Citation: Joaquim v. Intact Insurance Company, 2021 CanLII 134243

Licence Appeal Tribunal File Number: 20-011042/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:

Kacey Joaquim

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Claire Wilkinson, Counsel

For the Respondent: Suzan Park, Counsel

HEARD: By way of Written Hearing

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on January 12, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a Case Conference on February 24, 2021 but were unable to resolve the issues in dispute.

PRELIMINARY ISSUE

3At the case conference, the parties consented to the following preliminary issue:

i. Is the applicant barred from commencing a proceeding for certain medical benefits because she failed to comply with section 44 of the Schedule by not attending an insurer’s examination?

RESULT OF THE PRELIMINARY ISSUE

4I find, based on a balance of probabilities, that the applicant is barred from commencing a proceeding for medical benefits as a result of not complying with section 44 of the Schedule by not attending an insurer’s examination.

THE LAW

5Section 33(1) of the Schedule states that an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonable required to assist it in determine the applicant’s entitlement to benefits.

6Section 38(2)(c)(i) of the Schedule states that an insurer is not liable to pay an expense for a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan, unless the expense was reasonable and necessary as a result of the impairment sustained by the injured person for drugs prescribed by a regulated health professional.

7Section 44(1) of the Schedule states that in order to help an insurer determine if an insured person is, or continues to be entitled to a benefit that the insured person applied for under the Schedule, but not more than is reasonably necessary, the insurer may require the insured person to be examined by one or more people, chosen by the insurer, who are regulated health professionals or who have expertise in vocational rehabilitation.

8Section 44(3) of the Schedule states that section 44(1) does not apply with respect to a benefit payable in accordance with the Minor Injury Guideline (‘MIG’) or a funeral or death benefit.

9Section 44(5) of the Schedule states that if an insurer requires an examination under section 44 of the Schedule, the insurer shall arrange for the examination at its expense, and shall give the insured person a notice setting out the medical and any other reasons for the examination, if the attendance of the insured person is required at the examination, the name of the person(s) conducting the examination, the person(s) profession, title and designation and if the attendance of the insured person is required for the examination, the day, time and location of the examination.

BACKGROUND

10On September 12, 2019, the applicant submitted an Expenses Claim Form (an ‘OCF-6’) for cannabis prescription expenses in the amount of $1,102.32. This was denied by the respondent on February 10, 2020, pending a section 44 assessment to determine if the OCF-6 was reasonable and necessary.

11The applicant did not attend this assessment, as she took the position that the assessment was unreasonable. She also took the position that the notice for the assessment was not proper.

12The respondent took the position that the assessment was reasonable, and its notice for the assessment was proper.

ANALYSIS OF THE PRELIMNARY ISSUE

13I find, based on a balance of probabilities, that the applicant is barred from commencing a proceeding for medical benefits as a result of not complying with section 44 of the Schedule by not attending an insurer’s examination for the following reasons:

Section 44 Assessments are not available for prescription medication

i. The applicant submitted that prescription drugs are exempt from requiring a section 44 assessment. She submitted that drugs prescribed by a regulated, health professional are exempt from the treatment and assessment plan requirements in accordance with section 38(2)(c)(i) of the Schedule.

The applicant directed me to 17-001866 v. Aviva Insurance², which the applicant submitted supported this position. When reviewing this case, I noted that the issue before the Tribunal was the requirement of a treatment plan and not a section 44 assessment. However, the applicant used this case to argue that the OCF-6 in dispute did not “activate” a section 44 assessment, as the treatment plan is not required for the benefit to paid in accordance with section 38(2)(c)(i) of the Schedule.

The applicant relied on Ward v. State Farm Mutual Automobile Insurance Co.³ to support this position, which found that the applicant’s medical expenses were payable without a section 44 assessment.

However, I found this caselaw less persuasive, as the circumstances of that matter, namely that the prescription drugs in question cost less than $250.00, and thereby fell within both sections 38(2)(c)(i) and 38(2)(c)(ii) of the Schedule, which is not the case for the prescription drugs before me. Furthermore, Ward did not specifically address if an insurer is entitled to a section 44 assessment in matters where prescription drugs cost more than $250.00.

ii. The respondent agreed that drugs prescribed by a regulated health professional are exempt from submitted OCF-6s⁴. However, it disagreed with the applicant’s submission that all prescription medication expenses are not examinable under section 44 of the Schedule. It directed me section 44(1) of the Schedule and noted that this section allows an insurer to determine if an insured person is entitled to a benefit under the Schedule, which includes prescriptions.

Furthermore, the respondent submitted that section 44(3) the Schedule allows insurers to determine benefits, including prescription mediation, via a section 44 examination, except for the benefits specifically named in this section, which are MIG benefits or funeral/death benefits.

iii. I was more persuaded by the respondent’s position that prescription drugs are not specifically named in section 44(3) of the Schedule. It submitted that if the legislature intended to make prescription drugs, prescribed outside of the limits of the MIG be exempt from a section 44 assessment, the legislature would have included language to make this clear. Instead, the respondent submitted that section 44 of the Schedule is consistent with section 38(2)(c)(i) of the Schedule regarding reasonableness, as the prescription in question, falls outside those limits.

Improper Notice

iv. The applicant submitted that the respondent failed to comply with the notice requirement of section 44(5)(a) of the Schedule, which requires insurer to give the insured person a notice setting out the medical and other reasons for the assessment.

In this case, the applicant submitted that based on the Ward⁵ decision, the respondent’s request to determine if the cannabis expenses were not reasonable and necessary via section 44 assessment, as the insurer’s request was not medical and were to determine if the proposed cannabis expenses were reasonable and necessary . She submitted this is not a medical reason and was improper.

v. The respondent submitted that the initial denial letter⁶ to the OCF-6 stated that the respondent’s information on the applicant’s file did not allow the respondent to determine if the OCF-6 in question was reasonable and necessary. Based on this, it submitted that the section 44 assessment was needed to determine such and relied on 17-002894 v. Aviva Insurance Company⁷.

vi. After considering the submissions of the parties, based on a balance of probabilities, I find that the notice was proper, as the respondent’s reasons for the examination are proper, namely to determine if the respondent’s reasons for the exam contained medical and other reasons. In this case, I find that determining if the cannabis prescription proposed qualifies as a “medical and other reasons for the assessment”. The applicant relied on the Ward decision, which was discussed above. As previously stated, the circumstances of Ward differ from those of the applicant, namely that the benefit in question is over $250.00. Furthermore, an insurer has a right under section 44(1) of the Schedule to assess insured persons who claim a benefit to determine if said benefit is reasonable and necessary. Since the basis of this assessment is such, the applicant’s argument fails.

The Request was unreasonable

vii. The applicant also submitted that the respondent’s request for a section 44 assessment was unreasonable. The applicant argued that the respondent has already had the applicant assessed through two section 44 psychological assessments⁸ with Dr. Rakeh Ratti, Psychologist, an independent examination for occupational therapy⁹ and two assessments with Dr. Allan Kopyto, General Practitioner¹⁰.

viii. The applicant drew the Tribunal’s attention to a previous decision¹¹ where the following criteria were established to determine the reasonableness of a section 44 assessment:

a. the timing of the insurer’s request;

b. the possible prejudice to both sides;

c. the number and nature of the previous insurer’s examinations;

d. the nature of the examination(s) being requested;

e. whether there are any new issues being raised in the applicant’s claim that require evaluation; and

f. whether there is a reasonable nexus between the examination requested and the applicant’s injuries

In this case, the applicant submitted that the proposed section 44 assessment is unreasonable because the applicant’s non-attendance would not prejudice the respondent, the applicant has already attended four section 44 assessments, the assessment is intrusive, the applicant is not raising new issues that require an assessment and the Schedule does not allow section 44 assessment for prescription mediation.

She submitted that the nature of the previous section 44 assessments are intrusive, and drew the Tribunal’s attention to 16-003144 v. Cumis General Insurance Company¹² In Cumis, the adjudicator found that three section 44 assessments, with one being in the applicant’s home, are unduly intrusive.

ix. The respondent submitted that the section 44 assessment requested was reasonable to respond to the applicant’s OCF-6 requesting funding for a cannabis prescription. It submitted that it required the applicant to participate in this assessment because the applicant has yet to provide supporting information related to this OCF-6, including the quantity of the prescriptions, the Tetrahydrocannabinol (‘THC’) and Cannabidiol (‘CBD’) ratio, and the clinical notes and records (the ‘CNR’s) of her cannabis doctor or copies of the prescription related to the OCF-6 in question. Instead, the applicant provided a copy of prescription for cannabis from Dr. Ewa Pasyk, Physician, dated February 25, 2021, prescribed nearly two and a half years after the accident.

It reminded the Tribunal that without the CNRs or the prescription from the OCF-6 in dispute it requested, the respondent could not identify what the cannabis was prescribed for and/or intended to treat. It submitted that the information requests of the respondent were reasonable in order to adjust the claim and relied on 17-001866 v. Aviva Insurance¹³ to support this position.

In terms of the submissions of the applicant regarding the intrusive nature of the section 44 assessment, the respondent submitted that it did not have enough information from the previous assessments to support the applicant’s request for the OCF-6. It submitted that at the time it received the OCF-6 in question, it had only its three previous section 44 assessments to rely on. The first by Dr. Kopyto, found the applicant had uncomplicated back and neck strain¹⁴, and Dr. Kopyto later found that the applicant had no accident related impairments to need a chronic pain report¹⁵. Dr. Ratti found that a mental health assessment was warranted¹⁶. None of these section 44 assessments were able to identify accident related impairments that required a cannabis prescription. Instead, the assessments found that the applicant had uncomplicated muscle strains in her neck and back.

After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the section 44 assessment is reasonable. I base myself on the insurer’s right to have an opportunity to satisfy itself that the expense in question is reasonable and necessary and as a result of the accident, which it has yet to do¹⁷.

Furthermore, the applicant has requested funding for an OCF-6 for marijuana but has not provided the required information for the respondent, which is required by section 33 of the Schedule. Since this information was not provided, the respondent has no way of obtaining this information but via a section 44 assessment.

SUBSTANTIVE ISSUES

14At the case conference, the parties consented to the following substantive issues to be heard with the preliminary issue:

i. Is the applicant entitled to receive medical benefits recommended as follows;

1. $2,765.00 for a physiotherapy treatment plan by MAPS Physio, dated July 29, 2019;

2. $3,827.50 for an occupational therapy treatment plan by Kristen McGrath, dated July 6, 2019;

3. $1,873.88 for assistive devices proposed by Kristen McGrath in a treatment plan dated July 15, 2020;

4. $1,102.32 for prescription cannabis, submitted September 12, 2019;

5. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?

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

15Since the issue of prescription cannabis has been found to be statute barred from proceeding, I will not consider it.

RESULT OF THE SUBSTANTIVE ISSUE

16I find, based on a balance of probabilities, that the applicant is not entitled to the treatment plans and assistive devices in dispute. I also find that the applicant is not entitled to a special award or interest.

THE LAW

17Section 3(1) of the Schedule defines an impairment as: “a loss or abnormality of a psychological, physiological or anatomical structure or function”.

18Section 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant.

19Section 38(2)(c)(i) of the Schedule states that an insurer is not liable to pay an expense for a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan, unless the expense was reasonable and necessary as a result of the impairment sustained by the injured person for drugs prescribed by a regulated health professional.

SUBMISSIONS AND ANALYSIS

$2,765.00 for a physiotherapy treatment plan

20After considering the submissions of the parties, based on a balance of probabilities, I find that the physiotherapy treatment plan in dispute is not reasonable and necessary for the following reasons:

i. The applicant submitted that the treatment plan in dispute is reasonable and necessary. She relied on her physiatry assessment completed by Dr. Joshua Muhlstock, Physiatrist, dated April 20, 2020. Dr. Muhlstock found that the applicant had musculoligamentous sprain/strain to the cervical spine WAD II, upper back and shoulder girdles, thoracic and lumbosacral spines, hip girdle and right sacroiliac (‘SI’) joint.

The applicant submitted that Dr. Muhlstock had recommended that the applicant attend on-going passive treatment to address the applicant’s pain symptoms.

ii. The applicant also relied on the findings of Kristin McGrath, Occupational Therapist¹⁸, which found the applicant walked slowly and cautiously, held on to furniture and walls where possible, was unable to sit without back support for more than a minute before experiencing pain and had her lifting and carrying ability impaired due to pain. Ms. McGrath recommended physiotherapy to address specific pain symptoms as well as to address and treat chronic pain symptoms. Ms. McGrath opines that it may also help the applicant’s confidence with balance and movement.

iii. Finally, the applicant relied on the Dr. Nayyar Razi, Family Physician’s Chronic Pain report¹⁹, which found that the applicant developed chronic pain syndrome secondary to the accident as well as myofascial pain of the spine, mood disorder, Fibromyalgia and general deconditioning and would require treatment indefinitely.

iv. The respondent took the opposite position to that of the applicant, that the treatment plan in dispute was not reasonable and necessary. It relied on the section 44 assessment of Dr. Khaled²⁰, which found that the applicant had developed mechanical low back pain with radiation to the hips and a grade 2 whiplash from the accident. He opined that these injuries were uncomplicated, soft tissue injuries. Based on this finding, he submitted that the treatment plan was not reasonable or necessary, as the applicant had already had sufficient rehabilitation, and that prolonged physical therapy is seldom recommended for the applicant’s injuries.

v. The respondent also relied on the section 44 assessment of Dr. Kopyto²¹, which found the applicant had uncomplicated musculoligamentous strain of her neck and back. Dr. Kopyto was not able to find any objective injury on the applicant. Dr. Kopyto assessed the applicant again²², with similar findings.

vi. Based on the findings of Dr. Khaled and Dr. Kopyto, and the diagnostic images provided by the applicant, the respondent argued that her complaints of neck and back pain are associated with degenerative changes and are soft tissue injuries. Furthermore, it submitted that the applicant has not provided an objective diagnosis which would require $2,765.00 in physiotherapy treatment.

vii. I preferred the evidence of the respondent, who was able to provide direct evidence that considered if the applicant’s treatment plan was reasonable and necessary, versus the evidence of the applicant, which was more general and did not address the specific treatment plan in question.

I put less weight on Dr. Muhlstock’s report, as it failed to address Dr. Khaled’s findings or why his own differed so much, despite having a copy of Dr. Khaled’s findings and Dr. Khaled’s findings pre-dating Dr. Muhlstock’s. Furthermore, Dr. Muhlstock did not provide reasoning as to why the applicant’s soft tissue injuries had not resolved.

$3,827.50 for an occupational therapy treatment and $1,873.88 for assistive devices

21Since the treatment plans in dispute have related goals, modalities and comes from the same medical professional, I will address both at once.

22The applicant submitted a treatment plan for $3,827.50 for eight motor and living skills appointments and related fees. The applicant also submitted a treatment plan for a rollator device with one session, documentation, travel time and planning totalling $1,873.88. These treatment plans were denied by the respondent.

23After considering the submissions of the parties, based on a balance of probabilities, I find the treatment plans are not reasonable and necessary for the following reasons:

i. The applicant submitted that the treatment plans in dispute are reasonable and necessary. She relied on Ms. McGrath’s report²³, which recommended this treatment to manage the applicant’s chronic pain symptoms, determine abilities to modify activities of daily living (‘ADL’s) use assistive device for safety and function and increase the applicant’s physical tolerance.

Ms. McGrath also noted that the applicant experienced cognitive impairments due to the accident, resulting in issues concentrating, reading, finding words and short-term memory²⁴. In order to address these impairments, Ms. McGrath recommended occupational therapy²⁵. Ms. McGrath opined that if the applicant is not provided with these services, she risks delayed recovery and further injury²⁶.

ii. This position was echoed by Dr. Muhlstock²⁷, who recommended that the applicant be provided with education regarding lifting, loading and pacing strategies and evaluate if the applicant would benefit from assistive devices.

Dr. Muhlstock did not provide an opinion regarding how many appointments and/or what kind of assistive devices the applicant required.

This position was also echoed by Dr. Catherine Leite, the applicant’s Psychologist, who found that the applicant has significant somatic and psychological symptoms as a result of the accident²⁸. Dr. Leite opined that the applicant may benefit from occupational therapy services to engage with her ADLs. Dr. Leite did not state how many sessions of occupational therapy, the assistive devices and related services were reasonable and necessary.

iii. In terms of the assistive device in question, namely the additional rollator walker, Ms. McGrath submitted that the applicant required a second device because the applicant has found herself seated in her current walker, despite the first device not being a transportation chair. The applicant submitted that this device would allow her to sit more comfortably and have foot support when needed.

The applicant noted that her family physician, Dr. Sabera Ahmed, prescribed her a rollator walker²⁹ due to her chronic back pain and issues walking after the accident.

The applicant also submitted that she would require education via occupational therapy sessions and planning to learn how to use the device without injuring herself.

iv. The respondent submitted that both treatment plans are not reasonable and necessary. It relied on the inconsistencies between the two Occupational Therapy assessors who evaluated the applicant, Ms. McGrath³⁰ and its own section 44 assessment conducted by Himadri Kaul, Occupational Therapist³¹, conducted one month apart from each other.

Examples of these inconsistencies include the ability to chop for cooking and her abilities related to walking, which she reported to Ms. McGrath as being more intense than reported to Ms. Kaul. Based on this, the respondent submitted more weight should be placed on Ms. Kaul’s assessment.

v. The respondent further argued that Ms. McGrath’s report does not fully address the need for eight occupational therapy sessions and the assistive devices and related services since the applicant’s alleged limitations were not consistent with the rest of the evidence. Ms. McGrath’s report does list the numerous goals of the occupational therapy treatment sessions and stated that if the applicant did not receive these sessions, she is at risk for delayed recovery and further injury. However, the report does not provide an estimated time required for each goal or provide reasons beyond these goals as to why eight sessions are necessary.

The respondent also submitted that the physical and emotional risks noted by Ms. McGrath should be addressed by the applicant’s family doctor and/or her psychologist, as Ms. McGrath is not qualified as an occupational therapist to address these issues. Since only Ms. McGrath provided support for this treatment plan, it submitted I should put less weight on this evidence.

It also submitted that the rollator and related services are not reasonable and necessary based on Ms. Kaul’s findings³², which noted that the device was not reasonable and necessary, as the applicant used the device for shopping and carrying objects. Based on Ms. Kaul’s examination³³, she found that the applicant was independent with her ADLs.

Finally, the respondent submitted that the cost of the device in question is excessive, as a typical rollator can be found for $259.99³⁴. It submitted that Ms. McGrath provided no explanation for this higher price, and therefore the cost is excessive.

vi. The respondent noted that the applicant has no objective injuries as a result of the accident. In terms of the symptoms noted by Ms. McGrath, the respondent noted that the applicant has not provided evidence as to the causation of these symptoms and that they are related to the accident.

vii. I was more persuaded by the respondent’s evidence, who submitted that the applicant had not met her onus to demonstrate that the treatment plans were reasonable and necessary. Though Ms. McGrath, the medical professional who submitted the treatment plans in question, supported said treatment, the applicant did not demonstrate via her medical professionals that she required eight occupational therapy sessions and a new rollator device, despite already owning a walker.

The applicant relied on the medical professionals in support of these treatment plans. However, none of their reports contained any explanation, comments or evidence to support the frequency, cost, the number of sessions or the need for an additional assistive device. The burden is on the applicant to prove on a balance of probabilities that the treatment plan is reasonable and necessary, and I find that she has not met that burden.

Furthermore, based on Dr. Leite’s opinion of the applicant’s injuries, namely that they are somatic, and pain based, was not addressed by Ms. McGrath in her findings.

In terms of the assistive device, the applicant has not demonstrated why the assistive device and related services costs are so high. The respondent was able to provide evidence related to the cost of this device and why it was excessive, while the applicant failed to address this. Though the applicant submitted that the device proposed by the respondent is not a 2-in-1 walker, as proposed by Ms. McGrath, she failed to provide evidence that supported its cost and comparable devices. Though Dr. Ahmed did support the applicant purchasing a “walker transportation chair combination”, he did not comment on the model, cost or provide any other details in his prescription.

Special Award & Interest

24The applicant is also not entitled to interest and/or an award under Reg. 664 as no benefits are owing and/or withheld.

CONCLUSION

25For the reasons outlined above I find that the applicant is barred from commencing the proceeding for the cannabis prescription by not complying with section 44 of the Schedule.

26I find the applicant is not entitled to the physiotherapy treatment plan, the occupational therapy treatment plan, the assistive devices, a special award or interest.

Footnotes

1. 1O. Reg. 34/10
2. 217-001866 v. Aviva Insurance, 2017 CanLII 85690 (ON LAT)
3. 3Ward v.State Farm Mutual Automobile Insurance Co., [2016] O. F. S. C. D. No. 54
4. 4In accordance with section 38(2)(c)(i) of the Schedule.
5. 5Ward v.State Farm Mutual Automobile Insurance Co., [2016] O. F. S. C. D. No. 54
6. 6Dated February 10, 2020
7. 717-002894 v Aviva Insurance Company, 2018 CanLII 13184 (ON LAT)
8. 8Dated May 9, 2019 and January 28, 2021
9. 9On June 30, 2020
10. 10Dated August 9, 2017 and May 14, 2019.
11. 1117-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT)
12. 1216-003144 v. Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT)
13. 13R. W. J. v Aviva Insurance, 2017 CanLII 85690 (ON LAT)
14. 14Section 44 Assessment dated August 9, 2017.
15. 15Section 44 Assessment dated May 14, 2019.
16. 16Section 44 Assessment dated May 24, 2019
17. 1717-001866 v. Aviva Insurance, 2017 CanLII 85690 (ON LAT)
18. 18Kristin McGrath’s report dated July 6, 2020.
19. 19Dr. Nayyar Razvi’s report dated October 26, 2020
20. 20Dr. Khaled’s report dated October 1, 2019.
21. 21Dr. Kopyto’s report dated August 9, 2017
22. 22Dr. Kopyto’s report dated May 14, 2019.
23. 23Ms. McGrath’s report dated July 6, 2020.
24. 24Ibid
25. 25Ibid
26. 26Dr. Muhlstock’s report dated April 20, 2020.
27. 27Dr. Leite’s report dated June 26, 2020.
28. 28Ibid
29. 29Prescription dated May 26, 2020.
30. 30Of Ms. McGrath’s report dated July 6, 2020.
31. 31Who authored a report dated August 13, 2020.
32. 32Ms. Kaul’s report dated August 13, 2020.
33. 33Ibid
34. 34Comparable device provided by the respondent it its submissions: Drive Rollator Independent Living Device, Red, 6-in. (n.d.). Canadian Tire. https://www.canadiantire.ca/en/pdp/drive-rollator-independent-living-device-red-6-in-0439273p.html.