E.K. v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 34625

Citation: E.K vs. Portage La Prairie Mutual Insurance Company, 2019 ONLAT 18-001333/AABS

Date: February 27, 2019

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:

EK

Appellant

and

Portage La Prairie Mutual Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Loreto Scarola, Paralegal

For the Respondent: Jane Cvijan, Counsel

HEARD in Writing: November 5, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant, “EK”, was involved in an automobile accident on May 28, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Portage La Prairie Mutual Insurance (“PLP”), denied her claim for benefits.

2EK was a passenger in a stationary vehicle that was rear-ended in a multiple vehicle pile-up.

DISPUTED BENEFITS

3The issues before me are as follows:

1. Is EK entitled to receive payments for cost of examinations in the amount of $1,401.56 ($2,200.00 less $798.44 approved) for a psychological assessment recommended by Dr. Nesovic in a treatment plan (“OCF-18”) dated November 29, 2016, denied by PLP on February 9, 2017?

2. Is EK entitled to receive a medical benefit in the amount of $2,933.06 for chiropractic services recommended by Dr. Surla in an OCF-18 dated March 29, 2017, denied by PLP on April 5, 2017?

3. Is EK entitled to receive a medical benefit in the amount of $3,158.66 for chiropractic services recommended by Dr. Surla in an OCF-18 dated September 21, 2017, denied by PLP on September 28, 2017?

4. Is EK entitled to receive payment for cost of examinations in the amount of $1,713.27 for an occupational therapy in-home assessment recommended by Jane Zambon, occupational therapist, in a OCF-18 dated October 31, 2017, denied by PLP on November 6, 2017?

5. Is EK entitled to interest on any overdue payment of benefits?

FINDINGS

4I find that EK has not proven that she is entitled to any of the benefits in dispute. Her appeal is denied and the issue of interest does not arise.

REASONS

Background

5Sections 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 proposed treatment or assessment plan is reasonable and necessary.²

6PLP asserts and EK does not deny that it determined EK’s injuries to be outside of the MIG³ because its medical assessor opined that she required treatment for vehicular anxiety – a psychological condition – that could not be funded within the MIG limits.

Cost of Psychological Examination

7As noted, the cost of examination claimed in issue 1 was partially approved. The sole issue is whether the amount billed by Dr. Aleksandra Nesovic, psychologist, was reasonable, given the examination detailed in his report.

8To support her claim, EK submits that PLP paid an psychologist, Dr. Peter Cobrin, $2,260.00 to perform a psychological insurer’s examination (IE) on January 26, 2017, which required 2 hours and15 minutes to complete, and that this is persuasive evidence that the $2,200.00 she claimed for her own assessment is reasonable.

9EK argues that a comparison of the two examinations by Dr. Cobrin and Dr. Nesovic supports her claim that the claimed cost of examination was reasonable:

i. Dr. Cobrin only administered one psychometric test, while Dr. Nesovic administered five such tests.

ii. Dr. Nesovic had to consider and opine on treatment options, which necessarily requires more time to complete.

iii. Dr. Cobrin noted the time consumed in having to clarify about a third of the questions and answers because of “language difficulties”.⁴

10PLP rebuts EK’s evidence:

i. Dr. Nesovic’s OCF-18 does not provide a breakdown of his hourly rate or of the procedures set out as “PRs” therein.

ii. Dr. Nesovic’s invoice (“OCF-21”) indicates a billing of $798.44 for an assessment performed by Dr. Alfonso Marino, psychologist, who was never approved to carry out a funded assessment. As a result, there is concern about who actually performed the assessment: PLP claims that the balance is not payable pursuant to s.25 and s.38(2) of the Schedule because prior approval for the assessment by Dr. Marino was not sought.⁵

iii. PLP relies on the opinion of Dr. Cobrin that EK required four hours of service to complete a full assessment of what he opined were for her very specific driving-related phobia, plus funding to complete the required form, at the prescribed rates. PLP paid the amount recommended by Dr. Cobrin.

11I find that EK has not met the onus on her to prove that the remaining, unapproved costs of the psychological assessment she seeks is reasonable and necessary, because:

i. I give no weight to her contention that a comparison between the costs paid for an IE and the costs claimed for a s.25 examination is a valid approach to determining whether claimed expenses are reasonable and necessary. In my view, the OCF-18 must be shown to be reasonable and necessary on its own merits.

ii. EK provides me with no reason to reject Dr. Cobrin’s opinion on the assessment required and its cost. I am therefore guided by Dr. Cobrin’s advice.

12EK’s appeal on issue 1 is denied.

Chiropractic Treatment Plans

13EK notes that Dr. Kopyto, GP, conducted an IE (report dated December 6, 2016) to determine whether her injuries were covered by the MIG. He determined that EK’s injuries fell within the MIG and EK asserts that on that basis he opined that the proposed treatment plans were not payable. PLP later agreed that EK’s injuries did not fall within the MIG.

14EK states that her position is “that all treatment denied based on MIG, should now be considered approved as [she] is no longer in MIG [sic]”.

15EK notes that, after Dr. Kopyto’s report, she had an ultrasound of her left shoulder, on August 17, 2017 which revealed tendinosis and a full thickness tear.

16EK also relies on a functional capacities evaluation and examination report, dated July 25, 2018, by Dr. Dusko Surla, chiropractor, in which Dr. Surla opined that:

i. EK’s pain symptoms are severe and prolonged.

ii. EK suffers from a number of significant physical limitations and that these restrict her from conducting her normal activities of daily life.

iii. EK’s symptoms are caused by accident-related injuries and exacerbation of previous degenerative issues in her neck and back.

iv. The two disputed treatment plans are necessary to promote rehabilitation and prevent a “digression” [sic] in her physical and functional capacity and pain levels.”

17PLP rebuts EK’s claims with the following submissions and evidence:

i. Its decision to remove EK from the MIG for psychological treatment has no bearing whatsoever on the question of the nature of her physical injuries and her entitlement to funding for treatment for them.

ii. Removal from the MIG does not absolve EK from the burden of proof: she must show that the treatment plans are reasonable and necessary on their merits. She has failed to do so.

iii. EK’s ongoing physical challenges are not accident-related. Her physical injuries consisted of sprains and strains which had healed at the time the OCF-18s were submitted. PLP offers evidence that EK was getting treatment for physical injuries before the accident occurred:

a. EK stopped working in the 1990s after a workplace accident and was approved at that time for CPP Disability. She was restricted at that time from bending or lifting heavy objects.

b. A report by Dr. Jacques Gouws, psychologist, dated March 3, 2007, diagnosed EK with chronic pain syndrome that caused pain and numbness in both arms, bilateral shoulders and low back radiating into the left leg.

c. Clinical notes and records (CNRs) from EK’s former family physician, Dr. Tiab, indicate the same problems over a number of years before the accident, and that these problems “expanded” because of diabetic neuropathy, osteoarthritis and degenerative changes.

d. Dr. Tiab’s CNRs in 2015-2016 show that EK was regularly prescribed physiotherapy (OHIP-funded) and pain medication -- such as Lyrica (75 mg), Oxybutynin (5 mg), Tylenol arthritis and Lorazepam (1 mg) -- in the months before the accident in response to EK’s complaints of pain in the neck, low back, hips, knees, shoulders, arms and hands. EK also got massage therapy prior to the accident as indicated in a Green Shield⁶ benefits statement.

e. EK’s ongoing medical treatments remained the same after the accident as before, with the addition of treatment funded by PLP (within the MIG), as shown by Dr. Tiab’s CNRs and records from Surla Chiropractic and Rehab.

f. An MRI of EK’s shoulders in August 2017 revealed no signs of traumatic injury. They revealed degenerative changes, a queried tear in the right shoulder and a small tear in the left shoulder. This was also the first time EK had mentioned left shoulder pain since the accident. The most reasonable conclusion is that the MRI revealed non-accident related injuries.

iv. EK’s accident-related physical injury, a neck strain, has resolved. There is no evidence from Dr. Tiab’s CNRs or those of Dr. Boutros, her current family doctor, of any accident-related complaints after June 13, 2016 and no record of any clinical encounters at all for 2017.

v. EK’s assertions and evidence should be discounted because she misrepresented her pre-accident medical history, denying any pre-accident medical conditions (except for diabetes) in a statement taken in her lawyer’s office on July 22, 2016. Her Disability Certificates dated July 6 and October 20, 2016 and signed by Dr. Surla, failed to disclose in Part 8 of the form her “prior or concurrent” medical conditions and therefore speak to her lack of credibility.

18PLP urges me to accept the diagnoses of its IE examiner, Dr. Kopyto, of minor neck strain, because it corresponds to the diagnosis given by the emergency room physician on the day of the accident (May 28, 2016) and by EK’s own doctor Tiab on June 13, 2016. Her current family doctor Boutros’s diagnosis, detailed in her Disability Certificate dated November 2016, is not reflected in her CNRs, suggesting a reliance on EK’s self-reporting. PLP argues that I should prefer the diagnoses made during the “acute phase” of EK’s injury over diagnoses made later.

19PLP makes the following legal points that assist in the analysis of causation in this case:

i. To prove that her injuries are accident-related and eligible for coverage, PLP states that EK “must prove that but for the accident, she would not be experiencing the impairments she attributes to the accident.” ⁷

ii. “Material contribution” is not to be used as the test for causation because it is used only in exceptional circumstances to determine liability⁸: liability is not at issue when administering the Schedule.

iii. Exacerbation of pre-existing conditions is insufficient to prove causation.

20I find that PLP has not proven that the chiropractic treatments she seeks are reasonable and necessary. My reasons are:

i. EK was removed from the MIG on the basis of psychological injury. I find no merit in her assertion that this determination by PLP should lead to a conclusion that non-psychological treatments must be funded as a result, without establishing that the specific, chiropractic treatments sought are reasonable and necessary.

ii. I agree with PLP that “absent causation, [EK] cannot prove entitlement to the disputed chiropractic treatments.” I find that EK has not established causation:

a. EK contests but fails to refute PLP’s evidence of pre-accident impairment that raises concerns about causation. She does not contradict PLP’s account of medical records directly. Her account of pre-accident medical visits in Reply is not, in my view, inconsistent with PLP’s assertions and evidence. In her initial submission, EK acknowledges relevant pre-existing pain conditions in claiming exacerbation by the accident.

b. EK does not provide me with any analysis of the causation tests and how they apply to her condition.

c. I am persuaded by PLP’s argument and evidence that EK’s medical records “demonstrate the pre-existing chronicity of the same impairments the Applicant attributes to the accident which would have progressed and worsened regardless of the accident because of aging … and degeneration.”

iii. Even if causation were proven, EK did not lead any evidence to show me how the proposed chiropractic treatments were needed to resolve a neck strain which had resolved by the time the OCF-18s were submitted.

Occupational Therapy In-Home Assessment

21EK notes that “This treatment plan was denied based on the Occupational Therapy Paper Review of Shelley Elliott, Occupational Therapist. Ms. Elliott did not meet with the Applicant, instead her IE was done by paper review basing her decision upon Dr. Kopyto’s IE Reports, which states that Ms. Kovacevic’s injuries to be uncomplicated and within MIG.”

22EK submits “that this assessment was denied because of an erroneous assumption that her injuries were within MIG” and “that since her accident related injuries include a tear in the shoulder, this assessment is reasonable and necessary, and ought to be approved and the incurred amount be paid …”

23EK also submitted in evidence an Occupational Therapy (OT) in-home assessment Report by Padma Arathi, occupational therapist, dated July 19, 2018, which concludes that the applicant is, “currently limited with respect to her pre-accident functioning, including housekeeping and home maintenance tasks, self-care, leisure activities, social activities, and community access due to accident-related combined physical, psychosocial and cognitive impairments. A multidisciplinary approach to treatment with access to community occupational therapy intervention and provision of the identified adaptive equipment is strongly recommended to facilitate rehabilitation goals, recovery of function, and minimize the risk of further deterioration in function and prolonged disability.”

24EK was removed from the MIG on the basis of psychological injury. I find it important to note that EK does not cite psychological impairment as a factor in this issue. Accordingly, I find no merit in her assertion that the MIG determination by PLP should lead me to find that an OT in-home assessment is payable as a result, without establishing that it is reasonable and necessary on its own merits.

25I find that EK has not met the onus on her to prove that the injuries or impairments leading to limitations on her pre-accident functioning, such as shoulder tears, were caused by the accident, for the reasons noted above. I agree with PLP that without causation, the claim for an OT in-home assessment fails.

26EK’s appeal on issue 4 is denied.

CONCLUSIONS

27EK’s appeal is denied, and accordingly interest is not owing to her, as the disputed benefits are not payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3i.e. the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. The MIG applies to injuries defined by s.3(1) of the Schedule as “minor injuries”. There is a $3,500 cap on medical benefits payable to claimants covered by the MIG.
4. 4Dr. Cobrin’s report dated February 6, 2017, indicates that EK’s native language is Serbo-Croatian.
5. 5S.38(2) of the Schedule prescribes that the insurer is not liable to pay an expense in respect of a medical assessment or examination that was incurred before the insured person submits an OCF-18 that satisfies the requirements of subsection (3).
6. 6Green Shield Canada is a not-for-profit benefits carrier that provides drug, dental, extended health care, vision, hospital and travel benefits for groups and individuals.
7. 7PLP cites Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 18 in support of this assertion.
8. 8Ibid.