Tribunal File Number: 17-008992/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:
V. S.
Applicant
and
RBC Insurance Company
Respondent
DECISION
PANEL:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
Swetlana Vinokur, Paralegal
For the Respondent:
Louise Kanary, Counsel
HEARD In Writing on:
July 30, 2018
OVERVIEW
1The applicant, V.S., was injured in an automobile accident on December 5, 2015 and sought benefits from the respondent, RBC Insurance Company, pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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:
Is the applicant entitled to receive a weekly income replacement benefit (IRB) in the amount of $400.00 from February 17, 2016 to June 15, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $1,736.06 for a physiotherapy treatment plan recommended by [Rehabilitation Services] and dated December 7, 2015?
Is the applicant entitled to receive medical benefits recommended by [Health Centre] as follows:
a. $2,865.82 for a physiotherapy treatment plan dated January 26, 2016; and
b. $514.17 for a physiotherapy treatment plan dated March 3, 2016?
Is the applicant entitled to payments for the cost of examinations in the amount of $950.00 for the production of two Assessment of Attendant Care Needs (Form 1s) completed by [Diagnostics Centre] and dated November 28, 2016?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant is not entitled to IRBs.
4The applicant is entitled to receive a medical benefit in the amount of $1,736.06 for the treatment incurred as part of the physiotherapy treatment plan recommended by [Rehabilitation Services] dated December 7, 2015.
5The applicant is not entitled to the benefits proposed by [Health Centre].
6The applicant is entitled to receive $467.07 for the cost of examination for the production of a single Assessment of Attendant Care Needs.
7Interest is payable pursuant to section 51 of the Schedule.
BACKGROUND
8The applicant was the front-seat passenger of a sedan which was struck near the rear end on the passenger side in a perpendicular fashion on December 5, 2015. The applicant did not receive any medical attention at the scene of the accident but visited a walk-in clinic and met Dr. S. Wong, family physician, the day following the accident. Dr. Wong diagnosed the applicant with minor soft tissue injuries.
9The applicant started to attend at [Rehabilitation Services] around December 9, 2015. The applicant was then examined by Dr. S. Kerr, chiropractor, who produced a disability certificate dated December 23, 2015. As a result of the accident, and in order of severity, Dr. Kerr diagnosed the applicant with hypermobility syndrome, arthrosis, lumbar and cervical radiculopathy, subluxation of the lumbar, thoracic, and cervical spine, biomechanical lesions, postconcussional syndrome, headache, dizziness and giddiness, sleep disturbances, and anxiety. Dr. Kerr noted the applicant returned to work but also indicated the applicant was unable to return to work on modified hours or duties and had a complete inability to carry on a normal life.
10[Rehabilitation Services], which later became [Health Centre], proposed several physiotherapy treatment plans and two assessments of attendant care needs, all of which the respondent denied funding for. The applicant seeks payment for the incurred amounts of the disputed treatment plans and costs of examinations.
11The respondent initially characterized the applicant’s injuries as falling within the Minor Injury Guideline (MIG). This opinion changed a few months after the accident, presumably when the respondent approved funding outside the MIG for psychological treatment.
12The applicant returned to work as a pastry cook about 2 days after the accident and continued to work for more than two months until February 16, 2016. The applicant claims a disability for the period starting February 17, 2016 to June 15, 2016 and seeks entitlement to an IRB for this period.
INCOME REPLACEMENT BENEFITS
13During the first 104 weeks after an accident, an IRB is payable to an insured who is substantially unable to perform the essential tasks of employment as a result of the impairment. The applicant submits the December 23, 2015 disability certificate confirms the applicant has a substantial inability to perform the essential tasks of employment. The respondent submits the applicant has not provided the evidence to establish the applicant is substantially disabled from performing the essential tasks of employment.
14I agree with the respondent and for the following reasons find the applicant is not entitled to any IRBs.
15In order to find that the applicant is unable to perform the essential tasks of employment, I must first determine what the applicant’s essential tasks of employment are. I am unable to do this because the applicant has not provided any evidence or submissions to determine what they are. The applicant has only provided pay stubs and no other employment documents or opinion on what the applicant’s essential tasks of employment.
16I am also unable to determine the applicant’s disability, if any. With the exception of the disability certificate dated December 23, 2015, the applicant has not provided any submissions or evidence to indicate the applicant suffers a disability as a result of the accident. Furthermore, the disability certificate completed nearly two months prior to the applicant discontinuing work, is not consistent with the applicant’s medical and historical record. For example, the disability certificate indicates a complete inability to carry on a normal life despite the applicant’s return to work immediately following the accident.
17The medical record before me does not include any recommendations to cease working. The clinical notes and records from the applicant’s family doctor and a walk-in clinic frequented by the applicant do not have any recommendation to cease work. Similarly, the record from [Rehabilitation Services]/[Health Centre], which includes the disability certificate dated December 23, 2015, does not include a recommendation for the applicant to cease work.
18The restaurant the applicant was working in at the time of the accident permanently closed shortly after the applicant claims to have stopped working. Representative for the applicant made written requests to the employer on March 2 & 31, 2016, but was unable to have the employer complete the Employer’s Confirmation Form (OCF-2), which would have included details like the applicants last date worked. Further, despite an employer’s requirement to do so, the applicant claims to have never received a Record of Employment (ROE) and has not provided any evidence to suggest an ROE was requested. As a result, there is no evidence before me to confirm when or if the applicant stopped working.
MEDICAL BENEFITS
19The applicant claims entitlement to three treatment plans proposed by [Rehabilitation Services]/[Health Centre]. The applicant relies mostly on Dr. Kerr’s disability certificate and a Chiropractic Radiological Report by Dr. W. Hsu, chiropractor, dated December 7, 2015. The applicant’s position is the treatment plans are reasonable and necessary because the applicant finds conservative therapy beneficial and because, as the applicant claims, the injuries fall outside the confines of the MIG.
20The respondent submits the applicant was able to reach maximum medical recovery by the time of an orthopaedic insurer’s assessment on January 26, 2016 and that the treatment proposed is not reasonable and necessary based on this finding. The respondent also takes the position that Dr. Kerr’s disability certificate is an exaggeration and is discredited by the available evidence. The respondent argues that Dr. Hsu’s impressions are discredited because the diagnostic imaging used by Dr. Hsu to make the findings has never been produced.
Dr. Hsu’s Chiropractic Radiological Report
21The Chiropractic Radiological Report forms the basis for the applicant’s claim to the disputed medical benefits. The report by Dr. Hsu concludes the applicant has 1) postural alterations 2) retrolistheses at C3-4 and C4-5 in extension, likely due to physiological stair-stepping and 3) minimal facet arthrosis from L2 to S1. The disputed physiotherapy treatment plans rely on Dr. Hsu’s finding to argue against the application of the MIG and to support the need for ongoing passive and active therapy. Dr. Hsu’s analysis is relied upon to support the conclusions in the disability certificate and is referred to in the December 7, 2015, January 22, 2016, March 2, 2016 treatment plans.
22I agree with the respondent’s argument that Dr. Hsu’s impressions should be given no weight due to the absence of the imaging upon which they claim to be based. Allowing the applicant to rely on but withhold the imaging evidence from the respondent is procedurally unfair. The applicant was able to obtain extensive medical records but never included the imaging which is the basis of the applicant’s most prominent claim for medical benefits. When provided an opportunity to reply, instead of producing the imaging, the applicant argued the respondent could have sought the imaging prior to the hearing. I find this position is unfair to the respondent, deprives the Tribunal of relevant evidence, and discounts the credibility of the applicant’s evidence as a result.
23I reject the applicant’s argument the respondent could have visited the medical facility or sought certified copies of the images prior to the hearing. This position is unreasonable considering the images, if commissioned or relied upon by the medical facility, ought to be included in the clinical notes and records – they were not. Further, it is the applicant’s case to prove, not the respondent’s.
24In light of the above, I give Dr. Hsu’s analysis no weight when considering the evidence before me.
The Physiotherapy Treatment Plan dated December 7, 2015
25The applicant claims entitlement to this treatment plan on the basis that the applicant is not subject to the MIG and because the respondent’s evidence does not satisfactorily refute the treatment to be reasonable and necessary. The respondent initially denied the treatment plan pursuant to section 38(5), taking the position that the applicant’s injuries fell within the MIG and should be treated within the MIG. At some point the respondent abandoned that argument and now holds the treatment plan is not reasonable and necessary based on the medical record. The respondent relies on the medical record and specifically, the insurer’s examination reports of Dr. F. Abuzgaya, orthopaedic surgeon, dated February 9 & 19, 2016.
26The evidence shows the applicant suffered from predominantly soft tissue injuries as a result of the accident and immediately began treating the injuries through active and passive therapy. The amount claimed by the applicant is the initial treatment received following the accident. The applicant’s consumption of the treatment is evidenced by the disputed treatment plan itself as well as the sign-in sheets and clinical notes and records of the treating facility.
27I find the applicant is entitled to the medical benefit in the amount of $1,736.06 for treatment consumed as part of this treatment plan.
28Active and passive treatment immediately following a soft tissue injury is generally accepted as necessary for recovery. The respondent’s decision to deny the applicant treatment in this acute phase, without exercising its right pursuant to section 38(5), is contradictory to the MIG and the generally accepted practices for treating soft tissue injuries.
29Dr. Abuzgaya’s opinion that this specific treatment plan is not reasonable and necessary is flawed because it fails to consider the applicant’s situation immediately following the accident. The orthopaedic assessment reports conclude the applicant has suffered predominantly a “minor injury” as defined by the Schedule and determines the treatment plan is not reasonable and necessary as a result of the minor injury and because the applicant has reached maximal medical recovery. This assessment and the findings in the report occurred after the applicant had the benefit of several weeks of treatment, in the acute stage of recovery.
The Physiotherapy Treatment Plans dated January 26 & March 3, 2016
30Similar to the December 9, 2015 treatment plan, the applicant’s claims entitlement to the January and March 2016 treatment plans on the basis that the applicant was wrongly subject to the MIG and that the treatment plans ought to have been re-evaluated once the applicant was removed from the MIG. The respondent holds the treatment plans were not reasonable and necessary and the MIG is irrelevant to this argument.
31Based on the evidence before me, I find the January 26 and March 3, 2016 treatment plans are not reasonable and necessary. The medical record shows the applicant sustained uncomplicated soft tissue injuries. Records from the applicant’s family doctor and a walk-in clinic frequented by the applicant show no indication of ongoing physical injuries.
32Further, Dr. Abuzgaya conducted an insurer’s examination on January 26, 2016 and found no objective evidence of residual musculoskeletal impairment attributed to the subject accident. Dr. Abuzgaya also conducted a review of medical documents provided by the applicant and produced a second report, dated February 19, 2016, which came to the same conclusion. Records from the applicant’s family doctor and a walk-in clinic frequented by the applicant show no indication of ongoing physical injuries.
The Assessments of Attendant Care Needs (Form 1s)
33The applicant produced two Form 1s dated November 28, 2016; the first Form 1 was for the period from December 5, 2015 to June 5, 2016 and the other was for the period from June 6, 2016 and ongoing.
34The respondent argues the Form 1s are not reasonable and necessary and denied funding. The respondent also noted a retroactive Form 1 is of no assistance in determining the applicants attendant care needs.
35The applicant claims entitlement to payment for the Form 1s because the assessments were conducted by an occupational therapist in accordance with section 25(1)4 of the Schedule and the cost of the assessments is in accordance with section 25(5)(a).
36Pursuant to section 25(1)(4) the respondent shall pay reasonable fees charged by an occupational therapist or registered nurse for the preparation of a Form 1. Section 25(5)(a) holds that the respondent is not liable to pay more than a total of $2,000.00 in respect of fees and expenses for conducting an assessment.
37I find the applicant has satisfied the requirements and is entitled to payment for the costs of the examination which measures the applicant’s attendant care needs at the time of the assessment and onwards. The record shows the true cost of the Form 1 is $467.07, not $475.00 as claimed in this hearing. For this reason, I find the applicant’s entitlement to payment for this examination is no more than $467.07.
38The retroactive Form 1 is not payable for two reasons. First, I agree with the respondent and find a retroactive Form 1 to be meaningless as the true purpose for the production of a Form 1 is to quantify the attendant care needs of the applicant at the time of the assessment and onwards.
39Second, there is no supporting evidence to show a change that would affect the amount of the attendant care benefits. This amounts to a duplication of the services. Section 42(9) provides the applicant the ability to have their attendant care needs assessed more than once however; this provision is only applicable when there are changes that would affect the amount of benefits. The Form 1s were created on the same day and, although the Form 1s are for different monthly amounts, there is no other evidence to suggest there was a change which would affect the amount of benefits.
CONCLUSION
40Based on the submissions and evidence before me, I find the applicant is not entitled to any IRBs.
41The applicant is entitled to receive a medical benefit in the amount of $1,736.06 for the treatment consumed in the physiotherapy treatment plan recommended by [Rehabilitation Services] and dated December 7, 2015.
42The applicant is not entitled to the benefits recommended by [Health Centre].
43The applicant is entitled to receive $467.07 for the cost of examination for the production of an Assessment of Attendant Care Needs.
44Interest is payable pursuant to section 51 of the Schedule.
ORDER
45The respondent shall pay the applicant $2,203.13 plus applicable interest pursuant to section 51 of the Schedule. Either party may apply to the Tribunal at a later date if there are any disputes over the calculation of interest.
Released: February 27, 2019
___________________________
Brian Norris
Adjudicator