E.M. v. Coachman Insurance Company, 2020 CanLII 35479

Citation: E.M. vs. Coachman Insurance Company, 2020 ONLAT 18-012570/AABS

Released Date: 04/14/2020

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:

E.M.

Applicant

and

Coachman Insurance Company

Respondent

DECISION

PANEL:

Melody Maleki-Yazdi, Adjudicator

APPEARANCES:

For the Applicant:

Victoria Gorbenko, Paralegal

For the Respondent:

Jason Goodman, Counsel

HEARD:

In writing on: September 23, 2019

OVERVIEW

1E.M. (“the applicant”) was injured in an automobile accident (“the accident”) on May 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when her claims for medical benefits and costs of examinations were denied by the respondent.

2The applicant’s position is that the respondent did not satisfy the notice requirements under s. 38(8) of the Schedule when it denied certain treatment plans and that these treatment plans should be deemed approved. Furthermore, the applicant submits that all the treatment plans in dispute should be found reasonable and necessary.

3The respondent’s submissions do not address s. 38. The respondent submits that it maintains its denials of the treatment plans in dispute.

ISSUES

4The following issues are in dispute for this hearing:

(i) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,805.76 (partially approved in the amount of $876.80) for chiropractic treatment recommended by Alexander Yu in a treatment plan (OCF-18) submitted on September 19, 2017, and denied on September 29, 2017?

(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,463.96 (partially approved in the amount of $2,369.35) for psychological treatment recommended by Bruce Cook in a treatment plan (OCF-18) submitted on December 18, 2017, and denied on January 2, 2018?

(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,200.00 for chiropractic treatment recommended by Alexander Yu in a treatment plan (OCF-18) submitted on October 24, 2017, and denied on November 3, 2017?

(iv) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,921.42 for chiropractic treatment recommended by Alexander Yu in a treatment plan (OCF-18) submitted on March 14, 2018, and denied on March 26, 2018?

(v) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,117.44 for psychological treatment recommended by Harinder Mrahar in a treatment plan (OCF-18) submitted on March 29, 2018, and denied on April 3, 2018?

(vi) Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Howard Jacobs in a treatment plan (OCF-18) dated March 7, 2018, and denied on March 22, 2018?

(vii) Is the applicant entitled to a cost of examination in the amount of $1,400.00 for a cognitive assessment recommended by Evgeni Amchislavsky in a treatment plan (OCF-18) submitted on February 14, 2018, and denied on February 26, 2018?

(viii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

(ix) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The respondent provided notices that did not satisfy the requirements in s. 38(8). Until the respondent provides notices as described in s. 38(8), I find that, pursuant to s. 38(11), the applicant is entitled to payments for the costs incurred, if any, for the following treatment plans: chiropractic treatment in the amount of $2,921.42; psychological treatment in the amount of $3,117.44; and a chronic pain assessment in the amount of $2,000.00.

6The applicant is entitled to the following treatment plans because they are reasonable and necessary:

(i) Chiropractic treatment in the amount of $3,805.76 (partially approved in the amount of $876.80);

(ii) Chiropractic treatment in the amount of $2,921.42;

(iii) Chiropractic treatment in the amount of $3,200.00; and

(iv) Psychological treatment in the amount of $3,117.44.

7The applicant is not entitled to the following treatment plans because they are not reasonable and necessary:

(i) Psychological treatment in the amount of $4,463.96 (partially approved in the amount of $2,369.35);

(ii) Chronic pain assessment in the amount of $2,000.00; and

(iii) Cognitive assessment in the amount of $1,400.00.

8The applicant is entitled to interest on any overdue payments of benefits.

9The applicant is not entitled to an award.

ANALYSIS

Did the respondent satisfy the notice requirements under s. 38(8) of the Schedule when it denied the applicant’s claims for the following treatment plans: chiropractic treatment in the amount of $2,921.42; psychological treatment in the amount of $3,117.44; and a chronic pain assessment in the amount of $2,000.00?

10The applicant submits that the respondent did not provide a medical reason in its notice letters when it denied certain treatment plans.

11Section 38(8) of the Schedule requires the insurer to, within 10 business days after receipt of a treatment plan, give the insured person notice identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide “the medical reasons and all of the other reasons” why the insurer considers what has been denied not to be reasonable and necessary.

12Failure to comply with s. 38(8) gives rise to two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline² (“the MIG”) applies. In this case, the respondent removed the applicant from the MIG as a result of psychological injuries, and therefore, s. 38(11)1 is of no consequence.

13Secondly, under s.38(11)2, an insurer who fails to provide the insured with proper notice of the reasons for denial must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8).

14The applicant relies on the analysis provided in M.B. v. Aviva Insurance Canada³ with respect to the meaning of “medical and any other reasons”. I agree with the reasoning in that decision that an insurer’s “medical and any other reasons” for denying a plan should include the specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Furthermore, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

15The applicant submits that the respondent did not provide a medical reason in its notice letters when it denied the following treatment plans:

(i) chiropractic treatment in the amount of $2,921.42, recommended by Dr. Alexander Yu (chiropractic) and submitted on March 14, 2018;

(ii) psychological treatment in the amount of $3,117.44, recommended by Dr. Harinder Mrahar (psychologist) and submitted on March 29, 2018; and,

(iii) chronic pain assessment in the amount of $2,000.00, recommended by Dr. Howard Jacobs (physician) and dated March 7, 2018.

16Specifically, the applicant submits that these notice letters do not include a reference to the applicant’s condition, nor do they include information about the applicant’s condition that the respondent requires. The applicant submits that these treatment plans should be deemed approved.

17The Explanation of Benefits (“EOBs”) that denied these treatment plans were all sent after the respondent’s determination on February 5, 2018 that the applicant was not subject to the MIG as a result of psychological injuries, and are similarly worded. The cover letters indicate that “enclosed is a copy of the OCF-18 confirming that we have denied the treatment request. Please read the Explanation of Benefits in its entirety.” Under the heading “additional comments,” all three EOBs state: “S 44 IE recommendations has been maxed in line with the reports provided to the claimant and legal rep.”

18I find that the EOBs are vague and do not provide the applicant with a meaningful explanation for the denials to allow the applicant to make an informed decision about whether to either accept or dispute the respondent’s decision. The basis for the respondent’s conclusion that the IE recommendations have been maxed has not been explained. These EOBs do not follow the requirements set out in the reconsideration decision noted above. Accordingly, I find that these EOBs do not satisfy the respondent’s obligations under s. 38(8).

19For all three treatment plans, pursuant to s. 38(11)2, the applicant is entitled to payment for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8). There is no evidence before me that the respondent ever gave proper notices in relation to these three treatment plans. Therefore, as a result of the respondent’s improper notices and until the respondent gives notices as described in s. 38(8), I find that the applicant is entitled to payments for the costs incurred, if any, for the chiropractic treatment in the amount of $2,921.42, the psychological treatment in the amount of $3,117.44 and the chronic pain assessment in the amount of $2,000.00.

Are the three treatment plans for chiropractic treatment reasonable and necessary?

20Sections 14-16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary.

21There are three treatment plans for chiropractic treatment that have been recommended by Dr. Alexander Yu (chiropractor). The first treatment plan is in the amount of $3,805.76 (partially approved in the amount of $876.80) and was submitted on September 19, 2017. The second treatment plan is in the amount of $3,200.00 and was submitted on October 24, 2017. The third treatment plan is in the amount of $2,921.42 and was submitted on March 14, 2018.

22As noted above, until the respondent provides notice as described in s. 38(8), I find that the applicant is entitled to payment for the cost incurred, if any, starting on the 11th business day after the respondent received the third treatment plan for chiropractic treatment in the amount of $2,921.42.

23The respondent submits that these treatment plans are not reasonable and necessary because of Dr. Steven Baker’s (physiatrist) opinion and prognosis, as well as surveillance evidence conducted of the applicant between November 18, 2018 and December 8, 2018 (approximately 1.5 years after the accident).

24Dr. Baker conducted an IE assessment on January 12, 2018. In his report dated January 31, 2018, he opined that the applicant would benefit from a modicum of training and instruction on strengthening exercises for her shoulder girdle and upper and mid back, and deemed only six sessions reasonable. He concluded by stating that the applicant’s prognosis is favourable for a complete recovery.

25The respondent submits that the surveillance depicts the applicant participating in her pre-accident life without any visible signs of pain or restrictions, as evidenced by her exercising with no restrictions or assistive devices. She is also seen using her vehicle on a daily basis and working at the front desk of her place of employment without any visible signs of pain, restrictions or aids.

26I find that all three treatment plans, in the amounts of $3,805.76 (partially approved in the amount of $876.80), $2,921.42 and $3,200.00, are reasonable and necessary.

27Both parties’ submissions indicate that they agree that the applicant attended treatment at the clinic, Mediwise, from May 27, 2017 to April 18, 2018. The clinical notes and records of Dr. Rafid Mahdi (the applicant’s family physician) dated October 15, 2017, indicate that he advised her to continue with physiotherapy for neck and local treatment. The notes from October 11, 2018, indicate that she still has neck pain with movement. On that date, Dr. Mahdi referred her to a neurologist and a pain clinic.

28I find that the chiropractic treatment was effective in helping the applicant resume her gym attendance and transition to new employment. I find that the treatment plan in the amount of $3,805.76 (partially approved in the amount of $876.80), which included a combination of chiropractic treatment and massage therapy, as well as the treatment plan in the amount of $2,921.42, which included chiropractic treatment, would be beneficial in reducing the applicant’s pain, increasing her strength, returning her to activities of normal living and returning her to pre-accident work-activities. These treatment plans include physiotherapy modalities and a rehabilitation exercises program as well.

29I also find that the treatment plan in the amount of $3,200.00, which recommends chiropractic treatment, specifically shockwave and laser therapy, would be beneficial with pain reduction, increased range of motion, return to activities of normal living and return to pre-accident work activities.

Are the two treatment plans for psychological treatment reasonable and necessary?

30There are two treatment plans for psychological treatment in dispute. The first treatment plan, recommended by Dr. Bruce Cook (psychologist), is in the amount of $4,463.96 (partially approved in the amount of $2,369.35) and was submitted on December 18, 2017. The second treatment plan, recommended by Dr. Harinder Mrahar (psychologist), is in the amount of $3,117.44 and was submitted on March 29, 2018.

31As noted above, until the respondent provides notice as described in s. 38(8), I find that the applicant is entitled to payment for the cost incurred, if any, starting on the 11th business day after the respondent received the second treatment plan for psychological treatment in the amount of $3,117.44.

32I find that the second treatment plan for psychological treatment in the amount of $3,117.44 is reasonable and necessary, but that the first treatment plan for psychological treatment in the amount of $4,463.96 (partially approved in the amount of $2,369.35) is not reasonable and necessary.

33The applicant was assessed by Dr. Bruce Cook (psychologist) on December 12, 2017, and in a report dated December 14, 2017, he diagnosed the applicant with Mild Depressive Episode with Somatic Symptoms and Specific Phobia (Driver-Passenger) Phobia. He suggested that the applicant begin with sixteen 1.5 hour sessions and be re-evaluated for the need for more sessions by a progress report at the end of the tenth session. He suggested 1.5 hour sessions because psychotherapy treatment related to traumatic events may utilize techniques that require the client to recall or be re-exposed to the traumatic memory of the event.

34Dr. Aleksandra Nesovic (psychologist) conducted an IE assessment on January 13, 2018. In her report dated January 31, 2018, she diagnosed the applicant with Adjustment Disorder with Anxiety. Dr. Nesovic concluded that ten 1 hour sessions, instead of sixteen 1.5 hour sessions as recommended in Dr. Cook’s treatment plan, would be sufficient to address outstanding psychological sequalae of the accident. The respondent partially approved the treatment plan for the ten 1 hour sessions.

35Both Dr. Cook and Dr. Nesovic diagnosed the applicant with a psychological condition or impairment. The second treatment plan in the amount of $3,117.44 is reasonable and necessary because I place weight on the psychological progress report dated March 24, 2018, by Dr. Harinder Mrahar (psychologist). Dr. Mrahar indicates that the applicant completed ten psychotherapy sessions from December 28, 2017 to March 24, 2018. He opines that the applicant’s improvement is still in an early stage and he recommends an additional ten 1.5 hour sessions that would provide her the opportunity to refine, adopt and consolidate all the new strategies she has been practicing in order to cope with her psychological and emotional difficulties. Therefore, the applicant is entitled to this treatment plan so that she can further her progress.

36The first treatment plan in the amount of $4,463.96 (partially approved in the amount of $2,369.35) is not reasonable and necessary. The evidence indicates that the applicant completed the ten one hour sessions that were approved by the respondent from this treatment plan. Dr. Mrahar recommends an additional ten 1.5 hour sessions in his treatment plan, that I have found to be reasonable and necessary. Therefore, I find that the applicant is not entitled to the remainder of the first treatment plan because it would be a duplication of service.

Is the chronic pain assessment reasonable and necessary?

37As noted above, until the respondent provides notice as described in s. 38(8), I find that the applicant is entitled to payment for the cost incurred, if any, starting on the 11th business day after the respondent received the treatment plan for the chronic pain assessment in the amount of $2,000.00.

38I find that the chronic pain assessment, recommended by Dr. Howard Jacobs (physician) is not reasonable and necessary. The applicant is not entitled to this treatment plan because I am not convinced that she requires an assessment to determine whether she experiences chronic pain as a result of the accident.

39The applicant does not provide submissions about why this treatment plan is reasonable and necessary. The “additional comments” section of the treatment plan indicates that the goal is to evaluate the extent of the applicant’s injuries/pain, in order to form a diagnosis and, if need be, formulate a plan of action to manage the disease.

40The respondent relies on Dr. Baker’s IE reports and the surveillance evidence.

41I find that there is no evidence before me that the applicant experiences constant and/or severe pain as a result of the accident. There is also no evidence that the applicant experiences functional limitations as a result of physical pain caused by the accident. The applicant submits that she has resumed her gym attendance and transitioned to new employment. The surveillance conducted of the applicant also confirms this information. Therefore, there is no compelling evidence that the applicant requires an assessment to determine whether she experiences chronic pain as a result of the accident.

Is the cognitive assessment reasonable and necessary?

42I find that the cognitive assessment, recommended by Evgeni Amchislavsky (occupational therapist) is not reasonable and necessary. The applicant is not entitled to this treatment plan because I am not convinced that she requires an assessment to determine whether she experiences cognitive difficulties as a result of the accident.

43The applicant has not provided submissions about why this treatment plan is reasonable and necessary. The “additional comments” section of the treatment plan indicates that the applicant, upon more than one occasion, has voiced subjective complaints regarding her cognitive functioning since the accident.

44The respondent relies on Dr. Nesovic’s IE report dated January 31, 2018, and the paper review dated April 4, 2018, which addresses the applicability of this treatment plan. During the assessment on January 13, 2018, the applicant reported some negative changes to her concentration and also reported that there has not been a noticeable change in her ability to retain information and recall information. In the paper review, Dr. Nesovic concludes that the cognitive assessment is not reasonable and necessary because the applicant did not indicate that changes in her cognitive functioning were adversely affecting her everyday activities.

45Although the applicant may experience some negative changes to her concentration, there is no indication that these negative changes affect her activities of daily living. I find that there is no compelling evidence that the applicant requires an assessment to determine whether she experiences cognitive difficulties as a result of the accident.

Is the applicant entitled to an award under Regulation 664?

46Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.

47I find that an award is not warranted.

48The applicant submits that an award is justified because although the respondent submits that the applicant was removed from the MIG on February 5, 2018, after that date, the respondent continued to state that the MIG was an issue in dispute. In its denial letter dated February 26, 2018, in relation to the treatment plan for the cognitive assessment, the respondent states that the applicant has reached the MIG limit. Furthermore, the case conference Order for this matter from the case conference on May 14, 2019, sets out the MIG as an issue in dispute.

49I agree with the applicant that after the February 5, 2018 date which the respondent submits was the date that the applicant was removed from the MIG, the respondent continued to raise the MIG as an issue on February 26, 2018 and again at the case conference on May 14, 2019. However, I do not find that respondent was unreasonably withholding payment or delaying payment to the applicant. I conclude above that the cognitive assessment is not reasonable and necessary. Therefore, the applicant is not entitled to an award.

CONCLUSION

50The respondent provided notices that did not satisfy the requirements in s. 38(8). Until the respondent provides notices as described in s. 38(8), I find that, pursuant to s. 38(11), the applicant is entitled to payments for the costs incurred, if any, for the following treatment plans: chiropractic treatment in the amount of $2,921.42; psychological treatment in the amount of $3,117.44; and a chronic pain assessment in the amount of $2,000.00.

51The applicant is entitled to the following treatment plans because they are reasonable and necessary:

(i) Chiropractic treatment in the amount of $3,805.76 (partially approved in the amount of $876.80);

(ii) Chiropractic treatment in the amount of $2,921.42;

(iii) Chiropractic treatment in the amount of $3,200.00; and

(iv) Psychological treatment in the amount of $3,117.44.

52The applicant is not entitled to the following treatment plans because they are not reasonable and necessary:

(i) Psychological treatment in the amount of $4,463.96 (partially approved in the amount of $2,369.35;

(ii) Chronic pain assessment in the amount of $2,000.00; and

(iii) Cognitive assessment in the amount of $1,400.00.

53The applicant is entitled to interest on any overdue payments of benefits.

54The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (Reconsideration).