Licence Appeal Tribunal
Released: July 9, 2020
Tribunal File Number: 19-003433/AABS
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:
G.A. Applicant
and
Allstate Insurance Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES: For the Applicant: David Carranza For the Respondent: Michael Unea
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on December 16, 2017 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Is the applicant entitled to medical benefits recommended by Physio Fix & Fitness in treatment and assessment plans as follows; a. $6,060.23 for chiropractic and other services recommended in a plan dated April 26, 2018; b. $5,507.85 for chiropractic and other services recommended in a plan dated July 26, 2018; c. $2,652.15 for psychological services recommended in a plan dated March 14, 2019; and d. $2,616.20 for a physiatry assessment recommended in a plan dated July 25, 2018?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The April 26, 2018 treatment plan is reasonable and necessary for the applicant's accident-related injuries, except for the laser therapy and unapproved balance of the devices proposed in it. Further, the applicant is entitled to payment for any of the goods and services incurred relating to the treatment plan dated April 26, 2018, starting on May 29, 2018 and ending on August 16, 2018, regardless of the modality, because the respondent failed to deny the benefit in accordance with section 38 of the Schedule.
4The psychological services recommended in the plan dated March 14, 2019 are reasonable and necessary. The applicant is entitled to payment for any amounts incurred and if he has not incurred the treatment, may now do so and the respondent is liable to pay for it once properly invoiced.
5The applicant is not entitled to the treatment plan dated July 26, 2018, proposing chiropractic therapy and other services, nor the physiatry assessment recommended in the treatment plan dated July 25, 2018.
6The applicant is entitled to interest on issues 1) a and 1) c, pursuant to section 51 of the Schedule.
BACKGROUND
7The applicant was the driver of a sedan which struck another vehicle from behind. Police and ambulance attended at the scene of the collision. The applicant's vehicle was towed away. However, the applicant did not seek any medical attention that day.
8He visited his family physician, Dr. J. Solmon, two days later, complaining of neck, low back and shoulder pain, as well as headaches, insomnia, and flashbacks. He also advised that he stopped driving since the accident. Dr. Solmon diagnosed the applicant with neck, back, and bilateral rotator cuff strains, as well as myofascial headaches and anxiety. The applicant was prescribed naproxen and baclofen, and referred to physiotherapy. Following the visit with Dr. Solmon, the applicant engaged in treatments for which the respondent paid. The applicant later sought funding for additional treatments, listed as issues 1) a and 1) b, which the respondent denied. Additionally, the applicant sought funding for a physiatry assessment, listed as issue 1) d, but it was also denied by the respondent.
9The applicant also sought help for his psychological injuries sustained as a result of the accident. He was assessed by Dr. A. Bodnar, who produced a report dated May 8, 2018. Dr. Bodnar diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood and driver and passenger phobia and recommended cognitive-behavioural counselling treatment. The applicant engaged in cognitive-behavioural counselling treatment throughout 2018, for which the respondent paid. The applicant sought funding for a third treatment plan for cognitive-behavioural counselling treatment, listed as issue 1) c, which the respondent denied.
10The applicant now seeks payment for the four denied treatment and assessment plans.
Issue 1) a: the chiropractic treatment plan dated April 26, 2018
11The applicant submits this treatment plan is reasonable and necessary to reduce his pain and increase his strength, range of motion, endurance, and flexibility. He submits the treatment also helps him return to his activities of normal living. The respondent submits the treatment plan is not reasonable and necessary because, according to Dr. S. Halman, in the orthopaedic insurer's examination ("IE") report dated June 4, 2018, the applicant would not benefit from any further facility-based treatment.
12For the following reasons, I find most of the treatment plan dated April 26, 2018, proposing 4 chiropractic sessions, 24 exercise sessions, 24 laser therapy sessions, and 24 massage therapy sessions to be reasonable and necessary. I find the laser therapy and the remaining unapproved amounts for devices are not reasonable and necessary.
13Dr. Solmon's clinical notes and records ("CNRs") support the need for ongoing physiotherapy. At the time the plan was submitted, the applicant continued to experience pain and limitations which, according to Dr. Solmon, required treatment. The disability certificate completed by Dr. Solmon, dated February 28, 2018, noted the applicant's physical and psychological injuries, and advised that the applicant was unable to work as a result of the injuries. The estimated period of disability was indicated as greater than 12 weeks. A March 20, 2018 note in the CNRs states that the applicant was advised by Dr. Solmon to continue his present treatment. On April 27, 2018, Dr. Solmon noted the applicant's neck range of motion was normal but with pain, and that his range of motion in his shoulders was reduced. It also noted the applicant was restricted from lifting greater than 5 kilograms during his return to work. On May 24, 2018, the applicant was advised by Dr. Solmon to continue including more active modalities in the treatment of his ongoing pain. On July 4, 2018, the applicant was advised by Dr. Solmon to continue his current plan, which according to Dr. Solmon's records, include physiotherapy and psychological counselling.
14I find the applicant benefits from the treatment sought in the plan. The applicant was able to return to work as a hospital porter after engaging in a series of treatments such as spinal manipulative mobilizations, massage therapy, and physiotherapy. He also reported a reduction in pain following treatment. In fact, in the July 4, 2018 orthopaedic IE, the applicant reported a 75% improvement in symptoms since the accident.
15Dr. Halman's orthopaedic IE report dated July 4, 2018 is outweighed by the recommendations of Dr. Solmon. I prefer Dr. Solmon's CNRs over Dr. Halman's report due to the ongoing doctor-patient relationship between Dr. Solmon and the applicant. This relationship provides Dr. Solmon with greater insight into the applicant's recovery and needs because Dr. Solmon has first-hand knowledge of the applicant's pre-accident status and is, therefore, better equipped to assess the extent of the applicant's injuries and whether he has reached maximal recovery. Dr. Solmon regularly saw the applicant before and after the accident and recommended ongoing multi-modality treatment to address the applicant's accident-related injuries. On the other hand, Dr. Halman examined the applicant only once, found the applicant had reduced range of motion in his right shoulder and lumbar spine, but concluded the applicant did not require any facility-based treatment beyond 12 weeks after the accident. I see no evidence of bias or any other discrepancy within Dr. Solmon's records and find them to be compelling evidence in favour of additional treatment.
16The laser therapy treatment is not reasonable and necessary because there is no evidence in favour of it. The applicant led no evidence to show he previously received laser therapy or had any benefit from it. Laser therapy is a passive treatment and is contrary to Dr. Solmon's July 4, 2018 recommendation for the applicant to continue with his current plan while incorporating more active modalities.
17Similarly, there is no evidence or submissions on the applicant's entitlement to the unapproved balance of the devices proposed in the treatment plan. The treatment plan recommended an Obus Forme set and an electrical heating pad in addition to the therapies outlined previously. The respondent approved funding for these items at a lower rate. The applicant submits nothing to indicate the amounts proposed in the treatment plan are reasonable and necessary considering the respondent's partial approval.
Statutory entitlement to the April 26, 2018 treatment plan
18I find the applicant is statutorily entitled to the goods and services related to the April 26, 2018 treatment plan which were incurred starting on May 29, 2018 and ending August 16, 2018.
19The applicant submits that, contrary to section 38(8) of the Schedule, the respondent failed to provide the medical and all other reasons why the proposed goods and services are not reasonable and necessary.
20The respondent did not address this point directly but notes that the applicant was advised on May 25, 2018 that the treatment plan required a second opinion based on the injuries on file and medical documentation received to-date. Once the IE was conducted and the report was produced, the respondent again advised the applicant of its decision and provided him with Dr. Halman's July 4, 2018 report.
21I find the notice dated May 25, 2018 is not compliant with section 38(8) of the Schedule because it fails to provide the requisite medical reason for the denial. The reason provided by the respondent is that the plan is not reasonable and necessary based on the injuries sustained in the accident and review of the medical documentation on file. Mentioning injuries in the denial does not automatically make it a medical reason because, in this case, it fails to give the applicant any insight into the rationale for the decision.
22I find the denial dated August 16, 2018 is compliant with section 38(8) and, therefore, cures the deficiency in the May 25, 2018 denial. The medical reason for the August 16, 2018 denial is that the decision is based on Dr. Halman's report, which was enclosed in the denial, and advises that the balance of the treatment plan is not reasonable and necessary. The conclusion of the report finds that the balance of the April 26, 2018 treatment plan is not medically reasonable and necessary and notes that the applicant was found to sustain uncomplicated soft tissue injuries as a result of the accident with no pre-existing conditions impeding his recovery. It further finds that the treatment received by the applicant was sufficient for the injuries and there was no indication for further facility-based treatment.
23Pursuant to section 38(11)2, the applicant is entitled to the incurred goods and services starting on the eleventh business day following receipt and ending on the day a compliant notice is given. The treatment plan was submitted on May 11, 2018, making May 29, 2018 the eleventh business day when counting for the Victoria Day holiday. The period of entitlement ends when the respondent gave proper notice of the denial, on August 16, 2018.
Issue 1) b: the treatment plan dated July 26, 2018
24Unlike the April 26, 2018 treatment plan, I find the July 26, 2018 treatment plan is not reasonable and necessary due to a lack of contemporaneous medical records to support it.
25Dr. Solmon's CNRs do not support this treatment plan. Those records only cover the period ending with an August 10, 2018 visit, which was for a prior health condition unrelated to the accident. During the visit prior to that, on July 4, 2018, the applicant was advised to continue with his current plan, however I believe Dr. Solmon is referring to the April 26, 2018 treatment plan. As noted previously, Dr. Halman recommended the applicant engage in at-home exercises to address his residual impairments but this opinion was outweighed by Dr. Salmon's recommendation to continue with his treatment plan. The situation with the July 26, 2018 treatment plan is different in that there is no clear and favourable opinion from Dr. Salmon in favour of the July 26, 2018 treatment plan to outweigh Dr. Halman's recommendation.
26I find the progress report by Dr. D. Yen, a chiropractor at Physio Fix & Fitness, dated July 26, 2018, to be uncompelling evidence in support of this treatment plan. The report notes the applicant reported neck and back pain but, on examination, his neck and back range of motion were only mildly impaired. The progress report fails to examine the applicant's shoulder but later notes his shoulder issues have persisted. The progress report acknowledges the applicant's comprehensive and ongoing at-home active treatment plan, which is recommended in Dr. Halman's orthopaedic IE report dated July 4, 2018, but also recommends a further seven weeks of treatment at a rate of three times per week without saying why the facility-based treatment is required in addition to the home-based exercises. There are no CNRs to accompany the progress report and, as a result, there is no further context in which to assess whether the applicant requires ongoing facility-based treatment.
Issue 1) c: the psychological treatment plan dated March 14, 2019
27The applicant claims entitlement to the psychological treatment plan on the basis that his treating psychologist, Dr. Bodnar, recommended further treatment in a progress report dated March 9, 2019. He submits his family physician also recommended continued psychological treatment in a note dated April 12, 2019. The respondent submits the treatment is not reasonable and necessary according to the June 17, 2019 insurer's examination report by Dr. J. Murray, psychologist. The respondent submits the applicant reported to Dr. Murray that he received minimal benefit and temporary relief from psychological treatment. It also submits that there is an absence of compelling evidence to support the treatment.
28I find the psychological treatment plan is reasonable and necessary for the following reasons.
29The applicant continues to show symptoms of psychological injuries. Namely, he continues to use antidepressant medication, complains to assessors of fatigue and functional limitations associated with pain, continues to experience anxiety both while driving and as a passenger, and has only resumed driving in limited circumstances. These symptoms are consistently reported in the progress report dated March 9, 2019 and the June 17, 2019 IE.
30While the respondent's concern over the applicant's self-report to Dr. Murray of having received minimal benefit from treatment has merit, I find it is outweighed by Dr. Solmon's April 12, 2019 note, Dr. Bodnar's recommendation for further treatment and, to a lesser extent, the applicant's mildly elevated anxiety and depression Pain Patient Profile scores noted in Dr. Murray's report. Dr. Murray's IE report concludes the applicant's symptoms do not cross the threshold to warrant a DSM-5 diagnosis, and that the applicant requires no further psychological treatment. However, I find this position fails to appreciate that, despite not crossing the threshold for a DSM-5 diagnosis, the applicant continued to exhibit psychological symptoms such as avoidance behaviour and would, according to both Dr. Solmon and Dr. Bodnar, benefit from further psychological treatment.
Issue 1) d: the physiatry assessment plan dated July 25, 2018
31The applicant claims entitlement to the disputed physiatry assessment in order to develop a plan to reduce pain, increase strength and range of motion, and return to his activities of normal living. He also submits it is required to establish his correct diagnosis and extent of his injuries. The respondent submits the assessment is not reasonable and necessary because the applicant's physical symptoms are clearly soft tissue injuries which fail to require the intervention of a physiatrist. I agree.
32I find the physiatry assessment to be not reasonable and necessary because the applicant's physical injuries are consistently reported and diagnosed. Dr. Solmon found the applicant suffered from myofascial headaches as well as neck, back, and shoulder strains. Likewise with the applicant's chiropractor, Dr. Yen, and the IE assessor, Dr. Halman. Additionally, I see no evidence of any confusion between the applicant's treating medical professionals as to what treatment he requires. Dr. Yen consistently recommended various modalities of treatment which progressed to more self-directed active therapy and the applicant's family physician, Dr. Solmon, consistently advised the applicant to continue with his treatment and incorporate more active modalities.
INTEREST
33The applicant is entitled to interest on overdue payments pursuant to section 51.
CONCLUSION
34I find that the April 26, 2018 treatment plan is reasonable and necessary for the applicant's accident-related injuries however, I find the laser therapy and unapproved balance of the devices proposed in the treatment plan are not reasonable and necessary because there is no clear evidence in support of the goods and services. The applicant is entitled to payment for the reasonable and necessary goods and services incurred relating to this treatment plan, plus interest pursuant to section 51 of the Schedule.
35Additionally, as a result of the respondent's failure to provide a denial compliant with section 38(8) of the Schedule, the applicant is entitled to payment for any of the goods and services incurred relating to the treatment plan dated April 26, 2018, starting on May 29, 2018 and ending on August 16, 2018, regardless of the modality, plus interest pursuant to section 51 of the Schedule.
36The psychological services recommended in the plan dated March 14, 2019 are reasonable and necessary. The applicant is entitled to payment for the amounts incurred, plus interest pursuant to section 51 of the Schedule.
37The applicant is not entitled to the treatment plan dated July 26, 2018, proposing chiropractic therapy and other services, nor the physiatry assessment recommended in the treatment plan dated July 25, 2018.
Released: July 9, 2020
Brian Norris Adjudicator