Licence Appeal Tribunal
Tribunal File Number: 18-004037/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:
W.H. Applicant
and
Allstate Insurance Respondent
DECISION
PANEL: Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant: Lisa Morell Kelly, Counsel
For the Respondent: Cary N. Schneider, Counsel
WRITTEN HEARING: April 30, 2019
OVERVIEW
1The applicant, W.H., was in a car accident and suffered both physical and psychological impairments. As a result, W.H. sought benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 ("Schedule").
2Allstate approved treatment and, to date, has paid out a significant amount of medical and rehabilitation benefits. Allstate denied the claims in this application on the basis that they are not reasonable and necessary. W.H. disagreed, arguing she has chronic pain, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service for dispute resolution. A case conference was held but the parties were unable to resolve the issues in dispute.
ISSUE IN DISPUTE
3The following are the issues to be decided, according to the Case Conference Order dated September 6, 2018:
i. Is the applicant entitled to receive a medical benefit in the amount of $3,906.98 for physiotherapy, recommended by CBI Health Centre in a treatment plan dated March 30, 2017, and denied by the respondent on April 13, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $16,769.40 for a chronic pain treatment program, recommended by Michael DeGroote Pain Clinic in a treatment plan dated January 15, 2017, and denied by the respondent on July 4, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $3,830.84 for occupational therapy, recommended by Rehab First in a treatment plan dated May 9, 2016, and denied by the respondent on June 17, 2016?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that W.H. is entitled to some of the assistive devices recommended but is not entitled to any of the treatment plans in dispute.
ANALYSIS
5Under ss. 14-17 of the Schedule, in order to receive payment for a benefit, the treatment plan in dispute must be reasonable and necessary. The onus is on the applicant to prove entitlement.
Physiotherapy
6I find the treatment plan for physiotherapy is not reasonable and necessary because I find the evidence and submissions supporting the applicant's claim to be lacking. Other than a report prepared by her family physician, Dr. Siebel, for Service Canada, the applicant did not provide the Tribunal with clinical notes and records from her treating physician or service providers. While not determinative, clinical notes and records are helpful in assessing whether a treatment plan is reasonable and necessary because they provide corroboration for the applicant's ongoing issues and complaints, diagnoses, progress and outlook.
7In the absence of this or similar documentation, I have no insight into whether the treatment that W.H. completed is helping or harming, how further treatment may affect her prognosis or even if the treatment plans in dispute are supported by the doctor that knows her best.2 Further, the applicant did not submit any records or treatment notes from CBI Health Centre detailing her progress, which would have been helpful considering her alleged approval for nearly 100 sessions there and proposal for more. There is a treatment note from physiatrist Dr. Rathbone concerning vestibular therapy, however this type of treatment is not in dispute.
8Moreover, I find that the Service Canada report actually undermines W.H.'s claims for physiotherapy and rehabilitative therapy in general. While the report does indicate that W.H. is suffering from pain in her neck, shoulders and lower back, the report indicates that physiotherapy sessions "aggravate her alleged post-concussion symptoms" and do not provide an "appreciable benefit at this time." Further, the report indicates that W.H. is able to complete all of her basic activities of daily living.3
9Considering W.H. was been approved for, and participated in, numerous physiotherapy sessions prior to this report—and the fact that no updated notes were provided indicating that physiotherapy was recommended—it is difficult to reconcile how further physiotherapy would be beneficial to W.H. if it was not helpful previously. I note the diagnoses in the report are for headaches, noise and light sensitivity, fatigue, concentration, memory and multi-tasking. None of these impairments are captured by a treatment plan for physiotherapy.
10In addition, the respondent's assessment reports indicate that it is likely that W.H. has achieved her maximal medical benefit, from a physical perspective, two years post-accident. Dr. Dessouki diagnosed W.H. with sprain and strain of the lumbar spine and migraines and reported that her physical limitations were disproportionate and inconsistent with the objective medical evidence. Similarly, Dr. Boucher diagnosed W.H. with lumbar sprain and strain and soft-tissue injuries, finding that further facility-based management of these injuries was not medically supported. While W.H. struggles with some tasks, in the OT reports she claims independence and functional ability in most of her daily activities and receives assistance or support in those she finds difficult. The reports provided by the applicant, meanwhile, indicate that while W.H. is experiencing pain, which is not disputed by Allstate, the majority of her current impairments centre on her psychological impairments, dizziness, migraines and weight and make recommendations for treatment to address these impairments.
11Accordingly, as the onus is on the applicant to prove entitlement, I find she has not satisfied her onus, as I prefer the medical reports of the respondent because they specifically address whether ongoing physiotherapy is reasonable and necessary. On this basis, I find that it is not.
Chronic Pain Program
12I find the proposed chronic pain program to be lacking in specificity and, on the information available, unreasonable in its scope and cost. While the Interdisciplinary Report prepared by the Michael DeGroote Pain Clinic in support of this plan was lengthy, it was largely a rehashing of information found elsewhere. Further, it did not identify what the program entails or, more importantly, indicate why this specific program would be beneficial to W.H.'s rehabilitation based on the Report's diagnoses of somatic symptom disorder, major depressive disorder and post-traumatic stress disorder. The Report indicates W.H. would be an "excellent candidate" but does not explain why or what exactly W.H. would do in the program, which, according to the treatment plan, lasts for four straight weeks.
13In his report for Allstate, Dr. Chan did not find that W.H. was suffering from a pain disorder associated with psychological factors and a general medical condition, and found the chronic pain program to not be reasonable and necessary. In addition, Allstate approved W.H. for psychological treatment at the time of this Report and treatment plan, yet the interdisciplinary assessors do not address or rebut whether the program would be affected by this outside (or perhaps competing) treatment or if it would be duplicative.
14I also follow Allstate's submission and question the reasonableness of proposing this particular program, considering W.H. resides in Kitchener and the clinic is located in Hamilton and when the referral came from counsel. I fail to see how a treatment plan can be considered reasonable when one quarter of the proposed costs of the treatment plan ($4,569.40) account for twenty overnight stays at a hotel, two different rates for patient transportation to treatment and a meal allowance.
15Putting aside the costs unrelated to treatment, I question what the breakdown of the remaining $12,220.00 entails for twenty sessions of "therapy, cognition and learning" and what the specific benefits to W.H. would be under this service. Put another way: after reviewing all of the materials in evidence, I find it is still unclear why this particular program is necessary for W.H.'s recovery and how, specifically, it will provide greater benefit in her recovery than the other modalities she has completed or been approved for to date. As it is the applicant's onus to prove that the treatment plan is reasonable and necessary, I find she has not met that onus.
Occupational Therapy and Devices
16I find W.H. is entitled to ear plugs, sunglasses, the long-handled devices and the laundry pedestals, as they are all reasonable and necessary. I find she is not entitled to the occupational therapy services and remaining devices, as W.H. is capable of completing the majority of her activities of daily living and the remaining devices are not reasonable and necessary.
17I find that W.H. consistently complains of noise and light sensitivity throughout the medical records before the Tribunal. While clinical notes and records are sparse, I find that her complaints during assessments about noise and light likely cause or are accompanied by her persistent migraines and dizziness, conditions that are well-documented. On this basis, I find that providing W.H. with ear plugs and sunglasses to hopefully limit migraines and dizziness is reasonable and necessary, as it is a minor cost that can potentially mitigate or eliminate discomfort.
18Similarly, while the reports indicate W.H. can perform her personal care tasks, the remaining devices recommended are minor costs that can, in my view, limit the discomfort experienced by W.H. and, potentially, reduce the dizziness she consistently reports. On this basis, I find that the majority of the long-handled assistive devices—being the shoe-horn, tub scrubber, toilet brush, shampooer, pooper scooper as well as the shoe laces and the laundry pedestals—are reasonable and necessary. According to the OT report, the applicant already has a sock aid and never sought approval for the shower seat, so I find that these items are not reasonable and necessary.
19Finally, I do not find that the OT sessions in the treatment plan are reasonable and necessary. While the report submitted by W.H. calls for several sessions, I prefer the report submitted by Allstate, which was more proportional to W.H.'s self-reporting and the objective findings that her range of motion is minimal, that she demonstrated functional ability to perform self-care tasks independently and that there was no objective findings that occupational therapy was required.
CONCLUSION
20For these reasons, I find W.H. is entitled to the ear plugs, sunglasses, long-handled devices (shoe-horn, tub scrubber, toilet brush, shampooer, pooper scooper, shoes laces) and the laundry pedestals as they are reasonable and necessary. Interest is payable on these benefits pursuant to s. 51 of the Schedule.
21W.H. is not entitled to the treatment plans for physiotherapy and the chronic pain program, as they are not reasonable and necessary. I find she is not entitled to the OT services or the remaining devices (sock aid and shower seat).
Released: May 13, 2019
___________________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- There was a "Pain Management Consultation Record" included from Hamilton Health Sciences, however, the notes are largely illegible and no explanation was provided in submissions.
- The note indicates that W.H. struggles with shopping, cooking and cleaning but the OT Report confirms that she receives assistance with these tasks.