E.C. v. RSA Insurance, 2020 CanLII 14421

Citation: E.C. vs. RSA Insurance, 2020 ONLAT 18-004576/AABS

Date: January 23, 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:

E.C.

Appellant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: Gjergji Laloshi, Paralegal

For the Respondent: Anna Kirovska, Counsel

Heard: In Writing: November 19, 2018

I. OVERVIEW

1The applicant sustained soft tissue injuries and abrasions to her right wrist, right elbow, right knee and right hip as a result of being struck by a vehicle while riding her bicycle on July 14, 2016. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent. The respondent initially denied that the applicant was entitled to the cost of an orthopaedic assessment and physiotherapy services because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s.3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline¹ (MIG). The respondent subsequently agreed that the applicant’s injuries took her out of the MIG but maintained its denial of the treatment plans in dispute.

2The respondent claims that the orthopaedic assessment is not reasonable or necessary because the applicant has already been seen by her treating orthopaedic specialist several times. The applicant claims that her treating orthopaedic specialist cannot comment on accident benefits. The respondent denies that physiotherapy treatment is reasonable and necessary because the applicant reached a plateau in her recovery. The applicant claims that it helps in her pain management.

3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) in order to resolve the issues in dispute. I must determine whether the orthopaedic assessment and the physiotherapy treatment are reasonable and necessary.

4Having reviewed the parties’ submissions and evidence, I find that the applicant is entitled to the physiotherapy services, but not the cost of the orthopaedic assessment recommended in the treatment plans in dispute.

II. ISSUES

5The issues I must decide are as follows:

i. Is the applicant entitled to payments for the cost of examinations in the amount of $4,802.50 for an orthopaedic assessment, recommended by Dr. John Theodoropoulos, orthopaedic surgeon of Allied-Med Trauma, in a treatment plan dated January 5, 2018?

ii. Is the applicant entitled to medical benefits in the amount of $2,980.00 for a physiotherapy treatment plan, recommended by Nayida Bowen, physiotherapist of Physiomed College Park, in a treatment plan dated September 19, 2017?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

iv. Is the applicant entitled to her costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith?²

III. ANALYSIS

A. Orthopaedic Assessment

6The applicant submits that the respondent did not provide the required medical reason when it denied Dr. Theodoropoulos’ treatment plan recommending an orthopaedic assessment in the amount of $4,802.50.³ Under s.38(8) of the Schedule, the respondent was required to notify the applicant of the medical reasons and all other reasons of why it denied the treatment plan. If the respondent failed to do so within ten business days of receipt of the treatment plan, it is required to pay for all the goods and services recommended in the treatment plan that were incurred by the applicant up until the required denial notice was given.⁴ If the required notice was given before any costs of the assessment are incurred, then I need to determine whether the applicant has proven that the assessment is reasonable and necessary.

7The respondent received the treatment plan recommending the orthopaedic assessment on January 5, 2018. The respondent wrote to the applicant on January 8, 2018, denying the treatment plan. The notice stated that the denial was based on the respondent’s review of the information and medical documentation provided to date. However, the respondent’s explanation ended there. The respondent did not tell the applicant what information in the medical documentation led it to deny the treatment plan. By advising where the information may be located that the respondent relies on without providing the specifics of that information, the respondent failed to comply with its obligation to provide a medical or any other reason for denying the claim. I, therefore, find that the respondent failed to provide the applicant with a medical reason for denying the orthopaedic assessment.

8There is no evidence that Dr. Theodoropoulos ever assessed the applicant. The applicant was assessed by an orthopaedic specialist, Dr. Michael West, on February 8, 2018. There was no treatment plan before me recommending an assessment by Dr. West. The applicant advised, upon my request for clarification, that she was seeking the cost of the report prepared by Dr. West. The applicant submits that Dr. West conducted the assessment recommended in the treatment plan because Dr. Theodoropoulos was not available. The Schedule states that when the proper denial notice is not given, the insurer “shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan.”⁵ The assessment that is described in the treatment plan is an orthopaedic assessment by Dr. Theodoropoulos, not by Dr. West. For this reason, I find that the applicant did not incur the cost of an orthopaedic assessment by Dr. Theodoropoulos as described in his treatment plan before proper notice went out. This means that Dr. West’s assessment is not payable under s.38(11) of the Schedule. Therefore, I must determine whether an orthopaedic assessment as recommended by Dr. Theodoropoulos, and conducted by Dr. West, is reasonable and necessary.

9The respondent submits that the assessment is a duplication of services because the applicant was seen by her treating orthopaedic surgeon, Dr. Tim Dwyer, on referral from her family physician. Dr. Dwyer has been following the applicant for her shoulder and a right ankle injury since May 26, 2015. On August 8, 2015, she asked Dr. Dwyer to refer her to someone for her right hip and back complaints that arose from a previous bicycle accident she had on July 8, 2015. Dr. Dwyer at that time recommended that she give it some time to see if matters resolve. Dr. Dwyer saw the applicant on August 15, 2016, for her complaints of right sided wrist, knee, hip and back pain that arose as a result of the subject motor vehicle accident. He recommended physiotherapy and was going to see her again in six weeks. Therefore, I agree with the respondent. The request is a duplication because the applicant is being followed by and has already been seen by an orthopaedic surgeon for her accident related injuries.

10The applicant submits that the purpose of the requested orthopaedic assessment is to have the doctor provide an opinion with respect to her diagnosis, prognosis for recovery, and any treatment recommendations that would give her the best chance of a recovery. There is no evidence to support this submission. No purpose or goal is listed in Dr. Theodoropoulos’ treatment plan other than to undergo an orthopaedic assessment.

11The applicant submits that Dr. Dwyer cannot comply with the goals of giving a diagnosis, prognosis and treatment recommendations. The applicant relies on the Tribunal’s decision in 16-002568 v. Aviva Insurance⁶, which held an orthopaedic assessment by someone other than the applicant’s OHIP funded orthopaedic assessor was found to be reasonable and necessary. In that case, the respondent relied on one consultation note by the OHIP funded orthopaedic assessor that stated that the applicant’s the pain was likely related to residual soft tissue healing. The purpose of the assessment in 16-002568 v. Aviva was to investigate the possibility of ongoing musculoskeletal injuries and recommend an appropriate course of treatment. The Tribunal determined that there was no compelling evidence that the OHIP doctor could provide the type of assessment recommended in the treatment plan. That case is distinguishable because Dr. Theodoropoulos’ treatment plan does not list any goal or purpose for the assessment. In addition, there is evidence before me that Dr. Dwyer could provide an assessment that addresses the applicant’s diagnosis, prognosis, and treatment recommendations. His consultation report dated August 18, 2015 does just that.

12The applicant submits that Dr. Dwyer cannot provide an independent medical opinion as required by the AMA Guidelines because of the physician-patient relationship. I disagree that physician-patient relationship is a barrier. To be payable, an assessment under s.25 (1)3 of the Schedule must be necessary for reviewing and approving a treatment and assessment plan under section 38. There is nothing in the Schedule that requires a s.25 assessment to be conducted by an independent assessor instead of a treatment provider. I do not see how the AMA Guidelines play any role. Assessments under s. 25(1)3 of the Schedule are often conducted by treating health practitioners.

13For these reasons, I do not find that the applicant has satisfied her burden of showing that, on a balance of probabilities, the orthopaedic assessment proposed by Dr. Theodoropoulos is reasonable and necessary. Accordingly, the applicant’s claim for $4,802.50 for an orthopaedic assessment by Dr. Theodoropoulos recommended in his treatment plan dated January 5, 2018 is denied.

B. Physiotherapy and Chiropractic Services

14The respondent is required to pay for all reasonable and necessary expenses incurred by the applicant for chiropractic and physiotherapy services.⁷ Therefore, I must determine whether the physiotherapy and chiropractic services recommended by Nayida Bowen are reasonable and necessary.

15The respondent relies on 17-001007/AABS v Aviva,⁸ which determined that the reasonableness and necessity of treatment must be held to an established standard which requires the following:

i. The treatment goals as identified are reasonable;

ii. The treatment goals are being met to a reasonable degree; and

iii. The overall costs of achieving these goals are reasonable.

16I agree with the description in 17-001007/AABS v Aviva of what “reasonable” in s.15 of the Schedule means. A treatment plan that describes fees that come within the maximum fees allowed by in the Professional Services Guidelines⁹ or whether there is a duplication in the services are factors to consider in determining whether the overall cost is reasonable. I find the fees in Ms. Bowen’s treatment plan are within the hourly maximums allowed under the Professional Services Guidelines.

17The applicant relies on 16-004272 v Continental Casualty Insurance Company¹⁰ where the applicant was determined to be out of the MIG due to pre-existing conditions and chronic pain. In that case, the treatment in dispute was found to be reasonable and necessary for treating the applicant’s pain complaints. The Tribunal determined that with the treatment of chronic pain, short term pain reduction is a reasonable and necessary objective in treating chronic pain syndrome. I agree with this formulation of what is meant by “necessary” under s.15 of the Schedule. I find that the treatment in dispute is necessary to treat the applicant’s pain complaints from the accident.

18The respondent submits that the applicant’s condition has plateaued and that the treatment is not fulfilling the goals of functional restoration and increased range of motion and strength. The respondent relies on two addendum paper review reports of Dr S. Dharamshi, general practitioner, dated October 31, and November 17, 2017. Dr. Dharamshi assessed the applicant in person on April 20, 2017 at the request of the respondent pursuant to s.44 of the Schedule. His opinion was that further physiotherapy was not reasonable or necessary because the applicant sustained myofascial injuries in the accident and, that taking into account that she already had physiotherapy, she was unlikely to benefit from facility based treatment.¹¹

19The applicant submits that she now has chronic pain as a result of her accident injuries and that she has deteriorated since she stopped treatment when her benefits were denied. The applicant relies on the report of Dr. West, who has diagnosed her with chronic pain syndrome as a result of the accident.

20I give little weight to Dr. Dharamshi’s opinion because he did not comment on the diagnosis of chronic pain syndrome or how the proposed treatment would address the applicant’s pain. Nor did he address the applicant’s pre-accident medical issues, unlike Dr. West. Based on the applicant’s comments to her treatment providers, I find that physiotherapy and chiropractic treatment provide the applicant with short term pain relief and that without the treatment, her symptoms worsen. Therefore, I find that the physiotherapy and chiropractic services recommended in the disputed treatment plan are necessary to provide pain relief to the applicant.

21The respondent submits that the applicant’s pre-accident complaints are the same as her post-accident complaints. The applicant has an extensive pre-accident history including an accident that occurred on July 8, 2015 from which she suffered back, low back, right hip, right leg, and right shoulder soft tissue injuries.¹² She was experiencing multiple dislocations of her left shoulder after that accident. She suffered an inversion injury to her right ankle on May 21, 2015. However, the applicant’s physiotherapist, Frances Partipilo, reported in an August 19, 2016 treatment plan that the applicant’s injuries from her 2015 accident had not resolved at the time of her 2016 accident and could impede her recovery from the 2016 accident. The applicant noted that her symptoms were worse after the 2016 accident.¹³ The respondent has not provided any evidence to refute or raise any doubt that the applicant sustained injuries in the 2016 accident or that her present chronic pain was not caused by the 2016 accident.¹⁴ I am satisfied that the applicant has proven that, but for the 2016 accident, she would not have chronic pain syndrome.

22Accordingly, the applicant is entitled to the physiotherapy and chiropractic services in the amount of $2,980.00 recommended by Nayida Bowen in the treatment plan dated September 19, 2017.

C. Interest

23Under s.51(2) of the Schedule, the respondent is required to pay interest on the amount of a benefit that is overdue. I have determined that the applicant is entitled to the physiotherapy and chiropractic treatment. Under s.49 of the Schedule, the payment for the services is not due until an invoice for those services has been provided to the respondent or the respondent is deemed to have received the invoice. There is no evidence that an invoice was sent or that would allow me to find the respondent is deemed to have received an invoice. Accordingly, the applicant’s claim for interest is dismissed.

D. Costs

24The applicant would be entitled to her costs of the hearing only if the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith.¹⁵ There is no evidence that the respondent has acted in such a manner. Accordingly, the applicant’s claim for costs is denied.

IV. CONCLUSION

25The applicant’s claim for the cost of an examination in the amount of $4,802.50 for an orthopaedic assessment, recommended by Dr. John Theodoropoulos, in a treatment plan dated January 5, 2018 is dismissed.

26The applicant is entitled to medical benefits in the amount of $2,980.00 for physiotherapy and chiropractic services recommended by Nayida Bowen in a treatment plan dated September 19, 2017.

27The applicant’s claim for interest is dismissed.

28The applicant’s claim for costs is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2The applicant added the issue in her reply submissions.
3. 3The costs for the goods and services recommended in Dr. Theodoropoulos’ treatment amount to $4,802.50. Under s.25(5) of the Schedule an insurer is prohibited from paying any more than $2,000.00 plus HST (where applicable) for any one assessment.
4. 4Section 38(11)2 of the Schedule.
5. 5S.38(11)2 of the Schedule, my emphasis
6. 616-002568 v. Aviva Insurance, 2017 CanLII 81582 (ON LAT) (“16-002568 .v Aviva “)
7. 7Section 15(1)(b) of the Schedule
8. 817-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT)
9. 9Professional Services Guidelines. Superintendent’s Guideline No. 03/14
10. 1016-004272 v Continental Casualty Insurance Company, 2017 CanLII 63661 (ON LAT)
11. 11Dr. Dharamshi’s first report from his April 20, 2017 assessment was not before me.
12. 12See Dr. West’s report dated February 2, 2018 and Dr. Daramshi’s report dated October 31, 2017.
13. 13For example, see Dr. West’s February 2, 2018 report, the August 16, 2018 clinical note of Sports Medicine Specialists, Dr. Drutz, family physician, clinical note of October 13, 2016, or the report of Dr. Tania Bruno, physiatrist, dated April 27, 2017.
14. 14Dr. Zack Cernovsky, psychologist, reported on July 20, 2017 that, while is not clear to what extent her current ratings are confounded by pre-existing health conditions, it is likely that the MVA of 2016 increased the applicant’s pre-existing pain level.
15. 15Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017). Rule 19