, the respondent relies on an insurer examination conducted by orthopedic surgeon, Dr. J.A. on May 28, 2015. Dr. J.A. examined the applicant and reviewed an orthopaedic surgery assessment completed by a previous IE assessor, orthopedic surgeon Dr. L.W..
26I find the treatment goals set out in the OCF-18s to be reasonable. I do not find Dr. J.A.’s report to be persuasive. Her report overlooks pain relief as a benefit of the proposed treatment plan. I reject the conclusion that the applicant has reached maximum medical recovery because she still requires treatment. Dr. J.A.’s report fails to address the medical evidence amassed in the CNRs and reports by the applicant’s various medical assessors. These other reports and CNRs clearly support the position that the applicant has not reached maximum medical recovery and that she still requires treatment.
27Dr. J.A. concluded that there were no substantive musculoligamentous, osseous or neurological impairments on clinical testing that could be casually related to the accidents of August 2014. In addition, she found that the OCF-18 dated December 30, 2015 was not reasonable and necessary.
28The respondent highlighted Dr. J.A.’s findings that the applicant had a normal gait as she was able to walk or squat without assistance. The applicant had full range of motion in both shoulders with no impingement or tendinopathy. There was no evidence of injury to muscle and nerve at hip and thigh. There was no evidence of WAD 2 with neck pain and musculoskeletal signs.
29The applicant submits that the IE report by Dr. J.A. should carry little weight in determining whether the treatment plans are reasonable and necessary. The applicant submits that Dr. J.A. did not review any of the medical records of [The Health Group], the applicant’s treating family doctor, Dr. U. or any [hospital records] or CNRs from the [Pain Clinic]. I agree with the applicant’s submissions.
30On November 7, 2015, the applicant attended at [the Hospital] emergency room complaining of back pain. According to clinical notes, the applicant reported that she had intermittent hip and back pain radiating to her right leg which had increased over two weeks. She was discharged but an MRI was arranged and took place on November 18, 2015. The MRI report revealed a “narrow disc bulge: at L4-L5 indicating an objective basis for the pain that the applicant had consistently reported since the August 2014 accidents. I find that the findings of the MRI relate to the accident in this application.
31On January 19, 2016, after a referral by Dr. U., the applicant was assessed by Dr. J.L., a physician at a chronic pain medical clinic. Dr. J.L. noted in his report that the applicant presented with chronic lower back pain radiating to the right lower limb. Consistent with the information detailed in the reports above, Dr. J.L. described her condition as chronic mechanical lower pain, secondary to degenerative disc disease, sacroiliac dysfunction, right sciatic nerve pain, and chronic pain syndrome. He discussed and recommended treatment options, including nerve blocking.
32I find that the applicant was consistently complaining of pain. This is why I reject the finding that the applicant reached maximum medical recovery. The medical records of [The Health Group] indicate that the applicant complained of neck, shoulder and thigh pain immediately after the accidents. Physiotherapy treatments were recommended to reduce pain and increase mobility. The notes indicate that the applicant was seen by [The Health Group] staff frequently between August 2014 and February 2016, and consistently reported neck, shoulder, back and hip pain which sometimes radiated to the applicant’s legs.
33On October 13, 2016, the applicant was assessed again at the respondent’s request by Dr. H.K., a general practitioner. Dr. H.K. stated that the applicant “…reported ongoing pain symptoms in the right hip, right gluteal region and low back. Clinical examination identified findings that were consistent with soft tissue injuries…” These injuries would be consistent with a diagnosis of right hip sprain/strain; right gluteal sprain/strain; lumbar strain; right joint sprain/strain.
34The respondent submits that video and photographic surveillance obtained on July 20, 21, 26-29, 2017 is wholly incongruent with the applicant’s claim for impairment. The applicant asserts that she has never claimed that she could not drive, walk up and down stairs, sweep and carry groceries. I agree with the finding that the fact that the applicant was able to carry on certain normal activities does not materially conflict with the medical evidence indicating that she suffered pain, discomfort and restricted range of movement. I attach little weight to the surveillance as it fails to substantiate the applicant’s lack of impairment.
35The respondent submits that the applicant is barred from advancing the current application pursuant to an executed settlement disclosure notice and partial release, dated May 29, 2017 before FSCO. The applicant submits that the partial release and settlement disclosure notice was not a full and final release. I find that the release is ambiguous and unclear as to whether the applicant waived her right to dispute any treatment plan not at issue in the FSCO matter. Ambiguity will generally be resolved in the insured’s favour. I find that the application is not barred by the FSCO partial release on the grounds of ambiguity.
36As a result of the foregoing findings, I conclude that both chiropractic and physiotherapy treatment plans are reasonable and necessary.
Issue (e) - the cost of multidisciplinary assessment examination $17,063.93 for a multidisciplinary assessment
37To establish her entitlement for the cost of the multidisciplinary assessment examination, the applicant relies on a Medical and Legal Assessment and Post-104 IRB Determination Report (“determination report”). The assessors included the following: Dr. J.D.S. Jr. (psychologist), Dr. M.C. (orthopaedic surgeon), Dr. L.H., (psychologist), Mr. T.C., (occupational therapist), Ms. H.P. (occupational therapist).
38The respondent relies on its insurer examination, by Dr. F.L., general practitioner, and Dr. L.K., psychologist, dated December 15, 2016 which concluded that the applicant has a normal range of motion and no impairments from a musculoskeletal or neurological nature. Dr. F.L. acknowledges that the injuries from her first accident were then aggravated by the second accident.
39Psychologist Dr. L.K., who co-authored the examination report also agreed OCF-18 was not necessary and further stated: From a psychological perspective, I see no reason why the applicant requires further psychological assessment, as she has been evaluated by three different assessors. Likewise, her physical injuries have been assessed thoroughly.
40I agree with the applicant. For the following reasons I am not persuaded by the opinions of offered by Dr. F.L. and Dr. L.K.:
a) The duration of the interview was 35 minutes compared to the five days that the applicant was assessed in the determination report.
b) Their joint report fails to recognize and address the applicant’s physical, emotional and pain related limitations.
c) The determination report provides concrete recommendations to improve the applicant’s stamina and tolerance and thereby work/life balance. Such recommendations included supervised physiotherapy leading to a home based and gym exercise program when it is determined that they can be maintained independently. A psychosocial component might include a community based PGAP programme with a focus on pain management and further developing copies strategies as well as time-management strategies.
41The applicant argues that less weight should be given to the respondent’s insurer’s examination because the determination report submitted on behalf of the applicant spanned a period of five days with five different specialized assessors. I find that the examination with the applicant’s assessors was thorough. The IE multidisciplinary report relied upon the respondent was conducted by a general practitioner and psychologist in contrast to the determination report which was completed by two psychologists, orthopaedic surgeon and two occupational therapists. I find the assessment to be reasonable and necessary.
Issue (f) - Interest
42Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
43Section 51(2) of the Schedule requires an insurer to pay interest on an overdue amount for each day the amount is overdue.
44Because I have found that payments are due to the applicant from the respondent, interest on overdue payments is owed, and ought to be paid in compliance with s.51(3)(4) of the Schedule.
CONCLUSIONS
45The applicant’s appeal is allowed on the following issues:
i. The applicant is entitled to an assessment of attendant care benefits.
ii. The applicant is entitled to payment for the psychological services requested in the treatment plan dated November 11, 2015 because it is a reasonable and necessary expense.
iii. The applicant is entitled to payment for the chiropractic services requested in the treatment plan dated December 30, 2015, denied by the respondent on November 11, 2015.
iv. The applicant is entitled to payment for the physiotherapy services requested in the treatment plans dated December 30, 2015 and September 8, 2016 because they are reasonable and necessary expenses.
v. The applicant is entitled to payment for the cost of a multidisciplinary assessment, requested in treatment plan, dated October 14, 2016.
vi. Interest on overdue payments is owed on all overdue accrued accounts.
Released: February 7, 2019
Anita John
Adjudicator