EG v. Allstate Insurance, 2021 CanLII 11879

Citation: EG vs. Allstate Insurance, 2021 ONLAT 19-009129/AABS

Released: January 18, 2021

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:

[EG]

Applicant

and

Allstate Insurance

Respondent

ADJUDICATOR: Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant: Ryan St. Aubin, Counsel

For the Respondent: Lisa Quan, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, [EG], was involved in an automobile accident on January 22, 2016 when the vehicle her mother was operating was rear-ended by a vehicle travelling approximately 60 km/hr. The applicant was aged 11 at the time of the accident. After the accident, she sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent, Allstate Insurance, determined that the applicant’s accident-related injuries warranted treatment outside the Minor Injury Guideline² (“MIG”). To date, the respondent has approved $17,547.39 in medical and rehabilitation benefits. The applicant claimed other benefits which the respondent denied. The applicant, through her litigation guardian, K.G., applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES IN DISPUTE

3I am to decide the following issues:

i. Is the applicant entitled to a medical benefit and rehabilitation benefit in the amount of $1,412.50 for strength training recommended by the [Rowing Club] in a treatment plan (OCF-18) submitted on January 17, 2017, and denied on February 27, 2017?

ii. Is the applicant entitled to the following medical and rehabilitation benefits for physiotherapy recommended by [FPC] and denied by the respondent on the basis that treatment was incurred before the OCF-18s were submitted for approval?

a. $1,197.00 submitted on May 3, 2018, and denied on November 18, 2018?

b. $1,995.00 submitted on November 6, 2018, and denied on November 19, 2018?

iii. Is the applicant entitled to a medical benefit and rehabilitation benefit in the amount of $3,983.00 for chiropractic services recommended by [Chiropractic Centre] in a treatment plan (OCF-18) submitted on May 30, 2019, and denied on June 14, 2019?

iv. Is the applicant entitled to a medical benefit and rehabilitation benefit in the amount of $534.00 for an Occupational Therapy Assessment recommended by [IMMA] in a treatment plan (OCF-18) submitted on March 22, 2019, and denied on May 29, 2019?

v. Is the Applicant entitled to a medical benefit and rehabilitation benefit in the amount of $2,000.00, being the balance remaining from an OCF-18 for a Neuro-psychological Assessment recommended by [MP] after the respondent approved $2,200.00, submitted on July 9, 2019, and denied on July 12, 2019?

vi. Is the applicant entitled to the following medical and rehabilitation assessments in OCF-18s submitted by [Rehab Occupational Therapy and Rehabilitation Support Services]?

a. $2,900.00 for an Initial Occupational Therapy Assessment submitted on July 9, 2019;

b. $6,029.00 for occupational therapy services submitted on July 9, 2019; and

c. $5,912.35 for an occupational therapy services submitted on February 13, 2020?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The respondent has approved the treatment plan in dispute for strength training (issue i. above) in a Treatment and Assessment Plan (OCF-18) submitted on January 17, 2017 and the issue is no longer in dispute.

5The applicant has established entitlement to the treatment plan for physiotherapy (submitted November 6, 2019) and chiropractic services (submitted May 30, 2019), which she has shown on a balance of probabilities to be reasonable and necessary as a result of the accident. The respondent is liable to pay an amount of $5,978.00 plus interest calculated in accordance with the Schedule.

6The applicant did not file the Treatment and Assessment Plan (OCF-18) submitted on May 3, 2018 for physiotherapy services in the amount of $1,197.00. I am unable to determine whether this treatment plan is reasonable and necessary without reviewing its contents. The plan is therefore not payable.

7The remaining benefits in dispute are not payable, either because they exceed the amount an insurer is required to pay for any one assessment prescribed under s. 25(5)(a) of the Schedule, or because they are not reasonable and necessary as a result of the accident in accordance with s. 15(1) of the Schedule.

ANALYSIS

8The parties agree for the purposes of this proceeding that the applicant’s injuries are non-minor and non-catastrophic. Therefore, the applicant is eligible to receive up to $50,000 in eligible medical and rehabilitation benefits. For the treatment and assessments sought in this application to be payable, the applicant must prove, on a balance of probabilities, that they are reasonable and necessary as a result of the accident pursuant to s. 15(1) of the Schedule.

9It is well-established in the case law that the onus for proving entitlement to benefits rests with the applicant.³

10On the day of the accident, the applicant underwent a cursory medical review in hospital and was released. The following morning, she competed in a gymnastics competition.

11The applicant began physiotherapy on January 29, 2016.

12On February 2, 2016, the applicant attended her family physician, Dr. Adam Steacie, with complaints of neck pain with headaches. The applicant denied pain worsening with activity, denied the use of analgesics, denied the presence of concussive symptoms and denied fatigue. Her range of motion was noted as “all normal”, though Dr. Steacie documented some discomfort on palpation of the trapezius muscles. He diagnosed “strain/ torticollis/ whiplash injury” and recommended physiotherapy and massage.

13On April 12, 2016, the applicant returned to Dr. Steacie with complaints of ongoing headaches. Dr. Steacie noted that the headaches were improving but were worse when the applicant was doing gymnastics. The headaches did not last long and usually resolved when the applicant stopped activity. The applicant denied headaches while at rest. Dr. Steacie noted that the applicant competed in “high-level gymnastics” and had a competition coming up on the weekend.

14On May 28, 2016, the applicant had her finger splinted in hospital to treat a fracture she sustained while playing basketball.

15In the summer of 2016, the applicant changed family doctors to Dr. Reem Nahab.

16On September 2, 2016, the applicant underwent an MRI of the thoracic spine that revealed mild central disc protrusion at the T3 and T4 vertebrae. Otherwise, the results were normal.

17On February 17, 2017, the applicant visited Dr. Nahab with complaints of continued back pain. Dr. Nahab prescribed physiotherapy and massage therapy.

18On April 17, 2017, the applicant was assessed by Dr. Nahab for neck and shoulder pain. Dr. Nahab noted that the applicant was struggling with math and her memory after the accident. The applicant had stiff neck muscles on examination. Dr. Nahab noted that the applicant tried to return to gymnastics but had to stop due to pain. Dr. Nahab noted that she was continuing with physiotherapy, massage and osteopathy and was awaiting an appointment at [hospital] on April 28, 2017. No records from the [hospital] visit have been entered into evidence and the applicant reported to Dr. Baker that the appointment, which was to have been with the pediatric orthopaedic clinic, never occurred.

19On July 29, 2017, Dr. Nahab assessed the applicant, who presented with complaints of accident-related “pain every where”. Dr. Nahab recommended continuing with rehabilitation. This is the last entry in the clinical notes and records of any physician relating to the applicant’s accident-related pain complaints.

The disputed treatment plans

20The treatment plans in dispute between the parties were submitted on the following dates:

Plan amount	Proposed treatment/assessment	Date submitted
$1,412.50	strength training	January 17, 2017
$1,197.00	physiotherapy	May 3, 2018
$1,995.00	physiotherapy	November 6, 2018
$3,983.00	chiropractic services	May 30, 2019
$534.00	Occupational Therapy Assessment	March 22, 2019
$2,000.00	Neuro-Psychological Assessment	July 9, 2019
$2,900.00	Initial Occupational Therapy Assessment	July 9, 2019
$6,029.00	occupational therapy services	July 9, 2019
$5,912.35	occupational therapy services	February 13, 2020

Positions of the parties

21The applicant submits that the disputed treatments and assessments are reasonable and necessary because they are required to manage her pain, which is a legitimate treatment goal, and because she has found treatment helpful. She submits that her accident-related injuries are significant, and that the medical records show that her impairments, including ongoing back pain and headaches, have improved through treatment. She submits that her continued involvement in sports should not be counted against her because her level of competition has been significantly reduced as a result of the accident. Before the accident, she was a gymnast competing at the provincial level; after the accident, symptom aggravation has frustrated her attempts to return to training and competition. Now, she only feels comfortable competing in team sports such as house league hockey.

22In addition to the clinical notes and records of her treating physicians, summarized above, the applicant relies on the July 23, 2019 report of Ms. Naumann, Occupational Therapist, who diagnosed her with chronic pain, chronic headaches, mild traumatic brain injury (concussion), post-traumatic stress disorder and depression. Ms. Naumann’s report provides an extensive assessment of the applicant’s “cognitive and psycho-emotional status” based on interviews with the applicant and her family, informal observation of her in-home function and research into peer-reviewed studies.

23The applicant also refers me to the clinical notes and records of Katharina’s House of Osteopathy, dated January 4,2017 to November 2, 2017, which document her repeated complaints of shoulder pain, neck pain and headaches.

24The respondent submits that the issue of the proposed strength training is moot because it paid the invoice for this treatment in full on May 9, 2017. The respondent submits that the applicant has not demonstrated that the eight treatment plans remaining in dispute are reasonable and necessary as a result of the accident.

25The respondent relies on the opinion of Dr. Steven Baker, IE Physiatrist, who found in his September 24, 2018 report that the applicant was independent in her personal care and could participate in all her pre-accident activities. Dr. Baker opined that the applicant’s accident-related injuries, which he diagnosed as thoraco-lumbar sprain and strain and post-traumatic headaches, required no further formal therapy. In his opinion, a more active approach should have been taken to the applicant’s physical rehabilitation, and he recommended a self-directed stretching and strengthening regime.

26On January 2, 2020, Dr. Baker issued a follow-up report, in which he documented a “completely normal” result in his physical examination of the applicant. Due to the recurrence of back pain between the dates of his two reports, Dr. Baker recommended a “modicum of physiotherapy” to train the applicant on a maintenance program for stretching and strengthening. He opined that the resolution and recurrence of symptoms suggested that they were not, at that stage, purely driven from accident-related soft tissue trauma.

27The respondent also directs me to consider the clinical notes and records of the applicant’s treating physicians, Dr. Steacie and Dr. Nahab, which show no reports of accident-related complaints after July 2017. The respondent submits that there is no objective medical evidence to support the need for the claimed treatments and assessments after this time.

28The respondent highlights the clinical notes and records of Podium Sports, which repeatedly refer to competition and training from February 2016 to April 2016, and of Katharina’s House of Osteopathy, which show progressive improvements in the applicant’s ability to play sports. These records include a notation on June 7, 2017, that the applicant was “fully recovered, I don’t see any reason for not doing sports.”

Evidence does not establish disputed benefits as reasonable and necessary

29I have carefully reviewed and considered the parties’ submissions and evidence and, on a balance of probabilities, find as follows:

i. The issue of the treatment plan for strength training in the amount of $1,412.50, submitted on January 17, 2017 has been resolved. I am satisfied based on the evidence the respondent presented that it paid the invoice for these services in full on May 9, 2017.

ii. The treatment plan for physiotherapy in the amount of $1,995.00 (submitted November 6, 2018) is reasonable and necessary as a result of the accident. In my view, the objective medical evidence substantiates the necessity of physiotherapy at the time the plan was submitted. I prefer the evidence of the applicant’s treating physician, Dr. Nahab, over Dr. Baker as to the need for further physiotherapy. I find Dr. Nahab’s July 29, 2017 recommendation of continued rehabilitation to be sufficiently proximate to the date of the treatment plan considering the non-minor nature of the applicant’s accident-related injuries. I do not accept Dr. Baker’s assertion that the applicant was able to participate in all of her pre-accident activities. In my view, Dr. Baker downplays the impact of the applicant’s injuries on the quality of her participation in those activities. Dr. Baker also appears to disregard the findings of the September 2, 2016 MRI report in diagnosing the applicant’s injuries, despite referring to them in his diagnostic examination review. Reference to the applicant’s disc injury, however mild, is absent from his list of diagnoses. This omission undermines the strength of his conclusions as to the expected length of the applicant’s recovery.

iii. The applicant has not filed the treatment plan for physiotherapy in the amount of $1,197.00 (submitted May 3, 2018). After reviewing the parties’ submissions and evidence, the Tribunal provided the applicant with an opportunity to supplement her brief with this document, but she was unable to produce it. She filed the Explanation of Benefits (“EOB”) provided by the respondent in relation to the plan, but the EOB lacks crucial information and does not stand in for the treatment plan itself. Without reviewing the contents of the plan, I am unable to determine whether the treatment proposed is reasonable and necessary. The plan is therefore not payable.

iv. The treatment plan for chiropractic services in the amount of $3,983.00 submitted May 30, 2019 is reasonable and necessary as a result of the accident. In my view, for the same reasons set out in paragraph [28] ii. above, the objective medical evidence substantiates the necessity of continued chiropractic treatment at the time this plan was submitted.

v. The treatment plan for an Occupational Therapy Assessment (actually a Neurological Assessment) in the amount of $534.00 submitted March 22, 2019 is not payable under the Schedule. The disputed amount is the amount remaining after the respondent partially approved this assessment for $2,200.00. Under s. 25(5)(a) of the Schedule, an insurer is not required to pay more than $2,000.00 for the cost of any one assessment. The applicant has not presented evidence or made submissions to show that the remaining expense, which includes the cost of transportation expenses, is reasonable and necessary and payable under s. 15 of the Schedule.

vi. The treatment plan for a Neuro-Psychological Assessment in the amount of $2,000.00 submitted July 9, 2019 is not payable under the Schedule. The disputed amount is the remainder of the plan amount after the respondent partially approved this assessment for $2,200.00. Under s. 25(5)(a) of the Schedule, an insurer is not required to pay more than $2,000.00 for the cost of any one assessment. The applicant has not countered the respondent’s submission that the remaining portion of the plan represents duplicative testing. While there is evidence that the applicant struggled academically after the accident, the medical evidence tendered does not confirm a diagnosis of psychological injury. The plan refers to the findings of a Psychological Assessment conducted June 11, 2016 that is not in evidence. It is not clear who conducted this assessment or what their qualifications are. While there is a note from Dr. Nahab dated April 17, 2017 referring to the applicant’s difficulties with math and her memory after the accident, there is no reference to psychological concerns in the clinical notes and records of Dr. Steacie or Dr. Nahab. Dr. Nahab made no referral to a specialist to address the applicant’s cognitive concerns and prescribed no treatment. The applicant has not shown that the remainder of the plan is reasonable and necessary.

vii. The treatment plan for an Initial Occupational Therapy Assessment in the amount of $2,900.00 submitted July 9, 2019 is not reasonable and necessary as a result of the accident. The plan, prepared by Ms. Naumann, an occupational therapist, lists accident-related injuries not corroborated elsewhere in the evidentiary record, several of which fall outside the scope of an occupational therapist to diagnose, including concussion, post-concussion syndrome, sequelae of intracranial injury, and numerous psychological injuries. In the “Additional Comments” section of the plan, Ms. Naumann notes that the assessment would be jointly conducted with Natalie Fouks, a registered massage therapist who practiced as a pediatrician in Russia for 20 years prior to immigrating to Canada. Elsewhere in the plan, reference is made to the assessment being conducted jointly by an occupational therapist and a “pediatric RMT/pediatric medical practitioner” and Natalie Fouks is identified in the comments section with the prefix “Dr.”. There is no evidence to show that Natalie Fouks’s is licensed to offer pediatric medical advice in Ontario. Ms. Naumann identifies herself in the plan as “dually certified” as an occupational therapist and psychotherapist but does not directly establish her qualifications to provide psychotherapy services in her July 23, 2019 Future Care Needs and Costs Analysis. Neither an occupational therapist nor a registered massage therapist is qualified to assess the psychological, physical or cognitive injuries targeted for assessment.

viii. The treatment plan for occupational therapy services (actually in-home massage therapy services) in the amount of $6,029.00 submitted July 9, 2019 is not reasonable and necessary as a result of the accident. The medical evidence does not establish the necessity of in-home massage therapy services approximately three years after the accident.

ix. The treatment plan for occupational therapy services (actually psychotherapeutic support) in the amount of $5,912.35 submitted February 13, 2020 is not reasonable and necessary as a result of the accident. It is unclear that Ms. Naumann, an occupational therapist, is qualified to recommend or deliver the services proposed, including “therapy, mental health and addictions”. The additional comments section of the report refers to the course of treatment including a “protocol for adolescents experiencing trauma.” There is no evidence from a qualified medical practitioner to substantiate a diagnosis of post-traumatic stress disorder - or any other psychological injury - as a result of the accident. Ms. Naumann’s qualifications, summarized in her July 23, 2019 Future Care Needs and Cost Analysis, do not include being licensed to diagnose psychological conditions or to provide psychological services in Ontario. The plan also lists other accident-related injuries not corroborated elsewhere in the evidentiary record and which an occupational therapist is not qualified to diagnose, such as concussion, post-concussion syndrome and sequelae of intracranial injury.

Evidentiary considerations

30The applicant relies heavily on the Future Care Needs Assessment of Ms. Naumann to establish her ongoing need for specialized therapeutic intervention. The weight of Ms. Naumann’s evidence is diminished by the fact that her commentary and observations repeatedly venture outside the area of her professional expertise, contrary to her acknowledged duty as an expert providing opinion evidence in a legal proceeding.

31Ms. Naumann, an occupational therapist, claims to have an “expanded scope of practice” due to her “additional credentials as a doctoral-level researcher-clinician and knowledge broker”. Ms. Naumann’s doctoral research is in Rehabilitation Science. She possesses a bachelor’s degree in psychology but presents no qualifications for assessing or diagnosing psychological conditions or for providing recommendations for the treatment of same.

32Ms. Naumann’s report does not merely present research findings gathered from her review of peer-reviewed studies, but states that the research evidence she presents should be applied as clinical analysis of the applicant’s presentation. I attach no weight to the evidence presented in the literature review on subject matter outside Ms. Naumann’s expertise, including post-traumatic stress disorder in children, chronic pediatric pain, and psychological and behavioural outcomes following childhood mild traumatic brain injury. I attach no weight to Ms. Naumann’s assessment of cognitive and psycho-emotional status for the same reason.

33Ms. Naumann also refers to diagnoses that are not found elsewhere in the evidentiary record, including adjustment disorder and post-traumatic stress disorder, purportedly diagnosed immediately after the accident by Ms. P. Mollaef Akbari, Clinical Psychology Associate. Ms. Naumann states in her report that Ms. Akbari’s records were not available for review at the time of the assessment, but that Ms. Akbari provided details and treatment recommendations regarding the applicant to Ms. Naumann by phone. The applicant has not tendered the evidence of Ms. Akbari in these proceedings and I am not prepared to accept diagnoses relayed orally to another witness absent, at minimum, submissions from the applicant as to Ms. Akbari’s qualifications and the admissibility of her opinion evidence.

ORDER AND CONCLUSION

34The respondent has approved the treatment plan for strength training and this issue is moot.

35The applicant is entitled to medical and rehabilitations benefits for physiotherapy (in the amount of $1,995.00) and chiropractic services (in the amount of $3,983.00). The respondent is liable to pay a sum of $5,978.00 plus interest calculated in accordance with s. 51 of the Schedule.

36The respondent is not liable to pay the remaining benefits in dispute.