Released Date: 08/24/2020
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
N. R.
Applicant
and
Unifund Assurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Mikhail Shloznikov, Counsel
Heard by Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1N. R. (“applicant”) was involved in a motor vehicle accident on January 20, 2018 (“accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was denied certain benefits by Unifund Assurance Company (“respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent approved four rounds of rehabilitative treatment comprised of physiotherapy and massage incurred from January 24, 2018 up to June 29, 2019 and also approved psychological therapy. The respondent denied the applicant’s claim for two more rounds of physiotherapy because it determined that the two proposed treatment plans are not reasonable and necessary. The applicant’s position is the opposite. The applicant has applied to the Tribunal for dispute resolution.
ISSUES
3The issues to be decided in this hearing are:
i. Is the applicant entitled to a medical benefit in the amount of $1,895.75 for physiotherapy treatment recommended by Care Plus Physio in a treatment plan (OCF-18) submitted on May 29, 2019 and denied on September 12, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $1,297.25 for physiotherapy treatment recommended by Care Plus Physio in a treatment plan (OCF-18) submitted on July 10, 2019 and denied on September 12, 2019? (“disputed treatment plans”)
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4The applicant is not entitled to the two disputed treatment plans. As no benefits are payable, there is no interest. There is no special award.
LAW
5Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plans he or she seeks is reasonable and necessary.2
ANALYSIS
Positions of the Parties
6The applicant submits that the disputed treatment plans are reasonable and necessary, given that the applicant still has injuries from the accident that are not healed including chronic low back and neck pain, their goals are reasonable, the goals are being met and progress is being made, the respondent failed to review all medical records, is spending more money to deny the treatment plans by unnecessarily sending the applicant for examinations rather than approving and paying for treatment that is helping, and the applicant disagrees with the findings of the respondents IE assessor Dr. Marchuk, physiatrist, on whose report the respondent based it’s denial. Lastly, the applicant alleges the respondent is acting in bad faith in denying the disputed treatment plans contrary to case law.3
7The respondent submits that applicant bears the onus of presenting objective medical evidence that additional facility-based physiotherapy is reasonable and necessary almost one and one half years post-accident and he has not done so, the opinion of its IE assessor Dr. Marchuk is relied on, the disputed treatment plans have not been incurred, only modest improvement is shown, there is no evidence that at this stage in his recovery the proposed treatment would be more effective than the home-based exercises he is doing, the applicant has access to collateral health benefits through his employer and therefore the respondent is not required to pay for any portion of the physiotherapy services for which payment by a collateral benefit is reasonably available under s. 47 (2) of the Schedule.
8In reply, the applicant submits that chronic pain has been diagnosed and a chronic pain referral is pending which warrants the proposed treatment, Dr. Marchuk’s report is flawed because he failed to review the necessary family doctor recommendations, the applicant returned to work and has been working with ongoing pain and the respondent has ignored the records of the applicant’s GP and Care Plus Physiotherapy. The applicant concedes only “some” of the treatment plans in dispute have been incurred.
9It is common ground between the parties that the applicant’s claim is not subject to the MIG, the applicant having been removed from the MIG February 2019.
Are the Disputed Treatment Plans Reasonable and Necessary?
10I find that the applicant is not entitled to payment of the disputed treatments plans because he has not established, on a balance of probabilities and with sufficient medical evidence, that they are reasonable and necessary.
11The treatment plan in the amount of $1,895.75 recommends 17 sessions of physiotherapy with the goals of pain reduction, increased range of motion, increase in strength and education, reduction of stress and return to modified work duties.
12The treatment plan in the amount of $1,297.25 recommends 11 sessions of physiotherapy with the goals of pain reduction, increased range of motion, increase in strength and return to activities of normal living and modified work activities and return to pre-accident work activities.
13The applicant relies on various records including Dr. Hussain, applicant’s family doctor at the Chinguacousy & Sandalwood Medical Centre (“Centre”), from January 2018 to January 2020, Dr. Hussain’s March 2019 OCF-3, Disability Certificate in 2019 and a 2020 questionnaire to Dr. Hussain prepared by the applicant’s legal representative. The applicant also relies on the records of Care Plus Physiotherapy, the psychological assessment reports of psychologists Drs. Hollere, Polonsky and Pilowsky and an October 16, 2018 x-ray report and the two disputed treatment plans.
14The clinical records of Dr. Hussain contain little reference to physiotherapy. The applicant saw Dr. Hussain the day after the accident. Neck, back, left foot and shoulder pain is noted along with c spine muscle spasm with mild, tender, decreased ROM in all directions. Lower back decreased ROM in all directions. Shoulders tender up and post aspect, normal ROM in all directions, left foot medial tender, rest is non-TTP, decreased ROM in all directions. Dr. Hussain notes “…will need further work-up”. Subsequently Dr. Hussain noted “work up neg from MVA”. On September 20, 2018 Dr. Hussain noted neck pain with ROM normal.
15The October 16, 2018 x-ray records show only degenerative changes.
16Dr. Hussain’s March 4, 2019 disability certificate contains little detail and is not supported by Dr. Hussain’s clinical note made the same day. In the disability certificate Dr. Hussain describes the applicant’s injuries as chronic low back pain and chronic neck pain. Dr. Hussain reports that the imaging shows degenerative changes in the cervical and thoracic spine and mild degenerative disc disease in the lumbar spine. Dr. Hussain states that no further examinations, investigations or consultations are contemplated or required.
17The reliability of the disability certificate is undermined by Dr. Hussain’s clinical record for March 4, 2019 which notes the applicant said he had a car accident last April (sic) and has had “back and neck pain since then”. However, Dr. Hussain’s objective note is that the applicant “looks well, no distress, gait normal, back: inspection normal, mild tenderness lumbar parsaspinal muscles, back ROM normal, able to walk on toes and heels, plantar and patellar reflexes normal, neck no swelling, no erythema, no deformity, tender posterior neck muscle, ROM normal”, prescribes medication and does not make a referral to any other medical specialist. Further, in the disability certificate Dr. Hussain answered “no” to all disability test questions about whether the applicant has complete inability to carry on pre-accident normal life, substantial inability to perform essential tasks of pre-accident employment and engage in pre-accident caregiving, housekeeping, home maintenance. No functional limitation is noted in the disability certificate. Given that this disability certificate describes chronic pain as the injury, references degenerative changes shown by the imaging and is not supported by any objective finding in Dr. Hussain’s clinical record on that day, I find that this disability certificate does not establish that the disputed treatment plans are reasonable and necessary.
18On May 5, 2019 the applicant saw Dr. Hussain who noted his complaints of neck and lower back pain and “is doing physio, has improvement with physio, wants req for massage”. In August 2019 Dr. Hussain saw the applicant for neck pain and recommended cold compression, medication and symptomatic treatment. In January 2020 Dr. Hussain notes that the applicant is “managing pain with celebrex with mild improvement, takes prn” and “pt going to PT and does exercises at home”. Dr. Hussain recommends topical anti-inflammatory for relief of pain and inflammation and “continue with PT”. Although this reference in Dr. Hussain’s record is not clear, if it is a recommendation for physiotherapy, this appears to be the first recommendation for physiotherapy from Dr. Hussain in the two years post-accident. I find that Dr. Hussain’s records do not establish that the disputed treatment plans are reasonable and necessary.
19The February 2020 questionnaire prepared by the applicant’s legal representatives and answered by Dr. Hussain does not establish the reasonableness and necessity of continued physiotherapy. In the questionnaire, Dr. Hussain diagnoses “degenerative changes in spine (cervical, thoracic & lumbar) – mechanical back pain” and indicates this is based on examination findings and imaging reports. This answer is consistent with the imaging reports from October 2018 filed by the applicant which show degenerative changes in the cervical, thoracic and lumbar spine. In answer to the questions about Dr. Hussain’s ideas regarding treatment/medication, Dr. Hussain answers “this is a long term chronic problem and medication is used to reduce symptom on an as needed basis.” More importantly, Dr. Hussain does not recommend or mention physiotherapy in this questionnaire. When asked “are you willing to refer the patient to a chronic pain facility to address their ongoing injuries and impairments” Dr. answers “yes” but does not describe the basis, prerequisites or reasons for such referral.
20Even bearing in mind that pain can itself can be a legitimate goal of a treatment plan, in this particular case no objective basis for the pain is put forward, the applicant continued to work, there is no evidence from the employer about the applicant needing modified duties at work and Dr. Haddad did not refer the applicant for any further investigations or to a chronic pain specialist. The only mention of a chronic pain specialist is in Dr. Haddad’s February 2020 response to the questionnaire from the applicant’s legal representative in which Dr. Haddad answers “yes” to the question “Are you willing to refer the patient to a chronic pain facility…?” There is no evidence that this was done. The applicant submits this is because of the current pandemic. However, the government pandemic Order was not until March 2020. More importantly, Dr. Haddad did not make any such referral in the preceding two years post-accident despite completing the disability certificate a year earlier and noting chronic pain as the injury. I find that this questionnaire does not establish that the disputed treatment plans are reasonable and necessary.
21It appears that perhaps the applicant himself does not consider the disputed treatment plans reasonable and necessary. In reply submissions the applicant concedes only “some” of the treatment plans in dispute have been incurred. This is consistent with the Care Plus Physiotherapy (“Care Plus”) records which show the last treatment as June 29, 2019 and only $626.00 outstanding. The applicant told Dr. Marchuk that his current job duties do not make his pain symptoms worse, but sometimes he gets headaches at work. The applicant also told Dr. Marchuk that he starts to feel better after going to therapy, which “he no longer attends”.
22Care Plus’s records show only modest improvement in applicant’s condition after treatment. On January 26, 2018 Care Plus noted “little improved” and also May 16, 2019, May 25, 2019 and June 19, 2019 noted “little improved”, some one and a half years post-accident. On June 29, 2019 Care Plus noted “progressing”. Care Plus notes only “slight reduction” in pain and stiffness reported by the applicant between January 25, 2018 and March 27, 2018 and the same between May 16, 2019 to June 29, 2019. The weight of the applicant’s evidence does not establish that the disputed treatment plans would be more effective than the exercises the applicant says he does at home. I find that the records of Care Plus do not establish that the disputed treatment plans are reasonable and necessary and indicate that the goals of the treatment plans are not being met to a reasonable degree.
23The reports of applicant’s psychologists Dr. Hollere, Dr. Polonsky and Dr. Pilowsky do not establish that the disputed treatment plans are reasonable and necessary but instead address the applicant’s psychological injuries. Even considering there is some mention of facility treatment in these reports, physiotherapy is outside the expertise of a psychologist.
24I prefer the opinion of Dr. Marchuk who assessed the applicant in August 2019 for several reasons. As a physiatrist, Dr. Marchuk has specialized medical expertise and experience. Dr. Marchuk’s assessment included a review of numerous medical records relating to the applicant including the disputed treatment plans, other documentation from the applicant’s physiotherapist and the x-rays. Dr. Marchuk diagnoses whiplash associated disorder (WAD2) superimposed over mild degenerative disc disease, cervicothoracic bilateral shoulder myofascial dysfunction and lumbar musculoligamentous myofascial dysfunction. With respect to the disputed treatment plans Dr. Marchuk opined that they are not reasonable and necessary as related to these physical impairments sustained in the accident. Given the length of time since the accident and minimal improvement, despite having received similar treatment in the past, it is unlikely that further physiotherapy facility-based treatment will aid in recovery and in addition the applicant’s condition has plateaued.
25The applicant’s argument that Dr. Marchuk’s report should not be considered because he failed to review “all medical records” and the “complete GP CNR’s” is unpersuasive. Dr. Marchuk’s report shows that he reviewed the records of the Centre to March 26, 2019. Further, the applicant concedes in his submissions that Dr. Marchuk had “enough medical documentation”. I accept the opinion of Dr. Marchuk that the disputed treatment plans are not reasonable and necessary for the reasons set out in his report.
26The applicant’s argument that the respondent is acting in bad faith in denying the disputed treatment plans contrary to case law is not persuasive. The respondent provided four rounds of rehabilitative physiotherapy and massage treatment starting a few days after the accident and continuing to June 29, 2019, removed him from the MIG and also has provided psychological therapy. The respondent’s determination that the disputed treatment plans are not reasonable and necessary is not an unreasonable position given the medical evidence referred to above and the opinion of Dr. Marchuk. Having reviewed the non-binding case law relied upon by the applicant, I find that there is no conduct from the respondent here that approaches the level of bad faith or even any undue delay or conduct seeming to ignore the applicant’s physical needs as in the cases cited.
27For the foregoing reasons, after considering the totality of the evidence and submissions made by the parties, I find that the applicant has not met his burden of proof that the disputed treatment plans are reasonable and necessary. The goals, progress toward the goals and overall cost is not reasonable and necessary.
Interest
28As no benefits are payable, there is no interest.
Is the Applicant Entitled to an Award under Ontario Regulation 664?
29Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. No payment is due so there is no unreasonable withholding or delay. No award is made.
ORDER
30For the reasons outlined above, I find that the applicant is not entitled to the two disputed treatment plans. As no benefits are payable, there is no interest. There is no special award.
Released: August 24, 2020
__________________________
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
- Beltrame and Dominion of Canada General Insurance Co. (FSCO A12-001522) at para 40; D.N.F. v. Aviva Insurance Canada, 17-005691/AABS (ON LAT); R.O.O. v. Aviva Insurance Canada, 18-008653/AABS (ON LAT).