Release date: 04/01/2021
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:
Fengwen Yu
Applicant
and
Allstate Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Ping Chen, Counsel
For the Respondent:
Crystal A. Schulz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on October 28, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The issues in dispute were identified as follows:
i. Is the applicant entitled to receive a medical benefit in the amount of $1,252.08 for massage therapy recommended by Apollo Physical Therapy Centres in a treatment plan dated August 30, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,607.56 for physiotherapy recommended by Apollo Physical Therapy Centres in a treatment plan dated September 19, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $660.00 for chiropractic treatment recommended by Apollo Physical Therapy Centres in a treatment plan dated December 18, 2017?
iv. Is the applicant entitled to receive a medical benefit in the amount of $2,440.67 for occupational therapy, recommended by FunctionAbility Rehabilitation Services LP in a treatment plan dated August 8, 2018?
v. Is the applicant entitled to payment for the cost of examinations in the amount of $748.00 for a quantitative electroencephalogram assessment, recommended by Ottawa Neurofeedback and Psychotherapy Centre in a treatment plan dated October 5, 2018?
vi. Is the applicant entitled to receive a medical benefit in the amount of $3,124.54 for occupational therapy recommended by FunctionAbility Rehabilitation Services LP in a treatment plan dated October 23, 2018?
vii. Is the applicant entitled to receive a medical benefit in the amount of $1,897.27 for a mattress, pillow, and noise cancelling headphones recommended by FunctionAbility Rehabiliation Services LP in a treatment plan dated November 6, 2017?
viii. Is the applicant entitled to receive a medical benefit in the amount of $1,708.56 for a personal training treatment plan recommended by FunctionAbility Rehabilitation Services LP in a treatment plan dated October 18, 2017?
ix. Is the applicant entitled to reimbursement for naturopathic treatment expenses in the amount of $675.00 submitted on an OCF-6 dated February 2, 2018?
x. Is the applicant entitled to reimbursement for various medical expenses in the amount of $989.33, submitted on October 24, 2018?
xi. Is the applicant entitled to reimbursement for various medical expenses including prescription medications, chinese medications and naturopathic treatments in the amount of $4,679.11 dated December 30, 2018?
xii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment psychological treatment plans dated May 5, 2017 and August 24, 2018 (both of which were approved prior to this hearing), the qEEG assessment, and the various expenses submitted via OCF-6 dated February 2, October 24, and December 30, 2018?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the physiotherapy treatment plan dated September 19, 2017 because it is reasonable and necessary.
4The applicant withdrew her claim for the treatment plan submitted October 18, 2017 by FunctionAbility Rehabilitation Services LP.
5The applicant is not entitled to the remaining benefits claimed.
6The applicant is entitled to an award pursuant to section 10 of Regulation 664 in the amount of 10% of the psychological treatment plans dated May 5, 2017 and August 24, 2018, which are not listed as issues in dispute.
BACKGROUND
7The applicant was struck by a vehicle while she was crossing the street at an intersection. She was taken by ambulance from the scene of the accident to the hospital where she was assessed and discharged the same day. Hospital records show that she was diagnosed with contusions as a result of the accident and was advised to return if pain increased or if she had any further concerns.
8The applicant’s physical injuries were monitored by her family physician, Dr. Gostimirovic. Dr. Gostimirovic later referred the applicant to, and involved the help of Dr. D. Mai, a sports medicine physician.
9The applicant also sustained psychological injuries as a result of the accident and the parties agree that these injuries fall outside the Schedule’s definition of a minor injury. Thus, the applicant is eligible for funding beyond the $3,500.00 minor injury funding limit.
10The parties disagree on what reasonable and necessary medical benefits the applicant is entitled to. I will address these disputes in turn.
The massage therapy plan dated August 30, 2017
11I find that the treatment plan dated August 30, 2017 is not reasonable and necessary for the applicant’s accident-related injuries. The contemporaneous clinical notes and records (“CNRs”) of Dr. Gostimirovic fail to support further massage therapy. In an entry dated June 22, 2017, Dr. Gostimirovic noted that the applicant was using massage therapy, physiotherapy, and chiropractic treatment to address neck and shoulder pain. Dr. Gostimirovic expressly stated that the applicant should continue chiropractic treatment and physiotherapy but made no remarks in favour of massage therapy. The applicant submits that Dr. Mai supports this treatment plan. However, Dr. Mai’s support is not contemporaneous with the submission of the treatment plan as the applicant’s involvement with Dr. Mai started around nine months following the submission of this treatment plan.
12The insurer examination (“IE.”) reports of Dr. M. Boucher, orthopaedic surgeon, also finds massage therapy treatment to be not reasonable and necessary. Dr. Boucher examined the applicant on August 18, 2017 and, in reports dated October 11 and October 16, 2017, diagnosed the applicant with predominantly soft tissue injuries for which she had reached maximal medical recovery. Dr. Boucher found that no further facility-based treatment was reasonable or necessary.
The physiotherapy plan dated September 19, 2017
13I find the physiotherapy treatment plan dated September 19, 2017 to be reasonable and necessary for the applicant’s accident-related injuries. I find Dr. Gostimirovic’s contemporaneous recommendation to continue with physiotherapy to be very persuasive. While I am aware of Dr. Boucher’s findings in the October 2017 reports, I find Dr. Boucher’s opinion is outweighed by Dr. Gostimirovic’s clear and direct recommendation for the applicant to continue physiotherapy. Dr. Gostimirovic recorded the applicant’s reports of improvement from chiropractic and physiotherapy, has had an ongoing doctor-patient relationship with the applicant and, as a result, is in a better position to make treatment recommendations. Notably, the September 19, 2017 treatment plan seeks funding for a personal massager at a reasonable price of $12.00 – this acknowledges the applicant’s self-reported benefit from massage but recognizes that no other medical professional recommends facility-based massage therapy.
The chiropractic treatment plan dated December 18, 2017
14I find this treatment plan to be not reasonable and necessary for the applicant’s accident-related injuries. The applicant has failed to meet her evidentiary burden to prove this treatment plan is reasonable and necessary.
15There is no evidence to show that the applicant’s family physician, Dr. Gostimirovic, supports chiropractic treatment at the time the plan was submitted, or afterwards. Dr. Gostimirovic’s recommendation for further chiropractic treatment occurred in June and records show that the applicant received 19 treatment sessions after the recommendation was made. Subsequent reports and recommendations fail to support the plan. The report dated April 14, 2019 by Dr. A. Kam, physiatrist, expressly states that the passive manipulation recommended in this treatment plan “will not be helpful”. Likewise, the CNRs from Dr. Mai also fail to support the plan. Whereas, as noted above, Dr. Boucher found no reason for further facility-based treatment in the IE reports dated October 11 and 16, 2017.
The rehabilitation assistant treatment plan dated August 8, 2018
16I find that this treatment plan is not reasonable and necessary because there is insufficient evidence to show that the applicant requires a rehabilitation assistant to help her with her activities of daily living or to help reintegrate her into her community.
17The applicant claims entitlement to this treatment plan because, according to her, she has had limited success in applying her recommended therapeutic strategies independently. She submits that she would benefit from the support of the occupational therapy program to engage in meaningful leisure and home management tasks and implement pain management strategies. The applicant believes that introducing a rehabilitation assistant is essential to support her to increase activation and participation in her daily activities in order to improve her mood, physical activity tolerances, and manage cognitive difficulties. Without this, according to the applicant, she is at risk of continued stress, anxiety and decreased self efficacy. The applicant submits that Dr. Mai and Dr. Kam both support the involvement of a rehabilitation assistant.
18The respondent submits that the applicant has received adequate occupational therapy intervention. It submits that occupational therapist, J. Saunders examined the applicant and determined that the proposed rehabilitation treatment plan was not reasonable and necessary considering her functionality.
19I find little support for this plan from Dr. Mai and Dr. Kam, contrary to the applicant’s submission. Dr. Mai recommended “occupational therapy” in May and July 2018 but made no further comment on the extent of occupational therapy. This is insufficient evidence to support an in-home program as proposed in the treatment plan. Dr. Kam’s comment on the treatment plan in the report dated April 14, 2019 is that occupational therapy is helpful and, like I noted with Dr. Mai’s statement, provides no rationale for such an extensive plan. To me, Dr. Mai and Dr. Kam’s comments are not persuasive recommendations for the disputed treatment plan. Further, despite the applicant’s ongoing participation in occupational therapy between the end of 2016 through to the end of 2018, Gostimirovic’s CNRs make no reference to or recommendation for occupational therapy intervention.
20I find the report of occupational therapist J. Saunders, dated November 22, 2018, to be persuasive. J. Saunders interviewed and assessed the applicant and reported that the applicant had returned to working up to four days a week, was independent with her personal care, commenced yoga classes, and resumed driving. J. Saunders found the applicant to be independent with self-care, demonstrated functional range of motion (with the exception of some left cervical lateral flexion and left lumbar rotation restriction), and noted the applicant’s self-reports that she would rather have funding for acupuncture or psychological treatment. The report concludes that, from a functional perspective, the applicant did not demonstrate the need for the services recommended in this treatment plan.
The quantitative electroencephalogram assessment plan dated October 5, 2018
21I find that the quantitative electroencephalogram (“qEEG”), characterized as neuropsychological assessment plan, is not reasonable and necessary as there is insufficient evidence to support the need to further examine the applicant’s neuropsychological health or suitability for neurofeedback treatment.
22Contrary to the applicant’s submissions, only Dr. K. Coe, the applicant’s psychologist, recommended that she participate in this assessment. The single recommendation occurred in an email from Dr. Coe to the applicant, dated September 11, 2018. The email was written in response to the applicant’s email confirming the news that Dr. Coe was moving and would no longer be able to provide care for the applicant. Dr. Coe confirmed the move and recommended that the applicant go to a local clinic for a qEEG because it “can be helpful in identifying issues which may be affecting the areas (the applicant) observed were problematic (i.e. word retrieval, focus, and your mental energy)”. The CNR’s of Dr. Coe, or the psychology clinic that continued to treat her following Dr. Coe’s departure, show no evidence of any supplemental assessment reports from other healthcare providers or examiners.
23The single recommendation from Dr. Coe is outweighed by the opinions and recommendations of the balance of the medical professionals who have examined the applicant. Dr. G. Greenberg, a sports medicine physician, met with the applicant on January 25, 2017 and diagnosed her with a probable concussion with depressive mood overlay. Dr. Greenberg recommended that the applicant undergo a neuropsychological examination to determine the degree of brain functionality.
24Dr. K. Payne, neuropsychologist, examined the applicant and issued a report dated July 12, 2017. Dr. Payne found that the applicant met the criteria for somatic symptom disorder and post-traumatic stress disorder (“PTSD”), but also identified that the applicant’s cognitive test results showed suboptimal effort which rendered them invalid and no further opinion was offered. Dr. Payne advised that the applicant may benefit from occupational therapy to extend involvement in her activities of daily living, provided strategies for the applicant’s self-reported cognitive difficulties, but made no recommendation for further assessments or imaging. I acknowledge Dr. Payne’s recommendation for occupational therapy but note that it is not contemporaneous with the disputed occupational therapy treatment plan discussed earlier.
25Dr. D. Schmidt, neuropsychologist, conducted an insurer’s examination with a report dated October 11, 2017. In that report, Dr. Schmidt advised that the applicant’s test results showed a pattern of symptom exaggeration and had no recommendations from a neuropsychological perspective. However, Dr. Schmidt identified symptoms of psychological illness and recommended a psychological assessment.
26In addition to disagreeing on whether the qEEG assessment is reasonable and necessary, the parties disagree on whether qEEG evidence is acceptable for this Tribunal. The respondent submitted that various Courts found the qEEG testing was predisposed to false-positive errors and had limited utility1. The applicant presented two cases in reply where qEEG evidence was accepted2. To me, whether this evidence is acceptable in litigation has little relevance when determining whether the treatment and assessment plan is reasonable and necessary, and I find the caselaw unhelpful in that regard. What I found to be relevant from the caselaw is that one case accepted qEEG evidence but, the psychiatrist who performed the test noted that neuropsychological testing and qEEG testing were “merely two different ways to test for the same thing”3
27Based on the evidence, I agree with the respondent and find that, despite the recommendation from Dr. Coe, the applicant’s psychological health care needs were met with pharmacotherapy and her ongoing mental health counselling. Such care, together with the recommendations in the neuropsychological and other assessment reports, negates the need for further examination or assessment, specifically a qEEG assessment.
The occupational therapy treatment plan dated October 23, 2018
28I find that the occupational therapy treatment plan dated October 23, 2018 is not reasonable and necessary for the applicant’s accident-related injuries.
29As noted in my analysis of the rehabilitation assistant treatment plan dated August 8, 2018, the applicant’s treating practitioners show little contemporaneous support for occupational therapy. Dr. Payne’s recommendation for occupational therapy is more than a year prior to the submission of this treatment plan. Dr. Mai’s recommendation occurred about 4 months prior, and Dr. Kam’s recommendation is provided in hindsight. None of these recommendations are at the time of the proposed treatment plan and none of practitioners go as far as saying, or implying, that it is necessary for the applicant’s recovery or reintegration into the community. Further, as noted previously, the applicant’s family physician, Dr. Gostimirovic, makes no reference to, nor a recommendation for, occupational therapy services. This leads me to believe that such intervention is not a necessary component of the applicant’s care.
30Moreover, it is the functionality exhibited by the applicant that refutes the need for additional occupational therapy services. As noted previously, occupational therapist J. Saunders reported that the applicant stated that she would rather have funding for different treatment, returned to working up to four days a week, was independent with her personal care, commenced yoga classes, and resumed driving. The functionality reported by Dr. Saunders is consistent with the balance of the applicant’s medical record. The medical record shows that the applicant has also engaged in post-accident travel abroad and has resumed pre-accident activities such as going for walks in parks.
The mattress, pillow, and headphones plan dated November 6, 2017
31I find no compelling medical evidence to support the applicant’s claim for a new mattress, pillow, and noise cancelling headphones.
32The applicant provides no compelling reason or recommendation for a new mattress. Her position is that a new mattress will help her sleep better because her pre-accident mattress is no longer suitable due to a lack of support, pressure relief, and pain reduction. However, as submitted by the respondent, the applicant’s pain appears to be somatic in nature, which a new mattress will have little to no impact on. Dr. Boucher, in the October 11, 2017 report, found no objective evidence that the applicant continued to suffer from any ongoing musculoskeletal, neurological, or orthopaedic injury or impairment. Likewise, in the report dated April 14, 2019, Dr. Kam also noted that the proposed mattress would be unhelpful in correcting the applicant’s somatic complaints.
33The applicant provides no compelling reason or recommendation for a cervical pillow at the rate she claims. Her position is that the $69.99, plus tax, approved for a cervical pillow is insufficient but, to her detriment, provides no explanation why it is insufficient. Whereas the respondent submits that the funding approved for the cervical pillow is in accordance with the cost proposed by AGTA Home Health Care (a medical equipment supplier).
34I find no compelling evidence showing that the proposed noise cancelling headphones are a necessary expense to help integrate the applicant into her community. The applicant submits that she is sensitive to noise and has difficulty tolerating background noise as a result of a concussion and her anxiety is increased when she is startled by loud noises. Yet, beyond the recommendation in the treatment plan itself, the applicant’s medical record is devoid of any other treating practitioner recommending noise cancelling headphones or, at the least, seeking a solution for the applicant’s reported noise sensitivity. In response, the respondent rightfully questions why the applicant needs noise cancelling headphones at the most expensive end of the spectrum and submits that noise cancelling headphones range in price from $29.00 to $499.00. I agree with the respondent that there is no explanation why the applicant requires what is arguably the most expensive headphones on the market.
The personal training plan dated October 18, 2017
35The applicant withdrew her claim for this plan.
The naturopath treatment expenses submitted via OCF-6 dated February 2, 2018
36I find that the applicant is not entitled to the naturopath treatments claimed because the services were incurred before being submitted to the respondent. Pursuant to section 38(2), the respondent is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before it was submitted to the respondent. None of the expenses claimed fall within the exceptions noted in section 38(2).
37I reject the applicant’s claim that she is entitled to the expenses because her naturopathic treatments are each less than the $250.00 threshold provided by section 38(2)(c). Regardless of the cost of the services, the expenses are not covered under the exception provided by section 38(2)(c)(i), because the expenses are for naturopathic services rendered and not drugs prescribed by a regulated health professional. Further, the expenses are not covered in the exception provided by section 38(2)(c)(ii) which permits the applicant to incur the costs of prescription eyewear, dentures and dental devices, hearing aids, wheelchairs or mobility devices, prostheses, orthotics or other assistive devices, as well as any workplace, home, or vehicle modifications required to accommodate the needs of the applicant.
The various expenses submitted via OCF-6 dated October 24, 2018
38I find that the applicant is not entitled to the naturopathic, psychological, and psychotherapy expenses because none of the expenses fall in the exceptions provided by section 38(2), as noted above. The expenses claimed are $200.00 for a psychological assessment, $200.00 for an intake appointment with Ottawa Neurofeedback & Psychotherapy, $309.41 for a psychological consultation and production of a treatment plan, and $258.35 for expenses characterized as Chinese medicine expenses incurred during September and October 2018.
39I find insufficient evidence to characterize Chinese medicine as drugs prescribed by a regulated health professional pursuant to section 38(2)(c)(i). The evidentiary record shows no prescription for Chinese medicine. At best, are notes in Dr. Mai’s records that recommend Chinese herbal medicine. However, the first documented recommendation occurred on November 8, 2018 – after the expenses were incurred. Contrary to the applicant’s submissions, the records of her naturopathic doctor also show no evidence of a prescription for Chinese medicine.
40Lastly, I find that the receipts for the Chinese medicine expenses claimed, fail to show the requisite detail to compel payment. The receipts show only the date of purchase and the amount. There is no detail as to where the expenses were incurred and, more importantly, no information showing that the expenses claimed are what the applicant’s claims them to be.
The various expenses submitted via OCF-6 dated December 30, 2018
41Like the two other expense claims noted above, I find that the respondent is not liable to pay these expenses because they were incurred prior to the submission of a treatment and assessment plan, pursuant to section 38(2). Further, the naturopathic and acupuncture treatment expenses are excluded from the exceptions in section 38(2).
Award
42The applicant claims entitlement to an award pursuant to section 10 of Regulation 664 and submits that the respondent unreasonably withheld or delayed payment of psychological treatment plans dated May 5, 2017 and August 24, 2018,(both of which were approved prior to this hearing), the qEEG assessment, and the various expenses submitted via OCF-6 dated February 2, October 24, and December 30, 2018.
43As noted previously, the respondent’s refusal to pay the qEEG assessment and various expenses submitted via three OCF-6 is in accordance with Schedule. Accordingly, I see no evidence that payment for these expenses was unreasonably withheld.
44Although the psychological treatment plans dated May 5, 2017 and August 24, 2018 were approved prior to this hearing, I find that the respondent unreasonably withheld funding for them. The respondent denied funding for these treatment plans on the basis that it had previously approved a psychological assessment and that it had yet to receive the report from the approved assessment thus, according to the respondent, there was no compelling evidence in support of the treatment. However, there is no requirement for an insured to incur the cost of an approved section 25 assessment prior to submitting a plan for treatment under the same specialty. Further, the respondent’s position on the latter plan fails to appreciate that, before Dr. Boucher’s report dated October 11, 2017, it had possession of some of the applicant’s counselling records from Dr. Payne and that Dr. Schmidt’s IE report dated September 27, 2017 identified “evidence to support ongoing psychological disturbances”.
45Pursuant to section 10 of Regulation 664, an applicant may be awarded up to 50% of the amounts withheld plus interest. Here, the respondent relied on the fact that the section 25 psychological assessment had not been incurred to deny funding for phycological treatment despite, in my opinion, having enough evidence to approve funding for psychological treatment. To me, an applicant should never be forced to incur costs against their funding limit in a situation where such expenses may not be necessary. However, the applicant must accept responsibility for failing to produce counselling records in a timely manner and her decision to submit but refrain from incurring, withdrawing, or providing any explanation as to why the approved psychological assessment was never incurred. A report from that assessment would likely have provided a clearer picture of the applicant’s psychological health and what treatment is required. Further, it is unclear when the applicant provided Dr. Payne’s counselling records to the respondent. However, it appears the records were provided after the May 5, 2017 treatment plan was submitted but before the August 24, 2018 plan was submitted. For these reasons, I find the applicant is entitled to an award of 10% of the amounts withheld plus interest.
CONCLUSION
46The physiotherapy treatment plan dated September 19, 2017 is reasonable and necessary. The applicant is entitled to payment for the incurred goods and services, plus interest pursuant to section 51 of the Schedule. If the applicant has not incurred the cost of the goods and services, she may do so, and the respondent is liable to pay for it once properly invoiced.
47I find the remaining benefits claimed are not reasonable and necessary for the applicant’s accident-related injuries.
48The applicant is entitled to an award pursuant to section 10 of Regulation 664 in the amount of 10% of the psychological treatment plans dated May 5, 2017 and August 24, 2018, which were resolved prior to this hearing, plus interest.
Released: April 1, 2021
Brian Norris, Adjudicator
Footnotes
- McGuire v. Risling, 2001 SKQB 498 at para. 31, Italy v. Seifert, 2007 BCCA 407, and Bialkowski v. Banfield, 2011 BCSC 1045 at para. 58
- Appeals Commission for Alberta Workers Compensation: Decision No.: 2003-235, 2003 CanLII 68412 (AB WCAC); and by the Veterans Review and Appeal Board: 100003414095 (RE), 2019 CanLII 38532 (CA VRAB)
- Decision No.: 2003-235, 2003 CanLII 68412 (AB WCAC) at para 54.