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:
[B. A.]
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Eleanor White, Vice Chair
APPEARANCES:
For the Applicant:
[B. A.], Applicant
Jordan Palmer, Counsel
For the Respondent:
Aviva Insurance Canada
Amanda Faulkner, Counsel
HEARD:
In Writing on November 16, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on May 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant sustained injuries during a high speed rear-end collision that caused his vehicle to spin out of control and end up in a ditch. His vehicle was written off and he sought treatment for his injuries. The applicant also applied for an income replacement benefit as he did not feel able to return to work. That application started a process of normal inquiries from the insurer for employment information in order to determine if he qualified for the benefit and how much he could be paid. The applicant subsequently applied to the Tribunal when he was denied certain benefits due to a variety of reasons. This decision examines the facts and evidence and decides how the dispute is resolved.
ISSUES IN DISPUTE
3In the applicant’s submissions, the following issues are submitted for adjudication:
a. Are the following treatment plans from Physio Art Rehab for physical treatment or services both reasonable and necessary and payable:
i. $3,452.50 denied on November 13, 2017,
ii. $3,293.00 submitted on April 9, 2018 and denied on May 15, 2018,
iii. $2,172.64 submitted on July 24 and denied on July 27, 2018,
iv. $1,250.00 submitted on August 31, 2018 and denied on December 21, 2018, and
v. $2,993.00 submitted on September 25, 2018 and denied on October 9, 2018.
b. What is the quantum of the IRB to be paid to the applicant for the period of May 18, 2017 up to September 21, 2018 (the date of stoppage of the benefit)? Is the applicant entitled to interest on the balance of monies due for that period?
c. Is the applicant entitled to reinstatement of the IRB to date and ongoing?1
4Issue number 3 (a) (i) was withdrawn by the applicant during the case conference on July 5, 2018 and, although included in the applicant’s submissions, is not included for adjudication in this proceeding.
RESULTS
5The applicant failed to submit any of the treatment plans in question. He did include treatment plans for two undisputed issues. The respondent however, did include in its submissions, within their section 44 assessors’ reports; sufficient direct excerpts from the treatment plans in review to allow me access to the details of the items recommended and their costs in the OCF-18s in dispute. I make the following findings:
a. find the treatment plan in the amount of $3,293.00 reasonable and necessary and thus payable:
i. $3,293.00 for physiotherapy treatment and two braces submitted by Physio Art Rehab on April 9, 2018 and denied on May 15, 2018.
b. I do not find the following plans to be reasonable and necessary and therefore do not find them payable:
i. $2,993.00 for physiotherapy treatment recommended by Physio Art Rehab, submitted September 25, 2018 and denied on October 9, 2018,
ii. $1,250.00 for orthotics and ‘braces’ submitted on August 30, 2018 and denied on September 21, 2018, and
iii. $2,172.00 for massage therapy on July 24, 2018 and denied on July 27, 2018.
c. Subsequent to the submissions of both the applicant and respondent, there is consent on the quantum of the IRB payable up to the date of stoppage. I find the applicant entitled to the payment of interest during a portion of that time period, specifically from the date of April 27, 2018 to the date of stoppage, September 21, 2018, for reasons discussed in the analysis section of the decision.
d. I find that the applicant is entitled to IRBs at the same quantum, from the date of stoppage, September 21, 2018 up to the two-year anniversary of the date of loss, May 11, 2019. The applicant is entitled to the payment of interest for that period as well. The applicant is substantially prevented from engaging in his pre-accident tasks of employment, due to the median nerve neuropathy. As the application to the Tribunal and all submissions, as well as the date of the hearing all fall before the 104-week anniversary of the date of loss, my findings pertain only to the pre-104-week income replacement benefit.
ANALYSIS
MEDICAL BENEFITS
Are the treatment plans recommended by Physio Art Rehab considered to be reasonable and necessary for the applicant’s recovery from injuries sustained in the accident of May 11, 2017?
Is the OCF-18 in the amount of $3,293.00 considered reasonable and necessary and therefore payable?
6In November 2017, Dr. Kopyto, conducted a section 44 IE of the applicant in response to the submission of a previous treatment plan. He reported that despite the evidence of a ‘remote’ or old avulsion fracture in the 5th toe on the left foot and imaging showing mild swelling in the left foot after the accident, as well as a partial tear in one of the tendons of the rotator cuff in the left shoulder. Dr. Kopyto found that these injuries qualified within the Schedule’s definition of ‘minor injuries’ and that the applicant’s treatment should be conducted within the Minor Injury Guideline. This guideline allows access to an applicant for treatment up to $3500.00 if their injuries are compatible with the definition of ‘minor injuries’ under the Statutory Accident Benefits Schedule (SABS).
7The currently disputed treatment plan submitted on April 9, 2018, recommends 28 treatments including therapy and physical rehabilitation over an 8-week period. It also includes the provision of two braces (one assumes for the wrist(s)). Prior to the submission of this plan, the applicant had attended a neurological examination and EMG testing with Dr. M. Chun, neurologist, referred by his family doctor. Dr. Chun diagnosed median nerve neuropathy on the left upper extremity. The diagnosis led the family doctor, Dr. Gillian Stanley, to recommend renewed physiotherapy for the left median nerve neuropathy, as submitted in a script dated March 1, 2018 and the neurologist recommended the use of braces. This subsequent disputed treatment plan was denied by the insurer as it exceeded the limits of the Minor Injury Guideline (MIG), Dr. Kopyto was asked to conduct another section 44 IE to evaluate the treatment plan.
8For Dr. Kopyto’s subsequent assessment report, the documentary evidence was presented in two parts due to digital corruption of two specialist reports presented for Dr. Kopyto’s review and their subsequent re-issuance. The first report, denying the plan, was dated May 15, 2018. The second report, as an addendum, was dated May 30, 2018 and included Dr. Kopyto’s response to Dr. Chun’s neurology report, describing the median nerve neuropathy. As a result of his review of the neurologist’s findings, Dr. Kopyto changed his position and excluded the applicant from the MIG. However, his opinion regarding the treatment plan’s recommendations was unchanged in that he found no impairment to the applicant’s musculoskeletal testing as a result of injuries sustained in the accident. He maintained his position that the treatment itself was not reasonable and necessary.
9The case law has found treatment to be reasonable and necessary in cases where an explanation of the benefit of a recommended treatment substantiates clinical goals and progress. The respondent cites the case of F.B. v. Dominion of Canada General Insurance Company, 2017 CanLII 33680 (ON LAT), which holds that the applicant has the onus to provide evidence in support of a particular clinical intervention. In this particular case, the applicant has provided a renewed prescription for therapy from the family doctor and a recommendation for the use of braces, as recommended by Dr. Chun.
10I disagree with Dr. Kopyto’s continued denial of the treatment plan. I recognize that his test results showed little impairment of typical ranges of motion, strength etc., however the neurological finding of Dr. Chun and accompanying recommendations supported by the family doctor’s renewal of a prescription for further physical treatment must be respected, particularly with respect to employment scenarios and appropriate treatment. I am aware that there was no apparent instruction regarding specific treatment in response to the neurological findings, however I expect service providers to have reviewed this new diagnosis and responded appropriately. In this particular treatment plan, I find the possibility of renewed treatment directed at the applicant’s median nerve neuropathy to be warranted and find the plan to be reasonable and necessary. I would expect any future treatment plan to contain information regarding the merit of renewed therapies with respect to the median nerve neuropathy.
Is the OCF-18 in the amount of $2,993.00, submitted September 25, 2018 considered reasonable and necessary and therefore payable?
11The applicant is seeking additional sessions of physiotherapy treatment. This plan was denied by the insurer on the basis of the section 44 IE report of Dr. Kopyto on May 30, 2018 for a similar plan. Again, the physiotherapist recommended in this plan 28 sessions of physical therapy over a 14-week period with no submitted explanation of the benefit`s derived from previous treatment. Again, the insurer depended upon the May 30, 2018 report from Dr. Kopyto stating that no further treatment was required due to the lack of discernable impairment displayed on examination of the applicant.
12The applicant has not provided persuasive evidence supporting the need for continued care. The clinic has not provided any evidence of continuing improvement due to the return to therapy recommended by the family doctor after the Dr. Chung’s diagnosis of median nerve neuropathy. Instead the applicant mistakenly writes one paragraph [21] in his submissions addressing the particulars of a different treatment plan altogether and never comments on the merits of this particular plan in dispute. Consequently, the applicant has not met his onus and I am not persuaded that this additional treatment plan is reasonable and necessary.
Is the OCF-18 in the amount of $1,250.00, submitted August 31, 2018 considered reasonable and necessary and therefore payable?
13This plan includes recommendations for orthotics and braces. The plan was denied by the insurer on December 21, 2018. The respondent included in its submissions another treatment plan dated August 24, 2018, recommending both orthotics and wrist braces. That plan was approved for the provision of orthotics in the amount of $750.00 on August 28, 2018. The wrist braces were not approved in this plan but as noted above, the recommendation for braces was previously made in the plan discussed above in the amount of $3,293.00, which I found reasonable and necessary and payable, at paragraph [10].
14I find this claim to be a duplication of previous plans submitted and approved. I do not find this treatment plan in the amount of $1,250.00 to be reasonable and necessary and thus not payable.
Is the OCF-18 in the amount of $2,172.64, submitted July 24, 2018 considered reasonable and necessary and therefore payable?
15The applicant is also making a claim for massage therapy in the disputed OCF-18 in the amount of $2,172.64 recommended by Mohamad Bakri, physiotherapist of Physio Art Rehab. Again, there is no treatment plan submitted, however the applicant, in his submissions describes this plan as one recommending massage therapy as a result of the recommendation of the family doctor, Dr. Gillian Stanley. The applicant refers in Tab 10 of his submissions to Dr. Stanley’s notes in the Health Status form accompanying his application for Ontario Disability Support Program (ODSP). In reviewing all the documents in Tab 10, I found only a prescription recommending physiotherapy for the left arm, presumably due to the finding of the neurologist of median nerve symptoms, and the doctor’s description of the applicant’s complaints, including back, neck and foot pain and a left shoulder problem. There was no direct recommendation for massage therapy. The plan in dispute was submitted on August 30, 2018 and denied by the respondent on September 21, 2018 due to the section 44 IE report of Dr. Kopyto dated May 30, 2018.
16The applicant did not produce any evidence that the renewed physiotherapy recommended by the family doctor would include 30 units of massage therapy for the treatment of a median nerve neuropathy, the injury that excluded the applicant out of the MIG. Massage therapy is known to be a very passive treatment, generally aimed at muscular complaints. Considering that it has been more than a year since the accident, the recommendation for extensive massage therapy without any recommendation for massage therapy from either the neurologist or the family doctor does not meet the onus of evidence to support the treatment plan. I also find no recommendation that would even support massage therapy for a median neuropathy. I do not find this treatment plan to be reasonable and necessary and thus not payable.
INCOME REPLACEMENT BENEFITS
What is the quantum of the income replacement benefit up to the time the benefit was stopped on September 21, 2018?
17In their submissions for the hearing, the applicant, for the first time, concurs with the respondent that the weekly amount of the IRB is $75.59 and that the amount owing for the period up to the date of stoppage is $1,882.53. The total number of weeks that the respondent agrees the applicant is entitled is a period of 69.7 weeks. At a rate of $75.59 per week – this totals $5,268.62. A lump sum payment was previously made in the amount of $3,386.09. When one subtracts the lump sum payment already paid from the total amount payable for that period of 69.7 weeks, the remaining balance payable is $1,882.53.
Is interest payable on the balance due to the applicant for the period in dispute from June 30, 2017 (date of suspension due to s. 33 requests) to September 21, 2018 (date of stoppage due to s. 44 exams)?
18I find the respondent liable for the payment of interest on the amount payable for the IRB for a ‘gap’ period up to the date of stoppage on September 21, 2018. The applicant’s initial financial information required clarification in that two OCF-2 (Confirmation of Employment) forms were presented to the insurer; one as a self-employed person driving for Uber and one as a person recently employed by Amana. Correspondence was exchanged and on June 16, 2017 the insurer made a request pursuant to section 33 of the Schedule for various pieces of information.
19The applicant was asked to clarify his income history, so the insurer could calculate the quantum of an IRB. The IRB was suspended on June 30, 2017 as insufficient documentation had been received as a result of the section 33 request. Eventually the applicant underwent an Examination under Oath (EUO) on September 27, 2018. Payroll information from Uber arrived on August 1, 2018 and a Record of Employment (ROE) was received from Amana on October 10, 2018. By this time, the IRB had been stopped on September 21, 2018 because of the section 44 assessment reports of Dr. Friesen, psychologist and Dr. Kopyto, GP, who had both found no evidence of the applicant’s inability to return to his pre-accident employment.
20The payment of interest is calculated on an overdue payment of a benefit. The quantum was eventually confirmed at $75.59 per week by the respondent after the receipt of the ROE on October 10, 2019. As some monies had been paid to the applicant in a lump sum of $3,419.25 on August 23, 2018 to prevent his eviction, the remaining outstanding is $1,882.53 for the period from date of loss up to the date of stoppage of the benefit.
21I interpret the definition of ‘overdue’ in this instance as the date on which the applicant has satisfied the section 33 request up to the date of payment. The final documentation from [ ] for monies paid to the applicant were produced by October 10, 2018; however, the respondent sought documentation regarding types of employment, both self-employment for [ ] and work as an employee with [ ], as early as June 16, 2017. The definition of overdue can be described as the period from which sufficient information was received to calculate an initial quantum of IRB up to the compensation by the insurer, whether in a lump sum or regular pay periods. Thus, I find the ‘gap’ or overdue period is from the date of provision of the income tax records on April 27, 2018 to the date of payment. I find interest is owing in accordance with the schedule.
Is the applicant entitled to the re-instatement of a pre-104-week IRB subsequent to the date of stoppage, a period from September 21, 2018 to May 11, 2019?
22The applicant’s position regarding his continuing entitlement to pre-104 IRBs, subsequent to the insurer’s stoppage of the benefit effective September 21, 2018 is as presented in his submissions as follows:
i. The applicant self-reports that he has been advised by his family doctor that he should not return to his warehouse job [ ] (if that job is even available to him);
ii. For a period, the applicant also reports that he was without a vehicle and could not resume working for [ ] as a driver, however he subsequently reported in May 2018 to Dr. Kopyto that he had resumed driving for his personal use;
iii. The applicant’s treating physiotherapist, Mohamad Bakri, completed a new OCF-3 on March 18, 2018 in which he affirmed that the applicant was substantially unable to perform the essential tasks of his employment as a result of the injuries he sustained in the accident and also defined the period within which he was making the assessing the applicant’s status as within the 104-week period from the accident. Mr. Bakri further reports on October 18, 2018 that his patient is unable to return to work due to neck, upper and lower back pain which is aggravated by prolonged sitting and that he is unable to function as an [ ] driver as he cannot adequately check for blindspots due to his neck pain and radicular arm pain, which is made worse by turning his neck;
iv. A psychological assessment was conducted by Jason Stotts, psychologist on August 16, 2018, and he diagnosed symptomology consistent with Post Traumatic Stress Disorder due to chronic pain. He differed from the opinion of Dr. Friesen, psychologist in his section 44 IE report, in that the applicant’s chronicity of symptoms undermine Dr. Friesen’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood as per the DSM – V, which is defined as time limited to under 6 months in duration; and
v. Dr. Marvin Chun, neurologist saw the applicant, referred by the applicant’s family doctor, Dr. Gillian Stanley. He examined the evidence of a partial tear of the supraspinatus tendon at the left shoulder and the applicant’s report of left shoulder, upper arm, elbow, wrist and thumb and long finger pain and numbness pain and numbness with increasing right sided similar complaints. He reviewed the EMG evidence and concluded that the applicant was experiencing a developing median neuropathy involving the left arm down across the arm and the wrist and hand. He endorsed the applicant accessing physiotherapy for the problem and cautioned the applicant about recovery.
23The respondent takes the position that the applicant does not meet the test for pre- 104 IRBs, which means that he is not seen as having a substantial inability to perform the essential tasks of his pre-accident employment, including the warehouse job [ ], or as an [ ] driver. The respondent required the applicant to attend two section 44 IEs, again to Dr. Kopyto, GP and also to Dr. Friesen, psychologist. Both assessors reported on September 19, 2018 that they found no impairment arising from the accident that disallowed the applicant from returning to either of his pre-accident employment scenarios. Dr. Kopyto did, upon receiving the report from Dr. Chun through the insurer, amend his report acknowledging the possibility of a late-onset median neuropathy over the left upper extremity, taking the applicant out of the Minor Injury Guideline, but did not alter his opinion regarding the IRB issue as he found no impairment to function within his parameters of musculo-skeletal assessment in an office setting.
24The respondent obtained surveillance through K. Wruck & Associates, reported on August 16, 2018 that showed the applicant as a passenger in another man’s truck and performing some assistive activities in a minor construction job; holding a ladder, drilling some holes in wood and helping to carry a washing machine into a home. The applicant argued he was not paid and was not ‘working’ but accompanying a friend to get out of the house and participate in a social manner with friends who were working.
25The applicant did acknowledge the report of the investigators who conducted surveillance of his activities on April 24 and 26, 2018. The report and images supported the applicant’s ability to perform physical work. The applicant stated he was not working, but instead was asked by a friend to accompany him for a couple of days to get out of the house, as he had become housebound. He maintained he was not paid by either his friend or by the homeowner for whom his friend was working.
26The respondent did not require any further investigations of the median neuropathy or seek another section 44 IE performed by a neurologist to comment on the severity of the median neuropathy on the left arm and how that would affect a return to either or his pre-accident employment situations. A corresponding neurologist’s report would have been helpful. In contrast, Dr. Kopyto maintains his opinion that the testing of ranges of motion, muscle strength and orthopaedic tests in a non-work environment are still supportive of the applicant’s ability to return to work in a warehouse setting or driving for a living, even if the median neuropathy is conceded to be an evolving situation.
27Dr. Kopyto was able to consistently observe in his assessments, that the applicant displayed unimpaired musculo-skeletal performance with respect to range of motion, palpation and standard orthopaedic testing, most within normal ranges of measurement, leading to his opinion that the applicant could return to work. The warehouse position [ ] is evidently no longer available to the applicant and it would appear to have been the more physical of the two jobs.
28I am not questioning Dr. Kopyto’s report of his findings with respect to ranges of motion and muscle testing. However, both the neurologist, Dr. Chun and subsequently, Dr. Kopyto, confirm that the neuropathy is an evolving situation that was not noted in either the family doctor’s notes or OHIP records prior to the accident (a fact acknowledged by the respondent). The evidence supports, and the section 44 assessor concedes, that these symptoms may be both late in their development however causally linked to the accident and as Dr. Chun suggests, may be evolving to include the right as well as the left upper extremity.
29The applicant reports that Dr. Stanley advises against his return to the warehouse job [ ] and I find this a reasonable position. The job is physical in nature and involves much lifting and loading. I also find that there is insufficient evidence to support his ability to return to employment as a driver for [ ], given the median neuropathy and his reported pain and restriction with head turning to check his blind spot while driving. Although the applicant self-reported that he had resumed driving for personal reasons, I find there are critical differences when one compares personal driving (voluntary aspect, duration of drive, necessity of drive) versus driving for a living, and being responsible for the well-being of paying passengers. Like the applicant’s treating physiotherapist, I am not persuaded that the applicant is able to return to employment as an Uber driver. Again, I rely, in part on Mr. Bakri’s physiotherapy report in which he states the applicant is unable to return to work due to neck, upper and lower back pain which is aggravated by prolonged sitting. He specifically notes that he is unable to function as an [ ] driver as he cannot adequately check for blindspots due to his neck pain and radicular arm pain, which is made worse by turning his neck.
30I find it reasonable to re-instate the pre-104 IRB for the period of September 21, 2018 to the second anniversary of the date of loss, May 11, 2019, with the application of interest for that period on the overdue payment of the benefit.
ORDER
1The respondent shall re-instate the IRB at the weekly quantum of $75.59 for the period of September 21, 2018 to May 11, 2019 with applicable interest for that period only, calculated appropriately using interest rates appropriate for the periods before and after the applicant’s appeal to the Tribunal to date of resolution of the issue.
2The outstanding amount of IRB for the period from the date of loss up to the date of stoppage (September 21, 2018) has been agreed to as $1,882.53. This amount represents a period of 69.7 weeks of coverage at the rate of $75.59 per week minus a lump amount already paid. This amount of $1,882.53 is now payable with an appropriate application of interest for both the pre- and post-application Tribunal) periods on that amount. As defined above in paragraph [20], the date on which the compensation is seen as ‘overdue’ is April 27, 2018; the date on which the applicant was able to provide the income tax information required by the respondent which I see as sufficient to support other documents in order to accurately ascertain the quantum of the benefit as requested on June 30, 2017.
3The respondent shall pay for the treatment plan in the amount of $3,293.00 submitted by Physio Art Rehab on April 9, 2018 and denied on May 15, 2018, in its entirety, plus interest in accordance with the schedule.
Released: August 12, 2019
___________________________
Eleanor White
Vice Chair
Footnotes
- The applicant raised and the respondent echoed the wording, an issue of “reinstatement of the IRB to date and ongoing” in their respective application and response. As the application, response, case summaries and submissions for hearing and hearing date itself preceded the 104-week post-accident period; and no direct question was raised regarding the post-104 week period, my findings consider only the entitlement to the 2 year anniversary of the date of loss.