Released Date: 11/12/2020
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:
Sally Gouveia
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Sarah Marshall
For the Respondent:
Aryeh Samuel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on August 31, 2016, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').1 Allstate removed the applicant from the Minor Injury Guideline on the basis of her psychological impairments. It has denied benefits since on the basis that the proposed treatment and assessment plans are not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Is the applicant entitled to receive a medical benefit in the amount of $2,661.00 for occupational therapy and physiotherapy services recommended by Heather Norman in a treatment plan submitted November 3, 2017 and denied by the respondent on November 15, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $4,200.00 for neuropsychology testing recommended by Ricki Ladowsky-Brooks in a treatment plan submitted November 23, 2017 and denied by the respondent on December 8, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,199.76 for audiometric and speech language pathology services recommended by Jeanette Podolsky in a treatment plan submitted June 5, 2018 and denied by the respondent on June 13, 2018?
iv. Is the applicant entitled to receive a medical benefit in the amount of $3,042.64 for psychological services recommended by Dr. Bodnar in a treatment plan submitted June 19, 2018 and denied by the respondent on July 6, 2018?
v. Is the applicant entitled to payments for the cost of examinations in the amount of $1,940.60 for a dietician’s assessment, recommended in a treatment plan submitted May 29, 2017 and denied by the respondent on June 16, 2017?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
result
3I find the applicant is entitled to payment for the physiotherapy portion of the OCF-18 identified as issue i, above, in the amount of $1,197.00 plus one of the items for documentation and support in the amount of $85.00. The applicant is not entitled to the remaining portion of the treatment plan in issue i as it is not reasonable and necessary.
4I find the applicant is entitled to payment for the psychological treatment plan in the amount of $3,042.64 as it is reasonable and necessary.
5The applicant is not entitled to payment for the remaining benefits in dispute as she has not demonstrated that they are reasonable and necessary.
ANALYSIS
The applicant’s impairments; reasonable and necessary
6As a result of the accident, the applicant submits that she immediately complained of pain to the frontal region of her head, neck, mid-back, left forearm and bilateral shoulders. She has since been diagnosed with chronic pain/fibromyalgia and psychological impairments including depression and adjustment disorder. She submits that her condition has not improved since the accident and she was approved for Long-Term Disability (“LTD”) in February 2020. In support of her position, the applicant relies on various clinical notes and treatment records, a Pain Management Report from June 2019, a Speech Language Pathology Assessment from August 2018 and her LTD statement from January 2020.
7In response, Allstate submits that the applicant has not met her onus to prove that any of the treatment and assessment plans are reasonable and necessary. It relies on s. 44 Insurer’s Examinations (“IEs”) reports from various disciplines, including occupational therapy, orthopaedic surgery, neuropsychology, psychology and a family physician. Allstate submits that from a physical perspective, the applicant sustained uncomplicated soft-tissue injuries and that she has likely achieved maximal medical recovery. Further, Allstate argues that there are limited references to a concussion or head injury in the notes and no cognitive or speech-related issues, that there is no evidence of accident-related nutritional deficits and that further psychological intervention is not required.
8The parties agree that in order to receive payment for medical and rehabilitation benefits under s. 15 of the Schedule, the applicant must prove on a balance of probabilities that each specific benefit she seeks is reasonable and necessary to treat her accident-related impairments.
Occupational therapy and physiotherapy services in the amount of $2,661.00 submitted November 3, 2017
9I find this treatment plan to be partially reasonable and necessary to treat the applicant’s ongoing pain from the accident because pain relief is a legitimate goal for treatment. On the evidence, I accept that the applicant has had lingering pain, specifically in her left shoulder and neck, as a result of the accident that has become chronic in nature. I find her pain has been consistently and contemporaneously documented in the clinical notes and records.
10The applicant submits that her physician, Dr. Kianfar, supported ongoing physiotherapy, as well as massage and acupuncture, and discussed its importance with the applicant around the time this treatment plan was submitted. The applicant submits that the twelve sessions of physiotherapy in this plan reinforces Dr. Kianfar’s opinion that she would benefit from these treatments and had not reached maximum medical recovery. I agree and find support for this position in her family physician’s notes and ultimate diagnosis of chronic pain. Further, despite being prescribed various pain relief medications, I find that her pain complaints were present in 2017 when the plan was submitted and have continued to date, which has resulted in a chronic pain management program.
11However, with regards to the other half of the treatment plan consisting of 12 sessions of occupational therapy, I find that the applicant has not demonstrated why these sessions are reasonable and necessary, or really, what the proposed treatment would entail beyond the “Training, cognition and learning (skills)” that is listed as item five of the OCF-18. While I am alive to the applicant’s submissions on her need for ongoing occupational therapy support and recognize that Allstate has approved same in the time since this plan was submitted, I find it unclear what exactly is being proposed in this treatment plan. The additional comments section is blank and there is limited detail on what the OT sessions will be specifically addressing. In contrast to the very detailed and very specific OCF-18 dated August 9, 2017 that preceded this one and was approved by Allstate, I find the OCF-18 in dispute here to be lacking in specificity and direction. The Tribunal would have benefitted from greater analysis from the applicant to demonstrate why the OT portion of this treatment plan was reasonable and necessary.
12Accordingly, I find the treatment plan is partially reasonable and necessary. The applicant is entitled to payment for the physiotherapy portion of the OCF-18 in the amount of $1,197.00 plus one of the items for documentation and support in the amount of $85.00.
Neuropsychology assessment totalling $4,200.00 submitted November 23, 2017
13I find that the applicant has not demonstrated that the neuropsychology assessment is reasonable and necessary. The applicant submits that her treating psychologist, Dr. Bodnar, recommended a neuropsychological assessment based on the presence of “prevalent and ongoing cognitive symptoms.” The applicant submits that her symptoms include insomnia, chronic pain, trouble multitasking, stuttering, difficulty putting words together, slower work pace, fogginess, memory and concentration issues. She submits that a concussion was initially queried and that these symptoms cannot be ignored as they are all symptoms of cognitive impairment that warrant investigation.
14In response, Allstate relies on the s. 44 report of Dr. Jovanovski, who determined that there was no objective evidence of a head injury or intracranial abnormality as a result of the accident and that a neuropsychological assessment was not reasonable and necessary. Instead, Dr. Jovanovski attributed the applicant’s alleged cognitive symptoms to secondary factors such as fatigue, pain and emotional difficulties like depression and anxiety. Further, while Allstate acknowledges that a concussion was queried by Dr. Haque immediately after the accident, it submits that the clinical notes revealed no issues with cognition or references to any of her symptoms in the two years post-accident and her Disability Certificate does not list concussion as an accident-related impairment.
15I agree with Allstate that there is limited objective evidence of a head injury or cognitive impairment in the medical documentation. Indeed, on review of the documents offered as support by the applicant, the cognitive symptoms are all self-reported and it appears that this referral was made by her treating psychologist as a result of her self-reporting and not on the basis of any diagnostic imaging or objective medical opinion. While the parties agree that Dr. Haque, who the applicant first visited following the accident, queried a concussion, the Disability Certificate does not identify a concussion or any cognitive issues and these symptoms only appear for the first time in the injury section of the OCF-18 in dispute.
16Further, I agree with Allstate that there is no indication that the applicant reported these cognitive concerns to her family physician in the two years post-accident or at the time this treatment plan was submitted. While I agree with the applicant that physician records are not the definitive source for this analysis, I find the lack of engagement with Dr. Kianfar over these alleged cognitive symptoms notable because of the volume and consistency of her other accident-related complaints (like her ongoing pain) that prompted recommendations or referrals during the same period of time. In the face of the opinion of Dr. Jovanovski, a neurologist, that a neuropsychological assessment was not reasonable and necessary, I find that the applicant’s self-reporting of being foggy or forgetful or distracted does not equate to an objective, accident-related cognitive impairment that warrants a neurological investigation, as alleged.
17For completion, and even if the applicant had procured greater objective medical evidence to warrant an assessment, I would not have found the OCF-18 in dispute reasonable and necessary. While the applicant did not speak to the reasonableness of the costs proposed, on review, the OCF-18 seems to bifurcate the assessment into two separate assessments in order to garner two separate payments. It is unclear why the testing and scoring component of the plan ($2,000) and the interview and opinion component of the plan ($2,000) are both reasonable expenses or why this particular assessment is so complex or laborious that it cannot be considered a single assessment. In any case, I find the applicant is not entitled to payment for this OCF-18 as it is not reasonable and necessary.
Audio and speech language pathology totalling $2,199.76 submitted June 5, 2018
18I find the applicant is not entitled to payment for this OCF-18 as she has not demonstrated that it is reasonable and necessary as a result of her accident-related impairments.
19The applicant submits that the speech-language pathology cognitive-communication assessment was recommended by Jeanette Podolsky in a treatment plan dated June 5, 2018. She argues that the assessment is reasonable and necessary because following the accident the front of her head was hurting, she was slurring her words, Dr. Haque queried a concussion and she has continuously reported difficulties with word finding, concentration and memory. The applicant submits that her cognitive difficulties were recognized shortly after the accident and reported until the time this assessment was requested and are ongoing. Given her motivation to continue working in a client-facing position, the applicant incurred this assessment, submitting that it was reasonable to do so in order to determine whether there were in fact deficits with her cognitive processing and whether there was something she could do to remedy those issues.
20In response, Allstate relies on the s. 44 reports of neurologist Dr. Jovanovski who determined that the assessment was not reasonable and necessary because there was no objective evidence of a head injury or intracranial abnormality as a result of the accident and attributed the applicant’s alleged cognitive symptoms to secondary factors such as fatigue, pain and emotional difficulties like depression and anxiety. Allstate points to the lack of complaints to her family physician about speech-related impairments.
21I agree with Allstate. While I am alive to the applicant’s self-reporting of her symptoms to her psychologist, Dr. Bodnar, I agree with Allstate that these are the only treatment notes that contain reference to these difficulties. The applicant consistently complained of pain and emotional struggles to her family physician post-accident but did not report the type of cognitive difficulties this OCF-18 is proposing to investigate. Further, where the referral seemingly came from her psychologist, I prefer the opinion of the neurologist, Dr. Jovanovski, who determined that this assessment was not reasonable and necessary because there was no objective indication of an accident-related cognitive impairment, only the applicant’s self-reporting.
22The Tribunal would have benefitted from a more thorough explanation or analysis of the OCF-18 and the assessment to explain how this was reasonable and necessary for the applicant’s accident-related recovery. The OCF-18 indicates that over 17 hours was required to complete the assessment, the report in evidence indicates that it was completed in four hours and there is also an invoice in evidence that provides for six separate assessment dates. In reply, the applicant submits that “the speech language assessment considers more than just speech-related impairments because it also assesses auditory comprehension and information processing, understanding written materials and the ability to explain ideas in writing” but does not explain why this makes the specific assessment in dispute reasonable and necessary. Further, while the applicant incurred the assessment, it is unclear whether she proceeded with any of the recommendations.
23As a result, I find the applicant has not demonstrated that the assessment is reasonable and necessary.
Psychological treatment totalling $3,042.64 submitted June 19, 2018
24I find the applicant is entitled to payment for the psychological treatment plan in the amount of $3,042.64 as it is reasonable and necessary.
25The applicant was assessed in April 2017 and has already participated in 26 sessions of treatment with Dr. Bodnar, psychologist, who also recommended the additional slate of ten sessions with a progress/discharge report in dispute here. These initial sessions came as a result of the applicant’s psychological and emotional complaints which prompted a s. 44 diagnosis in March 2017 of Adjustment Disorder from Dr. Dumitrascu, who recommended a short course of treatment. On receipt of this OCF-18, Allstate scheduled another s. 44 IE with Dr. Dumitrascu. As a result of this second assessment, Dr. Dumitrascu’s report, dated September 5, 2018, determined that the applicant no longer met the criteria for a DSM-V psychological disorder and that no further intervention was required because the previous sessions the applicant had received were beneficial to her and had ameliorated her symptoms.
26I disagree. I find Dr. Dumitrascu’s report to be somewhat disingenuous on the clinical notes in evidence and especially so in the face of strong recommendations from Dr. Kianfar that the applicant undergo “psychotherapy with anti-anxiolytic/antidepressant, CBT for insomnia and EAP for counselling services.” Further, after a referral to the Toronto Academic Pain Medicine Institute, Dr. Bernardo recommended psychiatric/psychological evaluation and remarked that she “presented with a constellation of psychoemotional issues” and is “depressed, anxious and frustrated with her condition and her treatments.” On review of the treatment notes from Dr. Bodnar, it is quite apparent that the applicant’s psychological and emotional impairments have not been ameliorated, as Dr. Dumitrascu insists. The applicant’s LTD application from February 2020 references “significant anxiety and depression” and states that she requires formal counselling, CBT and medication to address the psychiatric component of her condition. I find the volume and consistency of both the applicant and her treating practitioner’s reporting to be compelling evidence that further psychological treatment is required.
27While Allstate submits that Dr. Dumitrascu’s second opinion is an indication of her credibility as an assessor, of the success of the applicant’s treatment and that Dr. Bodnar’s recommendations should be afforded no weight based on remarks from two Tribunal decisions, I find that the applicant’s psychological and emotional complaints have been quite consistent post-accident and find that another slate of 10 sessions is an eminently reasonable and, indeed, necessary expense to help address these issues moving forward. Accordingly, I find the treatment plan reasonable and necessary.
Dietician’s assessment in the amount of 1,940.60 submitted May 29, 2017
28I find that the applicant is not entitled to payment for the dietician’s assessment as she had not demonstrated that it is reasonable and necessary as a result of her accident-related impairments.
29The applicant submits that this assessment is reasonable and necessary based on the recommendation of her OT because she reported she lacked motivation to cook and often found herself eating whole fruits and vegetables to avoid prolonged cooking using her arms and also reported that she often would not eat dinner. The applicant submits that she weighed 130 lbs. at the time of the accident and 118 lbs. at the time of the s. 44 IE assessment with Dr. Silver in August 2017. She attributes her weight loss to the accident, arguing that she ate much less frequently, sometimes completely forgetting to eat, would consume less food and therefore having her nutritional habits reviewed by a dietician would have supported healthy eating habits.
30In response, Allstate relies on the report of Dr. Silver, who determined that there was no evidence of accident-related nutritional deficits that would require the provision of a dietician assessment. After new information was received from the applicant, Dr. Silver conducted an addendum report in August 2018 and his opinion remained unchanged. Allstate again relies on the dearth of complaints to the applicant’s family physician about accident-related weight loss, lack of appetite or otherwise unhealthy nutrition habits. Allstate directs the Tribunal to the sole reference to diet in July 2017 where the applicant actually advised Dr. Kianfar that she had “cleaned up her diet.”
31I agree with Allstate. On review of the medical documentation, I find there is limited evidentiary basis to support payment of this treatment plan. Other than stating that she lost weight, the applicant has not demonstrated how her alleged weight loss is as a result of the accident. The applicant has also not explained how a $1,940.60 assessment with a dietician is a reasonable and necessary expense to assist in her recovery where the OCF-18 itself indicates her weight has “yo-yoed”, where Part 9 does not identify a goal for the assessment and only $480.00 of the total is earmarked for that assessment. Accordingly, I find the applicant is not entitled to payment for this assessment as it is not reasonable and necessary.
Interest
32As benefits are overdue, it follows that interest applies pursuant to s. 51.
CONCLUSION
33I find the applicant is entitled to payment for the physiotherapy portion of the OCF-18 identified as issue i, above, in the amount of $1,197.00 plus one of the items for documentation and support in the amount of $85.00. The applicant is not entitled to the remaining portion of the treatment plan in issue i as it is not reasonable and necessary.
34I find the applicant is entitled to payment for the psychological treatment plan in the amount of $3,042.64 as it is reasonable and necessary.
35The applicant is not entitled to payment for the remaining benefits in dispute as she has not demonstrated that they are reasonable and necessary.
36Interest applies to all overdue benefits pursuant to s. 51.
Released: November 12, 2020
__________________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.