M.R. v. Belair Direct, 2020 CanLII 34455

Citation: M.R. vs. Belair Direct, 2020 ONLAT 18-011614/AABS

Released Date: April 17, 2020

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:

M. R.

Applicant

and

Belair Direct

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

For the Applicant: Arash Goneh-Farahani, Paralegal

For the Respondent: Tracy L. Brooks, Counsel

Heard in writing on: July 22, 2019

OVERVIEW

1[M. R.] was injured in an automobile accident on October 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2[M. R.] was the seat belted driver of a vehicle that was proceeding through an intersection when his vehicle was struck by another vehicle that was making a left turn, causing a collision. As a result of the accident, [M. R.] sustained physical injuries to his neck and back as well as phobia and anxiety.

3[M. R.] applied for medical benefits that were denied by the respondent on the basis that [M. R.]’s injuries were within the definition of the Minor Injury Guideline (the “MIG”) and the medical benefits were not reasonable and necessary. [M. R.] disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Is [M. R.] entitled to a medical benefit for chiropractic services recommended by [Healthcare Centre] for the following treatment plans:

a. $3,805.70 submitted on January 23, 2018 and denied on February 7, 2018.

b. $3,733.94 submitted on March 12, 2018 and denied on March 19, 2018.

c. $3,200.00 submitted on March 15, 2018 and denied March 19, 2018.

ii. Is [M. R.] entitled to a payment for a cost of examination in the amount of $1,400.00 for a cognitive assessment submitted on April 3, 2018 and denied on April 12, 2018?

iii. Is [M. R.] entitled to a medical benefit for psychological services recommended by [Healthcare Centre] for the following treatment plans:

a. $1,920.53 submitted on January 30, 2018 and denied on February 13, 2018 was partially approved in the amount of $1,696.10, therefore $224.93 is remaining in dispute.

b. $4,463.96 submitted on February 22, 2018 and denied on March 7, 2018 was partially approved in the amount of $1,995.32, therefore $2,468.64 is remaining in dispute.

c. $3,566.28 submitted on April 6, 2018 and denied on April 20, 2018 was partially approved in the amount of $1,820.35, therefore $1,745.93 is remaining in dispute.

d. $3117.44 submitted on May 5, 2018 and denied on Mary 24, 2018.

iv. Is [M. R.] entitled to interest on any overdue payment of benefits?

v. In the parties’ submissions the issue of the MIG is discussed and therefore it be addressed as an issue in dispute for the purposes of this hearing.

RESULT

5Based on the totality of the evidence before me, I find [M. R.] has a psychological impairment which is not within the definition of the MIG and the following treatment plans are reasonable and necessary:

a. A medical benefit in the amount of $3,805.70 for chiropractic treatment;

b. A medical benefit in the amount of $3,733.94 for chiropractic treatment.

c. A medical benefit in the amount of $3,200.00 for chiropractic treatment

d. The psychological treatment plan in the amount of $3,117.44 is partially reasonable and necessary for 5 sessions over 5 weeks as well as the costs for the documentation fee, the administration of the psychological test, the progress report, the planning service (2 as opposed to 4) and the test processing and interpretation fee; and

e. Interest on the overdue payment of benefits for the above treatment plans found to be reasonable and necessary in accordance with the Schedule.

6[M. R.] is not entitled to:

a. A cost of examination for a cognitive assessment in the amount of $1,400.00;

b. The partially approved psychological treatment plans in the amount of $2,468.64, $224.43 and $1,745.93.

ANALYSIS

Applicability of the Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

8[M. R.] bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

9[M. R.] was diagnosed with an adjustment disorder with mixed anxiety and depressed mood by way of a psychological assessment report dated February 14, 2018 by Dr. Mrahar and also by the respondent through a psychological insurer examination (“IE”) by Dr. Lubbers. In Dr. Lubbers’ report dated March 23, 2018 he also diagnosed [M. R.] with a DSM-5 Adjustment Disorder with Mixed Anxiety and Depressed Mood.³

10As a result, I find that [M. R.] has met his onus to prove that his injuries are outside the MIG as this psychological diagnosis is not within the definition of the MIG.

11I will now turn to discuss whether each of the treatment plans in dispute are reasonable and necessary.

Is [M. R.] entitled to the chiropractic treatment plans in dispute in the amounts of $3,805.70, 3,733.94 and 3,200.00?

12Based on the following, I find the medical benefits for chiropractic treatment to be reasonable and necessary for the following reasons.

13[M. R.] submits the chiropractic treatment plans are reasonable and necessary as [M. R.] has incurred the cost of all of them and his doctor’s clinical notes and records show that [M. R.] was suffering from ongoing pain to his left knee and lower back at the time of the treatment plans. Furthermore, the treating practitioners included objective measurements of his cervical and lumbar spine that showed [M. R.]’s range of motion was improving through treatment.

14The respondent submits that as a result of insurer examinations (“IE’s”) that were conducted, the treatment plans were not reasonable and necessary as [M. R.]’s injuries were within the MIG and further facility-based treatment would not offer [M. R.] any benefit.

15I do not agree with the respondent. The clinical notes and records of [M. R.]’s family doctor note [M. R.] to have consistent complaints of pain and he visited his doctor on seventeen different occasions from November 9, 2017 to August 2018 about his pain complaints. [M. R.]’s family doctor prescribed pain medication to help with the pain as well as a recommendation for treatment.⁴

16The treatment plans list as the following as their goals: pain relief, increase strength and return to activities of normal living. The goals will be attained by chiropractic manipulation/mobilization and soft-tissue therapy. Physiotherapy will also be provided which includes hydrotherapy, TENS machine and ultrasound to reduce muscle spasm, decrease pain and promote tissue healing. Massage therapy and rehabilitation exercises will be conducted for [M. R.]’s low back and left knee pain.⁵

17The treatment plan in the amount of $3,200.00 will achieve the goals of pain relief, increased range of motion and a return to activities of daily living by providing nine sessions of shock wave therapy, which provides fast pain relief and mobility restoration. The treatment plan will also include laser therapy which leads to an increase in cellular metabolism and decreases pain and inflammation without side effects.⁶

18The respondent’s IE assessor, Dr. Aldridge, performed a musculoskeletal assessment of [M. R.] in a report dated March 14, 2018. In the report, Dr. Aldridge opined that [M. R.] had uncomplicated soft-tissue injuries to the lumbosacral spine with left leg pain and these symptoms should resolve in four months on average. In his opinion [M. R.]’s injuries were within the MIG and therefore the treatment is not reasonable and necessary.⁷

19On March 23, 2018 Dr. Aldridge completed another IE, this time by way of a paper review. His opinion did not change from his earlier IE assessment. He found [M. R.]’s injuries to be within the MIG and that [M. R.] will not obtain any additional benefit with treatment outside the MIG.⁸ Dr. Aldridge states that 50% of patients with sprain and strain type injuries recover within four months but that residual myofascial pain may take a considerable amount of time to completely resolve in some cases.⁹

20I place less weight on Dr. Aldridge’s report because he opines that [M. R.]’s injuries should heal within four months however at the time of the report, it would have been approximately five months post-accident and [M. R.] still has ongoing pain. Dr. Aldridge does not provide an opinion as to why that would be the case other than to state [M. R.] does not need facility-based treatment. He further opines that the residual myofascial pain may take a considerable amount of time to resolve and that [M. R.] should discontinue the use of his pain medications as the risks outweigh the benefits. However, Dr. Aldridge concludes that the treatment plan is not reasonable and necessary.¹⁰

21I do not agree with Dr. Aldridge’s opinion for several reasons. One, [M. R.] is not within the definition of the MIG. Two, to suggest [M. R.] cease taking his pain medication and that further facility-based treatment would not be beneficial does not correspond to his diagnosis of [M. R.] and his conclusion that the myofascial pain may take a considerable amount of time to resolve. Third, Dr. Aldridge recommends aerobic type (walking and swimming) home exercises.¹¹ It is not clear how aerobic type exercises will help alleviate [M. R.]’s constant complaints of pain in his back and knee.

22[M. R.] is entitled to treatment that brings him pain relief. It is clear from the medical documentation and the IE report of Dr. Aldridge that [M. R.] is suffering from pain and requires treatment to help alleviate his pain.

23As a result, I find that [M. R.] has proven on a balance of probabilities that the chiropractic treatments plans are reasonable and necessary.

24I will now move on to discuss the psychological treatment plans and whether they are reasonable and necessary.

Are the psychological treatment plans in the amounts of $224.43, $2,468.64, $1,745.93 and $3,117.44 reasonable and necessary?

25I find that the treatment plans in the amount of $224.43, $2,468.64 and $1,745.93 are not reasonable and necessary, however the treatment plan in the amount of $3,117.44 is partially reasonable and necessary for the following reasons.

26[M. R.] submits he suffers from a psychological diagnosis and symptoms as a result of the psychological report of Dr. Mrahar and the medical records of Dr. Panturescu as discussed above. However, with the onus being on [M. R.] I have not been provided any submissions or directed to any evidence on why the partially approved treatment plans are reasonable and necessary in their entirety.

27The respondent submits that the psychological treatments plans were partially approved as a result of the psychological services being performed by a psychotherapist and not a psychologist. Therefore, the amount the treatment plan was approved for was in accordance with the fee guideline for an unregulated counsellor under the Professional Services Guideline¹² because there was no registration requirement for psychotherapists in September 2014 when the Professional Services Guideline was introduced. In any event, the respondent submits it is paying $99.75 per hour rather than $58.19 for an unregulated provider.

28With the onus on [M. R.], I have not been satisfied on a balance of probabilities that the three partially approved treatment plans are reasonable and necessary in their entirety and therefore the remaining amounts that have not been paid are not reasonable and necessary.

Psychological treatment in the amount of $3,117.44

29For the following reasons, I find that this treatment plan is partially reasonable and necessary for weekly sessions over five weeks with the psychologist listed as the service provider on the treatment plan.

30The respondent’s IE assessor, Dr. Lubbers does in fact agree that the psychological treatment is required, however not in the frequency and manner as [M. R.] suggests.¹³ [M. R.] has not made submissions indicating that Dr. Lubbers’ approach is unreasonable or inferior to Dr. Gabidulina’s approach.

31[M. R.] submits that the treatment plan is reasonable and necessary, and his position is based on the psychological progress report of Dr. Gabidulina which finds [M. R.] to be suffering from psychological impairments.¹⁴ The treatment plan proposes 1.5-hour sessions at multiple times per week.

32The respondent relies upon its IE assessor Dr. Lubbers who opines that the psychological treatment being proposed is not reasonable and necessary because of the unorthodox way in which the treatment is being proposed in the treatment plan and because [M. R.] referred to someone other than the psychologist providing the treatment.

33In Dr. Lubbers’ opinion, psychological treatment is commonly provided once weekly which gives [M. R.] time to implement skills and to gain insight during treatment. However, this treatment plan proposes 1.5 hour, twice weekly sessions. Dr. Lubbers also takes issue with the fact that [M. R.] referred to another treatment provider who was providing the treatment. As a result, Dr. Lubbers opines that further treatment was not required and the plan was not reasonable and necessary.¹⁵

34However, in my opinion the fact that the treatment plan is proposing treatment in a manner that the IE assessor does not agree with does not render the entire plan as not being reasonable and necessary.

35Dr. Lubbers’ diagnosis has not changed from his original assessment of [M. R.] on March 9, 2018. Dr. Lubbers conclusion from his second assessment of [M. R.] is that he still has a DSM-5 Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident.¹⁶ However, in his opinion this treatment plan is not reasonable and necessary because the psychological sessions are for more than once per week, the treatment is being conducted by a psychotherapist as opposed to a psychologist and [M. R.] has not indicated a significant improvement from the previous treatments.¹⁷

36Upon a review of the entire report, under the section of “Response to Referral Questions” and the question of what further medical treatment or rehabilitation services are necessary to assist the insured person”, Dr. Lubbers responds as follows:

As stated in my initial report dated March 23, 2018, I recommend 10 one-hour sessions of psychological counselling to address the current depression and anxiety and to provide instruction in pain management, provided on a once-weekly basis. I further note that the psychological treatment should be provided by a psychologist.¹⁸

37Dr. Lubbers’ report provides conflicting opinions. In one part, he opines the treatment plan is not reasonable and necessary, but later in the report he appears to be saying the treatment plan is partially reasonable and necessary. When reading his report as a whole, it is clear that his opinion is that [M. R.] continues to suffer from a psychological impairment and still requires treatment, however the treatment as being proposed in the treatment plan is not all reasonable and necessary.

38I find Dr. Lubbers’ opinion to be partially reasonable when he opines that once a week sessions would allow [M. R.] time to implement skills and to gain insight during each treatment session and would allow the counselling to effect meaningful change rather than a form of social support.¹⁹ He further opines that the treatment should be provided by the psychologist proposing the treatment, Dr. Svetlana Gabidulina. I also find this to be reasonable. I further find that as a result of Dr. Gabidulina’s opinion being similar to that of Dr. Lubbers in terms of the psychological impairment, [M. R.] has a need for treatment.

39As a result of the above, I find that the treatment plan is partially reasonable and necessary. [M. R.] is entitled to once weekly sessions for five weeks with the psychologist proposing the treatment as well as the documentation fee, the administration of the psychological test, the progress report, the planning service (2 as opposed to 4) and the test processing and interpretation fee listed in part 12 of the treatment plan.

Is [M. R.] entitled to a cognitive assessment in the amount of $1,400.00?

40I find that the treatment plan seeking the payment of a cost of examination for a cognitive assessment is not reasonable and necessary for the following reasons.

41[M. R.] submits a comprehensive cognitive assessment is required based on the recommendation of chiropractor Dr. Rakkar to be completed by occupational therapist Evgeni Amchislavsky.

42The respondent submits that the cost of examination for a cognitive assessment is not reasonable and necessary and relies upon the IE assessment of Dr. Lubbers.

43Dr. Lubbers’ opinion is that the recommendation for a cognitive assessment stems from a chiropractor and occupational therapist and may be beyond the scope of their practice. Furthermore, his assessment did not reveal any evidence that a formal cognitive assessment would be of any substantive benefit.²⁰

44I agree with the respondent. In my opinion, it would be beyond the scope of practice for a chiropractor and occupational therapist to opine on a person’s cognitive ability. Furthermore, [M. R.] has not provided any submissions or directed me to any evidence to corroborate the treatment plan and the requirement for a cognitive assessment.

45[M. R.] has visited his family doctor on numerous occasions since the date of the accident, however there were no references for any referrals to any specialist for any cognitive impairments and there were no concerns from the family doctor of [M. R.]’s cognitive state. In my opinion, [M. R.] has not satisfied his onus on a balance of probabilities that a cognitive assessment is reasonable and necessary.

INTEREST

46[M. R.] is entitled to interest on the treatment plans found to be reasonable and necessary accordance with the Schedule.

ORDER

47For the reasons outlined above, [M. R.] is entitled to:

a. A medical benefit in the amount of $3,805.70 for chiropractic treatment;

b. A medical benefit in the amount of $3,733.94 for chiropractic treatment.

c. A medical benefit in the amount of $3,200.00 for chiropractic treatment

d. The psychological treatment plan in the amount of $3,117.44 is partially reasonable and necessary for 5 sessions over 5 weeks as well as the costs for the documentation fee, the administration of the psychological test, the progress report, the planning service (2 as opposed to 4) and the test processing and interpretation fee; and

e. Interest on the overdue payment of benefits for the above treatment plans found to be reasonable and necessary in accordance with the Schedule.

48[M. R.] is not entitled to:

a. A cost of examination for a cognitive assessment in the amount of $1,400.00;

b. The partially approved psychological treatment plans in the amount of $2,468.64, $224.43 and $1,745.93.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Hearing Brief of the Respondent at page 150.
4. 4Hearing Brief of the Respondent at pages 294 to 301.
5. 5Applicant’s Written Submissions at Tab 5-05ci. (Treatment and Assessment Plans)
6. 6Written Submissions of [M. R.] at Tab 5d, page 10.
7. 7Written Submissions of the Respondent at Tab 10 at page 137.
8. 8Ibid at page 161.
9. 9Ibid.
10. 10Ibid at page 162.
11. 11Ibid at page 161.
12. 12Financial Services Commission of Ontario (FSCO) Superintendent’s Guideline No. 03/14, September 2014.
13. 13Written Submissions of the Respondent at page 206. Psychological IE Report dated June 7, 2018.
14. 14Applicant Written Submissions at Tab 13. Psychological Progress Report dated June 7, 2018.
15. 15Written Submissions of the Respondent at page 206. Psychological IE Report dated June 7, 2018.
16. 16Ibid.
17. 17Ibid at page 207.
18. 18Ibid at page 208
19. 19Ibid.
20. 20Hearing Brief of the Respondent at page 175.