Tribunal File Number: 19-001237/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:
Q. U. A.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Muhammad M. Alam
For the Respondent:
Sjawal Bhutta
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on October 24, 2015 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 payment for the cost of examinations in the amount of $1,998.80 for an impairment assessment, recommended by Pearson Medical Assessment Centre Inc. in a treatment and assessment plan dated December 6, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $2,235.94 for physiotherapy and massage therapy services recommended by Healthbound Health Network (“Healthbound”) in a treatment and assessment plan dated May 8, 2017?
Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a physiatry assessment recommended by Pearson Medical Assessment Centre Inc. in a treatment and assessment plan dated May 29, 2017?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant is not entitled to the impairment assessment nor the treatment plan dated May 8, 2017.
4The physiatry assessment is not reasonable and necessary but the applicant is entitled to the incurred costs of this assessment, plus interest pursuant to section 51 of the Schedule because the respondent failed to comply with its obligations outlined in section 38(8) of the Schedule.
BACKGROUND
5The applicant was a rear-seated passenger of a vehicle which was struck on the side by a vehicle making a left turn in an intersection. Ambulance personnel attended at the scene of the accident but did not take the applicant to the hospital. It appears that a family member took the applicant and other passengers of the vehicle to the hospital instead. It also appears that the other passengers of the applicant’s vehicle sought medical attention at the hospital, but the applicant did not.
6The applicant started to treat her neck and back pain pursuant to the Minor Injury Guideline (“MIG”) at Healthbound in January 2016, more than two months following the accident. The applicant was removed from the MIG and the applicable $3,500.00 funding limit on treatment, following a May 11, 2016 insurer’s examination (“IE”) by Dr. A. Araujo de Sorkin, psychologist. Dr. Araujo de Sorkin assessed the applicant and determined she suffered from somatic symptom disorder with predominant pain, and adjustment disorder with elevated anxiety.
7About eight months later, the applicant sought an impairment assessment to determine her present needs and ability to perform her pre-accident job, home, personal care, and caregiving tasks, as well as opine on her rehabilitation needs. The respondent denied funding for the impairment assessment. Entitlement to the impairment assessment is listed as issue one.
8The applicant continued to pursue treatment for her physical and psychological injuries at Healthbound. Healthbound submitted a treatment and assessment plan dated May 8, 2017, proposing physiotherapy and massage therapy (“the May 8, 2017 treatment plan”). It also submitted a proposal for a physiatry assessment dated May 29, 2017. The respondent did not agree to fund the plans and requested the applicant participate in an IE to address whether the plans are reasonable and necessary for her accident-related injuries.
9Initially, the applicant refused to attend the requested IE on the grounds that the IE notice was not compliant with the Schedule. Eventually, she participated in the IE on March 28, 2018. The applicant’s entitlement to the May 8, 2017 treatment plan is listed as issue two and entitlement to the physiatry assessment is listed as issue three.
10The onus is on the applicant to prove, on a balance of probabilities, that the disputed treatment and assessment plans are reasonable and necessary for her accident-related injuries.
ENTITLEMENT TO THE IMPAIRMENT ASSESSMENT
11Up front I note that the applicant is not statutorily entitled to the impairment assessment as a result of an alleged invalid denial because she has not incurred the goods and services listed in the plan. As a result, it is unnecessary to analyse whether the denial is compliant with section 38 of the Schedule. Pursuant to section 38(11)2 of the Schedule, the respondent’s alleged breach of section 38(8) only entitles the applicant to the goods and services incurred starting the 11th business day after receipt of the treatment and assessment plan.
12Upon review of the submissions and evidence, I find the impairment assessment is not reasonable and necessary for the applicant’s accident-related injuries. The impairment assessment is proposed to update her clinical status or needs regarding her areas of injury resolution and ongoing impairment in order to provide an opinion on the applicant’s ability to perform her job, home, personal care, and caregiver tasks, as well as identify her rehabilitation needs.
13It is unnecessary to measure the applicant’s impairment(s), if any. The applicant was not entitled to any specified benefits which would require a measurement of her impairments. There is no evidence the applicant was a caregiver to anyone, nor was she employed at the time of the accident. The disability certificate dated January 28, 2016 notes the applicant does not have a complete inability to carry on a normal life and, thus, would not qualify for a non-earner benefit. The disability certificate only notes a substantial inability to perform housekeeping and home maintenance services that were normally performed prior to the accident. However, there is no evidence the applicant is entitled to housekeeping and home maintenance benefits either by way of purchasing the optional benefit or by being catastrophically impaired as a result of the accident.
14The impairment assessment is unnecessary considering the applicant’s functionality. The applicant was not employed at the time of the accident, yet she gained fulltime employment by May 2016 and continues to work full-time to-date. In the May 11, 2016 IE report by Dr. Araujo de Sorkin, psychologist, the applicant reported that she is independent with her self-care activities and that she started working fulltime. There is no evidence that the applicant required any accommodations or modifications in order to perform her essential job tasks. The May 12, 2017 report by Dr. T. Y. Getahun, orthopaedic surgeon, concluded that the applicant suffers only a partial ability to perform her normal activities on account of her inability to return to her sporting endeavours including gym participation. The applicant’s decreased ability to play sports and attend at the gym are insufficient reasons to measure or examine her impairment.
ENTITLEMENT TO THE MAY 8, 2017 TREATMENT PLAN
15I have reviewed the submissions and evidence and find the May 8, 2017 treatment plan is not reasonable and necessary for the applicant’s accident-related injuries.
16The applicant claims entitlement to the May 8, 2017 treatment plan for several reasons. First, because it was denied beyond ten days following its submission, contrary to section 38(8) of the Schedule. Second, because the respondent’s denial of benefits fails to include the requisite medical and other reasons for its decision. Third, because the treatment plan is reasonable and necessary to relieve headaches and neck pain caused by her cervical and thoracic spine sprain/strain injuries.
17The respondent submits its denials are compliant with section 38(8) of the Schedule, that the applicant is disinterested in and requires no further clinical treatment, and that she failed to meet her burden to prove the treatment plan is reasonable and necessary for her accident-related injuries.
Statutory Entitlement to the May 8, 2017 Treatment Plan
18Section 38 of the Schedule provides that the respondent’s denial of benefits must be delivered within 10 business days of receipt of the treatment plan and must include all medical and other reasons for the denial.
19The applicant claims entitlement to $646.63 for goods and services incurred to-date. Pursuant to section 38(11), the respondent is liable to pay for the goods and services incurred starting on the eleventh business day until a compliant notice is provided.
20The evidence shows the applicant incurred the goods and services before the May 8, 2017 treatment plan was submitted, disentitling her from any repayment for it. Pursuant to section 38(2) of the Schedule, the respondent is not liable to pay for the expenses because they were incurred before the treatment plan is submitted. The account summary from Healthbound shows invoice 10517, in the amount of $646.63, was created on October 23, 2017 with a date range of March 15, 2017 to May 8, 2017. Further, the attendance sheet from Healthbound shows no appointments after May 8, 2017.
Is the May 8, 2017 treatment plan reasonable and necessary?
21Despite not being statutorily entitled to the May 8, 2017 treatment plan, the applicant may still seek a finding that it is reasonable and necessary. The treatment plan proposes 12 sessions of physiotherapy and 12 sessions of massage treatment, plus administrative fees. The goals of the plan are to reduce pain, increase strength, and return the applicant to her activities of daily living and pre-accident work activities.
22I have reviewed the submissions and evidence and find that the applicant has failed to prove that, on a balance of probabilities, the May 8, 2017 treatment plan is reasonable and necessary for her accident-related injuries.
23The two 2019 chronic pain assessment reports, submitted by the applicant, are not evidence of injuries in 2017. While the reports indicate the applicant has a chronic pain condition and would require additional treatment in 2019 such as physiotherapy and nerve block injections, the reports fail to provide any insight which is relevant to her claim for ongoing physiotherapy and massage therapy in 2017.
24I prefer the report of Dr. R. Moolla, physician, over the report of Dr. T. Y. Getahun, orthopaedic surgeon. Dr. Moolla’s assessment included a review of relevant medical documents, including the treatment plans submitted on behalf of the applicant to-date, Dr. Getahun’s May 12, 2017 orthopaedic assessment report, Dr. A. Araujo de Sorkin’s May 11, 2016 psychological assessment report, and S. Al-Dabbagh and Dr. J. Mils’ psychological assessment report dated August 22, 2018. Whereas Dr. Getahun reviewed no records as part of the examination.
25Dr. Moolla’s account of the applicant’s medical history following the accident is more accurate than Dr. Getahun. Dr Getahun incorrectly reported that the applicant was transported to the hospital and assessed following the accident. Some reports indicate she went home, others indicate she went to the hospital where the other passengers were assessed but not her. Dr. Moolla noted that ambulance personnel attended at the scene of the accident but also notes that the applicant was not assessed at the hospital. There are no hospital records before me, indicating that she did not attend there following the accident.
26Dr. Getahun’s assessment finds no remarkable back or neck impairments, only tenderness in her cervical and thoracic area, and makes no diagnosis as to her injuries. Dr. Getahun recommends ongoing physiotherapy for optimal recovery. This recommendation implies that the applicant’s recovery can be reached without the treatment proposed in the May 8, 2017 treatment plan. In other words, it is not an indication that the May 8, 2017 treatment plan is reasonable and necessary.
27Whereas Dr. Moolla’s assessment finds no organic cause limiting the applicant’s back and neck range of motion and questions her effort in the examination. Tenderness is found in the cervical and thoracic area too, yet Dr. Moolla provides an unequivocal diagnosis of cervical and thoracic sprain/strain injuries and is clear that no further clinical treatment would be beneficial considering the time since the accident and because the applicant reported no improvement in pain symptoms, despite more than twenty-two physiotherapy or massage treatment sessions since the accident occurred.
28The letter by Dr. W. R. Yoshida, family physician, dated September 21, 2017, referring the applicant to physiotherapy, fails to support the May 8, 2017 treatment plan. The referral note is the first treatment recommendation from Dr. Yoshida and makes no mention of the accident. Further, Dr. Yoshida’s clinical notes and records include no corresponding entry at or around the date of the referral which could connect the accident with the referral. The March 21, 2018 MRI shows only a small paramedian disc protrusion at C5-6 with no significant stenosis of the central canal or neuroforamen. The MRI report makes no treatment recommendations and there is no corresponding recommendation from Dr. Yoshida following receipt of the MRI. In addition, a disability certificate completed by T. Fee, physiotherapist at Healthbound, dated January 28, 2016, is not supportive of the May 8, 2017 treatment plan – it anticipated only nine to twelve weeks of disability.
ENTITLEMENT TO THE PHYSIATRY ASSESSMENT DATED MAY 29, 2017
29The applicant claims statutory entitlement to the physiatry assessment because, according to the applicant, the respondent failed to provide the medical and other reasons to deny it. The respondent submits it provided a compliant denial on June 23, 2017.
30I find the respondent has failed to provide a notice that is compliant with section 38(8) of the Schedule because it provided no medical reasons to deny the assessment.
31The June 23, 2017 letter denies the assessment and notes that the respondent is unable to determine whether the recommendations are reasonably required for the injuries received in the accident. The letter makes no reference to any medical evidence or a lack thereof and is unclear as to what reasonably required recommendations would be acceptable for the applicant’s accident-related injuries. Additionally, the respondent had medical evidence in its possession, the May 11, 2016 IE report, for which it could reference but did not.
32Further, I find the letter dated April 25, 2018 fails to cure the deficiencies in the June 23, 2017 letter. The April 25, 2018 letter advises that the assessment is not reasonable and necessary for the applicant’s accident-related injuries. The letter enclosed Dr. Moolla’s IE report and directed the applicant to review it. However, Dr. Moolla’s report fails to address whether the physiatry assessment is reasonable and necessary. In fact, the report makes no mention of the physiatry assessment. As a result, the respondent has failed to provide a medical reason to deny the assessment.
33The respondent has failed to provide a proper denial of the benefit and, pursuant to section 38(11)(2), the applicant is entitled to payment for the goods and services listed in the plan which were incurred starting on the eleventh business day following receipt of the treatment and assessment plan.
34It is unclear whether the applicant has incurred the costs associated with this assessment. In the event the applicant has not incurred any costs associated with this treatment and assessment plan, I find it is not reasonable and necessary for her accident-related injuries.
35I find the physiatry assessment is not reasonable and necessary because she required no such evaluation at the time the plan was proposed. The physiatry assessment is proposed in order to plan reasonable and necessary treatment to allow the applicant to return to normal activities of life and work. Yet, the applicant was not working at the time of the accident and had since started full time employment. She was, and continues to be, independent with her personal and self-care and, apart from her own self-reports during examinations, there is no evidence she was unable to return to her normal activities of life.
36The information in the physiatry assessment plan is inconsistent with the applicant’s medical record. The plan lists a rotator cuff injury as the applicant’s most significant injury however, there is no evidence to show she suffered such an injury. Likewise, the plan makes no reference to a neck injury and notes her anxiety and depressive disorder injuries as the least significant, contrary to the psychological assessment report by Dr. Araujo de Sorkin from a year prior.
DUTY TO ADJUST THE CLAIM
37I find no entitlement to the disputed benefits on account of the respondent’s adjusting of the claim.
38In addition to the arguments outlined above, the applicant claims the respondent failed to uphold its duty to continually adjust the applicant’s claim as new information is received. She submits that the respondent failed to provide her 2019 medical reports to Dr. Moolla for an addendum to the April 13, 2018 assessment report. The respondent submits the information is too far removed from the treatment and assessment plans as well as the 2018 assessment and that it would instead require an in-person examination. The applicant refused to attend an in-person examination and insisted on a paper review addendum.
39While the applicant is correct in that the respondent has an on-going obligation to continually adjust a claim, she fails to appreciate that she provided evidence more than two years following her claims for benefits and more than a year following Dr. Moolla’s IE report. Pursuant to section 44 of the Schedule, the respondent is entitled to examine the applicant not more than reasonably necessary. I fail to see how the respondent’s request for another in-person assessment, made more than a year after the last IE and in light of the new medical evidence, is more than reasonably necessary.
INTEREST
40The applicant is entitled to interest on the incurred costs of the physiatry assessment, pursuant to section 51 of the Schedule. No other amounts are payable and, therefore, no interest is payable on those amounts.
CONCLUSION
41The applicant’s evidence fails to prove the December 6, 2016 and May 8, 2017 treatment and assessment plans are reasonable and necessary.
42The physiatry assessment is not reasonable and necessary but the respondent’s denial of it fails to comply with section 38(8) of the Schedule. As a result, the applicant is entitled to payment for the goods and services listed in the plan which were incurred starting on the eleventh business day following receipt of the treatment and assessment plan.
Released: July 7, 2020
Brian Norris
Adjudicator