RECONSIDERATION DECISION
Before: Craig Mazerolle
Case Name: M.H. v. CUMIS General Insurance
Written Reconsideration Submissions by:
For the Applicant: Rebecca Wissenz, Counsel
For the Respondent: Peter Durant, Counsel
OVERVIEW
1Due to injuries sustained from an accident on November 28, 2016, the applicant sought medical and income replacement benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the "Schedule").1 The respondent denied some of these benefits, so an application was filed with the Tribunal.
2In a decision dated November 7, 2019, I found that the applicant was entitled to some of these disputed benefits (the "Decision"). Specifically, I awarded the applicant an income replacement benefit from July 6, 2018 onwards. However, I did not award any of the disputed treatment plans, because I was not provided with copies of the plans as part of the hearing submissions.
3Both parties took issue with my decision, and, as such, both parties filed Requests for Reconsideration.
4The grounds for granting a reconsideration are enumerated in Rule 18 of the Tribunal's Common Rules of Practice and Procedure:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
5In a Request dated November 27, 2019, the applicant challenged my decision by citing section (b) of Rule 18, and by providing copies of two of the three disputed plans. The applicant is now asking the Tribunal to approve these treatment plans.
6The respondent challenged my decision by citing sections (c) and (d) of Rule 18. Specifically, the respondent argued that—if I had been provided with records it received from the applicant following the release of my Decision—I would have concluded that the applicant was not entitled to an income replacement benefit. Therefore, the respondent is asking the Tribunal to overturn my decision to grant the applicant an income replacement benefit.
7For the reasons to follow, I find that the applicant's Request for Reconsideration will be granted, in part. The respondent's Request is dismissed.
RESPONDENT'S RECONSIDERATION REQUEST
Background and Parties' Positions
8Section 5(1) of the Schedule states that an insured person is entitled to an income replacement benefit if she or he is employed at the time of the accident and sustains an accident-related impairment that causes "a substantial inability to perform the essential tasks of that employment". Then, at the 104-week mark after the accident, s. 6(2)(b) states that an insured person will be entitled to continuing payments if accident-related impairments cause "a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience."
9In my Decision, I found the applicant was entitled to an income replacement benefit from July 6, 2018 to-date and ongoing (in the amount of $327.08/week). I relied on medical evidence from the applicant's family physicians (namely Dr. Kenya Bracken) and a medico-legal report from Drs. William Parkinson and Catherine Krasnik to conclude that the accident left the applicant with serious cognitive and psychological impairments. These impairments rendered him unable to perform his pre-accident role as a security guard, and he was further impaired from doing any work he might have been reasonably suited to perform.
10In its Request, the respondent provided the Tribunal with several new records it received from the applicant about a month after the release of my Decision. These records included: a decision from Service Canada about the applicant's entitlement to Canada Pension Plan-Disability benefits ("CPP-D") (dated May 8, 2018) and three clinical records from the office of Dr. Bracken (dated May 9, 2018, September 20, 2018, and December 11, 2018).
11In response, the applicant's counsel submitted that her client had submitted the CPP-D application on his own—an application she did not become aware of until the case conference held on December 11, 2018.
12Due to their late exchange, I accept that the respondent could not have obtained these records before its written submissions were due for the original hearing on April 8, 2019. As such, I will consider them in light of my earlier findings.
13The respondent also highlighted that there were several records it still believes to be outstanding from the applicant, but I do not place much weight on this ground.
New Records
14I do not find that these additional records change my conclusion regarding the applicant's entitlement to an income replacement benefit.
15To start, the medical records from the family physician's office do not provide any significant new information about the applicant's condition.
16First, the medical record dated September 20, 2018 suggests that the applicant's management of his accident-related pain had been poor up to that date. As a result, there was discussion about referring him to a chronic pain program. The respondent highlighted this record, because it argued that the medical practitioner's comment about how there is "no significant findings to explain organic cause" is indicative of a causation issue existing between the accident and the applicant's impairments.
17I do not accept this line of reasoning. Beyond the fact that the medical practitioner specifically stated that this pain was "post car accident", this record further suggests that there were serious concerns about the applicant's ability to manage his pain almost two years after the accident.
18Second, the record from December 11, 2018 is a clerical note stating that: "As per patient's request, copy of the CPP and ODSP forms with supporting documentation have been faxed to Wendy Ming at Wizzens [sic] Law." There are also prescriptions for two medications. I have no indication as to what relevant, medical information I should glean from this record, and it appears that the records mentioned in this note formed a part of the applicant's initial submissions.
19Finally, the medical record dated May 9, 2019 suggests that there is some improvement in the applicant's overall functioning (e.g., he has been going to the gym regularly and his mood is improving). However, when considered alongside the significant amount of medical evidence indicating the applicant's ongoing struggles with accident-related impairments, I am not swayed by this single record. I would also add that the main reason why the applicant was found to be entitled to an income replacement benefit was due to his cognitive and psychological impairments. While this record suggests that there has been some improvement to his psychological wellbeing, there is no comment about his cognition.
20In regard to the CPP-D determination letter, I again find that it has not changed my conclusion. The Tribunal is not bound by another decision-maker's determination about an applicant's level of impairment, because only the Tribunal is mandated to adjudicate disputes concerning accident benefits under the Schedule. However, decisions from other adjudicators may still provide relevant information to the Tribunal if there are findings about level of functioning, medical condition, etc.
21In the present case, however, the letter provides no such information, as the reason for the denial was procedural in nature. That is, Service Canada denied the applicant CPP-D benefits at this time because he failed to provide a completed Questionnaire for Disability Benefits. The denial letter provides no relevant information about the applicant's level of functioning, and, by extension, there is no information that would affect my findings.
Outstanding Documents
22The respondent then argued that there are documents left outstanding and that they have been improperly withheld by the applicant. I do not place significant weight on this ground.
23Specifically, the respondent identified the following three documents as outstanding: a letter from the family physician (dated August 22, 2018); a medical report from the family physician (dated November 7, 2018); and, a progress note (dated April 15, 2019). These three documents were listed and relied upon in the CPP-D Appeal Decision (dated September 26, 2019). Since the respondent was not provided with these records, it alleged that they were being improperly withheld.
24In response, the applicant produced a letter from his family physician (dated December 11, 2019), wherein Dr. Bracken stated that no record exists dated August 22, 2018 and that the "November 7, 2018" report is actually from November 7, 2017. I accept this correspondence as evidence that these two missing records do not exist.
25Then, in regard to the April 15, 2019 note, I find that this record was created after the applicant's initial written submissions were due on March 25, 2019. Further, the order from the Tribunal setting up the written hearing (dated December 17, 2018) stated that the parties did not require "an order listing the documents to be produced and exchanged". That is, there is no order requiring any specific document to be produced for this hearing. Therefore, in addition to the fact that the applicant could not have relied on this document as part of his initial submissions, there was no obligation for these records be produced to the respondent.
26I would also add that the CPP-D Appeal Decision's summary of this progress note indicated "that your condition has improved" and that "no significant limitations were noted". Once again, as stated in the May 9, 2019 record detailed above, I accept that there has been some improvement in the applicant's medical condition. However, I am still largely satisfied that my earlier findings should stand.
Conclusion
27Taken together, I do not find that the respondent has met any of the grounds for reconsideration enumerated under Rule 18 of the Tribunal's Common Rules of Practice and Procedure. As such, my earlier finding that the applicant is entitled to an income replacement benefit shall stand. The respondent's request is denied.
APPLICANT'S RECONSIDERATION REQUEST
Background and Parties' Positions
28Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.
29In his original application, the applicant requested medical benefits for physiotherapy treatment, psychological treatment, and a psychological assessment. However, as noted above, the applicant did not provide the three treatments plans for these disputed benefits with his hearing submissions.
30As I noted at paragraph 42 of my Decision, these plans are a necessary part of the analysis, because they allow an adjudicator "to compare the applicant's accident-related impairments to the treatment plan's proposed goals and modalities." Without these plans, I concluded that the applicant did not meet his onus of demonstrating that these benefits are reasonable and necessary.
31The applicant's Request for Reconsideration included two of the three missing treatment plans, i.e., the treatment plans for the disputed physiotherapy services and psychological services were included, but I was not given a copy of the plan for the psychological assessment.
32The respondent did not provide submissions in response to the applicant's Request for Reconsideration.
33Obviously, these treatment plans could have been provided to the Tribunal in advance of my Decision being issued, as they formed the basis of the dispute between the parties over these benefits. I also note that the Tribunal asked for these missing records following the delivery of the parties' original submissions.
34However, I am still willing to accept the submission of these plans to ensure a fair and effective process, especially since I have no arguments from the respondent contesting their inclusion. I am further willing to consider these plans alongside the evidence and submissions that the parties provided during the original hearing, as well as the additional evidence that the parties have provided in response to the respondent's Request for Reconsideration.
Analysis
35In his original reply submissions, the applicant argued that these proposed physical and psychological treatments "are reasonable and necessary to address entrenched physical and psychological impairments". Additionally, this treatment has been recommended in the medico-legal report from Drs. Parkinson and Krasnik. Finally, the applicant asserted that, while the respondent's psychological assessor, Dr. Alfanso Marino, claimed that previously approved psychological treatment had not been incurred, this statement was simply incorrect.
36The overall tenor of respondent's arguments was that the applicant had not provided sufficient evidence to meet his evidentiary burden.
Physiotherapy Services
37The applicant is requesting $2,525.77 for physiotherapy services (in a treatment plan submitted on October 25, 2016). The treatment plan cited "pain reduction", "return to activities of normal living", and "return to pre-accident work activities" as the goals of this physical treatment.
38I am satisfied that the applicant is entitled to this disputed physical therapy, as his well-documented psychological impairments appear to be intricately linked to ongoing issues with his physical condition. A major part of my analysis stems from the assessment conducted by the respondent's assessor, Dr. Marino.
39Though Dr. Marino's focus was, of course, on the applicant's psychological state, he ultimately concluded that "his emotional condition is reactive to his physical restrictions and he continues to report ongoing physical pain." Due to the ongoing nature of his psychological impairment, it seems logical that treatment addressing his physical condition will, in turn, be of assistance to his chronic psychological distress. Put another way, resolution of his physical issues would be a tool to help break the cycle between his somatic symptoms and his psychological reactions.
40In contrast, the respondent's physiatry assessor conclude that the applicant did not require further physical therapy. That is, Dr. Florin Feloiu found that, by his assessment in March 2017, the applicant had already received the full benefit of facility-based treatment. As a result, Dr. Feloiu instead suggested home exercises.
41I prefer Dr. Marino's opinion in this matter, as his analysis included an investigation into the relationship between the applicant's psychological and physical conditions. Without understanding the contributory effects of his physical condition on his psychological deterioration, Dr. Feloiu's opinion is too limited in scope. I would also note that the applicant himself told Dr. Feloiu that he only felt "50% better"—a sign that his physical recovery was still in progress. As such, I find that the proposed physiotherapy treatment plan is reasonable and necessary.
Psychological Services
42The applicant requested $3,809.88 in psychological treatment, as recommended in a plan submitted on January 12, 2018. This proposed treatment consists of three sessions focused on mental health and addictions, with 15 sessions addressing cognitive skills. In addition to the treatment goals listed in the plan for the physiotherapy services, this psychological therapy intends to improve his "mood, stress coping and cognitive compensation, pain coping and… activity tolerances".
43The respondent partially approved this plan in the amount of $1,948.42, with $1,861.46 left in dispute. Specifically, the respondent approved 12 of the 15 sessions addressing cognitive skills, half of the requested amount for preparing a progress report ($224.42 of the recommended $448.83 fee), and the OCF-18 completion fee. Therefore, in addition to denying all three sessions focused on mental health and addictions, the respondent also declined to pay for the transportation fee ($508.00) and a fee for "Planning/Service" ($299.22).
44The medical records and reports submitted as part of the original hearing are replete with references to the applicant's psychological impairments. Also, aside from the new medical record from Dr. Bracken (dated May 9, 2019), these psychological complaints appear to be ongoing. For instance, as noted above, Dr. Marino found that the applicant had not yet "reached maximum psychological recovery", as he continued "to present with depressed and anxious affect". Yet, even though he found that additional psychological treatment was needed, Dr. Marino concluded that this treatment plan constituted a duplication of the services that the respondent had approved several months before (from a plan dated October 5, 2017).
45I do not share this concern, as it is clear that the applicant has continued to suffer from psychological and cognitive impairments. Ongoing support is warranted. I also highlight the fact that the respondent found it necessary to partially approve this suggested treatment, even though a similar plan had been already been approved. However, even though the respondent chose to partially approve this plan, it is still the applicant's onus to demonstrate that the outstanding amounts are reasonable and necessary. I am satisfied that he has met this onus, in part.
46First, the progress report (dated January 29, 2018) attached to this disputed treatment plan is highly detailed and fulsome in scope. It also appears to be an effective tool to help the applicant and his medical team chart an ever-evolving course of treatment. As such, I am satisfied that the full amount being requested for drafting a further progress report is both reasonable and necessary.
47Second, as evidenced again by this progress report, the psychotherapy proposed in the plan is a part of a comprehensive, rehabilitation regime. Therefore, so long as the overall amount of treatment being recommended is not excessive, I find it is appropriate to support the proposed treatment program in its entirety. As such, I find the applicant is entitled to the three sessions focused on mental health and addictions, as well as the three denied sessions addressing cognitive skills.
48Finally, I accept that the "Planning/Service" fee is reasonable and necessary. According to the plan, this service will be performed by Dr. Parkinson, who, according to the progress report, is an "adviser" in the applicant's treatment. His treatment regime includes a number of medical practitioners, therefore I am satisfied that some amount of coordination and planning is necessary to address the interdisciplinary nature of the applicant's care. Further, the proposed amount for this service is reasonable.
49However, I do not find that the transportation fees are reasonable and necessary. Once again, it is the applicant's onus of demonstrating that an expense is reasonable and necessary. Yet, I have no indication as to why transportation is necessary (nor is there any indication whether the distances being claimed are compensable under the Schedule). As such, I do not find that his evidentiary onus has been met.
50In sum, I find that the remaining amounts are all payable, except for the transportation fees. The applicant is entitled to an additional $1,353.46.
Psychological Assessment
51Since I have not been provided with a copy of the treatment plan for the disputed psychological assessment, I am, once again, unable to determine what assessment modalities will be used. I am also unable to compare these proposed services against the plan's treatment goals. As such, I am upholding my earlier decision to deny payment for this assessment.
52The applicant noted in his Request for Reconsideration that these plans were all included with his original application to the Tribunal, but this plan was not included with this document.
ORDER
53The applicant's Request for Reconsideration is granted, in part. Specifically, the respondent is ordered to pay for the disputed physiotherapy services and a part of the psychological services. He is not entitled to the psychological assessment. The applicant is also entitled to interest, in accordance with s. 51 of the Schedule.
54The respondent's Request for Reconsideration is dismissed.
Released: April 24, 2020
___________________________________
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.