Tribunal File Number: 18-003753/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:
[Z. P.]
Applicant
and
Guarantee Company of North America
Respondent
DECISION AND ORDER
ADJUDICATOR:
Sandeep Johal
APPEARANCES:
For the Applicant:
Sahereh Baghbani, Paralegal
For the Respondent:
Bradley M. Remigis, Counsel
Heard in writing on:
March 16, 2019
Cross-Examination by Teleconference:
April 11, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in an automobile accident on June 16, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was a driver in a vehicle travelling through an intersection when another vehicle making a left-hand turn, turned into the applicant’s lane and collided with the applicant’s vehicle.
3The applicant suffered impairments as a result of the accident including physical pain, psychological impairments and physical limitations.
4The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
5The Tribunal issued an Order, dated November 13, 2019, for additional submissions with respect to missing documents and to clarify the discrepancy between the amounts in dispute as listed in the case conference order dated May 29, 2018 and what was stated in the applicant’s submissions.
6On January 10, 2020, the Tribunal received additional submissions which clarified that the discrepancy between the amounts in dispute was due to the fact that the Tribunal listed the invoice balance that was remaining in dispute whereas the applicant listed the full amount proposed.
ISSUES TO BE DECIDED
7The following are the issues to be decided as set out in the case conference order dated May 29, 2018:
a. Is the applicant entitled to the payment for the cost of examination in the amount of $2,200.00 for a psychological assessment recommended by Dr. Ming Che Yeh of Complex Care Medical & Health Services in a treatment plan dated September 6, 2016, and denied by the respondent on September 19, 2016?
b. Is the applicant entitled to a medical benefit in the amount of $1,800.00 for physiotherapy services recommended by Dinna Icatar of HealthMax Physiotherapy Scarborough in a treatment plan dated December 4, 2015, and denied by the respondent on April 8, 2016?
c. Is the applicant entitled to a medical benefit in the amount of $842.05 for physiotherapy services recommended by Dr. Dinna Icatar of HealthMax Physiotherapy Scarborough in a treatment plan dated December 9, 2016, and denied by the respondent on January 25, 2017?
d. Is the applicant entitled to payment for the cost of examination in the amount of $399.50 for an initial physiotherapy assessment and report recommended by Elli Luy of C.E.S. Physiotherapy & Rehab in a treatment plan dated July 24, 2017, and denied by the respondent on August 8, 2017?
e. Is the applicant entitled to a medical benefit in the amount of $948.15 for physiotherapy services recommended by Dr. Yongsheng Li of C.E.S. Physiotherapy & Rehab in a treatment plan dated July 24, 2017, and denied by the respondent on August 8, 2017?
f. Is the applicant entitled to payment for the cost of examination in the amount of $369.21 for an initial chiropractic assessment and report recommended by Dr. Charles Yip of C.E.S. Physiotherapy & Rehab in a treatment plan dated August 8, 2017, and denied by the respondent on August 15, 2017?
g. Is that applicant entitled to a medical benefit for chiropractic services in the amount of $2,235.99 recommended by Dr. Charles Yip of C.E.S. Physiotherapy & Rehab in a treatment plan dated August 4, 2017, and denied by the respondent on September 25, 2017?
h. Is the applicant entitled to payment for the cost of obtaining clinical medical notes and records from Complex Care Medical in the amount of $189.61?
i. Is the applicant entitled to payment for the cost of obtaining clinical medical notes and records from HealthMax Physiotherapy Scarborough Branch in the amount of $200.00?
j. Is the applicant entitled to payment for the cost of obtaining clinical medical notes and records from HealthMax Physiotherapy Thornhill Branch in the amount of $200.00?
k. Is the applicant entitled to payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment recommended by Dr. Gregory Karmy of 101 Physio in a treatment plan dated September 1, 2017, and denied by the respondent on October 11, 2017?
l. Is the applicant entitled to interest on any overdue payment of benefits?
8In the applicant’s written submissions, he has withdrawn issues h, i, and j above about the cost of obtaining clinical medical notes and records and therefore they will not be addressed as issues in dispute for the purposes of this hearing.
9In the respondent’s hearing submissions, it has agreed to pay for issues a and c above and as a result those issues in dispute will not be discussed as part of this decision.
10For clarity, the remaining issues in dispute are as follows:
a. Medical benefit for physiotherapy in the amount of $1,800.00;
b. Medical benefit for physiotherapy in the amount of $948.15;
c. Medical benefit for chiropractic treatment in the amount of $2,235.99;
d. Cost of examination for a physiotherapy assessment in the amount of $399.50;
e. Cost of examination for a chiropractic assessment in the amount of $369.21;
f. Cost of examination for a chronic pain assessment in the amount of $2,200.00; and
g. Interest on any overdue payment of benefits.
RESULT
11Based on the totality of the evidence before me, I find all the treatment plans and cost of examinations in dispute for this hearing to be reasonable and necessary.
12The applicant is entitled to interest on the overdue payment of benefits in accordance with the Schedule including issues a and c listed above in paragraph 7, which the respondent agreed to pay in accordance with its responding submissions.
ANALYSIS
Is the applicant entitled to physiotherapy treatment in the amount of $1,800.00?
13The respondent submits the applicant is statute barred from proceeding with this issue as the applicant did not dispute the denial of this treatment plan within 2 years as set out in section 56 of the Schedule.
Does section 7 of the LAT Act apply to extend the limitation period to allow the applicant to dispute the denial of the physiotherapy treatment plan?
14Both parties agree that the denial of this treatment plan was April 8, 2016 and the applicant did not commence an application to dispute the denial with the Tribunal until April 26, 2018. According to the applicant, the delay is 19 days outside the 2-year limitation window.
15The applicant submits and relies upon section 7 of the Licence Appeal Tribunal Act2 (“LAT Act”) and the reconsideration decision of the Executive Chair, Linda P. Lamoureux in A.F. v North Blenheim Mutual Insurance Company 3 for an extension of the limitation period.
16The respondent makes no submissions with respect to section 7 of the LAT Act or the North Blenheim decision.
17After the submissions were received for this hearing, a decision from Adjudicator Neilson was issued on September 5, 2019 whereby her finding was that section 7 of the LAT Act does not apply to matters under the Schedule. According to that decision, the Adjudicator’s opinion was that the Executive Chair in North Blenheim was not asked to consider the definition of an “Act” and “regulation” and whether the words “under any act” in section 7 does not mean a regulation.
18However, I prefer the opinion of the Executive Chair and the reasoning in North Blenheim that the legislature is presumed to know the law and not make mistakes (Sullivan on the Construction of Statutes, 5th ed., p. 245)4. Section 7 of the LAT Act was not repealed or amended when the Tribunal assumed jurisdiction for matters under the Schedule as of April 1, 2016 and, as a result, I agree with the Executive Chair that section 7 of the LAT Act does apply.
19In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:
a. The existence of a bona fide intention to appeal within the appeal period;
b. The length of the delay;
c. Prejudice to the other party; and
d. The merits of the appeal.
20The applicant has the onus to establish that the justice of the case requires the granting of the extension, but she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
a. The existence of a bona fide intention to appeal within the appeal period
21With respect to the first factor, the applicant has not provided submissions on the reasons for the delay or whether there was a bona fide intention to appeal within the appeal period.
b. The length of the delay
22The second part of the test is the length of the delay. In this case, it is 19 calendar days. A delay of this kind would not, in my opinion, be considered a significant delay.
c. Prejudice to the other party
23The third part of the test is the prejudice to the other party. The applicant submits there is no prejudice to the respondent and the respondent does not provide any submissions with respect to any prejudice it may have suffered a result of a 19-day delay in disputing this treatment plan. As a result, I find this factor to weigh in favour of the applicant.
d. The merits of the appeal
24The applicant’s position is that treatment plan is clearly reasonable due to the nature of the proposed treatment, the objectives and goals it sets to achieve and based on the applicant’s documented injuries. Furthermore, the respondent denied the treatment plan based on the applicant’s injuries being under the definition of the Minor Injury Guideline (“MIG”) and the respondent subsequently removed the applicant from the MIG.
25The fourth factor does not require an in-depth analysis of the merits of the appeal. Based on the submissions and the fact that the applicant was removed from the MIG, there would appear to be some merit in the applicant’s submissions. I find that this factor weighs in favour of the applicant.
The justice of the case
26Taking the four factors into account and the fact that respondent would suffer minimal, in any, prejudice as a result of a 19-day delay in disputing the denial, it is my finding that the justice of the case favours an extension of the limitation period.
27I will now turn to discuss whether the treatment plan is reasonable and necessary.
Entitlement to physiotherapy treatment in the amount of $1,800.00
28I find the applicant to be entitled to this treatment plan for physiotherapy treatment for the following reasons.
29The treatment plan in dispute lists the applicant’s injuries as “sprain and strain of cervical spine, thoracic spine and lumbar spine. Dislocation, sprain and strain of joints and ligaments of shoulder girdle, knee and at the ankle and foot level as well as other chronic pain and nonorganic sleep disorders”.5
30The description of the treatment being proposed is listed in part 12 of the treatment plan and it states 10 sessions of “physical rehab” and 8 sessions of “chiropractic treatment” and 10 sessions of “active therapy”.6 Active therapy is further defined to include stretching and strengthening exercises to affected areas, exercises to improve dynamic stability and core activation, improvement in endurance, strength, gait and proprioception exercises.7
31This treatment plan was proposed by the applicant’s chiropractor on December 4, 2015. According to the clinical notes and records of the applicant’s family doctor from August 11, 2015 through to December 23, 2015, the applicant visited his family doctor on five different occasions. The clinical notes and records state that the applicant had complaints of a painful left shoulder, internal and external rotations were slightly compromised, and there was positive impingement.8 The family doctor recommended he continue with physiotherapy.
32The clinical notes and records of the family doctor continue on August 26, September 28, October 27 and December 23, 2015 with notations of a tender left shoulder, myofascial pain in the neck, left shoulder and back and left shoulder rotator cuff tendinitis with recommendations to continue physiotherapy.9
33The respondent submits the treatment plan is not reasonable and necessary and relies upon the insurer examination (“IE”) report of Dr. Williams. According to the respondent’s submissions, Dr. Williams opined the treatment plan is not reasonable or necessary due to the applicant’s physical injuries being minor in accordance with the MIG.10
34However, by way of a letter to the applicant dated July 26, 2016 (three months after denying the treatment plan), the respondent removed the applicant from the MIG.11 Thereafter, to continue to deny the treatment plan based on the MIG in my opinion is not a persuasive argument.
35As a result of the above and of the applicant’s numerous visits to his medical practitioners with complaints of his shoulder pain, knee and back pain and the family doctor’s recommendation for treatment, I find on a balance of probabilities that the treatment plan for physiotherapy treatment in the amount of $1,800.00 is reasonable and necessary.
Is the applicant entitled to medical benefit for physiotherapy treatment in the amount of $948.15 and chiropractic treatment in the amount of $2,235.99?
36I find that both treatment plans are reasonable and necessary for the following reasons.
37The applicant submits that as a result of the continuous denials, he attended a second physiotherapy clinic seeking further treatment and the clinic should be entitled to review the applicant’s file and to properly and personally assess his condition and injuries in order to properly treat him. The proposed goods and services are for file review, initial assessment, initial report and the completion of the OCF-18 (treatment plan).
38The applicant further submits that the respondent has not approved any treatment beyond the $3,500 MIG limit despite the applicant’s injuries as being outside of the MIG. Furthermore, the goals of this treatment plan are to reduce pain, increase strength, increase range of motion and to prevent further deterioration.
39The respondent submits the applicant’s family doctor was advising him to complete home exercises and also relies on the opinion of the IE assessor, Dr. Williams who opines that the applicant has achieved maximal medical recovery and there would be no further therapeutic benefit from continued facility-based care.
40According to the cross-examination of Dr. Williams, the applicant was seen by him on two occasions, once in December 2015 and then again on August 25, 2017. Dr. Williams diagnosed the applicant with post-traumatic headaches, sprain and strain of the cervical spine, thoracic spine, left shoulder, right shoulder, lumbar spine and left knee strain.12
41The treatment plan proposes an active functional restoration program and massage therapy to be completed in part by a chiropractor, Dr. Rahim and a physiotherapist Amit Patel along with [massage] therapists over the course of 8 weeks.13
42A review of the applicant’s family doctor’s clinical notes and records shows the applicant attended several times after the date of the accident about pain in his shoulder, knee and back.14 In May, July and October 2017, the applicant continued to have back pain, cervical pain and shoulder pain.15 Dr. Williams also stated it would typically take 6-12 weeks for a person to recover from these injuries.
43Approximately 20 months later in August 2017, Dr. Williams assessed the applicant again and came to the same diagnosis as before in terms of the applicant’s injuries and opined that the applicant had achieved maximal medical recovery and therefore would not benefit from continued facility-based rehabilitation.
44When asked about the 6-12 week recovery time and the fact that after 20 months the applicant still had the same complaints of pain and Dr. Williams’ diagnosis was the same as his first assessment of him, Dr. Williams agreed that this was an anomaly and is not something that would not occur often.16
45The applicant visited his family doctor several times between February 2017 and December 2017and even though his doctor did not specifically recommend facility-based treatment, he was noted to be suffering in pain and was prescribed medication.17
46The reduction of pain for the applicant is, in my opinion, a reasonable and necessary goal and he is entitled to choose treatment that would help him do that. The treatment plan’s goal is to help alleviate pain, increase strength and range of motion. As a result, I find the treatment plan for physiotherapy in the amount of $948.15 and the treatment plan for chiropractic treatment in the amount of $2,235.99 to be reasonable and necessary.
Is the applicant entitled to the payment for the cost of examinations for physiotherapy and chiropractic treatment?
47I find that the physiotherapy cost of examination to be reasonable and necessary for the following reasons.
48The applicant submits a physiotherapy clinic is entitled to accurately and personally assess a patient from which the clinic would produce a report because of new injuries that have emerged which would require an assessment in order to determine the course of treatment.
49The applicant further submits he attended a second physiotherapy clinic because he required further treatment and due to the ongoing denial of the first clinic’s treatment plans. Furthermore, the applicant submits the goals of the assessment are to reduce pain, increase strength, increase range of motion and prevent further deterioration in his condition.
50The respondent submits that the treatment plan included a consideration of psychological impairment and that a physiotherapist and an acupuncturist are not qualified to opine on psychological impairments as this would be outside their scope of practice.
51The respondent further relies on the opinion of its IE assessor, Dr. Williams who opines that at greater than two years post accident, the applicant was felt to have achieved maximum medical recovery and would receive no therapeutic benefit from continued facility-based medicine.
52I agree with the respondent that a psychological impairment is not within the scope of practice of a physiotherapist. However, even though there were psychological symptoms that were listed under the “Injury and Sequela Information (Extended)” section, there was no recommendation for treatment being proposed for those impairments.
53I disagree with Dr. Williams’ conclusion based on the diagnosis he makes of the applicant’s injuries and because of the medical records of the applicant’s family doctor that notes continuous complaints of pain in his neck, shoulders and back. The applicant’s family doctor notes that the applicant has chronic myofascial pain.18 He has consistently repeated his pain complaints over a period of time and Dr. Williams testified that the applicant experiences relief with physiotherapy and massage therapy.19 Dr. Williams also testified that facility-based treatment is “…more to keep their level of current function the way it is.”20 Although, that was one of the reasons Dr. Williams thought the treatment plan was not reasonable and necessary, I would not agree.
54A person is entitled to treatment that would allow them to maintain their current level of function and to provide pain relief. The Tribunal jurisprudence has established that pain relief is a reasonable and legitimate goal of treatment and the applicant is entitled to seek an assessment in order to determine what treatment would help achieve that goal.
55As a result, I find on a balance of probabilities, that the cost of assessments for physiotherapy and chiropractic treatment are reasonable and necessary.
Is the applicant entitled to the payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment?
56The clinical notes and records of the family doctor have noted complaints of pain in his shoulder, neck and back since shortly after the accident in June 2015 and almost on a monthly basis through to the time of the request for the chronic pain assessment dated September 1, 2017.
57Dr. Williams saw the applicant twice in-person, once in December 2015 and then again in August 2017. His diagnosis was the same both times.21 On the first visit in December 2015, Dr. Williams noted that the applicant’s injuries to be a sprain and strain of the cervical spine, thoracic spine, left and right shoulder, lumbar spine and left knee.22 He noted that the applicant should recover in 6-12 weeks from these injuries. 23
58Two years after the accident and twenty months after Dr. Williams first in-person IE assessment of the applicant, he diagnosed him with the same injuries. When asked about this during his cross-examination, Dr. Williams agreed that an anomaly like this is something that does not occur often.24 In my opinion, this fact alone should warrant entitlement to an assessment to determine what course of treatment might be beneficial with respect to the applicant’s pain complaints that all medical practitioners agree the applicant continues to have several years post accident.
59On a balance of probabilities, I find that the consistent reports of pain documented by all medical practitioners the applicant has been seen by including the respondent’s IE assessor who have noted the same reports of pain, makes this assessment to determine further treatment related to his pain complaints reasonable and necessary.
INTEREST
60In its responding submissions, the respondent agreed to pay for issues a and c in paragraph 7 above. As a result of the overdue payment, the respondent is liable to pay interest on these two approved treatment plans in accordance with the Schedule.
61The applicant is entitled to interest on the overdue treatment plans and cost of examinations in accordance with the Schedule found to be reasonable and necessary as a result of this hearing.
ORDER
62For the reasons outlined above, I find that the applicant is entitled to:
a. Medical benefit for physiotherapy in the amount of $1,800.00;
b. Medical benefit for physiotherapy in the amount of $948.15;
c. Medical benefit for chiropractic treatment in the amount of $2,235.99;
d. Cost of examination for a physiotherapy assessment in the amount of $399.50;
e. Cost of examination for a chiropractic assessment in the amount of $369.21 ;
f. Cost of examination for a chronic pain assessment in the amount of $2,200.00; and
g. Interest on any overdue payment of benefits including issues a and c listed in paragraph 7 above in accordance with the Schedule.
Released: February 10, 2020
___________________________
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- 1999, S.O. 1999, c. 12, Sched. “LAT Act”
- 2017 CanLII 87546 (ON LAT) “North Blenheim”
- Ibid at paragraph 19.
- Applicant’s written submissions at Tab 14 page 6.
- Ibid, at page 5.
- Ibid, at page 7.
- Applicant’s written submissions Tab 15. CNR of August 11, 2015.
- Ibid, CNR’s dated August 26, September 28, October 27 and December 23, 2015.
- Hearing Submissions of the Respondent at paragraph 38.
- Applicant written submissions Tab 10 at page 2.
- Transcript of Dr. Williams Dated April 11, 2019 at page 22.
- Applicant’s written submissions and evidence, Tab 7, part 12 of the OCF-18.
- Applicant’s written submissions and evidence, Tab 13 at page 2.
- Ibid at pages 12-13.
- Supra note 12 at page 33.
- Applicant written submissions at Tab 17 CNR’s dated February 27 and March 22, 2017.
- Clinical Notes and Records of Family Doctor dated May 10, 2016 through to April 19, 2018.
- Transcript of Dr. Ryan Williams dated April 11, 2019 at page 20.
- Ibid at page 58.
- Ibid at page 32.
- Ibid at page 22.
- Ibid at page 32.
- Ibid at page 33.