Released Date: 02/12/2021
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:
Magboul Ahmed
Applicant
and
Optimum Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Magboul Ahmed, Applicant Joshua Gautreau, Counsel
For the Respondent: Optimum Insurance Company, Representative Kadey Schultz, Counsel
HEARD: Via written submissions
OVERVIEW
1The applicant was involved in an automobile accident on December 22, 2016, and sought various benefits from the respondent, Optimum, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Optimum denied the benefits on the basis that they were not reasonable and necessary. The applicant disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The parties agree that the following issues are in dispute:
a. Is the medical benefit in the amount of $3,907.22 for chiropractic treatment, recommended by Tandem Health Diagnostics in a treatment plan (OCF-18) dated December 12, 2017, reasonable and necessary?
b. Is the cost of examination expense in the amount of $2,355.15 for a social worker assessment, recommended by MediAssess Evaluations Inc. in an OCF-18 dated February 14, 2018, reasonable and necessary?
c. Is the cost of examination expense in the amount of $2,486.00 for a neurological assessment, recommended by MediAssess Evaluations Inc in an OCF-18 dated April 26, 2018, reasonable and necessary?
d. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions, the applicant submits the following additional issues are in dispute:
a. Whether the applicant is entitled to costs?
b. Whether the applicant is entitled to an award for an unreasonably withheld benefit pursuant to Regulation 664?
FINDING
4The applicant is entitled to the OCF-18 for chiropractic treatment and interest is payable pursuant to s. 51.
5The applicant is not entitled to the remaining OCF-18s as he has not established that they are reasonable and necessary.
6The applicant is not entitled to costs or an award.
BACKGROUND
The applicant’s injuries and Optimum’s assessment
7On November 11, 2017, family physician Dr. Meshrki completed an Application for Determination of Catastrophic Impairment (OCF-19). Dr. Meshrki opined that the applicant’s impairments meet the threshold under Criterion 2 of the AMA Guides.2 The injury and sequelae information detailed in the disability certificates, discussed below, was extensive, listing the following injuries: fracture of femur, fracture of shaft of tibia, multiple fractures of ribs, post-concussion syndrome, sprain and strain of thoracic spine, sprain and strain of cervical spine, sprain and strain of lumbar spine, pain in thoracic spine, low back pain, injury of other muscles and tendons at shoulder and upper arm level, sprain and strain of wrist, hip, ankle, sprain and strain of other unspecified parts of knee, sprain and strain of sacroiliac joint, abdominal and pelvic pain, headache, dizziness and giddiness, other sleep disorders and other anxiety disorders.
8In response to the OCF-19, Optimum relied on an orthopaedic report dated May 15, 2018 by Dr. Jaroszynski. Dr. Jaroszynski noted that the applicant reported whole body pain, confirmed the compound fracture of the right femur, found that the leg injury caused ongoing limitation in range of motion and that the applicant complained of pain with weight bearing activities. In addition, Dr. Jorszynski noted that the applicant continued to require the use of a cane.
9Regarding whether the applicant met the definition of catastrophic impairment under criterion 2, Dr. Jaroszynski opined that the applicant did not sustain an amputation of a leg or arm, and there was no evidence of an impairment causing the total and permanent loss of use of an arm. Dr. Jaroszynski concluded that the applicant did not suffer a catastrophic impairment as a result of the injuries sustained in the accident.
LAW
10Sections 14-16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary.
ANALYSIS
Is the treatment plan for chiropractic treatment reasonable and necessary?
11I find the applicant is entitled to the treatment plan in dispute, as he has met his onus to prove, on a balance of probabilities, that it is reasonable and necessary.
12The December 2, 2017 OCF-18 completed by Sumon Chakrabarti, chiropractor, sought funding for a total body examination, physiotherapy and massage therapy.
13The goals of this treatment plan were pain reduction, increased strength and range of motion, and return to activities of normal living. Mr. Chakrabarti included an evaluation of the applicant’s improvement which noted the applicant had the following range of motion results: cervical (8/10), thoracic (7/10), lumbar (with numbness L5-S1), and sensation decreased L3-S1 dermatome, chest (6-7/10), right shoulder (7-10), bilateral wrist (6-7/10), right thigh (8/10), right lower leg (8/10). Mr. Chakrabarti also noted tight and tender associated musculature. Mr. Chakrabarti recommended 18 sessions of chiropractic treatment, 18 sessions of manual therapy and 18 sessions of active therapy for the purpose of focusing on a “strengthening and conditioning approach to guide with daily tasks” as well as continued incorporation of “passive treatments as the applicant does experience pain relief when applied”.
14In support of the OCF-18, the applicant relies on three Disability Certificates (OCF-3s) from Dr. Chakrabarti, dated February 16, 2017, June 6, 2017 and November 22, 2017, respectively.
OCF-3 dated February 13, 2017
15In the February 2017 OCF-3, Dr. Chakrabarti notes that the applicant is limited in his daily activities due to injuries. Under Part 6 regarding disability tests and information, Dr. Chakrabarti indicates the anticipated duration of inability to be more than 12 weeks. Dr. Chakrabarti opined that due to the nature and severity of the multiple injuries (mainly the fracture sites), the applicant would not reach maximum medical recovery within a 12-week time period.
OCF-3 dated June 6, 2017
16In this second OCF-3, Dr. Chakrabarti noted that the applicant continued to be limited in his ability to participate in his daily activities. The applicant reported difficulty with bending, lifting, carrying, prolonged standing, sitting, walking and general motion. Dr. Chakrabarti again noted the anticipated duration of inability to be more than 12 weeks. Dr. Chakrabarti’s opinion regarding maximum medical recovery was the same as indicated in the February 2017 OCF-3.
OCF-3 dated November 22, 2017
17The November 22, 2017 OCF-3 was similar to the first two. Dr. Chakrabarti provided the same opinion regarding the applicant’s daily activity and mobility limitations. Dr. Chakrabarti also maintained the same opinion regarding maximum medical recovery.
Optimum’s response to the OCF-18
18The applicant also relies on a February 25, 2019 chronic pain report from pain specialist, Dr. Wilderman. The applicant submits that due to chronic pain disorder, chronic whiplash and trochanteric bursitis, as diagnosed by Dr. Wilderman, the chiropractic treatment is reasonable and necessary. The applicant further submits that prior chiropractic treatment was helpful. On this basis, the applicant further grounds his entitlement to treatment on well-established case law that indicates pain relief can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote maximum recovery.
19Optimum’s response to the OCF-18 followed a March 9, 2018 insurer’s examination (IE) physician assessment report by Dr. Robert, orthopaedic surgeon. Optimum relied upon Dr. Robert’s opinion that the treatment recommended was not reasonable and necessary on the basis that the applicant’s reported complaints did not correlate with the objective findings. Optimum also relied on Dr. Khaled’s August 11, 2020 s. 44 general physician report. Dr. Khaled opined that the applicant’s fractures had healed and “there was no organic cause for his ongoing reported pain symptoms.” Dr. Khaled further opined that the applicant’s right knee swelling and minor reduction of range of motion in the right knee was minor in nature and there was no indication of ongoing musculoskeletal impairment. Dr. Khaled concluded that the applicant had reached maximal medical improvement and that there was no benefit from further facility-based treatment.
20On the evidence, I find that the IE assessors reports support that the OCF-18 is reasonable and necessary. Drs. Robert and Khaled provided objective testing results that showed that from a chiropractic standpoint, the applicant’s pain symptoms would not benefit from further facility-based treatment. However, Dr. Khaled noted that “there is evidence of significant accident-related injuries and there is evidence of…chronic pain syndrome.” In a report dated April 23, 2018, Dr. Robert states that there is no reason the applicant cannot attend a facility-based program, instead of at-home treatment. Dr. Robert goes on to state that the applicant would achieve higher therapeutic benefit from in-facility treatment. Although Dr. Robert recommends physiotherapy, he does state in response to the comments/queries from Mr. Chakrabarti, that he “has no objection to whoever instructs the applicant on the 6-8-week muscle strengthening program.”
21I find the opinions provided in the OCF-3s, the Dr. Wilderman report and the above-noted comments by Drs. Khaled and Robert support that the chiropractic treatment is reasonable and necessary. The applicant has indicated that he experienced relief from chiropractic treatment and, given his ongoing documented pain complaints, it is reasonable that further treatment would be beneficial. Accordingly, I find the applicant is entitled to payment for the treatment plan as it is reasonable and necessary. As the benefit is overdue, interest applies pursuant to s. 51.
Is the social work assessment reasonable and necessary?
22On February 14, 2018, an OCF-18 for a social work assessment was submitted. The OCF-18 was denied on March 27, 2018 on the grounds that a social work assessment was not reasonable and necessary to assess the applicant’s accident-related psychological symptomatology. I agree.
23The applicant relies on both the OCF-18 by Jennifer Barkin (social worker from MediAssess) and the s. 25 psychological report by Dr. Shaul and Julie Kogut. I do not find the OCF-18 or the Dr. Shaul report to be supportive of the applicant’s entitlement to funding for the OCF-18 for a social work assessment.
24At Part 6 of the OCF-18, it notes a diagnosis of adjustment disorder and specific phobia. It is not clear whether Ms. Barkin relied on Dr. Shaul’s report or other evidence in making the diagnosis. As the OCF-18 was completed by a social worker, Ms. Barkin, psychological diagnoses fall outside her scope of expertise. As such, I am not persuaded by the OCF-18 that the social work assessment is reasonable and necessary.
25I place little weight on the Dr. Shaul report for several reasons. First, there is no evidence that Dr. Shaul performed any psychometric testing in order to objectively determine the extent of the applicant’s alleged psychological impairment. Second, in his report, Dr. Shaul notes that the applicant experienced difficulty tending to his children and driving his clients to viewings, despite the applicant not having any children and being unemployed. In my view, this oversight of the applicant’s family situation and employment status weakens the credibility of the report. Given the issues with Dr. Shaul’s report, I find it was not assistive to the applicant in meeting his burden.
26On the evidence, I prefer the report of s. 44 assessor, psychologist Dr. Marino, for several reasons. First, Dr. Marino’s opinion in his report dated March 26, 2018, is that a psychological assessment has already been conducted, with recommendations, therefore the social work assessment would be a duplication of services. It appears that Dr. Marino is referring to the psychological assessment conducted by Dr. Shaul. Second, Dr. Marino opined that Dr. Shaul’s report did not appear to implement any objective psychometric measures. I note that Dr. Shaul’s report is generated from compiling the applicant’s responses to questionnaires about his psychological well-being. I agree with Optimum that a social work assessment and funding for same, is not reasonable and necessary to address the psychological impairments already considered in the Dr. Shaul report. In addition, there is no evidence that the family physician, Dr. Meshrki, referred the applicant for any psychological treatment post-accident.
27For these reasons, I find that a social work assessment is not reasonable and necessary for the purpose of determining the existence or extent of any accident-related psychological impairment.
Is the neurological assessment reasonable and necessary?
28The applicant seeks funding for a neurological assessment to determine if he sustained a catastrophic impairment under the AMA Guides. Specifically, the OCF-18 was proposed to determine if the applicant had suffered a severe impairment of ambulatory mobility or use of an arm or amputation. The applicant submits that Dr. Wilderman’s chronic pain report dated February 25, 2019 asserts that the applicant continues to suffer from accident-related neurological diagnoses. I find the applicant is not entitled to payment for the treatment plan in dispute as he has not met his onus to prove that it is reasonable and necessary.
29In his chronic pain report, Dr. Wilderman conducts a neurological examination that confirms, in my view, that the proposed neurological assessment is not reasonable and necessary. Dr. Wilderman notes that the cranial nerves, visual fields, extra-ocular muscles and motor and sensitive aspects of the fifth and seventh nerves are normal. I place little weight on Dr. Wilderman’s report for the following reasons. First, there is no note of any issues or concerns from a neurological standpoint from Dr. Wilderman’s neurological examination. Second, there is no further reporting from Dr. Wilderman that the applicant suffers from any neurological deficits as a result of the accident. Lastly, Dr. Wilderman makes no recommendation for a neurological assessment.
30Optimum relies on the s. 44 neurology report of Dr. Esmail dated May 14, 2018. Dr. Esmail’s report notes that there is no evidence of accident-related neurological impairments causing catastrophic impairments. The report also notes that there is no documentation of any significant neurological symptomology, quadriplegia or paraplegia. Further, that there is no evidence of any intracranial injuries. Dr. Esmail noted that the applicant had not sustained a brain impairment and, despite the applicant’s self-reported loss of consciousness, this position is contradicted by the ambulance call report and hospital records which both indicate there was no loss of consciousness and an ability to recall the accident. Dr. Esmail concluded that the applicant does not meet Criterion 4 of the AMA Guides for catastrophic impairment and that the proposed OCF-18 was not reasonable and necessary.
31On the evidence, I place more weight on the evidence from Dr. Esmail than that of Dr. Wilderman. As a neurologist, Dr. Esmail’s area of expertise would be better suited to determine whether the applicant suffered any accident-related neurological impairments, and if so, whether a proposed assessment to determine the existence and severity of any neurological impairment was reasonable and necessary. I note that a s. 25 neurological catastrophic assessment was one of several multidisciplinary catastrophic assessments approved by Optimum to determine if the applicant meets the definition of catastrophic impairment as per criterion 6, 7 and 8 of the AMA Guides. It is unclear if the applicant has already undergone the approved s. 25 neurological assessment. However, I agree that it is not reasonable and necessary for a second neurological assessment to be conducted, given the medical evidence does not support that the applicant has suffered a neurological impairment that would satisfy the more stringent criteria for catastrophic impairment.
32I find the applicant has not demonstrated why the specific assessment outlined in the OCF-18 is reasonable and necessary to assess the injuries he sustained as a result of the December 2016 accident. Therefore, I find the disputed treatment plan is not reasonable and necessary.
AWARD
33Section 10 of O. Reg. 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments. I find that an award is not appropriate.
34The applicant submits that due to its recent approval of catastrophic impairment assessments, that Optimum unreasonably withheld payment of treatment plans that were reasonable and necessary. The applicant further submits that Optimum’s failure to reconsider the disputed OCF-18s after it approved the s. 25 catastrophic assessments is also grounds for an award.
35Optimum argues that the partial approval of s. 25 catastrophic assessments is irrelevant, since funding for catastrophic assessments is separate from funding for medical and rehabilitation benefits. Optimum’s position is that the applicant still bears the onus to prove that the disputed OCF-18s are reasonable and necessary.
36Upon review, Optimum relied on the various reports of its s. 44 assessors. I find that two reports reasonably support approval of the OCF-18 for chiropractic treatment. Despite my approval of the OCF-18 for chiropractic treatment, I find that Optimum reasonably relied on its reports in its denial of the OCF-18s. In doing so, I do not find that Optimum’s actions resulted in an unreasonable delay or withholding of the benefit. The applicant has not pointed me to persuasive evidence that Optimum unreasonably delayed or withheld payment of any benefits. I note that in their submissions, the parties agreed that several issues had been resolved prior to the hearing, and the applicant did not raise an issue of an unreasonable delay or withholding of benefits regarding those resolved issues.
37For these reasons, the applicant is not entitled to an award under section 10 of O. Reg. 664 as I find no evidence that Optimum unreasonably withheld or delayed the payment of benefits.
COSTS
38In submissions, the applicant sought costs. The applicant argues that Optimum’s approval of the OCF-18 for catastrophic assessments suggests that it believes that the applicant could be catastrophically impaired.
39Optimum argues that there is no evidence of a conclusion that the applicant could be catastrophically impaired. Optimum’s position is that the funding of the catastrophic assessments is irrelevant to the issues in dispute.
40I agree with Optimum. Despite the applicant’s argument, I was not directed to any evidence that Optimum acted in a manner that was unreasonable, frivolous, vexatious or in bad faith at any point in these proceedings, as is required under Rule 19 of the Tribunal’s Common Rules of Practice & Procedure when considering an award for costs. This is not a situation that warrants a cost award.
ORDER
41The applicant is entitled to the OCF-18 for chiropractic treatment, interest is payable pursuant to s. 51.
42The applicant is not entitled to payment for the OCF-18s for the social work or neurological assessment as they are not reasonable and necessary. As no payments are outstanding, no interest is payable.
43The applicant is not entitled to costs or an award.
Released: February 12, 2021
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Ed..