Citation: M.D. v. Northbridge Insurance Company, 2021 ONLAT 19-004818/AABS
Release Date: 2021/03/25
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:
M.D.
Applicant
and
Northbridge General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Mike Dale, Applicant
Michael L. Bennett, Counsel
For the Respondent:
Nicholas M. Wine, Counsel
HEARD:
by way of written submissions
OVERVIEW
1M.D. was injured in an accident on February 23, 2017 and sought benefits from the respondent, Northbridge, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). As a result of the accident, he sustained soft-tissue injuries to his shoulders, neck, back and headaches. Notably, he sustained psychological impairments identified as depression and post-traumatic stress disorder (“PTSD”). The psychological issues are the main contention between the parties in this proceeding. M.D. sought payment for psychological treatment. Northbridge partially denied the treatment plans on the basis that they were not reasonable and necessary. M.D. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Is the medical benefit in the amount of $15,484.64 ($26,680.97, less $11,196.34 approved) for psychological treatment recommended by Dr. R. Raghunan in a treatment plan (“OCF-18”) submitted on September 18, 2017 and denied on April 13, 2018, reasonable and necessary?
b. Is the medical benefit in the amount of $7,106.47 ($14,412.95, less $7,306.48 approved) for psychological treatment recommended by Dr. R. Raghunan in an OCF-18 submitted on March 26, 2019 and denied on April 8, 2019, reasonable and necessary?
c. Is M.D. entitled to interest on any overdue payment of benefits?
d. Is M.D. entitled to an award under Ontario Regulation 664 because Northbridge unreasonably withheld or delayed the payment of benefits?
3In his submissions, M.D. withdrew issue 2d. Therefore, the decision will focus on the remaining issues in dispute.
FINDING
4I find that M.D. is entitled to a portion of the OCF-18s for psychological treatment as they are partially reasonable and necessary. Specifically:
a. September 18, 2017 OCF-18 in the amount of $5,735.47 ($598.44 – Assessment; $149.51 – Preparation; $1,047.27 – Documentation, support activity; $3,740.25 - Therapy, mental health and addictions; and $200.00 – Form completion); and
b. March 26, 2019 OCF-18 in the amount of $200.00 – Form completion.
c. Interest is payable on overdue amounts pursuant to s. 51.
ANALYSIS
5Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. M.D. bears the onus to prove that the specific benefits he claims are reasonable and necessary for his accident-related impairments. M.D. has demonstrated that the OOCF-18s are partially reasonable and necessary.
BACKGROUND
6M.D.’s submissions on the reasonableness and necessity of the OCF-18s focus on addressing his PTSD and rely on Dr. Raghunan’s recommendations in the s. 25 report that he requires further treatment to address his psychological impairments. M.D. argues that Northbridge’s s. 44 assessor reports by Dr. Deck also support that the recommended treatment is reasonable and necessary. M.D. also submits that a suitable treatment provider is not available in his area, requiring him to seek and rely on the treatment provided by Dr. Raghunan. In addition, M.D. has established a rapport with Dr. Raghunan.
7M.D. resides in Sault Ste. Marie and Dr. Raghunan practices out of Toronto. In order to receive treatment, Northbridge has been flying Dr. Raghunan to Sudbury where he connects to Sault Ste. Marie in order to provide M.D. with in-person therapy sessions. Northbridge’s position is that there is an option of a local psychologist, Dr. Hann, that could provide M.D. with treatment. As will be discussed below, M.D. submits that Dr. Hann is not adequately qualified to treat M.D. and switching to a new treatment provider would have a negative impact on the improvements M.D. has achieved.
8In response, Northbridge acknowledges that some psychological treatment is reasonable and necessary, however, the unapproved balance of the disputed OCF-18s is not. Northbridge submits that the proposed length and number of sessions is excessive, and that M.D. failed to consider whether a local treatment provider could be utilized in order to reduce travel expenses.
OCF-18 dated September 18, 2017 in the amount of $15,484.64
OCF-18 dated March 26, 2019 in the amount of $7,106.47
9The arguments surrounding the two OCF-18s are similar for each, so I will discuss the plans together in my analysis of whether the OCF-18s are reasonable and necessary.
10In the September 18, 2017 OCF-18, Dr. Raghunan recommended 4 hours of assessment; 1 hour of preparation; 7 hours of documentation and support activity; 20 sessions of in-person therapy each lasting 3 hours in duration; 10 round-trips for Dr. Raghunan to fly to treat M.D., each lasting 8 hours in travel time; 25 sessions of telephone therapy each lasting 1 hour in duration; and 1 hour of documentation for form completion. At the time the OCF-18 was submitted, Dr. Raghunan completed 12 treatment sessions. It is not clear from the evidence whether these sessions were from a previous treatment plan, or were incurred prior to the submission of the September 2017 OCF-18
11Northbridge initially denied the OCF-18 and referred M.D. to two assessments with its s. 44 assessor, psychologist Dr. Deck, which resulted in reports dated April 23, 2018 and November 13, 2018. Based on Dr. Deck’s conclusion, Northbridge approved approximately half of the September 18, 2017 OCF-18 as follows: 2 hours for assessment; 1 hour of preparation; 3.5 hours of documentation and support activity; 10 sessions of in-person therapy each lasting 1.5 hours in duration; 5 hours of Dr. Raghunan’s trips each lasting 8 hours in travel time; 12 sessions of telephone therapy each lasting 1 hour in duration; and 1 hour of documentation for form completion.
12The March 26, 2019 OCF-18 proposed 5 sessions of in-person therapy each lasting 3 hours in duration; 5 of Dr. Raghunan’s trips each lasting 16 hours in travel time; and 1 hour of documentation for form completion. Northbridge partially approved the March 26, 2019 OCF-18 based on Dr. Deck’s November 2018 s. 44 report. Its approval is as follows: 5 sessions of in-person therapy each lasting 1.5 hours in duration; 5 of Dr. Raghunan’s trips each lasting 8 hours in travel time; and 1 hour of documentation for form completion.
13M.D. provided the following rationale for why Dr. Raghunan is the appropriate psychologist to provide his treatment:
a. Dr. Raghunan has extensive expertise in treating automobile accident victims;
b. The only psychologist in the Sault Ste. Marie area registered on HCAI, Dr. Hann, has a limited practice in relation to personal injury victims;
c. Dr. Raghunan’s treating relationship with M.D. is extensive and his progress would be set back if he was forced to change psychologists;
d. M.D. prefers Dr. Raghunan’s treatment and is deriving benefit from it; and
e. M.D.’s impairments prevent him from travelling to Toronto to receive Dr. Raghunan’s treatment.
14I will address these sub-issues together, below.
Dr. Raghunan
15M.D. submits that Dr. Raghuhan’s approximately 40 years of experience treating accident victims, makes him the preferred choice over the sole option in Sault Ste. Marie. M.D. submits that he has researched local treatment providers, with the one potential choice, Dr. Hann, having limited experience in dealing with automobile accident victims.
16Northbridge argues that M.D. has failed to produce compelling evidence that he would be unable to seek treatment from a psychologist closer to the Sault Ste. Marie area. Northbridge points to M.D.’s admission to Dr. Deck in the November 2018 report that he was unsure whether his counsel considered psychologists in his area; therefore, he did not know whether another psychologist closer to his area would be a suitable treatment provider.
17I disagree with Northbridge. First, M.D. provided evidence of information obtained about a qualified local psychologist, and reasons why Dr. Hann is not a suitable treatment provider, as noted in paragraph 13. Second, I find Dr. Raghunan’s extensive experience and success in treating M.D. to be persuasive evidence that switching treatment providers after receiving beneficial treatment to date may be detrimental to M.D.’s progress. Lastly, Northbridge did not put forth any evidence or argument to support its position that a local treatment provider might be a good fit or is capable of providing the type of counselling provided by Dr. Raghunan that M.D. is benefitting from.
18Regarding Dr. Raghunan’s treating relationship with M.D., he submits that given the multiple in-person and telephone sessions already completed, a significant patient-psychologist relationship has been formed. Based on this relationship, M.D. prefers receiving treatment from Dr. Raghunan and submits that switching to a new treatment provider at this stage in his progress is not practical. He submits that having to establish a new relationship with the local psychologist, Dr. Hann, would be inefficient and detrimental. I agree.
19Weighing the benefits and setbacks of the treatment received to date, M.D. has reported to have improved substantially. Switching to Dr. Hann would cause M.D. to have to start at “square one”, and he would have to relive the circumstances of the accident and build a trust relationship with Dr. Hann. Further, there is no guarantee that Dr. Hann would employ the same treatment techniques implemented by Dr. Raghunan that has resulted in M.D.’s progress. I find this would be a detrimental process for M.D. to have to start fresh with a new treatment provider given the reports of success based on the number of in-person, telephone and Skype sessions with Dr. Raghunan to date.
20Both Dr. Raghunan and Dr. Deck have diagnosed M.D. with PTSD and note that he suffers from low back pain, making driving long-distances difficult. M.D. submits that Northbridge flew M.D. to Toronto and then to Sudbury for Dr. Deck’s examination, which supports his position that finding a suitable psychologist in the Sault Ste. Marie area is difficult.
21Northbridge relies on its argument that M.D. has not provided compelling evidence that supports that treatment from Dr. Raghunan is reasonable and necessary, given the option of treatment from Dr. Hann. I have already set out my reasons why I find that Dr. Raghunan is the preferred option over Dr. Hann. I have given more weight to Dr. Raghunan’s opinion due to the treatment history and the patient-psychologist relationship they have established.
Surveillance evidence
22Northbridge relies on surveillance reports provided by Intrepid Investigations dated February 4, 2018 and August 24, 2018, respectively, to bring into question M.D.’s credibility. Northbridge submits that M.D. reported to s. 44 assessor, neurologist Dr. Kucher, that he does not drive post-accident and spends his time watching television and resting. In contrast, the surveillance evidence shows M.D. frequently driving, running errands, moving boxes and items into his truck, lowering a boat on to a trailer, switching trucks and attending metal and lumber stores. Northbridge’s position is that the surveillance evidence does not depict an individual living a sedentary lifestyle or spending his time just “watching television and resting”.
23M.D. argues that the surveillance evidence is not persuasive and that Dr. Deck’s opinion regarding M.D.’s impairment and credibility was not changed by the surveillance. At a re-assessment with Dr. Deck on February 6, 2020, Dr. Deck provided his opinion on the surveillance, stating:
The video does not give enough insight into M.D.’s emotional experience while engaging in these activities. In other words, a video does not show his inner emotional feelings while driving or interacting with others.
24Dr. Deck concluded that the surveillance video did not provide sufficient information to change his opinion concerning M.D.’s psychological impairments.
25I find that the surveillance evidence is not persuasive. First, I agree with Dr. Deck’s opinion that the video does not establish M.D.’s emotional or psychological state while performing the various activities observed in the surveillance. Second, there is no dispute regarding M.D.s physical abilities and no treatment for physical impairments is being sought. Third, I do not find that surveillance of M.D.’s physical abilities determines what M.D.’s psychological conditions are. Lastly, I am persuaded by Dr. Deck’s opinion that supports that M.D. still suffers from post-accident psychological impairment, and that the evidence provides no insight into M.D.’s psychological well-being while under surveillance.
Are the OCF-18s reasonable and necessary?
26I rely on the following considerations set out by Director’s Delegate Draper in Violi1 which have been applied by the Tribunal when determining whether proposed treatment is reasonable and necessary:
a. The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree;
b. The treatment should be appropriate to the goals and to the person;
c. The frequency, cost and duration of the treatment itself must be reasonable; and
d. With respect to cost, not just the financial expense should be considered, but whether the investment of time, effort and expertise required to achieve the treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.
27There is no dispute between the parties that the treatment goals as identified are reasonable and necessary. Northbridge’s partial approval of the OCF-18s supports that the proposed treatment is necessary and that the treatment goals continue to be met to a reasonable degree. I will address the question of whether the cost of the balance of the treatment plans are reasonable and necessary below.
28M.D. acknowledges that he has benefitted from treatment with Dr. Raghunan, and that the balance of the proposed treatment would continue to provide relief from his accident-related PTSD. M.D. posits that the previously received treatment has resulted in substantial improvement and, based on Dr. Raghunan’s recommendations, the balance of the treatment would continue to address the residual effects of the accident and, at the very least, maintain M.D.’s trajectory of an eventual return to his pre-accident psychological status.
29Northbridge argues that the balance of the treatment is excessive, and there is no medical evidence that supports that the proposed treatment is reasonable and necessary. For example, Northbridge submits that Dr. Raghunan’s report does not explain why in-person counselling has a different effect than Skype counselling. Northbridge’s position is that as a result of the global pandemic, patients are forced to have to participate in virtual counselling. It also argues that there has been no evidence that M.D. achieves more progress with in-person sessions versus Skype sessions. Northbridge further argues that Dr. Raghunan’s proposed treatment in the September 2017 OCF-18 suggests that less treatment is sufficient, as evidenced by the comparison of the 20 sessions at 3 hours each, and then 25 additional sessions at 1 hour each.
30On the evidence, I partially agree with M.D. Both Dr. Raghunan and Dr. Deck acknowledge that M.D. still suffers from post-accident psychological impairments. I find that the balance of the September 2017 OCF-18 is reasonable and necessary given the success noted by M.D. in receiving treatment with Dr. Raghunan. While it is uncertain whether M.D. would be able to receive in-person treatment from Dr. Raghunan due to the pandemic, I find that the telephone sessions (and possibly Skype sessions in place of in-person sessions) necessary to address M.D.’s continued issues with post-accident PTSD.
31I find that the March 26, 2019 OCF-18 is partly reasonable and necessary for the following reasons. First, compared to the September 2017 OCF-18 that proposed 8 hours of travel time for Dr. Raghunan for each trip, there is no explanation for why 16 hours of travel time for each trip is reasonable and necessary in the March 2019 OCF-18. M.D. has put forth no evidence to support that double the amount of travel time is required. Therefore, he has failed to satisfy his burden of proving on a balance of probabilities that 16 hours of travel time for five trips is a reasonable and necessary expense. Second, I find that the expense of the in-person treatment is excessive when compared to the September 2017 OCF-18, which proposed telephone sessions. I find this is an indication that other treatment modalities were not considered when the March 2019 OCF-18 was submitted, such as telephone or Skype sessions. As such, I find that the in-person portion of the OCF-18 is not reasonable or necessary.
32For the reasons set out above, I find that the September 2017 OCF-18 and March 2019 OCF-18 are partially reasonable and necessary.
ORDER
33M.D. is entitled to the following:
a. September 18, 2017 OCF-18: $5,735.47 ($598.44 – Assessment; $149.51 – Preparation; $1,047.27 – Documentation, support activity; $3,740.25 - Therapy, mental health and addictions; and $200.00 – Form completion);
b. March 26, 2019 OCF-18: $200.00 – Form completion; and
c. Interest is payable on overdue amounts pursuant to s. 51.
Date of Issue: March 25, 2021
_______________________
Derek Grant, Adjudicator