Tribunal File Number: 18-008890/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:
A.L.
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
A.L.; Applicant
Gary Mazin, Counsel
Pabla Manreet, Counsel
For the Respondent:
Radhana Singh, Claims Representative
Amanda Lennox, Counsel
Rebecca Brown-Greer, Counsel
Court Reporter:
Conner McTague
HEARD:
In-Person on December 2-6 and 9-10, 2019
Closing Submissions via teleconference on January 10, 2020
OVERVIEW
1The applicant (“A.L.”) was injured in an automobile accident on August 23, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)1 from Unica Insurance Inc. (“Unica”), the respondent.
2A.L. submitted an Application for Determination of Catastrophic Impairment Form (“OCF-19”) dated April 2, 2018 because he alleged that he sustained a catastrophic (“CAT”) impairment as a result of the accident.
3Unica denied that A.L. sustained a CAT impairment as a result of the accident and also denied certain benefits sought by A.L. including attendant care benefits, various medical benefits and assessments.
4As a result, A.L. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute. As a result, an in-person hearing was scheduled which ended with closing submissions via teleconference.
ISSUES IN DISPUTE
5The following are the issues to be decided:2
Did A.L. sustain a CAT impairment as a result of the accident as defined by the Schedule?
Is A.L. entitled to attendant care benefits in the total amount of $9,430.72 for the period of October 2017 to September 2019 as particularized in Appendix A?
Is A.L. entitled to $9,040.00 ($16,272.00 less $7,232.00 funded) for a multidisciplinary CAT impairment evaluation recommended by Omega Medical Associates in a treatment and assessment plan (“OCF-18”) dated August 22, 2017, and responded to by Unica on September 12, 2017?
Is A.L. entitled to $4,494.60 for rehabilitation services and assistive devices recommended by Ross Rehabilitation in an OCF-18 dated July 25, 2016, and denied by Unica on October 25, 2016?
Is A.L. entitled to $2,240.00 for Bioflex laser therapy and chiropractic treatment and assessment recommended by Dr. Shawn Suprin Chiropractic in an OCF-18 dated August 15, 2017, and denied by Unica on February 8, 2018?
Is A.L. entitled to physiotherapy recommended by Great Lakes Physiotherapy as follows:
$2,464.24 in an OCF-18 dated January 24, 2018, and denied by Unica on February 8, 2018?
(a) $1,666.16 in an OCF-18 dated July 16, 2018, and denied by Unica on July 27, 2018?
(b) $1,267.00 in an OCF-18 dated December 5, 2018, and denied by Unica on December 12, 2018?
(c) $1,267.00 in an OCF-18 dated June 10, 2019 and denied by Unica on June 10, 2019?
(d) $1,267.00 in an OCF-18 dated September 4, 2019, and denied by Unica on September 12, 2019?
Is A.L. entitled to $2,200.00 ($4,400.00 less $2,200.00 approved) for a neuropsychological examination and a neurocognitive examination recommended by Storrie, Velikonja and Associates set out in two separate OCF-18s both dated June 1, 2016 and partially denied by Unica on September 23, 2016?
Is A.L. entitled to $2,144.63 for an attendant care assessment recommended by Ross Rehabilitation in an OCF-18 dated February 26, 2019, and denied by Unica on March 28, 2019?
Is A.L. entitled to interest on any overdue payment of benefits?
Is A.L. entitled to an award under Regulation 664 because Unica unreasonably withheld or delayed the payment of benefits?
RESULT
6Based on the evidence before me, I find that:
(i) A.L. did not sustain a CAT impairment as a result of the accident;
(ii) A.L. is not entitled to attendant care benefits from October 2017 to September 2019;
(iii) The cost of A.L.’s multidisciplinary CAT impairment assessment is not to be included in A.L.’s non-CAT medical and rehabilitation benefits limits. As a result, I find that A.L.’s non-CAT medical and rehabilitation limits have not been exhausted;
(iv) A.L. is entitled to the following portions of the multidisciplinary CAT impairment assessment plus interest in accordance with s. 51 of the Schedule: Physiatry assessment ($2,000.00); Psychology assessment ($2,000.00); Cognitive assessment ($2,000.00); Occupational Therapy assessment – in-home ($2,000.00); Occupational Therapy assessment – community ($2,000.00); Overall Assessment Summary, Analysis and Final Rating ($2,000.00); OCF-19 completion ($200.00); and OCF-18 completion ($200.00). A.L. is not entitled to the clinical file review/triage assessment ($2,000.00);
(v) A.L. is partially entitled to the August 15, 2017 treatment plan for Bioflex Laser Therapy and chiropractic treatment and assessment in the amount of $1,160.00 plus interest in accordance with s. 51 of the Schedule. A.L. is not entitled to the portion of this treatment plan for Bioflex Laser Therapy;
(vi) A.L. is entitled to the following physiotherapy treatment plus interest in accordance with s. 51 of the Schedule:
(a) $2,464.24 in the January 24, 2018 OCF-18;
(b) $1,666.16 in the July 16, 2018 OCF-18;
(c) $1,267.00 in the December 5, 2018 OCF-18;
(d) $1,267.00 in the June 10, 2019 OCF-18; and
(e) $1,267.00 in the September 4, 2019 OCF-18;
(vii) A.L. is not entitled to the July 25, 2016 OCF-18 for rehabilitation services and assistive devices or to the proposed attendant care assessment;
(viii) The two June 1, 2016 OCF-18s for a neuropsychological examination and a neurocognitive examination constitute one assessment. As Unica has paid the maximum amount for any one assessment under the Schedule of $2,200.00, A.L. is not entitled to the unpaid amount of these OCF-18s; and
(ix) A.L. is not entitled to an award under Regulation 664.
ANALYSIS
CAT Impairment
7A.L. bears the onus of establishing, on the balance of probabilities, that, as a result of the accident, he sustained a CAT impairment. Jurisprudence has held that this determination is a legal test and not a medical one.3
8In this matter, A.L. relies upon the CAT impairment definition under s. 3(2)(e) of the Schedule, which is an impairment or a combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”), results in a whole person impairment (“WPI”) of 55% or more, which is referred to as a “Criterion 7” impairment.
9For the reasons that follow, I find that A.L. has failed to prove on a balance of probabilities that he sustained a Criterion 7 CAT impairment as a result of the accident.
Criterion 7 Impairment
10The Guides are a compilation of chapters, which contain specific rating criteria for the degree of impairment of individual body systems. Each chapter is dedicated to a particular body system. In order to arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain an individual impairment rating. Once all the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating. As stated above, a total WPI of 55% or more is required for a finding that A.L. sustained a CAT impairment under Criterion 7.
11A.L. relied upon the following various total combined WPI assignments to support his position that he sustained a CAT impairment under Criterion 7:
Body System
WPI as of April 2, 2018
WPI as of January 29, 2019
WPI as of November 4, 2019
WPI as of November 26, 2019
Upper Extremity Rating
Provisional 12% (6% WPI for each side)
Provisional 12% (6% WPI for each side)
12% (6% WPI for each side)
12% (6% WPI for each side)
Lower Extremity Rating
2%
2%
2%
2%
Cervicothoracic Spine
15%
15%
15%
15%
Disturbances of Mental Status
11%
11%
11%
0%
Mental or Behavioural Impairment Rating
22%
22%
22%
25%
Skin
1%
1%
1%
1%
Sleep Impairment
9%
9%
9%
9%
Neurological Rating
Not rated
4% (adopted from Unica’s ratings)
4%
4%
TOTAL WPI
55%
57%
57%
53% Rounded to 55%
12Unica’s position is that A.L.’s total WPI rating was 30%, which is comprised of the following:
Body System
Unica’s ratings
Upper Extremity Rating
0%
Lower Extremity Rating
2%
Cervicothoracic Spine
15%
Disturbances of Mental Status
1%
Mental or Behavioural Impairment Rating
7%
Skin
Not rated
Sleep Impairment
Not rated
Neurological Rating
4%
TOTAL WPI
27% WPI Rounded to 30% WPI
Disturbances of Mental Status and Mental/Behavioural Impairment Ratings
13I place no weight on A.L.’s impairment ratings for disturbances of mental status and mental or behavioural impairments for the following reasons.
14Dr. Giselle Braganza, neuropsychologist, assessed A.L. on January 8, 2018 which resulted in Dr. Braganza authoring two reports. Those reports were relied upon by Dr. Harold Becker, physician, in his April 2, 2018 Catastrophic Impairment Summary & Analysis Report4 to arrive at A.L.’s initial total combined WPI rating of 55%.
15First, Dr. Braganza authored a Cognitive Screen dated January 23, 20185 in which she assigned A.L. a WPI rating range of 1-14% for disturbances of mental status.6 Dr. Braganza further narrowed her opinion to a range of 9-11%7 noting that the primary contributors to A.L.’s cognitive symptomatology were likely related to residual cognitive impairments resulting from his traumatic brain injury, as well as headache, pain, fatigue, dizziness and emotional distress. Dr. Braganza, however, did not assign the 11% WPI for disturbances of mental status as this WPI was assigned by Dr. H. Becker in his April 2, 2018 report.
16Second, Dr. Braganza authored a Mental/Behavioural Evaluation report dated January 23, 20188 in which she initially assigned A.L. a range of 15-22% WPI for mental or behavioural impairments which she further narrowed to 22% WPI.9
17A.L. also submitted as evidence a November 26, 2019 Psychological Addendum Report by Dr. Braganza, which was dated less than one week prior to the start of the in-person hearing. In this addendum report, Dr. Braganza:
(i) Retracts her opinion in assigning A.L. a 9-11% WPI impairment range for disturbances of mental status and, instead, assigns A.L. a 0% WPI; and
(ii) Increases her assignment of A.L.’s mental or behavioural impairment rating to a range of 19-25% WPI with a final WPI rating for mental or behavioural impairment of 25% WPI.
18Dr. H. Becker testified at the hearing that he had not reviewed Dr. Braganza’s November 2019 addendum report and that he was not aware that Dr. Braganza had changed her opinion regarding her impairment ratings of A.L. Dr. H. Becker further stated that he:
(i) Seriously disagreed with Dr. Braganza’s methodology in changing her opinion based on external factors recorded by other assessors which he described as “totally inaccurate;”
(ii) Did not understand how Dr. Braganza changed her opinion so drastically and found it “highly unusual;” and
(iii) Did not “sign on” to Dr. Braganza’s changes in her November 2019 Addendum but agreed that based on Dr. Braganza’s changes, A.L.’s total combined WPI rating would be 53%.
19Dr. Braganza attended the hearing and testified that her opinion changed from her original report following her review of an IE Independent Neuro-Psychological Assessment Report by Dr. Jana Atkins, psychologist, dated December 19, 2017. Dr. Braganza testified that she initially believed that A.L.’s cognitive difficulties were as a result of a combination of his brain injury and other factors such as his emotional difficulties, pain and fatigue. After reviewing Dr. Atkins’ report, however, Dr. Braganza determined that A.L.’s impairments were not brain injury related, but instead were solely attributable to his emotional difficulties, pain and fatigue. As a result, Dr. Braganza retracted her initial 9-11% WPI rating for disturbances of mental status but increased A.L.’s mental or behavioural impairment rating to encompass A.L.’s continuing cognitive challenges.
20When questioned on cross-examination regarding the timing of her addendum report, Dr. Braganza revealed that she actually produced an earlier addendum report in May 2019 in which she retracted her initial 9-11% WPI range for A.L.’s disturbances of mental status impairment rating and assigned a 0% WPI but did not increase her WPI rating for A.L.’s mental or behavioural impairments.
21Dr. Braganza confirmed that she did not bring a copy of the May 2019 addendum report with her to the hearing despite confirming at the outset of her testimony that she brought her complete file with her. Dr. Braganza explained that she did not bring the May 2019 addendum report because it was “the exact same” as her November 2019 addendum report. I find Dr. Braganza’s rationale for failing to bring the May 2019 addendum report to the hearing to be incredulous, especially because Dr. Braganza later confirmed in cross-examination that her May 2019 addendum report arrived at a “completely different conclusion” than the November 2019 addendum report. Even more unsettling, Dr. Braganza testified that in preparation for A.L.’s hearing, she spoke with A.L.’s counsel about her May 2019 addendum report.
22At no time during the course of the hearing was Dr. Braganza’s May 2019 addendum report submitted into evidence. When I inquired about the non-disclosure of the report during closing submissions, Ms. Pabla was the only counsel present for A.L. and informed me that she had no information on it and therefore could not provide submissions on this issue. From the hearing, it was obvious that the non-disclosure of the May 2019 addendum report needed to be addressed. Having only Ms. Pabla attend for closing submissions, in my opinion, was a strategic effort to thwart any meaningful responses to my inquiries and demonstrated a withholding of information from both the Tribunal and from Unica.
23I agree with Unica that an adverse inference should be drawn as to the information contained in Dr. Braganza’s May 2019 addendum report such that this report would not support A.L.’s position that he sustained a CAT impairment as a result of the accident. It is also very clear that the May 2019 addendum report was relevant information for the hearing because without the 9-11% WPI rating originally assigned by Dr. Braganza for A.L.’s disturbances of mental status, A.L.’s total WPI would have been 46%.10 As such, A.L.’s total WPI following the May 2019 addendum report would have been below the required 55% WPI for a finding of CAT impairment under Criterion 7.
24Based on Dr. H. Becker’s criticisms of Dr. Braganza’s change in WPI ratings, the failure to produce Dr. Braganza’s May 2019 addendum report, the adverse inference that I have drawn from it and Dr. Braganza’s inconsistent testimony regarding bringing her entire file to the hearing, I find the totality of Dr. Braganza’s evidence and testimony to be unreliable and not credible. As a result, I am not able to place any weight on Dr. Braganza’s original or revised WPI ratings.
25To conclude, even if I were to accept all of the other remaining WPI percentages ultimately advanced by A.L., which I do not as I remain concerned about other methodologies used in assigning A.L.’s other WPI ratings which need not be canvassed at this stage given my other findings, and add Unica’s 1% WPI and 7% WPI for disturbances of mental behaviour and mental or behavioural impairments, respectively, A.L.’s maximum combined total WPI percentage is 42% WPI. A 42% WPI is well below the required threshold of 55% WPI for a finding of a CAT impairment. Therefore, I find that A.L. has failed to prove on a balance of probabilities that he sustained a CAT impairment as a result of the accident under criterion 7 as set out in s. 3(2)(e) of the Schedule.
Attendant Care Benefits
26A.L. is not entitled to attendant care benefits beyond 104 weeks (two years) post-accident11 as I have found that he has failed to prove on a balance of probabilities that he sustained a CAT impairment as a result of the accident.
27As the period in dispute for attendant care in this matter is from October 2017 to September 2019, I find that A.L. is not entitled to attendant care benefits during this time and, therefore, is not entitled to the total amount of $9,430.72 for attendant care benefits as particularized in Appendix A.
A.L.’s Medical and Rehabilitation Benefits
28The parties initially confirmed at the hearing that A.L.’s non-CAT medical and rehabilitation benefits limit had been exhausted.
29In closing submissions, however, the parties confirmed that the $7,232.00 that was paid towards A.L.’s multidisciplinary CAT assessment had been included by Unica in A.L.’s non-CAT medical and rehabilitation monetary benefit limit. A.L. argued that Unica improperly included the payment made towards A.L.’s multidisciplinary CAT impairment assessment in A.L.’s non-CAT medical benefit limit and, as such, A.L.’s non-CAT medical and rehabilitation monetary benefit limit has not been exhausted. To support this position, A.L. relied upon the reconsideration decision of J.M. v. Aviva General Insurance12 in which Vice Chair Flude upheld the Tribunal’s hearing decision which determined that the cost of a multidisciplinary CAT impairment assessment is not included in the non-CAT medical and rehabilitation benefits limits under the Schedule.13
30Unica did not agree and maintained that its payment for A.L.’s multidisciplinary CAT impairment assessment was properly included in A.L.’s non-CAT medical and rehabilitation benefits monetary limits. Unica relied upon the decision of C.A. v Intact Insurance Company14 which was upheld on reconsideration.15 In the hearing decision in that matter, I referenced a previous decision of the Tribunal and found that each of the modalities of a multidisciplinary CAT impairment assessment is a request for a “medical benefit” and that the test for determining entitlement to a medical benefit was well-established as reasonable and necessary.16 Unica argued that my reference to medical benefits in relation to the individual modalities of the multidisciplinary CAT impairment assessment should result in a finding that a CAT impairment assessment was correctly included in A.L.’s non-CAT medical and rehabilitation monetary limits.
31While I agree with Unica that I used the term “medical benefits” in C.A. v Intact, the issue of whether or not CAT impairment assessments were included in non-CAT medical and rehabilitation benefits was not in dispute in that matter. In fact, my use of the term “medical benefits” was a direct reference to the Tribunal’s decision in 16-002858 v State Farm insurance Company.17 The use of the term “medical benefits” in State Farm was addressed in relation to the issue of whether or not CAT impairment assessments were included in the non-CAT medical and rehabilitation benefit funding limit in the decision of 17-007500 v. Unica Insurance Inc.18 In 17-007500, Adjudicator Mazerolle held that the use of the term “medical benefits” in State Farm did not change his conclusion that CAT assessments are not included in the non-CAT medical and rehabilitation benefit limits. Adjudicator Mazerolle held that the Tribunal is not concerned with the characterization of the assessments per se, but rather with the purpose for conducting the assessments as it is the assessments’ relationship to benefits and payments that is guiding. As such, I find that despite my use of the term “medical benefits” in C.A. v. Intact, assessments for the purpose of determining CAT impairments are not benefits. CAT impairment assessments are not directly connected to a benefit or payment, but their purpose is rather to allow an applicant access to enhanced benefits.
32For all of these reasons, I agree with A.L. and find that the amount paid by Unica toward his multidisciplinary CAT impairment assessment is not to be included in A.L.’s non-CAT medical and rehabilitation benefits limits. As a result, I must now determine:
(i) if A.L. is entitled to the unpaid portions of his multidisciplinary CAT impairment assessment; and
(ii) A.L.’s entitlement to the remaining disputed treatment plans as I find that A.L.’s non-CAT medical and rehabilitation benefits have not been exhausted.
CAT Impairment Assessment
33Section 25(1)5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.
34To determine entitlement, A.L. must prove on a balance of probabilities that each constituent assessment that makes up the multidisciplinary CAT impairment determination assessment is reasonable and necessary. For the reasons that follow, I find that A.L. is entitled to the costs of all of the individual assessments that comprise the multidisciplinary CAT assessment except for the clinic file review/triage assessment. A.L. is also entitled to payment for completion of the OCF-18 and the OCF-19.
35Dr. H. Becker completed the disputed treatment plan dated August 22, 2017 which sought funding for a multidisciplinary CAT assessment in the total amount of $16,272.00, comprised of the following:
(i) Physiatry assessment ($2,000.00);
(ii) Psychological assessment ($2,000.00);
(iii) Cognitive assessment ($2,000.00);
(iv) Occupational therapy assessment – in-home ($2,000.00);
(v) Occupational therapy assessment – community ($2,000.00);
(vi) Clinical file review/triage assessment ($2,000.00);
(vii) Overall assessment summary, analysis and final rating ($2,000.00);
(viii) OCF-19 completion ($200.00); and
(ix) OCF-18 completion ($200.00).
36The treatment plan failed to identify any goals that the treatment plan sought to achieve noting only “n/a – CAT Application.” There were no attachments, or any explanation provided with the treatment plan regarding its reasonableness and necessity.
37On September 12, 2017, Unica agreed to pay $7,232.00 towards the treatment plan for the multidisciplinary CAT impairment assessment which represented the balance remaining at that time of A.L.’s non-CAT medical and rehabilitation benefits. Unica did not deny or approve any specific individual components of the OCF-18.
38Despite not receiving full funding for the assessment from Unica, A.L. proceeded with all of the proposed assessments and was invoiced for the total amount of the treatment plan.
39The only submissions made by A.L. regarding the OCF-18 for the multidisciplinary CAT assessment was that Unica’s partial denial of the OCF-18 was improper and unreasonable as it was based upon A.L. exhausting his medical and rehabilitation benefits. Unica also failed to make any submissions regarding the reasonableness and necessity of this OCF-18. Instead, it maintained its position, which I disagree with as discussed above in paragraphs [28] to [32], that CAT impairment assessments are properly payable as medical and rehabilitation expenses which were exhausted.
40Simply put, I was not provided with any argument or analysis related to this OCF-18 from either party to guide me in assessing whether or not each individual component of the multidisciplinary CAT assessment was reasonable and necessary. Nonetheless, the fact that A.L. failed to make submissions does not mean that I should automatically find that he is not entitled to this treatment plan. Rather, my decision should be based first and foremost on the evidence that I have before me.
41The most persuasive evidence that I have before me to support the reasonableness and necessity of the multidisciplinary CAT assessment treatment plan is Unica’s May 16, 2018 CAT Impairment Determination Physician Paper Review Report by Dr. Mohamed Khaled, physician.19 In this report, Dr. Khaled stated that the purpose of his report was to determine if it was reasonable to proceed with a CAT impairment determination evaluation in response to A.L.’s April 2, 2018 OCF-19 and to determine what assessments were required to adequately address A.L.’s impairments.20 Dr. Khaled opined that based on A.L.’s level of impairment that was identified in the medical documentation that he reviewed, it was reasonable to proceed with an in-person CAT impairment determination evaluation at that time.21 Dr. Khaled noted that it had been 2-years post-accident and recommended the following assessments be undertaken to determine if A.L. met the threshold for a CAT impairment designation:
(i) Orthopaedic assessment;
(ii) Neurological assessment;
(iii) Psychology or psychiatry assessment;
(iv) Neurocognitive assessment;
(v) Occupational therapy – in-home assessment;
(vi) Occupational therapy – community/situation assessment; and
(vii) An executive summary.22
42Also supporting the reasonableness and necessity of the multidisciplinary CAT impairment assessment was Unica’s failure to provide any information on which individual assessments or portions of the treatment plan that it did not agree to fund. Instead, Unica provided the remainder of A.L.’s non-CAT medical and rehabilitation benefits in the amount of $7,232.00 to A.L. to put towards the multidisciplinary CAT assessment carte blanche. Moreover, I infer from Unica paying $7,232.00 that it approved at least four of the CAT assessments given the $2,000.00 monetary limit for any one assessment provided in the Schedule.23
43Therefore, based on Dr. Khaled’s May 16, 2018 report and Unica’s actions in partially funding the proposed treatment plan, I find that A.L. is entitled to the following individual assessments as they are reasonable and necessary:
(i) Physiatry assessment ($2,000.00);
(ii) Psychological assessment ($2,000.00);
(iii) Cognitive assessment ($2,000.00);
(iv) Occupational therapy assessment – in-home ($2,000.00);
(v) Occupational therapy assessment – community ($2,000.00); and
(vi) Overall assessment summary, analysis and final rating ($2,000.00).
44Additionally, given that I have found that the majority of the individual components that make up the multidisciplinary CAT assessment were reasonableness and necessary, it flows that the fees for completion of the OCF-19 and of the OCF-18 proposing the multidisciplinary CAT impairment assessment are also both reasonable and necessary.
45Nonetheless, I find that A.L. is not entitled to payment for clinic file review/triage assessment because this expense is not reasonable.
46As in 16-004501 v The Sovereign General Insurance Company,24 a file review should be completed as part of an assessment. There is no evidence to suggest that, in this case, the file review is not duplicative as it was in 16-004501. Therefore, I find that it is unreasonable to bill for a file review in addition to any individual assessment.
47Moreover, the OCF-18 proposed that the file review would be completed by Dr. H. Becker and A.L. was invoiced for this portion of the assessment with Dr. H. Becker listed as the service provider. However, the CAT Impairment OCF-19 File Review dated December 13, 2017 was completed by Aralia Toledo Russell, physiotherapist,25 and not by Dr. H. Becker as proposed and invoiced.
48In summary, A.L. is entitled to the costs of all of the individual assessments except for the clinic file review/triage assessment. A.L. is also entitled to payment for completion of the OCF-18 and the OCF-19.
49Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
50A.L. bears the onus of proving his entitlement to the claimed assistive devices, treatment and assessments by proving they are each reasonable and necessary on a balance of probabilities.26
51For the reasons that follow, I find that A.L. is entitled to $1,160.00 of the August 15, 2017 treatment plan for Bioflex Laser Therapy and chiropractic treatment and assessment and to the five treatment plans in dispute for physiotherapy treatment. A.L. is not entitled to the remainder of the disputed treatment plans.
Rehabilitation Services and Assistive Devices
52The July 25, 2016 OCF-18 in the amount of $4,494.60 was completed by Thendral Kuppusamy, occupational therapist. The OCF-18 sought funding for eight 2-hour rehabilitation therapy sessions and related service provider travel and mileage expenses, transportation to treatment for A.L., assistive devices including stair railings and installation, an iPad (with cover and warranty), a $100.00 iTunes gift card and 4 hours of occupational therapy services for the coordination and training on the assistive devices.
53The goals of the treatment plan were facilitating re-engagement in meaningful and therapeutic activity, improve functioning and overall quality of life, to return to activities of daily living and to increase A.L.’s level of activity and reintegration in the community. Additional functional goals were listed as follows:
(i) To assist with scheduling appointments and to address functional goals of organizing and attending to paperwork;
(ii) Facilitate increased community reintegration and participation in previously enjoyed leisure activities;
(iii) Facilitation of a cognitive remediation/compensatory program for cognitive symptoms to increase participation in activities of daily living;
(iv) To maximize the use of the devices for therapeutic potential; and
(v) To carry over education that has been provided with regards to body mechanics.
54The OCF-18 also set out the purposes of the recommended assistive devices. For example, the OCF-18 noted that A.L. had moved and was living in a basement that is accessed by stairs that are quite steep with no railings. Due to A.L.’s continued pain in his hip and instability of his knee, the OCF-18 stated that bilateral stair railings were required to ensure A.L.’s safety and to assist with stair transfers. The OCF-18 also stated that the iPad was recommended to facilitate a cognitive rehabilitation program as A.L. had been benefiting from such programs on this iPhone but that his iPhone was visually too small, and that A.L could not access all the information needed on this format. According to the OCF-18, an iPad would enable A.L. to use applications to assist with his cognitive remediation in a larger, more user-friendly format. The OCF-18 also noted that an iPad would sync with A.L.’s iPhone, would provide A.L. a distraction from his pain and frustrations, be a much-needed leisure activity as many of his prior activities were not an option for him and would assist A.L. with task completion, reminders, alarms, scheduling, relaxation (music), entertainment (photography) and internet browsing.
55I find that A.L. has failed to prove on a balance of probabilities that the treatment plan for rehabilitation services and assistive devices is reasonable and necessary for the following reasons:
(i) In the additional comments portion, the OCF-18 referred to the April 21, 2016 Occupational Therapy Attendant Care Assessment Report by Ms. Kuppusamy and Ms. Deborah Prestwood, occupational therapist.27 None of the assistive devices included in this OCF-18 were recommended as part of the April 21, 2016 report;
(ii) The underlying assessment for the April 21, 2016 report did not take place at A.L.’s new residence and there was no mention or observations noted of A.L. navigating stairs. A.L. also had no history of falls;
(iii) Although not the author of the OCF-18 in dispute, Ms. Prestwood attended the hearing and testified about this treatment plan. Ms. Prestwood stated that A.L. initially had 8 sessions of rehabilitation therapy and, that during these sessions, A.L. was assisted with organization, planning and structure of time, helping with cognitive strategies and navigation of appointments. A.L., however, provided no testimony on what services he received from the rehabilitation therapist. The only evidence from A.L. on this issue was included in an October 5, 2016 IE Occupational therapy – In-Home Assessment Report by Mr. Jeff Ford, occupational therapist.28 In Mr. Ford’s report, A.L. reported that the rehabilitation therapist took him to appointments and to shop for assistive devices, assisted with paperwork and “whatever at the time needs to be addressed.”29 Therefore, I agree with Mr. Ford’s opinion that no activities that would be pursued with a rehabilitation therapist were specified in the OCF-18. It also remains unclear based on the evidence before me how the continuation of services previously provided by the rehabilitation therapist would assist in meeting the stated goals of the disputed OCF-18 of increasing A.L.’s level of activity and in reintegrating A.L. in the community;
(iv) I also find the recommendation for an iPad to be contradictory to the recommendation for rehabilitation therapy services to facilitate community reintegration. When I asked Ms. Prestwood at the hearing how an iPad would assist A.L. to reintegrate into the community, Ms. Prestwood did not answer my question and only testified that the iPad was generally for A.L. to have something to do during the day. Further, when Ms. Prestwood was asked in cross-examination how would the iPad be considered reasonable and necessary, Ms. Prestwood only stated that it would assist A.L. in increasing his activity as he was doing very little;
(v) In his October 5, 2016 report, Mr. Ford noted that A.L. was able to integrate a calendar on his iPhone without direction or assistance to assist A.L. with recollection of dates and names regarding post-MVA treatment during Mr. Ford’s assessment of A.L.30 Mr. Ford, however, conceded in cross-examination that he did not observe A.L. coordinate any appointments or enter appointments into his calendar. While the evidence at the hearing was that A.L. relied upon others to assist him with schedule organization and appointment reminders, I find that A.L. failed to prove on a balance of probabilities that an iPad was required for scheduling by failing to address why his current iPhone was not able to assist him in enhancing his organization;
(vi) I also find that A.L. failed to prove on a balance of probabilities that an iPad was required in addition to his iPhone to assist A.L. with his cognition difficulties. For example, Ms. Kuppusamy and Ms. Prestwood’s April 21, 2016 report stated that A.L. used his iPhone to check for inaccuracies as well as to find answers to questions and playing strategic games to improve his cognition difficulties.31 There was no comment in Ms. Kuppusamy and Ms. Prestwood’s April 21, 2016 report about A.L.’s iPhone, which he utilized frequently while in attendance at the hearing, being unsuitable to assist A.L. in improving his cognition; and
(vii) There was no evidence before me what apps would be purchased with the iTunes gift card or what else the iTunes gift card would be used towards.
56For the reasons set out above, I find that A.L. is not entitled to the proposed rehabilitation therapy sessions and, as a result, is not entitled to the related service provider travel and mileage expenses or transportation to treatment for A.L. I also find that A.L. has failed to prove on a balance of probabilities that the iPad is reasonable and necessary and, as such, the associated warranty, cover, iTunes gift card and time for coordination and training are also not reasonable and necessary.
Bioflex Laser Therapy and Chiropractic Treatment and Assessment
57The OCF-18 in the amount of $2,240.00 dated August 15, 2017 was completed by Dr. Shawn Suprun, chiropractor, and sought funding for an initial assessment, review of findings and documentation, 24 one-hour sessions of Bioflex Laser Therapy and 24 one-hour sessions of chiropractic treatment. The estimated duration of this plan was 12 weeks. The goals of the treatment plan were pain reduction, increased range of motion and strength, a return to activities of normal living, a return to modified work activities and to pre-accident work activities although it was undisputed that A.L. was unemployed at the time of the accident. There were no attachments or additional information provided in this OCF-18.
58This OCF-18 was denied by Unica on February 8, 2018 on the basis that A.L.’s coverage for medical and rehabilitation benefits had been exhausted and, therefore, there were no remaining funds to cover any proposed medical services. No other reasons for Unica’s denial of this OCF-18 were provided.
59Dr. Suprun attended the hearing and testified that A.L. was referred to him by A.L.’s family physician, Dr. Mark Miller, on July 6, 2017 to assess A.L.’s right leg sciatica. Dr. Suprun testified that he provided the following services to A.L.: mobilization, ultrasound, interferential IFC, laser therapy and decompressive treatment such as tractioning. Dr. Suprun testified that he was trying to improve A.L.’s pain symptoms with the provided treatment but that its impact was hard to determine as A.L. moved and he was not able to undertake follow-up treatment. Dr. Suprun testified, however, that the treatment was helping A.L. control his symptoms, improve A.L.’s quality of life and his ability to undertake activities of daily living.
60Dr. Suprun also testified that he reviewed the previous treatment that A.L. received for his lower back, which included physical therapy, and stated that at that time, A.L. had felt as those other treatments were “plateauing out.” A.L. indicated his preference to “take a different course” to try and see if it helped manage his pain and injuries. This is supported by Dr. Suprun’s comments in the OCF-18 that state, “attempting a different course of treatment as he reports that physio was not helping anymore.”
61While A.L. made no submissions on the reasonableness and necessity of this treatment plan, I find that A.L. has proven on a balance of probabilities that the OCF-18 was reasonable and necessary in part. I find that A.L. was referred to Dr. Suprun by his family physician and that A.L. indicated to Dr. Suprun that physiotherapy was no longer helping him and that he was searching for another form of treatment. Additionally, Dr. Suprun’s evidence that his treatment was helping A.L. control his symptoms, improve A.L.’s quality of life and ability to undertake his activities of daily living was unchallenged at the hearing. I do agree with Unica, however, that there was no evidence presented at the hearing regarding the proposed Bioflex laser therapy. As a result, I find that A.L. failed to prove on a balance of probabilities that the Bioflex laser therapy for one-hour treatment lengths twice per week was reasonable and necessary. As such, A.L. is entitled to $1,160.00 which is the remainder of the treatment plan less the $1,080.00 sought for Bioflex laser therapy.
Physiotherapy
62There are five treatment plans in dispute for physiotherapy. The first treatment plan dated January 24, 2018 was completed by Mr. Sushant Kumar, physiotherapist. This OCF-18 proposed 24 1-hour sessions of physiotherapy over the course of 12 weeks in the total amount of $2,464.24 and noted that 122 treatment sessions had been previously provided to A.L. The goals of this OCF-18 were pain reduction, increased strength, increased range of motion, return to activities of normal living and a return to pre-accident work activities. The injury and sequelae information section listed the following: fracture of first cervical vertebra; fracture of second cervical vertebra; whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs; and dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis. There were no attachments to this treatment plan, but it was noted that A.L.’s range of motion was getting better at the end of the previous treatment plan.
63Mr. Kumar authored a second OCF-18 dated July 16, 2018 in the amount of $1,666.16 which was substantially similar to the January 24, OCF-18 except it only sought 16 physiotherapy sessions over 8 weeks. This treatment plan again stated that A.L.’s range of motion was getting better at the end of the previous treatment plan with no further specifics.
64The third treatment plan dated December 6, 2018 was submitted by Sarabjeet Laur, physiotherapist, and sought funding in the total amount of $1,267.00 for 12 1-hour physiotherapy sessions over 12 weeks. The same goals were stated on this treatment plan as was on the prior two OCF-18s and it noted that A.L. was able to manage his pain with physiotherapy treatments.
65Mr. Kumar submitted 2 more OCF-18s both in the total amount of $1,267.00 for 12 1-hour physiotherapy sessions over 12 weeks, the first dated June 10, 2019 and the second dated September 4, 2019. The June 10, 2019 OCF-18 had the same stated goals as all of the previous disputed treatment plans as did the September 4, 2019 treatment plan except it had the addition of a return to modified work activities. The June 10, 2019 treatment plan noted ongoing maintenance for pain level, mobility and strength as A.L.’s improvement at the end of the previous treatment plan and the September 4, 2019 treatment plan noted that A.L. “feels better after physiotherapy treatment, feels physiotherapy helping him for maintenance of mobility and strength.”
66Unica denied all of the OCF-18s in dispute for physiotherapy on the basis that A.L.’s medical and rehabilitation benefits had been exhausted.
67I find that A.L. has proven on a balance of probabilities that all of the treatment plans in dispute for physiotherapy are reasonable and necessary for the following reasons:
(i) Although Dr. Suprun’s August 15, 2017 OCF-18 for Bioflex laser therapy and chiropractic treatment and assessment, which was discussed in paragraphs [57] to [61] above, noted that physiotherapy was not helping A.L. at that time, Dr. Suprun clarified this statement in his testimony that this comment was only in relation to A.L.’s sciatica and not in relation to all of his pain complaints. This clarification was also confirmed by A.L. in his cross-examination;
(ii) A.L. obtained a new family doctor in April 2018, Dr. John Pearce. On April 18, 2018, which was A.L.’s first visit, Dr. Pearce recommended that A.L. continue with physiotherapy. Dr. Pearce again recommended physiotherapy on March 25, 2019 for A.L.’s tension headaches. Dr. Pearce also testified at the hearing and was not challenged on cross-examination regarding his recommendations for A.L.’s physiotherapy treatment;
(iii) A.L. testified that despite the numerous denials, he continued to attend and incur fees for physiotherapy treatment once per week as of the date of the hearing. A.L. testified that he continues with physiotherapy treatment to maintain his current condition and that if he misses a physiotherapy appointment that he is in pain the following week due to headaches and that his progress drops off quickly;
(iv) It is well established that pain relief, even on a temporary basis, is enough to qualify passive treatment as reasonable and necessary as long as it maintains or increases functionality. In this matter, both A.L.’s testimony and the progress notes from Great Lakes Physiotherapy and Sport Medicine consistently report that from January 8, 2018 to June 13, 2019, A.L. found physiotherapy helpful in maintaining his pain and mobility and that A.L. was provided some relief after treatment;
(v) Mr. Kumar also testified at the hearing and maintained that the treatment plans in dispute were reasonable and necessary. Moreover, when I asked Mr. Kumar about the recommendation for the same type of treatment for almost 4 years post-accident as he was not cross-examined at all by Unica, Mr. Kumar confirmed that A.L. reported that he would feel better after treatment which was characterized by Mr. Kumar as maintenance; and
(vi) I also do not agree with Unica’s submission that the amount of physiotherapy claimed by A.L. was excessive over the span of the disputed treatment plans as there was no evidence before me at the hearing to support this position.
68For all of these reasons, I find that A.L. is entitled to the five treatment plans for physiotherapy in dispute.
Neuropsychological and Neurocognitive Examination
69Two OCF-18s were completed by Dr. Charisse McKay, psychologist, and were both dated June 1, 2016. The first OCF-18s sought funding in the amount of $2,200.00 for a neuropsychological assessment and noted:
The current OCF-18 would provide the information and testing required to determine the background information regarding the accident including file review, review of neurotrauma severity indicators, patient report of accident, personal background and neurobehavioural and psychological testing to determine there are reactive or organic based changes in mood regulation that are either related to the indexed accident or that would affect the test results of the cognitive evaluation which is a second proposed assessment.
70The second OCF-18 sought funding in the amount of $2,200.00 for cognitive testing. This OCF-18 noted that, “the current OCF-18 would provide the information and testing required to determine the background information regarding the accident including cognitive testing and the report preparation.” Neither treatment plans outlined any goals and, instead, stated, “assessment – not applicable.”
71On September 23, 2016, Unica agreed to fund the neuropsychological assessment to a maximum of $2,200.00. The second OCF-18 dated June 1, 2016 was denied.
72At the hearing, the parties disputed whether the two June 1, 2016 OCF-18s were two separate assessments payable at $2,200.00 each or constituted one examination that was paid by Unica up to the $2,200.00 maximum amount under the Schedule for one examination.
73Despite approval for the neuropsychological assessment, Dr. Diana Velikonja, psychologist, and Dr. Mechtild Uhe, neuropsychologist, completed a neurocognitive assessment report dated July 15, 201732 following a neurocognitive assessment of A.L.
74Dr. Velikonja attended the hearing and on cross-examination, she confirmed that the two June 1, 2016 OCF-18s submitted proposed one assessment that was divided into two parts which would have then been combined into one report. Moreover, it was apparent at the hearing that Dr. Velikonja was under the mistaken assumption that Unica denied the neuropsychological assessment as opposed to OCF-18 seeking funding for the cognitive assessment. When Dr. Velikonja was asked in direct examination why A.L. required both assessments, she testified that she felt A.L. required a neuropsychological assessment, not both, but that Unica only approved funding for the cognitive portion, which was incorrect. Dr. Velikonja agreed in cross-examination that the proposed examination was a 2-part assessment and stated that it needed to be divided in order to obtain sufficient funding for completion. Dr. Velikonja also testified that while the neuropsychological assessment would have been helpful and provided a more fulsome understanding of A.L.’s emotional factors, the completion of the neuropsychological assessment would not have changed the treatment recommendations contained in the June 15, 2017 report as she and Dr. Uhe were able to include this information, along with providing psychological diagnoses, without the neuropsychological assessment.
75Based on the evidence before me, I find that the two June 1, 2016 OCF-18s constituted one assessment. The two OCF-18s proposed an examination to be completed by the same service provider (Dr. McKay) and contained the same statement of “assessment – not applicable” as their goals. Dr. Velikonja’s testimony confirmed that the splitting of the assessment into two parts was as a result of funding rather than as a result of the two treatment plans proposing two separate and distinct assessments. While the law is clear that separate reports may attract separate payments, this was not the intended case here as Dr. Velikonja testified that even if both parts of the assessment were completed that only one report would be produced. Moreover, there was no evidence before me that the splitting of the assessment was required to provide diagnoses or treatment recommendations for A.L.
76As I have found that the two June 1, 2016 OCF-18s constituted one assessment, I agree with Unica that $2,200.00 is the maximum amount payable for both treatment plans pursuant to s. 25(5)(a) of the Schedule. As a result, A.L. is not entitled to the unapproved portion of the assessment of $2,200.00.
Attendant Care Assessment
77As I have found that A.L. failed to prove on a balance of probabilities that he sustained a CAT impairment as a result of the accident, A.L. is therefore not entitled to any attendant care beyond 104 weeks post-accident as discussed in paragraphs [26] and [27] above. As the treatment plan in dispute in the amount of $2,144.63 for an attendant care assessment was dated February 26, 2019, which is well beyond two years post-accident, I find that the proposed assessment was not reasonable or necessary.
Interest
78A.L. is entitled to interest payable in accordance with s. 51 of the Schedule for the unfunded portions of the treatment plan for the multidisciplinary CAT impairment assessment except for the proposed amount for the clinical file review/triage assessment, for $1,160.00 of the August 15, 2017 treatment plan for Bioflex laser therapy and chiropractic treatment and assessment and for the five treatment plans in dispute for physiotherapy treatment.
Award
79Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
80The only submissions made by A.L.’s counsel regarding A.L.’s entitlement to an award was that Unica fell below the standard of a reasonable and prudent insurer by failing to:
(i) Respond to A.L.’s claims in a timely manner despite being informed on numerous occasions that A.L. suffered severe injuries and being provided documentation of A.L.’s deteriorating condition; and
(ii) That despite the multitude of medical records provided, Unica continued to deny and unreasonably withhold medical and rehabilitation benefits and attendant care benefits from A.L.
81Without any further details on which of A.L.’s claims Unica allegedly failed to respond to in a timely manner and of the medical records that A.L.’s counsel was referring to, I find that A.L. has failed to prove on a balance of probabilities that Unica withheld or delayed payment of benefits in this matter.
CONCLUSION
82For the reasons outlined above, I find:
(i) A.L. has failed to prove on a balance of probabilities that he sustained a CAT impairment as a result of the accident under Criterion 7 as set out in s. 3(2)(e) of the Schedule;
(ii) A.L. is not entitled to attendant care benefits from October 2017 to September 2019;
(iii) The cost of A.L.’s multidisciplinary CAT impairment assessment is not to be included in A.L.’s non-CAT medical and rehabilitation benefits limits. As a result, A.L.’s non-CAT medical and rehabilitation limits have not been exhausted;
(iv) A.L. is entitled to the following portions of the multidisciplinary CAT impairment assessment plus interest in accordance with s. 51 of the Schedule: Physiatry assessment ($2,000.00); Psychology assessment ($2,000.00); Cognitive assessment ($2,000.00); Occupational therapy assessment – in-home ($2,000.00); Occupational therapy assessment – community ($2,000.00); Overall assessment summary, analysis and final rating ($2,000.00); OCF-19 completion ($200.00); and OCF-18 completion ($200.00). A.L. is not entitled to the clinical file review/triage assessment ($2,000.00);
(v) A.L. is partially entitled to the August 15, 2017 treatment plan for Bioflex laser therapy and chiropractic treatment and assessment in the amount of $1,160.00 plus interest in accordance with s. 51 of the Schedule. A.L. is not entitled to the portion of this treatment plan for Bioflex laser therapy;
(vi) A.L. is entitled to the following physiotherapy treatment plus interest in accordance with s. 51 of the Schedule:
(a) $2,464.24 in the January 24, 2018 OCF-18;
(b) $1,666.16 in the July 16, 2018 OCF-18;
(c) $1,267.00 in the December 5, 2018 OCF-18;
(d) $1,267.00 in the June 10, 2019 OCF-18; and
(e) $1,267.00 in the September 4, 2019 OCF-18;
(vii) A.L. is not entitled to the July 25, 2016 OCF-18 for rehabilitation services and assistive devices or to the attendant care assessment;
(viii) The two June 1, 2016 OCF-18s for a neuropsychological examination and a neurocognitive examination constitute a proposal for one assessment and, as Unica has paid the maximum amount for any one assessment under the Schedule of $2,200.00, A.L. is not entitled to the unpaid amount of these OCF-18s; and
(ix) A.L. is not entitled to an award under Regulation 664.
Released: July 8, 2020
__________________________
Lindsay Lake
Adjudicator
Appendix A
Monthly Breakdown of Attendant Care Invoices from A.L.
Year
Month
Total Amount of Attendant Care Incurred
2017
October
$284.76
November
$353.32
December
$290.04
2018
January
$445.98
February
$433.92
March
$426.40
April
$323.01
May
$329.62
June
$177.98
July
$341.87
August
$355.61
September
$386.46
October
$386.46
November
$765.74
December
$386.46
2019
January
$715.68
February
$515.28
March
$515.28
April
$243.35
May
$407.93
June
$422.29
July
$157.47
August
$422.29
September
$343.52
TOTAL
$9,430.72
Footnotes
- O. Reg. 34/10.
- At the hearing, A.L. withdrew his claim for $3,595.60 for occupational therapy services recommended by Ross Rehabilitation in a treatment plan submitted on June 24, 2016 and denied by Unica on October 25, 2016.
- Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30.
- Joint LAT Hearing Document Brief, volume 1, tab D2.
- Joint LAT Hearing Document Brief, volume 1, tab D2.
- Ibid. at page 10.
- Ibid.
- Joint LAT Hearing Document Brief, tab D2.
- Joint LAT Hearing Document Brief, tab D2, page 12.
- Page 9 of the Guides.
- Schedule (version in effect on August 23, 2015), sections 20(2) and (3).
- 2019 CanLII 51309 (ON LAT).
- Ibid. at paras. 7 and 30.
- 2018 CanLII 130861 (ON LAT) (“C.A. v Intact”).
- C.A. v. Intact Insurance Company, 2019 CanLII 101845 (ON LAT).
- Supra note 14 at para. 22.
- 2017 CanLII 85692 (ON LAT) (“State Farm”).
- 2018 CanLII 132569 (ON LAT) (“17-007500”).
- Joint LAT Hearing Document Brief, volume 1, tab D3.
- Ibid. at page 2.
- Ibid. at page 11.
- Ibid.
- S. 25(5).
- 2018 CanLII 13158 (ON LAT) (“16-004501”).
- Joint LAT Hearing Document Brief, volume 1, tab D2.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
- Joint LAT Hearing Document Brief, volume 1, tab B5.
- Joint LAT Hearing Document Brief, volume 2, tab F1.
- Ibid. at page 10.
- Ibid. at page 22.
- Ibid. at pages 6-7.
- Joint LAT Hearing Document Brief, volume 2, tab E3.