Licence Appeal Tribunal
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.S]
Appellant(s)
and
RBC Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR: Rakesh Sharma
Appearances:
For the Appellant: Jeton Memeti, Paralegal
For the Respondent: Christine McKenna, Counsel
Heard: by way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on January 29, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') 1. The applicant applied for a medical benefit that was denied by the respondent. The applicant disagreed with the decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2The applicant was a front seat passenger in the vehicle that was hit on the rear passenger side by a third-party vehicle that made an abrupt right turn. Police arrived, however, there was no ambulance at the scene.
3The applicant received physical treatment by submitting a Treatment Confirmation Form (OCF-23) from [Clinic 1] .
4The applicant continued physical treatment under the treatment plan (OCF-18) dated June 10, 2016 for $1,100 completed by [Clinic 2].
5The applicant has not made a request for further physical therapy since the treatment plan (OCF-18) dated June 10, 2016.
6The applicant was removed by the respondent from the Minor Injury Guideline (the “MIG”) on August 23, 2016. The removal from the MIG was based on the psychological impairment identified by the respondent’s assessor Dr. Amena Syed, Psychologist. Dr. Syed’s report dated July 11, 2016 diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood.
7On September 19, 2016, the applicant submitted to the respondent, the disputed treatment and assessment plan (OCF-18) dated September 15, 2016 in the amount of $2,520 towards the cost of an orthopaedic assessment recommended by Dr. D.J. Ogilvie Harris, Orthopaedic Surgeon of All Health Medical Centre.
8The parties participated in a case conference but were unable to resolve the issues in dispute, resulting in an Order from the Tribunal dated March 14, 2019 for a written hearing to be conducted on the issues listed in the order.
ISSUES IN DISPUTE
9The following are the issues to be decided at this hearing:
- Is the applicant entitled to payment for the cost of examination in the amount of $2,520 for an orthopedic assessment recommended by All Health Medical Centre in a treatment plan dated September 15, 2016 and denied by the respondent on November 18, 2016?
- Is the applicant entitled to interest on any overdue payment of benefits?
- Is the applicant entitled to an award under Ontario regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
10Based on the totality of the evidence before me, I find that:
- The cost of orthopaedic examination in dispute in the amount of $2,520 is not necessary. Therefore, the applicant is not entitled to the cost of examination in the amount of $2,520. Since there is no benefit owing to the applicant, there is no interest or an award that is payable.
LEGAL FRAMEWORK:
11Section 38(1) (b) of the Schedule applies to all applications for approval of assessments or examinations.
12Section 38(2) refers to the satisfaction of requirements of subsection 38(3) for an insurer to be liable to pay an expense in respect of medical or rehabilitation benefit or an assessment or examination.
13Section 38(3) (c) requires a treatment and assessment plan to include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation.
Section 25 Cost of Examinations:
14Section 25(5)(a) of the Schedule states that the insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment of examination.
Burden of Proof:
15The applicant has the responsibility to prove on the balance of probabilities that the treatment and assessment plan in dispute is reasonable and necessary.
I. Is the orthopaedic assessment reasonable and necessary for the treatment or rehabilitation of the applicant?
16I find the orthopaedic assessment is not necessary for the treatment or rehabilitation of the applicant.
ANALYSIS
17The respondent removed the applicant from the MIG on August 23, 2016, based on its insurer examination report completed by Dr. Amena Syed, Psychologist.
18The applicant’s legal representative’s letter dated October 6, 2016 to All Health Medical Center for completing an orthopaedic assessment under the said treatment and assessment plan in dispute, states the purpose as determination of MIG and eligibility to IRB. Neither issue is before me. The respondent has removed the applicant from the MIG as of August 23, 2016, therefore, it makes the purpose of the orthopaedic assessment unnecessary, in respect of determination of the applicability of the MIG.
19I do not have to delve into the report dated October 9, 2016 of the applicant assessor Dr. Harris, the insurer examination report dated October 27, 2016 or the paper review report dated November 17, 2016 of the insurer assessor Dr. Siddiqui, to determine if the physical injuries sustained by the applicant would also remove the applicant from the MIG. Once the applicant is removed from the MIG the subsequent treatment and assessment plans are subject to the test of reasonable costs and necessary for the treatment or rehabilitation of the applicant.
20Thus, my analysis here will be restricted to whether the orthopaedic assessment proposed in the treatment and assessment plan (OCF-18) was necessary for the treatment or rehabilitation of the applicant, and if found to be necessary, whether the cost of the assessment was reasonable.
21I have reviewed both parties’ submissions and evidence on record, and I have only referenced what I find necessary to give context to my decision.
22I find the applicant is unable to show that she has not achieved maximal recovery from the physical therapy already received. There is no progress report or clinical notes and records (“CNRs”) from the treating health professionals documenting the applicant’s recovery/progress and residual complaints/ functional limitations of the applicant. Likewise, there is nothing from the health professionals recommending the additional treatment or assessment.
23The applicant took physical treatment at [Clinic 1] and [Clinic 2]. The treatment and assessment plan for orthopaedic assessment was submitted by All Health Medical Centre. The applicant has not undergone any treatment at All Health Medical Centre. The medical brief index forwarded to the assessor does not indicate if the treating health professional’s CNRs from [Clinic 1] and [Clinic 2] were also forwarded for review to determine the progress made and the residual complaints/ functional limitations necessitating the assessment.
24The injury and sequelae information under Part 6 of the said treatment and assessment plan in dispute, document the physical injuries as sprain and strain of cervical spine, lumbar spine, thoracic spine, shoulder joint, injury of muscle and tendon of neck level. The applicant has already received physical therapy for said impairments and it is not clear how these impairments necessitate an orthopaedic assessment.
25As required under section 38(3) (c) the additional comments forming part of the said treatment and assessment plan in dispute refer to pain and physical limitations that result in the applicant not being able to do activities important to her. The subjective reporting of the physical limitations by the applicant is not corroborated by the objective medical evidence provided by the applicant. The CNR’s of the applicant’s family physician, Dr. Dhillon do not support the applicant’s submissions that she suffers from pain and physical limitations from her post-accident activities, necessitating the orthopaedic assessment.
26The applicant relies upon the clinical notes and records of Dr. Dhillon, family physician. The notes submitted are for the period January 29, 2016, to December 10, 2016. On the day of the accident being January 29, 2016, the doctor’s note states “MVA, pain in neck, spine, right leg and right hip”. The February 29, 2016 note states, “physio right leg/hip and neck pain”. The March 24, 2016 note states, “Temporomandibular joint (TMJ) issues, Psych issues and ongoing Physio”. The May 13, 2016 note documents the patient’s subjective statement as “patient here for flu, going through physio treatment for ongoing pain, related to her MVA [motor vehicle accident] pain in her neck and shoulder, low back, she has stopped Rx [prescription medicine] for psych. The objective assessment was neck supple n rom [normal range of motion], tender para C spine, back n rom. The assessment and plan was post-MVA neck pain, cervical sprain, continue physio treatment, anxiety decreased concentration, patient was not able to tolerate Rx medicine given by psych”. The applicant did not see the family doctor after May 13, 2016 until December 10, 2016.
27The note dated December 10, 2016 documents the applicant’s subjective statement as “Left side shoulder pain, pain in upper back”. Dr. Dhillon’s objective assessment was “back mild tender parathoracic spine, no body tenderness, back some limitation of forward flexion, shoulder normal range of motion on the left.” Dr. Dhillon’s assessment and recommendation was: “Muscular pain upper neck, Reassurance to patient advised to use advil when necessary, that she currently not taking medication, May be having withdrawal symptoms, which have been worsening her muscular pain”.
28I find that the family physician notes before and after the submission of the orthopaedic assessment in dispute do not document any physical limitations of the applicant requiring an orthopaedic assessment. The family physician notes dated May 13, 2016 recommend the applicant to continue physiotherapy treatment and the note dated December 10, 2016 recommends use of advil. In my view, the medical evidence does not support the necessity of an orthopaedic assessment on a balance of probabilities
29The applicant also relies upon the psychological report dated August 24, 2016 and the psychological reassessment report dated October 14, 2016 of Dr. Pilowsky. The applicant refers to page 8 of the report stating the complaints of pain to neck, upper back, and shoulder. The report also refers to pain in her low back ankles (pre-existing now more intense), jaw and headaches.
30I assign minimal weight to the comment of a Psychologist stating “complaint of pain to neck, upper back and shoulder” in comparison to the CNRs of the family physician regarding physical impairment of the applicant in establishing an orthopaedic assessment as necessary for the treatment or rehabilitation of the applicant.
31The respondent asserts that the applicant has not attended facility-based treatment since July 2016. The respondent argues that the medical evidence of the applicant is indicative of soft tissue injuries and refers to the applicant’s medical evidence under (TAB 1 to 7) comprising of the CNR’s of Dr. Dhillon, OCF 3 dated January 29, 2016, X-ray dated January 29, 2016, and Decoded OHIP summary. The respondent states the applicant’s legal representative referral letter dated October 6, 2016 (TAB 14 Pages 144-221) to the clinic states that the purpose of the orthopaedic assessment was to comment on the MIG and IRB. The respondent refers to its insurer assessor Dr. Farhan Siddiqui’s insurer examination report dated October 27, 2016 (TAB10A) the report states that “the applicant has achieved maximum medical recovery, although she continues to have subjective symptoms.”
32The respondent denied the said orthopaedic assessment plan (OCF-18) on September 29, 2016 and arranged a paper review examination with Dr. Siddiqui, Physician, to determine if it was reasonable and necessary. The paper review report of Dr. Siddiqui dated November 17, 2016 (TAB13) indicates under Appendix A the medical documents reviewed by the Dr. Siddiqui and the observations arising out of the in-person examination on June 21, 2016. Dr. Siddiqui did not find any evidence of neurological or radicular injury and in Dr. Siddiqui opinion the applicant suffered soft tissue injuries that would be consistent with minor injuries. Dr. Siddiqui affirmed that from a musculoskeletal perspective the proposed assessment was not reasonable and necessary as the in-person examination did not find the applicant suffered from neurological or radicular injury.
33The applicant submits that the “the insurer assessor Dr. Farhan Siddiqui in the report dated October 27, 2016 is reserved in her opinion and fails to make an accurate diagnosis because the applicant is 18 years of old”. The respondent in its written submissions did not address the issue raised by the applicant. However, my review of the report (Applicant TAB5) starting with the heading “Diagnosis and Opinion” on Page 7 and followed by questions from 1 to 8 under the heading “Answers to Referral Questions” did not reveal any reserved opinions with reference to the applicants age. There is a sentence referring to the age of the applicant and the sentence reads as” Her examination at this assessment revealed a pleasant [young] female with no apparent distress”. In my view, this does not tantamount to a reserved opinion. The applicant does not elaborate how the assessor failed to make an accurate diagnosis. Further, my decision-making process is based on the evaluation of the medical evidence submitted by the applicant and not confined to the report of insurer assessor or the applicant assessor as the report’s objective was to determine the applicability of the MIG and MIG is not an issue in dispute.
34Based on the submissions of the parties and review of the evidence, I find that the applicant failed to prove on the balance of probabilities that she suffered from residual injuries/ physical limitations necessitating the orthopaedic assessment for treatment or rehabilitation. Therefore, the said orthopaedic assessment was not necessary for treatment or rehabilitation of the applicant.
II. Is the cost of orthopaedic assessment reasonable?
35Since the orthopaedic assessment was not necessary, therefore the analysis regarding the reasonableness of the cost of assessment was not required.
CONCLUSION
36I find the applicant is not entitled to the cost of the treatment and assessment plan (OCF18) in the amount of $2,520 for an orthopedic assessment recommended by All Health Medical Centre in a treatment plan dated September 15, 2016 and denied by the respondent on November 18, 2016?
37I find there is no interest owing to the applicant, as there is no benefit owing to the applicant.
38I find there is no award owing to the applicant, as there is no benefit owing to the applicant.
Released: July 13, 2020
Rakesh Sharma
Adjudicator