Sukhvinder Bhullar v. TD Insurance Meloche Monnex, 2020 CanLII 94801

Licence Appeal Tribunal

Citation: Bhullar vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-010667/AABS

Date: November 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:

Sukhvinder Bhullar

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Rosemary Book, Counsel

For the Respondent:

Symone Marlowe, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Sukhvinder Bhullar (“Bhullar”), was injured in an automobile accident on November 11, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from TD Insurance Meloche Monnex (“TD”), the respondent.

2TD denied Bhullar’s claim for two treatment plans for medical benefits and, as a result, Bhullar submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on March 5, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

1. Is Bhullar entitled to $2,905.72 for chiropractic treatment and massage therapy recommended by Atlantis Chiropractic & Wellness in a treatment plan (“OCF-18”) dated September 21, 2017, and denied on October 3, 2017?
2. Is Bhullar entitled to $6,386.65 for chiropractic treatment, physiotherapy and massage therapy recommended by Dr. Ravin Sodhi in an OCF-18 dated June 11, 2018, and denied on August 14, 2018?
3. Is Bhullar entitled to interest on any overdue payment of benefits?

RESULT

5I find that Bhullar is entitled to the eight sessions of massage therapy as set out in the September 21, 2017 treatment plan along with the cost for completion of this OCF-18 with interest in accordance with s. 51 of the Schedule. I find that Bhullar is not entitled to the remainder of the September 21, 2017 OCF-18 or to the June 11, 2018 treatment plan.

ANALYSIS

6Sections 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.

7Bhullar bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.¹

Signed treatment plans – s. 38(3) of the Schedule

8TD submits that it is not liable to pay either treatment plan in dispute because neither were signed by the health care provider and the insured as required by s. 38(3) of the Schedule. In support of its position, TD relies upon the Financial Services Commission of Ontario’s (“FSCO’s”) decision in Chaparina v. State Farm Mutual Automobile Insurance Company.²

9Electronic submissions of treatment plans through HCAI became mandatory on February 1, 2011. Treatment plans submitted through HCAI require the provider to indicate that the treatment provider’s electronic signature is on file and that the treatment plan has been reviewed by the provider. Once completed, the OCF 18 is to be printed and physically signed by the provider, and a copy saved in the applicant’s file at the facility. The HCAI system simply does not allow for signed forms to be submitted to insurers at first instance.

10In her reply submissions, Bhullar submitted that the first time that TD raised the issue of non-compliance with s. 38(3) of the Schedule was in its written hearing submissions.³ Bhullar submitted that TD had never requested to view the hardcopies of the OCF-18s and TD’s denial letters regarding the proposed treatment plans do not raise the issue of the OCF-18s being unsigned.

11In its hearing submissions, TD does not provide any information as to when it raised the issue of the OCF-18s not being signed with Bhullar or any correspondence requesting the hardcopies of the OCF-18s. I also agree with Bhullar that TD did not raise the issue of noncompliance with s. 38(3) of the Schedule in any of its denial letters regarding the treatment plans in dispute.

12I find that if TD was not consenting to an unsigned copy of the OCF-18 being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon TD to request a copy of the OCF-18 upon receipt of the electronic version through HCAI. There is no evidence before me that TD raised this issue prior to its written submissions or any reason precluding TD from raising this issue earlier. TD’s failure to only raise the issue of the OCF-18s being unsigned at this late stage of the proceeding is inappropriate.⁴

13In any case, Bhullar obtained and submitted the signed copies of the two disputed OCF-18s in her reply submissions directly in response to TD’s written submissions wherein the issue of non-compliance with s. 38(3) was first raised. The submission of the signed OCF-18s distinguishes the facts in this matter from that of Chaparina as in that case, the disputed treatment plans were not signed.⁵ Based on all of the evidence before me, I find no breach of s. 38(3) of the Schedule that would absolve TD’s liability to pay the proposed OCF-18s if they are found to be reasonable and necessary on a balance of probabilities.

September 21, 2017 Treatment Plan

14The September 21, 2017 treatment plan was completed by Dr. Ruminder Birk, chiropractor with Atlantis Chiropractic & Wellness, which sought funding for a reassessment, completion of the OCF-18, 18 sessions of chiropractic treatment and eight sessions of massage therapy. The expected duration of the treatment plan was 18 weeks. The goals of the treatment plan were pain reduction, increased in strength, increased range of motion, and a return to activities of normal living. The injury and sequela information section of the OCF-18 listed the following: whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs; malaise and fatigue; subluxation complex (vertebral) in the cervical and lumbar regions; and chronic post-traumatic headache.

15I find that Bhullar has proven the reasonableness and necessity of the portion of the September 17, 2017 treatment plan for the eight massage therapy sessions only.

16At the time of the accident, Bhullar worked as a self-employed chiropractor. In an affidavit sworn on August 31, 2020,⁶ Bhullar stated that while she continued to work after the accident, she did so with difficulty as a result of her pain and that she worked at a reduced capacity.⁷ Bhullar further stated that her therapy was essential in allowing her to continue to operate her business⁸ and that all of her treatment has helped her to continue to function.⁹

17Bhullar relied upon s. 16(2) of the Schedule in support of the reasonableness and necessity of both treatment plans. Under s. 16(2), measures to reintegrate an insured person into the labour market are considered reasonable and necessary, taking into consideration the person’s personal and vocational characteristics, if they enable the person to engage in employment or self-employment that is as similar as possible to the employment or self-employment in which he or she was engaged at the time of the accident or lead as normal a work life as possible.

18Section 16(2), however, cannot be read in isolation of the remainder of s. 16. Section 16(1) prescribes that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) [emphasis added] that are reasonable and necessary to facilitate the person’s reintegration into the labour market. In my opinion, s. 16(2) sets out further considerations for determining the reasonableness and necessity of a proposed treatment plan in reintegrating an insured person into the labour market. Further, s. 16(3) sets out an exhaustive list of the various types of counselling and training that could be considered reasonable and necessary for such reintegration. The various forms of physical therapy proposed in the disputed treatment plans are not listed in s. 16(3) and, therefore, I find that s. 16 is not applicable in this matter.

19Additionally, while I appreciate Bhullar’s opinion regarding her treatment and its effect on her ability to continue working, the medical documents only supported continued massage therapy at the time that the September 21, 2017 treatment plan was submitted for consideration to TD.

20For example, the clinical notes and records (“CNRs”) of Dr. Mohammed Elahi, Bhullar’s family physician at the time, supported the massage therapy portion of the September 21, 2017 OCF-18 only. In a May 16, 2017 CNR entry, Dr. Elahi reported that Bhullar attends for acupuncture, laser, physiotherapy and massage therapy and his plan notes indicated that Bhullar was to “continue with therapy.” A further June 26, 2017 entry recommended that Bhullar continue with therapy. There are no entries in any of Dr. Elahi’s CNRs that refer to chiropractic treatment or make any recommendation for such treatment.

21Further, in a June 16, 2017 neurology note by Dr. Vincenzo Santos Basile, neurologist, Bhullar was diagnosed with right-sided mild carpal tunnel syndrome superimposed on a musculoskeletal type of pain in the neck and shoulder. Dr. Basile’s note supported the proposed massage therapy as he recommended this treatment as well physiotherapy and swimming to treat Bhullar’s neck and shoulder pain. Dr. Basile made no recommendations for chiropractic treatment.

22I also do not agree with TD that I should give less weight to Dr. Basile’s recommendations or diagnoses on the basis that Dr. Basile did not conclude that Bhullar’s neck and shoulder injuries were caused by the accident. Even the insurer’s examiner, Dr. Mohamed Khaled, general physician, diagnosed Bhullar with grade 2 whiplash of the neck as a result of the accident in both his August 14, 2017 and November 16, 2018 Insurer’s Independent Medical Examination reports. Additionally, there is no other evidence before me that supports TD’s suggestion that Bhullar’s neck and shoulder injuries are not accident related.

23In support of the two disputed treatment plans, Bhullar also submitted a January 8, 2018 letter by Dr. Robin Richards, orthopaedic surgeon, and asked that I place more weight upon it than on Dr. Khaled’s Insurer’s Independent Medical Examination reports dated August 14, 2017 and November 16, 2018. Despite Dr. Richard’s letter not being in existence at the time that the September 21, 2017 treatment plan was submitted to TD, Dr. Richard’s January 8, 2018 letter does not recommend any specific treatment. Dr. Richards confirms that the treatment received by Bhullar to date, which included chiropractic treatment, massage therapy, acupuncture and laser therapy, had been appropriate for Bhullar’s medical diagnosis. However, the only statement by Dr. Richards regarding future treatment recommendations is that Bhullar, “will require ongoing treatment to control her symptoms for the foreseeable future.” Dr. Richards provides no discussion or details about the type or frequency of treatment that Bhullar required at the time of his letter.

24While the burden never shifts to TD to disprove Bhullar’s entitlement to the disputed OCF-18, I give little weight to Dr. Khaled’s opinion as set out in his August 14, 2017 Insurer’s Independent Medical Examination report in determining the reasonableness and necessity of the September 21, 2017 treatment plan. Dr. Khaled’s report noted that the purposes of his assessment were to determine the applicability of the Minor Injury Guideline (“MIG”)¹⁰ and also to opine on the reasonableness and necessity of the September 21, 2017 OCF-18. In opining that the MIG applied to Bhullar’s physical injuries, Dr. Khaled stated that the query as to the reasonableness and necessity of the proposed OCF-18 was “not applicable” as Bhullar’s physical injuries would have fallen under the treatment protocols recommended by the MIG. Dr. Khaled provided no other reasons or any discussion regarding the reasonableness and necessity of the September 21, 2017 treatment plan.

25For all of the reasons set out above, I find that Bhullar is entitled to the eight sessions of massage therapy and to the cost for the completion of the OCF-18 as I have found Bhullar to be entitled to a portion of the treatment plan. Bhullar is not entitled to the remainder of the September 21, 2017 OCF-18.

June 11, 2018 Treatment Plan

26The June 11, 2018 treatment plan was completed by Dr. Ravin Sodhi, chiropractor, at Active Life Wellness Centre Inc. and sought funding for a total body assessment, 25 one-hour sessions of chiropractic treatment, 25 one-hour sessions of physiotherapy and 15 one-hour sessions of massage therapy. The estimated duration of this plan was stated as eight weeks. The goals of this treatment plan were as follows: pain reduction; increase in strength; increased range of motion; a return to activities of normal living; a return to pre-accident level and function; chronicity prevention with strengthening and stretching; to avoid passive dependency issues from developing; functional restoration protocols; a review of daily activities to better prepare for future discharge from therapy; coping with chronic pain; and to reduce chronic pain and increase Bhullar’s ability to function which includes improving coping skills and reducing stress to help Bhullar return to regular activities.

27I find that Bhullar has failed to prove on a balance of probabilities the reasonableness and necessity of this treatment plan for several reasons.

28First, the June 11, 2018 OCF-18 is internally inconsistent. The treatment modalities in the OCF-18 proposed funding for chiropractic treatment, physiotherapy and massage. However, in the additional comments portion of the treatment plan, the OCF-18 stated, “the treatment of chronic pain is rarely resolved by exercise alone, which is helpful and will be utilized in the form of swimming,” and, “the main emphasis and focus of our treatment will be nutritional counselling, exercise program with strengthening and, [sic] electrical stimulation for closing the pain gates and for ATP genesis.” No funding was sought for swimming, nutritional counselling, or an exercise program with strengthening or electrical stimulation.

29Second, there is no analysis or explanation for the remarkable increase in the proposed treatment frequency. Given the number of treatment sessions sought and the anticipated duration of the OCF-18, it was proposed that Bhullar would receive on average just over eight treatment sessions per week. The frequency of treatment sought is not consistent with the CNRs from Active Life Wellness Centre Inc. which noted the plan for Bhullar’s treatment being two to three times per week, which is far less than that set out in the OCF-18.

30Third, Bhullar submitted further physician CNRs which not support the proposed treatment plan. For example, there is no recommendation for any physical treatment in the August and September 2018 CNRs of Dr. Donovan Sequeira, family physician. Additionally, the CNRs from Dr. Attalla, a further family physician of Bhullar’s, do not contain any recommendation for any physical treatment and were not in existence at the time of the proposed treatment plan was submitted to TD as the only CNR entries were dated in 2020.

31The only support for any of the proposed treatment included in the June 11, 2018 treatment plan is a CNR entry by Dr. Elain Soucy dated July 17, 2018 in which Dr. Soucy writes to Dr. Sequeira and recommends continuation of physiotherapy and analgesic as needed. However, in the body of her letter, Dr. Soucy stated that Bhullar was “currently doing some physiotherapy using ice and doing some stretching with minimal improvement.” However, the December 5, 2019 Billing Statement from Active Life Wellness Centre Inc. indicated that the only service provided to Bhullar was “chiropractic” by Dr. Sodhi beginning on June 11, 2018 through to November 18, 2019. No other treatment modalities were listed as provided to Bhullar by Active Life Wellness Centre Inc. during this time. Therefore, I am unable to place weight on Dr. Soucy’s recommendation for Bhullar to continue physiotherapy in July 2018 as there is no evidence before me that Bhullar had been receiving physiotherapy in July 2018. Additionally, there is no discussion in Dr. Soucy’s letter as to why continuation of physiotherapy was recommended given Dr. Soucy’s comment that Bhullar had only reported “minimal improvement” following this type of treatment.

32Fourth, ongoing chiropractic treatment was not enabling Bhullar to maintain her current level of functioning. Bhullar was initially assessed by Dr. Sodhi at Active Life Wellness Centre Inc. on June 11, 2018 and received seven sessions of chiropractic treatment prior to the end of November 2018. In her affidavit, however, Bhullar stated that she restricted her practice to three days per week starting in November 2018. Although it is unclear how many days per week she was working prior to November 2018, I accept that this statement reflects some reduction in the days per week that Bhullar worked. Therefore, the chiropractic treatment that she was receiving during this time did not result in physical improvements and, as such, this matter is distinguishable from 17-006160 v Aviva Insurance Canada,¹¹ which was relied upon by Bhullar. In 17-006160, the Tribunal found that the proposed treatment plans were reasonable and necessary as contemporaneous medical records demonstrated that the applicant’s primary physical impairments improved while receiving physical therapy.¹² Here, Bhullar reduced her work while receiving chiropractic treatment. Further, the only CNRs contemporaneous to this period of time, other than those discussed in paragraph [30] above, were from Living Proof Institute which show that Bhullar reported only mild improvement in her headaches, lower back and neck pain and that her daily wrist and arm pain remained the same. Bhullar also reported the following high pain levels in the Living Proof Institute CNRs on October 2, 2018, almost two years post-accident: 7/10 – neck pain; 7/10 – low back pain; 9/10 for her mid back pain; and 9/10 for her hand pain.

33As I stated above, the burden never shifts to TD to disprove Bhullar’s entitlement to the disputed OCF-18. However, for completeness, I also give little weight to Dr. Khaled’s opinion in his November 16, 2018 Insurer’s Independent Medical Examination report¹³ in determining the reasonableness and necessity of the June 11, 2018 OCF-18. In this report, Dr. Khaled opined that the June 11, 2018 OCF-18 was not reasonable and necessary because, “the insured has had appropriate and adequate facility-based soft tissue rehabilitation therapy.”¹⁴ The only comments in Dr. Khaled’s report, however, regarding Bhullar’s treatment since the accident was that her treatment consisted of massage, acupuncture, chiropractic treatment, stretching and exercise.¹⁵ It is unclear from his report what, if any, additional information Dr. Khaled had in arriving at his opinion regarding Bhullar’s treatment as Dr. Khaled only noted “Clinical Notes and Records” with no identifying source in the schedule of documents as reviewed as part of his assessment. No other treatment records were listed in his schedule of documents.

34For all of the reasons set out above, I find that Bhullar is not entitled to the June 11, 2018 treatment plan as she has failed to prove on a balance of probabilities its necessity and reasonableness.¹⁶

Interest

35Bhullar is entitled to interest in accordance with s. 51 of the Schedule for the eight sessions of massage therapy and completion of the OCF-18 amounts of the September 21, 2017 treatment plan.

CONCLUSION

36For the reasons outlined above, I find Bhullar is:

(i) entitled to the eight sessions of massage therapy and to the cost for the completion of the OCF-18 as set out in the September 21, 2017 treatment plan with interest in accordance with s. 51 of the Schedule;

(ii) not entitled to the remainder of the September 21, 2017 OCF-18; and

(iii) not entitled to the June 11, 2018 treatment plan.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
2. 2FSCO A14-007595, February 19, 2016 (“Chaparina”).
3. 3Reply Submissions of the Applicant, para. 23.
4. 4C.B. v. Aviva Insurance Canada, 2019 CanLII 63375 (ON LAT) at para. 32, S.J. v Aviva Insurance Canada, 2019 CanLII 76996 (ON LAT) at para. 33 and 17-003450 v. Aviva Insurance Canada, 2019 CanLII 58153 (ON LAT) at para. 28.
5. 5Supra note 2 at page 3.
6. 6Written Submissions of the Applicant, tab 13.
7. 7Ibid. at paras. 11 and 15.
8. 8Ibid. at para. 23.
9. 9Ibid. at para. 43.
10. 10Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
11. 112018 CanLII 81952 (LAT) (“17-006160”).
12. 12Ibid. at para. 17.
13. 13Written Submissions of the Applicant, tab 5.
14. 14Ibid. at page 12.
15. 15Ibid. at page 5.
16. 16TD raised a preliminary issue regarding the June 11, 2018 treatment plan pursuant to s. 38(2) of the Schedule. TD submitted that certain portions of this treatment plan, including the initial assessment on June 11, 2018 and treatment received on June 11, June 13, June 20, and July 18, 2018, were incurred prior to the OCF-18 being submitted on HCAI on August 1, 2018. As I have found that Bhullar is not entitled to this treatment plan in its entirety, TD’s argument regarding s. 38(2) is moot.