Tribunal File Number: 18-007924/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[Z.K.]
Applicant
and
Unifund Assurance Company
Respondent
DECISION
PANEL:
Poeme Manigat, Adjudicator
APPEARANCES:
For the Applicant:
Aftab Alam, Counsel
For the Respondent:
Gina Nardella, Counsel
HEARD:
In Writing on: April 1, 2019
OVERVIEW
1The applicant (“ZK”) was injured in an automobile accident (“accident”) on November 5, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) when his claims for benefits were denied by the respondent, Unifund Claims Inc. (“Unifund”).
2Unifund denied the applicant’s claims because it determined that the treatment plans sought were not reasonable and necessary.
3The applicant bears the onus of proving entitlement on the basis that the treatment plans are reasonable and necessary, pursuant to section 15 of the Schedule.
ISSUES
4The issues to be decided are as follows:
(i) Is the applicant entitled to the following physiotherapy treatment plans recommended by Airport Rehab Centre in the amount of:
a) $3,503.62 submitted on December 8, 2016 and denied on December 15, 2016?
b) $2,753.72 submitted on May 23, 2017 and denied on May 25, 2017?
c) $2,400.00 submitted on November 2, 2017 and denied on November 14, 2017?
d) $2,000.00 submitted on May 15, 2018 and denied on May 22, 2018?
(ii) Is the applicant entitled to payment for the cost of examinations recommended by Pearson Medical Assessment Centre Inc. in the amount of:
a) $1,988.80 for an impairment assessment, dated October 24, 2017 and denied on November 28, 2017?
b) $11,133.41 for a multi-disciplinary catastrophic assessment, dated May 29, 2018 and denied on July 16, 2018?
c) $2,000.00 for a completion of a neurological assessment, dated June 18, 2018 and denied on June 25, 2018?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is entitled to a payment for the physiotherapy treatments in the amounts of $3,503.62, $2,753.72, $2,400.00 and $2,000.00.
6I find that the applicant is not entitled to payment for the impairment assessment in the amount of $1,988.80.
7I find that the applicant is not entitled to payment for the multi-disciplinary catastrophic assessment in the amount of $11,133.41.
8I find that the applicant is not entitled to payment for the neurological assessment in the amount of $2,000.00.
9The applicant is entitled to interest pursuant to s. 51(2) of the Schedule.
ANALYSIS
Physiotherapy Treatments
10The applicant was involved in a motor vehicle accident on November 5, 2015, as a result of which he suffered injuries to his neck, shoulders, back, and left leg, as well as headaches. The applicant submits that, since the accident, his pain has worsened, and he now suffers from chronic pain. Consequently, the applicant submits that he suffers from various physical and psychological impairments that disrupt his activities of daily living. The applicant submitted four physiotherapy treatments from Airport Rehab Centre to help manage his chronic pain.
11The respondent takes the position that these plans are not reasonable and necessary. To that end, the respondent relies on the opinion of its physiatry assessor, who opined that there was no objective evidence of ongoing impairments and that the applicant does not have any functional limitations or physical restrictions.2
12Based on the evidence provided, I find that the applicant has met the onus of proving that the plans are reasonable and necessary. My reasons are as follows.
13In short, I find that these plans helped the applicant cope with what I find is his chronic pain. The plans had clear goals that were being met to a reasonable degree. The goals of these physiotherapy treatment plans can be summarized as pain reduction, increased strength and increased range of motion. The objective of a treatment plan is not simply to achieve full recovery. A treatment plan may be found to be reasonable and necessary if the evidence indicates that it provides temporary relief of the applicant’s symptoms. The evidence must demonstrate that ongoing treatment will provide relief to the applicant and be of benefit. Based on the medical evidence available, I am satisfied that the applicant benefited from ongoing physiotherapy treatment and it helped him manage his pain. This is evidence by the clinical notes and records from the treating physiotherapists and family doctor. Some of these clinical notes and records reads as follows:
a) In the treatment plan dated December 8, 2016, the treating chiropractor reported that the applicant is making gradual progress with regards to the sustained injuries. Some centralization of lower back pain is being achieved with therapy. As well, pain intensity of the thoracic region has been reduced.3
b) The family doctor’s (Dr. Perera) CNRs dated November 19, 2015 state that the applicant is feeling better with therapy but is still experiencing pain.
c) The family doctor’s CNRs dated August 8, 2016 state that the applicant reports feeling better with physiotherapy but still has back pain.
d) The family doctor’s CNRs dated October 24, 2016 state that the applicant reports feeling good but is still experiencing chronic back pain.
e) The treating physiotherapist stated in the treatment plan dated May 15, 2018 that the applicant reported managing his back pain with therapy and active exercise.4
The applicant’s treating practitioners/assessors recommend physiotherapy treatment. The family physician diagnosed the applicant with chronic back pain/lumbar strain on April 26, 2016 and referred the applicant for physiotherapy treatment on January 30, 2018. On May 1, 2018, the family physician reiterated that the applicant has chronic lower back pain and requires ongoing physiotherapy treatment.5 The applicant’s Catastrophic Impairment Orthopaedic Examination Assessor6 also diagnosed the applicant with chronic myofascial strain of the cervical spine and lumbosacral spine. As well, he recommended physiotherapy treatment in a multidisciplinary supervised setting for the applicant. The applicant’s physiatry assessor, who completed an assessment on July 31, 2018, diagnosed him with chronic pain and chronic pain syndrome, also recommended physiotherapy as treatment to manage the applicant’s pain and improve his functionality.
14The respondent’s denials of the physiotherapy treatment plans are primarily based on the opinion of its physiatry assessor,7 who opined that the applicant has no objective evidence of functional limitations or ongoing impairment. This opinion is not consistent with the physiatrist’s examination of the applicant. He found that the applicant was suffering from the aggravation of pre-existing sprain/strain injuries affecting the lumbar spine region, sprain/strain of the right trapezius, and limited range of motion of the cervical spine of less than 20 degrees due to pain. The pain-related complaints reported by the applicant to the IE Physiatry Assessor are similar to those reported to the applicant’s family doctor and the applicant’s other treating practitioners, who all recommended physiotherapy as a course of treatment.
15As stated above, the applicant consistently reported his back pain, neck pain and shoulder pain to his family physician who diagnosed him with chronic back pain. I find it difficult to understand how the Physiatry IE Assessor concluded that there was no objective evidence of ongoing impairments and that the applicant does not have any functional limitations or physical restrictions. The Physiatry IE Assessor’s own physical assessment of the applicant confirmed that he had limited range of motion of the cervical spine due to pain. I find that the Physiatry IE Assessor’s conclusion in his report is inconsistent with his physical examination of the applicant. As well, I find that the Physiatry IE Assessor failed to properly consider the family doctor’s diagnosis of chronic pain. Therefore, in my valuation, I give less weight to the Physiatry IE Assessor’s report because it deviates too much from the overall medical evidence available and from his own observations of the applicant.
16The medical records available confirm that the applicant has been frequently complained of back and shoulder pain to his family doctor for over three years following the accident. The medical evidence also shows that the applicant was diagnosed with chronic back pain. The evidence indicates that the applicant has been receiving physiotherapy treatment on a regular basis, which helps him cope with the pain – especially with his back pain. The above-mentioned notes are evidence that supports the proposition that physiotherapy treatments are helping the applicant manage his pain, which is consistent with the goals of the physiotherapy treatment plans. I find that the objectives of the physiotherapy treatment plans are being met and that they are reasonable and necessary in these circumstances.
Cost of Examinations
Impairment assessment
17The applicant submitted a treatment plan for an impairment assessment. The applicant takes the position that the fact that he was assessed for his housekeeping and personal care impairments as early as February 11, 2016, suggests that this treatment plan is reasonable and necessary. The applicant argued that the objective of this treatment plan is to identify barriers to recovery and treatment options available to him. The applicant also argued that, given the fact that the pain had progressed to chronic status and that the fact that the author of this treatment plan,8had already completed a comprehensive examination of his impairment and pain – indicating that he had “chronic intractable pain”- supports the proposition that this treatment plan is reasonable and necessary.
18The respondent denied this treatment plan based on its Physiatry IE Assessor’s report. The respondent relied exclusively on its Physiatry IE Assessor’s opinion that the applicant had no impairment. I am not persuaded by the respondent Physiatrist report and the respondent’s reason for denying this treatment plan. However, the onus of proving the reasonableness and necessity of this treatment plan remains with the applicant.
19I find that the applicant has not satisfied its onus of proving that this treatment plan is reasonable and necessary. The fact that the author of the treatment plan had already completed a comprehensive examination of the applicant’s impairment and pain suggests that a further impairment assessment was not required, since the applicant’s impairments were already known to the treating physiotherapist. The applicant failed to provide any persuasive evidence or explanation to suggest that this impairment assessment will disclose any helpful or necessary information not already known to the treating physiotherapist or required for the applicant to receive proper care/treatment. The family doctor, treating physiotherapist and chiropractor’s CNRs all report that the applicant suffers from various impairments and limitations, such as pain with prolonged sitting, walking and difficulty with heavy lifting. There is no evidence before me to support the proposition that an additional impairment assessment is required to identify the applicant’s impairments. Consequently, I find this treatment plan is not reasonable or necessary.
Multi-disciplinary Catastrophic Assessment
20The applicant is seeking payment for a multi-disciplinary catastrophic assessment. The applicant stated that an OCF-19 (Application for Determination of Catastrophic Impairment) was approved by the respondent, therefore the examinations are reasonable and necessary. The applicant argued that it has the right to get an independent opinion about whether he is catastrophically impaired and that he does not have to rely solely on the respondent’s catastrophic impairment assessment. In support of his position, the applicant also stated that the respondent’s assessors found that he had a 25% whole body impairment (WPI).
21The respondent stated that, when it received this treatment plan, an OCF-18 dated June 6, 2018, it had already approved an OCF-19 (Application for Determination of Catastrophic Impairment). Given that approval, the respondent denied this plan on the basis that it was a duplication of services. Again, the respondent had already received an OCF-19 dated June 19, 2018 which confirmed that the applicant’s assessor thought the applicant met the criteria for catastrophic impairment.
22Upon review of the evidence provided by the respondent,9 I note that the OCF-18 dated June 6, 2018 approved by the respondent is an approval for a total body assessment, and an approval to do a physical examination in order to complete the OCF-19. I disagree with the respondent’s view that there is a duplication of services. I find that there is a distinction between doing a physical examination for the purpose of completing an OCF-19, and completing a catastrophic impairment assessment. This treatment plan deals with the completion of a multidisciplinary catastrophic impairment assessment. Therefore, there is no duplication of services. I must determine whether this treatment plan is reasonable and necessary based on the evidence available before me.
23The applicant’s injuries are predominantly physical in nature. Most of the applicant’s complaints to his family doctor and the other medical professionals who examined him are regarding his physical pain. In addition, the applicant’s physical injuries are reported as sprain and strain by all the medical professionals who examined him. The applicant reports having headaches, nightmares and experiencing stress to his family doctor. On April 7, 2017, the family doctor recommended counseling for the applicant. This recommendation benefited the applicant as he reported sleeping better and feeling better on May 15, 2017 after attending counseling. The complaints that remained an issue, after attending counselling, were all physical. Despite reporting having headaches, nightmares and feeling stress to his family doctor, the applicant was not referred for any psychological, psychiatric or neurological examination. Therefore, I find that his injuries were mostly physical, which were reported as sprains and strains.
24The treating chiropractor and the applicant’s orthopaedic surgeon assessor report the applicant having psycho emotional disturbances, anxiety and depression. In my valuation of the evidence, I attribute minimal weight to these diagnoses, because they are outside the scope of expertise of the treating chiropractor and the orthopaedic surgeon. Therefore, I do not find these diagnoses persuasive.
25I find that completing a catastrophic assessment was not reasonable and necessary, because the main injuries were sprains and strains which were being treated with physiotherapy treatment. There is no persuasive medical evidence from a qualified expert with respect to psychological, psychiatric or neurological impairments. The complaints pertaining to headaches, nightmares and stress were properly addressed through counseling. The applicant consulted his family doctor on numerous occasions about his injuries and he was never referred to seek psychological or psychiatric treatment. Based on the medical records available and symptoms/complaints reported by the applicant, I do not find it reasonable and necessary to complete a catastrophic impairment assessment.
Neurological Assessment
26The applicant is seeking payment for a neurological assessment in the amount of $2,000.00 for a treatment plan dated June 18, 2018 that was denied by the respondent on June 25, 2018. The applicant made no submissions regarding this treatment plan. However, the applicant made submissions in support of a mild traumatic brain injury assessment in the amount of $2,200.00 for a treatment plan dated March 27, 2018 that was denied by the respondent on April 9, 2018.
27The respondent submits that the applicant made no submissions regarding this issue (neurological assessment). The respondent further submits that it did not receive a treatment plan dated June 18, 2018 for a neurological assessment and requests that this issue be dismissed.
28At the case conference, the applicant withdrew issue (xi) pertaining to the cost of examination in the amount of $2,200.00 for a completion of a mild traumatic brain injury assessment submitted in a treatment plan dated March 27, 2018 that was denied by the respondent on April 9, 2018. Consequently, this issue was not listed as an issue in dispute in adjudicator Sandeep Johal’s order dated January 15, 2019 and does not form part of this hearing.
29The respondent denies receiving a treatment plan dated June 18, 2018 for a neurological assessment in the amount of $2,000.00. However, this issue was listed and identified by the parties as one of the issues in dispute at the case conference and the respondent did not raise any objection to it being added. Therefore, this issue is properly brought before the Tribunal and I must determine if the neurological assessment of $2,000.00 submitted in a treatment plan dated June 18, 2018 is reasonable and necessary.
30In review of the records provided, the applicant has not proven that there are any neurological issues that may warrant a neurological assessment. As stated above, the applicant’s injuries are predominantly physical. There is no evidence before me to support the need or reasonableness of a neurological assessment. There is no evidence of a referral being made by the family doctor for a neurological assessment. The applicant complained of headaches and sleep disturbances to his family doctor, but these issues were addressed through counseling. The diagnoses of anxiety, depression and psycho emotional disturbances were made by medical professionals that specialize in areas relating to physical injuries as opposed to psychological or neurological injuries. There is no psychological report or persuasive medical evidence provided that could support the necessity and reasonableness of a neurological assessment.
Interest
31The applicant requests that interest be applied from the date of the deemed approval to present and ongoing.
32The respondent argued that all the denials were proper in accordance with the Schedule, and therefore no interest is owed.
33After reviewing the submissions of both parties, I find that the physiotherapy treatment plans are reasonable and necessary. Therefore, I order that these treatment plans be paid with the applicable interest pursuant to the Schedule.
CONCLUSION
34For the reasons outlined above, I find that:
i. The applicant is entitled to the physiotherapy treatment plans in the amounts of $3,503.62, $2,753.72, $2,400.00 and $2,000.00. The applicant is entitled to interest on the incurred medical benefits for these physiotherapy treatment plans with interest as per the Schedule.
ii. The applicant is not entitled to the cost of examinations for the impairment assessment, multi-disciplinary CAT assessment and neurological assessment.
Released: January 8, 2020
___________________________
Poeme Manigat
Adjudicator
Footnotes
- O. Reg. 34/10.
- IE Assessor | Author of Physiatry Assessment Report dated July 25, 2017
- OCF-18 dated December 8, 2016 authored by Tahani AJ Rifai
- OCF-18 dated May 15, 2018 authored by Amna Bajwa
- Dr. Perera CNRs - May 1, 2018
- Dr. Tajedin Y. Getahun – Orthopaedic Surgeon | Author of CAT Orthopaedic Assessment Report dated July 2, 2018
- Physiatry Assessment, supra, note 2
- OCF-18 dated October 24, 2017
- Tab 13 of Respondent Submissions OCF-18 dated June 6, 2018