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:
BCO
Applicant
and
Northbridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
For the Applicant: M. Aftab Alam, Counsel
For the Respondent: Bevin Shores, Counsel
HEARD in Writing: February 18, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant, “BCO”, was involved in an automobile accident on March 7, 2014, (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, Northbridge Insurance (“Northbridge”), denied certain claims for benefits.
2BCO’s physical injuries included a fracture of his left (non-dominant) thumb, sprain/strain injuries to his neck and contusions on both shoulders and left thigh, and an unspecified injury to his right knee.
3Northbridge has deemed BCO to be catastrophically (“CAT”) impaired as a result of the accident.
DISPUTED BENEFITS
4The issues before me are as follows:
- Is BCO entitled to a medical benefit of $2,249.60 for physiotherapy recommended by a Centennial Rehab Centre, in a treatment plan (“OCF-18”) submitted on December 7, 2015?
- Is BCO entitled to a medical benefit of $1,598.58 for physiotherapy recommended by a Centennial Rehab Centre, in an OCF-18 submitted on March 18, 2015?
- Is BCO entitled to a medical benefit of $1,134.95 for physiotherapy recommended by a Centennial Rehab Centre, in an OCF-18 submitted on April 4, 2015?
- Is BCO entitled to a medical benefit of $4,044.50 for physiotherapy recommended by We Care Rehab Clinic, in an OCF-18 submitted on June 12, 2017?
- Is BCO entitled to be paid interest on overdue benefits payments?
FINDINGS
5I find that BCO has not proven that he is entitled to any of the benefits in dispute. His appeal is denied and the issue of interest does not arise.
ANALYSIS
Background
6Sections 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
7As noted, BCO is CAT impaired as a result of the accident. BCO’s CAT determination was based on psychological impairment.
Is BCO entitled to medical benefits for physiotherapy?
8The bulk of BCO’s submissions consists of confirming the observations and diagnoses of persons preparing the disputed OCF-18s and the conclusion he draws from these that “therefore the OCF-18s were reasonable and necessary.” These are supplemented by clinical notes and records (CNRs) from BO’s family physician and service providers at treating clinics.
9BCO also relies on similar observations and diagnoses of medical experts such as: Dr. Tajedin Getahun, orthopedic surgeon3, and Dr. J.A. Nathanson, DC4 -- who found chronic pain. Again, he states that these show that the disputed OCF-18s are reasonable and necessary.
10BCO urges me to give little weight to the insurer’s examination (IE) reports submitted by Northbridge as the basis for denial. He argues that they ignored his pain complaints and diagnoses and were therefore invalid. In addition, BCO argues that finding of “maximal medical recovery” (MMR) by Dr. A. Oshidari, physiatrist, is invalid because the doctor acknowledged that his right thumb would require further treatment.
11Northbridge denied all four disputed OCF-18s because, in its view, BCO has simply failed to demonstrate that physiotherapy is reasonable and necessary.
12In addition, Northbridge relies on an insurer’s examination report (IE) by Dr. A. Oshidari, physiatrist, dated July 26, 2016, which includes that BCO had reached maximal medical recovery (MMR) with respect to the injuries addressed by these OCF-18s. Dr. Oshidari did, I note, state that further “physical intervention” would be needed for the left thumb – the nature of this was unspecified.
13In relation to issue 4, Northbridge also cites an IE by Dr. Samuel Soriano, orthopedic surgeon, dated August 25, 2017 in which the medical assessor recommended that "treatments should be discontinued at this time, as I think they are not likely to have any further therapeutic benefit for him, and if anything, is likely to propagate his non-organic symptoms."
14BCO urges me to give light weight to the conclusions of Northbridge’s IE assessors because:
i. “Dr. Oshidari does not give any objective reasoning for MMR” and his “MMR opinion was merely speculative and only an assumption” because “no weightage [sic] was given to [BCO’s] complaints of ongoing pain and limitations that Dr. Oshidari found to be correct and existing at the time of assessment.”
ii. Dr. Oshidari’s opinion that BCO’s left thumb would require further treatment negates his conclusion that BO’s claims are not reasonable and necessary on the basis of MMR.
iii. Dr. Soriano neglected BCO’s pain complaints in concluding that physical treatments should be stopped.
15I find that BCO has not met the onus on him to prove that the physiotherapy he seeks is reasonable and necessary, because:
i. BCO’s description of injuries do not in themselves prove that the required treatment plans are reasonable and necessary. BCO’s submissions mention pain relief as a goal of the OCF-18s, but provide little analysis of the basis for finding that this goal will be achieved, especially in light of the psychological components of BO’s pain complaints noted in all of the expert medical reports.
ii. BCO’s description of injuries do not in themselves prove that MMR has not been reached, as his submissions suggest. MMR does not imply “asymptomatic” or “all better”: MMR means that no more improvement is likely to be achieved from treatment. Assessors’ acknowledgement of BO’s pain complaints does not preclude a finding that he has achieved MMR, for reasons I detail below.
iii. I prefer the evidence of Drs. Oshidari and Soriano that BCO has reached MMR with respect to his musculosketal injuries – the thumb excepted – and that as a result the recommended treatments were not reasonable and necessary. Both reports were thorough and gave persuasive reasons.
iv. I reject BCO’s assertion that Drs. Oshidari and Soriano failed to account for his pain complaints. They did nothing of the kind. Their conclusions were based in part on their findings that BCO’s complaints had a strong non-organic origin and character. They found that, again with the thumb excepted, physiotherapy modalities would not help BCO. Their conclusions are appropriately applied by Northbridge with respect to the disputed treatment plans, and are persuasive to me.
v. My review of CNRs from two of BCO’s providers, We Care Rehab (over a number of visits in summer 2018) and Centennial Rehab Centre (from February 2015 to May 26, 2016) indicate that progress in achieving functional goals was static, although some pain relief was noted. I find that this reinforces IE opinions that MMR had been achieved with respect to BCO’s musculoskeletal injuries.
vi. The exception noted by both IE assessors with respect to BCO’s left thumb cannot, in my view, be used to overturn their findings with respect to the disputed OCF-18s. This would only be the case if the OCF-18s were focussed primarily on his thumb, which is not the case.
vii. Dr. Getahun did recommend a chronic pain program that included physiotherapy as a component. I find that this is insufficient support for the disputed OCF-18s, which focus solely on physiotherapy with no explicit reference to coordination with other components of a chronic pain program, such as counselling.
16BCO’s appeal is denied.
SUFFICIENCY OF NOTICE
17Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the OCF-18 it will approve or refuse to pay. The notice must include an explanation of the medical and all other reasons why the insurer considers any proposed OCF18 not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan. The notice is commonly referred to as an Explanation of Benefits (EOB).
18Under s. 38 (11) of the Schedule, if the insurer fails to provide the insured person with notice in accordance with s. 38 (8), then it must pay for everything set out in the OCF-18 starting on the 11th day after the insurer received the application for benefits until the day the insurer issues a notice that complies with s.38.
19BCO alleges that Northbridge failed to provide medical reasons in its notices of denial (“OCF-9s”) for the disputed OCF-18s.
20My review of the OCF-9s indicates to me that they were sufficient:
i. The initial OCF-9 dated December 14, 2015 indicated that Northbridge needed a second opinion on the claimed OCF-18s and that it was arranging IEs to address that need.
ii. Subsequent OCF-9s refer to and enclose the IEs upon which Northbridge relied in refusing to pay the disputed OCF-18s.
CONCLUSIONS
21BCO’s appeal is denied, and accordingly interest is not owing to him, as the disputed benefits are not payable.
Released: June 04, 2019
_________________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635
- S.25 assessment report by Dr. T.Y. Getahun, dated December 9, 2017.
- Functional Abilities/Impairment Assessment report, dated November 8, 2017